State Of Washington, Respondent V Peter Tvedt, Appellant (Majority)
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FILED C01-` RT OF APPEALS LJ MS 1011 4 h 2013 NOY 13 AM 11: IN THE COURT OF APPEALS OF THE STATE OF W DIVISION II I STATE OF WASHINGTON, No. 431: Respondent, V. UNPUBLISHED OPINION PETER TVEDT, Peter Tvedt appeals his convictions for one count of second degree child PENOYAR, J. rape and one count of intimidating He seeks a new trial because testimony from the a witness. victim' s stepmother was admitted at trial under RCW 10. 58. 090, which our Supreme Court found unconstitutional. Because admitting the evidence under RCW 10. 58. 090 was harmless error, we affirm. FACTS BACKGROUND 1. At the time of the following events, Tvedt was staying with his daughter, Crystal Pittman, Crystal' s husband, Jack Pittman, Spanaway. On February and Jack' 22, 2011, HP did 13- year s not have old school. daughter, HP, in their home in She testified that she awoke in the living room to Tvedt speaking into her ear, telling her that he was going to sexually assault her. After the assault, HP locked herself in the bathroom. Tvedt knocked on the door and said that if she told anyone and he went to jail, he would " beat the shit out of her when he got out. Report of Proceedings ( RP) ( Dec. 8, 2011) at 201, 202. HP her noticed that there clothes and pretended was a substance that she was later identified leaving for school. as semen on Tvedt her shirt. apologized She changed and said that he 17 43112 -2 -II would move out if HP wanted She said that he should leave, and he left the house with him to. his belongings. HP then her called aunt, Joanna Naylor. After hearing that HP was emotionally distraught, Naylor drove to the Pittman house with her friend Jennifer Buchanan. Naylor called Jack' Crystal, and the Child who returned Advocacy Center for a home and called the forensic interview police. Jack and Crystal then took HP to and physical examination. HP told both the forensic investigator and a nurse practitioner that Tvedt had sexually assaulted her. After she had arrived at the Pittman' s, Naylor had placed H.P.' s shirt in a plastic bag, which she gave to the police. Forensic DNA analyst William Dean tested the stain on HP' s shirt. The stain tested Tvedt semen on a positive as semen and a offered towel transferred the different to her shirt hundred dollars from his stolen a version in the bathroom semen the DNA in of after matched Tvedt' S. the events. Tvedt claimed that he had deposited masturbating in the an attempt 2 shower. to frame him for suitcase and was afraid he rape. would He claimed that HP He alleged that she had inform her parents. Tvedt said that, after he caught her stealing, HP went to the bathroom, where he saw her holding the towel. that he Tvedt then decided to leave the house. was ruffled" and moving condition. drove to He also retrieved the towel from the bathroom, where it was in a out. RP ( Dec. 13, 2011) a residence Before leaving, Tvedt called Crystal to tell her in Puyallup, at He threw the towel on the front seat of his car 461. where his car remained until trial. On February 25, 2011, the State charged Tvedt with one count of second degree child rape and one count of intimidating a witness. For clarity' s sake we refer to the Pittmans by their first names. We intend no disrespect. 2 Dean testified that the odds that it was not Tvedt' s semen were 1 in 870 quadrillion. 2 43112 -24I PROCEDURE II. The State made a pretrial motion to admit allegations that Tvedt had attempted to rape Crystal when she was nineteen years old. incident occurred when she was alone with oral sex and she refused. until he The trial court heard testimony from Crystal that this released Tvedt watching television. He asked her to perform He then attempted to force her head toward his lap, but she struggled At that point, Tvedt apologized and explained that he had been having her. problems with Crystal' s mother. Crystal did not tell police about the incident, but she did tell her best friend. Crystal testified that she allowed Tvedt to temporarily live in her house in 2011 only because she wanted to believe that he had changed. Crystal did not initially tell the detectives on the scene about the incident, but testified that this was because she was nervous and worried that HP would be taken away from them. The court ruled that Crystal' s testimony was admissible under RCW 10. 58. 090. At trial, Tvedt testified in his own defense and alleged that he had attacked neither H.P. nor He said he was unaware, until February 26, that Crystal had ever made any Crystal. accusation against him. The jury found Tvedt guilty of one count of second degree child rape and one count of intimidating a witness. The trial court sentenced him to 114 months to life on the first count and 20 months on the second count, to run concurrently. ANALYSIS Tvedt argues ( 1) that the trial court erred by admitting Crystal' s testimony under RCW 10. 58. 090 because that statute was declared unconstitutional in State v. Gresham, 173 Wn.2d 405, 269 P. 3d 207 ( 2012), 404( b). The State and ( 2) that the testimony was not alternately. admissible under ER concedes that RCW 10. 58. 090 is K? unconstitutional. We agree with the parties 43112 -2 -II that the trial court erred by admitting Crystal' s testimony under RCW 10. 58. 090 but hold that the error was harmless. Because the admission of a defendant' s evidence of other crimes is not an error of constitutional magnitude, the admission is harmless if there is a reasonable probability that the outcome of the trial would not have been materially different had the error not occurred. State v. Kidd, 36 Wn. that the 503, 507, 674 P. 2d 674 ( 1983). App. admission of the defendant' In Gresham, the Supreme Court concluded s prior conviction was not harmless error. 173 Wn.2d at 434. There, the remaining admissible evidence consisted solely of the victim' s testimony and the parents' victim' s corroboration that the defendant had an opportunity to molest the victim. Gresham, 173 Wn.2d at 433. Given the remaining evidence, the Gresham court held that " there is a reasonable probability that absent this highly prejudicial evidence of Gresham' s prior sex the offense ... jury' s verdict would have been materially affected." 173 Wn.2d at 433 -34. By contrast, the admissible evidence in this case is considerably more persuasive than the evidence in Gresham. HP reported also practitioner the shortly First, there is HP' s testimony that Tvedt forced her to perform oral sex. incident to her after parents, it happened. Naylor, a forensic investigator, and a nurse Second, the DNA recovered from HP' s shirt was positively identified as Tvedt' s by an overwhelming probability: Dean testified that the odds that the semen was not offered was Tvedt' s were utterly incredible. 1 in 870 quadrillion. Finally, the version of events that Tvedt No reasonable juror would believe that 13- year -old HP just happened to become aware of a substance on a towel in the bathroom, shrewdly discerned that the substance was some of Tvedt' s semen, and then quickly conceived of a complicated plot to wipe the semen on her own shirt and falsify a report of abuse by Tvedt to prevent him from reporting her previous theft. Thus, the jury could see that Tvedt was making up a fanciful tale to 9 43112 -2 -II get out of trouble. Taken together, this evidence is overwhelming, and we conclude there is no reasonable probability that the evidence of Tvedt' s actions toward Crystal affected the outcome of Therefore, any error was clearly harmless and we need not examine the evidence the trial. further under ER 404( b). We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. enoyar, We concur: 3 i a Johanson, A.C. . 1 7 3 fL I9M Bjo: gen, J. a 5 J.
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