State v. Wirth

85 P.3d 922, 121 Wash. App. 8
CourtCourt of Appeals of Washington
DecidedFebruary 18, 2004
DocketNo. 29927-5-II
StatusPublished
Cited by3 cases

This text of 85 P.3d 922 (State v. Wirth) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wirth, 85 P.3d 922, 121 Wash. App. 8 (Wash. Ct. App. 2004).

Opinions

Hunt, C.J.

Steven Wirth appeals his conviction of one count of second degree rape of a child, arguing that (1) the trial court erred when it replaced an ill juror with an alternate juror and instructed the jury to start deliberating anew; (2) the trial court erred by admitting evidence of Wirth’s prior uncharged sexual misconduct; and (3) trial counsel’s failure to request a limiting instruction regarding the evidence of past sexual conduct with the victim was ineffective assistance of counsel. We disagree and affirm. We also grant the State’s request that Wirth pay all allowable costs of this appeal.

FACTS

I. Rape

S.W. grew up living primarily with her father, defendant Steven Wirth, and her sister D.W.1 S.W. alleged that her father, Steven Wirth, had repeatedly sexually abused her. S.W. claims she first told her grandmother about the sexual assaults sometime between 1995 and 1997, when S.W. was around 9 or 10 years of age. S.W. said that her grandmother then confronted Wirth about the incidents, and that, after first denying the allegations, he eventually admitted them and promised he would not have any further sexual contact with S.W. Sometime around 1999, while S.W. was playing “truth or dare” with her friends Holly and Chris, she told [10]*10them that Wirth had raped her. 1 Report of Proceedings (RP) at 74.

Later, when S.W. was in ninth grade, she completed a school assignment in which she wrote about how her family affected her life. S.W. described her family life as “all screaming and yelling,.. . fighting, screaming fests” and revealed that Wirth had given S.W. green and yellow bruises around her eyes. 1 RP at 76. After reading S.W.’s paper, her teacher sent her to the counselor’s office. The counselor called Child Protective Services (CPS). Two days later, a CPS social worker, Kim Gabbard, interviewed S.W. in the presence of the principal and S.W.’s friend Holly.

S.W. first told Gabbard that her father had physically abused her. Gabbard then informed S.W. that CPS could not remove her from the home unless there was sexual abuse, or drug or alcohol use. Holly then told Gabbard about the sexual abuse. Gabbard notified the sheriff’s department.

II. Procedure

The State charged Wirth with five counts of first degree rape of a child2 and, in the alternative, five counts of second degree rape of a child.3

In a pretrial motion at Wirth’s second trial,4 the State moved to admit all of the sexual history between Wirth and S.W. as showing lustful disposition under ER 404(b). The State made an offer of proof, and the court heard testimony from S.W. outside the jury’s presence.

S.W. testified that Wirth had anal intercourse with her approximately five times while they lived in Tennessee, when she was seven or eight years old. She also testified that (1) the abuse continued after the family moved to Texas, where Wirth had anal intercourse with her on three more occasions; (2) while on vacation in Alaska with S.W. [11]*11and D.W., Wirth. had tried to get S.W. to perform fellatio on him, but she refused; and (3) Wirth later attempted to perform cunnilingus on S.W., but stopped when D.W. woke up, saw Wirth under S.W.’s blanket, and started crying.5

The trial court heard argument and granted the State’s motion. The court ruled that the testimony’s probative value outweighed its prejudice and admitted it as showing Wirth’s disposition.

At trial, in addition to recounting the sexual history between her and her father, S.W. also testified to abuse that occurred after her family moved to Washington when S.W. was nine years old. S.W. stated that when she was between 11 and 13 years old, living in Mossyrock, her father had sexual contact with her on multiple occasions, explaining that he had sexual intercourse with her and had digitally penetrated her vagina, and that she had performed fellatio on him. S.W. also recounted an incident that occurred after the family moved to Onalaska, when Wirth, S.W., and D.W. were all sleeping together on a mattress on the floor of their mobile home: S.W. had wakened to find Wirth trying to pull her underwear aside with his toes, and he then penetrated her vagina with his toes.

Detective Stacy Brown testified that when she questioned Wirth about the incident involving penetrating S.W. with his toes, he said, “If I say what she said I did, what will happen?” 2 RP at 74. He also asked what the course of treatment would be. Wirth said that he was “not inclined to give anything that will go against [him].” 2 RP at 75.

S.W.’s grandmother testified at trial that (1) S.W. had “half-heartedly” disclosed that Wirth had “touched” her, 2 RP at 40; (2) when she told Wirth about S.W.’s disclosure, he denied it and said “something like” he would never do it again, 2 RP at 40-41; and (3) she had never discussed any of S.W.’s sexual allegations that led to the charges against Wirth.

[12]*12D.W. testified that (1) she and S.W. fought quite frequently; (2) S.W. hurt her numerous times during these scuffles; and (3) Wirth frequently disciplined the girls for this behavior. D.W. denied that she saw Wirth and S.W. engaging in sexual activities during the Alaska trip or at any other time when they lived in Washington.

The day after the jury began deliberations, the foreperson sent a note to the judge saying:

We have arrived at a verdict. Question: Procedure in reference to “5 counts”. How to deal with the “5 counts” issue. . . . There are “5 counts” of 1st Degree, “5 counts” of 2nd degree .... We have arrived at decisions in reference to both sets of charges. How do we discern which “count” we are referring to?

Clerk’s Papers (CP) at 32, 33.

While the trial court was addressing this question, a juror fell ill and was taken to the hospital. The jury sent another note to the judge stating: “111 juror was part of total deliberation. Verdicts were made prior to her becoming ill.” CP at 34. The trial court sent a note to the jury instructing them to “cease deliberations until the alternate juror is in attendance.” CP at 35.

Finding this information insufficient to satisfy the requirements of CrR 6.5, the trial court substituted alternate juror number 13. The court and defense counsel conducted a brief voir dire to determine whether juror 13 had had any contact with any third party about the case.

The trial court provided the jury with a supplemental instruction to disregard all previous deliberations and to begin deliberating anew with juror 13. Defense counsel objected to seating juror 13 and requested a mistrial, arguing, inter alia, that the jury had completed its deliberations and had rendered a verdict. The court denied the motion for a mistrial.

The jury convicted Wirth of one count of second degree rape of a child. Wirth appeals.

[13]*13ANALYSIS

Juror Substitution

Wirth contends that the trial court erred by replacing an ill juror with an alternate juror under CrR 6.5 after the jury declared they had reached a verdict. The question before us is whether the jury’s “verdict” in this case was sufficiently final to preclude the trial court’s substitution of the alternate juror and ordering the jury to begin deliberations anew.

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Related

State v. Wirth
85 P.3d 922 (Court of Appeals of Washington, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
85 P.3d 922, 121 Wash. App. 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wirth-washctapp-2004.