Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON ,
                                                 )         No. 67564-8-1
                      Respondent,                )
                                                 )         DIVISION ONE
              v.                                 )
                                                 )         UNPUBLISHED OPINION
STEVEN RICHARD HOOPER,                           )
                                                 )
                      Appellant.                           FILED: February 6, 2012
                                                 )
                                                 )

                                                 )

       Appelwick,  J.   --  Hooper appeals  his conviction and sentence for  two 

counts of child molestation in the second degree and one count of 

communication with a minor for immoral purposes.  He argues he was denied his 

constitutional rights to confront and cross-examine the victim, M.M. on matters 

affecting her credibility and bias.  He argues he received ineffective assistance 

of counsel, based on the failure to object to certain testimony.  He also argues 

the trial court erred by admitting M.M.'s prior recorded statement.  Finally, 

Hooper argues the trial court miscalculated his offender score by concluding the 

first child molestation charge was        not  the same criminal conduct as the 

communication with a minor charge.  Finding no error, we affirm.

                                        FACTS

       Steven Hooper and M.M. met in 2008, when she was 11 or 12 years old.  

At trial, Hooper testified M.M. lied about her age when they first met; he believed 

she was 15 at that time, in part because she spent a lot of time with another girl, 

B.G., who Hooper knew to be 15.  M.M. testified she never lied to Hooper about  

No. 67564-8-I/2

her age.  M.M. and Hooper eventually exchanged phone numbers, began 

spending time together, and struck up a romantic relationship.  Hooper would 

visit M.M. at the house where she was living with B.G. and others.  

       Late at night on February 25, 2010, M.M., B.G., and another friend were 

hanging out in a park.  M.M. texted Hooper and invited him to join them.  They 

exchanged text messages, and Hooper initially said he could not come, because 

he was putting his son to sleep.  One of his texts indicated he wanted to see her 

because "I want to fuck."    Hooper later drove to the park in his van to join M.M. 

and her friends.  Hooper parked next to the vehicle that M.M. and her friends 

were in, and joined them for a little while.  Eventually, Hooper left their vehicle

and went back to his van.  M.M. then followed Hooper into his van.  She asked 

Hooper to give her a backrub.  He gave her a backrub and also touched the top 

half of M.M.'s breasts over her clothes.  At that point, patrol officer David Sims 

noticed the two vehicles and approached them.  Hooper exited the van quickly, 

closed the door and contacted the officer.  Hooper denied that anyone else was 

in the van, but Officer Sims told him he had already seen a second person.  

M.M. then exited the van and spoke with Officer Sims.  

       Another responding officer, Officer Mary Humphrey, spoke with M.M. in 

the early morning hours of February 26, 2010, both at the scene and at the 

police department.  Officer Humphrey recorded the conversation, and the police 

department made a transcript of the audio recording.  M.M. was emotional, 

crying at times and laughing shortly thereafter.  M.M. initially denied that 

                                           2 

No. 67564-8-I/3

anything happened in the van.  But, she eventually admitted that Hooper had 

given her a backrub and touched the top half of her breast.  At trial, M.M 

repeated this testimony.  She also testified that at an earlier date, while lying on 

her bed in B.G.'s room, Hooper had rubbed her inner thigh.         The touching on the 

bed happened after M.M. believed she and Hooper had begun dating, but before 

the subsequent touching in the van.  

       The State charged Hooper with two counts of child molestation in the 

second degree and one         count  of communication with a minor for immoral 

purposes.  The State alleged counts one and three occurred on or about and 

between February 25 and February 26, 2010.  Hooper's date of birth is June 26, 

1986.  M.M.'s date of birth is April 8, 1996.  Hooper pleaded guilty to the 

communication with a minor count by way of an Alford plea.  A jury trial was held 

on July 14 and July 15, 2010.  Jury instruction 12 addressed Hooper's 

affirmative defense, providing in relevant part:

              It is . . . a defense to the charge of child molestation in the 
       second degree that at the time of the acts the defendant 
       reasonably believed that [M.M.] was at least fourteen years of age, 
       or was less than thirty-six months younger tha[n] the defendant, 
       based upon declarations as to age by [M.M.].  

              The defendant has the burden of proving this defense by a 
       preponderance of the evidence.

The jury found Hooper guilty on the two counts of child molestation.  

                                      ANALYSIS

   I.  Right to Confront and Cross-examine Adverse Witnesses

                                           3 

No. 67564-8-I/4

       Hooper contends the trial court abused its discretion and violated his right 

to confront M.M. when it granted the State's motions in limine limiting the scope 

of his cross-examination of M.M.  Hooper alleged M.M. had previously lied about 

her age to other people, that she had a fake identification, that she 

misrepresented her age on her MySpace page, and that she had gotten three 

other men in trouble because of her age.  The trial court ruled questions or 

testimony on these allegations would be excluded.  Hooper's affirmative defense 

required him to show M.M. misrepresented her age to him.  He argues this 

impeachment evidence should have been admissible and was necessary to cast

doubt on M.M.'s credibility, particularly in light of the absence of other 

impeachment evidence.  

       A person accused of a crime has a constitutional right to confront his or 

her accuser.  U.S. Const. amend. VI; U.S. Const. amend. XIV; Const. art. 1, § 

22; State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002).  The primary 

and most important component is the right            to conduct a meaningful cross-

examination of adverse witnesses.  State v. Foster, 135 Wn.2d 441, 456, 957 

P.2d 712 (1998).  The right to cross-examine an adverse witness is not absolute, 

however.  Darden, 145 Wn.2d at 620.  Courts may, within their sound discretion, 

deny cross-examination if the evidence sought is vague, argumentative, or 

speculative.  Id.    at 620-21.  Such determinations are limited by general 

considerations of relevance.  Id. at 651; see ER 401, 403.  A defendant's right to 

introduce relevant evidence must also be balanced against the State's interest in 

                                           4 

No. 67564-8-I/5

precluding evidence so prejudicial as to disrupt the fairness of the trial.  Darden, 

145 Wn.2d at 621.  Evidence is relevant if it tends to make the existence of any 

fact that is of consequence to the determination of the action more or less 

probable than it would be without the evidence.  ER 401.  Even where the 

evidence is of minimal relevance, it may be excluded if the State's interest in 

applying the rape shield law is compelling in nature.  State v. Hudlow, 99 Wn.2d 

1, 16, 659 P.2d 514 (1983).  Washington's  rape shield statute provides that 

evidence of a victim's past sexual behavior may not be admitted on the issue of

the victim's credibility.  RCW      9A.44.020(2).  Additionally, when attacking a 

witness's credibility, it is not permissible to use extrinsic evidence of specific 

instances of conduct.  ER 608.  At the discretion of the trial court, a witness may 

be impeached on cross-examination with specific instances of conduct, if that 

conduct is probative of the truthfulness of the witness.  ER 608(b).  

       In granting the State's motion in limine, the trial court stated that Hooper 

could only question M.M. regarding what representations she made specifically 

to him, not to prior men or to other people in the community.  It concluded, in 

essence, that this line of questioning was not relevant, since it did not help 

establish what M.M. had represented to Hooper regarding her age.  But, the 

prior conduct of M.M., while not relevant to Hooper's reasonable belief about 

M.M.'s age, was relevant to attacking her credibility and at least somewhat 

probative of her truthfulness.  ER 608.  Nevertheless, the trial court was within 

its discretion when it restricted cross-examination.  Even where evidence is

                                           5 

No. 67564-8-I/6

minimally relevant, it must be balanced against the possibility for prejudice, and 

may be excluded under the rape shield statute as well.  Here, the allegation that 

M.M. had gotten other men into trouble constituted evidence relating to her past 

sexual history.  Hooper suggests M.M. may have caused this trouble simply by 

"staying out late or by traveling out of state without her parents' consent."       But,

the clear implication of this allegation is that the other men had gotten into 

trouble based on her young age and based on some improper sexual contact.  

The trial court did not abuse its discretion by deeming such testimony 

inadmissible, in light of the rape shield statute.  

       Turning next to the allegations that M.M. misrepresented her age to other 

people and possessed a fake I.D., while it is true that such allegations would be 

probative of her credibility and truthfulness, the trial court concluded they would 

amount to testimony about prior bad acts.  Under ER 402 and 403, a trial court 

may exclude even probative evidence if its probative value is outweighed by the 

danger of unfair prejudice.  Here, the trial court was within its broad discretion in 

excluding this line of questioning.  The potential prejudice inherent in these 

allegations would have outweighed the probative value in attacking M.M.'s 

credibility.  As the State points out, this is particularly true where there was other 

impeachment evidence available to Hooper.  For example, M.M. admitted to 

initially making false statements to police officers in regards to the molestation in 

the back of the van.  Hooper had other options to impeach M.M.'s credibility that 

had stronger foundation and were less prejudicial.  We                  hold Hooper's 

                                           6 

No. 67564-8-I/7

constitutional rights to confront and cross-examine his accuser were not 

violated.

   II. Ineffective Assistance of Counsel

       Hooper argues he received ineffective assistance of counsel, based on to 

two instances where his trial counsel failed to raise objections to certain 

testimony.  He points first to testimony from M.M.'s friend, B.G., relating to two of 

Hooper's best friends and witnesses, Terrance Larr and Jessie Thomas.  B.G.

testified that both Larr and Thomas knew M.M.'s true age.  Hooper contends that 

because Larr and Thomas were such close friends of his, the implication of 

B.G.'s testimony was that Hooper should also have known M.M.'s true age.  

       To prevail on a claim of ineffective assistance of counsel, a defendant 

must show both that counsel's performance fell below an objective standard of 

reasonableness based on consideration of all the circumstances, and that the 

deficient performance prejudiced the trial.  Strickland v. Washington, 466 U.S. 

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 

1, 8, 162 P.3d 1122 (2007).  The reasonableness inquiry presumes effective 

representation and requires the defendant to show the absence of legitimate 

strategic or tactical reasons for the challenged conduct.  State v. McFarland, 127 

Wn.2d 322, 336, 899 P.2d 1251 (1995).  And, under the prejudice prong, a 

defendant must show a reasonable probability that, but for counsel's error, the 

result would have been different.  Id. at 334-35.

       Hooper argues the prosecutor did not establish a proper foundation for 

                                           7 

No. 67564-8-I/8

B.G.'s testimony, since B.G. did not provide a basis for knowing about Larr and 

Thomas's awareness of M.M.'s age.  He contends the failure to object prejudiced 

and undermined his affirmative defense.  A party seeking to admit evidence 

bears the burden of establishing a foundation for that evidence.  State v. Land, 

121 Wn.2d 494, 500, 851 P.2d 678 (1993).  Contrary to Hooper's argument, 

however, B.G. did establish proper foundation for how she would know about 

Larr and Thomas's awareness of M.M.'s true age.  B.G. and Larr  dated  for 

approximately two years, and B.G. testified that during that time Larr and M.M. 

hung out.  She also testified to knowing Thomas for most of her life.  She stated 

that both witnesses knew M.M. pretty well and knew how old she was.  Where an 

objection would not have been sustained, it was not deficient performance for 

Hooper's trial counsel not to object.  Hooper also alleges prejudice and asserts 

there is a reasonable probability than an objection would have led to a different 

outcome at trial, but fails to support this assertion with argument or citation to the 

record.  And, both Larr and Thomas subsequently took the stand.  Hooper's 

attorney had the opportunity to question both of them, mitigating any potential 

impact that B.G.'s testimony may have had on the jurors.

       Hooper next argues his counsel was ineffective for failing to object to 

evidence that he left his young child at home when he went to meet M.M. at the 

park.  This evidence was raised on two occasions: first during Hooper's direct 

examination    and again on cross-examination.  During direct examination, 

Hooper's attorney appeared to deliberately elicit this testimony:

                                           8 

No. 67564-8-I/9

       A [M.M.] wanted me to go over to the park over there because she 
           was having some problem -- some household problems.

       Q   Did you have -- were you able to go over there as requested?  
           Did you have something that prevented you from doing that?

       A  For one I was putting my son down for bed and for two I didn't 
           really have enough gas, but she said it was kind of an 
           emergency to go over there.

Hooper contends this evidence of leaving his son was irrelevant under ER 401, 

and that his counsel should have sought an order excluding it.  He contends 

there was no legitimate strategic reason for this evidence to be presented to the 

jury.  But, looking at Hooper's testimony in context, it is clear that his counsel did 

have a legitimate strategic reason for this inquiry.    Hooper argues this evidence 

reflects negatively on him, showing a lack of judgment on his part that he alleges 

prejudiced the jurors against him.  But, it is just as possible to read his testimony 

in a more positive light.  He did not immediately go to join M.M. at the park, but 

did so only after taking care of his child.  According to his own testimony, he also 

went to the park at least in part out of a desire to help M.M. with an emergency.  

Here, Hooper has not met his burden of demonstrating there was no legitimate 

strategic or tactical reason for the challenged conduct.  Thus, he has not 

demonstrated his counsel was deficient.

       Hooper raises two additional arguments, in his pro se statement of 

additional grounds, to support his assertion of ineffective assistance of counsel.  

He argues first that his attorney failed to elicit testimony from him about the 

timing of the earlier molestation.  But, this argument, even if true, does not 

                                           9 

No. 67564-8-I/10

establish that there was any resulting prejudice.  Even if Hooper had been 

allowed, on the record, to narrow down the dates of the earlier crime, he does 

not demonstrate how such testimony would have helped him prove his 

innocence.  

       Second, Hooper contends his attorney failed to raise the fact that when 

Hooper left his son on February 25, 2010 to join M.M. at the park, he did not 

leave him unattended but left him with his grandmother.  He suggests that since 

this was ambiguous, he looked worse in the jurors' eyes.  But, to evaluate 

whether this constituted ineffective assistance would require us to inquire into 

evidence not contained in the record.  We may not consider additional evidence 

not presented at trial.  RAP 9.1.  

       Hooper fails to prove ineffective assistance of counsel.

   III. Prior Recorded Statements

       Hooper argues the trial court erred by admitting M.M.'s recorded 

statement  under ER 803(a)(5).  ER 803(a)(5) provides an exception to the 

hearsay rule for      the admission of recorded recollections under certain 

conditions.

       Admission is proper when the following factors are met: (1) the 
       record pertains to a matter about which the witness once had 
       knowledge, (2) the witness has an insufficient recollection of the 
       matter to provide truthful and accurate testimony, (3) the record 
       was made or adopted by the witness when the matter was fresh in 
       the witness's memory, and (4) the record reflects the witness's 
       prior knowledge accurately.

State v. White, 152 Wn. App. 173, 183, 215 P.3d 251 (2009), review denied, 168 

                                           10 

No. 67564-8-I/11

Wn.2d 1015, 227 P.3d 852 (2010).  The admission of statements under ER 

803(a)(5) is reviewed for an abuse of discretion.  Id.

       Hooper contends the prosecution failed to establish both the second and 

the fourth factors.  We disagree.  M.M. had difficulty testifying during trial.  She 

frequently answered questions in both direct and cross-examination with the 

answer that she did not know or could not remember.  She also testified she 

could not remember some details of the night at the park because she had tried 

to put it out of her mind;  thinking about it made her cry.  She could not recall 

what had happened in the back of the van that night.  When the prosecutor 

showed M.M. the transcript of the statement she had given to Officer Humphrey, 

she agreed she had given the statement when events were fresh in her mind.  

She conceded she was not initially forthcoming or truthful in answering some of 

Officer Humphrey's questions.  But, she testified that she eventually told Officer 

Humphrey the truth.  And M.M. stated the transcript of her taped statement was 

accurate.  Given M.M.'s testimony, it was apparent that she did not have an 

adequate recollection to be able to testify fully and accurately.  And, while M.M. 

gave contradictory statements and was not initially truthful, she admitted as 

much in her testimony at trial and this does not negate the fact that the transcript 

accurately reflects her prior knowledge.

       The totality of the circumstances support the trial court's ruling that M.M. 

had an insufficient recollection to provide truthful and accurate testimony, and 

that the recorded transcript reflected her prior knowledge accurately.  The trial 

                                           11 

No. 67564-8-I/12

court did not abuse its discretion in admitting M.M.'s prior recorded statement.

   IV. Sentencing

       Hooper argues the trial court miscalculated his offender score.                He 

contends his offense of communication with a minor for immoral purposes was

the same criminal conduct as his first count of child molestation in the second 

degree, from that same date.  His offender score was calculated as a seven, but 

he argues it should have been a four, if counts one and three were treated as 

same criminal conduct.  We          review a trial court's determination on what 

constitutes same criminal conduct for abuse of discretion or misapplication of the 

law.  State v. Tili, 139 Wn.2d 107, 122-23, 985 P.2d 365 (1999).

       Under RCW 9.94A.589(1)(a), multiple current offenses encompassing the 

same criminal conduct are counted as one crime in determining the defendant's 

offender score.  For multiple crimes to be the same criminal conduct, they must 

be (1) committed at the same time and place; (2) involve the same victim; and 

(3) involve the same objective criminal intent.  Id.; Tili, 139 Wn.2d at 123.

       Hooper pleaded guilty, via an Alford plea, to the third count of 

communication with a minor for immoral purposes.  That count stemmed from a 

text message Hooper sent to M.M. on the night of February 25, 2010, before he

went to join her at the park.  The message said, "I want to fuck."  When Hooper 

sent the message, he was at his home.  M.M. was texting with Hooper from a

vehicle at the park.  The conviction for the first count of child molestation in the 

second degree arose from Hooper's actions later in the night, after he drove to 

                                           12 

No. 67564-8-I/13

the park, spent some time with M.M. and her friends in their vehicle, returned to 

his van, and eventually was joined by M.M.  

       It is undisputed that both of these offenses involved the same victim.  

Hooper argues the two crimes also satisfy the other criteria of RCW 

9.94A.589(1)(a).  He asserts they were committed at the same time and place, 

and that they involved the same criminal intent.  In support of his argument that 

the offenses occurred at the same time and place, he relies on two cases: State 

v. Miller, 92 Wn. App. 693, 964 P.2d 1196 (1998) and State v. Taylor, 90 Wn. 

App. 312, 950 P.2d 526 (1998).  

       In Miller, the defendant assaulted an officer while struggling to take the 

officer's gun.  92 Wn. App. at 708.  He was charged and convicted of both 

assault in the third degree and attempted theft of a firearm.  Id. at 706.  The two

offenses occurred at the exact same location and the exact same point in time.  

Id.  The Court of Appeals held the offenses encompassed the same criminal 

conduct.  Id.    at 708-09.  In     Taylor,  the  defendant was convicted of two 

offenses -- kidnapping and assault -- that the Court of Appeals held were same 

criminal conduct.  The court noted both crimes happened at the same time and 

place and involved the same victim, and focused exclusively on the issue of 

whether the offenses shared the same intent.  Taylor, 90 Wn. App. at 321.  

Hooper's reliance on these two cases is misplaced and the facts of his case are 

plainly distinguishable.  While the two crimes in Miller and the two crimes in 

Taylor occurred simultaneously, several hours transpired between when Hooper 

                                           13 

No. 67564-8-I/14

sent the text message to M.M. and when he subsequently molested her in his 

van.  He also committed the crime of communication with a minor for immoral 

purposes from his home, where          he sent the text message to M.M.  The 

molestation occurred at Riverside Park.  

       Hooper acknowledges the two crimes did not occur simultaneously, but 

states they occurred at the same general time for purposes of this analysis.  He 

also contends that while the text message he sent to M.M. originated at a 

different location, she received it at the park, such that the crime of 

communication with a minor for immoral purposes occurred at the same time and 

place as the molestation in his van.  We reject these arguments.   Hooper's

offenses fail to satisfy the same time and place component.  We need not reach 

his argument on same objective criminal intent.  Accordingly, his two offenses 

did not constitute the same criminal conduct.  We hold the trial court did not 

abuse its discretion in calculating Hooper's offender score.

       We affirm.

WE CONCUR:

                                           14