* State Of Washington, Respondent V. Murugananandam Arumugam, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
MURUGANANANDAM ARUMUGAM,
Appellant.
DIVISION ONE
No. 84455-5-I
(consol. with Nos. 84456-3-I,
84457-1-I)
OPINION PUBLISHED IN PART
DWYER, J. — A jury convicted Muruganananadam Arumugam on three
counts of child rape as to one child and on three counts of child molestation of
another child. Arumugam appeals, contending that (1) the trial court made
evidentiary errors by admitting hearsay statements under the medical diagnosis
or treatment exception and admitting evidence of his arrest on unrelated federal
charges, (2) the prosecutor engaged in misconduct, (3) his trial counsel failed to
provide him with constitutionally sufficient representation, and (4) cumulative
error deprived him of a fair trial. He also seeks reversal of his convictions for
reasons set forth in a pro se statement of additional grounds.
We agree that the trial court erred in admitting evidence under the medical
diagnosis or treatment exception to the hearsay bar but conclude that the error
was harmless. We disagree with all of Arumugam’s remaining contentions and
affirm his convictions. However, we remand the matter to the trial court with
instructions to strike the victim penalty assessment (VPA) and DNA collection fee
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No. 84455-5-I/2
2
from the judgment and sentences.
I
In 2002, Arumugam and D.S. wed through an arranged marriage in India.
The couple had their first child, Kv.M., in 2004, and immigrated to the United
States on Arumugam’s work visa two years later. The couple’s second child,
K.M. (T.M.),1 was born in 2009 in Washington.
In 2010, the family moved into the neighborhood where they have since
resided. Soon thereafter, D.S. befriended C.F., another mother in the
neighborhood whose daughter, J.F., was several months younger than T.M.
T.M. and J.F. became best friends in 2016, when they attended the same
elementary school. The children spent hours together nearly every day after
school and during the summer. J.F. frequently went to T.M.’s house where they
played video games, rode bikes, watched television, and played outside.
In early 2018, Arumugam was arrested on federal charges related to the
possession of child pornography.2 He was in jail for one day on those charges
before being released and returning home. Once C.F. learned of Arumugam’s
arrest, she forbade J.F. from going to T.M.’s house but continued to allow T.M. to
visit their home.
In May 2020, J.F. (age 10 at the time) told C.F. that Arumugam touched
her inappropriately in 2016, when she “started going over” to T.M.’s house.
1 K.M., who is also identified as “V.” at times in the record, was born female. But prior to
and throughout trial, K.M. identified as male under the name “T.M.” To avoid confusion, this
opinion uses T.M. and male pronouns to refer to “K.M.” and “V.”
2 The circumstances giving rise to the child pornography charges are not at issue in this
appeal.
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No. 84455-5-I/3
3
When C.F. called D.S. and Arumugam to inquire about these allegations,
Arumugam denied any improprieties. A few days later, C.F. reported the
allegations to the police.
On June 4, 2020, King County Sheriff Detectives Laura Peckham and
Patrick Sobczyk went to Arumugam’s home to interview the family members.
Peckham spoke with T.M. who did not report “anything of concern” or “any kind
of touching.” Arumugam agreed to speak with Peckham and allowed the
detective to audio record the interview. After Peckham read the Miranda3
warnings to him, the interview began as follows:
[PECKHAM]: Okay. So this has nothing to do with 2018, I
wasn’t here, I don’t know anything about that, but there are some
new things that we have to talk about. Do you have any idea what
that might be? Okay, about a neighbor.
[ARUMUGAM]: What?
[PECKHAM]: About a neighbor that you have.
[ARUMUGAM]: Okay.
[PECKHAM]: Do you know anything about that?
[ARUMUGAM]: No.
[PECKHAM]: Okay. Did you want to talk to me today about
– about that?
[ARUMUGAM]: Tell me, what do you have? What do you –
what do you have?
[PECKHAM]: We have a neighbor that is – has some
allegations against you for touching, inappropriate touching. Is that
something you want to talk to me about?
[ARUMUGAM]: Um, no, I – I’m – I did not do that. I don’t
touch anybody inappropriately. You can ask my – you can ask
3 Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 84455-5-I/4
4
them here. You can do any – anything.
[PECKHAM]: Okay. Because I did talk with the – a neighbor
of yours, and I did do an interview with a neighbor of yours. And
we did – she did say that you touched her inappropriately.
[ARUMUGAM]: So she cannot prove it, you don’t have
anything, and my – my – you can ask my family. You can ask them
in front of me.
[PECKHAM]: What is your family going to know about it?
[ARUMUGAM]: I haven’t – I haven’t done anything like that,
no.
[PECKHAM]: Okay. Okay.
[ARUMUGAM]: You can (indiscernible) – they know the
situation, how did it happen with this, probably that’s –
[PECKHAM]: What situation already happening with you?
[ARUMUGAM]: Yeah, it’s 2018 (indiscernible) you are talking
about.
[PECKHAM]: Okay, 2018 stuff.
[ARUMUGAM]: Yeah, so probably that would have been,
you know, my – we’ve been – I know what you are talking about. I
– we’ve been very close to each other, and we’ve known for each
other a long, long time and this never – I mean, I’m not that kind of
person (indiscernible).
. . . .
[ARUMUGAM]: You can ask – you can interview my
daughter. You can interview my wife, and you can ask them. Even
you can ask them – so, you know, we – she called us and talked
about – talked to – talked – talked about it. I was so shocked.
[PECKHAM]: When did she call you?
[ARUMUGAM]: Like, a couple of days ago.
[PECKHAM]: What did she say?
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No. 84455-5-I/5
5
[ARUMUGAM]: She said, this happened and we – she
discussed with us, and we discussed in details it’s never happened
such a thing. And I always present with my wife. I always present
with (indiscernible) and we never do that. I’m a handicap person, I
don’t have any of those intentions to do anything to – and then
again, she’s – you – tiny little – I mean, I don’t have that kind of
intention. I have, in my past history, whoever I’ve been with, I don’t
have any intention of touching anything, and never happened to
anyone. Why would it happen with tiniest one?
Arumugam told Peckham of a time—years prior—when he witnessed J.F.
and T.M. chatting inappropriately with boys online, claimed that this encounter
was the basis for J.F. conjuring up her allegations, and suggested that he was an
easy target due to the 2018 matter:
[ARUMUGAM]: No, it’s not – it’s not – it’s not – I haven’t
done that. I think this couldn’t have happened. So probably –
because there was a time when they were in – so, they were
playing so they were in on a chat, I saw her doctor, two boys, they
were talking – they were – they were – you know, two boys on a
chat room.
. . . .
[ARUMUGAM]: A chat room in the sense of the chat, the –
they were in a – I don’t know chat, but they were on a call. Two
young boys, and their age probably, they were talking something
nasty. And then I happened to saw them doing that, both were
giggling and, you know, joking. They are – those boys were using
the bad words and everything. So, I got so shocked – I was
passing by, and then, hey, what are kids doing? What is this very
bad, I’m going to tell your mom and my daughter was also there. I
tell her mom then this is not good. ([I]ndiscernible) they were
scared – scared, and she was crying, please don’t tell
(indiscernible). That’s it. So, right. So, okay, fine. Go back. Go –
(indiscernible) give me the card – and then I told my wife.
There was other times, my son also got the same thing. Same
situation. They got him.
[PECKHAM]: Okay.
[ARUMUGAM]: Right? So this happened – I – my – my
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No. 84455-5-I/6
6
things is this, I think, probably her daughter probably engaged
some kind of things and they got caught. She got caught probably.
And then, okay, how can I – probably [C.F.] or [J.F.’s father] would
have asked, why would you do this? How – where do you learn all
this from? Probably she might have built up the story, some kids
do that.
. . . .
[ARUMUGAM]: We were like really, really close friends. And
then, if – I am not the person who will bring anything to their family
or to my family.
[PECKHAM]: Okay.
[ARUMUGAM]: So, this happened – my – my suspicions is
my – I was – when they were talking to us, I explained this to her,
so could have been this. I am not the person who will, you know,
think like that. And probably, she might have engaged who – her
daughter might have engaged the chats, and then she might have
got caught by the parents. She – and then she might have built a
story against –
[PECKHAM]: Okay.
[ARUMUGAM]: Because she – remembered this incident.
[PECKHAM]: Okay. Okay.
[ARUMUGAM]: So, it’s – and then with our situation, she
sees target. I am an easy target.
The interview ended with Arumugam reiterating his denial of ever
inappropriately touching the children:
[PECKHAM]: Okay. Did you ever touch [J.F.] when she was
here?
[ARUMUGAM]: Honest to God, no, I can promise on
anything, on me, or on my children, my wife, honest to God—
. . . .
[PECKHAM]: Okay. Did you ever touch [J.F.] inappropriately
on her private parts?
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No. 84455-5-I/7
7
[ARUMUGAM]: No, ma’am.
[PECKHAM]: Okay. Did you ever touch your daughter
inappropriately on her private parts?
[ARUMUGAM]: No, way. No.
Meanwhile, during Arumugam’s interview, Sobczyk talked to D.S. “trying
to find out if she knew about the allegations” and “if she would cooperate with
[law enforcement] and CPS on creating a safety plan to make sure that the kids
were safe.” D.S. did not report any allegations of abuse within her family, did not
report any inappropriate touching of J.F., nor did she express any concerns
about Arumugam. Kv.M. told the detectives that he had never witnessed
Arumugam touching either T.M. or J.F. inappropriately.
At the conclusion of the interviews, Arumugam was arrested and charged
with three counts of child molestation in the first degree involving J.F. He
remained in jail from that point forward.
Jazie Smith, a Child Protective Service (CPS) investigator with the
Department of Children Youth and Families, also went to Arumugam’s home on
June 4, 2020 to speak with Kv.M. and T.M. but “it was very chaotic” and she “did
not speak with them” that day. Later that month, Smith met D.S., Kv.M., and
T.M. again. The family was not forthcoming with information at that point. To
Smith, the family appeared “worried about the father’s situation” and “about law
enforcement and CPS being involved,” so she offered them resources.
Several months later, in December 2020, D.S. contacted Smith and
reported that T.M. had said that Arumugam had sexually abused T.M. This
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No. 84455-5-I/8
8
caused Smith to open a CPS investigation, contact Peckham, schedule T.M. to
undergo a forensic interview, and assist T.M. in getting a sexual assault
examination. Smith also gave D.S. information regarding a “U visa,”4 as D.S.
was worried about having to take the children back to India.
That same month, Peckham went to Arumugam’s home to interview D.S.
and T.M. D.S. told the detective that Arumugam had physically forced her to
perform oral sex on him,5 while T.M. reported that Arumugam had raped T.M.
Next, Shana MacLeod, a forensic interviewer in the special assault unit of the
King County Prosecutor’s Office, interviewed T.M. about the rape allegations.
In January 2021, D.S. took T.M. (then age 11) for a sexual assault
examination with nurse practitioner Joanne Mettler. In the “history of the child”
portion of T.M.’s medical record, Mettler wrote:
She told me how, when she was eight years old, her dad
touched her private parts, that he raped her until she was about 10
when she went through puberty. I asked her what she meant by
rape, and she said sex and that she did not like it at all. So I said,
okay, when you say sex, what do you mean by that? Then I told
her, if I could ask her a question about that, if I got something
wrong, that she should correct me. I said, so when you say rape or
sex, do you mean penis to vagina? She said, yes. I said, are there
other things that happened? . . . She said, he made out with her. I
said, are there other things? She said . . . squished my boobs. I
said, are there other things? And she said, no. And then I said,
well, what about your bottom? Did something happen to your
bottom? She said, he tried, but I said, no. And then I clarified with
her the last time and, she said it was before puberty. She told me
she thought that this was normal and that she did not tell because
she was scared and thought it was normal and that she felt like sex
is disgusting. We talked a little bit more about the exam and more
4 “A U visa grants temporary legal resident status to a person who is the victim of a
qualifying crime and who helps law enforcement investigate or prosecute that crime.” State v.
Romero-Ochoa, 193 Wn.2d 341, 344, 440 P.3d 994 (2019).
5 Based on this allegation, the State charged Arumugam with rape in the second degree,
domestic violence, of D.S.
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No. 84455-5-I/9
9
worries about her body. She said she felt her body was fine, and
that she did not feel that she needed to do the exam.[6]
Next, Mettler physically examined T.M.’s body and tested T.M. for sexually
transmitted infections.
The State charged Arumugam with three counts of child rape in the first
degree, domestic violence, of T.M. Later, the three sets of charges involving
J.F., D.S., and T.M. were joined for trial before a single jury. Arumugam pleaded
not guilty to all charges.
Prior to trial, the State moved to admit J.F.’s and T.M.’s reports of abuse
to their mothers as “fact of complaint” evidence in its case in chief. The trial court
granted the motion in part. The State also moved to admit the statements that
T.M. made to Mettler under ER 803(a)(4), the medical diagnosis or treatment
exception to the hearsay rule. The trial court reserved its ruling on this motion.
Finally, the State moved to admit Arumugam’s 2018 arrest involving the
federal child pornography charges as res gestae to explain the timing of J.F.’s
and T.M.’s disclosures and as “a reference point” for various witnesses, and
proposed a limiting instruction. After hearing oral argument, the trial court
granted the State’s motion, explaining:
I think the Court should let this in as long as it’s sanitized to not
refer to any crimes of a sexual nature with a limiting instruction to
the jury that the only reason that it’s being admitted is so the Court
can consider [J.F.’s] reasons for the timing of the allegations that
she made. . . . And I think it will be important for the jury to be told
not to speculate about the nature of the arrest or the charge that
went with it.
6 This quotation maintains the original female pronouns that Mettler used in the medical
report. The record is not clear if T.M. identified as female or male at that point.
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No. 84455-5-I/10
10
The trial court further clarified: “I mean, the reason why, frankly, the child
pornography charges is so explosively prejudicial is because in the minds of
most lay people, it would be incredibly relevant.” In short, the court ruled that
“the fact of the arrest is admissible, but the nature of the charge is not” and,
without objection, Arumugam’s attorney responded: “Excellent.”
The trial court also admitted Arumugam’s recorded interview with
Peckham following a CrR 3.5 hearing and determining that his statements were
made knowingly, intelligently, and voluntarily.
Over the course of trial, the State presented the testimony of 10
witnesses, beginning with Peckham. Peckham detailed the circumstances of her
recorded interview with Arumugam. The entire recording of Arumugam’s
interview was then played for the jury.7 Peckham clarified that she was not
involved in investigating the “2018 incident,” which prompted the court to give an
oral limiting instruction on that topic.
Kv.M., who was age 18 at the time of trial, testified about how Arumugam
was violent toward him and T.M. when they were younger. Kv.M. recalled a time
when he was late for a piano lesson, which caused Arumugam to get “really
mad.” Consequently, according to Kv.M., Arumugam used “a stick” to hit him to
the point where “there was like blood pouring down my face.” Kv.M. testified
Arumugam once beat T.M. for telling C.F. “that she was on her period.”
Furthermore, he testified to denying any allegations of abuse to law enforcement
7 Although the record does not contain a separate transcription of this interview, it appears
that the interview was lengthy given that it took 20 pages in the report of proceedings to capture
the entire interview.
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No. 84455-5-I/11
11
and CPS in June 2020 because:
I was—I was afraid. Like, in case I said something and
[Arumugam] did come back, like he would know that and I’d have to
face that. And also, like, he—he had told us before like not to say
any—anything bad, just say good things about him. So like, yeah,
we just would tell—tell them whatever, like, good things that he
would say to tell them.
Smith testified about her contacts with the family in June 2020 and about
her December 2020 investigation into T.M.’s allegations of abuse. She spoke
about recommending that T.M. undergo a sexual assault exam, providing
resources, and giving D.S. a gas voucher to take T.M. to the examination.
Forensic interviewer MacLeod testified how “[d]elayed disclosure is one of
the most common ways that abuse is reported,” and that she had interviewed
J.F. in June 2020 and T.M. in December 2020, and how both children appeared
to be open during the interview. On cross-examination, MacLeod confirmed that
the purpose of her interviews was “to gain as much information as possible to
support a prosecution.”
Sobczyk testified to interviewing D.S in June 2020. He observed that D.S.
appeared worried about “what would happen to her and her family should
[Arumugam] go to jail.” He also clarified that the detectives felt they had
probable cause to arrest Arumugam “based off of a forensic interview from a
child” who “said she was molested.”
Next, the State called Mettler to testify about T.M.’s sexual assault
examination. Prior to such an examination, Mettler said, her custom was to
always “ask the child for permission to examine them” and if the child “said no,
the answer is no,” and she “would not examine” the child. Mettler then testified to
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No. 84455-5-I/12
12
gathering T.M.’s medical history, physically examining T.M., and concluding that
the examination was “normal” with no sign of physical injury. At this point, the
trial court excused the jury so that Mettler could be further questioned and the
parties could argue the admissibility of T.M.’s statements contained in Mettler’s
written report.
During the evidentiary discussion, Mettler testified that the medical
purpose of a sexual assault examination six years after the incident was looking
for sexually transmitted diseases “and looking at the body to make sure that it
looks fine, normal.” The State argued that T.M.’s exam was for sexually
transmitted infection testing and “also to see if there’s mental therapeutic things.”
Arumugam argued that the examination was for evidence-gathering purposes
only, not medical treatment. The trial court admitted T.M.’s statements contained
in Mettler’s report “without identifying that the perpetrator was the defendant.”
When the jury returned, Mettler read from her report and noted that T.M. said:
“[S]ince she was eight, that she was touched, and that she had been raped up
until she was 10 years of age;” it stopped “when she started to go through
puberty;” that “rape” or “sex” meant “penis to vagina;” Arumugam “squished my
boobs;” that “she thought it was normal, that she was scared to tell;” and “she felt
sex was disgusting.”8
C.F. testified about her response to J.F.’s disclosure of abuse, confronting
D.S. and Arumugam, and reporting J.F.’s allegations to the police. C.F. also said
that J.F. never “lied about anything big.”
8 Again, this quotation maintains the female pronouns used in the original testimony.
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No. 84455-5-I/13
13
J.F. testified to Arumugam putting his hands under her underwear, starting
when she was in kindergarten, and how she “couldn’t really comprehend it” at the
time, but that “it felt uncomfortable.” Arumugam would touch her, J.F. claimed,
“almost every time I went over if—if he was present.” J.F. said, by the end of
second grade, she felt that Arumugam inappropriately touching her was “really
wrong,” but that she “just didn’t have the guts to tell anybody until May of 2020.”9
D.S. testified about her arranged marriage to Arumugam and how he
physically abused her. She recounted the family’s immigration journey and how
they depended on Arumugam’s sole income. She detailed how Arumugam
forced her to perform oral sex on him, which stopped in 2016.
D.S. also testified that when T.M. first told her “dad is touching my private
parts,” she did not do anything about the allegation. Later, after T.M. entered
puberty, D.S. recalled T.M. saying: “‘Mom, dad had sex with me.’” D.S. testified
to being “so scared” at that point, given that Arumugam “had lost his job” and the
family was “financially struggling.” On cross-examination, D.S. agreed that her
life was “a lot better now without [Arumugam] around,” as her emotional “stress is
gone” and she has peace of mind.
T.M., age 13 at trial, testified to Arumugam raping him. T.M. described the
first time that Arumugam raped him, at age eight, which occurred in the master
bedroom closet:
A I remember he tried – he showed me a porn video.
Q Okay. And what was on the video?
9 J.F. testified that learning about Arumugam’s 2018 arrest did not have any influence on
her disclosing the abuse to her mother in May 2020.
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No. 84455-5-I/14
14
A It was a – this girl. She was on a chair, she was white and
she was wearing this red hoodie. I remember this very
vividly.
Q Okay.
A She had no pants, and she doesn’t – she didn’t have any
underwear.
Q Okay.
A And then there was this guy, he was naked, he was also
white. And he was, like, fucking her. And I remember there
was this woman or a girl, I don’t know the age
approximately, but she did sound older than 18. And I
remember she was, like, laughing and, like, recording the
video.
Q Got it. And what was your dad doing while he was showing
you this video?
A I’m pretty sure he was naked and he was, like, do you want
to do this? I don’t remember giving a response.
Q Okay. You said he was naked. Were you dressed at all?
A I do not remember.
Q You don’t remember. Okay. And after he showed you the –
what happened next?
A I’m pretty sure he raped me.
. . . .
A It was like an [sic] missionary pose.
. . . .
Q Okay. Let me be a little bit more specific with my question.
Did his penis penetrate your vagina?
A Yes.
T.M. testified to witnessing Arumugam ejaculate after the assault and said
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No. 84455-5-I/15
15
“I remember he told me to get a tissue to clean it up.” Afterward, T.M. “was
visibly disgusted,” “did not feel good,” and “mentally, I did not like it.” T.M. went
on to say that Arumugam raped him “multiple times” over “a span about two
years,” that they had sex in the closet, in the master bedroom, and “on the
downstairs couch,” and that the two of them had “oral sex.” T.M. stated that the
rapes stopped “when I got my period.” And, as to why he did not tell the police
about any of this abuse in June 2020, T.M. said: “Well, my dad said no. And if I
said yes, and my dad found out, I would get beat again.”
Arumugam testified in his own defense. While he admitted to being a “drill
master” and getting face-to-face with the children to yell at or “shake them” when
they misbehaved, Arumugam said: “I’m not the guy who hit, or abuse, or beat
them up, no, I’m not that guy.” He denied ever having sex with T.M. He denied
touching J.F.’s vagina. He also claimed that any oral sex with D.S. happened
when they lived outside of the United States. Arumugam reiterated what caused
him to think that J.F. had made up her allegations.
Gerard Cattin and Amber Ghosh, two defense witnesses, did not offer any
exculpatory testimony. Cattin, who first met Arumugam in 2012 when they both
worked for the same company, said that he moved to Idaho in 2015 and that his
relationship with Arumugam “essentially from 2016 and on sort of stopped.”
Ghosh testified to moving next door to Arumugam in 2013 and speaking with him
occasionally. She never had any direct interaction with T.M. She did not have
much interaction with Arumugam’s family since 2015, but said that she was the
person who “bail[ed] him out” when Arumugam was arrested “four to five years
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No. 84455-5-I/16
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back.”
Following the close of the evidence, the trial court instructed the jury and
gave two limiting instructions: one regarding J.F.’s and T.M.’s disclosures to their
mothers and, the second, regarding Arumugam’s 2018 arrest.10 During closing
argument, Arumugam proclaimed that J.F., T.M., and D.S. were not credible and
that each of them had motive to testify falsely against him. The jury found
Arumugam guilty on all counts of child rape and of child molestation, but
acquitted him of rape of D.S.
Arumugam appeals.
II
Arumugam first asserts that the trial court erred in admitting T.M.’s
statements to Mettler under the hearsay exception for medical diagnosis or
treatment. We agree, but hold that error did not impact the outcome of his trial.
A
A trial court has wide discretion when ruling on the admissibility of
evidence. We will not disturb such a ruling absent an abuse of the trial court’s
discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Abuse of
discretion occurs “only where the decision of the trial court was manifestly
unreasonable or based on untenable grounds.” State v. Freeburg, 105 Wn. App.
492, 497, 20 P.3d 984 (2001) (citing Powell, 126 Wn.2d at 258). We may affirm
the trial court’s rulings on any grounds the record and the law support. State v.
Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
10 Arumugam did not object to the trial court’s final instructions.
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No. 84455-5-I/17
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ER 801(c) defines hearsay as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” “Hearsay is not admissible except as provided by
these rules, by other court rules, or by statute.” ER 802. “Statements made for
purposes of medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent
to diagnosis or treatment,” “are not excluded by the hearsay rule, even though
the declarant is available as a witness.” ER 803(a)(4).
“[T]he test for statements made for medical diagnosis or treatment
considers the subjective purposes of both the declarant and the medical
professional.” State v. Burke, 196 Wn.2d 712, 740, 478 P.3d 1096 (2021). For
“the statement to be ‘reasonably pertinent’ to medical diagnosis or treatment
under ER 803(a)(4), the declarant’s motive in making the statement must be to
promote treatment and the medical professional must have relied on it for the
purposes of treatment.” Burke, 196 Wn.2d at 740 (emphasis added) (citing State
v. Doerflinger, 170 Wn. App. 650, 664, 285 P.3d 217 (2012)). “Statements
attributing fault are generally inadmissible under this exception, but statements
‘disclosing the identity of a closely-related perpetrator’ may be reasonably
pertinent to treatment in certain situations like domestic violence or sexual abuse
‘because part of reasonable treatment and therapy is to prevent recurrence and
future injury.’” Burke, 196 Wn.2d at 740 (quoting State v. Williams, 137 Wn. App.
736, 746, 154 P.3d 322 (2007)).
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No. 84455-5-I/18
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B
Here, the State avers that T.M.’s statements qualified for admissibility
pursuant to the medical diagnosis or treatment exception. At trial, the State
argued that the subjective purpose of nurse Mettler was to provide T.M. with
medical treatment, including testing for sexually transmitted infections, reassuring
T.M. that his body was normal, and providing a counseling recommendation.
The State failed, however, to present any evidence of T.M.’s subjective purpose
or motive for undergoing the sexual assault examination. Moreover, to the extent
that the State or its witness was concerned about T.M.’s health in the years
between the rapes alleged and the examination, we note that the record does not
contain any medical evidence or records concerning T.M. either before or after
the examination at issue.
The record unmistakably establishes that T.M. did not want to be
physically examined by Mettler. Mettler testified to always asking a child for
permission to examine them before doing so and to not examining a child “if they
really don’t want to be examined.” However, here, T.M. expressly told Mettler
that he “felt h[is] body was fine” and “did not feel that [he] needed to do the
exam.” Nevertheless, Mettler did not follow what she testified to be her standard
practice of declining to examine children who do not want to be examined.
We infer from the circumstances that Mettler examined T.M. only after
obtaining D.S.’s consent to do so.11 Parents are authorized to provide informed
11 An action for medical battery lies “where a health care provider fails to obtain any
consent, or where the patient refuses care by a particular provider.” Bundrick v. Stewart, 128 Wn.
App. 11, 17, 114 P.3d 1204 (2005). While minors may consent to receive or refuse medical
treatment without parental or adult authorization in several instances, T.M.’s situation does not
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No. 84455-5-I/19
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consent to medical providers on behalf of their minor children to undergo
treatment, as a matter of legislative grace:
Persons authorized to provide informed consent to health care,
including mental health care, on behalf of a patient who is under the
age of majority and who is not otherwise authorized to provide
informed consent, shall be a member of one of the following
classes of persons in the following order of priority: . . .
(iii) Parents of the minor patient.
RCW 7.70.065(2)(a). This statute allows parental consent to be imputed to a
minor for medical care but does not impute the parent’s motive or purpose to that
minor. No other statute or rule does so either. Put differently, RCW 7.70.065(2)
simply allows for adult authority to overcome a minor’s stated desires regarding
medical treatment.
On the record before us, there is no evidence of T.M. articulating a desire
to obtain medical treatment as a result of being raped by Arumugam. To be
clear, as to the sexual assault examination specifically, the record establishes
nothing more than T.M.’s submission to adult authority. Nothing in the record
indicates that T.M. sought to “promote treatment” by submitting to an intrusive
examination. Because the case law requires that the patient’s desire to “promote
treatment” must be established for the hearsay exception to apply, Burke, 196
Wn.2d at 740; Doerflinger, 170 Wn. App. at 664, the trial court erred in admitting
T.M.’s statements to Mettler pursuant to ER 803(a)(4).
appear to be one of them. See RCW 7.70.050(4) (any age, emergencies); RCW 7.70.065(2)(b)
(any age, homeless child); RCW 9.02.100(1) (any age, birth control); RCW 9.02.100(2) (any age,
abortion services) RCW 70.24.110 (age 14 or older, STI testing); RCW 71.34.500, .530 (age 13
or older, mental health services).
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No. 84455-5-I/20
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For its part, the State contends that Burke compels a different result. In
that case, K.E.H. went to the emergency department at a Tacoma hospital
around 1:30 a.m. on July 3, 2009, and “reported that she had just been raped.”
Burke, 196 Wn.2d at 717. After being “medically cleared” shortly before noon
that same day, K.E.H. elected to wait at the hospital for several more hours to
undergo a sexual assault examination with nurse Kay Frey. Burke, 196 Wn.2d at
718. Over defense objections, K.E.H.’s statements to Frey were admitted at
Burke’s trial under the medical diagnosis or treatment exception. Burke, 196
Wn.2d at 718-19. Ultimately, the Supreme Court held that the trial court did not
abuse its discretion in admitting the statements because “[i]t is reasonable to
believe that K.E.H.’s motive was to promote treatment and that Nurse Frey relied
on the statements for the purposes of treatment” and “[h]er answers to the
questions about penetration, ejaculation, contraception, strangulation, grabbing,
and her position during the assault were also likely motivated by a desire to
promote medical treatment specific to sexual assault.” Burke, 196 Wn.2d at 741.
Burke does not stand for the proposition that all those who undergo a
sexual assault examination do so for the subjective purpose of promoting
medical treatment. Nor is Burke factually on point. In that case, K.E.H.
voluntarily underwent an examination within 24 hours of her assault. Here, T.M.
was examined years after Arumugam’s actions and did so only after acquiescing
to adult authority. Of significance is that T.M. had a very good reason not to want
a stranger to probe his genitalia or view his naked body. As mentioned
previously, T.M. is a person who has questioned the gender identity that was
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No. 84455-5-I/21
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assigned to T.M. at birth. T.M.’s disinclination to subject T.M.’s body to an
intrusive examination years after the events at issue is, in the context of T.M.’s
life, easily understood. Nothing in Burke commanded the trial court to impute to
T.M. a desire or purpose that T.M. understandably disclaimed.
C
The erroneous admission of hearsay evidence is a nonconstitutional error
and is therefore harmless if, within reasonable probabilities, the error did not
materially affect the outcome of the trial.12 State v. Neal, 144 Wn.2d 600, 611, 30
P.3d 1255 (2001). Here, the evidence of child rape was of a great magnitude. At
trial, T.M described how Arumugam attempted to prime him with a pornographic
video of a man having sex with a girl and asking “do you want to do this,” detailed
the manner in which Arumugam raped him for the first time, and spoke of how
the acts of rape continued over a two-year span and occurred in various
locations. The depth and scope of T.M.’s trial testimony exceeded that of any of
his statements contained in Mettler’s report. Therefore, we conclude that, within
reasonable probabilities, the outcome of Arumugam’s trial would have been the
same if the challenged hearsay statements had been excluded.
Arumugam relies on State v. Carol M.D., 89 Wn. App. 77, 948 P.2d 837
(1997), withdrawn in part on other grounds, 97 Wn. App. 355, 983 P.2d 1165
(1999), to argue that the trial court’s error was prejudicial and requires reversal.
In that case, parents were charged with multiple sex offenses involving their four
children, including nine-year-old M.D. Carol M.D., 89 Wn. App. at 83. “At trial,
12 Arumugam is not asserting a confrontation clause challenge in this appeal.
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No. 84455-5-I/22
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M.D. stated Detective Perez had defined ‘secret touch,’ and she had told him she
did not remember her parents molesting her.” Carol M.D., 89 Wn. App. at 82.
“M.D. also denied being abused when Dr. Shipman questioned her.” Carol M.D.,
89 Wn. App. at 82. Relying on ER 803(a)(4), the trial court admitted the
testimony of M.D.’s counselor, Cindy Andrews. Carol M.D., 89 Wn. App. at 82-
84. Andrews “testified about statements M.D. made to her during these
sessions,” including about how “both her mother and father had put their fingers
in her ‘crotch.’” Carol M.D., 89 Wn. App. at 82-83.
Reversing the trial court, Division Three held that M.D.’s statements to
Andrews were inadmissible under ER 803(a)(4) because the record did not
affirmatively establish that the child had a treatment motive for making her
statements. Carol M.D., 89 Wn. App. at 87. It then concluded that the error was
prejudicial because:
M.D.’s direct testimony at trial was not as detailed as her hearsay
statements. Additionally, the defense’s cross-examination of M.D.
raised serious questions about the reliability of her testimony. In
these circumstances, [the therapist’s] hearsay testimony assumed
greater importance. We therefore hold a reasonable probability
exists the erroneous admission of these hearsay statements
affected the outcome of the trial.
Carol M.D., 89 Wn. App. at 88 (citing State v. Ray, 116 Wn.2d 531, 546, 806
P.2d 1220 (1991)).
Carol M.D. does not require reversal of this case. Unlike the declarant in
Carol M.D., at the trial of this case, T.M. did not deny that Arumugam raped him.
Furthermore, here, T.M.’s trial testimony was far more detailed than were his
statements to Mettler. This is entirely unlike the circumstances present in Carol
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No. 84455-5-I/23
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M.D. Similarly, here, no “greater importance” were placed on the generic
statements in Mettler’s report than were placed on T.M.’s in-person elaboration of
Arumugam’s actions at trial. To the contrary, T.M.’s in-person testimony was
unquestionably more central to the State’s case than were the utterances
contained in Mettler’s report.
In short, although T.M.’s statements to Mettler were proved to have been
not made for the purpose of T.M. promoting T.M.’s treatment, the trial court’s
decision to admit these statements has been proved to be harmless.
A majority of the panel having determined that only the foregoing portion
of this opinion will be printed in the Washington Appellate Reports and that the
remainder shall be filed for public record in accordance with RCW 2.06.040, it is
so ordered.
III
Arumugam next contends that the trial court erred by admitting evidence
of his 2018 arrest in violation of ER 404(b). The State counters that the arrest
was admissible as res gestae evidence and as a key point of reference in the
timelines of multiple witnesses. We agree with the State.
Again, our review of this evidentiary ruling is for an abuse of discretion.
Powell, 126 Wn.2d at 258. “All relevant evidence is admissible.” ER 402.
However, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.” ER
404(b). In State v. Sullivan, we clarified that
“res gestae evidence ‘more appropriately falls within ER 401’s
definition of “relevant” evidence, which is generally admissible
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No. 84455-5-I/24
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under ER 402,’ rather than an exception to propensity evidence
under ER 404(b).” State v. Dillon, 12 Wn. App. 2d 133, 148, 456
P.3d 1199 (quoting State v. Grier, 168 Wn. App. 635, 646-47, 278
P.3d 225 (2012)), review denied, 195 Wn.2d 1022 (2020).
. . . .
In sum, evidence that completes the story of the crime
charged or provides immediate context for events close in both time
and place to that crime is not subject to the requirements of ER
404(b). Such evidence is not of other misconduct of the type
addressed in ER 404(b). See Grier, 168 Wn. App. at 647.
18 Wn. App. 2d 225, 236-37, 491 P.3d 176 (2021) (footnote omitted).
As was the case in Sullivan, ER 404(b) analysis does not apply to the
evidentiary challenge in this matter.13 18 Wn. App. 2d at 237. Prior to trial, the
court ruled that the “State may admit evidence that the defendant was arrested
and charged with a crime to help explain the timing of J.F.[‘s] disclosure,” but
“may not admit the exact nature of the charge,” and a limiting instruction would
be required. At that point, the admission of the arrest as res gestae was not an
abuse of discretion.
Once trial commenced, the State presented Arumugam’s recorded
interview with Peckham, which referenced the 2018 arrest. At the close of
Peckham’s testimony, the trial court gave the following oral limiting instruction to
ensure that no prejudice resulted:
All right. I’ll say this, ladies and gentlemen, you’ve heard a
couple of references now to another case, and Detective Peckham
has said something about it being on a Federal level. The only
reason you’re hearing about it is because reference to it may be
relevant to the timelines of certain things happening in the case that
you are considering.
I want to make sure that you don’t speculate or try to guess
about what that might relate to. You shouldn’t do that, okay? The
13 Arumugam’s briefing does not address Sullivan’s guidance on the proper standard for
admitting res gestae evidence.
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No. 84455-5-I/25
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only reason, again, it’s being brought up is because it may
influence the timeline regarding events that are relevant to this
case.
(Emphasis added.)
In accordance with this ruling, other witnesses then used the 2018 arrest
as a keystone in the timeline of their testimony concerning Arumugam. It was a
marker for J.F. and C.F. as the time when J.F. stopped going to T.M.’s house
(and stopped being molested by Arumugam).14 It marked the point at which D.S.
and Kv.M. began to worry about their family’s financial situation and ability to
remain in the United States. It also served as a reason why D.S. and T.M. failed
to disclose any allegations of abuse to law enforcement in June 2020, as they
were afraid that he would not be in jail for long, given his stay of only a day in jail
following the 2018 arrest. Even Arumugam’s defense witness, Ghosh,
mentioned Arumugam’s arrest “four or five years ago” and being the one who
bailed him out of jail at that time.
In its final instructions to the jury, the trial court buttressed its oral limiting
instruction with Instruction 8, which conformed to the evidence presented:
Certain additional evidence has been admitted in this case
for only a limited purpose. This evidence consists of testimony
about another arrest or legal trouble Mr. Arumugam faced in 2018.
This evidence may be considered by you only to give context to
J.F.’s, K.M.’s, and D.S.’s decisions to report the alleged abuse
years after its occurrence. You may not consider it for any other
purpose. Any discussion of the evidence during your deliberations
must be consistent with this limitation.
14 This remains true even if there were other reasons J.F. stopped going to T.M.’s house.
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No. 84455-5-I/26
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“The jury is presumed to have heeded the instructions of the court.” State
v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991) (citing State v. Grisby, 97
Wn.2d 493, 499, 647 P.2d 6 (1982)).
Because the 2018 arrest was relevant, constituted res gestae evidence,
and any potential prejudice was tempered by limiting instructions, we conclude
that there was no error in admitting evidence of the arrest for a limited purpose.
Arumugam relies on State v. Acosta, 123 Wn. App. 424, 98 P.3d 503
(2004), to contend otherwise. His reliance is misplaced. There, in response to
Acosta’s diminished capacity defense at trial, the State called “a psychiatrist who,
over defense objections, testified” to a “laundry list” of Acosta’s 23 prior arrests
and convictions, inclusive of the names of the charged offenses. Acosta, 123
Wn. App. at 429, 432. On appeal, this court concluded that “the admission of the
arrest and conviction evidence affected the outcome of the trial with reasonable
probability, and it was therefore an abuse of the trial court’s discretion to admit
the ‘laundry list’ of arrests and convictions.” Acosta, 123 Wn. App. at 439.
This case is unlike Acosta. Here, we do not have a laundry list of arrests
and convictions. Instead, the jury in this case heard limited evidence of only one
arrest and never heard anything about the nature of the charges involved. In
addition, proper limiting instructions were given to the jury. There was no error.
IV
Arumugam next argues that the prosecutor engaged in misconduct by
repeatedly eliciting fact of complaint evidence in violation of the trial court’s
pretrial ruling. Because he did not object to any of these remarks at trial,
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No. 84455-5-I/27
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Arumugam now claims that the prosecutor’s actions were so flagrant and ill
intentioned that no objection was required. We disagree.
Before trial, in granting the State’s motion allowing “fact of complaint”
evidence, the court ruled that “the moms can say, ‘my child, [J.F.,] or my child,
[T.M.,] told me something, and as a result, I call[ed] the police’” and such
testimony “doesn’t have to mention touching or sex, or anything along those
lines.” Arumugam did not oppose this ruling.
At trial, the prosecutor (1) in opening statements, told the jury that it would
hear C.F. testify that J.F. told her Arumugam touched her inappropriately, (2)
elicited from C.F. that J.F. disclosed the abuse in 2020 and C.F. added that she
was “shocked because it didn’t seem in the character of that person,” (3) elicited
from J.F. that she told her mother in 2020 that Arumugam touched her
inappropriately, (4) elicited from D.S. that T.M. made multiple reports of
allegations to her, and (5) elicited from T.M. all of the disclosures he made to
D.S.
The State concedes that the prosecutor violated the pretrial ruling on three
occasions but avers that none of them were flagrant or ill intentioned. To be
clear, none of the prosecutor’s questions to J.F. and T.M. violated the court’s
ruling because the children were permitted to testify as to the details of their
allegations of abuse.
A defendant’s failure to object to a prosecutor’s acts of misconduct waives
such errors, unless such conduct “is deemed so flagrant and ill-intentioned that it
evinces an enduring and resulting prejudice that could not have been neutralized
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No. 84455-5-I/28
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by an admonition to the jury.” State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d
1239 (1997) (citing State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995)).
“When evaluating whether misconduct is flagrant and ill intentioned, we ‘focus
less on whether the prosecutor’s misconduct was flagrant or ill intentioned and
more on whether the resulting prejudice could have been cured.’” In re Pers.
Restraint of Phelps, 190 Wn.2d 155, 165-66, 410 P.3d 1142 (2018) (quoting
State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012)). “In other words,
prosecutorial misconduct is flagrant and ill intentioned only when it crosses the
line of denying a defendant a fair trial.” Phelps, 190 Wn.2d at 166.
Here, the prosecutor’s acts were not flagrant and ill intentioned. The
opening statement remark appears to be a misstatement. When the prosecutor
asked C.F. about J.F.’s report of abuse, C.F. responded and offered additional
testimony that she was “shocked,” which the court then interrupted sua sponte.
And, despite the prosecutor’s proper questioning, D.S. offered unprompted
answers in response when testifying.
Arumugam argues unpersuasively that the prosecutor’s actions in this
case are comparable to those at issue in State v. Fisher, 165 Wn.2d 727, 202
P.3d 937 (2009). In that case, “the trial court expressly conditioned the
admission of evidence of physical abuse on defense counsel’s making an issue
of Melanie’s delayed reporting,” but the prosecutor preemptively introduced the
evidence. Fisher, 165 Wn.2d at 747. Our Supreme Court explained:
Instead of using the evidence to rebut a defense argument that
Melanie’s delay in reporting the sexual abuse means that she is not
credible, the prosecuting attorney used the evidence to generate a
theme throughout the trial that Fisher’s sexual abuse of Melanie
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No. 84455-5-I/29
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was consistent with his physical abuse of all his stepchildren and
biological children, an impermissible use of the evidence.
Fisher, 165 Wn.2d at 748.
The Fisher court then held that there was a “substantial likelihood that the
prosecuting attorney’s misconduct affected the jury, thus meriting Fisher a new
trial.” Fisher, 165 Wn.2d at 749.
Here, no prejudice is established as resulting from the prosecutor’s
violations. This is so because J.F. and T.M. testified as to their disclosures to
their mothers and to the details of their abuse by Arumugam. The jury was well
aware of the identity of the alleged perpetrator. Moreover, Arumugam’s recorded
interview disclosed all of the information, as to J.F., before any of the mothers or
children ever testified.
Additionally, the trial court gave limiting Instruction 7, to reduce the risk of
any potential prejudice:
Certain evidence has been admitted in this case for only a
limited purpose. This evidence consists of testimony by [C.F.] that
J.F. told her that she had been touched inappropriately, and
testimony by [D.S.] that [T.M.] told her that [T.M.] had been touched
inappropriately. This evidence may be considered by you only as
evidence that J.F. and [T.M.] made these reports to their mothers,
and the circumstances surrounding the statements, and not for the
truth of the matters asserted. Any discussion of the evidence
during your deliberations must be consistent with this limitation.
Arumugam has not demonstrated that the remarks were flagrant and ill
intentioned, or that further curative instructions to the jury would have been
ineffective. Accordingly, we conclude that appellate relief is not warranted.
V
Arumugam next asserts that he received constitutionally ineffective
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No. 84455-5-I/30
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assistance of counsel. The State argues that he has failed to show any such
ineffective assistance.
To establish ineffective assistance of counsel, a defendant must show
both deficient performance and resulting prejudice. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient
performance occurs when counsel’s performance falls below an objective
standard of reasonableness. Stenson, 132 Wn.2d at 705-06. A strong
presumption of effective assistance exists, and the defendant bears the burden
of demonstrating an absence of a strategic basis for the challenged conduct.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). “To show such
error, it must be established that the assistance rendered by counsel was
constitutionally deficient in that ‘counsel made errors so serious that counsel was
not functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment.’”
Nix v. Whiteside, 475 U.S. 157, 164-65, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986)
(quoting Strickland, 466 U.S. at 687). Prejudice occurs if there is a reasonable
probability that the outcome of the proceedings would have been different had
counsel’s performance not been deficient. McFarland, 127 Wn.2d at 335.
Failure to establish either prong of the test is fatal to an ineffective assistance
claim. Strickland, 466 U.S. at 687.
Arumugam first avers that his attorney rendered deficient performance by
not objecting to the prosecutor’s elicitation of fact of complaint evidence from
various witnesses. Because Arumugam discussed fact of complaint information
in his recorded interview with Peckham, and because J.F. and T.M. both testified
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No. 84455-5-I/31
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as to their disclosures of abuse, defense counsel had a legitimate trial strategy in
not calling undue attention to the fact that the children disclosed abuse. Nor was
there any resulting prejudice, as discussed above.
Next, Arumugam contends that his attorney’s performance was deficient
for failing to object to C.F.’s opinion and character testimony regarding J.F.
When the prosecutor asked C.F. if J.F. “ever lied about small stuff,” C.F.
responded:
A Oh, sure. Yeah, typical, you know, real white lies, she’ll –
she’ll tell, even now, and especially now that she’s 12.
Q Right.
A Yes.
Q Teenagers. Has she ever lied about anything big?
A Oh, no, never.
Q And part of the –
[DEFENSE]: Objection, Your Honor. This is impermissible
character evidence and vouching for the witness.
THE COURT: All right. Let’s, let’s not go further down this
road. I think the objection came a little late, but we won’t go further
down this road.
[PROSECUTOR]: Sure. I will stop it.
[DEFENSE]: Your Honor, I’d ask the Court to admonish the
jury not to regard – to disregard that statement.
THE COURT: Not at this time. We can take it up a little bit
later. Again, the objection is supposed to come after the question,
not after the answer.
Although the objection was “a little late,” Arumugam’s attorney did make
the objection and did ask the court for a curative instruction. A slightly late
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No. 84455-5-I/32
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objection does not constitute deficient performance. Indeed, only “‘in egregious
circumstances, on testimony central to the State’s case, will the failure to object
constitute incompetence of counsel justifying reversal.’” State v. Vazquez, 198
Wn.2d 239, 248, 494 P.3d 424 (2021) (quoting State v. Crow, 8 Wn. App. 2d
480, 508, 438 P.3d 541 (2019)). This is not such a circumstance.
Arumugam also asserts that his attorney’s performance was deficient in
cross-examining (1) Peckham, and eliciting that this case means a lot to the
detective and that the detective is very invested in this case; (2) Sobczyk, and
eliciting that the detective knew Arumugam was going to be arrested because he
believed that police had probable cause; and (3) Smith, and eliciting that the
investigator had a “gut feeling” that something “fishy” was going on with D.S.,
Kv.M., and T.M. not disclosing more information in June of 2020. However, this
assertion ignores Arumugam’s defense theory throughout the entire trial. His
theory was that the allegations were false, the complaining witnesses were not
credible, and that the law enforcement and investigating witnesses were biased
against him. The cross-examination of these witnesses was clearly a strategy
consistent with the defense theme.
Finally, Arumugam claims that his attorney’s performance was deficient in
failing to renew an objection to the 2018 arrest evidence when J.F. later testified
that the arrest had nothing to do with her disclosure, thereby, invalidating the
purported purpose for which the State claimed the arrest was relevant. But, by
the time J.F. testified, it was clear that the 2018 arrest was also relevant to the
timelines of other witnesses and the trial court had given an oral limiting
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No. 84455-5-I/33
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instruction on how such evidence could be used. No error is shown.
In sum, we conclude that Arumugam has not demonstrated that he was
prejudiced by the alleged ineffective assistance provided by his trial attorney.
VI
Arumugam argues for reversal of his convictions due to cumulative error.
The cumulative error doctrine, which requires reversal when the combined effect
of several errors denies the defendant a fair trial, “does not apply where the
errors are few and have little or no effect on the outcome of the trial.” State v.
Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Because Arumugam has
identified only one error, which we determined was harmless, the cumulative
error doctrine does not apply in this case.
VII
Arumugam contends that he is entitled to relief from the VPA and the DNA
fee imposed pursuant to his convictions. In 2023, the legislature added a
subsection to RCW 7.68.035 that prohibits courts from imposing the VPA on
indigent defendants as defined in RCW 10.01.160(3), and amended RCW
43.43.7541 by removing language that made imposition of the DNA collection fee
mandatory. See LAWS OF 2023, ch. 449, §§ 1(4), 4. The State does not dispute
that Arumugam is indigent and concedes that this matter should be remanded to
strike the VPA and DNA fees from Arumugam’s judgments and sentences.
We accept the State’s concession and remand the case to the trial court
with instruction to strike the VPA and DNA fee.
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No. 84455-5-I/34
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VIII
Arumugam, pro se, seeks relief in a statement of additional grounds
(SAG) filed pursuant to RAP 10.10. He sets forth five grounds for relief, which
are set forth below:15
Ground 1: “My wife [D.S.] has threatened me on the King County Jail
phone call that, if I do not give her Blank power of Attorney, She will take drastic
measures against me. That she will file false charges against me, which she did
eventually, by filing false charges using my daughter and herself. My request to
my Defense Counsel to produce the phone calls records to the Court & Jury. But
Defense Counsel denied and refused to do so.”
Ground 2: “At Federal case investigation, they found Strong evidence
against my wife [D.S.], producing explicit images on my son in my absence. I
have requested Defense Counsel to produce the exculpatory evidence to the
court and to the jury. But Defense Counsel and prosecution knowingly blocked
that evidence to the court.”
Ground 3: “My daughter [T.M.] has school records that Shows she caused
multiple incidents due to her chronic behavioral issues of elaborate lies and
stealing. I requested Defense Counsel to produce the school records to the
Court and to the Jury. But Defense Counsel refused to do so.”
“State and Defense Counsel both aware that both [T.M. and J.F.] Stories
contradicted each other. Even though they cleansed the facts and presented to
the trial that sounded very incriminating towards me.”
15 The SAG is handwritten. Therefore, the grounds are transcribed to the extent they are
legible and maintains the original grammatical and spelling errors.
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No. 84455-5-I/35
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Ground 4: “The first two CPS records were omitted from the discovery.
CPS Report#1 Shows basically how Best family we were. The CPS Investigator
stated that, ‘She never founded any issues, out of her 20 year carrier my family is
one of the best family She encounte[red]. CPS Report #2 was inquiry on my wife
involvement of explicit images that were produced by her as when requested to
produce those records to the court and to the Jury. Defense Counsel and
prosecution denied my request.”
Ground 5: “Judge Darvas, was very biased against me from the beginning
of the trial. She commented multiple times something like following manner: ‘If it
walk like duck, quack like duck, it must be a duck’ [and] ‘whole family trying to get
rid of him But he still want care about them?’ She also discussed with defense
counsel and/or prosecutor in my absence and/or Defense/prosecutor’s absence.”
The record contains no information regarding the issues set forth in
grounds 1-4. Defense counsel did not raise any of these issues before the trial
court. When a claim is brought on direct appeal, the reviewing court will not
consider matters outside the trial record. McFarland, 127 Wn.2d at 335. If a
defendant wishes to raise a claim of deficient representation that requires facts
not in the existing record, the appropriate means to do so is through a personal
restraint petition. McFarland, 127 Wn.2d at 335. Accordingly, we decline to
further consider grounds 1-4.
As to ground 5, Arumugam does not establish that the trial judge had
conversations with one party, while the other party or he personally were not
present. Nor has he established any bias regarding the “duck” reference. During
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No. 84455-5-I/36
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discussion of the final jury instructions, the prosecutor and judge talked about the
court not giving a “no corroborative instruction.” In the course of this discussion,
the following colloquy occurred:
THE COURT: Yeah, I’m not comfortable with lawyers telling
jurors what the law is unless it’s from an instruction that the Court is
giving.
[PROSECUTOR]: Would the Court be comfortable with me
saying if corroboration was required, you certainly would have been
instructed to that fact?
THE COURT: I can’t think –
[PROSECUTOR: Because – and I think I’m not telling them
the law.
THE COURT: I can’t think of a reason why that would be
improper. [Defense counsel], do you have a reason?
[DEFENSE]: No.
THE COURT: Okay.
[DEFENSE]: I think that’s perfectly proper.
THE COURT: Okay.
[DEFENSE]: So, so that’s –
THE COURT: And I’m not trying to tie people’s hands. I
want to give you all a chance to fairly argue your case.
[PROSECUTOR]: And this is an argument – not an
argument, but this is an issue – I think I have every single one of
these kind of cases, and it comes up frequently, this is why I’m
fairly familiar with it. So –
THE COURT: Yeah, I realize – I think it was Division II, I’m
not sure, it doesn’t really matter. I realize the Court of Appeals said
it’s not a comment on the evidence, but it sure looks like one, and
smells like one, and walks like one.
(Emphasis added.)
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No. 84455-5-I/37
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The emphasized portion of the judge’s comment appears to be what
Arumugam claims was an articulation of bias against him. However, the context
makes clear that the judge was not directing this comment at Arumugam. We
reject Arumugam’s claim of judicial bias.
Affirmed in part and remanded.
WE CONCUR:
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