Opinion
No. 63652-9-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Skagit County, No. 08-1-00656-4, Dave Needy, J, entered May 28, 2009.
Affirmed by unpublished opinion per Lau, J., concurred in by Leach, A.C.J., and Spearman, J.
After a bench trial, the court convicted William J. Carlson on two counts of child molestation involving his nephew, CC, who was almost seven years old at the time of trial. Carlson appeals the court's child witness competency determination and the admission of child hearsay statements. Because the trial court did not abuse its discretion in finding CC competent and the hearsay statements reliable, we affirm the convictions.
FACTS
CC was born on May 17, 2002. Between September 1, 2007, and July 31, 2008, CC was five and six years old. He is learning disabled and has a speech impediment. When not living with his mother, Jennifer Carlson, CC often lived with his grandmother, Anita Carlson, who lived in Rockport; aunt Fawn Fields, who lived in Sedro Woolley; or family friend Dorothy Buckley, who lived in Anacortes. William Carlson is CC's uncle. He lived in a trailer located on his mother, Anita Carlson's, Rockport property. Carlson frequently took care of CC and drove him to and from wherever CC spent the night. Based on a previous conviction, Carlson is required to register as a sex offender.
For clarity, we use the first name of Carlson's family members.
In the summer of 2008, CC told Buckley that Carlson had put his hands inside CC's pants and touched his "pee pee." See Appellant's Br. at 26 (1 RP 86). He told her it happened a lot, maybe three times. He said it happened inside Carlson's trailer. Buckley said when CC stayed overnight with her, he would get mad or throw up when she told him he was going back to Rockport, where Carlson lived. CC made a number of similar statements to his mother, grandmother Anita, sister MC, aunt Fawn, Andy Carlson (Carlson's father), and child interview specialist Nicol Flacco.
"Nicol" and "Nichole" are used throughout the record. For consistency, we use the spelling "Nicol."
The State charged Carlson by amended information with two counts of child molestation in the first degree, which occurred between September 1, 2007 and July 31, 2008. The amended information also alleged two aggravating factors — the victim's particular vulnerability and an ongoing pattern of abuse.
Before trial began, the court held separate hearings to determine whether CC, who was almost seven years old, was competent to testify and whether CC's statements to MC, Fields, Buckley, Jennifer, and Duane French (Jennifer and MC's brother) were admissible child hearsay. Our review of the record shows that in response to the prosecutor's questions at the competency hearing, CC stated his first and last name and that the man sitting next to him was the judge. He answered affirmatively when the prosecutor asked him, "Now, when you sit in that chair are you supposed to tell the truth?" Report of Proceedings (RP) (May 4, 2009) at 15. And when the prosecutor asked him, "Do you know what the difference between the truth and not the truth is?" CC said, "Don't lie." RP (May 4, 2009) at 15. The prosecutor asked him a series of questions about the difference between a truth and a lie, which he correctly answered. For example, when the prosecutor asked him, "If I tell you that I am wearing a red suit, would that be a truth or a lie?" CC answered, "Lie." RP (May 4, 2009) at 15. The record shows that the prosecutor wore a dark blue suit. The prosecutor asked him if "`I forgot' would be a truthful answer, right?" He answered, "Yeah." RP (May 4, 2009) at 15.
The child hearsay hearing took place on April 22 and 30, 2009. The parties agreed to admit at trial the child hearsay statements to child interview specialist, Nicol Flacco. The competency hearing took place on May 4, and the trial commenced on May 5.
The prosecutor asked CC a series of questions about his birth date, age, age on his next birthday, grade in school, and teacher's name. The record shows CC correctly answered these questions. The prosecutor also asked him to identify an object in his hand and who gave it to him. He replied that it was a "squeeze" ball given to him by "Her, that lady, Ms. Deanna." RP (May 4, 2009) at 16. CC counted from 1 to 10.
The record shows "Ms. Deanna" was the court reporter.
The prosecutor then asked CC a second series of questions about the difference between truth and a lie. "So you can count all the way to ten. If I told you that eight came after one, would that be right or wrong?" CC said, "A lie." RP (May 4, 2009) at 17. When she asked him, "Is it good or bad to tell a lie?" CC answered, "Bad." RP (May 4, 2009) at 18. In response to the prosecutor's question "What happens if you tell a lie and you['re] at home?" CC said, "You're in big, big trouble." RP (May 4, 2009) at 18.
The prosecutor then asked CC a series of questions to identify family members and where CC lived. The prosecutor asked if he "every spend [sic] the night at the house in Rockport?" He answered, "Never." RP (May 4, 2009) at 20. She then asked him, "Is that the truth or is that a lie?" He said, "The truth." He answered affirmatively when she asked him if he had ever spent the day in Rockport. He said, "No" when asked if he ever spent the day in Rockport when Carlson was there. He answered affirmatively when she asked CC if he was ever present at the Rockport house when MC was there. And when the prosecutor again asked him if he was ever at the Rockport house when Carlson was there, he said, "Sometimes." RP (May 4, 2009) at 20.
The prosecutor then asked a series of questions about what Carlson did to CC at Rockport. In response to these questions, CC said Carlson "did a bad thing," "touch[ed] my private" at Rockport, "like a hundred times," "in my bedroom." RP (May 4, 2009) at 20-21. He said it happened in Rockport when no one else was present. When the prosecutor asked him who his kindergarten teacher was when this happened, CC said, "Ms. Bromely." RP (May 4, 2009) at 21. The prosecutor also asked him if Carlson went to jail after he touched CC's private. CC answered affirmatively.
On this final series of questions, the prosecutor asked CC whether he told anyone about what Carlson did. CC said he told his grandma Anita, mother, and sister MC. He also said he "waited a long time" when the prosecutor asked him, "Did you tell them right away or did you wait a long time?" RP (May 4, 2009) at 22.
On cross-examination, defense counsel questioned CC about Ariah, the in-court therapy dog. He identified Ariah as a "black lab" when defense counsel asked him what kind of dog. Defense counsel asked him general questions about where and who he stayed with at night. He said he stayed with his mother and grandmother Anita. Defense counsel asked him whether grandmother Anita picked him up from school. He responded negatively and explained he took a "white bus." He answered defense counsel's questions, telling her that he told his grandmother, mother, aunt, and sister about Carlson touching him. He also responded to defense counsel's other questions about where he lived the previous year. He said he lived at "Rockport, Fawn's, my mom's, Eastern Washington, Dorothy's." RP (May 4, 2009) at 27. When she asked him about how many schools he attended, he told her four schools. When she asked him, "Is it okay to make a mistake?" CC said, "Yeah." And when she asked him, "Is it okay to lie?" he said, "No." She then asked him, "Is there a difference [between a lie and a mistake]?" CC said, "Yeah." RP (May 4, 2009) at 33-34.
"Aria" and "Ariah" are used throughout the record. For consistency, we use the spelling "Ariah."
The State asked no follow-up questions. Carlson did not call any witnesses. And the trial court did not examine CC.
The trial court found CC competent.
He expressed the ability to know a truth from a lie. He expressed the ability to say what grade he's in; who his teacher is; how old he is; when his birthday would be; could count to ten; tell a lie you['re] in trouble. He knew who was in his family. . . . He was quite clear on the fact that Willy did a bad thing; where it took place; what grade he was in at the time; no one else was there; who he told; it was a long time ago.
RP (May 4, 2009) at 41.
And I would find based simply observing him, watching him, and listening to him that [CC] is competent in terms of the very basic [ Allen] requirements.
State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).
. . . .
. . . .
I assume he didn't name someone when he rattled off all these names, the grandma, Misty, Fawn that doesn't exist. I think I understand some of the adults in his life and other people. He's presently angry at Mike, I think, because he didn't take him to wrestling, but I don't know if that's anything that ever happened or not or didn't happen. But looking at his testimony as a whole, I will find that [CC] is competent.
The record shows William Carlson is also referred to as "Willy" by CC, family members, and friends.
The next day, CC testified at the bench trial, along with other witnesses who testified that CC had told them similar descriptions of Carlson's abuse — Carlson's jail cellmate who testified that Carlson "told me that he touched the six-year-old boy inappropriately, and that he tried to stick his penis in him" (RP (May 5, 2009) at 242-43) and the case detective. Carlson did not testify. The child interview specialist testified about her interview with CC.
The trial court found Carlson guilty of two counts of first degree child molestation as charged in the amended information. It declined to impose an exceptional sentence based on the aggravating factors alleged. Carlson asserts the trial court's child competency and child hearsay determinations constitute an abuse of discretion. He also argues that these rulings violate his right to confront the witnesses.
DISCUSSION Competency
Carlson first argues that the trial court abused its discretion in finding CC competent to testify at trial. He contends that CC's false and nonsensical statements during the competency hearing and trial demonstrate that he did not understand the concept of truthful testimony. The State counters that the record supports the competency ruling and the court properly exercised its discretion.
We review a trial court's competency determination for manifest abuse of discretion. State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990). The court abuses its discretion when its decision is manifestly unreasonable or is based on untenable reasons or grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). This standard of review is especially applicable to child witnesses because "[t]he competency of a youthful witness is not easily reflected in a written record, and [an appellate court] must rely on the trial judge who sees the witness, notices the witness's manner, and considers his or her capacity and intelligence." State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1174 (2005); State v. Przybylski, 48 Wn. App. 661, 665, 739 P.2d 1203 (1987)). As our Supreme Court has noted, "`There is probably no area of law where it is more necessary to place great reliance on the trial court's judgment than in assessing the competency of a child witness.'" Woods, 154 Wn.2d at 617 (quoting State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810 (1990)). "Although a trial court determines competence pretrial, on appeal we will examine the entire record to review that determination." State v. Avila, 78 Wn. App. 731, 737, 899 P.2d 11, (1995). "This approach is consistent with the great deference we give to trial court's competency determination because of its unique opportunity to observe the witness' demeanor." Avila, 78 Wn. App. at 737.
Every person is presumed competent to testify, including children. State v. S.J.W., 239 P.3d 568, 572 (2010).
A child's competency is now determined by the trial judge within the framework of RCW 5.60.050, while the Allen factors serve to inform the judge's determination.
. . . .
A party challenging the competency of a child witness has the burden of rebutting that presumption with evidence indicating that the child is of unsound mind, intoxicated at the time of his production for examination, incapable of receiving just impressions of the facts, or incapable of relating facts truly.
S.J.W., 239 P.3d at 572-73 (2010). The five factors described in State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967) consist of
(1) an understanding of the obligation to speak the truth on the witness stand;
(2) the mental capacity at the time of the occurrence . . . to receive an accurate impression of [his testimony]; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words [his] memory of the occurrence; and (5) the capacity to understand simple questions about [the occurrence].
The Allen court held that the trial court had not abused its discretion by admitting into evidence the testimony of a six-year-old witness. Although a child who has a "longstanding, often-observed inability to distinguish what was true from what was not" may be found incompetent, inconsistencies in a child's testimony do not necessarily call into question witness competency. State v. Karpenski, 94 Wn. App. 80, 106, 971 P.2d 553 (1999), overruled on other grounds, State v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003). Rather, such inconsistencies generally relate to the witness's credibility and the weight to give his or her testimony. State v. Carlson, 61 Wn. App. 865, 874, 812 P.2d 536 (1991); State v. McKinney, 50 Wn. App. 56, 64, 747 P.2d 1113 (1987).
Because Carlson challenges CC's competency to testify, he has the burden of rebutting the presumption of competency. He asserts two grounds — (1) "C.C. could [not] distinguish truth from falsity" and (2) "The State did not establish that C.C. was competent at the time of alleged incidents." Br. of Appellant at 14, 18. The State counters that under the deferential standard of review, the entire record supports all five Allen factors. Carlson fails to specifically identify which Allen factor he challenges. His contentions appear to implicate the first and second factors. While our review shows the entire record supports all five Allen factors, we address only factors 1 and 2.
Under the first factor, a child must demonstrate "an understanding of the obligation to speak the truth on the witness stand." Allen, 70 Wn.2d at 692. Relying principally on Karpenski, 94 Wn. App. 80, Carlson argues, "[T]here was no credible evidence that C.C. was able to distinguish truth from falsehood as it pertained to his duty to tell the truth in court." Br. of Appellant at 18. In Karpenski, Division Two of this court reversed Karpenski's first degree child rape and first degree child molestation convictions and remanded for trial, concluding the child victim was incompetent to testify. Karpenski, 94 Wn. App. at 80.
Karpenski is distinguishable. In Karpenski, Z's fabricated stories included "vivid detail" that demonstrated his "longstanding, often-observed inability to distinguish what was true from what was not." Karpenski, 94 Wn. App. at 106. Z's reputation included telling
imaginary stories containing vivid detail. He falsely claimed, for example, that he had spoken with his deceased uncle, that his mother had won $10,000, and that he had gone skydiving. In the skydiving story, "he even had the colors of the parachute." According to his mother, he sometimes went "for months believing his stories."
Karpenski, 94 Wn. App. at 83. A story about a trip to Hawaii that was equally detailed.
"He told us . . ., and he relayed this to his teacher also, that he had been to Hawaii, very vividly that he'd been to Hawaii, down to the fact that he described the feel of the water on his feet, the smell, the plane trip. He's never been in a plane. And it was very hard to convince him that he didn't do that.
There ha[ve] been times when we've been in the car riding somewhere and he'll insist that he's done something, he's either been in a plane or he's jumped off a cliff or whatever, and we've had to tell him, no, you didn't do that, and he gets very angry and says yes, he did, that he's done it and we just don't remember it.
No family member or other witness here testified to any similar stories about CC as in Karpenski.
Karpenski, 94 Wn. App. at 86.
When Z's first grade teacher learned that he had not actually been to Hawaii, she referred him to the school psychologist who then referred him for mental health counseling. And Z's "long-standing, often-observed" inability to tell truth from fiction carried over to his trial testimony. Despite taking an oath and promising not to "make up any stories," moments later he described in vivid detail how he and his younger brother had been born at the same time, which was impossible because he was seven and his little brother was two. Karpenski, 94 Wn. App. at 106. Z apparently believed what he was saying. Karpenski, 94 Wn. App. at 106.
No one suggests that Z was intentionally lying; it seems that he actually believed what he was saying, and that he was merely manifesting his long-standing, often-observed inability to distinguish what was true from what was not. The trial court expressly found that Z was "testify[ing] as to an event that he could not possibly have recalled"; that he was "confused" regarding "dream versus reality"; and that he was "not old enough to be able to separate that confusion." Inexplicably, however, it then concluded that Z was competent to testify. It is our opinion that the only reasonable view of this record is the one expressed by the trial court — that Z lacked the capacity to distinguish truth from falsehood. Accordingly, we hold that the evidence is insufficient to support a finding that Z was capable of distinguishing truth from falsity, and that Z was incompetent to testify.
Karpenski, 94 Wn. App. at 106. And despite making the above express findings, the trial court "[i]nexplicably" concluded that Z was competent to testify. Karpenski, 94 Wn. App. at 106. But unlike Karpenski, the trial court's competency ruling here is supported by its findings and the whole record.
And unlike in Karpenski, the record here does not show CC "manifested" a "longstanding, often-observed inability to distinguish what was true from what was not" or was "confused" regarding "dream versus reality" and "not old enough to be able to separate that confusion." Karpenski, 94 Wn. App. at 106.
The episodes of CC's testimony cited by Carlson, when viewed in the context of the record as a whole, do not undermine the trial court's competency ruling. The trial court attributed CC's nonsensical statements to a "waning attention span." RP (May 4, 2009) at 40. The court observed,
We also have the issue of attention span which, of course, always wanes during one of these processes, whether its in court or in an interview.
We certainly had a more attentive [CC] at the start while the State was asking questions. And by the time the State was nearing the end, his attention was waning. And unfortunately then as he started into your questions, [referring to defense counsel], I think his attention span was quite a bit less.
. . . .
There were lots of incoherent answers given mostly while your answers, simply again because I think he was loosing [sic] his attention span.
We note that Carlson did not contest this finding below.
RP (May 4, 2009) at 40-41.
I have a picture of this six-year-old boy. He's been in my courtroom. He's sat here. He's w[a]ndered around. I have heard different descriptions of his abilities, learning and otherwise. I have already ruled on his competency. I understand both his speech pattern and his lack of attention span.
RP (May 7, 2009) at 584-85. The record shows six-year-old CC's attention span was affected by the courtroom environment as noted by the court. For example, (1) he played with a squeeze ball the court reporter gave him (RP (May 4, 2009) at 16), (2) he left the witness chair to play with therapy dog Ariah (RP (May 4, 2009) at 22), and (3) he played with and commented about the courtroom microphone, "How does this go back in? Look. It have a nose now. Now it has a nose forever." RP (May 4, 2009) at 35. At trial, CC played and talked to therapy dog Ariah. He drew pictures on paper while being questioned by defense counsel. Yet the record shows his answers at the competency hearing and trial were generally responsive to extensive questioning by the prosecutor and defense attorney.
At one point the trial judge suggested, "[Y]ou may want to take away all the distractions." RP (May 5, 2009) at 111.
And our review of the record demonstrates that CC's responses about the specific incidents were generally responsive. He also described simple true facts about people and events in his life — teachers' names, classroom, his age and birthday, where he lived, and family members' names. CC answered correctly all questions about whether the prosecutor was telling the truth or a lie. He testified consistently, using age-appropriate words, about where on his body Carlson touched him and the location of the incidents. He also gestured consistently to his genital area when asked to point. CC's testimony about his teacher, Ms. Bromely, shows he was able to recall past events around the dates of the incidents. The court's competency finding was not manifestly unreasonable. See State v. Kennealy, 151 Wn. App. 861, 879, 214 P.3d 200 (2009) (child's accurate testimony about his age, home environment, and birthday and ability to identify location of the abuse supported trial court's competency determination). The court's determination that CC's nonsensical statements were due to a "waning attention span" deserves particular deference since "[t]he competency of a youthful witness is not easily reflected in a written record, and we must rely on the trial judge who sees the witness, notices the witness's manner, and considers his or her capacity and intelligence." Woods, 154 Wn.2d at 617.
Carlson also argues that inconsistencies in CC's statements indicate that he was not competent to testify. Specifically, Carlson points to CC's inconsistent statement about the number of incidents of abuse, stating on different occasions that Carlson touched him 3 times, 50 times, and 100 times, and to his inconsistent description of "the nature of the incidents." Reply Br. of Appellant at 3. But when a child is "not entirely consistent on certain details," but unwavering about the central allegations, a child's trial testimony does not suggest the trial court abused its discretion in ruling the child was competent. State v. Woodward, 32 Wn. App. 204, 207-08, 646 P.2d 135 (1982). Any inconsistencies in the child's testimony go to weight and credibility, not competency. Carlson, 61 Wn. App. at 874.
Carlson next argues that CC's reputation for lying supports his argument that CC could not tell truth from fantasy. But while his family members did testify that CC was known to "tell tales," they were "small one[s]" often designed to engender affection, not vivid stories in which he actually believed. For example, Fields testified, "Certain people — he likes to please people. And so if he thinks it'll make you happy sometimes he'll say things." RP (Apr. 22, 2009) at 36. However, some of these "tales" were based on family members who instructed CC to lie, rather than on a fundamental inability to distinguish truth from fantasy. For example, MC testified that CC would sometimes lie. When asked for an example, she said CC was told not to report that his grandmother was at a bar.
In its child hearsay ruling, the court found, "[CC]'s reputation for truthfulness is such that those statements [CC's statements to others] should be considered reliable." RP (Apr. 30, 2009) at 88 (emphasis added).
Defense counsel acknowledged, "I will admit, she [Jennifer Carlson] told her son to lie about whether he was staying with his father. . . . [H]e was also told to lie about whether or not he was with Willy." RP (Apr. 30, 2009) at 71.
[DEFENSE COUNSEL]: Does [CC] have any secrets?
[M.C.]: Yes.
Q. Does [CC] lie?
A. Sometimes.
Q. About what?
A. Normally about taking something small; like my mom went somewhere that's a small one.
Q. Do you remember something specific?
A. She went to a bar.
Q. She went and he wasn't supposed to say anything about it?
A. Yeah.
RP (Apr. 22, 2009) at 69. The child interview specialist, called as a defense witness at trial, also testified about CC's truth-telling ability when questioned by the prosecutor.
Q. Can you describe, is there a structure to the interview?
A. Yes, there is.
Q. Could you describe what it is.
A. The interviews usually start off with an introduction, [rapport] building; a set of rules establishing whether or not the children, depending the age, understand the rules, establishing whether or not the child understands the difference between truth and lie, the consequence of such; then the substantive part of the interview; and also a closing.
Q. And in this interview with [CC] did you feel that you were able to establish those rules with him?
A. Yes.
Q. Was he able to truthfully answer the truth and lie questions?
A. Yes.
Q. And you in the process of doing the interview generally, and specifically with [CC], elicit some sort of promise or agreement that the child will tell the truth?
A. Yes.
Q. When you get to the substantive portion of the interview, are the questions of a leading nature or are they of an open nature?
A. Of an open nature.
Q. Why is that?
A. I like it when the children that I'm interviewing bring the information to the interview.
Q. So do you ever question[] like, did so and so touch you when the child hasn't first mentioned it?
A. Not unless the child mentions it.
Q. Why don't you do that? Seems like it would be a lot faster.
A. Because it would be a leading question.
Q. What's the matter with a leading question?
A. Because it elicits a specific response, and you want to have the child tell you an answer in a narrative-type format.
Q. Now, I want to direct your attention to Page 3 of the transcript,
approximately three-quarters of the page down. You had just talked about the family relationships and Willy. And you testified that [CC] said, And you know why him was there? And Willy was breaking Misty's toys. Willy was touching that part. And some older kids, that part, too. Him needs to take to jail.
A. Correct.
Q. Are you at that portion?
A. Yes.
Q. When [CC] said Willy was touching that part, did he make any sort of gesture?
A. Yes, he did.
Q. What was that gesture?
A. He pointed to his genitals with his finger.
RP (May 7, 2009) at 616-19. And unlike in Karpenski, the record here does not establish that CC is unable to distinguish truth from fantasy or fails to understand the obligation to speak the truth on the witness stand.
We turn to Carlson's second contention. He argues, "The State did not establish that C.C. was competent at the time of alleged incidents." This assertion implicates the second Allen factor. Br. of Appellant at 18. That factor consists of "the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it." Allen, 70 Wn.2d at 692.
Carlson relies on In re Dependency of A.E.P, 135 Wn.2d 208, 956 P.2d 297 (1998). In A.E.P., the court held the trial court abused its discretion by permitting a child to testify where "there [was] simply no information in the record which help[ed] narrow the time window of when the event occurred." A.E.P., 135 Wn.2d at 225. Absent such information, the court reasoned, a trial court "cannot possibly rule on a child's `mental capacity at the time of the occurrence . . ., to receive an accurate impression of it [,]' when the court has never determined when in the past the alleged events occurred." A.E.P., 135 Wn.2d at 226 (quoting Allen, 70 Wn.2d at 692). Relying on that holding, Carlson argues that the "court's failure to engage in any inquiry regarding when the abuse occurred and that C.C. was competent at that time requires the competency determination be reversed." Br. of Appellant at 20.
But unlike A.E.P., the record as a whole contains ample evidence from which the trial court could "narrow the time window of when the event occurred." A.E.P., 135 Wn.2d at 225. CC's testimony about his kindergarten teacher, Ms. Bromely, at the time of the incidents provided the time frame.
[THE STATE]: Do you remember where in the house that happened?
[CC]: My bedroom.
Q. In your bedroom at the house?
A. Yeah.
Q. And is this the house at Rockport?
A. Yes.
Q. Do you remember who your teacher was when that happened?
A. Ms. Bromely.
Q. And [that] was your kindergarten teacher?
A. Yeah.
RP (May 4, 2009) at 21. And a court is not required to make an inquiry on the record or a finding specific to individual Allen factors. See Avila 78 Wn. App. at 735 (trial court that "neither discussed the individual factors nor made any specific findings" did not err although the "the better practice is for the trial court to state its analysis of the Allen factors on the record."). We also note that Carlson's reply brief does not respond to the State's contentions related to the second Allen factor. We conclude the record supports the trial court's determination that six-year-old CC was competent to testify at trial.
Child Hearsay
Carlson next contends that the court abused its discretion in finding CC's out-of-court statements to witnesses reliable and admissible at trial. The State replies that the court properly exercised its discretion in evaluating the factors under State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984) and admitting CC's out-of-court statements to witnesses.
Carlson also claims the hearsay statements were inadmissible because CC was incompetent to testify and, therefore, his constitutional right to confrontation was violated. Because we conclude the record supports the trial court's competency determination, we need not address this argument.
Carlson also claims a confrontation clause violation based on "the trial court's reliance on [CC's] statement[s] made to the Skagit County child interview specialist [Nicol Flacco] after a formal investigation had commenced. . . ." Appellant's Br. at 3. But the record shows defense counsel sought and the State agreed to the admission of Flacco's statements. In addition, defense counsel moved and the court admitted the DVD [digital video disc] and transcript of Flacco's interview with CC. The record also establishes that defense counsel questioned Flacco extensively from the child interview transcript. The DVD and transcript are not part of our record.
We review the trial court's decision to admit child hearsay evidence for abuse of discretion. Swan, 114 Wn.2d at 652. The trial court is necessarily vested with considerable discretion in evaluating the indicia of credibility. A trial court abuses its discretion only when its decision is manifestly unreasonable or is based on untenable reasons or grounds. Stenson, 132 Wn.2d 701.
Under RCW 9A.44.120(1) and (2)(a), a child victim's hearsay statement is admissible if the "time, content, and circumstances of the statement provide sufficient indicia of realiability" and the child testifies. In Ryan, the court identified the following applicable factors to determine reliability under RCW 9A.44.120: (1) whether the declarant had an apparent motive to lie, (2) the declarant's general character, (3) whether more than one person heard the statement, (4) whether the statement was spontaneous, (5) the timing and relationship between the declarant and the witness, (6) whether the declaration contained express assertions of past fact, (7) whether cross examination could show the declarant's lack of knowledge, (8) the remoteness of the possibility that the declarant's recollection is faulty, and (9) whether the circumstances surrounding the statement suggest the declarant misrepresented the defendant's involvement. Ryan, 103 Wn.2d at 175-76. The factors are considered as a whole and no single factor is decisive. State v. Young, 62 Wn. App. 895, 902, 802 P.2d 829 (1991).
Specifically, Carlson maintains that because CC had been known to lie to please others and because he knew Carlson was disliked by family members, his hearsay statements to family members and friends about the abuse were unreliable. "[A]lthough C.C. made statements to more than one person, in light of the dysfunctional family dynamic and C.C.'s awareness that accusing Carlson might win him favor, this factor carries little weight." Br. of Appellant at 26. These assertions are undermined by the record.
After a two-day child hearsay hearing in which the court heard testimony from MC, Fields, Buckley, Jennifer, and French, it engaged in an extensive analysis of the Ryan factors applicable to each witness and ruled that CC's statements were reliable.
CC testified at trial. And the record does not support Carlson's claim that "the court assumed without analysis that statements to family members are not testimonial." Appellant's Br. at 22. The court did not examine the various statements individually and did not consider the circumstances in which each statement was made." Appellant's Br. at 22. The record shows the court carefully considered the testimony of each witness before ruling the statements were nontestimonial: "I think it's important to look at [the statements] individually. . . ." RP (Apr. 30, 2009) at 77.
So having analyzed all of those factors, I don't find there's any significant issue here. The statements are reliable. There were a number of them. They were made to different people; they were almost invariably spontaneous. And although there were on a couple of occasions follow-up questions, the statements themselves came out without any prompting whatsoever. All statements were made around the summer of 2008 to trusted family members or people who were in a very close family member role; that [CC]'s reputation for truthfulness is such that those statements should be considered reliable. He has no apparent motive to lie about what happened to him. So they are reliable.
RP (Apr. 30, 2009) at 87-88.
Carlson does not challenge that substantial evidence supports the court's oral findings of fact. The record amply supports the court's findings of fact and the findings support the court's reliability determination. We conclude the trial court did not abuse its discretion in admitting child hearsay evidence.
No written findings of fact and conclusions of law regarding the child hearsay ruling are part of our record. We assume no findings of fact and conclusions of law were entered.
CONCLUSION
The record supports the trial court's determination that six-year-old CC was competent to testify. The court did not abuse its discretion in admitting child hearsay statements of CC. And given our disposition, we do not address Carlson's remaining claims, including his corroboration challenge. We affirm the two count first degree child molestation convictions.
WE CONCUR.