Opinion
No. 21465-2-II; No. 24174-9-II
Filed: March 8, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 95-1-04938-1, Hon. Brian M. Tollefson, December 19, 1996, Judgment or order under review.
Counsel for Appellant(s), Suzanne L. Elliott, Attorney At Law, Suite 1300 Hoge Building, 705 Second Avenue, Seattle, WA 98104.
Counsel for Respondent(s), Barbara L. Corey-Boulet, Pierce County Deputy Pros Atty, County City Bldg, 930 Tacoma Ave S, Tacoma, WA 98402-2177.
Ronald Daugherty appeals his convictions for two counts of first degree child molestation and the subsequent denial of his motion for a new trial. He claims that the trial court violated his right to a public trial when it excluded subpoenaed witnesses from the courtroom, that the court erred in admitting the victim's hearsay statements describing the sexual contact, and that the prosecuting attorney committed misconduct. Regarding the motion for a new trial, he challenges the trial court's findings that the victim's recantation, made 16 months after his convictions, was unreliable. Finding no prejudicial error, we affirm.
FACTS
The victim in this case, Daugherty's daughter A.D., was born in October 1984, shortly before Daugherty left the family to serve in the military in Korea. Daugherty and his wife divorced while he was gone and he did not see his children for almost five years. Daugherty remarried and took custody of the children. There apparently were some family difficulties that caused Daugherty to send the children to live with their paternal grandparents for about a year. While there, A.D. told her grandmother that her uncle had improperly touched her vaginal area. The grandmother thought A.D. was lying and spanked her.
When the children returned to live with Daugherty, he was single again and had begun dating Laura, A.D.'s stepmother at the time of trial. Daugherty and Laura married in July 1993.
In late January or early February 1994, Laura noticed that A.D. seemed upset and questioned her. Eventually, A.D. told Laura that Daugherty had touched her vaginal area. Daugherty denied the allegations. The next day Laura contacted the family pastor, Arthur Hunt. During Hunt's subsequent two meetings with A.D., she repeated her allegations in more detail. A.D. told Hunt that Daugherty had told her that she had played with his private parts when she was a baby. She also said that Daugherty had her sleep in his bed during the time they lived in an apartment so she could wake him when the alarm went off. A.D. said that Daugherty would then "play with me when I was in bed. He touched my private parts, and I asked him to stop, and [Daugherty] told me not to talk about it. He'd get in trouble, and I might get in trouble too." IV Report of Proceedings (RP) at 558. A.D. said that Daugherty had touched her a couple of times after he married Laura. She also told Hunt about the touching incident involving her uncle. Hunt told the family they needed to call child protective services or he would. Daugherty made the call and A.D. then repeated her allegations to Joyce Epstein-Ross, a nurse practitioner who examined her; to Julie Case, a child interviewer from the prosecutor's office; and to Dolores Streeter Beckner, a counselor who conducted meetings with the entire family.
The State charged Daugherty in November 1995 with two counts of first degree child molestation. The trial court found that A.D. was competent to testify and that her statements to the above listed individuals were admissible under the child hearsay statute, RCW 9A.44.120. During trial, A.D. lived in the family home with her father, who continued to deny the allegations, and with Laura, who indicated that she did not believe A.D.'s story.
In October 1996, the jury found Daugherty guilty as charged and the trial court imposed an exceptional sentence of 178 months. More than 16 months later, while Daugherty's appeal was pending, A.D. wrote her father a letter in which she recanted her trial testimony, asserting that her allegations were false.
In May 1998, this court granted Daugherty's motion to remand his case to the trial court for a hearing on his motion for a new trial.
A.D. testified at the remand hearing but the trial court found her testimony not credible and denied the new trial motion. We now consider Daugherty's appeal from that ruling, which we consolidated with his appeal from his convictions.
I. RIGHT TO PUBLIC TRIAL
Daugherty claims that the trial court violated his right to a public trial when it granted the State's motion to exclude five subpoenaed witnesses from the courtroom during Laura's testimony. He contends that the subpoenas were a sham device designed to exclude the friends and family members from the trial.
The sixth amendment to the United States Constitution and article I, section 22 of the Washington Constitution, provide the accused with the right to a public trial. Cohen v. Everett City Council, 85 Wn.2d 385, 387, 535 P.2d 801 (1975). We presume prejudice when there is a violation of that right. State v. Bone-Club, 128 Wn.2d 254, 261-62, 906 P.2d 325 (1995); State v. Collins, 50 Wn.2d 740, 745, 314 P.2d 660 (1957). The remedy for a violation is reversal and remand for a new trial. State v. Rivera, 108 Wn. App. 645, 652, 32 P.3d 292 (2001).
Daugherty equates the exclusion of the subpoenaed witnesses during the testimony of one witness with a complete closure of the courtroom. He then argues that when the trial court closed the court without first considering the Bone-Club factors, it violated his constitutional right to a public trial. 128 Wn.2d at 258-59.
In Bone-Club, the trial court cleared and closed the courtroom during a pretrial suppression hearing at the State's unexplained request. 128 Wn.2d at 256-57. The Washington Supreme Court held that the trial court should have considered five factors and made a record before ordering the complete closure. Bone-Club, 128 Wn.2d at 258-59, 261. Because it did not do so, the Supreme Court remanded for a new trial. Bone-Club, 128 Wn.2d at 261.
But the trial court here did not completely close the courtroom. It merely ordered the five subpoenaed witnesses, two of whom the defense later called to testify, to remain outside the courtroom during Laura's testimony. After the State moved for exclusion of the witnesses during Laura's and A.D.'s testimony, the trial court elicited the reasons for the request and then heard testimony from A.D. on the issue. The court then ruled that the potential witnesses could be present during A.D.'s testimony but should step out during Laura's. Based on this record and the limited nature of the trial court's order, we find no abuse of the court's substantial authority to regulate the conduct of a trial. See, e.g., State v. Johnson, 77 Wn.2d 423, 428, 462 P.2d 933 (1969); State v. Malone, 20 Wn. App. 712, 714, 582 P.2d 883 (1978). Further, we find no authority that would require the trial court to engage in a Bone-Club analysis before taking this limited action. See 128 Wn.2d at 258-59; see also Waller v. Georgia, 467 U.S. 39, 45, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (under sixth amendment, trial court must consider similar factors before ordering complete closure).
The trial court ordered the witnesses to sit in the back of the courtroom during A.D.'s testimony but they apparently voluntarily left the courtroom when she testified.
We note, however, our concern for the potential abuse of the subpoena power. The State acknowledged that one reason it issued the subpoenas was to have a basis to exclude certain individuals from the courtroom under ER 615, which authorizes the exclusion of witnesses. But the trial court made a record of its basis for exclusion and the identity of potential witnesses and that record shows that the court balanced the defendant's right to a public trial with the State's interest in preserving the integrity of potential witnesses. Thus, Daugherty's constitutional claim fails. See, e.g., Addy v. State, 849 S.W.2d 425, 426-27, 429-30 (Tex.Crim.App. 1993) (trial court erred in excluding six spectators from courtroom under witness exclusion rule where State made no record of witnesses' identity or reason for exclusion; appellate court noted potential for abuse of witness exclusion rule). Daugherty also contends that the State's belabored questioning of Laura as to the presence and identity of certain spectators and its reference to those individuals again in closing argument "chilled" his right to an open trial. This type of questioning and argument has the potential to result in an improper partial closure of the courtroom by "chilling" the attendance of spectators who fear being singled out. See, e.g., United States v. DeLuca, 137 F.3d 24, 32, 35 (1st Cir. 1998) (upholding partial closure caused by screening mechanism that required spectators to provide written identification before allowed into courtroom); People v. Jones, 96 N.Y.2d 213, 750 N.E.2d 524, 525-26, 530, 726 N.Y.S.2d 608 (2001) (upholding partial closure caused by screening mechanism where court officer posted outside courtroom during undercover officer's testimony). But nothing in the record before us indicates that any person who wished to attend the trial failed to do so because of the State's actions. See, e.g., Hernandez v. State, 914 S.W.2d 218, 221-22 (TEX.CRIM.APP. 1996) (no sixth amendment violation where sheriff's department randomly photographed spectators before they were allowed into courtroom; only one witness testified that she stayed away because of screening mechanism and the presence of at least 31 spectators suggested public attendance not chilled). Thus, there is no evidence that Daugherty received anything but a public trial.
II. PROSECUTORIAL MISCONDUCT
Daugherty alleges that the prosecutor committed misconduct both at and after trial. He assigns error to questions of Laura about the presence and identity of some spectators, to arguments about the consequences of Daugherty demanding a trial and his failure to call his son as a witness, and to the alleged intimidation of A.D. during a post-trial, post-recantation interview. To prevail on a claim of prosecutorial misconduct, the defendant must establish the impropriety of the prosecutor's actions or comments and prejudice. State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985). Misconduct is prejudicial when there is a substantial likelihood that it affected the verdict. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
A. EXAMINATION OF LAURA
The State attempted to impeach Laura by showing that she was not supportive of A.D. and did not believe A.D.'s allegations. It also attempted to show, through its examination of Laura, some of the pressures confronting A.D. during her testimony.
The State elicited Laura's lack of regard for A.D.'s discomfort in testifying in front of Laura, Laura's friends, and other family members.
The State asked Laura the names of those individuals who had accompanied her to court, their reasons for coming, her conversations with them about Laura's disbelief of A.D.'s disclosures, and her knowledge of A.D.'s wish to testify outside the presence of Laura and the other individuals.
The State may not comment on nor argue unfavorable inferences from the defendant's exercise of a constitutional right. State v. Johnson, 80 Wn. App. 337, 339-40, 908 P.2d 900 (1996). Daugherty suggests that the State improperly commented on his exercise of his right to a public trial by asking the above questions. But the questions elicited information relevant to A.D.'s testimony and to Laura's possible bias; they did not focus on Daugherty's actions. See State v. Demery, 144 Wn.2d 753, 762, 30 P.3d 1278 (2001) (jury's function to assess witnesses' credibility and reasonableness of witnesses responses); City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (credibility issues are strictly reserved for trier of fact). This case differs from State v. Rupe, 101 Wn.2d 664, 706-07, 683 P.2d 571 (1984), where the State introduced improper evidence of the defendant's lawful firearm collection in the penalty phase of his murder trial. Here, an understanding of the pressures on A.D. helped the jury evaluate her trial testimony. And Laura's responses to the questions about the spectators and her awareness of A.D.'s feelings about their presence was relevant to show Laura's possible bias. Thus, Daugherty has not established misconduct. Further, even if asking a witness to identify spectators constitutes misconduct, Daugherty has not established prejudice.
B. CLOSING ARGUMENT
Daugherty also alleges that the prosecutor committed misconduct when he alleged in closing that the defense put A.D. through "hell" by proceeding with trial and when he referred to Daugherty's failure to call his son to testify.
Daugherty did not object in either instance. Thus, to obtain reversal, he must show that the remarks were so flagrant and ill-intentioned that a curative instruction could not have neutralized them. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Further, invited or provoked improper remarks that were a pertinent reply and were not incurably prejudicial will not support reversal. Russell, 125 Wn.2d at 86.
Here, the State noted in rebuttal argument that A.D. had "been through hell" and that her life had changed after her disclosures and would change again if the jury convicted her father. These comments were based on the evidence and supported the State's argument that A.D. was a credible witness. See Johnson, 80 Wn. App. at 339.
Further, given the evidence, Daugherty has not shown that the comments prejudicially engendered sympathy for A.D. The court instructed the jury that sympathy should not influence its verdict; we presume the jury followed its instructions. See State v. Southerland, 109 Wn.2d 389, 391, 745 P.2d 33 (1987). Thus, these remarks do not support reversal.
Daugherty also challenges the State's mention of his failure to call his son as a witness. But in opening, Daugherty had said he would call his son to testify, stating:
[The son] is about a year older than [the daughter], and I expect he's going to testify. . . . [The son] will testify about the relationship, and he will testify about how they went virtually everywhere together, and spent nearly every waking moment together. That will be important information for you to consider in determining whether or not there was any opportunity for these children — or, excuse me, for [the daughter] to be molested in the fashion and at the times that [she] says it occurred. And I think that some of the testimony that [the son] will be able to offer will show you that was not possible. And that some of what he will offer is inconsistent with what [the daughter] says happened.
2 RP at 312-13. In closing, the State noted the defense's opening comments and, in rebuttal argument, questioned Daugherty's explanation for his failure to call his son.
Daugherty's promise that he would call his son invited the State's comments. See State v. Blair, 117 Wn.2d 479, 488, 491, 816 P.2d 718 (1991) (disapproving State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986), to extent that it holds State may never comment on defendant's failure to call witnesses and approving missing witness doctrine).
Further, Daugherty has not shown that the State's response to his remarks was incurably prejudicial. Thus, this claim of error fails. See Russell, 125 Wn.2d at 86.
C. POST-TRIAL INTERVIEW OF A.D.
Daugherty assigns error to the State's interview of A.D. following her post-trial recantation. Daugherty claims the prosecutor told her that she was committing acts of perjury. But even assuming misconduct, Daugherty has not shown prejudice. A.D. testified at the hearing on Daugherty's motion for a new trial, explained her recantation and the reason therefor, and described what she believed were the prosecutor's threat of perjury charges. Daugherty's suggestion that the prosecutor's warnings may have caused A.D. to "soften" her recantation or to give an incomplete explanation is speculative and inadequate to establish a substantial likelihood that the alleged misconduct affected the hearing's outcome. See Brown, 132 Wn.2d at 561.
III. CHILD HEARSAY, RCW 9A.44.120
Daugherty next challenges the admission of A.D.'s hearsay statements describing the sexual contact, contending that the statements admitted through the testimony of five witnesses were unduly repetitive and that their sole purpose was to bolster A.D.'s credibility.
Daugherty does not challenge the admissibility of the statements under the child hearsay statute, RCW 9A.44.120. The State does respond to what it perceives as Daugherty's contention that the statute did not apply here because A.D. was more than 10 years old. But Daugherty appears to use his daughter's age only to suggest that she was a competent witness and that the State therefore did not need to funnel her statements through other adult witnesses.
3 CrR 7.5(a) provides:
The court on motion of a defendant may grant a new trial for any one of the following causes when it affirmatively appears that a substantial right of the defendant was materially affected:
. . . .
(3) Newly discovered evidence material for the defendant, which the defendant could not have discovered with reasonable diligence and produced at the trial[.]
The trial court may admit child hearsay statements when it finds, as it did here, that the statements have sufficient indicia of reliability and that the child is available and competent to testify at trial. RCW 9A.44.120. But such statements are subject to exclusion if the danger of unfair prejudice or the needless presentation of cumulative evidence substantially outweighs their probative value. ER 403; State v. Bedker, 74 Wn. App. 87, 93, 871 P.2d 673 (1994). See also Pardo v. State, 596 So.2d 665, 667-68 (Fla. 1992) (statements admissible under child hearsay statute are not excludable per se as hearsay or as prior consistent statements but they are subject to balancing test like that of ER 403).
Admissibility of evidence under the child hearsay statute "is not based on mere repetition, it is based on repetition under circumstances indicating the reliability of the statements." Bedker, 74 Wn. App. at 93. That reliability determination and the balancing test of ER 403 serve to protect the rights of both the criminal defendant and the child victim. Pardo, 596 So.2d at 668.
Daugherty does not contest the trial court's reliability finding. The trial court considered his cumulative argument and, following the State's representations regarding the purpose of the witnesses, allowed the evidence subject to a renewed defense objection should the testimony become cumulative.
Daugherty does not delineate the alleged repetitive or cumulative nature of A.D.'s hearsay statements. Instead, he suggests that because each of her statements to the five witnesses involved the allegations of sexual contact by her father, they must be repetitive.
The record does not support this argument. Although there was some overlapping of the statements, they were not wholly repetitious and where they did overlap, they served other purposes. For instance, A.D.'s initial disclosure to Laura lacked the details of her later disclosures to Hunt. Her later disclosures to other witnesses contained more details and her statements to the nurse practitioner were part of the nurse's conclusion about the examination. Finally, the testimony of the child interviewer and of the family counselor provided the most details and were part of the sequence of events from the initial disclosure to the filing of charges against Daugherty nearly a year later. Thus, the trial court did not abuse its discretion in admitting A.D.'s hearsay statements. See Bedker, 74 Wn. App. at 93 (trial court's decision on limiting testimony is discretionary).IV. Cumulative Trial Error
Daugherty's claim of cumulative trial error fails because he has not established prejudicial error. See State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000) (cumulative error doctrine requires reversal when accumulation of several otherwise nonreversible errors denies defendant a fair trial); State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990) (rejecting cumulative error claim where no prejudicial error).
V. MOTION FOR NEW TRIAL
After A.D. recanted her allegations in a letter to her father, Daugherty moved for a new trial under CrR 7.53 (formerly CrR 7.6) based on newly discovered evidence. To warrant a new trial on this ground, a defendant must demonstrate that the evidence: "(1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching." State v. Swan, 114 Wn.2d 613, 641-42, 790 P.2d 610 (1990).
The absence of any factor justifies denial of the motion and we review the trial court's decision for an abuse of discretion. Swan, 114 Wn.2d at 642.
When reviewing the trial court's factual findings, we consider only whether substantial evidence supports them and, if so, whether they support the court's conclusions of law. State v. Macon, 128 Wn.2d 784, 799, 911 P.2d 1004 (1996).
Recantation is considered newly discovered evidence. Macon, 128 Wn.2d at 799-800. But recantation testimony is inherently questionable and it does not necessarily, or as a matter of law, entitle the defendant to a new trial. Macon, 128 Wn.2d at 801. Thus, the trial court must make a threshold determination of the recantation's reliability. Macon, 128 Wn.2d at 804.
In making that reliability determination, the court may consider the circumstances surrounding the case, including the recanting witness's age, possible reasons for recanting, relevant facts at the time of recantation, and the time between the testimony and the recantation. Macon, 128 Wn.2d at 802. The trial court, not the jury, determines the credibility of the recanting witness. See State v. Ieng, 87 Wn. App. 873, 880, 942 P.2d 1091 (1997) (trial court makes own credibility determination without regard to whether a jury might find the witness credible); State v. Smith, 80 Wn. App. 462, 471, 909 P.2d 1335 (1996) (trial court's credibility determination is based on the persuasive value to a "reasonable juror"), rev'd on other grounds, 131 Wn.2d 258 (1997). The existence of independent corroborating evidence supporting the recanting witness's original testimony is not a controlling factor. Macon, 128 Wn.2d at 804.
The trial court here concluded that A.D.'s recantation was not reliable and that it was therefore not material. Concluding that the unreliable recantation would not have changed the trial's outcome, the trial court denied Daugherty's motion for a new trial. He specifically challenges findings of fact I-III, VIII-XIV and conclusions of law IV and V.
A. FAMILY SUPPORT
In findings I, VIII, XI, and XII, the trial court found that A.D. had not received any family support since she disclosed her allegations in early 1994. Daugherty challenges these findings, arguing that A.D. remained in the family, the family received religious and secular counseling, and Laura took A.D. to all of her appointments related to this case.
There is substantial evidence that A.D.'s allegations isolated her. Daugherty remained in the home through the trial and A.D. was aware of problems the family faced in complying with the court order that she and Daugherty not be left alone together and of the financial strain the trial caused. Further, Laura told A.D. that she did not believe the allegations and, in family counseling sessions, A.D. said she was fearful because Daugherty said he was angry. Laura also told A.D. that she did not know what would happen to the children if Daugherty were convicted because she had not adopted them. And on another occasion, Laura told A.D. that Laura's father refused to stay at their home for fear that A.D. would make up allegations involving him.
A.D.'s isolation continued after Daugherty's conviction. Laura told her that she was thinking of putting her in a foster home because neither she nor Daugherty's son believed the allegations. This evidence supports the trial court's factual findings that A.D. did not receive family support. See State v. Eder, 78 Wn. App. 352, 357, 362, 899 P.2d 810 (1995) (affirming denial of motion for new trial where trial court found that pressure from family members, who did not believe child's allegations, coerced child into recanting original trial testimony).
B. CONSISTENCY OF A.D.'S STATEMENTS
In findings II and III, the trial court found that A.D.'s disclosures were largely consistent and that any inconsistencies were minor and were brought out at trial. Daugherty challenges these findings but does not show the inconsistencies or explain their importance; instead, he conclusively asserts that they are "many and important" and includes four citations to the record. The cited pages include Laura's testimony in which she suggests the following inconsistencies: (1) whether there was touching after Daugherty and Laura were married; (2) whether Daugherty gave A.D. money in return for the touching; (3) whether the touching occurred on Thursday evenings when Laura attended a weight loss clinic; (4) whether Daugherty spoke to A.D. each time the touching occurred; and (5) whether the touching occurred only in A.D.'s room in Puyallup.
The defense argued these alleged inconsistencies to the jury, which indicated by convicting Daugherty that it did not find them to be consequential. Further, after reviewing the record, we are satisfied that the evidence supported these findings.
C. PERSONAL IMPRESSIONS
In finding IX, the trial court expressed its disbelief of A.D.'s assertion that she no longer cares what people think about her. Daugherty contends that the court confused A.D.'s current lack of concern with people's opinion about her personal appearance with a general concern about the opinions of others.
In making its initial reliability determination, the trial court may need to assess the plausibility of the witness's expressed reason for recanting. Here, A.D. said that she was recanting because she no longer cared what people would think about her for making up these allegations. As there was no conclusive way for the trial court to determine the truth or falsity of the reason for the recantation, the court's analysis of A.D.'s stated reason was not an abuse of discretion.
D. RECANTATION'S TIMING
In finding X, the trial court found that A.D. could not explain the timing of her recantation. Daugherty disputes this finding, asserting that A.D. had matured since disclosing her allegations and had found the self-confidence to admit she had lied.
Daugherty somewhat oversimplifies the trial court's comprehensive finding. The court compared the circumstances and reason for A.D.'s original disclosures with her explanation at the post-conviction hearing.
The court found the original allegations more reliable given their timing and the circumstances surrounding them and further concluded that the later explanation did not make sense.
Again, there is substantial evidence to support this finding. At the time of the original disclosures, A.D. had just participated in a "personal touches" unit at school; she was upset and apparently reluctant to tell Laura; and she maintained her allegations from the time of her initial disclosure in early 1994 until her recantation in March 1998, despite the lack of family support and her apparent understanding of the possible consequences of her allegations.
In contrast, A.D.'s recantation came four years after her initial disclosure and approximately 16 months after her father's conviction, when she was receiving little or no family support. She testified that she made up the allegations because her position in the family was changing when her father remarried and because she wanted Laura out of her life. But she and Laura both testified at trial that they were close and that she felt she could talk to Laura. Further, the trial court did not abuse its discretion in questioning why A.D. would make allegations against her father to get rid of Laura. Thus, the evidence supports the trial court's finding. Given this evidentiary support and the trial court's opportunity to observe A.D. both at the original trial and in the post-conviction hearing, we defer to its credibility determination.
E. INDEPENDENT CORROBORATION
In findings XIII and XIV, the trial court found that some of Daugherty's testimony corroborated A.D.'s allegations. Notwithstanding Daugherty's challenge to these findings, Daugherty admitted that he had A.D. sleep in his bed. And the testimony of the five child hearsay witnesses was consistent with A.D.'s testimony. See Macon, 128 Wn.2d at 800-01, 803 (testimony of child hearsay witnesses that was consistent with child's allegations and medical testimony corroborated recanting witness's original testimony). Moreover, in making the threshold reliability determination, '[w]hether there is independent corroborating evidence to support the recanting witness' original testimony is not a controlling factor.' Macon, 128 Wn.2d at 804. See also Ieng, 87 Wn. App. at 880-81. Substantial evidence supports the trial court's findings and those findings support its conclusions of unreliability and immateriality. Thus, the court did not abuse its discretion in denying Daugherty's motion for a new trial. See Macon, 128 Wn.2d at 802-03 (affirming denial of motion for new trial based on recantation where child was five years old at time of trial and lived with a supportive relative; child recanted more than 15 months after defendant was convicted; at time of recantation child lived with mother who did not believe her; child was reported to be very malleable; and medical evidence, behavioral changes, and hearsay statements corroborated original testimony).
We affirm Daugherty's conviction and the denial of his motion for a new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and ARMSTRONG, C.J., concur.