Opinion
No. 33086-5-II.
October 31, 2006.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-00625-1, Leila Mills, J., entered April 1, 2005.
Counsel for Appellant(s), Thomas E. Weaver Jr., Attorney at Law, Po Box 1056, Bremerton, WA, 98337-0221.
Counsel for Respondent(s), Jeremy Aaron Morris, Kitsap County
Prosecutor's Office, 614 Division St, Port Orchard, WA, 98366-4614.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Quinn-Brintnall and Van Deren, JJ.
A jury convicted Shawn Doyle of first degree child rape and first degree child molestation. On appeal, he argues that the trial court erred in (1) admitting child hearsay statements, (2) excluding evidence, (3) commenting on the evidence in a jury instruction, and (4) sentencing him. We affirm.
FACTS
In November 2003, Michael Hansen listened to the television news as he put away some clothes in his bedroom. His eight-year-old grandson, DJY, (born July 1, 1995) was also in the room. The news featured a story about a celebrity's child molestation trial and mentioned the term "child molesting." Report of Proceedings (RP) (Dec. 01, 2004) at 13. DJY asked Hansen what "molesting" meant. RP (Dec. 01, 2004) at 13. Hansen explained that "molesting" occurs when a big person inappropriately touches a little person and then the big person goes to jail. RP (Dec. 01, 2004) at 14. DJY then asked Hansen, "How come Shawn isn't in jail?" RP (Dec. 01, 2004) at 14.
Doyle was the longtime boyfriend of DJY's mother, Valerie Newton. Doyle lived with Newton and DJY from the time DJY was approximately one and one-half years old until he was almost six years old. In December 1999, DJY moved in with his grandparents, Michael and Susan Hansen, who later gained custody of him.
After DJY's disclosure, Hansen asked DJY if he would talk about what had happened with Doyle. DJY replied that Doyle had hurt him "[a] lot," but when asked to describe the type of touching that had occurred, became withdrawn, "wadded in a ball" on the couch with his arms wrapped around his legs, and cried. RP (Dec. 01, 2004) at 15.
Hansen reported DJY's disclosure to the police, who spoke with Hansen but did not interview DJY. Several days later, Hansen took DJY to the Kitsap County Prosecutor's Office for an interview with Cynthia Conrad, a child interviewer for the prosecutor's office.
According to Conrad, DJY told her that when he was three or four, Doyle touched his "private" with his hand "[l]ike hitting me." III RP (Feb. 03, 2005) at 222. Doyle also pulled down DJY's pants, kicked him in his private, hit him on the face, and forced his private into DJY's mouth until "pee" came out. III RP (Feb. 03, 2005) at 225. Conrad demonstrated multiple kinds of touching, such as rubbing, pulling, grabbing, pinching, poking, and DJY said Doyle had done all of those things to his private. DJY stated that the touching occurred four times and happened when he was three or four years old. Finally, Doyle told DJY that if anyone found out about what had happened, he would hurt him.
In April 2004, detectives obtained a warrant for Doyle's arrest, but they could not locate him until August 26, 2004. Detective Steven Duckworth interviewed Doyle, who knew about the warrant and admitted that he avoided the police. Doyle denied molesting DJY. When Duckworth asked Doyle why DJY would make up such an allegation, Doyle responded, "I don't know, kids would not make this up . . . whoever did this to [DJY] must have threatened him, because you don't just do this to a kid then send him to his room." II RP (Feb. 03, 2005) at 256.
At some point in the interview, Doyle offered to take a lie detector test. The next day, a detective certified in voice stress analysis administered the voice stress test to Doyle. Doyle denied that he had committed child molestation and the voice stress test indicated he had been truthful.
By amended information, the State charged Doyle with first degree child rape, including aggravating factors of domestic violence and abuse of trust and first degree child molestation, including aggravating factors of domestic violence, abuse of trust, and multiple incidents.
Pretrial Child Hearsay Hearing
At a pretrial child hearsay hearing, the parties addressed two issues: (1) DJY's competence and availability to testify and (2) the reliability of his hearsay statements. The State presented testimony from three witnesses, Hansen, Conrad, and DJY.
Hansen testified that he is Newton's stepfather. DJY lived with Newton until he was approximately six years old. DJY then moved in with Hansen and his wife. When DJY was one and one-half years old, Doyle moved in with Newton and DJY. Doyle, Newton, and DJY lived together until DJY moved in with his grandparents. During that time, DJY's grandmother took DJY to school and toilet trained him.
In addition, Hansen testified about his conversation with DJY the night of DJY's disclosure. Hansen described DJY as an intelligent fourth grader with "B" grades, who did not "make things up." RP (Dec. 01, 2004) at 9, 12. Sometime before DJY's disclosure, Hansen told him he would be punished for lying. Hansen also stated that most of the time he could discern whether DJY was lying and, at the time of the disclosure, DJY appeared to be truthful and able to accurately perceive and relate information.
Conrad testified regarding the contents of the report she made following her interview with DJY. Conrad testified that she observed DJY's demeanor and asked him questions about the difference between truth and lies and that she had concluded that DJY was being truthful and was able to accurately perceive and relate information.
Nine-year-old DJY testified at the hearing. DJY described the location of his residence, the first and last names of his relatives, the names of his school and teacher, and the subjects he studied. DJY testified that he had previously lived with his mother and, during that time, his grandmother took him to preschool, kindergarten, and first grade. When asked how old he was when he moved in with his grandparents, DJY stated, "[Five], I think." RP (Dec. 01, 2004) 45. DJY recalled that his grandmother toilet trained him when he was three years old.
DJY identified Doyle in the courtroom and recalled that Doyle lived with him when he was four and five years old. Regarding the incidents, DJY testified consistently with what he had told Conrad — that Doyle touched his private parts with his hands and mouth, that Doyle put his own private parts in DJY's mouth, that the touching occurred in the bathroom, that the incidents occurred when DJY was three or four, and that Doyle threatened to hurt him if he told anyone. DJY also reported that he first told his grandfather about the incidents, that the conversation took place in the living room, and that he later spoke with Conrad.
DJY explained that to tell the truth meant to "not lie" and to tell "[w]hat happened." RP (Dec. 01, 2004) 45, 46. When the prosecutor claimed he was wearing a blue suit, DJY said that the prosecutor was telling a lie because the prosecutor was really wearing a green suit.
At the conclusion of the hearing, the trial court determined that DJY was competent and available to testify. It concluded that DJY had an understanding of the obligation to tell the truth, knew the difference between truth and falsity, had a sufficient capacity to receive an accurate impression of events going on around him, a sufficient memory to retain or recall things, and the ability to express in words his recollection or lack of recollection. It also examined each Ryan factor and decided that DJY's hearsay statements to Hansen and Conrad presented sufficient indicia of reliability to be admissible under RCW 9A.44.120. State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).
Other Proceedings and the Trial
In a pretrial motion hearing, the court considered the State's written motions in limine, including number five, which asked the court to exclude any reference to (1) truth-telling devices or procedures such as a voice stress analysis or (2) offers to engage in truth telling procedures. Defense counsel stated that, with respect to all of the State's motions in limine except number one, two, and eight, "I would like to argue the rest [of the motions], or at least get some clarification on them." RP (Jan. 31, 2005) at 10. The court granted motion number five but added the language "unless previously approved by the offer of proof." RP (Jan. 31, 2005) at 13. Immediately before trial, the State argued that Doyle had not made an offer of proof and, therefore, the parties were prohibited from discussing truth-telling devices such as the voice stress analysis. Defense counsel responded, "I agree that is at this point the way it is. I wanted to clarify that also. . . . [Q]uite honestly, I don't know how far I can go, or can't go, and so I'm asking for direction from the court." II RP (Feb. 02, 2005) at 31-32. The trial court examined the court's earlier ruling and determined that there would be "no reference to truth-testing devices . . . [a]nd, furthermore, no reference to offers to engage in truth-testing procedures, unless there's an offer of proof." II RP (Feb. 02, 2005) at 33. The trial court then asked defense counsel if he intended to make an offer of proof and he responded, "I don't believe I can." II RP (Feb. 02, 2005) at 33.
One judge decided the pretrial motions in limine and another presided over the trial.
At the conclusion of trial, the court instructed, "In order to reach a verdict on any charge, it is not necessary that the testimony of any witness be corroborated." Clerk's Papers (CP) at 127 (instruction 13). Doyle did not object to the instruction.
The jury found Doyle guilty of first degree child rape and first degree child molestation. The jury completed special verdict forms, finding aggravating factors of domestic violence and abuse of trust on the rape conviction and aggravating factors of domestic violence, abuse of trust, and multiple incidents on the molestation conviction.
The trial court sentenced Doyle under RCW 9.94A.712 on April 1, 2005. On June 21, 2005, the trial court entered an order amending its judgment and sentence because "the offenses of which the defendant was convicted occurred before the effective date of RCW 9.94A.712." Resp't's Supp. CP at 187. The trial court then imposed standard range sentences on the two convictions. Doyle appeals his judgment and sentence.
RCW 9.94A.712 only applies to offenses committed after September 1, 2001. The amended information alleged that the criminal activities at issue occurred between July 1, 1998, and July 1, 2001.
ANALYSIS Child Hearsay Statements
Doyle first contends that the trial court abused its discretion in admitting child hearsay statements DJY made to Hansen and Conrad without first determining DJY's competency at the time the statements were made.
RCW 9A.44.120 governs the admissibility of a child victim's out of courts statements. Under this statute, a child's statement when under the age of 10, describing any act or attempted act of sexual contact with or on the child by another is admissible in criminal proceedings if certain requirements are met. First, the court must find in a hearing conducted outside the jury's presence, that the time, content, and circumstances of the statement provide sufficient indicia of reliability. RCW 9A.44.120(1). Second, the child must either (a) testify at the proceedings or (b), if the child is unavailable as a witness, there must be corroborative evidence of the act. RCW 9A.44.120(2).
The courts have identified a nonexclusive list of factors, the Ryan factors, which are useful in determining reliability under RCW 9A.44.120. 103 Wn.2d at 175-76. Testimonial competence is not among the factors used to determine reliability. State v. C.J., 148 Wn.2d 672, 684, 63 P.3d 765 (2003).
Factors applicable to determining the reliability of out-of-court declarations include: (1) whether there is an apparent motive to lie, (2) the general character of the declarant, (3) whether more than one person heard the statements, (4) whether the statements were made spontaneously, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) the statement contains no express assertion about past fact, (7) cross-examination could not show the declarant's lack of knowledge, (8) the possibility of the declarant's faulty recollection is remote, and (9) the circumstances surrounding the statement (in that case spontaneous and against interest) are such that there is no reason to suppose the declarant misrepresented defendant's involvement. Ryan, 103 Wn.2d at 175-76.
Doyle does not dispute that the child hearsay statute requirements, RCW 9A.44.120, or the Ryan factors have been met. Rather, he contends that DJY was not competent to testify because (1) he lacked the mental capacity at the time of the incidents to receive an accurate impression of what happened, and (2) he lacked a memory sufficient to retain an independent recollection of the incidents.
These are two factors that Washington courts use in addition to RCW 5.60.050 in order to determine whether a child is competent to testify. Five factors must be found before a child can be declared competent to testify:
The true test of the competency of a young child as a witness consists of the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (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 it.
In re Dep. of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998) (quoting State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967)).
Doyle's argument assumes that that the State had to establish DJY's testimonial competence at the time of the incident in order to have his statements admitted under the child hearsay statute, RCW 9A.44.120. Our State Supreme Court rejected this argument in C.J., 148 Wn.2d at 675, when it held that the proponent of a hearsay statement from a child abuse victim need only meet the statutory requirements of RCW 9A.44.120.
Nevertheless, Doyle contends that C.J. does not resolve this issue and that In re Dep. of A.E.P., 135 Wn.2d 208, 956 P.2d 297 (1998), is "more closely analogous" to the case at hand. Appellant's Br. at 9-10. He argues that in A.E.P., the court "struggled with the fact that the trial court did not find when the abuse occurred nor that the victim was capable of receiving accurate impressions of the events at the time" when they occurred. Appellant's Br. at 10. His argument fails because he relies on the portion of A.E.P. discussing whether the child in that case was competent to testify. 135 Wn.2d at 222-25. Indeed, following its competency analysis, the court in A.E.P. then separately analyzed whether certain hearsay statements were properly admitted under RCW 9A.44.120. 135 Wn.2d at 226.
Contrary to Doyle's assertion, C.J. resolves this issue: to admit child hearsay under RCW 9A.44.120, a trial court need only determine whether the requirements of the statute are met and "[t]estimonial competence . . . is not among the factors used to determine reliability." 148 Wn.2d at 684.
For the first time on appeal, Doyle also argues that DJY was incompetent and the trial court erred by allowing him to testify at trial. We decline to address this argument further because Doyle failed to raise it at trial and, thus, did not preserve it and because he neglects to comply with RAP 10.3(a)(3). State v. C.M.B., 130 Wn. App. 841, 847, 125 P.3d 211 (2005).
Jury Instruction 13
Doyle next challenges jury instruction 13, which stated, "In order to reach a verdict on any charge, it is not necessary that the testimony of any witness be corroborated." Appellant's Br. at 12; CP at 127. He asserts that the instruction contains a judicial comment on the evidence in violation of article IV, section 16 of the Washington Constitution.
Although Doyle failed to object to this instruction at trial, an impermissible comment on the evidence has been deemed a manifest error affecting a constitutional right, which may be raised for the first time on appeal. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
Article IV, section 16 provides, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." A judge comments on the evidence, for instance, if a statement conveys to the jury the judge's opinion on the merits of the case, a disputed issue, the value of a witness's testimony, or that issues of fact have been established as a matter of law. State v. Jackman, 156 Wn.2d 736, 743-44, 132 P.3d 136 (2006). On the other hand, an instruction that accurately states the applicable law is not an impermissive comment on the evidence. State v. Ciskie, 110 Wn.2d 263, 282-83, 751 P.2d 1165 (1988).
Both parties observe that instruction 13 is "materially identical" to one this court recently considered in State v. Zimmerman, 130 Wn. App. 170, 121 P.3d 1216 (2005), review granted, 157 Wn.2d 1012, 138 P.3d 113 (2006). Appellant's Br. at 12; Resp't's Br. at 21. In that case, the corroboration instruction stated, "'In order to convict a person of the crime of child molestation as defined in these instructions, it is not necessary that the testimony of the alleged victim be corroborated.'" Zimmerman, 130 Wn. App. at 173-74. We concluded that the instruction accurately stated the law because it essentially "mirrored" RCW 9A.44.020(1), which provides, "'In order to convict a person of any crime defined in this chapter it shall not be necessary that the testimony of the alleged victim be corroborated.'" Zimmerman, 130 Wn. App. at 181 (quoting RCW 9A.44.020(1)).
The Zimmerman instruction is differs slightly from instruction 13 in that it closely tracked RCW 9A.44.020(1), which mandates that the testimony of the alleged victim of a sex offense need not be corroborated, see RCW 9A.44.020(1); Zimmerman, 130 Wn. App. 172-74, 180-82, while instruction 13 stated that it was not necessary for the testimony of any witness to be corroborated for the jury to reach a verdict.
Even more so than in Zimmerman, the corroboration instruction here is simply "unnecessary," but it was not an improper comment on the evidence. 130 Wn. App. at 172. In State v. Clayton, 32 Wn.2d 571, 573-74, 202 P.2d 922 (1949), our Supreme Court held that the trial court expressed no opinion as to the truth or falsity of the testimony of the alleged victim or as to the weight the court attached to her testimony and properly submitted the questions involving credibility and weight of the evidence to the jury. Similarly, instruction 13 did not indicate the trial court's opinion on whether the testimony of any particular witness was sufficiently persuasive for the jury to reach a verdict without corroboration, and it left that determination for the jury. Doyle's argument fails.
The jury received an instruction stating in part, "You are the sole judges of the credibility of the witnesses and of what weight is to be given to the testimony of each." CP at 114.
Voice Stress Analysis Self-Serving Hearsay Statements
Doyle next argues that the trial court abused its discretion by excluding self-serving hearsay statements and evidence of a voice stress analysis test that he took shortly after his arrest.
We leave the decision whether to admit or exclude evidence to the trial court's sound discretion, and we will not disturb such decisions on review absent abuse of discretion. State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
Washington courts do not recognize polygraph test results as reliable and exclude them from evidence absent a stipulation from both parties. State v. Thomas, 150 Wn.2d 821, 860, 83 P.3d 970 (2004). Doyle acknowledges that voice stress analysis is a form of polygraph test and that the parties did not stipulate to the admissibility of the test in this case. Thus, his argument fails.
But, relying on the Seventh Circuit case, United States v. Haddad, 10 F.3d 1252 (7th Cir. 1993), Doyle further argues that his offer to take the voice stress test was admissible under the rule of completeness. Washington courts have rejected similar arguments. State v. Rowe, 77 Wn.2d 955, 958-59, 468 P.2d 1000 (1970) (trial court properly excluded a statement offering to take polygraph because such statements have minimal probative value); State v. Edwards, 23 Wn. App. 893, 896, 600 P.2d 566 (1979) ("expressed willingness to take a lie detector test does not tend to explain, modify, or rebut the truth or accuracy of the officer's testimony"). Doyle's argument fails.
Sentence Under RCW 9.94A.712
Next, Doyle contends that the trial court erroneously sentenced him under RCW 9.94A.712 because the criminal conduct he was convicted of took place outside the statute's applicable time frame. Although the trial court initially sentenced Doyle under RCW 9.94A.712, it re-sentenced him under the proper statute within three months and without prejudice to Doyle, rendering this argument moot.
Trial Court's Authority to Submit Aggravating Factors to the Jury
Doyle next contends that, at the time of his trial, the court did not have the authority to submit special verdicts to the jury and, therefore, we should strike his aggravating sentencing factors. The State concedes that, following State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled in part on other grounds by Washington v. Recuenco, 126 S. Ct. 2546, 165 L. Ed. 466 (2006), Doyle's aggravating factors are a "nullity." Resp't's Br. at 27. We decline to accept the State's concession here.
The jury found that several aggravating facts existed, but the trial court imposed a standard range sentence. Arguably, Doyle cannot appeal a standard range sentence, nevertheless, we address the issue because we agree with Division Three's analysis in Davis.
Doyle's appeal was pending when Hughes was announced and, therefore, Hughes applies to this case. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 326-27, 823 P.2d 492 (1992).
Division Three recently addressed a similar challenge to the trial court's authority in State v. Davis, 133 Wn. App. 415, 138 P.3d 132 (2006). In Davis, before the legislature amended former RCW 9.94A.535 (2002) in response to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the trial court submitted a special interrogatory to the jury to determine whether an aggravating factor existed in Davis's case justifying an exceptional sentence. Davis, 133 Wn. App. at 426. Based on the jury's affirmative response to the special interrogatory, the trial court imposed an exceptional sentence on Davis.
The amendments to former RCW 9.94A.535, Laws of 2005, ch. 68, § 3, directed courts that the procedure used to determine facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined by a new section, RCW 9.94.537, which provides in part, "The facts supporting aggravating circumstances shall be proved to a jury beyond a reasonable doubt. The jury's verdict on the aggravating factor must be unanimous, and by special interrogatory." RCW 9.94.537(2), Laws of 2005 ch. 68, § 4.
Relying on Hughes, Davis appealed the exceptional sentence arguing that the court lacked the authority to submit aggravating factors to the jury. Davis, 133 Wn. App. at 426-27. But Division Three noted that Davis's argument ignored Hughes's limited holding that the legislature had not created a procedure for juries to find aggravating factors on remand; nor could such a procedure be implied. Davis, 133 Wn. App. at 427.
In Hughes, the Court specifically decided a narrow issue defined as "only . . . the question of the appropriate remedy on remand — we do not decide here whether juries may be given special verdict forms or interrogatories to determine aggravating facts at trial." 154 Wn.2d at 149. "[O]n this limited issue," the Court refused to create a procedure to empanel juries on remand to find aggravating factors because the legislature did not provide such a procedure and, instead, explicitly assigned such findings to the trial court. Hughes, 154 Wn.2d at 149-50.
The Davis court then concluded that the trial court had authority to submit special forms to the jury to determine aggravating factors under CrR 6.16. It observed that RCW 2.28.150 provides that "'if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the laws.'" Davis, 133 Wn. App. at 427 (quoting RCW 2.28.150). At the time of Davis's trial, there was no specific procedure for imposing an exceptional sentence and the court fashioned a process that conformed to the law. Davis, 133 Wn. App. at 427. The Davis court held that CrR 6.16 authorized the submission of special verdicts to the jury, the trial court followed that procedure, and the procedure conformed to Blakely. Consequently, the court found that no error had occurred. Davis, 133 Wn. App. at 427-28.
CrR 6.16(b) provides, "The court may submit to the jury forms for such special findings which may be required or authorized by law."
In this case, Doyle and the State similarly ignore Hughes's limited holding that the courts may not empanel a jury on remand under former RCW 9.94.535. As in Davis, before the legislature amended former RCW 9.94A.535 to conform to Blakely, the trial court here submitted special forms to the jury to determine whether aggravating circumstances justifying an exceptional sentence existed. As in Davis, CrR 6.16 provided the trial court with authority to submit these factors to the jury.
Affirmed.
A majorityofthe 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.
QUINN-BRINTNALL, J. and DEREN, J., Concur.