Opinion
No. 36582-1-II.
January 14, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-8-00103-1, Linda CJ Lee, J., entered June 14, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
Stevey A. Dunlap appeals his juvenile adjudication that he committed four counts of first degree rape of a child. He argues that the trial court abused its discretion when it admitted the victim's child hearsay statements to his (the victim's) mother, a nurse practitioner, and a child interviewer from the prosecutor's office, because there was insufficient indicia of the reliability of the child's statements to satisfy RCW 9A.44.120. More specifically, Dunlap challenges the trial court's findings under the Ryan factors that (1) the victim, FS, had no apparent motive to lie; (2) FS's statements were consistent; (3) the possibility that FS's recollection was faulty was remote; and (4) there was no reason to believe FS misrepresented Dunlap's involvement. Holding that the record supports these findings, we affirm.
State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).
FACTS I. Child Rapes
Eleven-year-old Stevey Dunlap met FS when FS was six years old, around Christmas time, after FS's family had moved to the area from North Carolina in September 2004. When the family first arrived in Washington, FS and his mother had lived with his mother's grandmother, whom FS called "Gigi."
FS was born December 15, 1998. Dunlap was born October 16, 1993.
During at least a portion of the charging period, Dunlap lived with his maternal grandmother near Gigi's house. Because Gigi's son was Dunlap's maternal grandmother's long-term boyfriend, the two boys occasionally spent time together at Gigi's, and they developed a cousin-like relationship. Dunlap and FS also spent the night at Dunlap's maternal grandmother's apartment at least once and possibly twice during the charging period.
When the boys were together, (1) they often played video games or played with toy wrestlers; (2) they sometimes wrestled with each other; (3) they sometimes disagreed or argued over games; and (4) FS sometimes became angry with Dunlap because Dunlap would not share.
FS started kindergarten shortly after arriving in Washington. At that time, FS's parents had separated. In April 2006, when FS was in first grade, he and his mother moved in with his mother's boyfriend in a nearby town, and FS transferred to a different elementary school.
Their divorce was not yet final at the time of the trial.
In September 2006, then seven-year-old FS disclosed to his mother that then twelve-year-old Dunlap had had repeated sexual contact with him. After FS's mother reported these allegations to the police, FS repeated these same allegations to (1) Lynn Jorgeson, a nurse practitioner/medical examiner with Mary Bridge Children's Hospital's Child Abuse Intervention Department; and (2) Kim Brune, a child interviewer with the Pierce County Prosecutor's Office.
Brune taped her interview with FS, which lasted approximately 48 minutes. During the interview with Brune, FS told Brune that (1) Dunlap had penetrated his (FS's) anus with his penis on more than one occasion; (2) Dunlap had forced FS to do the same to Dunlap; (3) Dunlap had forced FS to lick Dunlap's penis on more than one occasion; (4) FS had finally disclosed the incidents because his mother had heard that someone had had sex and had referred to Dunlap having done the same thing to FS's friend; and (5) FS complied with many of Dunlap's requests because Dunlap had threatened to penetrate FS so hard that he (FS) would scream and then blame him (FS) if anyone heard. FS implied that Dunlap would often blame FS for things for which FS would be punished while Dunlap would not.
II. Procedure
The State charged Dunlap with four counts of child rape occurring between November 1, 2005, and September 17, 2006. The case proceeded to a bench trial before the juvenile court.
Before trial, the parties briefed the issue of whether FS's statements to his mother, Jorgeson, and Brune were admissible under RCW 9A.44.120, the child hearsay exception to the hearsay rule. The parties agreed to address the admissibility issue after the State presented its case in chief, rather at a preliminary hearing.
Although the trial court refers to these motions, they are not in the appellate record.
A. State's Case in Chief
At trial, the State presented testimony about FS's various hearsay statements through the following witnesses: (1) his mother; (2) Jorgeson; and (3) Brune. The trial court also viewed the DVD recording of Brune's interview with FS.
1. FS's disclosures to his mother
FS's mother testified that when FS reported the sexual contact with Dunlap, FS was having a "hard" time due to his parents' separation, his knowledge that his father would soon be deployed to Iraq, their recent move, and his changing schools.
FS's father was in Iraq when FS disclosed the alleged sexual abuse. FS's mother testified that she did not notify FS's father about the sexual abuse disclosures because he was in Iraq, and she did not want him to have to think about this while he was in that situation.
FS's mother testified further that in March 2006, she had learned that one of FS's friends had reported that Dunlap had sexual contact with him during FS's seventh birthday party at FS's father's house. Immediately after learning about this incident, she asked FS if Dunlap had kissed him. FS told her that Dunlap had not kissed him and asked her why she had asked him this. She then asked FS if he had seen Dunlap kiss his friend at the birthday party. When FS denied having seen anything, she did not pursue the matter further.
Despite knowing about these allegations of Dunlap's behavior with the other child, FS's mother allowed him to have continued contact with Dunlap because she believed FS when he told her that nothing had happened to him. Before FS's later disclosure about Dunlap's sexual molestation, FS had not indicated that he disliked being around Dunlap. At the time of one of the alleged incidents, however, after FS had slept over with Dunlap at Dunlap's grandmother's, FS told her he was not feeling well, that he had a sore stomach, and that he was having trouble going "number two." The record does not say that she suspected sexual molestation as a possible cause.
At the time of trial, FS's father had primary residential care of him, which, according to FS's mother, was, at least in part, because she had allowed FS to have contact with Dunlap after another parent had informed her that Dunlap had inappropriately contacted one of FS's friends. At trial, FS's father denied having coached FS to make these allegations to improve his custody position in the divorce.
But on September 17, 2006, then seven-year-old FS approached her and asked her if she remembered talking to him about something that had happened to his friend. When she told him that she remembered this, FS told her that it had happened to him, too, started to cry, told her that Dunlap had "stuck his dinky in [his] butt," and asked her if that meant he was gay. She reassured FS that he was not gay. When she asked FS if he wanted to tell her anything else, he said he did not want to talk about it anymore. He apologized for not telling her sooner, explaining that he had not told her sooner because he thought he would get in trouble. FS did not tell his mother why he thought he would get in trouble.
FS's mother immediately called the police and spoke to Officer Michelle Hector from the Lakewood Police Department. FS's mother testified that when she spoke to Hector, she (FS's mother) felt "like [she] was going a little crazy"; she was hysterical and emotional. She did not recall embellishing her son's statements or telling the officer that FS had told her Dunlap had used lotion and "numbing stuff to put his finger in [FS's] anus[.]" Report of Proceedings (RP) (May 22, 2007) at 178-79. She denied telling the officer that (1) there had been a second incident at FS's father's house on FS's seventh birthday, stating that if she had referred to an incident on that day, she might have been referring to the incident between Dunlap and the other child; and (2) there had been a third incident two months earlier at Dunlap's grandmother's apartment, then whispering that her psychic powers were telling her that FS may have performed oral sex on Dunlap. She admitted that she may have told the officer that FS stated that he had done the same things to Dunlap that Dunlap had done to him; but she denied telling the officer that Dunlap had "'penetrated his penis into [FS's] anus," in those words. FS's mother further testified that at the time of FS's disclosure, she had been taking several prescription medications for social anxiety disorder, generalized anxiety disorder, panic attacks, and depression.
A different officer came to FS's mother's house the next day, September 18, 2006. According to FS's mother, she was still tearful, hysterical, and felt like she had lost control. She denied telling this officer that she was on psychotropic medications and denied telling anyone she had psychic powers. She explained that her memory of this meeting was not clear because she was on Seroquel at the time and this drug affected her memory.
After speaking to the police, FS's mother took FS to two appointments at Mary Bridge Children's Hospital, the first, on September 25, 2006, with Jorgeson; the second, on November 2, 2006, with Brune. Before these appointments, FS's mother told FS that the people at Mary Bridge would talk to him about what had happened with Dunlap and check his body, that it might be uncomfortable, but she would be there with him. She testified that (1) after the Mary Bridge interview, FS told her he thought he would be in trouble because he had done the same things to Dunlap that Dunlap had done to him, but he now knew he would not be in trouble; (2) she had not asked FS about the incidents before he made this statement; and (3) her boyfriend, who did not testify at the trial, was with them when FS made this disclosure.
At some point before the appointments at Mary Bridge Children's Hospital, FS's mother took FS to a pediatrician at Madigan Army Hospital, and the pediatrician referred FS to Mary Bridge. The record does not show when FS's mother contacted Madigan in relation to her reporting the incident to the police.
FS's mother also testified that (1) FS never appeared confused about who had "done this to him"; (2) he had consistently asserted that it was Dunlap; (3) he never appeared confused about what was real or what was pretend; (4) she did not suggest these allegations to FS; (5) she had not discussed sex with FS, nor had FS previously disclosed any sexual knowledge; and (6) FS had "got[ten] in trouble" in first grade for drawing a stick figure with a penis, but he had told her that the picture was a joke and that he and his friends had just been playing around.
2. F.S's disclosures to Nurse Jorgeson
On September 25, 2006, Jorgeson, a nurse practitioner/medical examiner in the Child Abuse Intervention Department at Mary Bridge Children's Hospital, interviewed and examined FS. She testified that before the examination, she had "talked" with FS's mother, who was upset but cooperative, for 15 or 20 minutes.
There is no indication in the record that Jorgeson taped the interview or exam.
Jorgeson did not testify about what FS's mother had told her when they talked.
During the examination, FS told Jorgeson that Dunlap had "raped" him. When she asked him what he meant by "rape," he used more age appropriate terms to explain that Dunlap had "stuck his pee pee in [his] butt hole." RP(May 23, 2007) at 242-43. FS told her that Dunlap had done this to him three times, that he had had trouble having bowel movements after one incident but was all right now, and that Dunlap had also "did it" to one of his friends at a birthday party. He denied that anyone other than Dunlap had done this to him. When Jorgeson asked FS if he had any concerns, he told her that he was worried that he might have a disease or that he might be gay. He seemed relieved when she reassured him that he was not gay and, based on prior lab work from Madigan Army Hospital, that he did not have any diseases.
Jorgeson testified that FS's physical exam was normal, which was consistent with the type of sexual contact FS had reported. She further testified that (1) delayed disclosure was not unusual in children the same age as FS; (2) although some children who have been sexually abused may act out, not all do; (3) it was not unusual for young boys to worry about being gay or to be aware of the possibility of sexually transmitted diseases; (4) by the time she saw children who had alleged sexual abuse, it was not unusual for them to be familiar with some adult terminology; (5) she was not sure where FS had learned the term "rape," but concluded that he had likely heard about what had happened to his friend because his family had talked about it; and (6) she did not ask FS's mother how many people FS had talked to about the allegations.
3. FS's disclosures to prosecutor interviewer Brune
On November 2, Kim Brune, a child interviewer with the Pierce County Prosecutor's Office, interviewed FS for about 48 minutes. As described above, during the interview, FS disclosed several incidents of sexual contact with Dunlap and stated that he complied with many of Dunlap's requests because Dunlap had threatened to hurt him and blame him for the sexual contact. FS also implied that Dunlap would often blame him for things for which FS would get punished.
Throughout the interview, Brune asked FS to elaborate on what he was telling her, often asking what he meant when he said certain things or rephrasing questions when FS stated that he did not know or did not remember something. She explained that she used this approach because when a child says he does not know something, the child often just wants the interview to end.
4. FS's testimony
FS testified that Dunlap had "raped" him several times at both Gigi's house and at Dunlap's grandmother's apartment, when he (FS) was five or six years old. He described several separate incidents involving anal penetration by Dunlap that had occurred both at Gigi's house and at Dunlap's grandmother's apartment. FS also described Dunlap forcing him (FS) to do the same thing to him (Dunlap) and Dunlap licking his (FS's) anus. FS did not describe any oral-penile contact, and he did not recall Dunlap penetrating him with his finger.
FS also testified that (1) he had told his mother about the sexual contact a few months after the last incident because he was finally "brave enough" and because he thought he needed to get checked for diseases; (2) he told her what had happened and that he needed to get checked to see if he had any diseases or could die; (3) his mother did not ask him about any possible incidents immediately before he disclosed to her; (4) he did not hear his friend's mother tell his mother what had happened between Dunlap and his friend; (5) after he had disclosed to his mother, she had told him what "rape" meant; and (6) even though he no longer liked Dunlap, he was not making this up just to get Dunlap in trouble.
B. Admission of Child Hearsay Statements
After the State presented this evidence, the parties addressed the admissibility of FS's child hearsay statements, with Dunlap objecting that they were inadmissible. The State argued that (1) FS's statements were reliable under the Ryan factors and, therefore, admissible under RCW 9A.44.120; and (2) FS's statements to Jorgeson were also admissible as statements for purposes of medical diagnosis or treatment under ER 803(a)(4).
To determine whether a child hearsay statement is reliable for purposes of admissibility under RCW 9A.44.120, the trial court addresses the nine Ryan factors. State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174 (2005) (citing Ryan, 103 Wn.2d at 175-76). See Analysis, infra.
Dunlap argued that FS's statements were (1) inadmissible under Crawford v. Washington; (2) not reliable under the Ryan factors because the recorded interview with Brune demonstrated that FS had an apparent motive to lie; and (3) not admissible under ER 803(a)(4) as statements for the purpose of medical diagnosis or treatment. Dunlap asserted that, in the recorded interview with Brune, FS had stated that Dunlap would often blame him for things and that he would get in trouble instead of Dunlap; therefore, FS had an apparent motive to lie.
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The trial court ruled that (1) all of FS's statements satisfied RCW 9A.44.120 and the Ryan factors and were, therefore, admissible; and (2) FS's statement to Jorgeson was also admissible under ER 803(a)(4). The trial court later issued written findings and conclusions, which included the following findings on the Ryan factors:
1. FS has no apparent motive to lie;
2. FS is generally of good character;
3. FS made statements to [his mother], Lynn Jorgenson [sic], and Kim Brune, and those statements, though at different times with different purposes, were generally consistent;
4. FS's statements were spontaneous as defined by the case law;
5. There is nothing about the timing of FS's statements that suggests improper motive, nor does anything about the relationship between FS and the persons he talked to[;]
6. The possibility FS's recollection is faulty is remote;
7. Based on the totality of the circumstances surrounding the making of FS's statements, there is no reason to believe FS misrepresented [Dunlap's] involvement.
Clerk's Papers (CP) 13.
C. Defense Evidence
Following the trial court's ruling on the admissibility of the child hearsay statements, the defense presented testimony from Officer Michelle Hector and Dunlap. Dunlap denied having had sexual contact with FS.
Hector, the officer who spoke to FS's mother on the telephone when FS's mother first reported the alleged abuse, testified that (1) she had talked to FS's mother for approximately an hour; (2) FS's mother had seemed "a bit unstable"; (3) throughout their conversation, FS's mother had said "that she was psychic"; (4) FS's mother would sometimes whisper during the conversation and would sometimes cry; and (5) FS's mother said she "wanted to kill herself because of what had happened to her child," RP (May 24, 2007) at 382.
Hector further testified that FS's mother also stated that (1) Dunlap had used "lotion and numbing stuff to put his finger in [FS's] anus"; (2) there had been a second incident at FS's father's house in which "Dunlap penetrated his penis into [FS's] anus"; (3) there had been a third incident about two months earlier at Gigi's house in which "'Dunlap sodomized [FS]'"; and (4) she (FS's mother) felt, based on her "psychic powers," that FS might have performed oral sex on Dunlap. FS's mother also told Hector that she was on medication, apparently at the time FS disclosed the abuse and when she was speaking to Hector.
D. Verdict
The trial court adjudicated that Dunlap had committed all four counts of child rape. In its written findings of fact and conclusions of law, the trial court found that (1) count I was based on anal intercourse that had occurred at Gigi's house; (2) count II was based on Dunlap having had oral sexual contact with FS at Gigi's house; (3) count III was based on anal intercourse that had occurred at Dunlap's grandmother's apartment; and (4) count IV was based on Dunlap's having forced FS to have oral contact with his (Dunlap's) penis while at Dunlap's grandmother's apartment.
The trial court stated that FS's testimony and Brune's forensic interview supported this finding.
The trial court stated that Brune's forensic interview supported this finding.
The trial court stated that FS's testimony and Brune's forensic interview supported this finding.
The trial court stated that Brune's forensic interview supported this finding.
Dunlap appeals.
ANALYSIS
Dunlap argues that the trial court erred in admitting FS's hearsay statements because the evidence does not support the trial court's findings that the statements were reliable. He challenges the trial court's findings that (1) FS had no apparent motive to lie; (2) FS's statements were consistent; (3) the possibility that FS's recollection was faulty was remote; and (4) there was no reason to believe FS misrepresented Dunlap's involvement. Instead, Dunlap asserts that the record shows that (1) FS was coached, (2) FS fabricated or exaggerated his allegations, and (3) FS's mother's statements to the police about FS's allegations were exaggerated. These arguments fail.
We note that Dunlap does not challenge the admission of FS's hearsay statements to Jorgeson under ER 803(a)(4). Because Dunlap does not challenge admissibility under this hearsay exception and RCW 9A.44.120 applies only if the child's statements are "not otherwise admissible by statute or court rule," FS's statements to Jorgeson would be admissible even if they did not meet the Ryan factors, which, as we explain below, we do not address.
I. Standard of Review
We review a trial court's admission of child hearsay statements under RCW 9A.44.120 for abuse of discretion. Woods, 154 Wn.2d at 623. A trial court abuses its discretion when the decision is manifestly unreasonable, or is based on untenable grounds or reasons. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003). We review a trial court's factual findings supporting the admission of such evidence for substantial evidence, which is a quantity of evidence in the record sufficient to persuade a fair-minded, rational person that the finding is true. State v. Halstien, 122 Wn.2d 109, 128-29, 857 P.2d 270 (1993). Additionally, we defer to the trier of fact issues of conflicting testimony and witness credibility, and the persuasiveness of the evidence. Stave v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
II. Failure to Preserve Error on All But One RYAN Factor
As a preliminary matter, the State contends that (1) Dunlap's sole argument below was that FS had an apparent motive to lie; and (2) therefore, he waived his right to challenge the other Ryan factors on appeal. We agree.ER 103(a)(1) requires a party challenging the admission of evidence to make a timely objection on specific grounds unless the specific grounds were not apparent from the context. Based on the record before us, Dunlap objected to FS's hearsay statements soley because FS had a motive to lie and, therefore, his child hearsay statements were unreliable. Therefore, although the trial court dutifully addressed all the Ryan factors below, Dunlap has preserved only this one factor for appeal and we, therefore, confine our analysis to this one factor.
Dunlap's argument fails with respect to this one factor — motive to lie. Although Dunlap assigns error to the trial court's finding that FS had no apparent motive to lie, he does not present any argument challenging this finding. In order for us to review an issue on appeal, RAP 10.3(a)(6) requires argument in support of the issue, together with citations to legal authority. Dunlap having failed to present any argument or citation to the record to support this assignment of error, we decline to address this issue.
Moreover, even if we were to address this issue, the record shows that, at most, FS and Dunlap had occasional disagreements and may have been disciplined differently. These facts do not suggest that FS had an apparent motive to lie, especially in light of the trial court's finding FS credible, a judgment that we do not second-guess on appeal.
Accordingly, we affirm.
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.
QUINN-BRINTNALL, J. and VAN DEREN, C.J., concur.