Opinion
No. 39684-0-II.
December 7, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clallam County, No. 09-8-00001-2, S. Brooke Taylor, J., entered August 10, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Worswick, A.C.J., and Armstrong, J.
J.J.S.H. appeals the juvenile court's adjudication of child molestation in the first degree. J.J.S.H. argues that (1) the juvenile court erred in finding the child's hearsay statements to her mother and a detective admissible under State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), and the child hearsay statute, RCW 9A.44.120; (2) the child's testimonial hearsay statements to the detective were inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); and (3) the trial on the stipulated facts violated his due process rights. We affirm.
Because both J.J.S.H. and the victim are minors, we use the minor defendant's and the minor victim's initials throughout. See State v. Roswell, 165 Wn.2d 186, 189 n. 1, 196 P.3d 705 (2008).
FACTS
At about 9:00 am, on January 5, 2009, Child Protective Services (CPS) contacted Forks Police Department Detective Lev Teal about a report that 15-year-old J.J.S.H. had possibly molested his 4-year-old sister R.I.D.
CPS also advised Teal that it "had received several referrals for [J.J.S.H.] in the past, relating to sexual acts with younger children."
Before interviewing R.I.D., Teal administered "truth versus lie" and "morality" card tests to determine whether R.I.D. understood the importance of telling the truth. R.I.D. answered the eight "truth versus lie" test questions correctly, but she "was very hesitant about answering any of the morality test questions and when she did she answered them incorrect[ly]."
When Teal then questioned R.I.D. about the alleged molestation, R.I.D. told him that J.J.S.H. had "put his thingy in [her] butt," while she was in the bathroom of their current home. R.I.D. also stated that a "thingy" was a "[p]ee wee," which she then identified as a penis. She also identified both her front and rear lower abdomen/pelvic region as her "butt." She clarified that J.J.S.H. had put his "thingy" in the front part of her "butt." R.I.D. was not sure when the incident had occurred, but she said that it had happened more than once.
R.I.D.'s mother told Teal that R.I.D said J.J.S.H. touched "her butt and her pee-pee." She said that J.J.S.H. had returned home after spending time at a juvenile detention center about two months before R.I.D. told her what had happened. R.I.D.'s mother said that she had noticed changes in J.J.S.H.'s behavior and that she believed that he might need a change in his medication and psychological counseling. She also told Teal she did not believe R.I.D.'s allegations and she thought R.I.D. could have made up the story after seeing J.J.S.H. looking at pornographic material on the computer.
Teal then interviewed J.J.S.H. at the police station. Although J.J.S.H. initially denied having molested his sister, he eventually admitted to having had sexual contact with R.I.D. about two years earlier. Specifically, he admitted that he had rubbed his penis against R.I.D.'s vagina, that R.I.D. had put her mouth on his penis, and that he had put his mouth on her vagina. He stated that the sexual contact had occurred while they were watching pornography in his mother's room two or three years earlier, a few months before his previous arrest. He believed that R.I.D. may have been reminded of the earlier incident when she recently saw him watching pornography on the computer.
The State charged J.J.S.H. by amended information with first degree child molestation, alleging that the incident occurred on or about December 2006 to December 2008. Following a CrR 3.5 hearing, the juvenile court admitted J.J.S.H.'s statements to Teal.
Before trial, the juvenile court held a competency and child hearsay hearing to determine whether R.I.D. was competent to testify and whether the statements to her mother and Teal were admissible. At this hearing, five-year-old R.I.D. answered some general questions and correctly answered several questions about telling the truth and a lie. During this hearing, R.I.D. had trouble looking at the prosecutor and was hesitant to answer questions or describe the incident involving J.J.S.H.
After taking a recess at least three times, R.I.D. testified that she had been at home taking a shower when J.J.S.H. came into the bathroom to "go potty." When she got out of the shower, J.J.S.H. put a towel around her. She denied anything else happening in the bathroom. When the juvenile court tried to question her in more detail, R.I.D. said that she did not want to talk about it. The juvenile court concluded that R.I.D. was not competent to testify and that she was unavailable as a witness.
Although J.J.S.H. assigns error to some of the written findings of fact and conclusions of law related to the competency issue, see Br. of Appellant at 1, he does not present any argument related to these assignments of error. Accordingly, J.J.S.H. has waived this issue and we will not consider it. RAP 10.3(a)(6).
The juvenile court then turned to the question of whether R.I.D.'s out-of-court statements to her mother and to Teal were admissible. Teal recounted his interview with R.I.D. and the statements she made to him describing the molestation.
R.I.D.'s mother testified that around the end of October 2008, her middle child had approached her and told her that R.I.D. told him something about her older son, J.J.S.H. R.I.D.'s mother then asked R.I.D. "what her brother did to her and [R.I.D.] told [her mother] that he touched her butt and her pee-pee." R.I.D. did not tell her mother when it had happened or where. R.I.D.'s mother then asked her how J.J.S.H. had touched her, and R.I.D. responded that he had touched "her pee-pee — with his pee-pee." When her mother asked her if J.J.S.H.'s penis was "'out of his pants, or in his pants,' and . . . [R.I.D.] said 'it was out.'" R.I.D.'s mother did not ask R.I.D. any other questions because R.I.D. "flitted off" to go play with her dolls. She talked to R.I.D. again after talking to J.J.S.H., and R.I.D. told her the same story again.
R.I.D.'s mother also testified that J.J.S.H. had been home from a previous two-year detention for about two months before R.I.D.'s disclosure, that the children were having trouble adjusting to J.J.S.H.'s return, that J.J.S.H. had "some anger issues," and that the two younger children were sticking up for each other. But she acknowledged that although the children fought, they did not usually make false accusations against each another.
R.I.D.'s mother said that R.I.D. had an imagination and she would sometimes make things up, but she stated that R.I.D. had never made up any accusations against J.J.S.H. or anyone else. R.I.D.'s mother testified that based on her knowledge of J.J.S.H.'s past behavior, she initially believed R.I.D., but after talking to J.J.S.H., she questioned the disclosure. She acknowledged that J.J.S.H. had access to her computer, that he had watched pornography on the computer, and that R.I.D. had probably briefly seen pornography on the computer and had inadvertently seen part of a soft-porn movie on television.
After evaluating the evidence under the nine Ryan factors and RCW 9A.44.120, the court concluded that R.I.D.'s statements to her mother and to Teal were reliable and that there was sufficient corroboration of R.I.D.'s statements. The court ruled that R.I.D.'s statements to her mother and to Teal were admissible and entered written findings of fact and conclusions of law supporting this ruling.
At trial, the defense agreed to proceed to trial on stipulated facts. The parties agreed the court should consider: (1) the police reports; (2) transcripts of Teal's interviews with R.I.D. and J.J.S.H.; (3) a recording of Teal's final interview with J.J.S.H., which included J.J.S.H.'s confession; (4) the probable cause statement; and (5) the findings of fact and conclusions of law from the CrR 3.5 hearing, the witness competency hearing, and the child hearsay hearing. Defense counsel stipulated to the admissibility of these exhibits but reserved the right to appeal the prior rulings.
The juvenile court found J.J.S.H. guilty of child molestation in the first degree and entered findings of fact and conclusions of law. In addition to finding R.I.D.'s statements to her mother and to Teal credible, the juvenile court found that J.J.S.H. admitted that he had had sexual contact with R.I.D. Specifically, the court found that J.J.S.H. had confessed to rubbing his penis against R.I.D.'s vagina, putting his penis between R.I.D.'s legs and having her sit on his lap as they watched a pornographic movie, putting his mouth on R.I.D.'s vagina, and having R.I.D. put her mouth on his penis. J.J.S.H. appeals.
ANALYSIS I. R.I.D.'s Hearsay Statements A. Ryan Factors and Corroboration
J.J.S.H. argues that the juvenile court erred in determining that R.I.D's hearsay statements to her mother and to Teal were admissible under RCW 9A.44.120 and Ryan. We disagree.
We review a court's admission of child hearsay statements under RCW 9A.44.120 for abuse of discretion. State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174 (2005). The court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003). We review the factual findings supporting the admission for substantial evidence. State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the truth of the premise asserted. Halstien, 122 Wn.2d at 129.
When a child witness under 10 years old is unavailable, the child's hearsay statements describing actual or attempted sexual contact are admissible if the court determines that (1) "the time, content, and circumstances of the statement[s] provide sufficient indicia of reliability;" and (2) "there is corroborative evidence of the act." RCW 9A.44.120. We look to the circumstances surrounding the statement's making, rather than to later corroboration of the criminal act, to determine reliability. Ryan, 103 Wn.2d at 174.
1. Ryan factors
To determine the reliability of a child hearsay statement, the court must examine the nine Ryan factors: (1) whether there is an apparent motive to lie, (2) the declarant's general character, (3) whether more than one person heard the statements, (4) whether the statements were spontaneous, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) whether the statement contains express assertions about past facts, (7) whether cross-examination could show the declarant's lack of knowledge, (8) whether the possibility that the declarant's recollection is faulty is remote, and (9) whether the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented the defendant's involvement. Ryan, 103 Wn.2d at 175-76; see also State v. Swan, 114 Wn.2d 613, 647-48, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). To be admissible, the statements need only substantially meet these factors. Woods, 154 Wn.2d at 623-24. J.J.S.H. does not challenge factors 4, 5, or 9, which the juvenile court found weighed in favor of admissibility. J.J.S.H. challenges factors 1, 2, 3, 6, and 8, and notes that factor 7 is inapplicable here because R.I.D. was unavailable to testify.
As to the first factor, whether R.I.D. had an apparent motive to lie, J.J.S.H. incorrectly asserts that the juvenile court did not address this factor in its written findings of fact and conclusions of law. In finding of fact 27, the juvenile court stated:
Court finds that there is no motive for R.I.D. to lie or try to get her brother in trouble, her demeanor and behavior in how she told her mother enforces the fact that R.I.D. would not suspect that what [J.J.S.H.] had done would get him in trouble. The statements she made to her mother were spontaneous and made in a matter of fact tone, and then she was distracted and went to play, with the attitude that what had happened in the bathroom was not a big deal.
Clerk's Papers (CP) at 27 (emphasis added).
Because J.J.S.H. does not assign error to this finding of fact, it is a verity on appeal. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). In any event, the finding is supported by the record. Although, as the court noted, there was evidence of sibling rivalry and J.J.S.H.'s return to the family home had caused turmoil, the court could still reasonably conclude that because there was nothing indicating "that R.I.D. would expect or would know that her brother would get in trouble for what happened in the bathroom," R.I.D. did not have any motivation to lie about the sexual contact. CP at 27 (finding of fact 26).
As to the second factor, R.I.D.'s general character, J.J.S.H. argues that the juvenile court's finding that R.I.D. "'had no propensity to fabricate/lie or make up stories,'" is not supported by the record. He contends that R.I.D.'s mother testified that R.I.D. had an imagination and asserts that the mere fact the mother had never heard R.I.D. fabricate a "serious accusation," was not proof that R.I.D. "had no propensity to fabricate stories in general." While R.I.D.'s mother testified that R.I.D. would sometimes make things up, the record supports the court's finding that R.I.D. had no propensity to make false allegations against her family members. Taken in context, the juvenile court's finding that R.I.D. had no propensity to fabricate/lie or make up stories is supported by the record.
J.J.S.H. also argues that R.I.D.'s responses to Teal's "'[m]orality'" test demonstrated that R.I.D. could not understand the importance of telling the truth. Br. of Appellant at 17 (quoting VRP (June 24, 2009) at 46, 57). But the juvenile court took this factor into consideration.
As to the third factor, whether more than one person heard the statements, J.J.S.H. seems to assert that the juvenile court's finding that although three people heard R.I.D.'s statements, only two people testified about these statements somehow demonstrates that this factor weighs against admissibility. The record supports the juvenile court's finding that R.I.D. told three people, her brother, her mother, and Teal, that J.J.S.H. had had sexual contact with her. Moreover, "when more than one person hears a similar story of abuse from a child, the hearsay statement is more reliable." State v. Kennealy, 151 Wn. App. 861, 883, 214 P.3d 200 (2009), review denied, 168 Wn.2d 1012 (2010). Accordingly, this third factor also weighs in favor of admissibility.
As to factor 6, whether the statement at issue contains express assertions about past facts, J.J.S.H. argues that this factor will almost always weigh in favor of exclusion. But our court has held that factor 6 does not carry any significant weight, not that it necessarily weighs in favor of exclusion. See State v. Leavitt, 111 Wn.2d 66, 75, 758 P.2d 982 (1988); State v. Stange, 53 Wn. App. 638, 647, 769 P.2d 873, review denied, 113 Wn.2d 1007 (1989).
As to factor 8, whether the possibility that the declarant's recollection is faulty is remote, J.J.S.H. argues that there was some possibility that R.I.D.'s recollection was faulty because she had been exposed to pornography before making her disclosures. The juvenile court found that "R.I.D.'s faulty recollection is remote even though there appears to be some exposure to pornographic material" and that "the description given by R.I.D. of what happened supported that the statements R.I.D. made were truthful, it was age appropriate language." CP at 27 (finding of fact 25). Because J.J.S.H. does not assign error to this finding, it is a verity on appeal. Hill, 123 Wn.2d at 647. This finding shows that the juvenile court considered R.I.D.'s exposure to pornography but determined that the child's use of age appropriate language to describe the incident demonstrated that this exposure had not affected her ability to accurately recall the incident. Accordingly, the court's conclusion that factor 8 weighed in favor of admissibility is supported by the record.
In sum, the record supports the juvenile court's findings that at least seven of the nine Ryan factors demonstrated reliability. Accordingly, the juvenile court did not abuse its discretion in concluding that the Ryan factors were substantially met.
2. Corroboration
J.J.S.H. next argues that even if the Ryan factors favored admission of R.I.D.'s statements, the juvenile court erred in deciding her statements were corroborated. We disagree.
In finding of fact 28, the juvenile court found:
Court finds that there is corroboration for R.I.D.'s hearsay statements, the statements given by R.I.D. were the same from when she spontaneously told her mother at the end of October, 2008 to when she was interviewed by Detective Teal January 5, 2009. The most important corroboration exists in that upon interview of [J.J.S.H.], he confessed to having sexual contact with R.I.D.
CP at 27.
Because J.J.S.H. does not assign error to this finding or the admission of his confession, it is a verity on appeal. Hill, 123 Wn.2d at 647. Nonetheless, J.J.S.H. argues that there was no corroboration of R.I.D.'s statement because his admissions related to a different event and were not relevant to the allegations made by R.I.D.
Although R.I.D.'s description of the molestation differed from J.J.S.H.'s admissions in regard to the time and the location of the sexual contact, given R.I.D.'s youth, there were enough similarities between the two statements to allow the juvenile court to conclude that R.I.D.'s ability to describe this sexual contact came from having experienced such contact, and that the child's precocious sexual knowledge can be considered to be corroborative of abuse. C.J., 148 Wn.2d at 687. We conclude the juvenile court did not abuse its discretion in admitting R.I.D.'s statements.
B. Crawford
J.J.S.H. next argues that R.I.D.'s testimonial hearsay statements to Teal were inadmissible under Crawford. The Supreme Court in Crawford held that out-of-court testimonial statements are inadmissible at trial unless the declarant is unavailable and the defendant had a prior opportunity for cross examination. Crawford, 541 U.S. at 68. The State concedes that R.I.D.'s out of court statements to Teal were inadmissible under Crawford, but it argues that admission of the statements was harmless error. We accept the State's concession of error and agree that the error was harmless. Crawford violations are subject to a harmless error analysis. State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007). We apply the overwhelming untainted evidence test. Watt, 160 Wn.2d at 635-36 (citing State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986)). Under this test, the State has the burden of showing beyond a reasonable doubt that the "verdict is unattributable to the error." Watt, 160 Wn.2d at 635 (citing Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). In applying the test, we look "only at the untainted evidence to determine if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt." Watt, 160 Wn.2d at 636. Given J.J.S.H.'s uncontroverted admissions to Teal and the admissible statements R.I.D. made to her mother, we conclude any error in considering R.I.D.'s out of court statements to Teal was harmless beyond a reasonable doubt.
Because we address the Crawford issue, we do not address J.J.S.H.'s related ineffective assistance of counsel claim.
II. Due Process
Finally, J.J.S.H. argues that the record does not show that he knowingly, intelligently, and voluntarily waived his due process rights including the right to testify, the right to confront witnesses, and the right to call his own witnesses before agreeing to a bench trial on a stipulated record. Our Supreme Court rejected the same argument in State v. Johnson, 104 Wn.2d 338, 342-43, 705 P.2d 773 (1985) (distinguishing the due process protections afforded defendants entering guilty pleas from those afforded defendants who agree to a stipulated facts trial). See also In re Det. of Moore, 167 Wn.2d 113, 120-21, 216 P.3d 1015 (2009) (acknowledging the distinction made in Johnson); State v. Selander, 65 Wn. App. 134, 136, 827 P.2d 1090 (1992) (citing Johnson, 104 Wn.2d at 342-43). Accordingly, this argument fails.
In his argument, J.J.S.H. relies on In re the Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). Although Gault establishes that a juvenile has many of the same due process rights as an adult, it does not establish that any defendant, adult or juvenile, cannot agree to a stipulated record trial absent full advisement of those rights.
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.
ARMSTRONG, J and WORSWICK, A.C.J., concur.