STATE v. BOYSEN, 26383-1-II (Wash.App. 12-19-2001)

No. 26383-1-II.The Court of Appeals of Washington, Division Two.
Filed: December 19, 2001. UNPUBLISHED OPINION

Appeal from Superior Court of Mason County, No. 99-1-00122-2, Hon. Toni A. Sheldon, August 3, 2000, Judgment or order under review.

Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.

Counsel for Respondent(s), Carol L. Case, Mason Co. Deputy Pros. Atty., P.O. Box 639, Shelton, WA 98584.

ARMSTRONG, C.J.

A jury convicted Ronald D. Boysen of first degree child molestation. At trial the six-year-old victim testified to the events in full. In addition, her out-of-court statements were admitted describing her initial reports of Boysen’s sexual contact with her and another child. Boysen argues that the court erred in admitting this child hearsay and erred in imposing an exceptional sentence. Because the evidence supports the trial court’s findings of fact as to the child hearsay statements, because Boysen abused a position of trust to facilitate his offense, and because the sentencing court did not violate the Apprendi rule,[1] we affirm.

FACTS
On Saturday, March 6, 1999, D.D. left her daughter, N.D., at Debby and Ronald Boysen’s home as she did every weekend while she went to work. When she called before leaving work to pick up N.D., Debby was upset and said that they needed to talk but that she could not do so over the telephone. When D.D. arrived, Debby ushered her into her bedroom and explained to her, in Boysen’s presence, that N.D. had accused Boysen of touching her inappropriately. Debby explained that she had left N.D. with Boysen while she ran to the grocery store and, when she returned, N.D. had made this allegation. D.D. then called N.D. into the room and asked her what had happened. N.D. explained that she and A.B., another child at the Boysens’ daycare, were playing outside in back and were helping Boysen build a pig fence. At one point, Boysen took them over by a pile of sticks, laid down on a log, and took out his penis. A.B. rubbed Boysen’s penis up and down with her hands while N.D. rubbed Boysen’s chest. Boysen undid the side buttons on N.D.’s overalls and slid his hand into her pants and inside of her underpants. When she tried to pull away, he held her so she could not leave. When N.D. finished explaining to her mother what had happened, Boysen looked at D.D., then at Debby, and then at N.D. and said, “[Y]ou know that’s not true.” Report of Proceedings at 38. N.D. then looked at Boysen and said, “[Y]ou know that it’s the truth and you’re the one who’s lying.” Report of Proceedings at 38. After D.D. took N.D. out of the room, D.D. asked Boysen if there was an innocent explanation. He told D.D. that when he had reached for a tool, he may have accidentally touched her private area. On March 8, 1999, Nona Holm, N.D. and D.D.’s family therapist, interviewed N.D. N.D. made the disclosures set out above. Christine Kaitlyn, a clinical therapist and forensic interviewer with St. Peter Hospital, also interviewed N.D. N.D. made similar disclosures to Kaitlyn: explaining that it happened outside, that she rubbed Boysen’s stomach, that A.B. rubbed his penis, that Boysen unbuttoned her pants and placed his hand inside her underpants touching her vagina, and that she accidentally touched his penis when her arm moved. She also explained that A.B. had denied that anything had happened. The trial court held a child competency/child hearsay hearing after which it entered the following findings of fact and conclusions of law:

FINDINGS OF FACT AS TO ALLEGED VICTIM
I. The alleged victim in this matter, N.D., has the ability to form impressions of events as to the time frame at issue herein.

II. The alleged victim in this matter, N.D., has the ability to appreciate the difference between the truth and a lie and further has the ability to appreciate the importance of being truthful in a court setting.

III. The alleged victim in this matter, N.D., has a present recollection of past events that are consistent with her prior recollections.

IV. The alleged victim in this matter, N.D., appears competent and otherwise available to testify in the state’s case in chief at this time.

FINDINGS OF FACT AS TO RCW 9A.4[4].120 CRITERIA
I. There is nothing in the record suggesting any apparent motive to lie on the part of the alleged victim.

II. The character of the alleged victim is appropriate to her age.

III. More than one person heard the initial proffered statements of the alleged victim.

IV. There is nothing in the record indicating any suggestive questioning by the mother of the alleged victim, Nona Holm or Christine Kaitlyn.

V. The alleged victim’s initial statements were made on March 6, 1999, a Saturday, the same day as and in very close temporal proximity to the alleged events. The alleged victim’s subsequent statements to Nona Holm and Christine Kaitlyn, on March 8, 1999 and March 16, 1999 were well within acceptable time frame limits.

VI. The alleged victim will be available for cross-examination in that it is expected and anticipated that the alleged victim will testify at trial as to the facts underlying the alleged offense.

VII. The possibility of the alleged victim’s recollection being faulty is remote given the timing of the alleged victim’s initial statement. Such recollection will be able to be tested during her testimony at trial.

VIII. There is no reason in the record to believe that the alleged victim misrepresented the defendant’s actions.

The court having made the findings as set forth above, it is hereby: ORDERED that the statements covered by RCW 9A.44.120 of the alleged victim to her mother, Nona Holm and Christine Kaitlyn are admissible into evidence at trial, provided, however, that the alleged victim first testify as to the acts underlying the alleged offense herein. Clerk’s Papers at 30-32. N.D. testified fully[2] to the events and was cross examined[3] at trial. The jury found Boysen guilty of first degree child molestation and, later, the sentencing court found that Boysen had abused a position of trust and it imposed an exceptional 120-month sentence. The calculated standard range sentence was 67-89 months.

Analysis
A. Child Hearsay Even though he assigns error to the competency findings, Boysen does not argue in the body of his brief that N.D. was incompetent when the events occurred, when she made her statements, nor at the time of trial.

Further, our review of the record shows that N.D. was competent at the time the events occurred, at the time she made her statements, and at the time of trial. See State v. Karpenski, 94 Wn. App. 80, 99-106, 971 P.2d 553 (1999) (explaining competency). Boysen contends that the trial court improperly admitted N.D.’s statements to her mother, Holm, and Kaitlyn under the child hearsay exception. The child hearsay exception has three parts: sexual contact, reliability, and corroboration. The statutory exception provides: A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness:

PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act. RCW 9A.44.120. Part One: Description of Sexual Contact It is undisputed that N.D.’s statements described an act of sexual contact on N.D. Part Two: Reliability To satisfy this portion of the exception, the court must find that the statements substantially meet the nine Ryan[4]
reliability factors. State v. Griffith, 45 Wn. App. 728, 738-39, 727 P.2d 247 (1986).

We will reverse a reviewing court’s application of this test if it abused its discretion. State v. Swan, 114 Wn.2d 613, 790 P.2d 610
(1990), cert. denied, 498 U.S. 1046 (1991); Karpenski, 94 Wn. App. at 101-02. The nine Ryan factors are:

(1) Does the declarant have a motive to lie?

(2) What is the declarant’s general character for veracity?

(3) Did more than one person hear the statement?

(4) Was the statement spontaneous?

(5) When did the declarant make the statement and what is the declarant’s relationship to the witness?

(6) Does the statement contain express assertions about past facts?

(7) Could cross-examination show the declarant’s lack of knowledge?

(8) Is the possibility of faulty recollection remote?

(9) Were the circumstances surrounding the statement conducive to reliability?

Ryan, 103 Wn.2d at 176; In re Dependency of A.E.P., 135 Wn.2d 208, 956 P.2d 297 (1998) (reaffirming use of Ryan factors). Each of these factors is both non-exclusive and nonessential. Karpenski, 94 Wn. App. at 110-11.

(1) Motive to Lie There was no evidence that N.D. had a motive to lie.

(2) General Character of Declarant for Veracity There was no evidence that N.D. had a reputation for not telling the truth.

(3) More Than One Person Heard Statement N.D. made her statements to Debby, her mother D.D., Boysen, Holm, and Kaitlyn.

(4) Spontaneity of Statement

There is no evidence that N.D. made her statements as a result of leading or suggestive questions. To the contrary, her disclosure to Debby was without suggestion and Debby’s account of N.D.’s reaction of withdrawing and crying show spontaneity. D.D.’s testimony and the transcripts of Holm’s and Kaitlyn’s interviews also show little or no evidence of coaching or suggestive questions. See Swan, 114 Wn.2d at 649
(statements child made in response to questions are spontaneous as long as the questions do not suggest who abused the child or supply the child with details); State v. McKinney, 50 Wn. App. 56, 62-63, 747 P.2d 1113
(1987), review denied, 110 Wn.2d 1016 (1988); see also State v. Carlson, 61 Wn. App. 865, 872, 812 P.2d 536 (1991), review denied, 120 Wn.2d 1022 (1993) (discussing spontaneity).

(5) Timing and Relationship Between Declarant and Witness N.D. made her disclosure to Debby immediately after the event occurred. She disclosed to her mother, D.D., within hours, to Holm within two days, and to Kaitlyn 10 days afterward. Nothing in her relationship to any of these three suggests that N.D. had a motive to fabricate.

(6) Express Assertions About Past Fact Under RCW 9A.44.120, as opposed to statements against penal interest or a coconspirator’s statement, such assertions have little importance because child hearsay usually contains such statements. See Karpenski, 94 Wn. App. at 109 n. 125.

(7) Availability of Cross-Examination N.D. testified at trial and was thus available for cross-examination.

(8) Possibility of Faulty Recollection The possibility of faulty recollection is remote here because N.D. made her disclosure within minutes and days of being sexually molested.

(9) Circumstances Conducive to Reliability Boysen contends that the circumstances were not conducive to reliability because N.D. told Holm that Boysen had molested her inside the house in a brown chair but told Kaitlyn, a trained forensic interviewer, that Boysen had only molested her once. He claims that all the interviewers knew about N.D.’s allegations before asking questions and therefore had preconceived ideas that influenced their questioning. Finally, he contends that the use of multiple interviews with various interviewers should have been avoided. Despite these concerns, the circumstances here support reliability. Not only was N.D. willing to speak directly with Debby about what happened, but when Boysen, a 57-year-old adult, accused her of telling a lie, she, a six-year-old child, looked at him and said “you know that it’s the truth and you’re the one who’s lying.” Report of Proceedings at 38. See also N.D.’s testimony at trial (Report of Proceedings at 182).

Further, N.D.’s accounts consistently related what happened to her outside. That she disclosed additional instances to Holm but not to Kaitlyn does not show that her consistent accusation about what occurred outside was any less reliable.

Finally, Boysen’s explanation that he may have accidentally touched N.D.’s vagina when reaching for a tool is simply incredible. The circumstances are such that N.D.’s statements were reliable. Part Three: Corroboration N.D. testified at trial, corroboration is unnecessary.

CONCLUSION
In summary, the trial court properly admitted N.D.’s statements. The record supports the trial court’s findings of fact and support its conclusion that the testimony was admissible. B. Exceptional Sentence. Boysen next challenges the sentencing court’s reason for imposing an exceptional sentence, claiming it was both factually and legally incorrect. The court made the following finding and conclusion:

I. FINDINGS OF FACT
The court finds that the defendant abused a position of trust which existed between himself and the victim in that he was in a position of being the only adult caretaker of the victim at the time of the offense.

II. CONCLUSIONS OF LAW
The defendant’s abuse of the position of trust between himself and the victim is a substantial and compelling reason justifying an exceptional sentence herein, considering the purposes of chapter 9.94A RCW. Clerk’s Papers at 11. Boysen contends that there was no evidence that Boysen was N.D.’s caretaker or that he used a position of trust to facilitate committing the offense.

We review to determine whether the finding of fact is clearly erroneous. State v. Pryor, 115 Wn.2d 445, 450, 799 P.2d 244 (1990) (discussing standard of review). There was testimony presented that Debby had left to go to the store and that Boysen was the adult watching the children. Thus, he was in charge and in a position of trust with the victim. Boysen argues that even if he was in a position of trust, he did not use that position of trust to facilitate the crime, citing State v. Vermillion, 66 Wn. App. 332, 832 P.2d 95 (1992), review denied, 120 Wn.2d 1030 (1993). There, the court explained: When analyzing abuse of trust, the focus is on the defendant: Was the defendant (1) in a position of trust and (2) was the position used to facilitate the commission of the offense? Whether the defendant is in a position of trust depends on the length of the relationship with the victim, the trust relationship between the primary care giver and the perpetrator of a sexual offense against a child, the vulnerability of the victim to trust because of age, and the degree of the defendant’s culpability.

Although evidence at trial established Mr. Vermillion persuaded the victims to place their trust in him by misleading them as to his identity and personal history, the persuasion inheres in his sophistication and planning. Here, Mr. Vermillion created a condition of trust and confidence, but cannot be said to have been in a position of trust: the length of his relationship with the victims was brief, even fleeting; he was not a care giver; the victims were not particularly vulnerable to trust; and there was no degree of culpability greater than that involved in the commission of the crime itself. The trial court’s reasons, although supported by the record, do not justify an exceptional sentence based on abuse of trust. Vermillion, 66 Wn. App. at 347-48. (Footnotes omitted.) Abuse of a position of trust is a statutory aggravating factor. See RCW 9.94A.390(2)(d)(iv). But unlike Vermillion, Boysen and his wife were N.D.’s daycare provider and had been for several months See State v. Grewe, 117 Wn.2d 211, 219, 813 P.2d 1238 (1991) (victim knew defendant for about four months). Though N.D. was only six years old at the time, she referred to him as Ron and apparently trusted him enough to leave the house to help him work on a pig fence away from the Boysens’ home. He was her sole caretaker while his wife was away and, as such, in charge of her care and safety. The court did not err in finding that Boysen was in, and abused, a position of trust. Also, contrary to Boysen’s claim, the State did not have to show that Boysen used his position of trust to facilitate the offense: J.S. also argues the record does not support the conclusion that he used the trust relationship, if indeed one existed, in order to commit the crime. The State correctly argues, however, that there need not be direct evidence that the position of trust was relied upon to perpetrate the crime. Thus, if the fact of the step sibling relationship suffices to establish a trust relationship, it necessarily follows that but for that relationship, J.S. would not have been able to abuse B. See State v. P.B.T., [67 Wn. App. 292, 301, 834 P.2d 1051 (1992), review denied, 120 Wn.2d 1021 (1993)] (where appellant, as the senior patrol leader on Boy Scout expedition, was in a position of trust in relation to the victim, the evidence logically led to the conclusion that appellant abused the position of trust in order to commit the crime of second degree child molestation). State v. J.S., 70 Wn. App. 659, 666, 855 P.2d 280 (1993). Similarly here, but for Boysen’s relationship with N.D., he would not have been able to molest N.D.C. Apprendi. Boysen next argues that, under Apprendi, the State needed to prove beyond a reasonable doubt the abuse-of-a-position-of-trust-exceptional-sentence factor. He argues that because the jury never addressed this issue, his sentence far exceeds “the punishment to which [he] is exposed solely under the facts found by the jury.” United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). But Boysen’s claim rests on a faulty premise. In Apprendi, the Court declared that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.

Our Supreme Court recently examined the Apprendi decision in face of a claim similar to Boysen’s in State v. Gore, 143 Wn.2d 288, 21 P.3d 262
(2001). There, the Court held that, as long as an exceptional sentence did not exceed the statutory maximum for the crime committed, the State need only prove the supporting factors by a preponderance of the evidence: Accordingly, the factual determinations that support reasons for exceptional sentences upward fall within the McMillan[5] type of case and not the Apprendi type. Aggravating factors neither increase the maximum sentence nor define a separate offense calling for a separate penalty. The state statutory scheme permits a judge to impose an exceptional sentence — still within the range determined by the Legislature and not exceeding the maximum — after considering the circumstances of an offense, and, as McMillan and Apprendi indicate, it may do so without the factual determinations being charged, submitted to a jury, or proved beyond a reasonable doubt. Gore, 143 Wn.2d at 314. Here, Boysen’s maximum sentence for his offense was life in prison. The sentencing court imposed an exceptional sentence of 120 months of incarceration. Thus, his sentence is less than the statutory maximum, it did not exceed the trial court’s jurisdiction, and Apprendi does not apply. 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.

We concur:

QUINN-BRINTNALL, J.