STATE v. BROWN, 20156-2-III (Wash.App. 9-17-2002)

No. 20156-2-III.The Court of Appeals of Washington, Division Three. Panel Nine.
Filed: September 17, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Spokane County, No. 008010920, Hon. Michael E. Donohue, April 24, 2001, Judgment or order under review.

Counsel for Appellant(s), Scott R. Hill, 703 N Monroe St, Spokane, WA 99201.

Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.

Andrew J. Metts III, Deputy Prosecuting Attorney, 1100 W Mallon Ave, Spokane, WA 99260-0270.

FRANK L. KURTZ, J.

Michael Brown was convicted for the crime of first degree child molestation. At his bench trial, the court considered both the testimony of the seven-year-old victim and hearsay statements that she made to her mother and a social worker. Mr. Brown appeals. He contends the trial court erred by finding the victim competent to testify and by admitting her hearsay statements. He further contends the court erred by admitting statements that Mr. Brown made during a custodial interrogation.

Finally, Mr. Brown contends he was convicted based upon insufficient evidence and he was denied effective assistance of counsel. We consider each of Mr. Brown’s assignments of error and reject them. Mr. Brown’s conviction is affirmed.

FACTS
In May 2000, Rod T. asked his nephew, Michael Brown, to babysit his daughters, S.T. and L.T., and their friend, J.C. Mr. Brown agreed to babysit the children at Mr. T.’s home, while Mr. T. and his wife, Teresa T., went to dinner. The next day J.C.’s mother called Ms. T. and told her that something had happened between L.T. and Mr. Brown. In response to this call, Ms. T. questioned L.T. Seven-year-old L.T. responded that she did not want to talk about it and began to cry.

Over the next three days, L.T. told her mother that while Mr. Brown was babysitting her, he put his hand down her pants and made her touch his penis. L.T. said that Mr. Brown threatened to hurt her, and when she tried to get away from him, Mr. Brown threw her on the couch and laid on her. Ms. T. notified the police.

Karen Winston, a social worker, interviewed L.T. and learned from L.T. that Mr. Brown had touched L.T. with a finger inside her body and under her clothes. L.T. said that the touch hurt, but when she told Mr. Brown to stop, he would not.

Dr. Deborah Harper, a consulting pediatrician with Kaycee Family Partners, did a physical examination of L.T. and discovered that L.T.’s hymen was almost completely missing. Dr. Harper determined that this was an abnormal finding for a girl L.T.’s age. She also determined that the injury could have been caused by the penetration of an adult finger and would have been very painful for L.T.

Deputy Sheriff Detective David Skogen went to Mr. Brown’s house and questioned him. Mr. Brown’s mother was present. Detective Skogen told Mr. Brown he was not under arrest and could end the conversation at any time. Mr. Brown told Detective Skogen that he did not touch L.T. in any kind of sexual way. Mr. Brown then asked what kind of difference it would make if he did admit to touching her. Mr. Brown said he did not do anything, but if it meant the difference between prison and treatment, he would say that he did. Mr. Brown was charged with one count of first degree child molestation.

Prior to trial, L.T. was the subject of a competency hearing. At that hearing, L.T. demonstrated her ability to distinguish truth from falsehood by answering hypothetical questions. Furthermore, she indicated that she understood that it was not a good thing to lie and she promised to tell the truth. The court determined that L.T. was competent to testify at the trial.

In addition to the competency hearing, the court held hearings regarding the statements made by Mr. Brown and L.T. After a hearing, the court determined that the statements made by L.T. to her mother and the social worker were reliable and admissible. Likewise, after a CrR 3.5 hearing, the court found that Mr. Brown’s statements to Detective Skogen were admissible as the statements were made during a noncustodial interrogation. Consequently, it was not necessary to advise Mr. Brown of his Miranda[1] rights.

After a bench trial, Mr. Brown was found guilty as charged. This appeal follows.

ANALYSIS
L.T.’s Hearsay Statements. Mr. Brown contends that the court erred by admitting the hearsay statements made by L.T. to her mother and Ms. Winston. RCW 9A.44.120 establishes a hearsay exception for certain statements made by children under age 10. In general, it allows such hearsay 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. We affirm if, taking the record in the light most favorable to the State, the trial court reasonably could have found it `to be more likely true than not true’ that the evidence shows sufficient indicia of reliability and corroboration. State v. Karpenski, 94 Wn. App. 80, 105-06, 971 P.2d 553 (1999).

Under RCW 9A.44.120, a trial court must consider `not only the hearsay statement itself, but also indicia of reliability that show, as of the time [each] statement was made, its probable reliability.’ Karpenski, 94 Wn. App. at 108. When assessing reliability, a trial court may look to nine nonexclusive circumstances, often called the `Ryan’ factors, which include the following:

`(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 . . . are such that there is no reason to suppose the declarant misrepresented [the] defendant’s involvement.

State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984) (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982) and citing Dutton v. Evans, 400 U.S. 74, 88-89, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)). Some courts have questioned the usefulness of factors 6 through 9. See, e.g., State v. Leavitt, 111 Wn.2d 66, 75, 758 P.2d 982 (1988); Karpenski, 94 Wn. App. at 109-11. Further, in this case, the cross-examination factor is irrelevant because it applies only when the child declarant is unavailable to testify at trial. L.T. testified at trial.

Mr. Brown argues that L.T.’s statements were not made spontaneously, but in response to questioning by her mother and Ms. Winston. For purposes of child hearsay analysis, statements are spontaneous so long as they are made in response to questions that are not leading and do not suggest an answer. In re Dependency of S.S., 61 Wn. App. 488, 497, 814 P.2d 204 (1991). When considering spontaneity, the court must consider `the entire context in which the child [made] the statement.’ State v. Henderson, 48 Wn. App. 543, 550, 740 P.2d 329 (1987). Here, there was no evidence that L.T.’s disclosures were prompted by leading or suggestive questioning. Ms. T. asked L.T. what happened with her and Mr. Brown, but she did not suggest what Mr. Brown did. L.T. voluntarily came to Ms. T. over the next three days and told her what happened. Although the information was in response to the initial question, L.T.’s answer was spontaneous. Likewise, Ms. Winston used proper interviewing techniques and did not ask L.T. leading questions. She asked open-ended questions and allowed L.T. to volunteer information in response. The court did not err in finding L.T.’s statements were spontaneous.

Mr. Brown argues that L.T.’s recollection is faulty because she made statements to Ms. Winston that conflicted with some of her testimony at trial. For purposes of determining reliability, the relevant period in which the declarant’s recollection is to be tested is not the time between the statement and the time of trial, but rather the time between the statement and the alleged act. Leavitt, 111 Wn.2d at 75. The possibility of faulty recollection is remote here because L.T. made her disclosures within days or weeks of being sexually molested.

Mr. Brown also argues that there was reason for L.T. to misrepresent the facts because Mr. Brown and Ms. T. had an ongoing conflict and L.T.’s knowledge of this conflict brings into question L.T.’s desire to misrepresent the facts to please her mother. However, the record does not show that L.T. knew of any conflict between Mr. Brown and her mother. Also, L.T. was reluctant to tell her mother about the molestation and did not seem to think it would please her mother.

The Ryan factors were substantially satisfied and the court did not abuse its discretion in finding the hearsay admissible.

L.T.’s Competency. Mr. Brown contends that L.T. was incompetent to testify at the trial. A person is incompetent to testify if she appears `incapable of receiving just impressions of the facts, respecting which [she is] examined, or of relating them truly.’ RCW 5.60.050(2). The trial court has the discretion to determine a witness’s competency. On appeal, we give great deference to the trial court’s decision regarding child competency and its findings and conclusions “will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion.” State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990) (quoting State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967)).

Under the established test set forth in Allen, a child witness demonstrates competency to testify by showing: `(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.’ Allen, 70 Wn.2d at 692.

The court applied the Allen factors and found that (1) L.T. was taught that it was important to always tell the truth and understood her obligation to tell the truth on the stand; (2) L.T. was seven years old at the time of the incident and had the mental capacity to receive an accurate impression of the events; (3) L.T. could remember other things that occurred last year like Christmas, where she lived, and her teacher, so her memory was sufficient to retain an independent recollection of events; (4) L.T. was able to articulate to the court these events that happened in the past; and (5) L.T. was able to understand simple questions that were asked of her. It is necessary to place great reliance on the court’s judgment in assessing the competency of a child witness because the court is in the best position to assess the body language, the manner of speaking, and all the intangibles that are significant in evaluation, but not reflected in the written record. State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810 (1990). L.T. demonstrated by her answers to the court, an ability to receive just impressions of and accurately relate events that occurred at least contemporaneously with the incident at issue. The court did not abuse its discretion by finding L.T. competent to testify.

Mr. Brown’s Statements. Mr. Brown contends it was error for the court to admit the statements he made to Detective Skogen because they were made during a custodial interrogation and he was not given a Miranda warning. Before police officers subject a suspect to custodial interrogation, they must inform him or her of certain Fifth Amendment rights, including the right to an attorney and the right to remain silent. State v. Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999) (citing Miranda, 384 U.S. at 479), review denied, 139 Wn.2d 1022 (2000). Miranda warnings are designed to protect a defendant’s right not to make self-incriminating statements while in police custody. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986). A juvenile has the same rights against self-incrimination as an adult. See RCW 13.40.140(8).

An investigative encounter with a suspect supported by reasonable suspicion does not require Miranda warnings. State v. Hilliard, 89 Wn.2d 430, 434-36, 573 P.2d 22 (1977). `Mere suspicion, before the facts are reasonably developed, is not enough to turn the questioning into a custodial interrogation.’ Id. at 436; see also State v. Short, 113 Wn.2d 35, 40-41, 775 P.2d 458 (1989). A Miranda warning is not required when the questioning is part of a routine, general investigation in which the defendant voluntarily cooperated but is not yet charged. Short, 113 Wn.2d at 41.

Mr. Brown’s statements were made to Detective Skogen during a noncustodial interrogation. Detective Skogen interviewed Mr. Brown in his own home, with his mother present, as part of his general investigation.

The detective told Mr. Brown that he was not under arrest and he could end the conversation at any time. Mr. Brown was not in custody and was free to leave at any time. A Miranda warning was not required and the court did not err by admitting the statements.

Assistance of Counsel.

Mr. Brown contends that if this court finds that his counsel had an obligation to object to the child hearsay after the court held the Ryan hearing, then counsel’s failure to object was incompetence of counsel. A strong presumption of competent representation attaches to the review of an ineffective assistance claim. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). To establish ineffective assistance of counsel, Mr. Brown must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).

Deficient performance is shown if counsel’s conduct fell below an objective standard of reasonableness. Prejudice is met if, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding would have been different. Pirtle, 136 Wn.2d at 487.

`If defense counsel’s trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the defendant did not receive effective assistance of counsel.’ State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Mr. Brown must therefore show `an absence of legitimate strategic reasons to support the challenged conduct.’ State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831 (1998) (citing State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)).

Because the trial court made a final ruling on the admissibility of the child hearsay evidence, Mr. Brown’s counsel was not required to object again to preserve the evidentiary issue for appeal. State v. Powell, 126 Wn.2d 244, 256-57, 893 P.2d 615 (1995) (citing State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456 (1984)). Mr. Brown did not receive ineffective assistance of counsel.

Sufficiency of the Evidence.

Mr. Brown contends that the evidence is insufficient to support the finding that he is guilty of first degree child molestation. He argues that there was no evidence that L.T. bled or was in pain. Evidence is sufficient to support a conviction if we can determine, after viewing the evidence in the light most favorable to the State, that any rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). We draw all reasonable inferences in the State’s favor and interpret the evidence most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial and direct evidence are considered equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

To find Mr. Brown guilty of first degree child molestation, the court had to find that he had sexual contact with another who is less than 12 years old and not married to him and he is at least 36 months older than the victim. RCW 9A.44.083. `Sexual contact’ is defined as `any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party.’ RCW 9A.44.010(2).

There was testimony that Mr. Brown put his finger inside L.T.’s vagina and it hurt her. There was also testimony that L.T. could have bled less than a teaspoonful. This small amount of bleeding could have gone unnoticed. The evidence was sufficient to find Mr. Brown guilty of first degree child molestation.

Mr. Brown’s conviction is affirmed.

The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR: KATO, A.C.J., SWEENEY, J.