STATE v, GOODALL, 50263-8-I (Wash.App. 5-5-2003)

No. 50263-8-IThe Court of Appeals of Washington, Division One.
Filed: May 5, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 01-1-04895-0 Judgment or order under review Date filed: 04/08/2002

Counsel for Appellant(s) Oliver Ross Davis WA Appellate Project Cobb Bldg 1305 4th Ave Ste 802 Seattle, WA 98101-2402

Jason Brett Saunders WA Appellate Project Cobb Bldg 1305 4th Ave Ste 802 Seattle, WA 98101-2402

Counsel for Respondent(s) Daniel Jason Clark King Co Pros Ofc Appellate Unit 1850 Key Tower 700 5th Ave Seattle, WA 98104

PER CURIAM.

Samuel Goodall appeals his conviction for first degree rape of a child. He challenges the trial court’s decision that his eight-year old son, T.G., was competent to testify. He also challenges the court’s ruling that out of court statements made by T.G. to his mother and to a professional interviewer were admissible. The trial court did not abuse its discretion in determining that T.G. was competent to testify. And even though T.G. could not clearly identify when the rape occurred, the court was able to ascertain the time frame of the incident through T.G.’s statements together with other evidence. The trial court also did not abuse its discretion in admitting T.G.’s hearsay statements. We affirm.

FACTS
In August 2000, a teacher at John Muir Elementary School overheard T.G.’s younger brother, M.G., tell another child that he “saw his dad make his brother suck his dick”.[1] The school notified T.G.’s mother, Sherri Berg, and Child Protective Services (CPS). That afternoon after the school contacted her, Berg sat down with T.G. and M.G. and asked them about what was said. Berg assured T.G. that he would not be punished. T.G. began crying and told Berg it happened when he was six years old at the home of Goodall’s step-mother, Karen. T.G. said Goodall first tried to make his brother, M.G., perform oral sex. When he would not, Goodall spanked M.G. and put him to bed. T.G. said that his father then forced him to have oral intercourse. According to Berg, the incident must have occurred in the summer of 1999. Berg said that the last time the children spent the night with Goodall at Karen’s house was in June 1999, when T.G. was six-years old. On that occasion because Berg had to attend a funeral she dropped the children off at Goodall’s aunt’s house and picked them up the next day at Karen’s house.[2]

A few days after talking to T.G., Berg reported the incident to CPS and in September 2000 she reported it to the police. Sometime later, while riding in the car, T.G. spontaneously said to Berg that Goodall was a “liar” because he “said he was going to give me twenty dollars for doing that, and he never did.”[3] In December of 2000, T.G. was interviewed by a professional child interviewer, Nicole Farrell. T.G. told Farrell that Goodall “made me stick my mouth over his private.”[4] T.G. also said Goodall told him “If you tell, I’ll whup you so hard.”[5]

The State charged Goodall with first degree rape of a child. After a lengthy pretrial hearing, the trial court ruled that T.G. was competent to testify and that T.G.’s statements to his mother and Farrell were admissible. After a four-day trial, the jury convicted Goodall and he was sentenced within the standard range.

COMPETENCY
Goodall challenges T.G.’s competency as a witness. He claims that T.G. was an incompetent witness because he could not place the incident of alleged abuse in time. If the trial court cannot ascertain when the alleged abuse occurred, it cannot determine whether the child is competent or whether he had the mental ability at the time of the alleged occurrence to receive an accurate impression of the occurrence. In re Dependency of A.E.P., 135 Wn.2d 208 (1998).

A young child is competent to testify as a witness at trial if that child has (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence to receive an accurate impression of the matter about which the witness is to testify; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words the witness’ memory of the occurrence; and (5) the capacity to understand simple questions about it. State v. C.J., 148 Wn.2d 672, 63 P.3d 765, 770
(2003) (citing State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990).

We review a trial court’s competency determination for an abuse of discretion. Swan, 114 Wn.2d at 645. 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 observe 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). Goodall relies on In re Dependency of A.E.P. In A.E.P. the Supreme Court held the trial court abused its discretion by permitting a child to testify where “there [was] simply no information in the record which help[ed] narrow the time window of when the event occurred.” A.E.P., 135 Wn.2d at 225. Goodall points out that T.G.’s statements were inconsistent with respect to when the incident occurred. He told his mother that it happened when he was six. In his interview with Farrell, he said that it happened on Wednesday, July 27 but did not give a year.[6] At trial, T.G. could not say when the incident occurred. But unlike A.E.P, there was evidence before the trial court about the time frame of the alleged event. The court particularly focused on T.G.’s statement that the incident happened when he was six and at Karen’s house. Berg testified that T.G. and M.G. only stayed with Goodall at Karen’s house on the one occasion during the summer of 1999 when she attended a funeral and dropped the boys off at Goodall’s aunt’s house and picked them up at Karen’s house. This evidence placed the event within the time frame of the charging period, from June 1, 1999 through August 1, 1999.

A child may demonstrate mental competency at the time of the occurrence by showing an ability “to receive just impressions of and accurately relate events which occurred at least contemporaneously with the incidents at issue”. State v. Przybylski, 48 Wn. App. 661, 665, 739 P.2d 1203 (1987).

A witness’s memory is better tested against objective facts known to the court, rather than the disputed facts of the case. Przybylski, 48 Wn. App. at 665. Thus, if the child can testify about contemporaneous events, the court can infer the child is competent to testify about the abuse incidents as well. A.E.P., 135 Wn.2d at 225.[7] Here, the court found that T.G. was able to relate contemporaneous events accurately:

[T.G.] was able to relate the names of each teacher, that he had in kindergarten, first grade, second grade and the third grade. He was able to tell the Court who his best friends were at each specific point in time, whether it was kindergarten, first, second or third grade. He could tell when they were in class with him and when they weren’t; when they lived somewhere else, like when Daikra moved away. He could tell us when Tyrell was his best friend and when he wasn’t his best friend. He was able to relate to the Court what activities were engaged in in kindergarten and at each grade level. If I didn’t say it before, he related the names of each teacher, especially in kindergarten, which would have been the period that terminated just prior to the summer of 1999. He was able to speak about The Gingerbread Man, the popsicle sticks, the stick figures, the aRt and that kind of information.[8]

From these descriptions of contemporaneous events, the court concluded T.G. had the capacity at the time of the alleged occurrence to receive an accurate impression of it. Based on our review of the record, the trial court did not abuse its discretion in reaching this conclusion.

Goodall also challenges the court’s finding that T.G. understood the obligation to tell the truth in court, because on cross examination, he answered that he did not know what would happen if he lied in court. But T.G.’s testimony and the court’s finding that T.G. understood the obligation to tell the truth was not so limited:

Both to the Court and to Ms. Farrell, [T.G.] endorsed the value of telling the truth. To both Ms. Farrell and the Court, [T.G.] stated that it was better to tell the truth. He stated in court that if you were already in trouble and you told a lie, you would get in more trouble, and then he promised to tell the truth.[9] The record supports the trial court’s finding that T.G. understood the obligation to tell the truth and promised to tell the truth on the witness stand. See State v. Avila, 78 Wn. App. 731,736, 899 P.2d 11 (1995) (child’s affirmative answer when asked if it was important to tell the judge the truth was sufficient to support the court’s conclusion that the witness was competent). The trial court did not abuse its discretion in making this finding.

HEARSAY STATEMENTS
Goodall also assigns error to the trial court’s decision to admit the out of court statements made by T.G. to his mother and to Farrell.

RCW 9A.44.120 governs the admissibility of a child victim’s hearsay statements:

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.

A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

Washington courts have identified factors that are applicable to determining reliability under RCW 9A.44.120:

1. Whether the declarant, at the time of making the statement, had an apparent motive to lie;
2. Whether the declarant’s general character suggests trustworthiness;
3. Whether more than one person heard the statement;
4. The spontaneity of the statement;
5. Whether trustworthiness is suggested from the timing of the statement and the relationship between the declarant and the witness;
6. Whether the statement contains express assertions of past fact;
7. Whether the declarant’s lack of knowledge could be established by cross-examination;
8. The remoteness of the possibility that the declarant’s recollection is faulty; and 9. Whether the surrounding circumstances suggest that the declarant misrepresented the defendant’s involvement.

State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197; Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)).

The trial court considers the factors as a whole; no single factor is decisive. State v. Young, 62 Wn. App. 895, 902, 802 P.2d 829 (1991). “The trial court is necessarily vested with considerable discretion in evaluating the indicia of reliability.” Swan, 114 Wn.2d at 648. Accordingly, we review the court’s decision to admit hearsay evidence for abuse of discretion. Swan, 114 Wn.2d at 652. A trial court abuses its discretion only when its decision is manifestly unreasonable or is based on untenable reasons or grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Goodall specifically challenges the court’s finding that T.G. did not have a motive to lie, pointing to T.G.’s testimony that he saw Goodall hit his mother on one occasion and was angry about it. But the trial court considered this testimony and concluded there was no ongoing tension between T.G. and his father. The court found T.G.’s testimony credible that he got along well with his father and enjoyed visiting him. The trial court is in the best position to evaluate credibility, therefore we defer to the trial court on the issue of credibility. State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107
(2000). Goodall also contends that the court erred in concluding that T.G.’s statements to Berg and Farrell was spontaneous, arguing that the statements were made in response to suggestive questioning. As long as the questions are not suggestive and do not supply the child with details, statements made in response to questions are spontaneous. Swan, 114 Wn.2d at 649. After considering the nature of Berg’s and Farrell’s questions, the trial court specifically found the questions were not leading, but rather, open-ended, and did not suggest answers. The record supports this conclusion.

Goodall also claims that the court’s admission of the evidence was improper because the court misinterpreted one portion of the fifth factor. This factor looks at the timing of the statements and the relationship between the child and those to whom hearsay statements are made. In addressing this factor the court described the relationship between T.G. and Goodall rather than the relationship between T.G. and Berg and Farrell. However, contrary to Goodall’s argument, the court’s failure to make explicit findings about the relationship between T.G. and the two witnesses, Berg and Farrell, does not necessarily lead to the conclusion that the court erred in admitting the evidence. A child’s hearsay statement may be reliable even if it does not satisfy every Ryan factor. Swan, 114 Wn.2d at 652. Goodall presents no argument as to why a proper analysis of this part of the fifth factor would have altered the court’s decision, and from our review of the record we conclude it would not have.

In addressing the propriety of the questions to T.G., the court found that the evidence demonstrated that Berg’s concern was for the child, that her motivation was to discover what really happened, and that she did not have a motive to lie. T.G. did not know Farrell and the court described her as “neutral” which the court concluded enhanced the reliability of the statements to her.10 Finally, Goodall claims that in analyzing the ninth factor, whether circumstances suggest the declarant misrepresented the defendant’s involvement, the court erred because it looked only at young children in general, not T.G., and should have analyzed T.G.’s motive to lie. But the court did address whether T.G. had a motive to lie. And the record reveals that in considering this factor, the court relied specifically on T.G.’s testimony and statements.

The trial court carefully and thoroughly considered each of the factors in its determination that the hearsay evidence was reliable. The court did not abuse its discretion in admitting T.G.’s out of court statements to Berg and Farrell.

We affirm.

COLEMAN and BECKER, JJ., concur.