STATE OF WASHINGTON, Respondent v. JOHNNIE LEE HILL, Appellant.

No. 20342-5-III.The Court of Appeals of Washington, Division Three. Panel Ten.
Filed: October 29, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of Franklin County, No. 001502540, Hon. Vic L. Vanderschoor, June 19, 2001, Judgment or order under review.

Counsel for Appellant(s), Bevan J. Maxey, Maxey Law Offices P.S., W. 1835 Broadway, Spokane, WA 99201.

Counsel for Respondent(s), James F. Bell, 428 W Shoshone, Pasco, WA 99301.

KENNETH H. KATO, J.

Johnnie Lee Hill was convicted of second degree child rape. Claiming the trial court erred by admitting hearsay statements as excited utterances, Mr. Hill appeals. He also contends the evidence was insufficient to support his conviction. We affirm.

In July 2000, S.C., then twelve, visited Chryel Dennis, her aunt, and Jihad Dennis, her cousin, in Pasco, Washington. Johnnie Hill, Ms. Dennis’ boyfriend, lived with them at the time. On the evening of July 26, 2000, S.C. stayed up late with Jihad and a friend. S.C. eventually fell asleep in Jihad’s room. About 5:00 a.m., S.C. was awakened by Mr. Hill, who picked her up and carried her to a couch in the living room. Shortly thereafter, he moved her to the den. S.C. went back to sleep, but was again awakened by Mr. Hill, who had his finger in her vagina. He kissed her on the cheek and mouth and attempted to put his penis inside her vagina. As an excuse to get away, she told Mr. Hill that she had to use the bathroom. She went to the bathroom and then to Jihad’s room to try to wake him up. However, Mr. Hill appeared before she was able to do so. Mr. Hill then tried to get her to go back to the den. She went instead into the kitchen and told him, `I don’t want you to do this.’ Report of Proceedings (RP) at 22. S.C. then laid down in the living room and pretended to be asleep. Before Mr. Hill left for work around 6:00 a.m., he gave S.C. ten dollars and told her not to tell her aunt or cousin. As soon as Mr. Hill left, S.C. woke Jihad and told him she had been raped.

The two of them then told Ms. Dennis, who called S.C.’s mother, Rhonda Dixon. Ms. Dixon drove to Pasco and reported the incident to the police. She and S.C. returned that evening to Seattle, where her daughter was examined at Harborview Medical Center.

The State charged Mr. Hill by amended information with rape of a child in the second degree. At trial, S.C. related facts consistent with the factual summary above. Over defense objection, Jihad testified that S.C. told him Mr. Hill had put his finger inside her; he had attempted to penetrate her with his penis; and she had been raped by him. The court determined these hearsay statements were admissible as excited utterances. Again, over defense objection, the court allowed Ms. Dennis to testify based on the excited utterance exception to the hearsay rule. Ms. Dennis then related S.C.’s account to her of the incident. Dr. Andrea Bradford Smith, the emergency room doctor, testified that S.C. told her that someone had put his finger inside her vagina and also attempted to put his penis in her vagina. Dr. Smith stated that, although she did not find any signs of physical trauma on S.C., this was not inconsistent with her story. Mr. Hill testified he found S.C. asleep in Jihad’s room about 5:00 A.M. on the morning in question. Because he did not want her sleeping in there, he woke her up to move her to the living room. He admitted that his hand may have touched her between her legs while he was carrying her, but that he did not intentionally touch her inappropriately. He claimed the ten dollars he gave her was her allowance.

The jury found Mr. Hill guilty of rape of a child in the second degree. This appeal follows. Mr. Hill claims the court erred by admitting S.C.’s statements to Jihad and Ms. Dennis under the excited utterance exception to the hearsay rule. A court’s decision to admit a hearsay statement is reviewed for an abuse of discretion. State v. Davis, 141 Wn.2d 798, 841, 10 P.3d 977 (2000).

The hearsay rule generally excludes an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c), 802. But such a statement is admissible if it `relate[s] to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.’ ER 803(a)(2). An excited utterance is a spontaneous statement made while the declarant is still under the influence of a physical shock, before she has had `time to calm down enough to make a calculated statement based upon self-interest.’ State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997). A hearsay statement is admissible as an excited utterance `if (1) a startling event or condition occurred; (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement relates to the event or condition.’ Davis, 141 Wn.2d at 843; ER 803(a)(2).

The first and third elements are met here. S.C. was allegedly raped and the statement related to the rape. At issue is whether she was under the stress of the incident when she made her statements.

Whether the declarant makes statements while still under the stress of an event is a factual determination. State v. Sims, 77 Wn. App. 236, 238, 890 P.2d 521 (1995). Often, the key factor is “whether the statement was made while the declarant was still under the influence of the event to the extent that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.” State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (quoting Johnson v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)). Spontaneity is critical. State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097
(2000). The trial court should consider the passage of time between the startling event and the utterance. But the passage of time alone is not dispositive. Strauss, 119 Wn.2d at 416-17.

Twelve-year-old S.C. was raped — a startling event. Contrary to Mr. Hill’s assertion, her statements were a spontaneous recitation of the event. It is significant that, as soon as she could get away from Mr. Hill, she went into Jihad’s room to report the rape. Less than an hour had elapsed between the rape and her statement to Jihad. See State v. Flett, 40 Wn. App. 277, 287, 699 P.2d 774 (1985) (statement made seven hours after rape deemed properly admitted upon finding of `continuing stress’ between time of rape and statement). The only reason for S.C.’s delay in making the statement is that she waited for Mr. Hill to leave for work.

Nevertheless, Mr. Hill claims that her statement was not spontaneous because she first talked to Jihad about rollerblading instead of the rape. Mr. Hill misreads the record, which shows that Jihad, who had been awakened from a deep sleep, initially thought S.C. was talking about rollerblading stunts. As soon as he was fully awake, he realized S.C. was telling him that Mr. Hill had raped her. The two of them immediately told Ms. Dennis, who testified that S.C. was very upset and had `tears dripping down off her chin’ when she related the incident. RP at 64. Jihad also said S.C. was upset and crying when she told him she had just been raped. She was plainly under the stress of the rape when she made her statements. Given the short time frame between the event and the statements, she did not have sufficient time to fabricate a story. Thus, the court did not abuse its discretion by admitting her statements as excited utterances.

Mr. Hill next contends the evidence was insufficient to support the verdict. In reviewing a challenge to the sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have reasonably found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Under RCW 9A.44.076(1), rape of a child in the second degree occurs when a person has `sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.’

S.C. was twelve years old at the time of the rape. Mr. Hill was thirty-five years old. They were not married. S.C. testified that Mr. Hill inserted his finger into her vagina. Although the emergency room doctor found no evidence of physical trauma upon examining S.C., she testified that this was not inconsistent with the victim’s story. This evidence was sufficient for a reasonable jury to conclude Mr. Hill was guilty.

He nonetheless argues that the evidence was insufficient to support his conviction because there were no eyewitnesses or medical evidence to substantiate S.C.’s allegations and that, under the Magna Carta, a `freeman could neither be arrested or imprisoned upon the mere uncorroborated testimony of a woman or girl claiming rape or other sexual violation.’ Appellant’s Br. at 20. Mr. Hill argues in essence that S.C.’s testimony is not credible, and that her testimony, without corroboration, is insufficient. But, regardless of the Magna Carta, Washington courts `must defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence.’ State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). This court cannot reweigh the evidence presented at trial. When viewed in a light most favorable to the State, the evidence was indeed sufficient to support the conviction.[1]

Affirmed.

A 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: BROWN, C. J., KURTZ, J.

[1] Mr. Hill also claims the court erred by denying his motion for new trial, which claimed that his attorney was not prepared and did not call a potential witness. He also contends his attorney did not properly cross-examine witnesses. The State asserts that it was not served with this motion. Nothing in the record indicates the court ever ruled on this motion. Mr. Hill’s brief contains no argument or legal authority supporting his claim that the court should have granted this motion. There is nothing for this court to review. See RAP 10.3(a)(5).