STATE v. HOLDEN, 142 Wn. App. 1044 (2008)

Nos. 59290-4-I; 59790-6-I.The Court of Appeals of Washington, Division One.
January 28, 2008.

Appeals from a judgment of the Superior Court for Snohomish County, No. 05-1-03070-9, David A. Kurtz, J., entered December 5, 2006.

Affirmed by unpublished per curiam opinion.

Page 1045

PER CURIAM.

Rowland Holden appeals his judgment and sentence for three counts of first degree child molestation. He claims on appeal that the trial court erred by admitting child hearsay and his own statement into evidence. He contends that cumulative errors require reversal. Holden also challenges the credibility of key witnesses in his statement of additional grounds. We conclude that any error was harmless and affirm.

The complaining witness, M.C., alleged that Holden molested her 15-20 times beginning when she was in kindergarten. M.C. first disclosed the abuse when she was nine years old after her mother caught her touching a six-year-old boy in a sexual manner. Her mother, Dana Gibson, discovered the two children playing “touchy-feely” and became upset, pulled M.C. away from the boy, and took her into another room. M.C. told her mother that Holden had molested her. The molestation had stopped approximately two years before M.C. disclosed the abuse. Holden is Gibson’s stepbrother.

Gibson reported the abuse to the police the next day. Everett Police Detective Karen Kowalchyk interviewed M.C. alone and recorded the interview on DVD. In the interview, M.C. told the detective that Holden had molested her. Seven months later, Gibson took M.C. to the Providence Intervention Center for Assault and Abuse where Nurse Practitioner Caryn Young took a history and examined M.C. M.C. also told the nurse practitioner that Holden had molested her.

The State charged Holden with four counts of first degree child molestation. A jury convicted Holden on three counts and acquitted him on one count.

Holden timely appeals.

CHILD HEARSAY
Holden argues the court abused its discretion by finding M.C.’s statements to Gibson, the detective, and the nurse practitioner sufficiently reliable to be admitted. We disagree.

Absent a manifest abuse of discretion we will not reverse a trial court’s determination that statements are admissible under the child abuse hearsay exception.[1] The trial court is in the best position to make such a determination.[2]

Generally, hearsay evidence is inadmissible unless otherwise permitted by court rule or statute.[3] RCW 9A.44.120 governs the admission of child hearsay describing an act of sexual abuse. Hearsay statements made by a victim of child abuse under age 10 may be used in a criminal proceeding if “[t]he 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.”[4]

Reliability is analyzed according to the nine Ryan factors.[5] The nine factors are (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) whether the statement contains any express assertion about a past fact, (7) whether cross examination could not show the declarant’s lack of knowledge, (8) the remoteness of the possibility of the declarant’s recollection being faulty, and (9) whether the circumstances suggest the child misrepresented the defendant’s involvement.[6]

The trial court need not determine that every factor is satisfied. It is enough that the factors are “substantially met.”[7]

On appeal, Rowland focuses his argument on Ryan
factors one, two, and four.

Under the first factor, whether M.C. had an apparent motive to lie at the time of her statements, the court analyzed M.C.’s initial disclosure of abuse to her mother. Arguably, when M.C. made the statement to her mother she had an apparent motive to lie or make up the allegations because her mother essentially caught her engaging in wrongful behavior. The court acknowledged that the mother’s actions may have suggested to M.C. that she say something, but the mother did not suggest that M.C. should accuse her uncle of abusing her. Further, the court found that M.C. had no motive to get her uncle in trouble. Moreover, the court noted that admitting the mother’s statements would prejudice the defense only slightly because M.C. would be testifying at trial and could be cross-examined and because the defense case itself involved the statement at issue.

On the second factor, M.C.’s general character for trustworthiness, the trial court heard conflicting testimony. The court noted that the evidence against M.C.’s trustworthiness came from a woman who may have had a motive to overstate because she was the mother of the six-year-old child who engaged in sexual touching with M.C. On balance, the court concluded that the evidence “tilts in favor of admissibility.”

The court considered the fourth factor, spontaneity of the statements, to be the most critical. Regarding the statement to the detective, the court considered the transcript and video of the interview with M.C. and noted that although some of the questions may have been leading ones, the detective conducted a fairly straightforward interview and posed generally nonleading questions, which largely satisfied the spontaneous requirement.

Likewise, regarding the statement to the nurse practitioner, the court reviewed exhibits and testimony and concluded that the interview was fairly straightforward and nonleading. On appeal, Holden argues that the forensic nature of the interview undermined its spontaneity, but he offers no authority for support. The trial court addressed this argument below and noted that even the hearsay exception for statements made for purposes of medical diagnosis or treatment allows for statements made in forensic-type interviews. Moreover, the child hearsay exception at issue here permits such statements to be obtained and used at trial if reliable. No evidence showed that the nurse practitioner conducted the interview merely to bolster the State’s case. The court also noted that the incentive to be truthful flowed from M.C.’s understanding she was speaking to a medical professional.

Finally, regarding the statement to M.C.’s mother, the court acknowledged that is was the closest call of the three. However, the court believed the mother’s testimony that she confronted M.C. with open-ended questions and that she did not prompt M.C. to identify Holden as the perpetrator. The court noted that the mother’s reluctance to believe that her own brother could have abused M.C. supported her testimony that she did not suggest or prompt the substance of M.C.’s statement.

On appeal, Holden argues that the court ignored current family discord as evidence that M.C.’s mother had a motive to prompt M.C. to accuse him, or, similarly, that M.C. had a motive to accuse him. The record reflects that the trial court apparently considered evidence of family discord presented by Holden and concluded it was insufficient to motivate M.C. to falsely accuse Holden. Both M.C. and her mother testified that M.C. generally got along with Holden. That the trial court took a different view of the evidence than Holden urged is no basis for this Court to disturb the trial court’s determination.

For the first time on appeal, Holden also argues that M.C. demonstrated no competence to accurately observe and remember events that took place before age five. Holden argues that this lack of competence to testify about her early years also undermines the general reliability of M.C.’s hearsay evidence. Even if Holden is correct that M.C. was incompetent to testify about events that took place when she was three or four, he fails to persuade us that this undermines the reliability of M.C.’s hearsay statements concerning sexual abuse that she made when she was competent.

It is immaterial whether M.C. had the capacity to accurately observe events when she was three or four because the evidence showed that Holden’s sexual abuse began when she was five years old and in kindergarten. In determining M.C.’s competence, the court noted that M.C.’s ability to articulate and recall events from the relevant time period, including her kindergarten years, was particularly impressive.

In sum, the trial court determined that M.C. was competent to testify. The trial court heard testimony from M.C., her mother, the detective, and the nurse practitioner. After weighing the evidence and properly considering all the Ryan
factors, the trial court determined the hearsay statements were sufficiently reliable to be admitted. The trial court did not abuse its discretion in admitting this evidence.

Holden’s Statement
Holden argues the trial court abused its discretion by admitting into evidence his statement to his stepsister when she confronted him about abusing M.C. We conclude that if an error occurred, it was harmless.

We review a trial court’s decision to admit evidence for an abuse of discretion.[8] Relevant evidence is admissible when its probative value is not substantially outweighed by the danger of unfair prejudice.[9]

A court may admit evidence of collateral sexual misconduct under ER 404(b) when it shows the defendant’s lustful disposition directed toward the offended female.[10] Evidence that is otherwise admissible under ER 404(b) should be excluded under ER 403 if its probative value is outweighed by the danger of unfair prejudice.[11]

An erroneous evidentiary ruling is harmless unless, within reasonable probabilities, it affected the outcome of the trial.[12]

There was evidence that Holden made the following statement to his stepsister when she confronted him about abusing M.C.: “I didn’t do shit to your daughter. Your daughter would be lucky if I even considered putting my fucking hands on her. I didn’t touch her.”[13]

At trial, Holden argued in limine that his statement was not probative of any fact or issue in dispute and was highly prejudicial. The State argued that Holden’s statement should be admitted because it was extremely relevant to the charge of child molestation and reflected Holden’s attitude at the time Gibson confronted him.

Although the State contends Holden did not preserve this issue for appeal, the record shows that the court made a final ruling on the limine motion, notwithstanding its willingness to reconsider its ruling as the evidence developed. Thus, Holden properly preserved this evidentiary issue for review.

On appeal, the State concedes the trial court erred by admitting Holden’s statement under the ER 404(b) “lustful disposition” exception. Assuming without deciding that an error occurred, we conclude that any error was harmless.

Although Holden’s statement may have been an inappropriate response when he was confronted with allegations of abuse, we are not persuaded that it was inflammatory enough to make a jury convict Holden for irrational reasons. Substantial evidence from M.C., her mother, the police detective, and a nurse practitioner supports the jury’s verdict. Additionally, the jury watched the detective’s recorded interview of M.C. Moreover, even when considering Holden’s statement, the jury decided to acquit Holden on one of the four counts against him, demonstrating its careful consideration of the evidence and rational basis for its verdict. For these reasons, we conclude there is no reasonable probability that Holden’s statement affected the outcome of the trial.

Because of our disposition, we need not reach the State’s argument that Holden’s statement could have been properly admitted as a statement by a party opponent.

CUMULATIVE ERROR
Because we conclude the court did not err by admitting child hearsay evidence and that any evidentiary error regarding Holden’s statement was harmless, Holden’s cumulative error argument is without merit.

STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds Holden challenges the credibility of M.C. and her mother as witnesses. Insofar as his argument challenges the reliability of the child hearsay evidence, we have addressed that issue above. This Court does not review a jury’s credibility determinations.[14] Moreover, we conclude that the record contains sufficient evidence to support the jury’s verdict.[15]

We affirm the judgment and sentence.

Cox, J., Appelwick, C.J., Grosse, J.