State v. B. C., No. 34800-4-II (Wash. App. 6/26/2007)

• Court: Washington Court of Appeals
• Writing for the Court: Hunt
• Decision Date: 26 June 2007
• Docket Number: No. 34800-4-II.
• Citation: State v. B. C., No. 34800-4-II (Wash. App. 6/26/2007), No. 34800-4-II. (Wash. App. Jun 26, 2007)
• Parties: STATE OF WASHINGTON, Respondent, v. B.J.C.,<SMALL><SUP>1</SUP></SMALL> Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. B.J.C.,¹ Appellant.

No. 34800-4-II.

The Court of Appeals of Washington, Division Two.

Filed: June 26, 2007.

Appeal from Clallam Superior Court. Docket No: 05-8-00303-5. Judgment or order under review. Date filed: 02/01/2006. Judge signing: Honorable William Knebes.

Counsel for Appellant(s), Jodi R. Backlund, Backlund & Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.

Manek R. Mistry, Backlund & Mistry, 203 4th Ave E Ste 404, Olympia, WA, 98501-1189.

Counsel for Respondent(s), Tracey L Lassus, ClallamCounty Pros Ofc, 223 E 4th St Ste 11, Port Angeles, WA, 98362-3015.

HUNT, P.J.

BC appeals a juvenile adjudication of guilt and his disposition for first degree child molestation. He argues that (1) the trial court erred in admitting hearsay statements of his six-year-old victim, LV; (2) the trial court's ruling displayed bias favoring the victim; and (3) juveniles accused of sex crimes have a constitutional right to a jury trial, which he was denied. In his statement of additional grounds (SAG),² BC claims additional multiple errors. We affirm.

FACTS

I. Molestation

On July 3, 2005, while her parents attended church services, six-year-old LV stayed in the church nursery, where 14-year-old BC was substituting as the caretaker. No other persons were present. LV played with blocks in the nursery until BC wanted to play the "snake game." BC hid a toy snake in his underwear and told LV to find it; then he took LV's hand and put it inside his underwear on his penis.

Thinking she had done something wrong, LV was afraid, at first, to tell her parents. But that night, she told her mother and father what had happened. LV's parents reassured her that she had done nothing wrong, and reported the incident to the police. Her mother gave a written statement, reporting that LV told her BC had taken her hand, put it on his "mushroom," moved it, and smiled.

LV's parents sent her to counseling with therapist Katherine Shea. LV told Shea that BC had wanted to play the "snake game," grabbed her by the wrist, and rubbed her hands on his penis. In the course of her therapy, LV drew pictures of the incident while explaining what had happened.

Port Angeles Police Detective Robert Ensor investigated. Because of LV's age, Ensor used established techniques to determine that she knew the difference between telling the truth and lying. LV then repeated her story to Ensor.

Ensor arrested BC.

II. Procedure

The State charged BC with first degree child molestation.³ The parties attempted, but were unable, to reach a plea bargain, and the case proceeded to trial.

The trial court held a hearing to determine whether LV was competent to testify at trial and whether her statements to her parents and Shea and the drawings she had made during counseling, were admissible under the child hearsay statute.⁴ BC emphasized inconsistencies in LV's various statements, arguing that they were unreliable because the story changed over time. He also elicited from LV's mother that she had discussed the incident with LV at least 50 times. The trial court found that LV was a competent witness, ruled that her hearsay statements satisfied the Ryan⁵ reliability factors, and admitted LV's statements to her parents and to Shea and her counseling drawings. It entered findings of fact and conclusions of law that set forth its observations of LV's demeanor and testimony.

During the subsequent bench trial, LV testified about the incident. Her parents, Shea, and Ensor corroborated her testimony. Testifying in his own defense, BC admitted having hidden the toy snake in his pants; denied that he intended for LV to touch his penis; and claimed he did not cause LV to stroke his penis, did not get an erection, and did not ejaculate during this very brief incident.

The State asked BC's father whether he had obtained legal counsel between the time he initially spoke with police and his taped interview. The trial court sustained BC's objection. When Ensor testified, he stated that the investigation faltered when he could not obtain an interview with BC. The trial court again sustained BC's objection.

In rendering its verdict, the trial court declared, "I believe that [LV] touched [BC]'s penis, because [BC] took her wrist and he placed her hand on his penis, that this was not a brush by but a deliberate act." Report of Proceedings (RP) (Feb. 23, 2006) at 168. Stating, "I believe [LV] and don't believe [BC]," the trial court found BC guilty of first degree child molestation. RP (Feb. 23, 2006) at 169.

When the State disputed whether BC would be amenable to sex offender treatment, the trial court stated, "I'm not going to guess. I want an evaluation." RP (Feb. 23, 2006) at 170. The trial court then ordered a psycho-sexual evaluation of BC to determine whether a special sexual offender disposition alternative (SSODA)⁶ was appropriate. The evaluation included a polygraph examination, which required BC to answer questions about the molestation incident. During the polygraph examination, BC admitted that he had pushed LV's hand into his pants and that he had become erect when she touched him; but he denied that he had placed her hand around his penis or moved her hand on it. The examiner concluded BC was telling the truth about the incident and recommended a SSODA.

The trial court (1) granted BC a SSODA; (2) imposed a 30-day jail sentence, suspended on condition that BC comply with treatment recommendations; (3) ordered BC to perform 80 hours of community service and to pay fees and restitution; and (4) placed him on probation for two years.

BC appeals his child molestation adjudication and his disposition.

ANALYSIS

I. Child Hearsay

In both his Appellant's Brief and his SAG, BC challenges the trial court's admission of LV's hearsay statements to her parents and counselor as well as drawings she made in counseling sessions. He contends that the trial court's findings lack substantial evidence and that the Ryan factors favor excluding the evidence. We disagree.

A. Standard of Review

We reverse a trial court's admission of child hearsay statements under RCW 9A.44.120 only when there is a manifest abuse of discretion. State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174 (2005). An abuse of discretion occurs when the decision is manifestly unreasonable, or is based on untenable grounds or reasons. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003). We review the factual findings supporting the admission for substantial evidence, which is a quantity of evidence in the record sufficient to persuade a fair-minded, rational person that the finding is true. State v. Halstien, 122 Wn.2d 109, 128-29, 857 P.2d 270 (1993). Nonetheless, an erroneous finding is harmless if it does not materially affect the trial court's legal conclusions. State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992).

B. Ryan Factors

By statute, hearsay statements of children under age ten, describing actual or attempted sexual contact, are admissible in juvenile adjudications if the trial court finds that "the time, content, and circumstances of the statement[s] provide sufficient indicia of reliability." RCW 9A.44.120. In determining whether the statement is reliable, courts look to the circumstances surrounding its making rather than to subsequent corroboration of the criminal act. State v. Ryan, 103 Wn.2d 165, 174, 691 P.2d 197 (1984).

The child hearsay statement's reliability depends on the nine factors set forth in Ryan: (1) whether there is an apparent motive to lie, (2) the declarant's general character, (3) whether more than one person heard the statements, (4) whether the statements were spontaneous, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) whether the statement contains express assertions about past facts, (7) whether cross-examination could show the declarant's lack of knowledge, (8) whether the possibility that the declarant's recollection is faulty is remote, and (9) whether the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented the defendant's involvement. State v. Swan, 114 Wn.2d 613, 647-78, 790 P.2d 610 (1990) cert. denied, 498 U.S. 1046 (1991); Ryan, 103 Wn.2d at 175-76. It is only necessary that the statements substantially satisfy these factors. Woods, 154 Wn.2d at 623-24.

BC challenges each of the trial court's Ryan factor findings. We consider each finding in turn.

1. No motive for LV to lie

The trial court found that LV considered BC her friend and that she had no other motive but to tell the truth when she reported the nursery incident. BC argues that there was no evidence that LV considered him a friend and that her fear that her parents would be angry at her about the incident gave her a motive to lie. The record supports the trial court's finding.

LV's father testified that when LV asked why did BC "do this," she referred to BC as her "friend." And LV testified that she had known BC since she was three years old and that he took care of her in the nursery. These facts support the trial court's finding that LV had a friendly relationship with BC and had no other motive than to tell the truth.

Contrary to BC's assertion, the record does not show that LV's fear of her parents' anger gave her a motive to fabricate the incident; nor do we perceive any such motive generally as BC suggests. If anything, LV's fear was reason for her to remain silent. That she was afraid to tell her parents but did so anyway suggests that she reported events that disturbed her greatly.

BC further argues that LV exaggerated the incident over time. But any inconsistencies in LV's accounts of the incident affect the weight of her evidence, not its admissibility. Woods, 154 Wn.2d at 621.

The trial court's finding as to the first Ryan factor is reasonable, and substantial evidence supports it.

2. LV's good general...