State v. Barnes
| Decision Date | 14 August 2018 |
| Docket Number | 48993-7-II |
| Parties | STATE OF WASHINGTON, Respondent, v. BRANDON CHRISTOPHER BARNES, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Brandon Barnes appeals his conviction for first degree rape of a child and the trial court's imposition of certain community custody conditions.
We hold that (1) Barnes's claims regarding the imposition of bail and the amount of bail are moot; (2) the trial court did not err in entering a protective order restricting Barnes's use and dissemination of the victim's recorded forensic interview; (3) the trial court did not err in finding that the five-year-old victim, TV, was competent to testify; (4) the trial court did not err in admitting TV's statements to various people under the child hearsay statute; (5) the prosecutor did not engage in misconduct regarding the State's burden of proof; (6) the community custody condition prohibiting Barnes from frequenting places where children congregate is unconstitutionally vague; and (7) two other community custody provisions are invalid and a third is invalid in part because they are not crime related.
Accordingly we affirm Barnes's conviction, but we remand with instructions to strike community custody conditions 16, 24 28 and a portion of 29 in accordance with this opinion.
From September to December of 2014, four-year-old TV lived with her grandmother, Francesca Heard. Various family members also helped care for TV, including TV's second cousin Sonya Jones and Heard's boyfriend's mother, Darlene Quins. During this time, TV's mother, Keshia, [1] was in the process of relocating to Nevada.
TV also spent time at the home of another second cousin, Tahjiere Smith, who lived with her boyfriend, Barnes. In November Heard went out of town for the weekend and TV spent the weekend with Smith and Barnes.
Later that week, after Heard had returned, TV told Jones that she was sad because Barnes "did something to her." 5 Report of Proceedings (RP) at 437. TV told Jones that while she stayed with Barnes and Smith, Barnes called her into his and Smith's bedroom, started to take off her underwear laid TV on the ground, and touched TV in the vaginal region of her body. TV said that she tried to scream, but Barnes covered her mouth with his hand. According to TV, Barnes lay on top of her and moved up and down.
After this disclosure, Jones took TV to Heard, who went with TV into a separate room to talk without Jones present. TV told Heard that Barnes took TV into his bedroom, told her to lie down on her stomach, and pulled down her panties, and that Barnes laid on top of her. TV also said that she wanted to get up, but Barnes would not let her. Heard asked TV if she was telling the truth and TV said that she was. Heard reported TV's disclosure to the police.
TV later made disclosures regarding the abuse to Keshia and Quins.
The State charged Barnes with two counts of first degree rape of a child. After Barnes was arrested, the trial court set bail in the amount of $100, 000. Barnes later filed a motion to reduce his bail amount, and the trial court reduced bail to $50, 000.
On December 1, Patricia Mahaulu-Stephens of the Child Advocacy Center conducted a videotaped forensic interview of TV. The State would not provide Barnes with a copy of the recorded interview until he agreed to sign a protective order restricting the dissemination of copies of the recording. Barnes disagreed with the terms of the proposed protective order.
The trial court ruled that there was cause for the protective order because it implicated the privacy of a minor child. The order stated, "Neither the transcript of the recording nor any portion thereof, shall be divulged to any person not authorized by the terms of this stipulation to review the DVD and/or audio recording." Clerk's Papers (CP) at 187. After both parties signed the order, Barnes received a copy of the recording. At trial, the recording was played in open court for the jury, but was not transcribed for the record.
The State notified Barnes that it intended to introduce TV's hearsay statements at trial pursuant to RCW 9A.44.120. Specifically, the State sought to introduce TV's statements to Jones, Heard, Keshia, Quins, Mahaulu-Stephens, and Michelle Breland, a nurse practitioner who examined TV following her disclosure. The court held a hearing to determine TV's competency to testify and the admissibility of her hearsay statements.
At the hearing, the State questioned TV as to her understanding of the difference between the truth and a lie. TV initially stated that she did not know the difference between telling the truth and telling a lie. But then she said that her teacher told her not to lie and that her mother sometimes talked to her about telling the truth and a lie. And TV correctly answered some hypothetical questions that distinguished between the truth and pretend. Finally, she said she would tell the truth and promised not to lie.
TV could not remember living at Heard's house in the fall of 2014, but she recalled that Heard's house was brown and that she had spent the night there in her own bedroom upstairs. She also did not remember talking in a room with cameras about the incident involving Barnes. However, she remembered telling Heard and Jones about what had happened at Barnes's house.
Jones, Heard, Keshia, and Quins, testified about TV's statements to them. Jones asked TV if she was telling a story or telling the truth. TV told Jones, 2 RP at 150. TV also told Heard that she was telling the truth about what happened with Barnes. Keshia testified that she never had any problems with TV lying.
Mahaulu-Stephens testified that during her forensic interview of TV, she asked TV if she would promise to tell the truth and TV said that she would. TV corrected Mahaulu-Stephens if she made errors while talking to TV. TV also asked for clarification when she did not understand something.
The trial court reviewed TV's recorded interview with Mahaulu-Stephens. In the recorded interview, TV described Barnes's "boomerang" as "going in her potty." 3 RP at 247. TV described the feeling as "smooshy or gooey." 3 RP at 247. Mahaulu-Stephens testified that TV's use of this language evidenced a lack of coaching because she was only able to articulate a four year old's understanding of anatomy.
The trial court found that while TV initially had difficulty answering directly whether she understood the difference between the truth and a lie, "she did by examples indicate that she did have an understanding of the difference between fiction and reality." 3 RP at 287. The court also found that TV "has the understanding and the knowledge of her obligation to speak the truth on the witness stand." 3 RP at 287. Further, based on the forensic interview, the court found that TV demonstrated mental capacity at the time of the occurrence. Specifically, TV was conversant during the interview, paid close attention to the room, and complimented the examiner on her clothing. Compared to her demeanor in court, her demeanor in the interview "indicated she was very grounded at the time." 3 RP at 288. The court also found that TV had sufficient memory to retain independent recollection of the charged incident because she could answer questions related to where she was living, what happened shortly after, when she moved, and whether she was in school or daycare.
The trial court found that there was no reason to question TV's general character nor was there a motive for TV to lie. And the initial disclosure to Jones was spontaneous. There were multiple people who heard TV's statement in a short period of time, TV disclosed the incident to Heard moments after disclosing the incident to Jones, and the forensic interview was set up a week following the initial disclosure. Even though TV made some inconsistent statements, there was some degree of consistency between the two initial disclosures.
Based on the totality of the circumstances, the trial court found that there was no reason to believe that TV misrepresented what she perceived in this case. Therefore, the trial court ruled that TV was competent to testify at trial and TV's child hearsay statements to each of the witnesses were admissible.
At trial, Jones, Heard, Keshia, Quins, and Mahaulu-Stephens testified about TV's statements that the trial court had ruled admissible. TV also testified. She stated that the last time she spent the night at Barnes's home, he called her into his room. He then told her to lie down on the floor on her stomach and got on top of her. She was wearing pants and a shirt at the time and her "clothes were halfway off because of him." 5 RP at 410.
Breland a pediatric nurse practitioner, performed a physical examination of TV. Breland testified that during her examination of TV, TV told her that someone had done something she did not like to her hip, but then pointed to her anal region. TV then described the area as "the part where the pee pee comes out." 6 RP at 615. TV also told Breland that her pants and panties had been taken down.
Throughout closing argument, the State emphasized that the jurors were the sole judges of credibility. The State argued that the evidence in this case was TV's words. The State also argued, "[i]f you believe [TV's] words, if you believe her description of what happened to her, what the defendant did to her, you are convinced beyond a reasonable doubt." 7 RP at 761.
The State also emphasized that TV had "absolutely no motive to fabricate what...
To continue reading
Request your trial