State v. C.C., No. 34046-1-II (Wash. App. 10/16/2007)

• Decision Date: 16 October 2007
• Docket Number: No. 34046-1-II,34046-1-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. C.C., Appellant.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. C.C., Appellant.

No. 34046-1-II

Court of Appeals of Washington, Division Two.

Filed: October 16, 2007

Appeal from Pierce County Superior Court. Docket No: 05-8-01323-8. Judgment or order under review. Date filed: 10/21/2005. Judge signing: Honorable Rosanne Nowak Buckner.

Counsel for Appellant(s), Carol A Elewski, Attorney at Law, Po Box 4459, Tumwater, WA, 98501-0459.

Counsel for Respondent(s), Alicia Marie Burton, Pierce County Prosecutors Office, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.

QUINN-BRINTNALL, J.

The Pierce County Juvenile Court found C.C.¹ guilty of molesting five of his young female family members.² On appeal, C.C. (born on February 11, 1992) challenges the admission of child hearsay; the trial court's capacity findings; the constitutionality of the child molestation and indecent liberties statutes; and the effectiveness of his counsel for failing to challenge Victim Four's capacity to testify. We affirm.

FACTS

C.C. and all five victims in this case are related. From December 11, 2002, through February 27, 2005, C.C. resided with his brothers, mother, and her boy friend, at a house on M Street in Tacoma, Washington. Occasionally, C.C.'s mother would leave various young family members in C.C.'s care while she ran errands.

On the evening of February 27, 2005, one five-year-old girl told her ten-year-old cousin that C.C. had molested her. A series of conversations between various family members revealed that C.C. had had inappropriate sexual contact with other young female relatives.

Following these conversations the five-year-old girl's uncle confronted C.C.'s mother and an argument ensued. C.C.'s mother called the police. When the police arrived, the adult relatives reported that C.C. had been molesting five young family members.

After reading C.C. his Miranda³ warnings, Detective John W. Bair of the Tacoma Police Department interviewed C.C.⁴ During the interview, C.C., who was then 13 years old, admitted to having had sexual intercourse with his developmentally disabled cousin, once or twice, a year or two ago. C.C. said that he put his penis into her vagina for about a minute or less and that it did not feel right so he stopped.

Although C.C. denied remembering doing anything else, he also told Detective Bair that he tried to take one of the younger girl's clothes off because she had wet herself. When questioned about a different girl, C.C. said, "I never did anything wrong with her," and stated that he had only taken her clothes off to give her a bath. 3 Report of Proceedings (RP) at 291.

C.C. next told Detective Bair that three or four years ago, he had sexual intercourse with another cousin because "[s]he wanted to do it and asked me to do it with her. I had sexual intercourse with her for less than 30 seconds." 3 RP at 291. C.C. denied doing anything to one of the other children other than baby-sitting her.

Following several weeks of trial, the trial court found C.C. guilty as charged on Counts I through VI. The trial court acquitted C.C. of Count VII (charged as an alternative to Count I); entered findings of facts and conclusions of law; and sentenced C.C. to 45 to 108 weeks commitment in juvenile rehabilitation. C.C. appeals.

ANALYSIS

Child Hearsay

C.C. first argues that the trial court abused its discretion when it admitted unreliable hearsay statements of three child victims. C.C. further contends that the trial court failed to base its findings on all the Ryan⁵ reliability factors. C.C. does not challenge the trial court's RCW 9A.44.120(2)⁶ findings; instead, he only challenges the reliability of the out-of-court statements that the three youngest victims made to several adults.

Generally, RCW 9A.44.120 governs the admission of a child's out-of-court statements. Reliability does not depend on whether the child is competent to take the witness stand but on whether the comments and circumstances surrounding the statement indicate that it is reliable. State v. Borboa, 157 Wn.2d 108, 120, 135 P.3d 469 (2006); State v. Swan, 114 Wn.2d 613, 648, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).

The trial court is necessarily vested with considerable discretion in evaluating a statement's indicia of reliability. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003) (citing Swan, 114 Wn.2d at 648). A trial court abuses this 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), cert. denied, 523 U.S. 1008 (1998). We will affirm the trial court's decision to admit child hearsay if, taking the record in the light most favorable to the State, the trial court reasonably could have found the child's statements more likely true than not true and the evidence shows sufficient indicia of reliability. State v. Karpenski, 94 Wn. App. 80, 105-06, 971 P.2d 553 (1999).

Here, because three of the child victims were under 10 years of age, the trial court made specific findings under the Ryan factors for each of the statements the three child victims made to their adult relatives, the child interviewer, and the nurse practitioner. We examine the allegations against each child victim's out-of-court statements in turn.

A. Victim One's⁷ Out-of-Court Statements

C.C. asserts that Victim One's (born on February 27, 1996) statements to her mother, aunt, grandmother, and uncle were unreliable because the statements are inconsistent with each other; the witnesses' recollections of her statements are inconsistent; and the statements were the result of suggestions by the family. We disagree.

Here, the trial court admitted the nurse's testimony under both RCW 9A.44.120 and ER 803(a)(4) (statements for purposes of medical diagnosis or treatment).⁸ C.C. does not challenge the admission of the statement under ER 803(a)(4). The failure to object to the admission of evidence at trial or to testimony from State witnesses precludes appellate review. State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000). Thus, we assume that the trial court properly admitted the child's statements to the nurse under ER 803(a)(4) and do not address the admissibility of Victim One's statements to the nurse under RCW 9A.44.120. See State v. Grant, 83 Wn. App. 98, 105, 920 P.2d 609 (1996) (held erroneous admission of evidence under ER 609(a) harmless where evidence properly admissible under ER 404(b)).

In this case, Victim One disclosed abuse to several people including her aunt; grandmother; uncle; mother's friend; nurse practitioner, Cheryl Hanna-Truscott; and the forensic child interviewer, Kim Brune. C.C. does not deny that multiple people heard Victim One's statements but, rather, he contends that the statements, as relayed by the witnesses, were inconsistent with each other. But inconsistencies in testimony are an appropriate subject for cross-examination and relate to its weight, not its admissibility. State v. Stange, 53 Wn. App. 638, 642, 769 P.2d 873, review denied, 113 Wn.2d 1007 (1989). Victim One was subject to cross-examination, as were the testifying adult witnesses.

C.C. next asserts that Victim One's statements were not "spontaneous." We disagree.

For purposes of child hearsay analysis, statements are spontaneous even if made in response to questions as long as the questions are not leading, do not suggest an answer, and do not supply the child with details. Swan, 114 Wn.2d at 649.

In State v. Henderson, 48 Wn. App. 543, 740 P.2d 329, review denied, 109 Wn.2d 1008 (1987), the court held that "Ryan compels a less narrow definition of `spontaneous,' one that considers the entire context in which the child makes the statement." 48 Wn. App. at 550. In Henderson, the child witness:

volunteered the information that her father stuck his fingers in her vagina when Detective Hinds asked [the child] why it hurt her when her father touched her vagina. His question was neither leading nor suggestive. Thus, the statement qualifies as "spontaneous." 48 Wn. App. at 550. Likewise, here, Victim One supplied her own details about the abuse in response to open-ended questions. Victim One disclosed abuse to several adults she trusted and the substance of her statements was consistent. Moreover, C.C. admitted to the investigating detective that C.C. had engaged in sexual intercourse with her "three or four years ago."⁹ 8 RP at 947. The trial court did not abuse its discretion by admitting evidence of Victim One's statements.

B. Victim Two's¹⁰ Out-of-Court Statements

C.C. similarly asserts that Victim Two's (born on October 27, 2001) statements to her grandmother, aunts, father, and her 10-year-old sister were unreliable.

As discussed above, the trial court admitted Victim Two's statements to the nurse practitioner under RCW 9A.44.120 and ER 803(a)(4). C.C. does not challenge the admissibility of the nurse's testimony under ER 803(a)(4) and any error in admitting them under RCW 9A.44.120 is harmless.

In addition, Victim Two's version of events remained substantially consistent throughout her disclosure to the various family members. Victim Two's initial disclosure was to her 10-year-old sister (Victim Five). In response to her sister's inquiry (whether C.C. had ever touched Victim Two), she said: "Yeah, he touched my private, and he told me not to tell, and it hurt." 4 RP at 564. Victim Two, who was three years old at the time of this disclosure, provided her own details of the abuse without any suggestions from her sister or any of the adults. See generally, Swan, 114 Wn.2d at 633 (held accurate description by a three-year-old indicated precocious sexual knowledge that was considered corroborative of abuse). The record supports the trial court's finding that Victim Two's statements were spontaneous and reliable.

C. Victim Three's¹¹ Out-of-Court Statements

C.C. repeats his arguments, asserting that Victim Three's (born on ...