State v. CJ, No. 19558-9-III.

• Court: Court of Appeals of Washington
• Writing for the Court: KURTZ, C.J.
• Citation: 108 Wash. App. 790,32 P.3d 1051
• Parties: STATE of Washington, Respondent, v. C.J., Appellant.
• Docket Number: No. 19558-9-III.
• Decision Date: 18 October 2001

32 P.3d 1051
108 Wash. App. 790

STATE of Washington, Respondent,
v.
C.J., Appellant

No. 19558-9-III.

Court of Appeals of Washington, Division 3, Panel Five.

October 18, 2001.

Charles E. Alden, Kennewick, for Appellant.

Andrew K. Miller, Sylvia T. Cornish, Prosecuting Attorney's Office, Kennewick, for Respondent.

KURTZ, C.J.

Thirteen-year-old C.J. was convicted of sexually molesting her 3-year-old cousin. At her trial, the judge declared that the 4-year-old child witness was incompetent to testify, but the court admitted his statements as a 3-year-old declarant to his parents and an investigating police officer. C.J. appeals her conviction for first degree child molestation, arguing that the hearsay statements were erroneously admitted because the State had failed to demonstrate that the child declarant was competent at the time that the statements were made. We hold that the court's admission of the child hearsay statements

32 P.3d 1052

was an abuse of discretion because the evidence does not show that the child was competent at the time the statements were made. We reverse C.J.'s conviction and remand for a new trial

FACTS

B.K. picked up his 13-year-old niece, C.J., at school and brought her to his home to babysit his two children, 3-year-old B. and his 1-year-old brother. Before leaving the children with C.J. that evening, Mr. K. assisted B. when B. went to the bathroom. Mr. K. did not notice anything unusual about B. at that time.

Mr. K. left his home between 6:00 and 6:30 p.m. and met his wife at a bowling alley. When they arrived home between 9:15 and 9:30 p.m., both Mr. and Ms. K. checked in on B. who was asleep in his bedroom.

At about 7:15 a.m. the next morning, B. came into his parents' bedroom. B. said he was wet and pulled off his clothes for the laundry. Mr. and Ms. K. noticed that B.'s penis was big and the end of it was swollen.

Ms. K. asked B. if it hurt and B. responded "[n]o." B. then said, "[C.J.] rubbed it and made it feel better." Report of Proceedings (RP) at 50. Ms. K. asked, "She did?" and B. responded, "Yeah" and gestured as if stroking his penis. RP at 50. When Ms. K. again said, "—she did?" B. said, "Yes, mommy." RP at 50. He continued, "And you know what else, mommy?" "She wanted me to touch her potty and she wanted me to lick her potty too." RP at 50. Neither Mr. nor Ms. K. had ever heard B. make similar remarks before. Nor had they ever seen B. make a masturbating motion.

After B. made these statements, Mr. K. contacted Child Protective Services, the Sexual Assault Response Center, and made an appointment for B. with his pediatrician, Dr. Ronald Wojnas. After taking B.'s brother to daycare, Ms. K. contacted Officer Roland Trujillo of the Kennewick Police Department. Officer Trujillo was formerly married to a cousin of Mr. K.'s and had met B. four or five times.

Ms. K. took B. to be examined by his pediatrician, Dr. Wojnas, that morning. Dr. Wojnas observed that while B. had been circumcised, the remnant of his foreskin was swollen and filled with fluid, and the swelling was consistent with rubbing or masturbation. Dr. Wojnas saw no evidence that the swelling was caused by an allergic reaction or infection. The swelling subsided without any additional treatment from Dr. Wojnas. Dr. Wojnas concluded that B. had suffered mechanical injury due to sexual abuse.

Officer Trujillo interviewed B. at the K.s' home later that day. Officer Trujillo spoke to B. in his bedroom with the door open. After initially talking to B. about his toys, Officer Trujillo eventually began talking to B. about "secret touching" and asked B. if anyone had touched him. RP at 94. B. initially shrugged his shoulders, but then blurted out, "[C.J.] touched my potty like this and made it feel good." RP at 94. B. gestured as he spoke. Officer Trujillo asked B. again who did this, and B. said, "[C.J.] made it feel good." RP at 95. C.J.'s name did not come into the conversation until B. brought it up. When Officer Trujillo asked B. if anything else had happened, B. did not elaborate. Officer Trujillo asked B. when he was touched by C.J. and B. responded, "last night." RP at 104.

When Mr. K. was getting B. ready for a nap after Officer Trujillo left, he asked his son how the visit with the officer went. B. replied, "fine" and then said without prompting, "Dad, when [C.J.] touched my potty and it wasn't an accident." RP at 85.

C.J. was charged with one count of child molestation in the first degree in violation of RCW 9A.44.083. Prior to trial, the trial court held that B. was not competent to testify because he was unable to characterize the difference between the truth and a lie, and was unable to express a memory of the incident in words. The court then conducted a hearing to evaluate the admissibility of B.'s hearsay statements to his mother, father, and Officer Trujillo. After hearing the testimony of Mr. and Ms. K., Officer Trujillo, Dr. Wojnas, G.W. (C.J.'s grandmother), and Dr. Sharon Ahart, the court found that B.'s hearsay statements were admissible and that he was competent to accurately describe what

32 P.3d 1053

had happened at the time he made the statements

C.J. proceeded to trial on the testimony previously given at the child hearsay hearing and her written statement to Officer Trujillo. C.J. also testified. She was found guilty of the offense as charged and this appeal follows.

ANALYSIS

C.J. contends that the court erred by admitting B.'s statements to his parents and Officer Trujillo. She argues that the hearsay statements of a young child, shown not to be competent at trial, cannot be admitted as evidence if the record fails to show that the declarant was competent when the statements were made.

After a pretrial hearing, the trial court declared B., a 4-year-old child witness, incompetent to testify at trial. The court specifically found:

1. The child is unable to characterize the difference between a truthful statement and a false statement.

2. [B.] is unable to express in words, a memory of the occurrence.

Findings of Fact and Conclusions of Law on 9A.44 Child Competency and Hearsay Hearings filed October 26, 2000. After considering additional evidence, the court ruled that B.'s hearsay statements as a 3-year-old declarant were admissible. The court specifically found:

1. The child, [B.], was able to accurately...