State v. CJ

• Decision Date: 06 February 2003
• Docket Number: No. 71867-9.,71867-9.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. C.J., Defendant.

63 P.3d 765

148 Wash.2d 672

STATE of Washington, Petitioner, v. C.J., Defendant.

No. 71867-9.

Supreme Court of Washington, En Banc.

Argued June 27, 2002.

Decided February 6, 2003.

Sylvia Cornish, Richland, for Petitioner.

Charles Alden, Kennewick, for Defendant.

MADSEN, J.

The three divisions of the Court of Appeals are divided over the issue presented in this case: whether the State must establish the testimonial competence of a child declarant at the time his or her statements were made to gain admission of those statements under RCW 9A.44.120 where the child declarant is later deemed incompetent to testify at trial. There is a distinction between unavailability as a witness at trial and the requirements of RCW 9A.44.120 for admission of a child's out of court statement. We hold that the proponent of a hearsay statement from a child abuse victim who is unavailable to testify at trial due to incompetency need only meet the statutory requirements of RCW 9A.44.120, and that no additional showing of competency at the time of the hearsay statement is required. We also hold that adequate indicia of reliability exist in the circumstances surrounding the making of the out of court statement in this case, and that sufficient evidence corroborating the assertion was presented as required by RCW 9A.44.120. We reverse the Court of Appeals and reinstate the trial court's verdict.

FACTS

Three-year-old B and his one-year-old brother were supervised in their home by their cousin, the thirteen-year-old female defendant, while their father and mother went out for the evening. Before leaving the children around 6:30 p.m. to meet his wife, B's father helped remove B's pants so that B could tend to his bathroom needs. The father observed B's penis at that time but noticed nothing unusual about it. From the time the father departed until both parents returned about three hours later, only the defendant and the two boys were present in the home. When B's parents returned, B was already asleep in bed.

Early the following morning, B entered his parents' bedroom and announced that he had wet himself overnight. B's mother instructed him to remove his soiled pajamas for the laundry, and after he did, she noticed that the tip of B's penis was swollen. With the father present, she asked B whether his penis hurt, to which he replied "no." Without further prompting, B stated, "[Defendant] rubbed it and made it feel better." The mother said, "She did?" and B responded, "Yeah" and gestured as if masturbating. When the mother again asked, "She did?" B volunteered, "Yes, mommy, and you know what else mommy? She wanted me to touch her potty and she wanted me to lick her potty too." B also related that the defendant showed him her "potty." Although they had taught B to use the word "potty" to refer to genital areas, neither parent had previously heard B make similar remarks or had seen him make similar motions.

The father contacted Child Protective Services and the Sexual Assault Response Center, and then made an appointment for B to see his pediatrician later that morning. The doctor observed that the remnant of B's circumcised foreskin was swollen and filled with fluid, and noted that the physical trauma was consistent with "repeated mechanical stimulation" of B's penis through rubbing or masturbation. The doctor saw no evidence of other causes for the swelling, and the swelling later subsided without further treatment.

B's mother privately contacted a local police officer who had been related to B's family by marriage and who had previously met B on several occasions. The officer interviewed B later that afternoon in B's bedroom, chatted with B about B's toys, heard B sing the alphabet song, and then asked if B knew the difference between the truth and a lie. B answered that when you lie you get spanked. When asked by the officer to determine whether a series of statements was the truth or a lie, B answered that it was the "truth" that B was a boy, that she was a girl, that his doll was red, that the same doll was purple, and that the officer was a green alien. The officer testified that B answered "truth" to all such questions.

The officer explored "good touching," "bad touching," and "secret touching." Without mentioning the defendant's name, the officer asked B if anyone had touched him. B initially shrugged his shoulders but then stated, "[Defendant] touched my potty like this and made it feel good" while making masturbatory gestures with his hand. The officer asked B the same question again, and B repeated the answer in a serious manner. B also stated that the defendant had touched him "last night." The officer then observed B's still swollen penis and saw that it was slightly red at the end. After the officer left, B's father asked how the visit with the officer went. B replied, "Fine," and then said without prompting, "Dad, when [defendant] touched my potty and it wasn't an accident."

The defendant was charged as a juvenile with one count of first-degree child molestation, a class A felony. More than nine months after the incident, the trial court held a preliminary hearing to determine whether B, then four years old, was competent to testify at trial. The State asked B a series of questions and found it difficult to elicit consistent answers from B. B identified several obviously false statements as the "truth," and later stated that he had answered all the questions truthfully. B also answered "no" when asked if anyone bigger or older than he had touched him in any way. B explained that he got in trouble when he lied, and did not when he told the truth. The State noted that B was very uncomfortable and frightened on the stand. Ultimately, the court determined that B was unable to characterize the difference between truthful and false statements and unable to express a memory of the incident in words, and found B incompetent to testify and therefore unavailable for purposes of RCW 9A.44.120. Neither party objected to that ruling.

After hearing testimony from B's mother and father and the police officer, the trial court found there were sufficient indicia of reliability to support each hearsay statement and admitted those statements under RCW 9A.44.120 and ER 803.¹ The trial court also found that at the time of his statements, B was competent to describe accurately what had happened and that B had no animosity toward the defendant or motive to lie about the incident.

The court specifically determined that, at the time of his statements, B had no motive to lie to his mother, father, or the officer; that none of the three witnesses had reason to lie about B's statements; that there was no issue as to B's character; that B had initiated his statements to his mother and father; that B's statements to his mother, father and the officer were made spontaneously and close in time to the incident; that B had answered the officer's questions spontaneously; that B's statements related only to the present incident and not to any past incidents; that B showed no lack of knowledge regarding the incident; and that the possibility that B had a faulty recollection of the incident was remote. The court also found that the doctor's findings corroborated B's statements and ruled out other causes of the injury. Following a bench trial, the defendant was found guilty and she appealed.

The Court of Appeals, Division Three, reversed, holding that the trial court abused its discretion in admitting the child's hearsay statements because the evidence did not show that the child was competent at the time the statements were made. State v. C.J., 108 Wash.App. 790, 792, 32 P.3d 1051 (2001). Citing our decisions in State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984) and Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wash.2d 99, 713 P.2d 79 (1986), as well as the Court of Appeals, Division Two decision in State v. Karpenski, 94 Wash.App. 80, 971 P.2d 553 (1999), the court below held that before the trial court may admit a child's hearsay statement, it must determine whether the witness was competent at the time he made the statements as well as whether the statement satisfies the reliability requirements of RCW 9A.44.120. C.J., 108 Wash.App. at 796-97, 32 P.3d 1051. Specifically, the Court of Appeals faulted the State for failing to establish that at the time B made the statements, he understood the difference between a truthful statement and a false statement, and that he understood his obligation to speak truthfully about the incident. C.J., 108 Wash.App. at 797, 32 P.3d 1051.

The State filed a petition for review claiming that the decision conflicts with the Court of Appeals, Division One decisions in State v. Gribble, 60 Wash.App. 374, 804 P.2d 634 (1991) and In re Dependency of S.S., 61 Wash.App. 488, 814 P.2d 204 (1991). The State contends that the statute requires only a finding of "sufficient indicia of reliability" surrounding the statement and corroborative evidence of the acts described in the statement, regardless of whether the court finds the child unavailable to testify.

We granted the State's petition.

ANALYSIS

RCW 9A.44.120 governs the admissibility of a child victim's out of court hearsay statements. ER 807. The statute provides that:

A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and...