State v. Gitchel
| Decision Date | 23 September 1985 |
| Docket Number | No. 14454-5-I,14454-5-I |
| Citation | 41 Wn.App. 820,706 P.2d 1091 |
| Parties | STATE of Washington, Respondent, v. Frank I. GITCHEL, Appellant. |
| Court | Washington Court of Appeals |
Seth Dawson, Snohomish County Pros. Atty., S. Aaron Fine, Deputy, Everett, for respondent.
Frank Gitchel appeals from his conviction for first degree statutory rape of his 3-year-old daughter, who is referred to herein as "R". Gitchel alleges that the trial court erred in finding the child to be incompetent to testify and in admitting her hearsay statements under RCW 9A.44.120, Washington's child victim hearsay exception. 1
JURY UNANIMITY
To insure jury unanimity in cases involving separate criminal acts (rather than a charge of one offense which may have been committed by "alternative means"), the State may elect the criminal act upon which it will rely for conviction. Alternatively, the trial court may instruct the jury that all 12 members must agree that the same underlying criminal act has been proved beyond a reasonable doubt. This instruction must be given when the State does not elect the criminal act. State v. Petrich, 101 Wash.2d 566, 569-70, 572, 683 P.2d 173 (1984); Fitzgerald, 39 Wash.App. at 656, 694 P.2d 1117.
The information in the present case alleged that Frank Gitchel engaged in sexual intercourse with his daughter "on or about June to July, 1983". At trial, the State offered evidence of two incidents of sexual abuse. The first incident, on July 2, 1983, was presented through physical evidence observed by witnesses and through R's relatives' responses to their observations of R. 2 The second incident, on July When the State does not elect and no instruction is given to ensure jury unanimity, the error may be deemed harmless only if a rational trier of fact could find that each incident was proved beyond a reasonable doubt. Petrich, 101 Wash.2d at 573, 683 P.2d 173. The State concedes, and we agree, that in this case, the error cannot be considered harmless. A rational trier of fact could have entertained a reasonable doubt as to whether an act of sexual intercourse was established with respect to the July 2 incident. We reverse and remand for a new trial.
21, 1983, was demonstrated by means of R's hearsay statements, other physical evidence, and R's conduct. The acts are connected by the fact that the victim is the same; however, under Petrich, 101 Wash.2d at 571, 683 P.2d 173, and Fitzgerald, 39 Wash.App. at 655, 694 P.2d 1117, this connection is not enough to find that the acts form one continuing offense or a single transaction. The State made no election, and the trial court did not give the instruction specified in Petrich
Because the issues of competency and admissibility of R's statements under RCW 9A.44.120 may arise on retrial, we address them here. We note, however, that if R is capable of testifying on retrial, the following discussion may be moot.
Gitchel contends that the trial court abused its discretion in ruling that R was incompetent. He asserts that R was capable of remembering past events and expressing them, and that everything she said confirmed his own trial testimony.
In State v. Ryan, 103 Wash.2d 165, 171-72, 691 P.2d 197 (1984), our Supreme Court clarified the meaning of the child victim's competency in a trial where the State seeks admission of the child's hearsay statements under RCW 9A.44.120. Under RCW 5.60.050(2), 3 only children who are incapable of perceiving or truthfully relating the facts of the case are classified as incompetent. Ryan, at 172, 691 P.2d 197; see also CrR 6.12(c) (). The trial court must determine competency by examining the child and observing her manner, intelligence, and memory. Ryan, at 172, 691 P.2d 197.
In the present case, after hearing the child and other witnesses testify during the pretrial proceeding, the trial court ruled that R was incompetent to testify at trial but that R's statements made on the morning of July 21, 1983 to her Aunt Christine and to a Child Protective Services social worker, Pauline LaPierre, as well as R's statements to Dr. Runyon that afternoon and her statements in an interview with Detective Bob Rozzano on July 25, 1983, were admissible under RCW 9A.44.120. In determining whether R's statements were reliable, the judge found that R was "telling the truth" when she made her statements. He stated that "there is nothing implausible or inconsistent or incoherent in the content of her statements" and "everyone who has testified states that they can communicate with her and she can communicate with others." The court rejected the possibility that R was dissembling, was programmed by her relatives, or was mistaken or confused and concluded that R was competent at the time she made her statements to each of the witnesses.
However, the court observed that at the pretrial hearing, R was "squirming, looking around, hiding her face, closing her eyes, making grimaces and really nothing of substance could be obtained from her in the way of testimony." Although R was able to receive just impressions and relate them truly when she made the statements, she was not able to do so in the atmosphere of a courtroom several months after the event. The trial court did not abuse its discretion in finding R incompetent to testify.
The child victim hearsay statute 4 requires a preliminary determination "that the time, content, and circumstances of the statement provide sufficient indicia of reliability ...", and, if the child does not testify, the statute requires a showing of unavailability. Ryan, at 170, 691 P.2d 197. When the child is unavailable and the statements are reliable, the proponent of the child's hearsay statements must show corroborative evidence of the act. Ryan, at 168, 174, 691 P.2d 197.
Gitchel contends that the trial court erroneously based its determination of R's unavailability on her incompetency, an approach that he argues is prohibited by Ryan. The Ryan court distinguished incompetency from unavailability and noted that incompetency would not always or necessarily establish unavailability. Ryan, at 171-72, 691 P.2d 197. In this case, however, the witness's incompetency was the equivalent of unavailability. 5 The State and the defense attempted to elicit testimony from R at the pretrial hearing but the trial judge concluded "nothing of substance could be obtained from her in the way of testimony." In effect, the trial court concluded that she was incapable of relating facts accurately at the time she was called to testify. On this record, the trial court did not abuse its discretion in finding R to be unavailable. See ER 804.
We emphasize that the following examination of reliability and corroboration may be academic if, on retrial, the court finds that R is able to testify. If, however, R is not able to testify, the trial court must apply the indicia of reliability to R's statements and must analyze whether there is corroborative evidence to support her statements. Therefore, to demonstrate our agreement with the trial court's admission of R's statements and to provide some guidance on retrial, we limit our discussion of reliability and corroboration to an outline of the record as it was presented to us.
The State offered no statements by R related to the July 2, 1983 incident. R's Aunt Christine testified that on July 21, 1983, after Gitchel dropped R off at Christine's home, R complained to her cousin and Christine that it hurt to go potty. In response to Christine's question why it hurt, R stated, "Because my daddy puts his ponytail in there", and she pointed to her anus. Later, she told Christine that her daddy went "tinkle" with his ponytail.
Ryan lists nine factors to apply when determining whether the time, content, and circumstances surrounding the child's out-of-court declarations provide sufficient indicia of reliability. Those factors are:
(1) the statement contains no express assertion about past fact, (2) cross examination could not show the declarant's lack of knowledge, (3) the possibility of the declarant's faulty recollection is remote, and (4) the circumstances surrounding the statement ... are such that...
To continue reading
Request your trial
-
State v. Swan
...no signs of physical trauma. Medical evidence similar to that regarding B.A. was considered corroborative of abuse in State v. Gitchel, 41 Wash.App. 820, 706 P.2d 1091, review denied, 105 Wash.2d 1003 (1985). Such evidence in Gitchel included a doctor's finding of partial vaginal penetratio......
-
State v. CJ
...P.2d 496. Direct evidence may include medical evidence of abuse. Jones, 112 Wash.2d at 495, 772 P.2d 496 (citing State v. Gitchel, 41 Wash.App. 820, 828, 706 P.2d 1091 (1985)). In many child sex abuse cases, there is no physical evidence of harm, nor any eyewitnesses, so the corroboration r......
-
State v. Karpenski
...(1981), aff'd, 97 Wash.2d 801, 650 P.2d 201 (1982).89 Watkins, 71 Wash.App. at 170, n. 4, 857 P.2d 300; see also State v. Gitchel, 41 Wash.App. 820, 824, 706 P.2d 1091 (1985).90 State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967). See also, e.g., In re Dependency of AEP, 135 Wash.2d 2......
-
State v. Carson
...that each incident was proved beyond a reasonable doubt.’ ” Camarillo, 115 Wash.2d at 65, 794 P.2d 850 (quoting State v. Gitchel, 41 Wash.App. 820, 823, 706 P.2d 1091 (1985)). ¶ 49 Reviewing courts have held that failure to give a Petrich instruction is harmless when “the evidence presented......
-
What Would Happen if Videotaped Depositions of Sexually Abused Children Were Routinely Admitted in Civil Trials? a Journey Through the Legal Process and Beyond
...Second, the child may "freeze" on the witness stand and become uncommunicative. See, e.g., State v. Gitchel, 41 Wash. App. 820, 826, 706 P.2d 1091,1094 (1985); State v. Shepphard, 484 A.2d 1330, 1333 (N.J. Super. 1984); See also Note, Minnesota, supra note 34, at In any event, the plaintiff......