State v. Hancock
| Citation | 731 P.2d 1133,46 Wn.App. 672 |
| Decision Date | 26 January 1987 |
| Docket Number | No. 16676-O-I,16676-O-I |
| Parties | STATE of Washington, Respondent, v. Loren W. HANCOCK, Appellant. |
| Court | Court of Appeals of Washington |
Norm Maleng, King County Pros. Atty., Dean S. Lum, Deputy Pros. Atty., Seattle, for State.
Loren W. Hancock appeals his conviction for one count of indecent liberties, one count of first degree incest, and one count of third degree statutory rape. He contends that the trial court erred (1) in finding the out-of-court statements of one of the victims admissible under RCW 9A.44.120, (2) in interpreting RCW 9A.44.120 to permit the victim's mother to testify about a statement made by Hancock to the victim, (3) in refusing to admit certain evidence pertaining to previous sexual abuse of the victim by one other than Hancock, (4) in admitting evidence of Hancock's gun ownership, and (5) in allowing the State to call Hancock's wife for the sole purpose of impeaching her. We affirm the trial court.
Hancock was charged by information with committing indecent liberties on his nephew, "B", and incest and statutory rape on his son, "L". At the time the offenses were allegedly committed, B was between 3 and 7 years of age, while L was between 14 and 16. At the time of trial, B and L were, respectively, 8 and 16 years of age.
Before trial, the court held a hearing to determine whether certain out-of-court statements made by B to his mother would be admissible under RCW 9A.44.120, the The court found sufficient indicia of reliability in the content and circumstances of the two statements made by B to his mother, and ruled that they were admissible under RCW 9A.44.120. Accordingly, B's mother was allowed to testify at trial as to both statements. Additionally, she testified that just before B made the first statement, when he was acting out the role of his uncle, she told him that she had heard that Hancock had "done things wrong with his own boys." 1
child hearsay exception statute. At the hearing, B's mother testified that in September 1984, with her son present, she had a heated argument with Hancock. The next day, B was behaving violently and defiantly, acting out his uncle's role in the previous day's argument. Although she initially reacted by spanking him, she later read the Bible to him, and he eventually calmed down. She then asked him what was wrong, and he responded, "Uncle Loren messed with my private parts." B's mother also testified that on the way to discuss the incident with a detective, B told her, "Uncle Loren messed with [L], too." [731 P.2d 1135] B explained to her that when Hancock put his hand in B's shorts, he asked B whether he liked it, and when B said he didn't know, his uncle stated, "Well, my son does."
B testified at trial in a manner generally consistent with his mother's testimony. He also related that another person, one Rocky Gibbons, had "done bad things" to him. On cross examination, defense counsel asked B what Rocky made him do. The prosecutor's objection on the grounds of relevancy was sustained.
L testified about two occasions on which he was sexually abused by Hancock. These occurred, according to L, when he was thirteen or fourteen years old. He explained that he did not tell the police at that time because he was afraid of what his father might do. At this point, the prosecutor asked, over defense counsel's objection, whether Hancock owned a gun.
L answered that he did.
Roberta Hancock, the defendant's wife, was called to testify by the prosecution. She was asked whether she suspected that her husband had done anything improper with B. When she replied in the negative, she was asked whether she had told the investigating officer, Detective Ostrander, that she suspected something. She stated that she did not remember Detective Ostrander. In response to further questions, she denied that Hancock had admitted doing anything improper with L, denied that Hancock had threatened her, and denied that she was afraid of him. After each denial, she was asked whether she had ever made contrary statements to Detective Ostrander. She replied that she did not remember making such statements.
Detective Ostrander was then called by the prosecution. Over defense counsel's objection, he testified to certain out-of-court statements made to him by Roberta Hancock. According to Ostrander, Roberta Hancock told him that she had suspected something was going on between B and her husband, that Hancock had told her what he had done to L, and that she was afraid of him.
Hancock testified in his own defense, denying the charges against him. He explained that B had a problem with bed wetting, and that on one occasion when he was sleeping with B, he awakened and felt the front of B's shorts to see if they were wet. He surmised that B had confused this incident with the one involving Rocky Gibbons. He attributed B's mother's testimony, as well as L's, to personal animosity.
RCW 9A.44.120 2 permits the use of an otherwise The Ryan court applied these considerations to the facts before it, and found that the statements in question were not sufficiently reliable to be admissible under RCW 9A.44.120. Ryan, at 176, 691 P.2d 197. First, the children in that case had a motive to lie, since their stories explained the source of candy which they knew they were not supposed to have. Ryan, at 176, 691 P.2d 197. In addition, the children did not make their statements spontaneously, but in response to questioning by their mothers. Ryan, at 176, 691 P.2d 197. Finally, at the time of the The circumstances surrounding the out-of-court statements in this case are quite different from those which were present in Ryan. First, there was no apparent motive for B to lie. Further, although B's first statement was elicited by his mother's questioning, it does not appear that this questioning was directed to the topic of sexual abuse. His second statement was apparently spontaneous. Finally, the record does not clearly reflect whether B's mother was predisposed to believe stories of sexual abuse about Hancock, 4 although it is clear that there was some ill will between them. On these facts, we cannot say that the trial court abused its discretion in finding that B's statements were sufficiently reliable to be admitted under RCW 9A.44.120. 5
inadmissible statement by a victim of sexual abuse under the age of ten when the court finds that the circumstances of the statement provide sufficient indicia of reliability. The determination of [731 P.2d 1136] whether a statement is admissible under RCW 9A.44.120 is within the sound discretion of the trial court. State v. Frey, 43 Wash.App. 605, 611, 718 P.2d 846 (1986). In State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), the Supreme Court outlined some of the factors to be considered in determining the reliability of an out-of-court statement under RCW 9A.44.120. These are: (1) whether the declarant had a motive to lie, (2) the character of the declarant, (3) whether more than one person heard the statement, (4) whether the statement was made spontaneously, and (5) the timing of the statement and the relationship between the declarant and the witness. Ryan, at 175-76, 691 P.2d 197. 3
questioning, the mothers had already been told that the defendant might have committed indecent liberties on their children, so they were predisposed to confirm what they had been told. Ryan, at 176, 691 P.2d 197
Independent of the reliability issue, Hancock contends that the trial court erred in allowing B's mother to testify as to B's statement that Hancock told him, "My son likes it." 6 Hancock characterizes this statement as "hearsay within hearsay", and argues that it does not conform to the admissibility requirements of ER 805 because the "first level" of hearsay, that of B's statement to his mother, was not admissible under RCW 9A.44.120. 7
The statute creates an exception to the hearsay rule, but limits that exception to "[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". RCW 9A.44.120 (emphasis added). B's statement did not describe an act of sexual contact performed with or on B; rather, it refers to an act performed on L. Thus, it does not fall within the purview of RCW 9A.44.120, and its admission was error
We must next determine whether it was harmless error. In some cases, a violation of RCW 9A.44.120 will also be a violation of the right of confrontation guaranteed by U.S. Const. amend. 6 and Const. art. 1, § 22 (amend. 10). See Frey, 43 Wash.App. at 609-10, 718 P.2d 846 (). In the case of a constitutional violation, the more stringent standard of proving "harmless error beyond a reasonable doubt" is applicable. See State v. Jackson, 42 Wash.App. 393, 398, 711 P.2d 1086 (1985).
Here, however, the error was nonconstitutional. The general approach used to test hearsay admissions against confrontation rights requires (1) either the production of the out-of-court declarant or a demonstration of his unavailability, and (2) assurances of the statement's reliability. Ryan, 103 Wash.2d at 170, 691 P.2d 197. In this case the out-of-court declarant, B, was produced, and his statement was properly found to be reliable. Therefore, the admission of B's statement through his mother's testimony did not violate Hancock's constitutional right of confrontation.
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