State v. Henderson, No. 16805-3-I

• Court: Court of Appeals of Washington
• Writing for the Court: PEKELIS; SCHOLFIELD, C.J., and SWANSON
• Citation: 48 Wn.App. 543,740 P.2d 329
• Parties: STATE of Washington, Respondent, v. Robert S. HENDERSON, Appellant.
• Docket Number: No. 16805-3-I
• Decision Date: 20 July 1987

Page 543

48 Wn.App. 543 740 P.2d 329 STATE of Washington, Respondent,
v.
Robert S. HENDERSON, Appellant. No. 16805-3-I. Court of Appeals of Washington,
Division 1. July 20, 1987.
Reconsideration Denied Sept. 22, 1987.

[740 P.2d 330]

Page 544

John Christiansen and Nancy Talner, Washington Appellate Defender, Seattle, for Robert S. Henderson.

Robert S. Henderson, pro se.

Seth R. Dawson, Snohomish Co. Pros. Atty., and Seth A. Fine, Deputy Pros. Atty., Everett, for the State.

PEKELIS, Judge.

Robert S. Henderson appeals his conviction for first degree statutory rape, indecent liberties, and bail jumping. He contends that (1) his conviction for statutory rape and indecent liberties instead of first and second degree incest violated his constitutional right to equal protection; and that the trial court erred (2) in admitting the victim's hearsay statement under the child hearsay statute; (3) in refusing to sever the bail jumping count from the statutory rape and indecent liberties counts; and (4) in imposing a consecutive sentence for the bail jumping conviction. We affirm in part and reverse in part.

Robert S. Henderson ("Henderson") was charged by information with first degree statutory rape of his stepdaughter, S, and arraigned in October 1984. He was released on his own recognizance and acknowledged the court's order that he

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appear for trial on January 8, 1985. When Henderson failed to appear for trial, a bench warrant issued. Henderson subsequently appeared and a new trial date was set. The State then filed an amended information which added an indecent liberties count and a bail jumping count.

After Henderson was arraigned on the amended information, he moved to sever [740 P.2d 331] the trial of the bail jumping count from the crimes of sexual abuse. The court referred the matter to the trial judge who later denied Henderson's motion. Also before trial, the court held a hearing pursuant to RCW 9A.44.120 (the child hearsay statute) to determine the admissibility of three hearsay statements made by the victim to three different persons.

Barbara Cheney, S's school nurse, testified that two of S's teachers approached her, concerned about S, who was then 7 years old, because she was very withdrawn and had periodic urinary incontinence. Ms. Cheney testified that she later met with S early in June 1984 to ask her some questions about her family. She thought that S's problems might be related to sexual abuse, a medical or emotional condition, or to S's relationships with family members. At the interview, Ms. Cheney asked S how she got along with various members of her family. Ms. Cheney testified that when she asked S how she got along with her father, S looked at the floor and replied in a soft voice, "Not very good." S refused to explain why. During the interview, which Ms. Cheney described in detail, she asked S "Who hurt you?" and S answered "My dad." S told Ms. Cheney that her father touched her on "her bottom," and pointed to her genital area. At this point Ms. Cheney stopped questioning S.

Detective John Hinds of the Snohomish County Sheriff's Office testified that he took S's statement in his office with her mother present after he received the case as a sexual abuse referral from Child Protective Services. As Detective Hinds conducted the interview, he wrote down his questions and S's answers, which he described as follows:

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I began [the interview] by asking her if she felt she could talk to me....

She seemed nervous and somewhat shy....

I asked her if it would help if I asked her some questions and she gave me the answers....

She said yes ...

I asked [S], "I need to talk to you about your dad. Do you think you can talk with me?" She responded, "No."

I asked her, "Can I ask you questions and you tell me the answers?" She responded, "Yes."

I asked her, "You talked with a woman from CPS about your dad. Can you tell me what he's been doing?" She responded, "He touches me."

I asked her, "Where?" She responded, "Here," and pointed between her legs toward her vagina.

I asked her, "What does you[r] dad touch you with?" She responded, "His hand."

I asked her, "How does he touch you?" And she responded, "He rubs me there."

I asked her, "Does it hurt when your dad touches you there," referring to her vagina. She answered, "Yes."

I asked her, "Why?" And she indicated--responded, "He sticks his fingers in me."

I asked her, "Does Dad touch you with anything else?" She stated, "No."

I asked her, "Does your dad ask you to touch him at all?" Her answer was, "No."

I asked her, "Did Dad tell you anything at all?" She answered, "Not to tell anyone."

I asked her, "How long has your dad been doing this to you?" And she answered, "Since the first grade."

I asked her what grade she is now in. She stated, "Third grade."

I asked her, "Where does this happen?" She answered, "At Dad's house in his bedroom."

I asked her, "How did you get into his bedroom?" She answered, "Dad would pick me up and carry me in there."

I asked her, "Did you ..." Excuse me. "Did he ask you to go with him into the bedroom?" She answered, "No, he wouldn't say anything."

I asked, "Would Dad say anything to you while he touched you?" She answered, "No."

[740 P.2d 332]

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I asked her what her dad's name was. And she responded, "Robert Henderson."

Detective Hinds noted that S was of normal intelligence. He also testified that although S's mother was present, she did not tell S what to say or cue her in any way. Finally, Detective Hinds testified that S did not answer his questions immediately, but seemed to take time to think about her answers.

Janet Davis, a Child Protective Services (CPS) worker, testified that she interviewed S, wrote a statement about what S told her, but had no independent recollection of the interview at the time of the hearing. Based on the foregoing testimony, the trial court ruled that S's statement to the CPS worker was inadmissible, but her statements to the school nurse and Detective Hinds were admissible.

At trial, S, then age 8, testified after the court determined she was competent. She related that her father, Henderson, had touched her vagina several times in her parents' bedroom, in their camper, and near the well, starting when she was in kindergarten or the first grade. She testified that Henderson touched and rubbed her with his fingers and that it hurt, but she did not testify that Henderson put his finger inside her vagina.

The defense presented no evidence, and the jury convicted Henderson of all counts.

The sexual abuse crimes, counts 1 and 2, occurred prior to July 1984 before the Sentencing Reform Act was applicable. The court sentenced Henderson to serve 30 years on the statutory rape count to run concurrently with a 10-year sentence imposed on the indecent liberties count. Pursuant to the SRA, the court then imposed a 6-month sentence with credit for time served for the bail jumping count. The court specifically found that there were no compelling circumstances warranting consecutive sentences, but reasoned that bail jumping was a separate offense and thus should run consecutively to counts 1 and 2.

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ANALYSIS ¹

I. Equal Protection

Henderson first contends that he was denied equal protection when the prosecutor elected to charge him with statutory rape and indecent liberties instead of first and second degree incest because the statutes are concurrent and penalize the same conduct differently. In addition, Henderson asserts that the prosecutor's decision circumvented legislative intent that the incest statute supersede the statutory rape and indecent liberties statutes.

State v. Hodgson, 44 Wash.App. 592, 722 P.2d 1336, review granted, 107 Wash.2d 1012 (1986), is dispositive of this issue. In Hodgson, the court held that a violation of the incest statute is...