State v. Hunt

• Decision Date: 12 August 1987
• Docket Number: No. 19151-9,19151-9
• Citation: 741 P.2d 566,48 Wn.App. 840
• Parties: STATE of Washington, Respondent, v. Robert L. HUNT, Appellant.
• Court: Washington Court of Appeals

Page 840

48 Wn.App. 840

741 P.2d 566

STATE of Washington, Respondent, v. Robert L. HUNT, Appellant.

No. 19151-9.

Court of Appeals of Washington Division 1.

Aug. 12, 1987.

George Cody, Cody, Hatch & Blanchard, Inc. P.S., Lynnwood, for appellant Robert L. Hunt.

Seth R. Dawson, Snohomish County Pros. Atty., Seth A. Fine, Deputy Pros. Atty., Everett, for respondent State.

SWANSON, Judge.

Robert L. Hunt appeals from the judgment and sentence following his conviction for indecent liberties. Hunt contends the trial court erred in admitting the hearsay statements of the 4-year-old victim, who was incompetent to testify. We affirm the trial court.

Hunt was charged by information with one count of committing indecent liberties with his daughter, S. The information alleged the crime occurred during the period January 1983 to February 1984, when S was 2 1/2 to 3 1/2 years old. The State filed notice that it intended to introduce testimony at trial pursuant to RCW 9A.44.120, the child sexual abuse hearsay exception.

A hearing to examine the reliability of the proposed evidence was conducted on September 25, 1984, when S was 4. The court first determined that S was incompetent to testify, finding that she had no current memory of the period during which the alleged crime took place and that she was unable to understand the significance of the oath.

Employees of a day-care facility in which S was enrolled testified regarding her unusual behavior at nap time. S would lie on her stomach, with "two blankets bunched under her crotch and thighs so her bottom was elevated six to twelve inches off the mat," and "would take her blankets and tuck them between her legs and would rock herself to sleep on them." S frequently awoke crying following her nap; S also cried while sitting on the toilet for an unusually long time.

In early February 1984, an employee observed S in the upper level of a two-story play fort "face down in prone position with her panties down and a little boy was rubbing her fanny." S was told to pull up her panties and come down. S obeyed, but immediately took the boy by the hand into the lower level of the fort, "pulled her panties down and laid down and more or less indicated, gestures, that this would be okay."

Similar conduct was observed on several occasions by the employees at the day-care center. The boy, who was about three years old, was not seen in similar activity with anyone else at the facility. Following these incidents, officials at the day-care center contacted Children's Protective Services (CPS).

Merry Beth Wood, a CPS caseworker, interviewed S on February 9, 1984, at the center. After talking and playing with S for about 20 minutes, Wood asked S if she wanted to play with a doll. S replied "yes," and Wood removed a clothed, anatomically correct adult male doll from a bag. S immediately took the doll, began undressing it, grabbed the penis, and said, "This tickles." When Wood asked who had one of these, S replied, "Daddy. Daddy sticks it in my butt."

Wood then took a female doll from her bag and gave it to S, who started removing its clothes. S placed the penis of the male doll between the legs of the female doll and said, "Daddy tickles me here with this." Wood asked S if anyone else did this, and she replied, "No, just Daddy." S subsequently made similar statements to a physician and to other interviewers. A physician who examined S on February 13, 1984, found no physical evidence of sexual contact.

The State also presented the testimony of Dr. Elizabeth McCauley, a psychologist. McCauley stated that explicit sexual behavior in children is generally a "learned activity," but acknowledged that it does not always indicate sexual abuse. When asked about S's conduct at her day-care center, McCauley stated she would be concerned "that that child has been exposed in some way to some aspect of adult sexuality" and possibly to sexual abuse.

When asked specifically whether S's "behaviors were strong indicators that the child had been sexually abused," McCauley replied, "I think that the constellation would be strong indicators to do an evaluation to rule out sexual abuse." McCauley noted there could be other explanations for S's conduct, such as exhibition by other children.

Following the hearing, the trial judge determined there were sufficient indicia of reliability and ruled the hearsay statements admissible. The judge termed McCauley's testimony "very indefinite" as to the relationship between child sexual behavior and sexual abuse but found S's sexual contact with the boy at the day-care center sufficient to corroborate the act for purposes of RCW 9A.44.120. Following trial, a jury found Hunt guilty as charged.

Former RCW 9A.44.120, ¹ the child abuse hearsay statute, provides that a child's statement describing any act of sexual contact performed on the child by another, "not otherwise admissible by statute or court rule," is admissible in criminal proceedings when the following requirements are met: (1) the court finds, in a preliminary hearing conducted outside the presence of the jury, that the "time, content, and circumstances of the statement provide sufficient indicia of reliability"; (2) the child either testifies at the proceeding or is "unavailable as a witness"; and (3) if the child is unavailable as a witness, the statement may be admitted only if there is "corroborative evidence of the act."

A child found incompetent to testify is "unavailable" as a witness within the meaning of RCW 9A.44.120. State v. John Doe, 105 Wash.2d 889, 895, 719 P.2d 554 (1986). The trial court's determination that a statement is within the child abuse hearsay exception will be reversed only upon a showing of manifest abuse of discretion. State v. Jackson, 42 Wash.App. 393, 396, 711 P.2d 1086 (1985). Appellant does not challenge the trial court's ruling that S was incompetent to testify at the time of trial.

Hunt initially contends that a child's hearsay statements are not admissible under RCW 9A.44.120 unless the trial court, in addition to determining the child's testimonial competence at the time of trial, finds that the child was testimonially competent at the time the statement was made. Hunt asserts that the same factors supporting the finding of incompetence at trial make it highly unlikely that S was competent to testify six months earlier when the challenged statements were made and, thus, the statements were too unreliable to be admitted.

Hunt's argument rests on an admittedly confusing passage in State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), in which the court stated that "[t]he declarant's competency is a precondition to admission of his hearsay statements as are other testimonial qualifications." Ryan, at 173, 691 P.2d 197. Some of the resulting confusion stems from an imprecision in the use of the term "competency," particularly with regard to the distinctions between its application at the time of trial and the reliability determination to be made pursuant to RCW 9A.44.120, which focuses primarily on the time the statement is made. Cf. State v. Ryan, supra at 182, 691 P.2d 197 (Dimmick, J., concurring). The court in Ryan uses the concept of competency in several ways, including testimonial competence and in the sense of an ability "to receive just impressions of the facts concerning the event." Ryan, at 173, 691 P.2d 197; see also RCW 5.60.050(2). ² The Ryan court was referring to competence in this latter sense when it stated that "[i]f the trial court had examined the children and found them incompetent on this basis, their testimony would be too unreliable for admission." (Italics ours.) Ryan, at 173, 691 P.2d 197; see also State v. Frey, 43 Wash.App. 605, 611 n. 9, 718 P.2d 846 (1986).

The circumstantial guarantees of trustworthiness generally used to analyze the reliability of hearsay statements presuppose, in most instances, that the hearsay declarant possessed a certain degree of mental capacity throughout the relevant time period. ³ If the requisite mental capacity is lacking, the time, manner, and circumstances of the making of the statement may well be irrelevant to a determination of reliability. See Huff v. White Motor Corp., 609 F.2d 286 (7th Cir.1979). Here, however, S's mental capacity to receive accurate impressions of the occurrence and to relate them accurately at the time of the statement was never challenged below; nor do we find any evidence in the record to support such a challenge. See State v. Robinson, 44 Wash.App. 611, 619, 722 P.2d 1379, review denied, 107 Wash.2d 1009 (1986); cf. State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967) (one of facts determining child's testimonial competence is mental capacity to receive accurate impression of occurrence).

Our Supreme Court subsequently clarified Ryan on this point in State v. John Doe, supra, which was decided after the initial briefs in this appeal were filed. In Doe, the court rejected the notion that testimonial incompetence of the hearsay declarant at trial rendered the declarant's statements unreliable as a matter of law. Doe, 105 Wash.2d at 896, 719 P.2d 554; see also State v. Robinson, supra 44 Wash.App. at 620, 722 P.2d 1379; State v. Frey, supra; State v. Slider, 38 Wash.App. 689, 694 n. 2, 688 P.2d 538 (1984), review denied, 103 Wash.2d 1013 (1985). The court emphasized that reliability is the touchstone of admissibility under the child abuse hearsay exception. Although the court arguably addressed only the issue of whether testimonial incompetence at trial precluded a finding of reliability, we find the reasoning in Doe similarly persuasive with respect to Hunt's argument concerning testimonial competence of the hearsay declarant at the time of the statement:

Reliability does not depend on whether the child is competent to take the witness stand, but whether the comments and circumstances surrounding the statement indicate it is reliable. Reliability of out-of-cou...