State v. Kennealy

• Decision Date: 25 August 2009
• Docket Number: No. 37665-2-II.,37665-2-II.
• Citation: 214 P.3d 200,151 Wn. App. 861
• Parties: STATE of Washington, Respondent, v. Dennis KENNEALY, Appellant.
• Court: Washington Court of Appeals

214 P.3d 200

151 Wn. App. 861

STATE of Washington, Respondent, v. Dennis KENNEALY, Appellant.

No. 37665-2-II.

Court of Appeals of Washington, Division 2.

August 25, 2009.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

VAN DEREN, C.J.

¶ 1 Dennis Kennealy appeals his convictions for first degree child rape, first degree child molestation, fourth degree assault with sexual motivation, and communication with a minor for immoral purposes. He maintains that the trial court erred in finding one of the child witnesses, S.J., competent. He also contends that the trial court erred in admitting multiple child hearsay statements and ER 404(b) evidence of prior sexual misconduct with other children. Finally, Kennealy argues that the prosecutor committed misconduct by repeatedly referring to the prior misconduct evidence as part of a common scheme or plan during closing argument. We find no error and affirm.

FACTS

¶ 2 In the summer of 2007, two minor girls, K.W. and M.Y., lived with their mother; another minor boy, S.J., was visiting his grandmother during that same time. S.J.'s grandmother and K.W.'s and M.Y.'s mother lived in the same apartment complex as Kennealy, in Yelm, Washington. That summer, S.J. was six years old, K.W. was seven, and M.Y. was five.

¶ 3 After a child sexual abuse investigation that summer, the State charged Kennealy with one count of first degree child rape involving S.J., one count of first degree child molestation involving M.Y.; one count of fourth degree assault with sexual motivation involving K.W., and one count of communication with a minor of immoral purposes involving K.W. The trial court held competency and child hearsay admission hearings before trial. The trial court found each child competent to testify, admitted multiple hearsay statements to support each child's allegation against Kennealy, and admitted evidence of Kennealy's prior sexual misconduct with four other children.

I. S.J.'s Competency

A. Competency

¶ 4 Following a competency hearing, the trial court found that all of the children were "remarkable in their ability to remain focused in the courtroom and relatively relaxed"; that the children each gave complete accounts of incidents involving Kennealy; and that they each understood the obligation to tell the truth, exhibiting their best efforts to do so. Report of Proceedings (RP) (Feb. 19, 2008) at 66. It concluded that all three were competent to testify. Kennealy challenges the trial court's conclusion that S.J. was competent to testify against him.

¶ 5 At the competency hearing, the trial court learned that S.J. takes medicine for attention deficit hyperactivity disorder (A.D.H.D.) and that he sometimes has trouble with sequence. S.J. was able to testify accurately about his age, who he lives with, his birthday, his school, and his teacher's name. And despite S.J.'s confusion about some of the details surrounding the incident at issue, the trial court concluded, after hearing S.J.'s testimony, that he was competent because he listened carefully to the questions and attempted to provide an accurate answer. The trial court also noted that S.J. may have withheld information during some interviews and may not have always told the truth. But at the conclusion of the competency hearing, the trial court found that he (1) understood the obligation to speak the truth, (2) had sufficient memory of the incident, and (3) had adequate mental capacity at the time of the incident to allow him to testify about it. S.J. was also able to understand questions on direct and cross examination.

¶ 6 An officer who interviewed S.J. testified at trial that S.J. was observant, recognized where he was when they were driving together, and spelled "Yelm." RP (Mar. 10, 2008) at 376-77. The officer also went through a "truth-and-lie" test by asking S.J. questions and concluded that S.J. was always able to answer the questions. RP (Mar. 10, 2008) at 378-79.

¶ 7 At trial, S.J. testified that he knew he would get in trouble if he told a lie. When asked if it was a truth or a lie that the prosecutor had an elephant on his head, S.J. said it was a lie because he did not have one. And when the prosecutor asked S.J. if he could promise to tell the truth and not tell any lies, S.J. said that he promised to tell the truth. But S.J. had trouble with the word "promise." RP (Mar. 5, 2008) at 77. When the prosecutor asked S.J., "[I]f I promise you I will give you a cookie, do I have to give you a cookie?" and S.J. responded, "No." RP (Mar. 5, 2008) at 77.

¶ 8 S.J. testified at trial that he had been inside of Kennealy's apartment twice to ask for popsicles. He also testified that he dreamed about Kennealy having popsicles. Before trial, S.J. said that the first time he went there he took a bath, but at trial, he said that he had made up the story about taking a bath. S.J. also stated at one point that Kennealy had a Nemo fish on top of his television and that he took it to his grandmother's house and took a bath with it. An officer confirmed that Kennealy does have a Nemo toy in his apartment. But S.J. later said that he made up the story about taking it.

¶ 9 S.J. testified at trial that the second time he went into Kennealy's apartment was around July 4, 2007.¹ S.J. testified that he went to Kennealy's apartment to get a popsicle. S.J. told a police officer that Kennealy gave him a cappuccino, which Kennealy confirmed. S.J. testified that while he was inside, Kennealy removed S.J.'s pants, put them on the bed, and "suck[d][his] private parts." RP (Mar. 5, 2008) at 85-86. When the prosecutor asked S.J. how he knew that Kennealy sucked his private parts, S.J. responded, "I don't know. I just dreamed about it all the time." RP (Mar. 5, 2008) at 87.

¶ 10 S.J. was confused about where in Kennealy's apartment this incident took place. He told an officer in his first interview that the incident had occurred in the living room, but in another interview, he said that it had occurred in the bedroom. At one point, S.J. said that the bed was rectangular, and he later said that it was round. S.J. also said that the floors were wood, but they were carpeted. And he told a police officer that the room had doors like "Eddie" and then denied saying that. RP (Feb. 4, 2008) at 112, 220-21. The bedroom does not have a round bed or wood floors.

II. Hearsay

A. S.J.

¶ 11 The trial court admitted statements that S.J. made to his mother, sister, and a police officer around the time of the incident after finding that they met the Ryan² reliability factors.³ It explained that S.J.'s statements to his mother and sister were spontaneous, close to the incident, appeared consistent, and there was no evidence of motive or bias to misrepresent facts. The trial court similarly found that there was a sufficient level of reliability and trustworthiness with the statements to the officer and that it was insignificant that S.J. was in a "time-out" when he made the statement to his sister. RP (Feb. 19, 2008) at 81.

¶ 12 At the child hearsay hearing, S.J.'s sister said that when S.J. made the statement, he was in trouble for something and was sitting on the floor near her while she was talking on the phone with a friend. She told her friend that Kennealy was acting weird. S.J. then told his sister that Kennealy sucked his "knuckles"⁴ and "pointed to his private parts." RP (Feb. 4, 2008) at 185-86. S.J. told his sister not to tell anyone because it was a secret. But S.J.'s sister called the police, and a police officer came to their grandmother's apartment.

¶ 13 The trial court also admitted S.J.'s hearsay statements to the police officer. This included evidence that S.J. nodded in agreement as his sister told the officer what S.J. had just told her. S.J. told the officer in two different interviews the same thing that he had told his sister. Specifically, S.J. told the officer that Kennealy had pulled his pants down, "sucked his knuckles," and showed the officer how Kennealy had used his mouth to do so. RP (Mar. 10, 2008) at 396. S.J. also told the officer that Kennealy had asked him not to tell anyone and that nobody else was in the room when it happened.

B. M.Y.

¶ 14 M.Y. was six years old at the time of trial. She testified that she had been inside Kennealy's apartment only a couple of times but that he gave her popsicles "[a] lot of times." RP (Mar. 5, 2008) at 130. She said that Kennealy touched her once on her bottom, underneath her clothes, and between her legs while she was standing on the stairs outside of his apartment. M.Y. testified at the child hearsay hearing that the touching occurred on a sunny day, outside, while her sister, K.W., was present.⁵

¶ 15 The trial court also admitted hearsay statements M.Y. made to her father, a police officer who investigated the incident, and Nancy Young, a child sexual assault interviewer. The trial court found that M.Y.'s statements to her father were prompt, spontaneous, and reliable. It admitted her statements to the officer because his interview was close in time to the incident and admitted the statements to Young because the clinical setting in which Young interviewed M.Y. enhanced the reliability of her statements and encouraged spontaneity.

¶ 16 M.Y.'s father testified that he spoke with M.Y. after he learned of the allegations against Kennealy. He asked M.Y. whether she knew Kennealy; she responded that she hated him, that he lives by the playground, and that he gave them popsicles. When asked why she hated Kennealy, M.Y. told her father that he touches them and M.Y. put her hands down the front of her pants indicating or suggesting that Kennealy touched her there. M.Y.'s father contacted the police.

¶ 17 When the officer interviewed M.Y., M.Y.'s mother was present. The officer testified that M.Y. told him that Kennealy had touched her and...