State v. Lobos
| Decision Date | 22 November 2011 |
| Docket Number | 28987-7-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JAVIER R. LOBOS, Appellant. |
UNPUBLISHED OPINION
Javier R. Lobos appeals his conviction for first degree child molestation. He assigns error to several decisions made at the competency hearing, the juvenile adjudication, and the motion for revision. We affirm the orders of the juvenile court and superior court in all respects.
In early April 2009, six-year-old A.K.T. spent the weekend with her father, Jered Taylor. During the visit, A.K.T. and Mr Taylor stayed overnight at the home of Rodrigo Lobos (Rod Lobos) and his son, 14-year-old Javier Lobos (Mr. Lobos). At the end of the weekend, A.K.T. returned to her mother's home. A.K.T.'s mother, Terri Taylor, noticed that A.K.T slept for several hours after she came home. That evening A.K.T. refused to allow Ms. Taylor to wipe A.K.T. after a bowel movement. Ms. Taylor considered both of these events to be unusual behavior for A.K.T.
On the following Wednesday morning, April 8, 2009, Ms. Taylor was getting A.K.T. ready to take a bath. A.K.T. asked Ms. Taylor to shut the door because she did not want her brother to hear her conversation. A.K.T. told her mother that she thought she (A.K.T.) had a boyfriend. Ms. Taylor questioned A.K.T. as to who A.K.T. thought was her boyfriend. A.K.T. responded that it was Mr. Lobos. Ms. Taylor asked A.K.T. what Mr. Lobos did that made her think he was her boyfriend and A.K.T. replied that he picked her up and carried her into his bed. Ms Taylor became nervous and upset. She dropped the matter intending to discuss it further after work and school.
That evening, Ms. Taylor asked A.K.T. to come sit with her. Ms. Taylor reminded A.K.T. of the conversation that morning and asked if anything else happened after Mr. Lobos put her into his bed. A.K.T. said that Mr. Lobos had put his hand up her shirt and touched her boobies, he kissed her, he touched her butt, and made her get on top of him. A.K.T. also told her mother that Mr. Lobos asked A.K.T. to touch his penis, but she refused. The following day, Ms. Taylor reported the matter to law enforcement.
On April 15, Ms. Taylor took A.K.T. to the Sexual Assault Response Center (SARC) to be interviewed by a trained specialist, Mari Murstig. A.K.T. told Ms. Murstig that she knew the difference between a truth and a lie. A.K.T. promised to tell the truth. She told Ms. Murstig that Mr. Lobos had forced her into his room. He told her to sit on top of him, he put his hands under her clothes and touched her bottom and her boobies, kissed her on the lips, and put his tongue in her mouth. A.K.T. also told Ms. Murstig that Mr. Lobos's penis was touching her bottom and it felt weird. Mr. Lobos asked A.K.T. to touch his penis but she did not.
In the week following A.K.T.'s initial conversation with her mother, A.K.T. made two other disclosures to Ms. Taylor. The first disclosure came after A.K.T. put her tongue in her mother's mouth during a kiss. A.K.T. never kissed her mother with her tongue before. Ms. Taylor asked if this was something that Mr. Lobos had done and A.K.T. replied yes.
In the second disclosure, A.K.T. was sitting on the couch and Ms. Taylor was standing in the dining room. A.K.T. told Ms. Taylor that there was something she forgot to tell Ms. Taylor. A.K.T. said that Mr. Lobos was doing stuff to her when the adults got home and that is when he got off the bed. A.K.T. also told her mother that Mr. Lobos told her not to tell anyone.
Competency and Child Hearsay Hearing (Juvenile Court).
Mr. Lobos was charged with first degree child molestation. The juvenile court held a hearing to determine if A.K.T. was competent to testify at trial, if A.K.T.'s hearsay statements were admissible, and if the digital video disc (DVD) recording of the interview with Ms. Murstig was admissible. The juvenile court determined that A.K.T. knew the difference between a truth and a lie, had no motive to lie, made consistent statements regarding the abuse to multiple people, and was generally an honest person. The juvenile court deemed A.K.T. competent to testify.
The juvenile court also determined that four of the five statements made by A.K.T. were either spontaneous or the result of nonleading questions and, therefore, were admissible. These statements included (1) A.K.T.'s initial disclosure, (2) the comments A.K.T. made to her mother the same evening, (3) the interview with Ms. Murstig, and (4) A.K.T.'s comment about Mr. Lobos telling her not to tell anyone. The juvenile court also determined the DVD interview was admissible. However, the juvenile court found that the conversation between A.K.T. and her mother when A.K.T. kissed her mother with her tongue was not spontaneous. The juvenile court declined to admit this hearsay statement.
Trial in Juvenile Court (Juvenile Adjudication).
A.K.T. testified at Mr. Lobos's juvenile adjudication. Both parties and the court agreed that A.K.T. would be situated so A.K.T. could not see Mr. Lobos's face, but still be in a position where the juvenile court commissioner could observe A.K.T. during testimony. The juvenile court also allowed Mr. Lobos's attorney to relocate to a position where she could see A.K.T.'s face.
The juvenile court found Mr. Lobos guilty of first degree child molestation. The findings of fact recounted A.K.T.'s testimony, which corresponded to A.K.T.'s earlier pretrial statements. The juvenile court also found that Mr. Lobos's actions were considered sexual contact, but did not specifically include a finding that Mr. Lobos's motive for the contact was sexual gratification. Mr. Lobos sought revision of the juvenile court's ruling.
Revision Hearing in Superior Court.
A motion for revision places the superior court in the position of the appellate court. In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). The superior court determined that a finding of sexual gratification was an ultimate fact needed to support the charge of first degree child molestation. Because the juvenile court's findings from the juvenile adjudication inferred that sexual gratification existed, the superior court remanded the case back to the juvenile court for clarification of the findings. The juvenile court amended the findings to include a finding of sexual gratification. The superior court then denied Mr. Lobos's motion for revision.
Appeal.
Mr. Lobos appeals, asserting: (1) A.K.T. was not competent to testify, (2) admission of the DVD interview violated the confrontation clause, article I, section 22 of the Washington Constitution, (3) A.K.T.'s hearsay statements were inadmissible, (4) a mistrial was appropriate because an inadmissible statement was introduced at the juvenile adjudication, (5) the State failed to prove the ultimate fact of sexual gratification so remand to clarify the findings was not appropriate, (6) the State failed to prove that Mr. Lobos was 36 months older than A.K.T., (7) Mr. Lobos received ineffective assistance of counsel, and (8) the placement of A.K.T. while testifying at the juvenile adjudication violated the confrontation clause.
Appellate courts give great deference to the trial court's determination of a child's competency to testify, and the trial court's findings will not be disturbed absent proof of a manifest abuse of discretion. State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). The entire record may be examined when a competency determination is appealed. State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1174 (2005).
A child witness is competent to testify if the child (1) understands the obligation to speak the truth on the witness stand, (2) has the mental capacity at the time of the occurrence to receive an accurate impression of the matter, (3) has a memory sufficient to retain an independent recollection of the matter, (4) has the capacity to express in words her memory of the occurrence, and (5) has the capacity to understand simple questions about the occurrence. Allen, 70 Wn.2d at 692.
A child who has a "long-standing, often-observed inability to distinguish what was true from what was not" may be found incompetent. State v. Karpenski, 94 Wn.App. 80, 106, 971 P.2d 553 (1999), overruled on other grounds by State v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003). But inconsistencies in a child's testimony do not necessarily call into question witness competency. State v. Carlson, 61 Wn.App. 865, 874, 812 P.2d 536 (1991). Rather, such inconsistencies generally relate to the witness's credibility and the weight to give to her testimony. Id.
In Carlson, the trial court did not abuse its discretion by finding that a three-year-old witness was competent where the child demonstrated her ability to distinguish between the truth and a lie, gave consistent testimony about the defendant's acts, was able to testify accurately about her age and her friend's names, and identify people in the courtroom. See id. at 874-75.
Mr. Lobos does not challenge any of the factual findings from the juvenile court's competency hearing. Instead, he contends the juvenile court erred by not applying the Allen factors. He primarily challenges the court's failure to properly apply the second and third factors, contending that A.K.T. did not have the mental capacity to receive an accurate impression of the matter and that she lacked a sufficient memory to independently recall the incident. Mr. Lobos alleges that A.K.T.'s erroneous testimony that she played in the snow and that she carved pumpkins the day after the abuse means that A.K.T. could not accurately identify when the abuse occurred. Therefore, she should not have been deemed competent to testify.
Mr Lobos relies...
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