State v. M.B.D.
| Decision Date | 22 June 2020 |
| Docket Number | No. 79924-0-I,79924-0-I |
| Parties | STATE OF WASHINGTON, Respondent, v. M.B.D., d.o.b. 05/02/04, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
VERELLEN, J. — All witnesses are presumed competent to testify, and a party challenging the competence of a child witness must establish a compelling reason to rebut this presumption. Because M.D. fails to rebut the presumption of competence, the court did not abuse its discretion by letting A.K. testify.
A court also has considerable discretion when weighing the Ryan1 factors and deciding to admit testimonial child hearsay under RCW 9.44.120. Because the court's findings of fact were, with an immaterial exception, supported by substantial evidence and the Ryan factors were substantially met, the court did not abuse its discretion by admitting A.K's hearsay statements.
M.D. contends the State failed to prove he and his victim, A.K., were not married. Because the evidence showed the boys were first cousins and firstcousins cannot be married in Washington, the State adequately proved the two were not married when M.D. molested A.K.
M.D. challenges as unconstitutional the statute limiting juvenile defendants to bench trials. Because our Supreme Court already resolved this challenge to the same statute, M.D.'s challenge fails.
M.D. challenges four conditions of community custody on vagueness grounds. Because the conditions restricting his access to controlled substances and materials depicting "sexually explicit conduct" provide sufficient guidance, they are not vague. But the conditions prohibiting M.D. from possessing "any weapon" and from being tardy to school could invite arbitrary enforcement and require clarification.
Therefore, we affirm M.D.'s conviction for first degree child molestation and remand for the court to reconsider two conditions of community custody.
FACTS
About one week before six-year-old A.K. was to start first grade, he and his cousin were playing together at A.K.'s father house. A.K.'s cousin complained to A.K.'s father that A.K. had climbed on top of and humped her. A.K.'s father reprimanded his son and demanded an explanation. A.K. said he was "playing the rape game."2 Soon after, A.K.'s mother picked up her son, and A.K.'s father explained what A.K. had done.
To explain to A.K. why the rape game was bad, A.K.'s mother began to explain sex. When explaining the mechanics of sex, A.K. interrupted her and said, "penis goes into the butt."3 A.K.'s mother had never spoken with him about sex before, heard him talk about sex, or heard anyone discuss sex around him. She asked, "Why would you say that?" and A.K. replied, "Because [M.D.] has done it to me."4
Until that day, M.D. and A.K. had regularly spent time together at their grandmother's apartment along with two older male cousins. M.D., who is seven years older than A.K., would visit his grandmother every few months. In addition to ordinary games, the four cousins would play the rape game, which meant running up behind someone and humping the other person while shouting "rape." Once, when A.K. was five years old, their grandmother caught them playing it and reprimanded the older boys.
A.K. explained to his mother that when he was five, M.D.'s penis had come into contact with his behind. He had accompanied M.D. to the bathroom because M.D., claiming to be afraid of an uncovered vent hole in the bathroom ceiling, demanded company from his younger cousins whenever he had to defecate. M.D. lowered his pants, told A.K. to do the same, and then M.D. put "his penis in [A.K.'s] butt."5
After taking A.K. to his first day of first grade, his mother visited the police. About eight months later, M.D., who was then 14, was charged in juvenile court with first degree child molestation. The court conducted a bench trial, determined A.K. was competent to testify, and admitted A.K.'s hearsay statements pursuant to the child hearsay statute, RCW 9A.44.120. It found M.D. guilty and imposed conditions of community custody.
M.D. appeals.
ANALYSIS
As a threshold matter, the State argues we should not consider two defense exhibits M.D. relies on in his briefing. It argues the exhibits were not offered as evidence, not considered by the court, and should not be considered on appeal. The State is correct that M.D. did not introduce the exhibits until after the court's oral ruling on A.K.'s competence to testify. But the two exhibits, consisting of defense interviews, were used during trial for purposes of impeachment by prior inconsistent statement. RAP 9.1(a) provides that the record on appeal includes "exhibits." Even though the two exhibits were used only for this limited purpose, they are properly part of the record on appeal. Most importantly, the two exhibits and arguments based upon them do not change the outcome of this appeal. We decline to strike them from the record on appeal.
M.D. challenges two of the trial court's findings of fact made to support its conclusion that A.K. was competent to testify. We review a trial court's findings offact for substantial evidence.6 "'Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.'"7 "Unchallenged findings of fact are verities on appeal."8
M.D. contends findings of fact 7 and 8 lack substantial evidence. Finding of fact 7 states, 9
Unchallenged finding of fact 2 states A.K. was performing at grade-level in school. Unchallenged finding of fact 5 states when A.K. was in first grade, he "was able to describe in detail what he had done that morning, responding with sufficient vocabulary to an open-ended question" when interviewed by a child forensic interviewer about the molestation.10 And after the court questioned A.K. to determine his competency, it found he "displayed [a] similar ability [with] other questions posed by the court and both parties."11 No evidence indicated A.K. had any sensory or mental deficits. Because sufficient evidence existed to let the trialcourt conclude A.K. did not have any perceptual deficits at the time of the molestation or when called to testify, substantial evidence supports finding of fact 7.
Finding of fact 8 states, "A.K. accurately described where he had gone to school since kindergarten and his teachers this year and last."12 At the time of trial, A.K. was in second grade. M.D. is correct that A.K.'s testimony and interview with defense counsel are not definite about the name of his first grade teacher. However, sufficient evidence existed for the court to conclude A.K. accurately described where he attended school.
M.D. also challenges the court's legal conclusions about A.K.'s competence. We review a trial court's determination about the competency of a witness for abuse of discretion.13 A court abuses its discretion where its decision was based on untenable factual or legal grounds.14
Every witness, regardless of age, is presumed competent to testify.15 A witness is not competent to testify when they "appear incapable of receiving just impressions of the facts" about which they are questioned "or of relating them truly."16 To rebut the presumption of competence, the party opposing the proposed child witness's testimony must provide a "compelling reason"challenging the child's competence to testify.17 A trial court then relies on the standards in RCW 5.60.050 to determine competence and uses the Allen18 factors to guide its determination.19 The court considers whether 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 concerning which she is to testify, to receive an accurate impression of it; (3) has a memory sufficient to retain an independent recollection of the occurrence; (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.20
No single factor is dispositive.21 Inconsistencies in a child's testimony go to weight and credibility, not to competency.22
M.D. argues A.K. was unable to receive an accurate impression of the molestation. The purpose of the second Allen factor is to "ensure that the child has the mental capacity to perceive accurately the events to which the child is testifying."23 The trial court "may infer the child's ability to accurately perceive events from the 'child witness's overall demeanor and the manner of [his] answers,' thus satisfying the second Allen factor."24
In State v. Woods, our Supreme Court upheld a trial court's determination that the second Allen factor was met and a four-year-old and a six-year-old were competent to testify where both victims gave accurate details about their abuser's apartment and about the general time period when the abuse occurred.25 Because both witnesses were able to provide details of events and circumstances contemporaneous to the abuse and delivered consistent testimony about the molestation, both were competent to testify.26
Similarly, in State v. Kennealy, the court upheld the trial court's determination that a child sex abuse victim was competent to testify.27 Despite the victim's diagnosed attention-deficit hyperactivity disorder and his confusion aboutmany specific details, the court observed the victim testify consistently about the nature of the abuse and testify accurately about details in his life.28
Here, the court observed A.K. testify at the competency hearing. He consistently described how M.D. molested him.29 He also related in multiple interviews and his testimony that...
To continue reading
Request your trial