State v. McDaniel, 12643-1-I

• Decision Date: 06 June 1984
• Docket Number: No. 12643-1-I,12643-1-I
• Citation: 683 P.2d 231,37 Wn.App. 768
• Parties: STATE of Washington, Respondent, v. Gene Thompsontry McDANIEL, Appellant.
• Court: Washington Court of Appeals

Page 768

37 Wn.App. 768

683 P.2d 231

STATE of Washington, Respondent, v. Gene Thompsontry McDANIEL, Appellant.

No. 12643-1-I.

Court of Appeals of Washington,

Division 1.

June 6, 1984.

Rehearing Denied Sept. 6, 1984.

Shafer & Moen, P.S., Steve Moen, Seattle, for appellant.

Norman K. Maleng, King County Pros. Atty., Michael Schwartz, Deborah J. Phillips, Deputy Pros. Attys., Seattle, for respondent.

CORBETT, Judge.

Defendant, Gene Thompsontry McDaniel, appeals his judgment and sentence after a jury verdict of guilty of statutory rape and indecent liberties. We reverse and remand for a new trial.

The victim, who was 9 years old at the time of the trial, had resided in an apartment building managed by the defendant. She testified that she had engaged in "french kissing" with the defendant, that while her clothes were off the defendant had touched her vagina with his mouth, hands, and penis, that when he touched her with his penis it hurt, and that this had happened more than one time. She testified that these incidents had taken place in the defendant's apartment, in the storage room in the apartment building, and in the victim's home. On cross examination, the victim testified that she had looked at her parents' pornographic magazines and had talked about her acquaintances being raped. She denied telling anyone that her stepfather took pictures of her nude or sexually molested her. On redirect, the victim testified that an unknown man once inserted his finger in her vagina.

A physician testified that she had examined the victim and concluded that the victim had been sexually abused. The doctor testified that the degree of dilation of the victim's hymenal opening was not consistent with repeated sexual intercourse with an adult male, but was not inconsistent with a single incident of digital penetration. The doctor also testified over objection that the victim indicated the defendant had touched her vaginal area with his finger and penis and also had kissed her in the same area.

A Children's Protective Services caseworker testified over objection that during an investigative interview, the victim stated that the defendant "would pull her panties down, touch her in the vagina, insert his finger and that it hurt. That he would make her do oral sex kinds of things to him ...."

The victim's aunt testified over objection that the victim told her that the defendant touched her in her "private areas" and made her kiss him.

Defendant denied that the alleged events occurred, and called several witnesses who related statements by the victim that she had been raped or molested by an unknown man, that her stepfather liked her to pose nude, and that she hated the defendant because he was involved in a Children's Protective Services proceeding in which the victim and her brother were removed from their parents' home. The witnesses also testified that they observed many pornographic magazines and books in the victim's apartment and observed the victim reading a pornographic magazine with friends in the apartment manager's office.

Defendant assigns error to admission of testimony by the caseworker, the physician and the aunt relating statements made by the victim concerning the alleged incidents. He contends that the testimony was hearsay and should have been excluded pursuant to ER 802. The trial court admitted the testimony of the caseworker and the aunt as prior consistent statements under ER 801(d)(1)(ii), ¹ and the testimony of the physician under ER 803(a)(4). ²

Prior out-of-court statements consistent with the victim's testimony are not admissible to reinforce or bolster the testimony of the victim. Thomas v. French, 99 Wash.2d 95, 103, 659 P.2d 1097 (1983). Repetition generally is not a valid test of veracity. State v. Harper, 35 Wash.App. 855, 670 P.2d 296 (1983).

Evidence which counteracts a suggestion that the witness changed his story in response to some threat or scheme or bribe by showing that his story was the same prior to the external pressure is highly relevant in shedding light on the witness' credibility. Evidence which merely shows that the witness said the same thing on other occasions when his motive was the same does not have much probative force "for the simple reason that mere repetition does not imply veracity."

(Footnotes omitted.) 4 Weinstein's, Evidence p 801(d)(1)(B), at 117 (1981), quoted with approval in State v. Harper, supra at 858, 670 P.2d 296. There was no showing that the victim's consistent statements were made at a time when the motive to falsify was not present. Evidence which merely showed that the victim made similar statements to the caseworker and aunt was of little probative value and should not have been admitted as prior consistent statements. The evidence was not admissible under ER 801(d)(1)(ii). It cannot be said that admission of the testimony was harmless error. The victim's veracity was severely challenged. The questions to her were somewhat leading, and her specificity as to the offense was not as clear or succinct as stated by the caseworker. We cannot say...