State v. Miyares

• Decision Date: 24 October 2022
• Docket Number: 83408-8-I
• Parties: STATE OF WASHINGTON, Respondent, v. ALEX MIYARES, Appellant
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent,
v.
ALEX MIYARES, Appellant

No. 83408-8-I

Court of Appeals of Washington, Division 1

October 24, 2022

UNPUBLISHED OPINION

ANDRUS, C.J.

Alex Miyares appeals his convictions for first degree child molestation, arguing the trial court erred in admitting hearsay statements made by the child victim, that he received ineffective assistance of counsel, and that he was denied the right to present a defense. We disagree and affirm his conviction.

FACTS

In 2018, seven-year-old B.B. lived with her adoptive mother and biological aunt, Kaylyn Tolliver,^[1] Tolliver's partner, Taki Alazadi, their infant son, and two other adults, Tolliver's childhood friend, Ashlee Hoyt, and her boyfriend, Miyares. After Hoyt moved out of the home, Miyares continued to live in a bedroom on the lower level of Tolliver's home.

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B.B., who had a very close relationship with Hoyt, had developed a good relationship with Miyares. Miyares watched B.B. while Tolliver and Alazadi were working and helped out by picking her up from school. Miyares took B.B. on outings to play golf or to visit his mother. And B.B. often watched movies with Miyares in his bedroom, sitting with him on his bed with the door closed.

On the evening of December 22, 2018, B.B. and Miyares were sitting on his bed watching television. When Tolliver went to Miyares' room to tell B.B. it was time for bed, she saw Miyares and B.B. both sit up "very quickly off the bed like they were surprised." Initially, Tolliver thought they reacted this way because Miyares was smoking hookah and B.B. was not allowed to be around him when he smoked. After a brief conversation, Tolliver and B.B. went upstairs and went to bed.

The next morning, feeling uneasy, Tolliver asked B.B. why she and Miyares were startled and jumped up so fast when she walked into the room. B.B. began to cry and told Tolliver "Alex touches me." When Tolliver asked what that meant, B.B. explained "like my private parts." Tolliver confirmed that B.B. understood the seriousness of her accusation. Tolliver testified that B.B. was very upset, crying, and unwilling to disclose any details.

Tolliver shared these allegations with Alazadi, who asked B.B. to explain to him what had happened. According to Alazadi, B.B. told him that Miyares had touched her inappropriately. Like Tolliver, Alazadi confronted B.B. about the severity of her allegations and asked her repeatedly if she was sure. She

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responded that she was. She also told Alazadi that Miyares told her not to tell anyone.

After reporting the incident to the police, and at the police suggestion, Tolliver took B.B. to a hospital where Dr. Randal Bensen examined her. During this examination, B.B. told Dr. Bensen that the most recent episode of inappropriate touching had occurred the prior week. The examination revealed no evidence of any physical trauma to B.B. Child Forensic Interviewer Danielle Singson also interviewed B.B. In that interview, B.B. again disclosed that Miyares had touched her inappropriately.

The State charged Miyares with three counts of child molestation in the first degree. Prior to trial, the State sought to admit out-of-court statements B.B. made to Tolliver, Alazadi, and Singson under RCW 9A.44.120. Following an evidentiary hearing, the trial court concluded that the criteria set forth in State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984) weighed in favor of admissibility and admitted these statements.

Miyares' first trial in October 2020 ended in deadlock. The State retried Miyares in September 2021. The trial court adopted the court's prior ruling regarding the child hearsay and admitted the same testimony.

Miyares testified at the first, but not the second, trial and denied ever touching B.B. The State read this testimony to the jury at the second trial. The jury convicted Miyares of two counts of first-degree child molestation and acquitted him of the third charge. He was sentenced to 75 months to life.

Miyares appeals.

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ANALYSIS

1. Child Hearsay

Miyares argues the trial court erred in admitting statements that B.B. made to Tolliver, Alazadi, and Singson under RCW 9A.44.120 because those statements lacked sufficient indicia of reliability. We disagree.

RCW 9A.44.120 allows a trial court to admit child hearsay if it is made by a child under the age of ten and describes any act of sexual contact performed or attempted with or on the child by another, if the trial court concludes, after a hearing, "that the time, content, and circumstances of the statement provide sufficient indicia of reliability," and the child testifies at the proceedings.

In determining the reliability of child hearsay statements, the trial court considers the following nine Ryan factors:

(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statement; (4) the spontaneity of the statements; (5) the timing of the declaration and the relationship between the declarant and the witness; (6) whether the statement contained express assertions of past fact; (7) whether the declarant's lack of knowledge could be established through cross-examination; (8) the remoteness of the possibility of the declarant's recollection being faulty; and (9) whether the surrounding circumstances suggested the declarant misrepresented the defendant's involvement.

State v. Kennealy, 151 Wn.App. 861, 880, 214 P.3d 200 (2009) (footnote omitted) (citing Ryan, 103 Wn.2d at 175-76). No single factor is dispositive, but a statement is not considered reliable unless the factors are "substantially met." Id. at 881.

We review a trial court's decision to admit child hearsay for abuse of discretion. State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1174 (2005). We review the trial court's findings of fact for substantial evidence.

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State v. A.X.K., 12 Wn.App. 2d 287, 298, 457 P.3d 1222 (2020). Miyares challenges the court's findings for the first, second, fourth, fifth, and ninth factors.

Motive to Lie

Miyares contends the trial court erred in finding that B.B. had no apparent motive to lie about the molestation. We disagree. The evidence presented to the court supports the trial court's finding. Tolliver and Alazadi both testified that B.B. and Miyares were close, often spent time together, and had a good relationship. B.B. never expressed any anger or resentment toward Miyares. This evidence supports the trial court's finding that "[n]o evidence tends to indicate there is any apparent motive for [B.B.] to lie."

Miyares nonetheless asserts that B.B. had three potential motives to lie. First, he contends that B.B. had a motive to accuse Miyares of misconduct in order to evade responsibility for violating Tolliver's rule prohibiting her presence while the adults were smoking. While the adults in the house occasionally smoked hookah, Tolliver prohibited B.B. from being present while hookah was out. Despite this rule, on the night Tolliver found B.B. in Miyares' room, Miyares had his hookah pipe out while B.B. was present.

Second, Miyares contends that B.B. had a motive to lie so she could copy her friend, Caytlyn, who had told B.B. she had experienced similar but unrelated sexual misconduct.

The problem with these arguments is that neither party presented any evidence during the child hearsay hearing that Miyares was smoking in B.B.'s presence or that B.B. was violating a rule by being in his room while Miyares

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smoked, or that Caytlyn had told B.B. about being sexually molested. The court could not have considered this evidence in conducting its Ryan analysis because the evidence was not before it.

Third, Miyares argues that B.B. had a motive to lie simply to attract attention from adults. The evidence does support a conclusion that B.B. had what Tolliver described as a "chaotic" upbringing, due to a mother addicted to drugs and B.B. being removed her from her mother's custody on two occasions. But there is nothing in the record to suggest that these life experiences led B.B. to act out to get attention.^[2] The trial court correctly found that "[n]o motive was developed or brought to light in either direct or cross examination."

Because the evidence supports the trial court's finding that B.B. had no apparent motive to lie, the court did not abuse its discretion in concluding the first Ryan factor weighed in favor of admitting B.B.'s out-of-court statements.

B.B.'s General Character

Next, Miyares argues nothing in the record establishes B.B.'s reputation for telling the truth and that the record establishes that B.B. was raised in a "chaotic" environment that "would necessarily inhibit a child's ability to distinguish between fact and fiction." The record does not support this argument.

The trial court found that "[B.B.'s] general character favors admissibility of statements. No evidence suggests any reputation for not telling the truth." Substantial evidence in the record supports this finding. B.B. testified that she

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understood the difference between a truth and a lie, described each for the court, and explained that it is very bad not to tell the truth. Tolliver testified that B.B. was "a very outgoing child," "helpful" and "very mature for her age," who understood the difference between a truth and a lie. Alazadi, who had known B.B. since she was three years old, testified that B.B. was not known to lie and that, to his knowledge, she had not lied to him or to anyone else.

Miyares does not explain how the trauma B.B. experienced in her childhood impacted her ability to tell the truth or led her to develop a reputation for being dishonest. There is certainly no evidence to suggest either was the case. The trial court did not abuse its discretion in finding that this factor weighed in favor of reliability.

Spontaneity of the Statements

Miyares next...