State v. Pederson, No. 21863-5-III (WA 3/15/2005)

Decision Date15 March 2005
Docket NumberNo. 21863-5-III,21863-5-III
CourtWashington Supreme Court
PartiesSTATE OF WASHINGTON, Respondent, v. CURT ALAN PEDERSON, Appellant.

Appeal from Superior Court of Klickitat County. Docket No. 01-1-00139-8. Judgment or order under review. Date filed: 03/03/2003. Judge signing: Hon. E Thompson Reynolds.

Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.

Counsel for Respondent(s), Shawn N Anderson, Klickitat County Pros Ofc, M/S-Ch-18, 205 S Columbus Ave, Goldendale, WA 98620-9289.

David Brian Trefry, Attorney at Law, 211 W Augusta Ste a Spokane, WA 99205.

KATO, C.J.

Curt Alan Pederson was convicted of four counts of first degree child rape and two counts of first degree child molestation. Contending the evidence was insufficient to support one conviction for first degree child molestation and the trial court erred when it (1) declined to sever the counts, (2) determined a child was competent to testify, (3) admitted child hearsay testimony under RCW 9A.44.120, (4) allowed a third amended information, (5) gave certain jury instructions, and (6) denied his motion for a new trial and to arrest judgment, he appeals. In his statement of additional grounds for review, Mr. Pederson raises several other issues. We affirm.

In December 2001, A.H. and her brothers T.H. and D.H. told their mother, Cathy H., that they had been sexually abused by Curt Pederson, her boyfriend. When Ms. H.'s cousin, Kasey C., went to Ms. H.'s home later that day, she noticed A.H., T.H, and D.H were upset and crying. Kasey C. was told that she needed to talk to her daughters, N.A. and A.C.

At home, Kasey C. asked her daughters if they had been touched by Mr. Pederson. N.A. told her Mr. Pederson had touched her breasts at Ms. H.'s home. A.C. said Mr. Pederson `had touched her private area' and `touched his private to her private.' Report of Proceedings (RP) at 573. Kasey C. then told Ms. H.'s coworker, Tanya C., about her daughters' disclosure. Tanya C.'s children sometimes played with Ms. H.'s children. Tanya C. asked her daughter, C.C., if Mr. Pederson had ever touched her. C.C. told her mother he had touched her `down the front of her pants.' RP at 632.

On December 14, 2001, Mr. Pederson was charged with one count of first degree child rape, two counts of second degree child rape and one count of first degree child molestation. On December 6, 2002, the information was amended to charge Mr. Pederson with six counts of first degree child rape, one count of attempted first degree child rape, two counts of second degree child rape, one count of third degree child rape, five counts of first degree child molestation and one count of second degree child molestation. At trial, the information was amended to conform to the evidence. This amended information changed the dates originally stated in the first degree child molestation charge involving N.A. as well as the dates stated for all the charges involving A.C.

Prior to trial, the court held a combined child competency and child hearsay hearing. Detective Michael Kallio testified that on December 12, 2001, he interviewed A.C. and N.A. after their mother had called the sheriff's office advising that her daughters may have been sexually abused by Mr. Pederson. A.C. told the detective Mr. Pederson had taken off her pants and touched her between the legs nine times. RP at 149. A.C. said Mr. Pederson had touched her in his room. Each time Mr. Pederson took her into his room, he touched her and one time it hurt her. A.C. explained two different incidents when Mr. Pederson had taken her into his room, took her pants off, and touched her. N.A. told the detective she was lying on the couch at Ms. H.'s house with her eyes closed when Mr. Pederson went inside her shirt and touched her chest.

Detective Kallio further testified that on January 2, 2002, he and Sergeant Eric Anderson interviewed C.C. Sergeant Anderson testified that C.C. said Mr. Pederson had touched her in the privates while she was at Ms. H.'s house. C.C. told him they would be watching a children's movie in Mr. Pederson and Ms. H.'s room and he `would dig in her privates.' RP at 129. C.C. said this happened probably about 20 times and Mr. Pederson also touched `inside her butt.' RP at 129-30.

Robin Light, a victim witness administrator and senior investigator for the Yakima County Prosecuting Attorney's Office, interviewed A.C. on January 8, 2002. A.C. stated spontaneously to her that Mr. Pederson had touched her. A.C. said Mr. Pederson was Ms. H.'s husband and, without Ms. Light asking her a question, A.C. stated she was in Mr. Pederson's bedroom. Ms. Light took out a piece of paper and asked A.C. to draw the bedroom. A.C. drew an elongated square and said she and Mr. Pederson were in the bedroom. They were on Mr. Pederson's bed. A.C. told Ms. Light she was going into the living room to sit with A.H., when Mr. Pederson grabbed her by the arm and said to get up. A.C. said Mr. Pederson took her into the bedroom and touched her `in the private spot.' RP at 197. A.C. then pointed to her genital area. Ms. Light took out a blank body map drawing and asked A.C. to put an `X' on the drawing where Mr. Pederson had touched her. A.C. put an `X' on the center of the private spot and then drew a line from it, saying it was a `pee-pee' or `a private' where Mr. Pederson had touched her. RP at 198. A.C. told Ms. Light that he had touched her with both of his hands in a rubbing up and down motion.

Ms. Light then took out a second body map drawing and asked A.C. to put an `X' on the part of the body where Mr. Pederson had touched her. A.C. put an `X' on both of the hands and said Mr. Pederson touched her with his index finger. A.C. told Ms. Light that he had touched inside her private spot. A.C. demonstrated this touching with `an in and out motion with her finger.' RP at 199. A.C. said Mr. Pederson had touched her more than one time and it happened on more than one day. He had made her touch his private and his butt. He also had put his private inside of her private. A.C. also told Ms. Light that Mr. Pederson was on top of her on the bed and he had made her suck `his pee-pee.' RP at 210.

Kasey C. then testified that she asked A.C. and N.A. if Mr. Pederson had touched them. She said N.A. was hysterical and told her he had touched her breasts. Kasey C. then asked A.C. the same question. A.C. was crying. She told her mother Mr. Pederson had touched her private areas with his hands and had touched his private areas to her private areas at Ms. H.'s house.

Tanya C. testified she asked C.C. if Mr. Pederson had touched her. She said C.C. did not want to say anything right away, but then said `yes.' RP at 268. C.C. told her Mr. Pederson had gone down the front of her pants and touched her privates.

At the conclusion of the hearing, the trial court found A.C., N.A., and C.C. competent to testify. The trial court also found the hearsay statements were admissible.

All six children testified at trial. A.H. testified Mr. Pederson first touched her when she was 11 years old. A.H. was sleeping when he got on top of her and put his penis in her vagina.

T.H. testified he was first touched by Mr. Pederson when he was between 11 and 12 years old. T.H. was in the living room when Mr. Pederson put him on the couch. He pulled down T.H.'s pants, put his hand on T.H's `private,' and moved his hand `up and down' for about one minute. RP at 522. T.H. said Mr. Pederson had most recently touched him in December 2001, while he was on the bed in Ms. H.'s bedroom. Mr. Pederson again put his hand on T.H.'s `private' and moved his hand `up and down.' RP at 525.

D.H. testified he was between the ages of seven and eleven when Mr. Pederson touched him. The first time Mr. Pederson touched him, he was in Ms. H.'s bedroom watching a movie. Mr. Pederson touched his `privates.' RP at 554-55. D.H. did not keep count how many times Mr. Pederson had touched him, but the last incident occurred when he was in the fifth grade.

N.A. testified Mr. Pederson touched her while she was spending the night at Ms. H.'s house. She was lying on the couch when he put his hand under her shirt and touched her chest.

A.C. testified Mr. Pederson touched her `in the private' at Ms. H's house before she was six years old. RP at 605. Mr. Pederson touched her more than 13 times. A.C. went into Ms. H.'s bedroom when Mr. Pederson asked her if she wanted to watch a movie. He touched A.C. while she was in the bedroom. A.C. also testified Mr. Pederson touched her `with his private.' RP at 615.

C.C. testified she was at Ms. H.'s house playing with A.H. when Mr. Pederson touched her in the kitchen. C.C. said she was six years old when he put her on his lap and put his hands down the front of her pants. C.C. said Mr. Pederson was `inside,' `feeling around,' and that it felt `uncomfortable.' RP at 647.

At the end of the State's case, Mr. Pederson moved to dismiss all charges. The court dismissed both second degree child rape charges involving A.H., one count of attempted first degree child rape involving A.C., one count of first degree child rape involving C.C., three counts of first degree child molestation involving D.H. and T.H., one count of second degree child molestation, and one count of third degree child rape. The jury found Mr. Pederson not guilty of one count of first degree child rape involving A.H., but guilty of the remaining counts—one count of first degree child molestation involving N.A., three counts of first degree rape involving A.C., one count of first degree molestation involving A.C., and one count of first degree rape involving C.C. He appeals.

Mr. Pederson contends the trial court erred in denying his motion to sever. He made a pretrial motion to sever the counts as to each victim and renewed the motion at the close of the State's case. The court denied the motions and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT