State v. Price
| Decision Date | 16 November 2006 |
| Docket Number | No. 77152-9.,77152-9. |
| Citation | 158 Wn.2d 630,146 P.3d 1183 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Charles J. PRICE, Petitioner. |
Thomas Edward Doyle, Attorney at Law, Hansville, WA, Patricia Anne Pethick, Attorney at Law, Tacoma, WA, for Petitioner.
James C. Powers, Thurston County Prosecuting Attorney Ofc, Olympia, WA, for Respondent.
¶ 1 Charles Price was convicted of four counts of first degree child molestation. The single count at issue here involved R.T., who was four years old when the molestation occurred and six years old at the time of trial. R.T. disclosed the sexual abuse to her mother and then to a detective, both of whom testified about R.T.'s disclosures at trial. In addition, an audiotape of the detective's interview with R.T. was admitted and played to the jury.
¶ 2 At trial, R.T. indicated that she could not remember the relevant events or her disclosures to her mother and the detective. Relying on Crawford v. Washington,1 Price argues that R.T.'s inability to remember rendered her unavailable for purposes of the confrontation clause, and thus, admission of her prior statements was improper because Price had no prior opportunity to cross-examine R.T. about them. We conclude that the questions the prosecutor asked on direct examination and R.T.'s answers constitute sufficient testimony to satisfy the confrontation clause. Because R.T. was available and testified at trial, Crawford is not implicated. We affirm the Court of Appeals.
¶ 3 Price's wife, Clara, ran a licensed day care in their home in Thurston County. Four-year-old R.T. began attending the day care in August 2001. R.T. initially complained to her mother that she did not like "quiet time." Report of Proceedings (RP) (Dec. 10, 2002) at 22. Then, at home one evening in early October, after R.T. had put on her pajamas, she came out of her room and "started pinching at herself" at the front of her pull-up diaper. RP at 23. When her mother asked what she was doing, R.T. replied that she had "`an owie.'" Id. R.T. then pulled down her diaper and showed her mother that her vaginal area was "bright red and swollen." Id. R.T. told her mother that "Chucky had rubbed her," simultaneously making pinching motions with her fingers. Id. at 23-24. R.T.'s mother asked who Chucky was, thinking it might be another child, and R.T. replied it was "Big Chucky." Id. at 24. R.T.'s mother did not ask any more questions and sent R.T. to bed. She contacted R.T.'s pediatrician the next day.
¶ 4 Two days later, Detective Bergt interviewed R.T. at a sexual assault clinic, and a nurse at the clinic conducted a physical exam. During the interview, when asked where Chucky had touched her, R.T. pointed to her vaginal area. When asked how Chucky touched her, she lifted up her dress, reached between her legs, grabbed her vagina over her clothes and made a pinching motion from front to back. R.T. said, "`[t]hat's what he did.'" Id. at 99. The physical exam revealed no redness in the genital area.
¶ 5 Detective Bergt also interviewed Price. Price said that he often would lay down with kids during quiet time. Price asserted that R.T. was more of an adult than a child, that she was needy, and that she would often hug him and refuse to let go. Price told Detective Bergt that once when R.T. gave him a hug when he was on his knees, he lost his balance and fell on top of her. His hand accidentally landed between her legs and might have hit her vagina.
¶ 6 In response to a newspaper article about the case, an additional victim, T.J., came forward. T.J. claimed that when he was a four—or five-year-old attending Clara's day care in the early 1990s, Price repeatedly stuck his hand down T.J.'s pants during nap time, touching T.J.'s penis. The State charged Price with one count of first degree child molestation regarding R.T. and four additional counts of first degree child molestation regarding T.J.
¶ 7 Before trial, at a child hearsay hearing pursuant to RCW 9A.44.120,2 the prosecutor put R.T. on the stand and asked several preliminary questions. R.T. told the court that she was six years old, she identified several colors, she reported that she was sitting in the "truth chair" and that it was bad to tell a lie, and she correctly identified several statements as truth or lies. RP (Nov. 25, 2002) at 8-9. The prosecutor asked if R.T. liked her old day care and she replied, "No." Id. at 9. When asked, R.T. answered, "[b]ecause he rubbed me right here." Id. at 10. The court found R.T. to be competent. R.T.'s mother and Detective Bergt then testified about R.T.'s disclosures to them. The court concluded that R.T.'s hearsay statements to her mother and to Detective Bergt were sufficiently reliable to warrant admission under the child hearsay statute as long as R.T. testified at trial.
¶ 8 At trial, R.T.'s mother testified first, explaining the details of R.T.'s disclosure. Then, R.T. testified. She explained that she was six years old, and she answered some preliminary questions about school, though she remained silent in response to some questions. R.T. again said that she was sitting in "[t]he truth chair" and correctly identified several statements as truth or lies. RP (Dec. 10, 2002) at 36-37. The prosecutor established that R.T. knew the difference between on top of and underneath, inside and outside. R.T. pointed to Price when asked who "Chucky" was. Id. at 38-39. She also testified that she liked Chucky and Clara, but when asked directly about the alleged abuse, R.T. said that she forgot:
Q.... [R.T.], what did Chucky do with you at day care?
A. Me forgot.
Q. You forgot. Okay. Was there a quiet time at day care?
A. (Witness nodded head.)
Q. Could you tell me what quiet time is?
A. That you need to be quiet.
Q. Okay. And what did you do at quiet time?
A. I had to be quiet.
Q. Okay. Who was—who else was there at quiet time?
A. The kids.
Q. Okay. Was Chucky there at quiet time?
A. (Witness nodded head.)
Q. And where was he?
A. (Witness shrugged.)
Q. [R.T.], did you ever give Chucky hugs?
A. Yeah.
Q. Yeah. And did you ever lay on your mat with him?
A. Yeah.
Q. Okay. Besides hugs, did Chucky ever touch you anywhere?
A. (Witness nodded head.)
A. Me forgot again.
Q. You forgot again. Okay. [R.T.], do you remember talking to your mom about Chucky?
A. Yeah.
Q. Yeah. What did you tell your mom?
A. (Witness shrugged.)
Q. Okay. Do you remember talking to me?
A. Yeah.
Q. About Chucky?
A. (Witness nodded head.)
Q. And what is my name?
A. Jodi.
Q. Yeah. And what did you tell me about Chucky?
A. (Witness shrugged.)
Q. Okay. Do you remember talking to Detective Bergt?
A. Uh-huh.
Q. Yeah. What did you talk to her about? Do you remember?
A. (Witness shrugged.)
Q. No. Okay. All right.
Id. at 39-41. Defense counsel chose not to cross-examine R.T.
¶ 9 The clinic nurse testified that R.T.'s genital exam revealed no redness or rash. The nurse explained that her findings were not inconsistent with R.T.'s disclosure, since rubbing over clothing would cause irritation that would generally resolve quickly. On cross-examination, the nurse reported that her findings were also consistent with no abuse.
¶ 10 Detective Bergt testified that during their interview, R.T. showed Detective Bergt how Price had "grabbed her vagina over the top of her clothes and she pinched." Id. at 99. "She was pinching it from the front towards the back." Id. The jury also heard the tape recording of R.T.'s interview with Detective Bergt, which was admitted without objection. Detective Bergt also testified about her interview with Price. On cross-examination, defense counsel asked Detective Bergt to discuss R.T.'s testimony at the pretrial hearing. Detective Bergt reported that R.T.'s testimony had been similar to the answers she gave in her interview. On redirect, the prosecutor and Detective Bergt again discussed the pretrial hearing:
Q. And at that hearing, was [R.T.] able to identify whether or not the defendant had touched her?
A. Yes, she did.
Q. And was she—besides verbalizing it, did she do anything else at that hearing?
A. Yeah, she pointed to her—she said, "`He touched me right here,'" and she pointed to her vaginal area.
Id. at 124. Price did not testify.
¶ 11 In closing, defense counsel argued that it was significant that R.T. could not remember the alleged abuse on the stand. He emphasized that R.T. did not have any trouble describing how Price had allegedly touched her at the pretrial hearing.
Why can she remember two weeks ago, but she can't remember now? And I would submit to you, ladies and gentlemen, the reason why, she's not sure exactly what happened. This is it. This is the jury trial. This is where ... you determine whether or not Mr. Price is guilty or not guilty, and that's incredibly important. And when you get here in front of a [jury] and you testify, you should be sure of what happened, and I submit to you, ladies and gentlemen, that she's not sure. Maybe there was an accident, maybe there was inadvertent touching. I don't know.
RP (Dec. 11, 2002) at 230-31. The prosecutor countered that R.T. had been overwhelmed on the stand and while her testimony at the pretrial hearing was consistent with her disclosures to her mother and the detective, the presence of the jury in the courtroom could have caused R.T. to be more anxious. The court's instructions to the jury explained that they could take into account, among other things, any witness's memory while testifying.
¶ 12 The jury convicted Price on the count involving R.T. and on three of the four counts involving T.J. Price was sentenced to...
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