State v. Stevens
| Decision Date | 16 July 1990 |
| Docket Number | No. 22768-8-I,22768-8-I |
| Citation | 58 Wn.App. 478,794 P.2d 38 |
| Parties | STATE of Washington, Respondent, v. Arne Hugh STEVENS, Appellant. |
| Court | Washington Court of Appeals |
Washington Appellate Defender Rita Griffith, Seattle, for appellant.
Norm Maleng, King County Pros. Atty., Anthony Shapiro and Donna Wise, Seattle, for respondent.
Arne Hugh Stevens appeals his conviction and sentence for two counts of statutory rape in the first degree. Stevens received an exceptional sentence of 94 months on each count, to be served concurrently. We affirm the conviction and the sentence, but delete a condition from the sentence requiring Stevens to complete a sexual deviancy program upon release.
On August 28, 1987, the five children of the S. family were removed from their mother's home by the Department of Social and Health Services (DSHS) and placed in foster homes. At the time they were removed from the house, the children were all under the age of 7: C was age 6; L was age 5; D was age 3; N was age 2; and T was age 1.
Stevens regularly babysat the S. children prior to their removal from the family home. On November 23, 1987, almost 3 months after the children were placed in foster care, D disclosed that she had been sexually abused by Stevens. At the time of the disclosure, D was jumping on the couch at her foster home. Her foster mother, Marilyn Williams, asked her "What am I going to do with you?" D replied,
Williams relayed this disclosure to Kelsey Tyler, another foster mother who was taking care of some of the S. children. The same day, Tyler called Cheryl Baddinger, C's foster mother. Baddinger told C that D had "told the secret about Arne", but did not disclose specifically what D had said. C started to cry, and later that evening told Baddinger that Stevens had put his fingers up her private part. That same evening, C called Tyler and disclosed that Stevens had touched her genitals and had put his fingers inside her.
Over the following month, C made subsequent disclosures to Tyler concerning sexual abuse by Stevens. About 3 months after the initial disclosures, C separately disclosed to Tyler and Baddinger penile penetration by Stevens.
D also made subsequent disclosures to Tyler. 1 According to Tyler, D would make random statements disclosing abuse without any forewarning. She also exhibited sexual behavior abnormal for a child her age.
Both C and D made similar disclosures to Detective Robin Fenton of the King County Special Assault Unit. C made another disclosure to Mary Jane Peyton, the caseworker assigned to the case. Finally, C and D also made disclosures to Dr. Carrie Julian, a physician who examined both girls at the Harborview Medical Center Pediatric Sexual Assault Clinic.
Stevens was charged with five counts of first degree statutory rape, one count involving each of the S. children. Prior to trial and upon motion by the defense, the trial court conducted an in camera review of the DSHS records (concerning the removal of the children from the mother's home) and records from the Sexual Assault Clinic. The court made a number of disclosures from the files.
The trial court also held a hearing to determine the competency of the children as witnesses and the admissibility of their hearsay statements, as detailed earlier, under RCW 9.94A.120. After hearing examination of C, L and D, the trial court determined that only C was competent to testify.
In considering the admissibility of the hearsay statements, the trial court heard the testimony of Williams, Detective Fenton, Tyler, Baddinger, Dr. Julian and Jacqueline Stevens, the defendant's sister. Ms. Stevens testified that she had also babysat the children. Through Ms. Stevens' testimony, the defense attempted to show that C, who had taken on the caretaker role in the family, felt resentment toward Stevens because he usurped her authority when he babysat. The defense postulated that C retaliated by fabricating the story of sexual abuse by Stevens.
After hearing the testimony, the trial court made a blanket ruling admitting all the hearsay statements made by C and D. In ruling, the court did not single out statements and analyze them for reliability, but for the most part focused on the reliability of the witnesses.
The court also admitted statements C and D made while sleeping, apparently during nightmares. At the pretrial hearing, three of the foster mothers testified that both C and D had recurring nightmares in which they would shout words such as "Arne, don't" and "Arne, stop, Arne, don't, please don't."
At trial, the State presented all the evidence as set out previously. The State also presented two additional witnesses, the children's natural mother and Dr. Carol Jenny, a child sex abuse expert. Dr. Jenny testified that sexually abused children exhibit common behaviors such as bedwetting, nightmares, sexual acting out, anger and other difficult behaviors. While testifying, she used a colposcopy photograph of C's vagina to point out physical evidence of sexual abuse.
The defense called one witness, Ms. Stevens. The jury returned verdicts of guilty on the counts involving C and D, and not guilty on the counts involving L, N and T.
Stevens received an exceptional sentence of 94 months for each count, to be served concurrently. The court based the exceptional sentence on two aggravating factors:
1. The victim in count III, [D], was extremely vulnerable by virtue of her tender years.
2. The defendant was in a position of trust to the children he abused as a babysitter.
The court also imposed a condition upon Stevens' release: "Upon release defendant shall enter an intensive in-patient or out-patient sexual deviancy treatment program as recommended by a sexual deviancy therapist."
Stevens appeals his convictions, contending that the trial court erred by: (1) making inadequate disclosure of DSHS and Sexual Assault Clinic records to the defense; (2) admitting child hearsay statements; (3) admitting statements made by C and D during their sleep; (4) admitting the colposcopy photograph; (5) admitting testimony by the DSHS caseworker, Peyton, that children do not lie when making allegations of sexual abuse; and (6) admitting expert testimony by Dr. Jenny concerning behavioral symptoms of child abuse. Finally, he argues that cumulative error denied him a fair trial. In appealing his sentence Stevens assigns error to the trial court's findings of abuse of trust and vulnerability of the victim, and argues that the sentence imposed is clearly excessive. Finally, he argues that the trial court erred in imposing the condition of release requiring him to complete a sexual deviancy program.
Stevens first assigns error to the trial court's in camera review of and disclosures from the DSHS and the Sexual Assault Clinic records.
In order to properly review the trial court's disclosures, we have examined the sealed records. State v. Mines, 35 Wash.App. 932, 939, 671 P.2d 273 (1983), review denied, 101 Wash.2d 1010 (1984); see State v. Casal, 103 Wash.2d 812, 822-23, 699 P.2d 1234 (1985); see generally Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Because the scope of discovery is within the discretion of the trial court, we review the trial court's determination for manifest abuse of discretion. Mines, 35 Wash.App. at 938, 671 P.2d 273.
We have found only two entries which arguably should have been, but were not, disclosed. We hold that the trial court did not abuse its discretion in failing to disclose these two items.
Stevens next argues that the trial court erred in admitting, pursuant to the child hearsay statute, RCW 9A.44.120, 2 hearsay statements made by C and D. Stevens objects to the trial court's analysis of the reliability of these statements under State v. Ryan, 103 Wash.2d 165, 175-76, 691 P.2d 197 (1984). 3 Specifically, he argues that the trial court abused its discretion in applying the Ryan factors to the out-of-court statements of each child collectively, rather than individually, to each statement.
Stevens failed to object to the trial court's method of analysis of reliability at trial. Objections to the admission of evidence will not be considered for the first time on appeal unless based upon the same ground asserted at trial. State v. Hayes, 37 Wash.App. 786, 790, 683 P.2d 237, review denied, 102 Wash.2d 1008 (1984). However, we must consider whether the admission of evidence is a "manifest error affecting a constitutional right", even though not raised at trial. RAP 2.5(a); State v. Frey, 43 Wash.App. 605, 609-10, 718 P.2d 846 (1986).
In Washington, admission of hearsay evidence lacking sufficient indicia of reliability violates a defendant's Sixth Amendment right of confrontation. Ryan, 103 Wash.2d at 169-70, 691 P.2d 197; Frey, 43 Wash.App. at 610, 718 P.2d 846; State v. Jackson, 42 Wash.App. 393, 398, 711 P.2d 1086 (1985). If both the child hearsay declarant and the hearsay recipient testify at trial and are available for cross examination, however, no constitutional confrontation or due process concerns arise. State v. Leavitt, 111 Wash.2d 66, 71, 758 P.2d 982 (1988); State v. Warren, 55 Wash.App. 645, 649-50, 779 P.2d 1159 (1989), review denied, 114 Wash.2d 1004, 788 P.2d 1078 (1990). Thus, error is not "truly of constitutional magnitude" and not preserved for appellate review if the declarant and recipient witnesses are available to testify and subject to cross examination. Warren, 55 Wash.App. at 650, 779 P.2d 1159. Thus, only error as to statements made by the nontestifying witness, D, is preserved for appellate review.
Turning to the merits, Stevens is correct in his assertion...
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