State v. Swan

CourtUnited States State Supreme Court of Washington
Citation790 P.2d 610,114 Wn.2d 613
Decision Date03 May 1990
Docket NumberNo. 55393-9,55393-9
PartiesSTATE of Washington, Petitioner, v. William Orr SWAN and Kathleen Rowland Swan, and each of them, Respondents.
Norm Maleng, King County Prosecutor, Cynthia S.C. Gannett, Sr. Appellate Atty., Timothy Michael Blood, Susan Roe, Deputys, Seattle, for petitioner

Allen & Hansen, P.S., David Allen, Richard Hansen, Donald Roistacher, Seattle, for respondents.

ANDERSEN, Justice.


The two defendants in this child abuse case were convicted at a jury trial in the Superior Court of the State of Washington for King County. The Court of Appeals reversed in an unpublished opinion. 1 We reverse the Court of Appeals and reinstate the judgments and sentences imposed by the trial court.

At issue here is whether there was sufficient corroborating evidence to justify the trial court allowing into evidence the hearsay statements of one of the two child victims in this statutory rape case. There is unfortunately no way at all to resolve this issue other than by going into the sad details of the abuse which the jury by its verdict found that the two defendants, husband and wife, had The defendants herein, William and Kathleen Swan, were each charged with two counts of statutory rape in November of 1985. The charges stemmed from statements made by their 3-year-old daughter, B.A., and her 3-year-old friend, R.T., to their day-care teachers and to a Child Protective Services (CPS) worker.

inflicted on their own 3-year-old daughter and her 3-year-old playmate.

Before trial, the State gave notice of its intent to rely upon the child sexual abuse hearsay exception set forth in RCW 9A.44.120, Washington's child victim hearsay statute. 2 This statute, set forth in full in the margin, 3 creates an addition to the hearsay rule not included in the Rules of Evidence (ER) adopted by this court. 4 The trial court conducted pretrial hearings to determine B.A.'s and R.T.'s competency to testify at trial, found both girls incompetent to testify and admitted their earlier hearsay statements into evidence at the trial.

At trial, whenever one of the girl's hearsay statements was about to be solicited from a witness, questioning was stopped by the trial court, the jury was excused and voir dire examination was conducted to determine the reliability of the statements. In each instance involved in this appeal,the trial court found the children's hearsay statements to be reliable and admitted them into evidence.

The jury found each defendant guilty of two counts of statutory rape, one count as to each victim. A defense motion for a new trial was denied, and each defendant was sentenced to 50 months in jail.

The defendants appealed, and the Court of Appeals reversed the convictions and remanded for a new trial because of the admission into evidence of R.T.'s hearsay statements. The Court of Appeals agreed that the girls' hearsay statements were reliable, but observed that the trial court had failed to consider whether the alleged abuse was corroborated by other evidence of sexual abuse as required by the child victim hearsay statute (RCW 9A.44.120). After reviewing the record, the Court of Appeals found sufficient corroboration of B.A.'s abuse but insufficient corroboration of R.T.'s abuse. That court held that a new trial was necessary on both counts for each defendant.

After the State's motion for reconsideration was denied, the State sought discretionary review in this court. Review was deferred pending our opinion in State v. Jones, 112 Wash.2d 488, 772 P.2d 496 (1989). After the Jones opinion was filed, this court granted review of this case.

Although the principal issue before us is whether R.T.'s alleged abuse was sufficiently corroborated to render her hearsay statements admissible as evidence, 11 additional issues are also presented.


ISSUE ONE. Did the Court of Appeals err in finding insufficient corroboration of the alleged sexual abuse of R.T.?

ISSUE TWO. Did the trial court err in declining to grant a new trial on the basis of evidence claimed to be newly discovered?

ISSUE THREE. Did the trial court err in finding the child R.T. incompetent to testify?

ISSUE FOUR. Did the trial court err in finding the children's hearsay statements reliable under the child victim hearsay statute (RCW 9A.44.120)?

ISSUE FIVE. Did the trial court err in permitting the State to call rebuttal witnesses?

ISSUE SIX. Did the trial court err in not allowing a psychologist to testify for the defense as an expert?

ISSUE SEVEN. Did the trial court make a constitutionally prohibited comment on the evidence?

ISSUE EIGHT. Did the trial court err in its ruling regarding defendant William Swan's explanation of his daughter's use of the word "potty"?

ISSUE NINE. Did the deputy prosecuting attorney commit reversible error during the course of the State's closing argument?

ISSUE TEN. Is this court's "manifest abuse of discretion" review standard unconstitutional?

ISSUE ELEVEN. Is RCW 9A.44.120, the child victim hearsay statute, unconstitutional?

ISSUE TWELVE. Did the State's alleged failure to disclose that one of the State's witnesses had been sexually molested violate due process?



CONCLUSION. After a careful consideration of the categories of allegedly corroborative evidence in this case, we conclude that there was indeed sufficient evidence before the trial court to support its determination that R.T.'s statements were admissible under Washington law. Accordingly, the Court of Appeals ruling to the contrary must be reversed.

Under Washington's child victim hearsay statute, RCW 9A.44.120, a child's description of an "act of sexual contact performed with or on the child by another" is admissible as hearsay evidence in a criminal proceeding if the statement provides "sufficient indicia of reliability" and, if the child is unavailable as a witness, "there is corroborative evidence of the act." 5 The Court of Appeals has defined corroborative evidence of the act as " 'evidence of sufficient circumstances which would support a logical and reasonable inference' " that the act of abuse described in the hearsay statement occurred. 6 The child victim hearsay statute requires separate determinations of reliability and corroboration when the child is unavailable to testify. 7

The determination of whether there is corroborative evidence of the act involves balancing the goal of making child victim hearsay more readily available as evidence against the concern that the use of such hearsay should not create too great a risk of an erroneous conviction. 8 As we recently explained, "[t]he Legislature has offered no specific guidance on how this balance is to be struck. Similarly, we feel it unwise to suggest any hard and fast rules. The determination must proceed case by case, ...". 9

The most effective types of corroboration in such cases, of course, are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony There is no disagreement as to the fact that the trial court in this case did not separately determine that corroborative evidence of abuse existed before ruling that the hearsay statements were admissible. The State does, however, dispute the Court of Appeals conclusion that a search of the entire record revealed insufficient corroboration of R.T.'s abuse to render her hearsay statements admissible.

                documenting abuse. 10  In most cases of child sexual abuse, however, there is no direct physical or testimonialevidence. 11  The child victim is often the only eyewitness to the crime, and physical corroboration is rare because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation. 12  Physical corroboration may also be unavailable because most children do not resist, either out of ignorance or out of respect for authority. 13  Consequently, in order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse. 14  Such evidence has included a child victim's precocious knowledge of sexual activity, a semen stain [790 P.2d 616] on a child's blanket, a child's nightmares and psychological evidence. 15
                The State argues that several categories of evidence provided sufficient corroboration of R.T.'s abuse.   These categories, along with a description of the relevant testimony, 16 are analyzed separately in the pages of this opinion that follow


On October 2, 1985, 3-year-old B.A. walked out of a day-care center bathroom with her dress tucked in her tights. The center's teacher, Lisa Conradi, untucked the dress and told B.A. to keep her private parts covered. When B.A. appeared confused, Conradi explained that "private parts" means the areas covered by her bathing suit. B.A. pointed to her chest and crotch area. Conradi then added that no one should look at or touch B.A.'s private parts, whereupon B.A. said, "Uh-huh, Mommy and Daddy do." When asked "What do Mommy and Daddy do?", B.A. replied, "Mommy spits on me." Conradi asked where, and B.A. pointed to her crotch. At this point, Conradi gave B.A. a book and took the rest of the children downstairs. When Conradi returned, she asked B.A. if her parents did anything else to her private parts. B.A. said she spits on Mommy in her private parts and that Daddy "puts his potty in me and it hurts real bad." Conradi explained that a man's potty was a penis. The two then walked around the room. B.A. played peekaboo from behind a door with Conradi several times, and said, "My daddy plays peekaboo with me." She also said, "My daddy puts his penis in my mouth and icky milk comes out." When asked who else played this game, B.A. said Josh does. B.A. also said the...

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