State v. Young

• Decision Date: 07 January 1991
• Docket Number: Nos. 23691-1-,25737-4-I,s. 23691-1-
• Citation: 62 Wn.App. 895,802 P.2d 829
• Parties: , 802 P.2d 829 STATE of Washington, Respondent, v. Jack YOUNG, Appellant. In the Matter of PERSONAL RESTRAINT OFJack YOUNG, Petitioners. Division I
• Court: Washington Court of Appeals

Page 895

62 Wn.App. 895

60 Wn.App. 95, 802 P.2d 829

STATE of Washington, Respondent, v. Jack YOUNG, Appellant In the Matter of PERSONAL RESTRAINT OFJack YOUNG, Petitioners.

Nos. 23691-1-I, 25737-4-I.

Court of Appeals of Washington,

Division I.

Jan. 7, 1991.

Washington Appellate Defenders, Andrew Zinner, Seattle, for Jack Young.

Honorable Seth Dawson, Snohomish County Pros. Atty., Seth Aaron Fine, Deputy, Everett, for State of Wash.

FORREST, Judge.

Jack Young appeals from his convictions of first degree statutory rape and indecent liberties. A personal restraint petition has been consolidated with this appeal and the issues will be discussed together. Young claims that the court erred by: admitting medical testimony as to the abused condition of the victim's genitals; denying the appellant's motion to suppress evidence; denying a request for a new trial and new counsel; and failing to find that trial counsel was ineffective. We affirm the conviction subject to the outcome of further proceedings on remand as to ineffectiveness of counsel.

On March 18, 1987, Ray Smith took his 4-year-old granddaughter, J., to see her pediatrician, Dr. Jane Mays. After examining the child's genital area, noting that the vaginal opening appeared to be "somewhat larger than usual", Dr. Mays asked J. what she would do if someone tried to touch her there. J. responded "I do say no." J. told Dr. Mays that "my daddy" had done the touching "last night." Dr. Mays made certain that J. was referring to her father and not to her grandfather, Ray Smith, who was in the examining room and with whom she was then staying.

The following day, Phyllis Schmidt of Children's Protective Services (CPS) interviewed J. at her grandfather's apartment. They played with dolls and a puzzle that showed body parts, and Schmidt asked many direct questions about sexual abuse. Asked if her daddy hurt her with a stick, J. said yes. Ms. Schmidt asked if she had seen her father nude, and whether his penis was flaccid or erect. She asked the child to demonstrate on dolls what her father had done to her. J. said that he placed his penis in her vagina. Ms. Schmidt asked if appellant had put his penis anywhere near her head or face, and whether anything had come out when this happened. When she answered yes, Ms. Schmidt asked if what came out had a taste, and J. had said it tasted "yucky" and that she had spit it out in the backyard.

On April 8, 1987, at a second visit with Dr. Mays, J. confirmed that her father had touched her. She said that others had touched her too; Steve, Tom and Phil.

In July 1987, J. spontaneously told Karen Lewis, another CPS worker, that she was in foster care "because of what Daddy did to me." After some questions, J. said that her dad had used a stick from a tree and spanked her with it, and put it in her vagina. The child also said that "daddy" had "put his private spot in my mouth." J. said that it happened more than once, and that her mother viewed one of these incidents. Ms. Lewis asked who J. meant by "daddy," and whether he had another name. She responded that his name was Jack. Lewis asked if her grandpa had touched her, and if anyone had ever told J. to say these things. She answered no. On March 7, 1988, Ms. Lewis asked J. what her daddy had done to her. J. pointed to her vagina, and said that he "put a stick up me," and told her that he had put a stick up her anus. In response to more questions, J. disclosed that the stick was kept in the drawer by her daddy's bed.

On September 8, 1987, Dr. Carol Jenny, director of the Harborview Sexual Assault Center, examined J. and took pictures of the child's genitalia with a colposcope. On October 29, 1987, Jack Young was charged with statutory rape and indecent liberties. Police found sticks in Young's dresser close to his bed after a Snohomish County Superior Court judge issued a search warrant on March 22, 1988, about a year after J. was removed from her home. Prior to Young's trial on November 28, 1988 for statutory rape and indecent liberties against J., the trial court ruled that J.'s hearsay statements were admissible, and denied a motion to exclude medical testimony regarding the condition of J.'s genitals. During trial the court denied a motion in limine to exclude the sticks.

Dr. Jenny testified at trial that she observed very unusual lesions, an old tear that was healed over with scarring, and a dilated vaginal orifice. The hymenal ring was discontinuous, thick, and some areas lacked normal vasculature. The doctor testified that the conditions were consistent with sexual penetration. The vaginal opening was "dramatically dilated" to a diameter of 12 mm., "extremely large compared to most children her age." Such a finding was consistent with sexual abuse.

Dr. Jenny noted, however, that extensive studies of the normal limits of vaginal openings did not exist. She stated that one study had looked at several hundred children and set 7 mm. as the upper range limit. Based on the thousands of examinations she had personally conducted, consultation with other professionals, and existing literature, J.'s vaginal opening size was "abnormal to a reasonable medical certainty."

Defense counsel cross-examined Dr. Jenny on the medical literature that addresses the significance of vaginal opening size. She discussed flaws in the methodology of an article by Emans and Woods which compared vaginal openings of sexually abused and non-abused children. She discussed the pros and cons of other articles, and stated that the field was a developing one.

Young was convicted of first degree statutory rape and indecent liberties, and a judgment entered against him on February 14, 1989.

MOTION TO STRIKE

Young moved to strike from the State's appellate brief certain medical journal articles that were not presented to the trial judge and are not part of the record. The motion is granted and the articles will not be considered in reviewing the court's ruling on admissibility of medical testimony.

THE CHILD HEARSAY STATUTE

State v. Ryan, 103 Wash.2d 165, 175-76, 691 P.2d 197 (1984) sets forth factors for determining the admissibility of child hearsay statements pursuant to RCW 9A.44.120:

"(1) Whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness." [State v.] Paris, [Parris, 98 Wash.2d 140], 146 [,654 P.2d 77 (1982) ].... the statement contains no express assertion about past fact, cross examination could not show the declarant's lack of knowledge, the possibility of the declarant's faulty recollection is remote, and the circumstances surrounding the statement ... are such that there is no reason to suppose the declarant misrepresented defendant's involvement.

Appellant challenges five of these indicia of reliability, impliedly conceding that the other criteria are satisfied.

Under the second Ryan factor, Young challenges J.'s general character for truthfulness, arguing that her character became questionable when she recanted at trial, although Young admits that J. had no apparent motive to lie. Young does not question J.'s truthfulness as it was known at the time of the hearsay hearing, but only after a subsequent in-court recantation. This argument is unpersuasive, however, because the trial court's assessment of J.'s truthfulness must be judged by the information presented at the hearsay hearing. Such recantations are not rare, ¹ and the credibility of the child hearsay (and of the recantation itself) is evaluated by the jury. Thus, J.'s recantation at trial does not undermine the court's assessment of her truthfulness at the earlier hearsay hearing.

Young next argues that the fourth Ryan factor is not satisfied, because J.'s statements to Dr. Mays, Ms. Schmidt, and Ms. Lewis were not spontaneous, but were in response to questions about sexual abuse. Washington law, however, recognizes that a child's answers are spontaneous so long as the questions are not leading or suggestive. State v. Henderson, 48 Wash.App. 543, 550, 740 P.2d 329, review denied, 109 Wash.2d 1008 (1987), broadened the definition of "spontaneous" to include "the entire context in which the child [made] the statement." Questions put to J. appear no moresuggestive nor leading than those in Henderson, and therefore her comments were spontaneous. ²

Young next argues that because J.'s statements were made after the CPS workers became aware of the abuse, the reliability of the statements are suspect because of their timing (Ryan factor 5). As long as there are law enforcement officers or social workers investigating child abuse, however, a child's statements will almost always be made after professionals become aware of the abuse. Indeed, rather than diminishing reliability, we believe that in this case the presence of CPS workers enhanced it:

Professionals are, by definition, trained to be objective in assessing whether a child's complaint merits further investigation, and unlike parents, their perceptions are not impaired by a personal attachment to the child.

Henderson, 48 Wash.App. at 551, 740 P.2d 329. Furthermore, J.'s first disclosure came to Dr. Mays before CPS workers became aware of possible abuse. We therefore conclude that the timing of the statements was not suspect, especially those made to Dr. Mays before CPS workers became aware of the abuse.

Under the sixth Ryan factor, Young argues that statements containing assertions about past facts should not have been allowed into evidence. However, the State is correct in noting that State v. Stange ³ essentially wrote the past facts test out of Ryan so long as other factors indicating reliability are considered. State v. Swan ⁴ acknowledged that hearsay statements usually contain statements of past facts. Swan also noted...