# State v. Rohrich

> Washington Supreme Court · July 3, 1997 · 132 Wash. 2d 472

URL: https://www.frixlaw.com/law-library/cases/4711253

## Case

- **Full name:** The State of Washington v. Gregory Michael Rohrich
- **Court:** Washington Supreme Court
- **Decided:** July 3, 1997
- **Citations:** 132 Wash. 2d 472; 939 P.2d 697; 1997 Wash. LEXIS 424
- **Precedential status:** Published
- **Opinion:** Concurrence by Guy
- **Judges:** Guy, Sanders
- **Cited by:** 70 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4711253

## How later opinions describe it (automated extraction)

- concluding that under Washington's child hearsay statute, the Confrontation Clause is violated when a child is called to testify at trial but "is not asked and does not answer any questions relating to ... the acts of sexual contact alleged in the hearsay"
- concluding that child does not testify within meaning of statute "when she does not give testimony describing the acts of sexual contact alleged in the hearsay"

## Opinion text

Guy, J.
(concurring) — I concur in the result reached by the majority. I write separately because, in my view, the majority opinion strays from the issues to be decided in this appeal; is not sufficiently grounded in solid authority for its broad sweeping statements of law; and contains page after page of dicta.
We accepted review in this case in order to resolve a conflict between the Court of Appeals decision in this case, State v. Rohrich, 82 Wn. App. 674, 918 P.2d 512 , review *483 granted, 130 Wn.2d 1017 (1996), and that of State v. Bor-land, 57 Wn. App. 7 , 786 P.2d 810 , review denied, 114 Wn.2d 1026 (1990). See RAP 13.4(b)(2); Petition for Review at 8-11.
In Borland, Division One of the Court of Appeals held that RCW 9A.44.120(2) "is satisfied when the child witness is both competent and physically available to testify. . . . Actual testimony is not required as a condition of admission of the out-of-court statements.” 57 Wn. App. at 13 .
In the Court of Appeals decision in Rohrich, Division Three disagreed with Borland and held that the statutory meaning of "testify” should be interpreted to be consistent with the fundamental purpose of the Confrontation Clause. That purpose is to provide an accused with the opportunity to cross-examine witnesses. Rohrich, 82 Wn. App. at 677 -78 (citing Davis v. Alaska, 415 U.S. 308, 315-16 , 94 S. Ct. 1105 , 39 L. Ed. 2d 347 (1974); State v. Parris, 98 Wn.2d 140, 144 , 654 P.2d 77 (1982)). The Court of Appeals also held a constitutional construction is consistent with the accepted definition of the word "testify.” As the Court of Appeals noted, "Black’s Law Dictionary 1476 (6th ed. 1990) defines the term "testify” as follows: 'To bear witness; to give evidence as a witness; to make a solemn declaration, under oath or affirmation, in a judicial inquiry, for the purpose of establishing or proving some fact.’ ” 82 Wn. App. at 677 .
The language of the statute evidences an intent on the part of the Legislature to allow hearsay statements in certain child abuse cases if (1) the child testified as a witness or (2) the child was unavailable as a witness. Under the ordinary meaning of the word, the child would "testify” for the purpose of establishing or proving some fact. Black’s Law Dictionary 1476. Such testimony protects the defendant’s constitutional right to confront witnesses, as it provides him an opportunity for cross examination related to the elements of the charge or charges against him.
I would affirm the Court of Appeals decision in this case and overrule Borland.
*484 Talmadge, J., concurs with Guy, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4711253. Public record. Not legal advice.