Petition for Writ of Certiorari — Swan v. Washington

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IN THE —, :

Supreme Court of the United States

October Term, 1990

KATHLEEN R. SWAN and WILLIAM 0. SWAN,

Petitioners,

Vv.

THE STATE OF WASHINGTON,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF WASHINGTON

PETITION FOR WRIT OF CERTIORARI

ALLEN & HANSEN, P.S.

600 First Avenue, Suite 600

Seattle, Washington 98104

(206) 447-9681

By: David Allen

Counsel of Record

Richard Hansen |

Todd Maybrown

Counsel for Petitioners

September 18, 1990

aBCD Legal Printers. Seattle. Washington

QUESTIONS PRESENTED FOR REVIEW

I. Whether the Washington Child Hearsay

statute, RCW 9A.44.120, which requires a

finding that a hearsay statement by a child

in a sexual assault case have "sufficient

indicia of reliability" violates the Sixth

Amendment Confrontation Clause of the

United States Constitution, which requires

a finding of "particularized guarantees of

trustworthiness."

II. Whether admission of hearsay

statements by two 3-1/2-year-old children,

ruled incompetent and therefore unable to

testify at trial, is violative of the

Confrontation Clause of the Sixth Amendment

of the United States Constitution, where

reporters of hearsay were predisposed to

find sexual abuse, where successive hearsay

statements were admitted which were made

over a period of months after the initial

disclosures and where the children had been

tainted by the earlier interviews?

III. Approximately one week after the

initial disclosures to the daycare owner

and interview with the Child Protective

Service caseworkers, the child who was not

related to the petitioners was jointly

interviewed by a police officer and

prosecutor. During this interview the

child falsely stated that Jerry (her

father's name) had molested her in the same

very unusual way that she alleges the

petitioners had molested her, and further

falsely stated that she had previously

reported this to the daycare owner, and

made no accusations against the

petitioners. Under these circumstances,

can her earlier hearsay statements, or her

two later hearsay disclosures, be deemed

to have particularized guarantees of

iii

trustworthiness as required by the Sixth

Amendment?

Iv. Where a finding of incompetence to

testify is based on a young child's

inability to understand her cbligation to

tell the truth, can a finding that her

earlier statements possessed particularized

guarantees of trustworthiness ever be made?

TABLE OF CONTENTS

Page

Questions Presented For Review... i

Table of Authorities ........ Vv

Opinions Below. ......+.+se-. 2

SOEBABGSCCAGR 2 sw sw te tw eee ewe es 3

Constitutional Provision and

Statute Involved ........e.. 3

Statement of the Case ....... 5

How the Federal Questions Were

Raised and Decided Below ...... 19

Reasons for Granting the Writ... 20

EP ee ee 31

Appendices:

Appendix A:

Appendix B:

Appendix C:

Opinion, Washington

State Court of Appeals A-1

Opinion, Supreme

Court of the State

of Washington ..... Be-l

Order Clarifying

Attorneys' Status in

Opinion and Denying

Motions for Modification

and Reconsideration C-1

TABLE OF AUTHORITIES

Cases Page

v. Wright, 497 U.S. :

111 L.Ed.2da 638, 110 S.Ct.

PSG ay gt ekg 21-28, 31

Ohio v. Roberts, 448 U.S. 56, 65

L.Ed.2d 597, 100 S.Ct. 2531

(1980) . . . . — . 20

State v. Paster, 524 A.2d 587

(R.I. 1987) . . . . ° 29, 31

State v. Ryan, 103 Wn.2d 165, 691

P.2d 197 (1984) . . . ° 21

State v. Swan, 114 Wn.2d 613,

P.2da (1990) . ° 2, 19, 20

Const visions

United States Constitution

Sixth Amendment . ° . 3, 19, 36

22, 24, 31

Statutes

RCW 9A.44.120 . ° : 4, 19-21

28 U.S.C. § 1257 . . . . 3

(hese patty

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

KATHLEEN R. SWAN and WILLIAM 0. SWAN,

Petitioners,

Vv.

THE STATE OF WASHINGTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF

WASHINGTON

Petitioners Kathleen R. Swan and William

QO. Swan pray that a writ of certiorari

issue to review the judgment of the Supreme

Court of the State of Washington, dated

May 3, 1990.2

OPINIONS BELOW

The unpublished opinion of the Court of

Appeals of the State of Washington,

Division One, filed May 16, 1988 (attached

hereto as Appendix A), reversed

petitioners' convictions and ordered a new

trial. The opinion of the Supreme Court of

Washington, filed May 3, 1990, and reported

at 114 Wn.2d 613, _— P.2ad _ (1990)

(attached hereto as Appendix 8) reversed

the Washington Court of Appeals and

affirmed petitioners' convictions. A copy

of the Washington State Supreme Court's

Order Clarifying Attorneys' Status in

Opinion and Denying Motions for

Modification and Reconsideration, dated

lthe parties to this case are all

named in the caption.

June 22, 1990, is attached hereto as

Appendix C.

JURISDICTION

The Supreme Court of Washington's

opinion was filed on May 3, 1990.

Petitioners' motion for reconsideration

was denied on June 22, 1990. The

jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED

This case involves the Confrontation

Clause of the Sixth Amendment of the United

States Constitution, which provides:

In all criminal prosecutions, the

accused shall enjoy the right to «4

speedy and public trial, by an

impartial jury of the State and

district wherein the crime shall have

been committed, which district shall

have been previously ascertained by

law; and to be informed of the nature

and cause of the accusation; to be

confronted with the witnesses against

him; to have compulsory process for

obtaining witnesses in his favor, and

to have the assistance cf counsel for

his defense.

This case also involves the following

provision of the laws of the State of

Washington:

RCW 9A.44.120. "Admissibility of

child's statement - Conditions"

A statement made by a child when

under the age of ten describing any

act of sexual contact performed with

or on the child by another, not

otherwise admissible by statute or

court rule, is admissible in evidence

in dependency proceedings under Title

13 RCW and criminal proceedings in

the courts of the state of Washington

ifs:

(1) The court finds, in a hearing

conducted outside the presence of the

jury, that the time, content, and

circumstances of the statement provide

sufficient indicia of reliability; and

(2) The child either:

(a) Testifies at the proceedings;

(b) Is unavailable as a

witness: Provided, That when the

child is unavailable as a witness,

such statement may be admitted only

if there is corroborative evidence

of the act.

A statement may not be admitted under

this section unless the proponent of

the statement makes known to the

adverse party his intention to offer

the statement and the particulars of

the statement sufficiently in advance

of the proceedings to provide the

adverse party with a fair opportunity

to prepare to meet the statement.

STATEMENT OF THE CASE

William Swan and Kathleen Swan, husband

and wife, were convicted of two counts of

statutory rape in the first degree on April

17, 1986, and subsequently sentenced to

fifty month prison sentences in the

Superior Court of King County, Washington.

William and Kathleen Swan had never

before been accused, arrested, nor charged

with a crime. William Swan is an

electrical engineer who met his wife in

graduate school where she was studying

French. Kathleen Swan, a Phi Beta Kappa

college graduate, is a linguist by

profession who is fluent in thirteen

languages. Both William and Kathleen Swan

vehemently denied the allegations that they

sexually abused their child, Elizabeth

"Beth Anne," or her friend, Rachel Thiel.

Several witnesses testified to their good

relationship with their daughter and their

good character.

The material evidence against them

consisted solely of the hearsay statements

of their then 3-1/2-year-old daughter Beth

Anne Swan and her 3-1/2-year-old friend,

Rachel Thiel, neither of whom testified at

trial due to their incompetence. The

incidents allegedly occurred at some

undetermined time between January and

October of 1985.

These hearsay statements of Beth Anne

Swan and Rachel Thiel were introduced

through Cindy Bratvold, the owner of the

home daycare the children attended; Lisa

Conradi, a worker at the daycare, who

obtained the initial statements from Beth

Anne Swan the first day she met her; CPS

caseworker Carol Schmidt; Jerry Thiel, the

father of Rachel Thiel; and Cindy

Hermansen, Beth Anne's foster mother after

she was removed from the Swan's. The

admitted hearsay statements were made over

a period of eight months from the date of

the initial disclosure.

Beth Anne Swan attended the Cindy

Bratvold daycare from June of 1983 until

October 4, 1985. Lisa Conradi was hired

at the daycare on October 1, 1985, at which

time Bratvold gave her a rundown on the

children and told her that Beth Anne Swan

often had her hands in her pants and she

was, therefore, concerned about the

possibility of abuse.

Neither Beth Anne Swan nor Rachel Thiel

were at the daycare on October 1, 1985,

Conradi's first day of work. It was on the

first day that Conradi met Beth Anne Swan,

October 2, 1985, that disclosures were

allegedly first made. At that time,

Bratvold was gone from the daycare, running

cs eee eo

errands, and Conradi saw Beth Anne Swan and

noticed that she had her dress tucked into

her tights. Conradi, who was extremely

predisposed to find child abuse in that she

had reported child abuse at least 20 other

times, including at other daycares where

she worked? , instructed Beth Anne it wasn't

all right for others to see her private

parts and then explained to Beth Anne what

was meant by private parts. Conradi then

proceeded to question Beth Anne and claims

that she obtained statements from Beth Anne

to the effect that she was sexually abused

by her mother and father. However, there

were no other witnesses present and Conradi

took no notes of the interview, either at

2In a post-trial tape recorded

interview, Conradi bragged that she had

reported child ahuse on at least 20 other

occasions and hac reported child abuse at

every other daycare at which she worked.

However, this information was not available

at trial and the prosecutor argued that

Conradi was "neutral."

the time or soon afterwards. When Bratvold

returned from her errands, Conradi told her

what Beth Anne supposedly said, and Child

Protective Services ("CPS") was called.

CPS caseworkers Carol Schmidt and Ken

Pattis responded and questioned Beth Anne

outside of Conradi's and Bratvold's

presence for 30 minutes, using leading

questions in an attempt to obtain the

information that Conradi claimed Beth Anne

told her. According to Schmidt, she and

Pattis "became frustrated and could not

elicit anything from this child .. ." and

Schmidt then asked Conradi to help with the

interview because Beth Anne would make no

statements about being sexually abused.

At this point Conradi asked Beth Anne if

she remembered telling her that mommy spits

on her or that daddy puts his penis in her

mouth. The CPS caseworkers said that Beth

Anne nodded.

The CPS caseworkers told Conradi and

Bratvold that there was insufficient cause

to remove the children from the daycare and

that another interview was necessary.

Bratvold told the daycare workers that Beth

Anne said that she played these "games"

with her friend, Rachel Thiel, and Bratvold

told the CPS caseworkers that she would

interview Rachel the next day. The CPS

caseworkers told her to go ahead and do so

but to not use "leading questions."

The next day Cindy Bratvold, who had no

training in questioning children about

abuse, questioned Rachel Thiel alone. She

claims that Rachel Thiel told her that

William and Kathleen molested her,

explaining that they played "happy birthday

games with Uncle Bill" and that they

"played marbles and birthday candles" and

he put "candles in her peepee and marbles

in her peepee." Bratvold took no notes of

the interview, either contemporaneously or

thereafter, and there were no other

witnesses present.

The following day, October 4, CPS

caseworkers returned to the Bratvold

daycare to interview Beth Anne Swan and

Rachel Thiel. CPS caseworker Schmidt

attempted to interview both the girls

together but had no success. During this

time Conradi sat at a table with both the

girls and reminded them what they had told

her and Bratvold the day before. CPS

caseworker Schmidt then questioned Rachel

separately and Rachel repeated her

allegations against the Swans including her

statement that Kathleen touched her botton,

put something in her peepee, and there was

blood on her bottom. Through the use of

leading questions, Rachel supposedly stated

that William and Kathleen put birthday

re ’

candles in her potty, put marbles in her

potty, and played happy birthday games.

Following this, Schmidt interviewed Beth

Anne Swan. At the start of the interview

she told Beth Anne that she talked to

Rachel and explained "some of the things"

that Rachel had told her. It was not until

15 minutes of coaxing that Beth Anne would

answer any questions, and only then to very

leading questions. Of great importance is

the following:

[ CASEWORKER SCHMIDT]: Before I asked

that question [about the happy

birthday games], I told her that I

had talked to Rachel and that I knew

about some games that she played and

I wanted to know if she played them

and she said yes.

[QUESTION BY THE PROSECUTOR]: Did

you ask her for descriptions of those

games?

[SCHMIDT]: I believe I attempted,

would not res . (Emphasis

supplied).

Schmidt also asked Beth Anne "if her mother

spits on her potty and she said yes." She

SE a ——— — —— -

then asked “where her dad puts his peepee"

and Beth Anne said on her potty.

The police were called, Rachel Thiel

was sent home and Beth Anne Swan was

removed to a foster home, and dependency

proceedings were begun. The Swans have had

no contact with either child since that

date.

A crucial factor that by itself should

have been sufficient to declare Rachel's

statements unreliable was the October 11,

1985 interview by Detective Marlin Bachler

who was assigned to the Sexual Assault Unit

of the King County Police Department and

a King County Deputy Prosecuting Attorney

from their Special (sexual) Assault Unit.

On that date Beth Anne Swan and Rachel

3The court prohibited William Swan

from testifying that Beth Anne used the

term "potty" to describe the bathroom and

had on occasion yelled, "Daddy is in my

potty," when he was using the bathroom and

she wanted to enter.

aaa eae

Thiel were interviewed at the prosecutor's

office.

Consistent with what later occurred at

the pre-trial hearings, Beth Anne Swan

would not respond to any questions by the

prosecutor or the detective regarding the

allegations of sexual abuse. In stark

contrast to Beth Anne Swan, Rachel Thiel

readily answered questions during the

interview. However, she never accused the

Swans and when she was asked who sexually

abused her, she stated that "Jerry (her

father's name) put marbles there" (which

was the same allegation she had made to

Cindy Bratvold against the Swans) and that

she had told this to Cindy Bratvold.‘

Detective Bachler testified at trial that

his notes reflected that the following

occurred during that interview:

4cinay Bratvold's testimony included

no suggestion that Rachel had made such a

statement to her or ever mentioned "Jerry."

Q [OFFICER BACHLER] Do you know

there are parts of a body where we

shouldn't be touched?

There was no answer. However, she

(Rachel) pointed to her genital area.

Q. [OFFICER BACHLER] Did anybody ever

touch you there?

A. [RACHEL] No. Jerry put marbles

there.

Q. [OFFICER BACHLER] We heard that

statement. We heard that you told

somebody about this. Who did you

tell?

A. [RACHEL] Cindy.

That was the extent of the interview.

Neither the detective nor the prosecutor

attempted to elicit any other information

regarding this allegation and Jerry Thiel

was never charged with an offense. In

fact, the State called Jerry Thiel as a

witness at trial where he testified that

he had never molested his daughter Rachel. °

“The state conceded in their brief in

the Washington Supreme Court that Rachel's

statement that Jerry molested her "was

incorrect" and "more likely to be wrong."

Brief of Respondent at 40, n. 16.

tees, 2

Besides all of the foregoing hearsay

statements, the State was also allowed to

introduce a statement by Rachel Thiel to

her father, Jerry Thiel, during a car ride

on October 17, 1985 (two weeks after the

initial disclosures) where Rachel

supposedly said, "Bill and Kathy are bad,

they put marbles in her [Rachel's] bottom."

Cindy Bratvold was also permitted to

testify that in approximately January of

1986 (three months after the initial

disclosure) Rachel told her that her finger

was burned and she got a bump on her head

when Bill put a candle in her potty and lit

it (which would have occurred sometime

prior to October 4, 1985 since she had no

contact with the Swans since that date),

although on inspection Bratvold saw no

evidence of a burn.

The State was also permitted to call

Cindy Hermansen, who was Beth Anne Swan's

foster mother beginning on October 4, 1985,

the day she was removed from the Swan's

house. Over objection she was permitted

to testify as a rebuttal witness that in

approximately March of 1986 (seven or eight

months after the initial disclosure), Beth

Anne told her that her mommy and daddy put

marbles in her potty. When Hermansen sent

her son to get marbles to show her, Beth

Anne Swan supposedly said it was actually

"a snake full of marbles."

Neither child testified at trial. Beth

Anne Swan appeared at a pre-trial hearing

and would not answer any questions.

However, Rachel Thiel was very comfortable

on the stand and answered all questions

although she misstated several things and

demonstrated that she could be easily led.

When the judge asked her the color of her

dress, she testified that her dress was

blue and white, which was correct.

However,

(THE COURT]: If I tell you it's a

pink dress, is that a truth or a lie?

(RACHEL THIEL]: Well, it's blue,

sort of, but it's pink.

(THE COURT]: It's blue but it's

pink?

(RACHEL THIEL): Yes.

(THE COURT]: I don't have any more

questions.

No questions were asked Rachel to determine

whether she had a memory of the allegations

or what she supposedly told Bratvold or CPS

caseworker Schmidt.

The court therefore found that Rachel

was incompetent to testify based upon "her

ability to understand the obligation to

speak the truth and her ability to remember

accurately and express past events. ..."

Both girls were declared to be

incompetent and therefore unavailable and

did not testify at trial. All the

foregoing hearsay statements were admitted

pursuant to RCW 9.44.120, the Washington

Child Hearsay Statute.

HOW D UESTIONS WERE

RAISED AND DECIDED BELOW

Petitioners' counsel raised the Sixth

Amendment Confrontation Clause issue at

trial in challenging the admission of the

hearsay statements. Petitioners argued in

their brief on appeal before the Washington

Supreme Court that the introduction of

these hearsay statements violated their

rights under the Sixth Amendment of the

United States Constitution and that the

Washington Child Hearsay Statute, RCW

9A.44.120, was unconstitutional.

The Supreme Court of Washington held

that the Washington Child Hearsay Statute

was constitutional and did not violate the

Sixth Amendment. State v. Swan, 114 Wn.2d

613, 667-668, P.2d (1990). With

regard to petitioners' claim that the

ies aia ail

introduction of the hearsay statements

under the facts of the case violated the

Sixth Amendment Confrontation Clause, the

court, while not specifically referring to

the Sixth Amendment, held that the trial

court did not abuse its discretion in

finding both girls' hearsay statements

reliable pursuant to RCW 9A.44.120, which

requires that the court must find "that the

time, content, and circumstances of the

“statement provide sufficient indicia of

reliability." State v. Swan, 114 Wn.2d at

647.

ONS FOR G

A. The W ton C Ss atute

RCW 9A.44.120, Violates the Sixth Amendment

Confrontation Clause.

In Ohio v. Roberts, 448 U.S. 56, 66, 65

L.Ed.2d 597, 100 S.Ct. 2531 (1980), this

Court held:

In sum, when a hearsay declarant is

not present for cross-examination at

trial, the Confrontation Clause

normally requires a showing that he

is unavailable. Even then, his

statement is admissible only if it

bears adequate "indicia of

reliability." Reliability can be

inferred without more in a case where

the evidence falls within a firmly

rooted hearsay exception. In other

cases, the evidence must be excluded,

at least absent a showing of

particularized guarantees of

trustworthiness.

See also, Idaho v. Wright, 497 U.S. ,

lll L.Ea@.2G4 638, 653, 110 S.Ct.

(1990).

The Washington Child Hearsay Statute,

RCW 9A.44.120, is not a firmly rooted

hearsay exception. See State v. Ryan, 103

Wn.2d 165, 170, 691 P.2d 197 (1984) ("RCW

9A.44.120 is not within the category of

firmly rooted hearsay exceptions .. .")

The Washington Child Hearsay Statute

permits the admission of hearsay evidence

in circumstances where there are merely

"sufficient indicia of reliability." See

RCW 9A.44.120. This language does not

comport with the standard the Court

articulated in Ohio v. Roberts, id., and

Idaho _v. Wright, 111 L.Ed.2d at 656.

Rather, it states a significantly less

stringent test for admissibility, inviting

an open-ended and unfocused inquiry

regarding reliability. For this reason,

the Washington Child Hearsay statute must

be declared unconstitutional on its face

as violative of the Sixth Amendment

Confrontation Clause.

B. isi e Suprem °

Washington is in Conflict With the Decision

° Cc v. W the

° i en t_ in that it

Permitted the Introduction of Untrustworthy

Hearsay Statements.

The Washington Supreme Court decided

this case on May 3, 1990, and denied

petitioners' motion for modification and

reconsideration on June 22, 1990. This

court decided Idaho v. Wright, on June 27,

1990.°

©Following this Court's decision in

Idaho v. Wright, petitioners filed a motion

in the Supreme Court of Washington on June

28, 1990, for recall of mandate, withdrawal

of opinion, and for rebriefing and re-

The Washington court did not have the

benefit of the Idaho v. Wright decision at

the time that it issued its opinion and

denied the motion for modification and

reconsideration. Idaho v. Wright is a case

that is factually similar and nearly

legally identical to the instant case. Any

dissimilarity between Idaho v. Wright and

the instant case is that in Idaho v. Wright

the hearsay statements were very brief and

were only made on one occasion.

Here, hearsay statements made by Beth

Anne Swan on three separate occasions

stretching over a nine month period of time

were introduced. With regard to Rachel

Thiel, four hearsay statements made over

a period of approximately four months were

introduced. Unlike Idaho v. Wright, where

the statement was very limited, here the

argument based on this decision. On July

3, 1990, the Washington Supreme Court

summarily denied this motion.

hearsay statements were extensive and

involved. This Court's ruling on the

admissibility of child hearsay under the

Sixth Amendment Confrontation Clause in

Idaho _v. Wright mandates reversal of the

Swans' convictions.

The Washington Supreme Court, in finding

that the children's statements had

sufficient indicia of reliability, relied

strongly upon "“cross-corroboration," <=

that is, finding that both children told

similar stories. An examination of their

actual statements shows that their stories

differed substantially. Nevertheless, even

if there was some similarity between their

alleged hearsay statements, this was easily

explained by the fact that Conradi reported

to Bratvold what Beth Anne Swan supposedly

said. Bratvold then conducted an

examination of the second child with the

object of obtaining similar disclosures.

Even assuming, arguendo, that the first

statements made by the first child to

Conradi had sufficient guarantees of

trustworthiness, the second set of

statements by Rachel Thiel must fail under

the Idaho v. Wright test given Bratvold's

obvious predisposition, knowledge, and

motivation to obtain similar statements.

Furthermore, unlike the reporter of the

hearsay in Wright who was "a pediatrician

with extensive experience in child abuse

cases," 111 L.Ed.2d at 648, here Bratvold

was untrained, and obviously biased because

of her personal involvement as owner of the

daycare where child abuse was first

disclosed.

Moreover, even assuming, again argquendo,

that the initial statement made by Beth

Anne Swan to Lisa Conradi and those by

Rachel Thiel to Cindy Bratvold had

sufficient guarantees of trustworthiness,

the same cannot be said concerning the

interviews conducted by the CPS workers the

following day. Both 3-1/2-year-old

children had been already thoroughly

questioned, had allegedly made disclosures,

had been subjected to continued leading

questions, and their memories had been

undoubtedly tainted by the questioning

process. Importantly, Conradi conceded she

again spoke to both of them about their

prior disclosures just before their being

questioned by the CPS workers assisted by

Cindy Bratvold. Under these circumstances,

their secondary statements to the CPS

workers can hardly be deemed to have

particularized guarantees of

trustworthiness, as required under the

Confrontation Clause. Idaho v. Wright,

111 L.Ed.2d at 655, 659-660.

To the extent that the Washington Court

found sufficient reliability based on

cross-corroboration, in that both children

supposedly gave similar statements, this

Court's opinion in Idaho v. Wright rejects

this as a proper test of reliability. See

lll L.E@.2d at 658. This is especially

the situation here since Bratvold, the

second reporter of the allegation of child

abuse, had been informed by Conradi of the

details of the allegations. Furthermore,

these children were close friends and not

only were together prior to the reporting,

but were placed together after the initial

reporting and prior to the very important

interviews by the CPS workers.

Moreover, hearsay statements were

erroneously found to be reliable even

though they were made by Rachel Thiel

approximately two weeks after the initial

disclosure. By this time she had been

interviewed by the owner of the daycare,

by a CPS worker, by a physician conducting

a medical examination, and by the police.’

Presumably she had also been questioned

by her parents and other persons. Again,

regardless of a decision as to the

reliability of the earlier statements, her

hearsay statements two weeks later to her

father, and approximately four months later

to Bratvold regarding an allegation of a

burned finger and sexual abuse, cannot be

deemed to be reliable. The same is true

of Beth Anne Swan concerning her hearsay

statement made to the foster mother

approximately eight months after the first

disclosure.

Finally, it must be stressed that Rachel

Thiel was found by the trial judge to be

incompetent based not on her inability "to

communicate with the jury," see Idaho v.

Wright, 111 L.Ed.2d at 658, but based on

Tat which time she made a false

disclosure. See supra, at 17-18.

her inability to understand the obligation

to speak the truth and to remember

accurately and express past events. Since

she was never asked any questions

concerning her memory of the alleged abuse,

this finding related solely to her

inability to receive "just impressions of

the facts and of relating themtruly." Id.

This is much different than a situation

where a child merely has no memory or is

unable to speak in court. Here, it was

demonstrated that the child was easily led

and unable to communicate truthfully.

Under these circumstances, a finding that

the child's earlier statements possessed

particularized guarantees of

trustworthiness cannot be sustained.

State v. Paster, 524 A.2d 587 (R.I.

1987) is directly on point on the issue of

competency. There, a four year old alleged

victim of sexual abuse was ruled

incompetent by the trial judge on the

ground that she could not recollect,

communicate or appreciate the necessity of

telling the truth. The child's hearsay

statements were nonetheless admitted as an

8 In

exception to the hearsay rule.

reversing the case, the Rhode [sland

Supreme Court correctly explained that

incompetency at the time of trial based on

an inability to communicate truthfully will

usually mandate a finding that the child

was also incompetent (and therefore

unreliable) at the time of making the

statement:

When a trial justice has ruled a

witness incompetent to testify

because the justice is not convinced

that the witness is capable of

relating a capacity to observe, to

recollect, to communicate, or to

appreciate truthfulness, the justice

has already made the determination

Swhile the statements were admitted

pursuant to the excited utterance and

medical history exceptions, the issue of

competency and reliability is identical to

the instant case.

that the witness's assertions are

unreliable. Though there may be

instances in which a witness is

competent at the time he or she makes

an assertion and later, at the time

of trial, due to the onset of

senility or mental illness, is

incompetent, such does not hold true

with infants. If an infant is ruled

incompetent at the time of trial

because she is only four years old,

assertions made by that infant a year

earlier cannot be considered

inherently more reliable. Logic

dictates that, if anything, they are

less reliable.

Id. at 590.

CONCLUSION

For the foregoing reasons, the

Washington Supreme Court's decision in this

case cannot stand following Idaho v.

Wright. The Washington court did not

correctly consider and examine petitioners'

Sixth Amendment Confrontation Clause

challenges in affirming their convictions.

The court utilized unreliable hearsay

statements and improperly "bootstrapped"

these hearsay statements with other

unreliabie hearsay statements and other

likewise unreliable "corroboration."

This Court is urged to grant

petitioners' writ of certiorari and reverse

their convictions.

DATED this 1S aay of September, 1990.

Respectfully submitted,

ALLEN & HANSEN, P.S.

By: David Allen

Counsel of Record

for Petitioners

Richard Hansen

Todd Maybrown

Counsel for Petitioners

ALLEN & HANSEN, P.S.

600 First Avenue, Suite 600

Seattle, Washington 98104

(206) 447-9681

IN THE COURT OF APPEALS OF THE STATE

OF WASHINGTON

STATE OF WASHINGTON,

NO. 20937-0-I

Respondent,

DIVISION ONE

Vv.

KATHLEEN ROWLAND

SWAN, and each of

then,

FILED: May 16, 1988

)

}

WILLIAM ORR SWAN and )

)

Appellants. )

)

GROSSE, J. -- William and Kathleen Swan

each appeal their convictions on two counts

of statutory rape. The two counts pertain

to the two victims involved: B.A, tbe

daughter of the appellants, and R.T., a

friend and playmate of B.A. At the time

the incident came to light, both children

were 3 years old.

The charges arose out of statements made

on October 2, 1985, by B.A. to a day-care

worker. In these statements B.A. revealed

facts evidencing sexual abuse of B.A. and

her friend R.T. by the appellants.

Children's Protective Services (CPS) was

notified and interviewed B.A. on October

2 but the results of this interview proved

insufficient in CPS's judgment to justify

removal of B.A. from her home. On October

3, the owner of the day-care center, Cindy

Bratvold, interviewed R. T. who made

statements similar to those earlier

reported from B.A. On October 4, CPS again

visited the day-care center and interviewed

both children separately. R. T. repeated

the story told to bratvold on October 3,

while B. A. confirmed her earlier

statements. After the interviews of

October 4, B.A. was removed from

appellants’ home and placed in foster care.

The following week she was examined by a

nurse practitioner for evidence of sexual

abuse. Some time later she was examined

by her own pediatrician. R. T. was

examined approximately 1 week after the

allegations. None of these examinations

revealed any conclusive physical evidence

of sexual abuse.

Of the nine issues raised on appeal,

eight remain,? but our disposition of

appellants' challenge to the admissibility

of the children's statements through

hearsay testimony is dispositive.

Appellants contend that both B.A.'s and

R.T.'s statements to witnesses Conradi,

Bratvold, and Schmidt were unreliable and

their admission prejudicial.

lappellants raise the issue of the

constitutionality of their being charged

with first degree statutory rape rather

than incest. This issue was resolved in

State v. Hodgson, 44 Wn. App. 592, 722 P.2d

1336 (1986), aff'd in part, rev'd in part,

108 Wn.2d 662, 740 P.2d 848 (1987), wherein

the court determined that the two crimes

involved different elements and thus the

determination by the prosecutor to charge

under one statute rather than the other

does not impinge on a defendant's

constitutional rights.

A- 4

The pertinent statute is RCW 9A.44.120

which provides:

A statement made by a child when

under the age of ten describing any

act of sexual contact performed with

or on the child by another, not

otherwise admissible by statute or

court rule, is admissible in evidence

in dependency proceedings under Title

13 RCW and criminal proceedings in

the courts of the state of Washington

ifs

(1) The court finds, in a

hearing conducted outside the

presence of the jury, that the time,

content, and circumstances of the

statement provide sufficient indicia

of reliability; and

(2) The child either:

(a) Testifies at the proceedings;

(b) Is unavailable as a witness:

Provided,

That when the child is

unavailable as a witness,

such statement may be

admitted only if there is

corroborative evidence of

the act.

At trial, pursuant to the statute, the

State offered statements of the children

through the hearsay testimony of witnesses

Conradi, Bratvold, and Schmidt. Because

A=- 5

of the children did not testify, - their

: 2The trial court conducted pretrial

hearings on B.A.'s and R.T's competency to

testify at trial and found them both

incompetent. The test of the competency

of a young child as a witness is:

" (1) an understanding of the

obligation to speak the truth on the

witness stand; (2) the mental

capacity at the time of the

occurrence concerning which [she] is

to testify, to receive an accurate

impression of it; (3) a memory

sufficient to retain an independent

recollection of the occurrence; (4)

the capacity to express in words

(her] memory of the occurrence; and

(5) the capacity to understand simple

questions about it."

State v. Przybylski, 48 Wn. App. 661, 664,

739 P.2d 1203 (1987) (quoting State v.

Allen, 70 Wn.2d 690, 692, 424 P.2d 1021

(1967)). The determination of a witness's

ability to meet the requirements of the

test lies within the sound discretion of

the trial judge and will not be disturbed

on appeal in the absence of proof of a

manifest abuse of that discretion. State

v. Justiniano, 48 Wn. App. 572, 578, 740

P.2d 872 (1987).

B.A. refused to answer any questions and

was properly determined to be incompetent

to testify. While R.T. was responsive to

questions, the court found R.T. incompetent

on two grounds: (1) R.T.'s inability to

understand the obligation to tell the

truth, and (2) her ability to remember

accurately and express past events. The

record demonstrates that there was no abuse

of discretion on the part of the trial

A - G6

statements could only be admitted if (1)

they fell within 2 firmly rooted hearsay

exception; or (2) in the alternative, the

admission of the statements was accompanied

by a showing of particularized guarantees

3 and (3) there is

of trustworthiness;

corroboration of the act or acts of abuse.

court in finding R.T. incompetent to

testify.

3since the child sexual abuse

exception is not a "firmly rooted" hearsay

exception, particularized guarantees of

trustworthiness are required before the

hearsay is admissible, thus requiring a

higher standard of reliability as a

substitute for a traditional hearsay

exception. State v. Slider, 38 Wn. App.

689, 696, 688, P.2d 538 (1984). See also

Ohio V. Roberts, 448 U.S. 56, 66, 65 L. Ed.

2a 597, 100 S. Ct. 2531 (1980); State v.

Ryan, 103 Wn.2d 165, 170, 691 P.2d 197

(1984).

4whenever the alleged child victim is

unavailable as a witness, RCW

9A.44.120(2)(b) requires there also be

corroborative evidence of the act before

any reliable hearsay statements are

admitted. This requirement provides the

additional protection needed against

fabricated allegations where the defendant

is not able to cross-examine the child

a * 7

RCW 9A.44.120 permits the use

of an otherwise admissible statement

by a victim of sexual abuse under

the age of 10 when the court finds

that the circumstances of the

statement provide sufficient indicia

of reliability. The determination

of whether a statement is admissible

. - is within the sound discretion

of the trial court.

(Footnote omitted.) State v. Hancock, 46

Wn. App. 672, 675-76, 731 P.2d 1133 (1987)

(citing State v. Frey, 43 Wn. App. 605,

611, 718 P.2d 846 (1986).

In State v. Ryan, 103 Wn.2d 165, 691

P.2d 197 (1984), the Supreme Court set out

nine factors to be applied when determining

whether hearsay statements are sufficiently

reliable for admission. These nine factors

are:

(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;

(5) the timing of the declaraticn and

declarant. State v. Hunt, 48 Wn. App. 840,

847-48, 741 P.2d 566 (1987).

a7 &

the relationship between the

declarant and the witness; (6) the

statement contains no express

assertion about past fact; (7) cross

examination could not show the

declarant's lack of knowledge; (8)

the possibility of the declarant's

faulty recollection is remote; ;and

(9) the circumstances surrounding the

statement are such that there is no

reason to suppose the declarant

misrepresented defendant's

involvement. These factors must be

substantially met before a statement

is demonstrated to be reliable.

(Citations omitted.) State v. Cooley, 48

Wn. App. 286, 294, 738 P.2d 705 (1987).

The trial court's rulings with respect

to the statements demonstrate careful

consideration of the Ryan factors as they

apply to the facts of this case. We have

reviewed the record and find that it

supports the trial court's rationale.

There was no abuse of discretion on the

part of the trial court in finding the

statements reliable; the Ryan factors were

substantially met. However, it is also

Clear from a review of the record that the

a ~ 9

trial court failed to look to _ the

statutorily required element of

corroboration prior to its ruling on the

admissibility of the hearsay testimony.

Separate determinations as to reliability

and corroboration must be made when a child

is unavailable. State v. Ryan, supra at

Swe will review the record to

determine whether the trial court's failure

to make a determination as to corroboration

was prejudicial, warranting reversal.

Usually, this determination should be made

concurrently with the determination as to

reliability. However, State v. Ryan, does

indicate that they are separate

determinations and we recognize that there

may be cases wherein the court will first

determine reliability and admit the

testimony conditionally, subject to

corroboration being shown in the course of

the State's case in chief. In any event,

both the determination as to reliability

and that as to corroboration are

preliminary matters subject to’ the

provisions of ER 104(a).

ER (104(a) provides that the trial court

is not bound by the rules of evidence in

deciding the admissibility of evidence, or

in making preliminary rulings on matters

such as the suppression of evidence. 5A

K. Tegland, Wash. Prac., Evidence § 573 (2d

ed. 1982). Accordingly, we will review the

A - 10

A recent case by this court thoroughly

discussed the requirement of corroborative

evidence, State v. Hunt, 48 Wn. App. 840,

741 P.2d 566 (1987). Hunt makes clear that

corroborative evidence is evidence

supplementary to that given, that is the

hearsay testimony, tending to strengthen

and confirm that hearsay testimony. It

encompasses both direct and indirect

evidence, e.g., physical evidence of sexual

abuse, nightmares relating to abuse,

confessions, and expert testimony with

regard to typical behavior on the part of

sexually abused children. See State v.

record and consider, as the trial court

could have, all of the evidence relevant

to the corroboration issue, both direct and

indirect, admissible and inadmissible.

This includes physical findings and expert

opinions, including one doctor's opinion

as to the significance of the absence of

hymen tissue in a 20 to 3-year-old girl and

her proffered opinion, which was refused,

regarding the significance of B.A.'s

distraught behavior during genital

examinations.

a = a3

Hunt, supra at 848 (summarizing prior

cases). In short, as set forth in Hunt,

at 849:

In the context of RCW 9A.44.120, we

find that "corroborative evidence of

the act" requires that there be

"evidence of sufficient circumstances

which would support a logical and

reasonable inference" that the act

of abuse described in the hearsay

statement occurred. Bremerton v.

Corbett, [106 Wn2d 569, 723 P.2a 1135

(1986)] at 578-79; cf. State v.

Spronk, 379 N.W.2d 312, 314 (S.DC.

1985) (corroboration requirement of

child abuse hearsay exception

required evidence "which in some

substantial degree tends to affirm"

that the charged act of sexual abuse

occurred).

In the instant case, the record with

respect to corroboration is weak.

Certainly, to some degree, R.T.'s

statements corroborate those of B.A. and

to some eegree B.A.'s statements

corroborate those of R.T. However, under

the circumstances of this case we do not

believe that thi# corroborative evidence

is, standing alone, sufficient to lead to

A- 12

the requisite "logical and reasonabie

inference."

As to 8B.A., there is additional

evidence. Approximately 1 week after the

revelations a nurse practitioner, Ritter,

examined B.A. for sexual abuse. He

observed that her genitalia area was

slightly reddened and that the vaginal

opening was slightly enlarged, although he

made no actual measurements of the opening.

At trial, with objection, he estimated the

size of the opening as 1 - 1.2 centimeters.

Ritter admitted that the did not look for

or notice a hymen, but that he could see

into the vagina. He also remarked that

B.A. was upset over having an exam and very

distraught over a genital exan.

Dr. Parris, the Swan's family physician,

examined B.A. on October 9. He observed

no signs of external injury. He noted that

the vaginal area was slightly red and that

there was a slight discharge, which he

opined was norma. He also did not make a

note of the presence or absence of a hymen.

Dr. Parris concluded that B.A.'s vaginal

area was essentially normal. He also

testified that B.A. was very anxious about

having a genitalia exam, but explained that

such anxiety was not unusual in a child of

3 years. He said that children's reaction

to examinations is highly variable, but,

while B.A.'s behavior was within the normal

range, such behavior could also be

exhibited by an abused child.

Dr. Jenny, Medical Director of the

Sexual Assault Center at Harborview Medical

Center, did not examine B.A. but reviewed

the notes and findings of Ritter and Parris

and gave opinions on the significance of

certain of the findings or absence

A- 14

thereof. ° She opined that Ritter's

estimate of the diameter of B. A.'s vaginal

opening, 1 - 1.2 centimeters, was over

twice the normal size for a child of her

age. She testified, contrary to Parris,

that vaginal discharge in young girls was

highly unusual and that the absence of

hymen tissue in a 2- to 3-year old girl was

indicative of trauma, but she could not say

Sappellants contend that the court

commented on the evidence when it ruled to

accept Dr. Jenny as an expert regarding

sexual abuse of children. In determining

whether words or actions amount to a

comment on the evidence the court looks to

whether the action or words of the trial

court either directly or by implication

suggested the court's opinion or feelings

as to the credibility, sufficiency or

weight of the evidence. State v. Jacobsen,

78 Wn.2d 491, 95, 477 P.2d 1 (1970). Dr.

Jenny was extensively questioned about her

qualifications, and, after hearing the

testimony, the court ruled to accept her

as such an expert. The court's ruling

merely indicates that the threshold query

provided in ER 702 was satisfied. The

court offered no opinion as to the

credibility, sufficiency, or weight of Dr.

Jenny's testimony.

A- 15

that the trauma was necessarily the result

7 She also stated that the

of sexual abuse.

increased redness of the vaginal area could

have been due to poor hygiene or infection,

rather than trauma.

While this evidence of abuse of B.A. is

equivocal and conflicting on some points

it is sufficient to permit a logical and

reasonable inference that abuse occurred.

The corroboration as to B.A. is sufficient.

we note that neither the nurse

practitioner nor Dr. Parris testified that

hymenal tissue was absent and Dr. Jenny did

not herself examine B.A. This testimony

was the subject of a defense objection at

trial based upon insufficient foundation

and, on appeal, error has been assigned to

its admission based upon speculation.

Thus, were we to reach this issue we would

be unlikely consider it on appeal. See

State v. McKinney, 50 Wn. App. 56, 65, 747

P.2d 1113 (1987) ("A party may only assign

error on appeal based on the specific

ground of the evidentiary objection made

at trial.") Four our purposes here, in

determining whether there is corroborative

evidence, we do not attach significance to

Dr. Jenny's testimony that the tissue was

absent.

AT SA

A=- 16

There was no prejudice to the defendants

to specifically consider the issue of

corroboration as to B.A.

We cannot reach a similar conclusion as

to the statements by R.T. Her statements

were to the effect that she was a co-

participant and co-victim. However, her

physician testified at trial that he gave

R.T. a complete physical exam on October

4 and that there was nothing in the

physical exam that would support sexual

abuse. He also stated that he could not

make a determination as to whether or not

R.T. was abused..

Schmidt, a caseworker with CPS, did

testify to R.T.'s play with an anatomically

correct female doll--pointing to the

vaginal area and saying that appellants put

marbles and candles in her “potty”. This

could be considered as corroborative in the

sense that it might demonstrate unusual

A &7

sexual awareness on the part of R.T. but

there is nothing in the record to support

such a conclusion. We also must note that

neither Schmidt nor any other witness

testified that R.T.'s play with the

anatomically correct doll was indicative

of sexual abuse or indicative of behavior

inappropriate for a child of her age.

There was no expert testimony in this case

with regard to the behavioral

characteristics that evidence sexual abuse.

The State points to testimony indicating

that R. T. And B.A. would stand close

together, grab their crotches and giggle

as being corroborative. Again, the lack

cf expert testimony as to just what this

behavior indicates frustrates drawing any

reasonable inference of corroboration from

this testimony.

It is also true that R.T.'s father

testified to her complaints of pain in the

A- ig

vaginal area. But, these complaints

occurred months after the abuse allegedly

occurred and ceased 1 month before the

allegations came to light. In addition,

R. T.'s father testified that they took her

to the doctor because of complaints and

that the complaints could not be medically

substantiated. The only other evidence

that the State can point to, or that this

court has found in an exhaustive review of

the record, that might tend to corroborate

R.T.'s statements is the statement made by

R.T. to Bratvold that her finger had been

burned. However, this cannot be considered

for purposes of corroboration because it

was offered as part of the hearsay

testimony at issue. The State offers no

hearsay exception under which this

assertion of past fact would fall and we

can find none. It would involve blatant

"bootstrapping" to corroborate the hearsay

A- 19

at issue with the same hearsay. Moreover,

there is nothing in the record to correlate

in time this complaint with the alleged

abuse.

In sum, we have searched the entire

record in an attempt to find sufficient

corroboration to sustain the trial court's

ruling admitting the hearsay testimony as

to R.T. We are unable to do so. We

believe that t he corroborative evidence

is not sufficient to permit a logical and

reasonable inference that R. R. was

sexually abused. Therefore the trial

court's error in admitting the statements

of R.T. through hearsay was prejudicial.

The error as to R.T. requires a new

trial as to bcth children because it cannot

be said that the testimony as to R.T.'s

statements did not influence the verdict

as to V.A. See State v. Aaron, 49 Wn. App.

735, 745 P.2d 1316 (1987) (erroneous

A - 20

admission of evidence requires reversal if

it materially affected the outcome of the

trial); State v. Sweeney, 45 Wn. App. 81,

723 P.2d 551 (1986).

The last issue which we will address is

whether or not the testimony by Dr.

Underwager was improperly excluded because

the offer of such evidence is unlikely to

occur on retrial. 8 Dr. Underwager proposed

to testify on the validity and accuracy of

a child's answers during an interview with

an adult and to describe the factors which

come into play and affect such an

interview.

"The admissibility of expert testimony

Sappellants also assign error to the

denial of their motion for a new trial, the

admission of certain rebuttal testimony,

the refusal of testimony by Mr. Swan as to

a name which B.A. called the bathroom, and

the impropriety of the prosecutor's closing

statements. In view of our disposition on

the hearsay issues and the fact that these

errors are not likely to recur on retrial,

it is unnecessary to address then.

a- 21

under [ER 7027] depends upon whether (1)

the witness qualifies as an expert, (2) the

opinion is based upon an explanatory theory

generally accepted in the _ scientific

community, and (30 the expert testimony

would be helpful to the trier of fact."

(Citations omitted.) State v. Allery, 101

Wn.2d 591, 596, 682 P.2d 312 (1984). The

decision to admit expert testimony is

within the sound discretion of the court,

and will not be disturbed on appeal absent

a showing of abuse of discretion. State

v. Ciskie, 110 Wn. 2d 263, P.2d

(1988).

ER 702 provides:

"If scientific, technical, or other

specialized knowledge will assist the trier

of fact to understand the evidence or to

determine a fact in issue, a witness

qualified as an expert by knowledge, skill,

experience, training, or education, may

testify thereto in the form of an opinion

or otherwise."

A- 22

The court ruled to exclude 0ODr.

Underwager's testimony because (1) it found

that the proposed testimony covered an area

within the common knowledge of the jury and

(2) there was insufficient evidence of

scientific acceptance of the factors and

their application to research on

interviewing sexually abused children. We

have reviewed the record and find that id

does not sufficiently establish the

reliability of the expert's methodology,

factors, or the principles which he

proposed to use in his testimony.

Accordingly, the trial court did not abuse

its discretion in excluding the testimony.

We reverse and remand.

/s/_ Grosse, J.

WE CONCUR:

/s/ Swanson, J. s/ W iams, J.

IN THE SUPREME COURT

OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 55393-9

)

Petitioner, ) EN BANC

)

Ve )

)

WILLIAM ORR SWAN and )

KATHLEEN ROWLAND )

SWAN, and each of )

then, )

)

Respondents. ) Filed

ANDERSEN, J. --

FACTS OF CASE

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

1 we

reversed in an unpublished opinion.

reverse the Court of Appeals and reinstate

the judgments and sentences imposed by the

trial court.

At issue here is whether there was

Istate v. Swan, 51 Wn. App. 1036

(1988).

B-32

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

inflicted on their own 33-year-old daughter

and her 3-year-old playmate.

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.

Before trial, the State gave notice of

its intent to rely upon the child sexual

Be- 3

abuse hearsay exception set forth in RCW

9A.44.120, Washington's child victim

2 This statute, set forth

hearsay statute.

in full in the margin”, creates an addition

2as to what is and is not "hearsay"

in the context of a child abuse case, see

In re Penelope B., 104 Wn.2d 643, 709 P.2d

1185 (1985).

3at all times pertinent herein, the

child victim hearsay statute read as

follows:

"A statement made by a child when under

the age of ten describing any act of sexual

contact performed with or on the child by

another, not otherwise admissible by

statute or court rule, is admissible in

evidence in dependency proceedings under

Title 13 RCW and criminal proceedings in

the courts of the state of Washington if:

"(1) The court finds, in a hearing

conducted outside the presence of the jury,

that the time, content, and circumstances

of the statement provide sufficient indicia

of reliability; and

"(2) The child either:

"(a) Testifies at the proceedings; or

"(b) Is unavailable as a witness:

Provided, That when the child is

unavailable as a witness, such statement

may be admitted only if there is

corroborative evidence of the act.

"A statement may not be admitted under

this section unless the proponent of the

statement makes known to the adverse party

his intention to offer the statement and

the particulars of the statement

sufficiently in advance of the proceedings

B= 4

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 witnesSs, 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.

to provide the adverse party with a fair

opportunity to prepare to meet’ the

statement." RCW 9A.44.120.

“Penelope B., 104 Wn.2d at 650.

B=- §

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 Wn.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.

ISSUES

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"?

B-§&

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?

ran DECISION

ISSUE ONE.

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

B-9

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."> 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

"State v. Jones, 112 Wn.2d 488, 489-

90, 772 P.2d 496 (1989) (citing RCW

9A.44.120).

B- 10

in the hearsay statement occurred.© The

child victim hearsay statute requires

separate determinations of reliability and

corroboration when the child is unavailable

to testify.’

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

8 As we

of an erroneous conviction.

recently explained, "(t]he Legislature has

offered no specific guidance on low this

balance is to be struck. Similarly, we

State v. Hunt, 48 Wn. App., 840, 849,

741 P.2d 566, review denied, 109 Wn. 2a 1014

(1987) (citing Bremerton v. Corbett, 106

Wn.2d 569, 578-79, 723 P.2d 1135 (1986)).

7 Vv , 103 Wn.2d 165, 174,

691 P.2d 197 (1984); State v. Edmondson,

43 Wn. App. 443, 453, 717 P.2d 784, review

denied, 106 Wn.2d 1016 (1986).

Ssones, 112 Wn.2d at 495.

Be- ll

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 documenting abuse. 1°

In most cases of child sexual abuse,

however, there is no direct physical or

testimonial evidence.++ The child victim

is often the only eyewitness to the crime,

and physical corroboration is rare because

the sex offenses committed against children

9yJones, 112 Wn.2d at 495.

The Corroboration of Sexual

vict int ney i ommnarat American Bar

Ass'n, Child Sexual Abuse and the Law 103,

at 107 (5th ed. 1984); Jones, 112 Wn.2d at

495.

llpenelope _B., 104 Wn.2d at 647;

Jones, 112 Wn.2d at 495; Hunt, 48 Wn. App.

at 848.

B=- 12

tend to be nonviolent offenses such as

petting, exhibitionism, fondling and oral

12 Physical corroboration may

copulation.

also be unavailable because most children

do not resist, either out of ignorance or

out of respect for authority.+?

Consequently, in order to give any real

effect to the child victim hearsay statute,

the corroboration requirement must

reasonably be held to include indirect

14 Such evidence has

evidence of abuse.

included a child victim's precocious

knowledge of sexual activity, a semen stain

12benelope B., 104 Wn.2d at 646-47;

Miller v. State, 517 N.E.2d 64, 69 (Ind.

1987); State v. Petry, 524 N.E.2d 1293,

1300 (Ind. Ct. App. 1988).

l3penelope B., 104 Wn. 2d at 647;

Miller, 517 N.E.2d at 69; Petry, 524 N.E.2d

at 1300.

14y55nes, 112 Wn.2d at 495; Hunt, 48

Wn. App. at 848; State v. John Doe, 105

Wn.2d 889, 897, 719 P.2d 554 (1986) (Utter,

J., concurring).

mp © i35

on a child's blanket, a child's nightmares

and psychological evidence. ?°

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. 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?®, are analyzed

15see Jones, 112 Wn.2d at 495-96; see

also State v. Allen, 157 Ariz. 165, 177,

755 P.2d 1153 (1988).

16these descriptions include some

testimony offered only during evidentiary

hearings conducted in the jury's absence,

as well as evidence ruled inadmissible,

B=- i464

separately in the pages of this opinion

that follow.

P. DISCLOS BY CHILDREN

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

since we may consider all evidence in the

record in assessing corroboration of

claimed abuse. See Jones, 493; ER 104(a).

B= iS

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 them 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 ny

mouth and icky milk comes out." When asked

who else played this game, B.A. said Josh

does. B.A. also said they played the games

in the bedroom with their clothes off.

When Cindy Bratvold, the day-care owner,

returned to the center a short while later,

Conradi told her about B.A.'s statements.

Bratvold then called Child Protective

B- 16

Services (CPS). After calling CPS,

Bratvold then called asked B.A. whether her

close friend R.T., who attended the same

day-care center, played games with B.A.'s

parents. B.A. said “yes."

Two CPS caseworkers interviewed B.A.

that day. B.A. would not answer questions

they posed, but when Conradi asked in their

presence if her mother spit on her or put

her mouth on B.A.'s private parts, the

child nodded and said "yes." The interview

ended when the defendant Kathleen Swan came

to take her daughter B.A. home. The CPS

caseworkers then decided to interview R.T.

and B.A. on October 4, when both girls were

scheduled to be at the day-care center.

R.T. came to the center the following

day, October 3, but B.A. did not. Bratvold

took R.T. upstairs and began to talk to

her. Bratvold started by asking R.T. if

she liked certain people, including "B.A.'s

Be-l7

mommy." R.T. liked the people listed and

"kind of" liked Kathy Swan. When asked

what she meant, R.T. said "she makes us

play funny games." These games included

exercise games and ring around the rosy in

the nude and falling on the bed. "Then we

kiss Kathy's boobies and we lick her potty,

and she does that to us, too." R.T. also

said that "Kathy puts - one time Kathy put

something in my potty and made me bleed,

and she cleaned it up and told me not to

Say anything."

R.T. then said she played games with

"Uncle Bill" (the defendant William Swan).

She said that Uncle Bill's favorite game

was the happy birthday game. "And that's

where he puts his peepee in my mouth and

shakes it around, and them he says, 'Here

is your happy birthday present,' and

something icky gets in my mouth." R.T.

also said that the Swans put candles and

B- 18

marbles in her "peepee." She added that

another man, John or Josh, played the

games.

The next day, a CPS caseworker came to

the Bratvold day-care center to talk to the

two girls. An initial attempt to interview

them together proved unsuccessful, so the

caseworker talked to the girls separately

in Bratvold's presence. R.T. told the

caseworker that she played “with a game of

marbles" at the Swans' home. She then

added, "Bill plays without his clothes on.

Bill touches my potty with his fingers."

When asked what a "potty" was, R.T. said

it was a "peepee hole." R.T. then said,

"Kathy put some marbles in my bottom."

When asked where her bottom was she said

"peepee hole" and pointed to the vaginal

area of an anatomically correct doll that

the caseworker had brought. R.T. then

added, "I am afraid...Kathy touches my

os @- if

potty. Blood was on my bottom. Kathy put

something in my peepee hole. It hurt."

She said there was blood "down there" and

pointed to her crotch. She also said that

she touched Kathy's "potty and boobies" and

put her mouth on them. R.T. then said that

B.A. was present, and added, "I am too

afraid for it. I just hurt, she poked a

marble in it, she just put a marble in it,

in my potty." What happened? "Kathy fixed

it.*

Bratvold then asked R.T. about the happy

birthday games. R.T. said, "Bill and Kathy

put a candle in my potty and played happy

birthday. Bill put marbles in my potty to

make it better. Stuff comes out of his

peepee." When asked if the "stuff" was

like milk, water, or blood, R.T. replied,

"Like milk." She added that "Bill gives

me a happy birthday present, gives me one

in the bottom." When asked if she liked

B- 20

Bill, R.T. said, "He is mean, I don't like

him, he hurts, he puts his peepee -------

-" R.T. pointed to the vagina on the doll

when asked where Bill puts his peepee on

her. "It hurt." R.T. added that B.A.

played the marble and happy birthday games

with the defendants.

The CPS caseworker then interviewed B.A.

When asked if Mommy spits on her potty,

B.A. ‘replied, "Yes." When asked where

petty gute his peepee, she said, "On my

potty". When asked how it felt, she

answered, "It hurts". B.A. said R.T. was

present when these things happened, and she

said that she played happy birthday and

marble games with her mother and father,

but she would not describe the games.

After the interviews, the police were

called and the children were taken into

protective custody. B.A. was placed ina

foster home while R.T. was returned to her

B- 21

parents and continued to attend Bratvold's

day-care center. Two months later, R.T.

told Bratvold she wanted to tell her

something. "See my finger? I have a burn.

I had a burn. .. When Bill and Kathy lit

the candle in my potty and I tried to grab

it out, my finger got burned, and then I

bumped my head on the counter when they

made me lay on the counter." On October

17, 1985, after the alleged abuse came to

light, R.T. spontaneously told her father

that "Bill and Kathy are bad" because they

put marbles in her botton. |

B.A.'s foster mother testified that

while drying B.A. off after a bath, B.A.

told her that her mommy and daddy put

marbles in her potty. The foster mother

asked her son for some toy marbles and

asked B.A. if they were the type of marbles

Daddy put in her potty. B.A. laughed and

said no. When asked what kind of marbles

B=- 22

Daddy used, B.A. pointed to her crotch.

The foster mother then asked if the marbles

were on Daddy's potty, and B.A. pointed to

her crotch and said, "Yes, and a snake full

of marbles." The foster mother also

testified that B.A. had mentioned marbles

on other occasions, and once had said that

her daddy put marbles and other things

inside her potty and then started to cry

as she said this. The foster mother

testified further that B.A. once brought

up the subject of birthday candles in her

potty. ,

Having outlined the parallel disclosures

made by the children, we now turn to an

analysis thereof to determine whether, as

the State argues, these disclosures are

corroborative evidence of the alleged

abus®.

B.A. and R.T. did not have contact with

each other on October 2 or 3, the days that

: B - 23

they talked to the day-care workers. On

October they sat together but briefly

before their separate interviews by the CPS

caseworker.

Summarizing the similarities between the

statements of these two 3-year-old

children, we find the following. B.A. said

that her daddy put "his potty in me", and

R.T. said that he put his "peepee" in her.

B.A. said that Daddy put his penis in her

mouth and icky milk came out; R.T. said

Uncle Bill put his potty in her mouth and

something icky, like milk, came out. B.A.

said that she and her perents played games

in the bedroom without clothes on; R.T.

said that they played ring around the rosy

in the nude, that Uncle Bill played without

his clothes on, and that they fell on the

bed after their games. B.A. said Josh also

played the games, while R.T. said John or

Josh played. B.A. said that her parents

B- 24

put marbles and birthday candles in her

potty; R.T. said that the Swans put candles

and marbles in her peepee and her botton.

The Court of Appeals did not discuss

these statements in detail before

dismissing their corroborative value. The

Court of Appeals held, "Certainly, to some

degree, R.T.'s statements corroborate those

of B.A. and to some degree 8B.A.'s

statements corroborate those of R.T.

However, under the circumstances of this

case we do not believe that’ this

corroborative evidence is, standing alone,

sufficient to lead to the requisite

‘logical and reasonable inference.'"

Recent cases from other jurisdictions

have discussed "“cross-corroboration" in

greater detail and have used it to support

the admission into evidence of child

victims' hearsay statements. The statutory

guidelines in those other jurisdictions,

B- 25

however, are not precisely the same as

those set forth in Washington's child

victim hearsay statute, RCW 9A.44.120.

The New York Court of Appeals found that

three brothers' hearsay statements of abuse

cross~corroborated each other in the second

of two child protective proceedings

reported in In re Nicole V., 71 N.Y.2da 112,

518 N.E. 2d 914, 524 N.Y¥.S.2d 19 (1987).

The action underlying the second proceeding

was governed by a civil statute providing

that out-of-court statements may be

corroborated by "'[a]ny other evidence

tending to support'" their reliability.+’

| Applying what it referred to as this "broad

flexible rule", the court concluded that

the statements of each brother tended to

support the other's statements and, viewed

together, gave sufficient indicia of

17tn re Nicole V., 71 N.¥.2d4 112, 118,

518 N.E.2d 914, 524 N.Y.S.2d 19 (1987)

(citing Family Court Act § 1046(a)(vi)).

B= 26

reliability to each victim's out-of-court

statements. 18 As the court there declared:

Specifically, both Francis and David

described an incident in which

respondent had David put a "stick"

into respondent's vagina while

Francis looked on. Additionally,

both Samuel and Francis described

separate incidents where respondent

came into each child's bedroom in the

middle of the night and had sexual

relations, hand to penis contact and

mouth to penis contact, with each

child after which she threatened each

child not to tell anyone about the

incidents. Because each child had

consistently and independently

described these particularly detailed

sexual acts, the reliability of the

victim's out-of-court statements

could be weighed by comparing then.

In re Nicole V., 71 N.Y¥.2d at 124. Thus,

in this New York case the courts below

properly found each victim's hearsay

statements were sufficiently corrobora‘2d

by the statements of the other victims to

establish a prima facie case of sexual

abuse. +9

18Nicole V., 71 N.Y¥.2a at 124.

19Nicole V., 71 N.Y¥.2a at 124.

B- 27

As noted earlier, our statute (RCW

9A.44.120) requires corroboration of the

act of sexual abuse, and thus is less

"broad and flexible" than the New York

statute applied above. B.A. and R.T. did,

however, consistently and independently

describe similar sexual acts in varying

degrees of detail. Using the logic and

reasoning implicit in In re Nicole V., the

many parallels between the 3-year-old

girls' statement in this case supply a

reasonable inference that the abuse

described by these young children did

occur.

The Alaska Court of Appeals also used

cross-corroboration to allow admission of

two child victims' hearsay statements into

evidence in Murray v. State, 770 P.2d 1131

(Alaska Ct. App. 1989) and Clifton v.

State, 758 P.2d 1279 (Alaska Ct. App.

1988). The Alaska statute applicable to

B=- 28

both cases required additional evidence to

corroborate a child victim's hearsay

statements before they could be admitted

0 In

into evidence before a grand jury.?

Murray, a 5-year old and her 99-year-old

neighbor told their parents and a police

officer that a family friend had sexually

abused then. They described in detail

sexual acts that they were subjected to

and which they had witnessed being

performed on each other. Despite lack of

a confession or any medical or physical

evidence, the court found the girls'

charges corroborated in large part by each

other's claims. The court cited Clifton

in observing that "one child's claims of

sexual abuse may corroborate another

child's claim against the same

20alaska Stat. § 12.40.110.

B=- 29

individua1."?1

In the other Alaska case, Clifton, an

ll-year old boy and his 13-year-old sister

told a social worker that their stepfather

had sexually abused them, and then recanted

their statements. In their original

statements, the boy had described in detail

ongoing acts of oral sex, while his sister

said that the defendant had touched her

sexually four or five times. At trial, the

youngsters again denied their earlier

charges, but admitted making earlier

accusations of sexual abuse. The court

concluded there that the original

statements corroborated each other and were

admissible as evidence. 2?

In the case before us, as in Murray, the

girls described in some detail (R.T. more

2lyurray v. State, 770 P.2d 1131, 1138

(Alaska Ct. App. 1989).

22clifton v. State, 758 P.2d 1279,

1282 (Alaska Ct. App. 1988).

B=- 30

than B.A.) similar sexual acts and said

that the other was present. The fact that

the children in this case reported each

other's presences, coupled with their

parallel references to certain sexual

practices, lends support to their claims

of abuse. In Clifton, the children

recanted their claims, while in Murray and

the case at bar the children repeated the

same basic stories of abuse. Indeed, weeks

and even months after their allegations

first came to light, both R.T. and B.A.

independently indicated that the defendants

had inserted marbles and birthday candies

into their vaginas. Moreover, these

consistent claims came from 3-year-olds,

as opposed to the 5=- to 13-year-oids

involved in Clifton and Murray. We agree

with the State that the likelihood that 3-

year-old girls would fabricate this same

story simultaneously, or that the girls

Be- 31

would conspire to tell a continuing tale

of sexual abuse about the parents of one

of them, is remote. While Clifton and

Murray required only corroboration of the

statements, their acceptance of two

victims' hearsay as mutually corroborative

strengthens the State's contention in this

case that the statements of R.T. and B.A.

are corroborative of each other's abuse.

Tied to these parallel disclosures is

the State's argument that the girls'

eyewitness accounts of each other's abuse

corroborates their abuse. Each girl simply

said, however, that the other was present;

neither described in detail what was seen

to happen to the other. This is ip

contrast with Murray, where the 9-year-old

said that she saw the defendant licking her

5-year-old friend's vaginal and breast

areas and is also in contrast with Nicole

V., where the two boys described a specific

B - 32

act of abuse in which one participated. 2?

Here, the bare statement that the other

girl also played the games provides little

corroboration of the alleged abuse.

PRECOCIOUS SEXUAL KNOWLEDGE

Related to the girls' disclosures is the

State's claim that their statements

indicate precocious sexual knowledge that

the girls could have learned only as the

result of being abused.

Such knowledge was demonstrated when a

child victim described the act of urolagnia

which she claimed that the defendant made

her perform in State v. Jones, 112 Wn.2d

488, 491, 772 P.2d 496 (1989). There we

found such "precocious knowledge"

corroborative of the child's claim of

abuse. We there said that the victim "has

23see Murray, 770 P.2d at 1133; Nicole

V., 71N.Y.2da at 124.

Be 33

described and demonstrated with

particularity acts of sexual gratification

that even the most imaginative adult might

not conceive in a vacuum of personal

experience."*4 Since the record revealed

no other way in which the victim could have

learned of such acts, her knowledge was

held in Jones to be corroborative evidence

of abuse. *>

The defense argues here that day-care

workers Conradi and Bratvold were

predisposed to find child abuse and tainted

the girls' memories by asking them

questions about what B.A. had said before

the CPS interviews began. It is true that

Conradi did ask a few such questions which

the girls did not answer. The key

allegations by both girls, however, were

*4state v. Jones, 112 Wn.2d 488, 497,

772 P.2d 496 (1989).

25yones, 112 Wn.2da at 497.

eee

B- 34

made separately, spontaneously and

repeatedly. While B.A. answered only

leading questions posed by the CPS

caseworker, she spoke freely to Conradi as

well as to her foster mother. It is our

view that this record does not support

defendants' contention that witnesses

Conradi and Bratvold supplied the children

with the sexual knowledge they revealed.

A 5-year-old child's precocious sexual

knowledge was held corroborative of her

statements of abuse in the Murray case

discussed above. In Murray, the child gave

a detailed description of episodes of

vaginal and anal penetration and fellatio,

and spoke of a "milky substance" coming out

26 The court

of the defendant's penis.

placed "great emphasis" on the child's

ability to describe the sexual contact with

specificity:

26murray, 770 P.2d at 1133-34.

B= 35

Given the child's age (five years at the

time of the assault), we concluded that

the maturity and accuracy of the detail

in her description of the offense

provided intrinsic assurance of the

reliability of her statement.

Murray, 770 P.2d at 1138.

Another child's description of

ejaculation was also held to have

corroborated her hearsay statements in the

first proceeding reported in In re Nicole

V., 71 N.¥.2da 112, 518 N.E.2d 914, 524

N.Y.S.2d 19 (1987). In this proceeding,

an expert testified that the victim's

knowledge of sexual activity far beyond the

norm for 3 1/2-year-olds was a classic

symptom of child abuse. The court observed

that there was no other basis in reality

for Nicole's statement of "white glue" or

"paste" coming from her father's genital

area or the placing of his penis in her

vagina.’

22, 518 N.E 24 914, 524 N.Y¥.S.2d 19 (1987).

B=- 36

In the present case, both victims

described episodes of fellatio and

ejaculation, as well as intercourse and

possibly cunnilingus. While these acts are

not as unusual as those described by the

child victim in Jones, their accurate

description by 3-year-old children

indicates such precocious sexual knowledge

that we consider it corroborative of abuse.

B.A.'s MASTURBATORY BEHAVIOR

Witness Bratvold testified that B.A.

masturbated constantly during her last 4

to 5 months at the day-care center, and one

of Bratvold's employees testifies that she

had to repeatedly tell B.A. to keep her

hands out of her pants. This behavior was

not referred to by the Court of Appeals as

corroborative evidence of abuse.

While the State argues here that such

masturbation by this 3-year-old child

demonstrates precocious sexual knowledge,

Be- 37

the State deliberately did not offer

testimony of its significance at trial.

In making her offer of proof regarding a

doctor's testimony about B.A.'s emotional

reactions to two medical examinations, the

deputy prosecuting attorney advised the

trial court as follow:

Your honor, at this point, the

State, and it hopes to alleviate a lot

of argument, is not asking Dr. Jenny to

testify regarding masturbatory behavior,

whether it's excessive on the part of

a three-year-old or the sexual acting-

out, the State is leaving that alone.

What we are asking her to testify at

this point is the significance, if any,

of this behavior during the exan.

The defense urges this court to consider

expert commentary and cites a pediatric

guide stating the "'lo]ccasional

masturbation is a normal behavior of many

infants and preschoolers. 128 We note that

another expert sees frequent masturbation

as a common reaction to sexual

28Response to Petition for Review, at

14.

B - 38

victimization. 79

Even if such masturbatory behavior were

to be viewed as partially corroborative of

B.A.'s abuse, we fail to see how it might

corroborate R.T.'s abuse. Arguably, it

could perhaps be reasoned that if B.A.

masturbated because she was abused, and if

R.T. was present when B.A. was abused, then

R.T. probably was abused, too. It is most

questionable, however, that this could

reasonably be considered as corroborative

evidence of R.T.'s abuse.

SU. * ET > © . T.

This "greeting," performed more than

once at the day-care center, consisted of

the girls running up to each other,

grabbing their crotches, and giggling. As

29american Bar Ass'n, The

° bora of Se Vv °

Children, Child Sexual Abuse and the Law

103, at 109 (5th ed. 1984), cited in Note,

The Testimony of Child Victims in Sex Abuse

osecutions: ° 2 ons,

98 Harv. L. Rev. 806, 821 n. 99 (1985).

B- 39

stated above, the State intentionally did

not offer expert testimony on the meaning

of this "sexual acting out," presumably to

avoid protracted argument. The Court of

Appeals held that without such expert

testimony, evidence of the "greeting" was

useless as corroboration.

A child's sexualized behavior at her

day-care facility was seen as corroborative

by the oven despite an expert's

uncertainty in State v. Hunt, 48 Wn. App.

840, 741 P.2d 566, review denied, 109 Wn.2d

1014 (1987). Day-care employees testified

in that case that the child took naps with

two blankets bunched under her crotch and

thighs to elevate her bottom, and then

tucked her blankets between her legs and

rocked herself to sleep. Employees also

observed the child lying face down with her

underpants down and a little boy rubbing

B - 40

her buttocks. >?

A psychologist testified —

that such conduct could indicate that the

child had been exposed to adult sexuality

and sexual abuse.?! the trial court found

the expert's testimony "very indefinite"

but in its own judgment concluded that the

child's behavior at the day-care facility

met the corroboration requirement of RCW

9A.44.120.°°

The Court of Appeals also

found the expert's assessment somewhat

equivocal, but proceeded to find ample

corroboration based on the child's behavior

and other evidence in the case.--

3°state v. Hunt, 48 Wn. App. 840, 841,

741 P.2d 566, review denied, 109 Wn.2d 1014

(1987).

3liunt, 48 Wn. App. at 842.

32hunt, 48 Wn. App. at 842-43.

33Hunt, 48 Wn. App. at 850.

B- 41

Two recent Minnesota cases similarly

considered abnormal and sexualized behavior

as corroborative of children's hearsay

statements regarding abuse. In M.N.D. v.

B.M.D., 356 N.W.2d 813, 816 (Minn. Ct. App.

1984), a psychologist testified that a

child's behavior in inserting objects into

her rectum was consistent with sexual

abuse. In D.A.H. v. G.A.H., 371 N.W.2d l,

4 (Minn. Ct. App. 1985), the court found

corroborative the child's fear of men as

well as her behavior in grabbing at men's

genital areas and having nightmares. In

this Minnesota case, there was no mention

of expert interpretation of such behavior.

While experts may not be needed to label

certain behavior as symptomatic of abuse,

it would seem that the less obviously

sexual the behavior, the more experts might

be able to assist in interpreting that

behavior. The "greeting" employed by B.A.

B=- 42

and R.T. would not appear to be strikingly

abnormal, sexualized behavior. Without

expert interpretation, it may be viewed as

sexually oriented, but not as strongly

corroborative of either girl's abuse.

R.T.'s BEHAVIOR WITH AM ANATOMICALLY

CORRECT DOLL

When the CPS caseworker interviewed

R.T., she brought along an anatomically

correct female doll. R.T.'s behavior with

the doll consisted of pointing to the

vagina of the doll when she said "peepee

hole," and again pointing to the vagina of

the doll when the caseworker asked her

where Bill put his "peepee" on her. The

Court of Appeals held that since there was

no expert testimony in this case regarding

behavioral characteristics that evince

sexual abuse, there was nothing in the

record to support the conclusion that

R.T.'s behavior with the doll demonstrated

unusual sexual awareness or constituted

B= 43

corroboration of abuse.

Here again, the question of whether

expert testimony was necessary is raised.

In Hunt, our Court of Appeals observed that

much of the child victim's play with

anatomically correct dolls was a

combination of "'nonassertive verbal and

nonverbal conduct. '"?4 Testimony regarding

such play was thus not hearsay and provided

additional corroboration that the child had

been abused.? 5 In Hunt, the testimony

regarding the child's play was

unaccompanied by expert testimony. The

play consisted cf the child undressing a

male doll and grabbing its’ penis,

undressing a female doll, and placing the

penis of the male doll between the female

34nunt, 48 Wn. App. at 850 (citing In

re Penelope B., 104 Wn.2d 643, 655, 709

P.2d 1185 (1985)).

3Siunt, 48 Wn. App. at 850; Penelope

B., 104 Wn.2d at 654-55.

}

B= 44

doll's legs. 76 Testimony regarding play

with anatomically correct dolls also was

viewed as corroborative without the benefit

of expert testimony in Stete v. Jones, 112

Wn.2d 488, 772 P.2d 496 (1989). In Jones,

the play demonstrated the abusive act of

urolagnia. >?

In two cases from other jurisdictions,

a child victim's play with anatomically

correct dolls also was seen as

corroborative without the aid of expert

testimony. In Murray, the child put the

penis of a male doll between the legs of

a female doll, in its mouth, and in its

rectal area.°® another child demonstrated

with dolls that her father had touched her

36unt, 48 Wn. App. at 842.

State v. Jones, 112 Wn.2d 488, 492,

772 P.2a 496 (1989).

38vurray v. State, 770 P.2d 1131, 1134

(Alaska Ct. App. 1989).

B= 45

genital area in In re Dutchess Cy. Dep't

of Social Servs, ex rel, Kerri K., 135

A.D.2d 631, 633,522 N.¥.S.2d 210 (1987).

It thus appears to us that R.T.'s play

may be considered on its own merits,

without the benefit of expert

interpretation. Her play with the female

doll was not nearly as explicit as the 2-

doll play described in Jones, Hunt, and

Murray, but is equivalent to that described

in Kerri K. As such, it serves as at ieast

some corroboration of R.T.'s abuse.

RT. 's COMPLAINTS OF PAIN

R.T.'s father testified that during the

summer of 1985, and up to the beginning of

September 1985, R.T. occasionally

complained that her bottom was very sore

while doubling over and putting her hands

on her crotch. The Court of APpeals

rejected this evidence as having any

significance on the basis that it was

B= 46

medically unsubstantiated and because the

complaints “occurred months after the abuse

allegedly occurred and ceased 1 month

before the allegations came to light."

We agree that it is clear that R.T.'s

complaints ceased 1 month before the

allegations came to light in early October.

Less clear, however, is the timing of the

alleged abuse. R.T.'s father testified

that the defendants babysat R.T. a couple

of times a month during 1985. The only

time he could recall the defendant William

Swan being there was when R.T. spent the

night with the defendants in January 1985.

The defendant Kathy Swan testified that she

babysat R.T. only five or six time between

January and October 1985. Both defendants

testified that the only time R.T. was with

William Swan in her parents' absence was

on the January night she spent with the

defendants.

B= 47

If the defendants’ testimony is

believed, R.T. could have been sexually

assaulted by William Swan only on that

January night, well before her compla‘nts

of pain began. She had more chances at a

later time to be assaulted by Kathy Swan,

however, according to both her father and

Kathy Swan. The information which was

filed in this case charged the defendants

with raping the giris between January and

October 1985. Thus, the timing of the

alleged abuse does not appear to us to be

as certain as the Court of Appeals seemed

to indicate. Tt is true that the

complaints were not medically

substantiated, but according to at least

one authority, psychosomatic complaints

about pain in the genitals or buttocks may

B- 48

be a symptom of sexual victimization. °??

We thus conclude that R.T.'s complaints did

provide some degree of corroboration of

sexual abuse.

0 ORRO ON

This category of evidence includes

testimony regarding B.A.'s two medical

examinations and the views of an expert

witness regarding those examinations.

Thomas Ritter, a nurse practitioner,

examined B.A. on October 7, 1985. He was

asked to check out her coughing and also

to examine her for signs of sexual abuse.

B.A. became very distraught when Ritter

told her he wanted to do a genital

examination. She clung to her foster

mother and said repeatedly, "Please don't

hurt me." When she finally agreed to be

39the _ Corroboration of __ Sexual

Victimization of Children, American Bar

Ass'n, Child Sexual Abuse and the Law 103,

at 109 (5th ed. 1984).

B-=- 49

examined, she wouldn't let Ritter

completely remove her underpants. She then

assumed a position that Ritter said he had

never seen in his 4 years of practice with

children. She lay on her back, drew her

knees up to her chest, and put her arms

around her knees, thus leaving her

genitalia and buttocks exposed. She was

crying at the time and intermittently

attempted to guard her genitalia by putting

her hand between her legs. Ritter also

found that the inside of the labia

contained blood vessels that were more

dilated than usual, and saw that the area

around the introitus (the opening of the

vagina) was reddened. He estimated the

size of the introitus to be 1 to 1.2

centimeters. During the examination,

Ritter did not check on whether a hymen was

present, but he was able to see into B.A.'s

vagina. After the examination, B.A. asked

B- $0

Ritter two or three times not to take any

pictures of her, and was overall very

distraught.

On October 9, 1985, the Swans' family

physician, Dr. Lawrence Parris, examined

B.A. was very fearful and didn't want her

underpants pulled down. Dr. Parris

observed that the vaginal introitus was

Slightly red, and noticed ae slight

discharge. He did not note whether the

hymen was intact. He found no definite

evidence of physical injury, but

recommended that B.A. be evaluated at a

sexual assault center because of her

fearfulness.

Dr. Carol Jenny, Medical Director of the

Sexual Assault Center at Harborview Medical

Center, was accepted by the court as an

expert on sexual abuse of children, ane

testified about her observations regarding

the Ritter and Parris findings. Dr. Jenny

» = 34

testified that an introitus of 1 to 1.2

centimeters is abnormally large for a 3-

year-old (the normal size is .4 cm). She

noted that Ritter's ability to see the

tissue inside the vagina indicated that he

could see through out the hymenal opening,

even though neither Ritter nor Dr. Parris

specifically recorded the presence or

absence of a hymen. She also observed that

it is unusual to find a vaginal discharge

in a child, and such a discharge might

result from infection caused by sexually

transmitted disease. In assessing her

testimony, the Court of Appeals considered

Dr. Jenny's opinion, which had been ruled

inadmissible by the trial court, *° that

B.A.'s fearfulness during the examination

was probably a sign of sexual abuse.

ee Jones, 112 Wn.2d at 493; ER

B= $2

There was no medical evidence to

document R.T.'s claims of abuse. Q

physician examined her on October 5, 1985

and found no signs of physical trauma.

Medical evidence similar to that

regarding B.A. was considered corroborative

of abuse in State v. Gitchel, 41 Wn. App.

820, 706 P.2dad 1091, review denied, 105

Wn.2d 1003 (1985). Such evidence in

Gitchel included a doctor's finding of

partial vaginal penetration and the child's

inappropriate behavior during the medical

examination. 4+ The New York Supreme Court

also concluded that redness in a child's

genital area partially corroborated her

allegations of abuse in Kerri K., 135

A.D.2d at 633.

We thus observe in this case, as did the

Court of Appeals, that the medical evidence

*Istate v. Gitchel, 41 Wn. App. 820,

828, 706 P.2d 1091, view denied, 105

Wn.2d 1003 (1985).

» *- 33

regarding B.A. is sufficient to permit a

logical and reasonable inference that she

was abused. Whether that evidence

corroborates R.T.'s abuse is another

matter. Strictly speaking, B.A.'s physical

and emotional status during the

examinations does not establish that R.T.

was assaulted. B.A.'s physical and

emotional conditions do lend at least some

measure of support, however, to R.T.'s

statements that B.A. played the games with

her parents and, accordingly, that R.T. was

present and was abused as well.

IN CONCLUSION AS TO THE

CORROBORATION ISSUE

The strongest corroboration of R.T.'s

abuse lies in the parallel disclosures of

abuse that she and B.A. made, and in the

precocious sexual knowledge that the

disclosures reveal. Somewhat corroborative

is her play with the anatomically correct

doll and her complaints of pain. While the

icici |

B= 54

girls' unusual greeting demonstrates some

appreciation of sexuality, we do not

perceive it as strongly corroborative of

the claimed abuse. Even less corroborative

of R.T.'s abuse, standing alone, is B.A.'s

masturbatory conduct and the physical and

emotional evidence of her abuse. Viewed

together, however, the corroborative value

of these pieces of evidence is

strengthened. As we declared in State v.

Jones, 112 Wn.2d 488, 772 P.2d 496 (1989),

"the determination of corroboration under

RCW 9A.44.120 [the child victim hearsay

statute] requires an evaluation of the

particular circumstances that obtain in

each case." 42 It is more than merely

arguable that the contemporaneous

circumstances of this case--the girls'

parallel disclosures, sexual knowledge and

greeting, R.T.'s complaints of pain and

4250nes, 112 Wn. 2d at 498.

3 = 33

play with the doll, B.A.'s masturbation and

the medical and emotional evidence of her

abuse--lead to a reasonable inference that

both girls were sexually abused. As we

also made clear in Jones, the essential

purposes of the child victim hearsay

statute "should not be defeated by a

stubborn insistence on corroboration that

is impossible to obtain."43 While there

is no direct evidence of abuse in this

case, the various items of indirect

evidence stemming from the words and

behavior of these 3-year-old children

together constitute sufficient

corroboration of abuse to render each

child's hearsay statements admissible in

evidence.

ISSUE TWO.

CONCLUSION. The well-established

criteria for granting a new trial on the

435ones, 112 Wn.2da at 496.

B- S6

basis of newly discovered evidence were not

met in this case; the trial court did not

abuse its discretion by denying the

defendants' motion for a new trial on that

basis.

A new trial will not be granted on the

ground of newly discovered evidence unless

the moving party demonstrates that the

evidence (1) will probably change the

result of the trial; (2) was discovered

since the trial; (3) could not have been

discovered before trial by the exercise of

due diligence; (4) is material; and (5) is

not merely cumulative or impeaching. *4 The

absence of any one of these five factors

justifies denial of a new trial.*>

Furthermore, the granting of a new trial

44state v. Williams, 96 Wn.2d 215,

222-23, 634 P.2d 868 (1981); State v.

Franks, 74 Wn.2d 413, 418, 445 P.2da 200

(1968).

‘Swilliams, 96 Wn.2d at 223; see also

Franks, 74 Wn.2d at 418.

Be $7

for newly discovered evidence rests within

the sound discretion of the trial court,

and a denial will not be reversed except

for an abuse of that discretion. *®

After the defendants in this case were

found guilty by a jury, they filed a motion

for a new trial. This motion was based on

three categories of newly discovered

evidence, two of which dealt with

defendants' claim that Lisa Conradi was

"obsessed" with child abuse. One

evidentiary category consisted of

statements made by Conradi, the teacher at

R.T.'s and B.A.'s day-care center, to a

reporter who was also, apparently

unbeknownst to Conradi, an investigator for

the defendants. These statements described

46state v. Wilson, 71 Wn.2d 895, 899,

431, P.2d 221 (1967); State v. Hobbs, 13

Wn. App. 866, 869, 538 P.2d 838, review

denied, 85 Wn.2d 1019 (1975); see also

State v. Barry, 25 Wn. App. 751, 757, 611

P.2d 1262 (1980).

B= 58

Conradi's own sexual abuse as a child and

her previous problems with drugs and

alcohol. The second category consisted of

prior false reports of child abuse

allegedly made by Conradi to CPS. The

third category was defense counsel's

discovery that a boy named Josh attended

the same day-care center as R.T. and B.A.,

the girls having each testified that a

"John" or "Josh" played sexual games with

them and B.A.'s parents.

The trial court denied the motion for

@ new trial, concluding that the presence

of a Josh in the day-care center was

something that was clearly discoverable in

advance of trial. With regard to Conradi,

the court described her statement to the

reporter as "typical puffery." More

importantly, the court found no facts in

the statement that differed from those to

which Conradi testified at trial. The

B= 59

trial court observed further that "there

is no new evidence in the statement with

respect to her interest or concerns which

Defense now characterizes as obsession

(with) child abuse." The witness Conradi's

problems were not properly characterized

as newly discovered evidence. "Conradi was

investigated and investigated before trial.

There is no showing before the Court that

this information was not available." The

trial court also found no evidence to

support the claim that Conradi previously

made false reports of child abuse to CPS.

In its ruling, the trial court reminded

counsel of the requirements for granting

a new trial:

The Court is mindful that the proffered

evidence should be such that results

would probably change. It is not

correct that the statements of Conradi

were the State's case. The State Had

overwhelming evidence, her medical

evidence, behavior evidence, and

statements not only to Conradi but

consistent statements to other=--CPS

workers, (the foster mother), I believe

to Bratvold. I believe due diligence

—

B = 60

would have discovered the evidence which

is characterised [sic) here as hew

evidence. Most of it is merely

impeaching. The requirements,

therefore, for the granting of a new

trial are not met.

We agree with the trial court that the

new evidence regarding Conradi was merely

impeaching. At trial Conradi testified

directly and on cross examination about

classes in child abuse that she took and

about the abuse of her two sons. On Cross,

she was asked about a prior statement that

child abuse was everywhere, and she replied

that "fijt's just about in every state,

every city, every public school." During

closing argument, the defense referred to

the abuse of Conradi's children as well as

her expectations of child abuse allegedly

fostered in part by Cindy Bratvold, the

day-care owner. Defense counsel argued

that Conradi brought her educational and

personal experiences with her as well as

"her idea that sexual abuse is everywhere,

B= 61

and it's as prevalent as behavior problems

with children." Thus, the clait that

Conradi was “obsessed” with child abuse,

to use defendants’ argumentative

phraseology, was clearly before the jury

at trial, and any new evidence in that

regard was at most cuttulative impeaching

evidence,

We also agree with the trial court's

conclusion that the claimed "new evidence"

was discoverable before trial. No

contention has been made that the nates of

the children at the day-care center could

not have been discovered before trial had

anyone sought to check. The defense

contends on appeal that the State knew of

witness Conradi's prior sexual abuse before

trial, but there is no evidence in the

record to support this contention (This

same contention is again raised in

connection with Issue Twelve). No showing

acca a a aie

B - 62

was made before the trial court that the

information about Conradi's_gywn abuse was

not available before trial.

Moreover, the trial court's statement

that this newly discovered evidence would

not have changed the outcome of the trial

is also sustainable. The identity of Josh

as a playmate would have challenged only

one relatively minor detail in the girls’

statements describing their abuse, and

while the evidence regarding Conradi

arguably could have added some weight to

the defense efforts to impeach her

credibility, it would not have affected the

rest of the State's case, which included

several other witnesses and several

repetitions of the same type of statements

by the two children disclosed in Conradi's

testimony.

Since the "newly discovered" evidence

would probably not have changed the outcome

B= 63

of the trial, could have been discovered

before trial, and was both cumulative and

impeaching, the trial court did not abuse

its discretion in denying the motion for

a new trial. In sum, we conclude here, as

this court has previously concluded, that

each now trial inevitably leaves new

avenues for investigating the facts

anew. Hardly a case can be supposed but

what, by diligent search, some

additional evidence will be found that

would, if offered at trial, have been

admissible on one theory or another.

The mere existence of such evidence does

not alone justify the granting of a new

trial.

State v. Williams, 96 Wn.2d 215, 224, 634

P.2d 868 (1981).

ISSUE THREE.

CONCLUSION. The trial court did not

abuse its discretion by finding that R.T.

was incompetent to be a witness in this

case.

Under the child victim hearsay statute,

RCW 9A.44.120, a child's description of

sexual abuse is admissible as evidence if

B- 64

the statements are reliable and if the

child either testifies or is unavailable

as a witness. In the case before us, both

B.A. and R.T. were unavailable because the

trial court found them both incompetent to

testify. The defense challenges only the

conclusion that one of the children, R.T.,

was incompetent.

This court has declared that the test

of the competency of a young child as a

witness consists of the following: (1) an

understanding of the obligation to speak

the truth on the witness stand; (2) the

mental capacity at the time of the

occurrence concerning which he or she is

to testify, to receive an accurate

impression of it; (3) a memory sufficient

to retain an independent recollection of

the occurrence; (4) the capacity to express

in words his or her memory of the

occurrence; and (5) the capacity to

Bs @- 65

understand simple questions about it. nial

The determination of competency rests

primarily with the trial judge who sees

the witness, notices his manner, and

considers his capacity and intelligence.

These are matters that are not reflected

in the written record for appellate

review. Their determination lies within

the sound discretion of the trial judge

and will not be disturbed on appeal in

the absence of proof of a manifest abuse

of discretion.

State v. Allen, 70 Wn.2d 690, 692, 424 P.2d

1021 (1967); see also

State v. G ith, 45 Wn. App. 728, 733,

727 P.2d 247 (1986).

At the competency hearing, defense

counsel asked R.T. no questions and made

no argument regarding her competency

despite being invited to do so. Nor did

the defense object ‘to her being found

incompetent to testify. The defense now

contends, however, that the questioning by

the court and the prosecutor was

47State v. Allen, 70 Wn.2a 690, 692,

424 P.2d 1021 (1967); State v. Tuffree, 35

Wn. App. 243, 248, 666 P.2d 912, review

denied, 100 Wn.2d 1015 (1983).

B - 66

insufficient to make the necessary

determination of whether the child was

competent to testify. Arguably, the

competency issue can be raised for the

first time on appeal on the basis that the

showing of unavailability is

constitutionally mandated when the

declarant witness, whose testimony is to

be used against the defendant, is not

produced. *®

Turning to the competency hearing, R.T.

said that her birthday was in "higher

June." She also said she had been in the

courtroom 40 times (she had never been

there before) and that it was Saturday,

although it was not. When asked if she

recognized anyone, she pointed to defense

counsel and said she had seen him 4 days

48see State v. Griffith, 45 Wn. App.

728, 732 n.l, 727 P.2d 247 (1986) (citing

Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d

255, 88 S. Ct. 1318 (1968)).

B- 67

ago, which he had not. She did not say

that she recognized her father or the

defendants, who also were in the courtroon.

When the court asked R.T. if she knew the

difference between the truth and a lie,

R.T. said "not telling the truth" is

telling a lie. The court then asked R.T.

if it would be the truth or a lie if she

was wearing a pink dress. Though her dress

was pink, R.T. said it would be a lie

because her dress was long. R.T. then said

her dress was "blue, sort of, but it's

pink." The court excused R.T. and found

her incompetent to testify on the basis she

did not understand the obligation to tell

the truth on the witness stand and because

she did not have a sufficient memory to

speak truly about past events. The court

added there were "several problem" with

R.T.'S answers:

I don't know whether it was the question

asked, her understanding or her memory,

but it was quite clear that she was not

B - 68

able to answer the questions put to her.

On that basis, she is not a competent

witness and the court will find her

unavailable for the purposes cf the

' gtatute.

The Court of Appeals reviewed the

competency issue and upheld the trial

court's findings of incompetency:

B.A. refused to answer any questions and

was properly determined to be

incompetent to testify. While R.T. was

responsive to questions, the court found

R.T. incompetent on two grounds: (1)

R.T.'s inability to understand the

obligation to tell the truth, and (2)

her ability to remember accurately and

express past events. The record

demonstrates that there was no abuse of

discretion on the part of the trial

court in finding R.T. incompetent to

testify.

The defense now contends that the trial

court should have asked R.T. questions

about her alleged sexual abuse in

determining her competency to testify.

Since at the time the child was put on the

witness stand she did not know the day of

the week, the color of her dress, or

recognize her father and the defendants,

B - 69

questions about her alleged abuse were

unnecessary to determine her competence to

testify.

ISSUE FOUR.

CONCLUSION. The trial court did not

abuse its discretion in finding both girls'

hearsay statements reliable.

Before a child's hearsay statements are

admissible under the child victim hearsay

statute, RCW 9A.44.120, the court must find

"that the time, content, and circumstances

of the statement provide sufficient indicia

of reliability."*9

This court listed nine factors to be

applied in determining whether a child's

out-of-court statements are reliable in

State v. Ryan, 103 Wn.2d 165, 175-76, 691

P.2d 197 (1984). The first five, derived

from State v. Parris, 98 Wn.2d 140, 146,

49Rcw 9A.44.120(1); State v. John Doe,

105 Wn.2d 889, 896, 719 P.2d 554 (1986).

B - 70

654 P.2d 77 (1982), include "'(1) whether

there is an apparent motive to lie; (2) the

general character cf 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'". °°

The next four factors to be considered,

Gerived from Dutton v. Evans, 400 U.S 74,

88-89, 27 L. Ed. 2d 213, 91 S. Ct. 210

(1970), are (1) the statement contains no

express assertions about past fact; (2)

cross examination could not show the

declarant's lack of knowledge; (3) the

possibility of the declarant's faulty

recollection is remote; and (4) the

circumstances surrounding the statement are

29state v. Ryan, 103 Wn.2d 165, 175-

76, 691 P.2d 197 (1984) (quoting State v.

Parris, 98 Wn.2d 140, 146, 654 P.2a 77

(1982)).

Be 71

such that there is no reason to suppose the

declarant misrepresented defendant's

involvement. °+

In short, reliability does not depend

on whether the child is competent to take

the witness stand, but on whether the

comments and circumstances surrounding the

statement indicate it to be reliable.»

The trial court is necessarily vested with

considerable discretion in evaluating the

indicia of reliability.>?

The Court of Appeals concluded that the

trial court's findings of reliability in

this case did not constitute an abuse of

discretion. As that court observed, the

trial court's rulings regarding the hearsay

s2schn Doe, 105 Wn.2a at 9896;

Griffith, 45 Wn. App. at 733.

53 , 43 Wn. App. 754,

State v. Madison

759, 770 P.2da 662, review denied, 113 Wn.2d

1002 (1989); see also State v. Frey, 43 Wn.

App. 605, 611, 718 P.2d 846 (1986).

B= 72

statements demonstrated careful

consideration of the Ryan factors.

With regard to the five Parris factors

listed in Ryan, the trial court observed

that neither child had a motive to lie.

There was testimony that B.A. had a good

relationship with her parents and that R.

T. enjoyed playing with B. A. at the

defendants' home. With regard to the

Qirls' general character, the testimony

revealed that both children had a

reputation for truthfulness. In two other

child abuse cases, the courts found that

the child victim's explicit descriptions

of abuse made the possibility of

fabrication unlikely. "'A young child is

unlikely to fabricate a graphic account of

sexual activity because such activity is

beyond the realm of [her] experience. '">4

S4see Comment, The Sexually Abused

Infant Hearsay Exception: A Constitutional

Analysis, 8 J. Juv. L. 59, 67 (1984), cited

in _Frey 43 Wn. App. at 610; State v.

B= 73

In this case, both B.A. and R.T. described

in specific terms various sexual acts. The

trial court also found reliability in their

use of age-appropriate language and

responses when describing those acts.

The trial court discussed in some detail

whether the girls' statements were made

spontaneously. The trial court did not

accept the defense argument that Conradi's

expectation of child abuse created B.A.'s

Claims of abuse. The trial court correctly

observed that Conradi's method of

questioning B.A. was open-ended and that

most of B.A.'s statements were spontaneous

and not even responses to questions. In

another case, questioning similar to that

by the witness Conradi led to the charge

that the child's responses were not

Gitchel, 41 Wn. App. 820, 827, 706 P.2a

1091, review denied, 105 Wn.2d 1003 (1985).

B= 74

spontaneous. >> This was in State v.

Madison, 53 Wn. App. 754, 770 P.2a 662,

review denied, 113 Wn.2a 1002 (1989),

wherein a foster mother who suspected that

her ward had been abused read to the child

from a book on human reproduction and asked

if anyone had touched her. The child then

described acts of intercourse and oral sex

to which she had been subjected. The Court

of Appeals agreed that while the setting

was not spontaneous,

the details of the event and the

identity of the defendant were not

suggested and were "spontaneously"

volunteered. Indeed, the foster

mother testified that she was “a

little stunned" by the child's

accusation.

Madison, 53 Wn. App. at 759. Here, too,

the witness Conradi's statement that B.A.

should cover her private parts in no way

suggested the details and identities that

B.A. subsequently volunteered. R.T.'s

55Madison, 53 Wn.App. at 759.

58 = 75

statements to witness Bratvold were wade

spontaneously, as were most of her comments

to the CPS case worker. The court also

accepted the reliability of her answers to

direct questions from the CPS caseworker,

observing,

I don't believe it's the purpose of

the indicia of reliability to

eliminate fron evidence all

Statements of childfen which are

offered ih Fesponse to questions of

children. That would be, it seééits

to me, Gliminating all possibility

of ah interview of a child resulting

in adwissible evidence.

The trial court expanded on this thought

in discussing the feliability of B.A.'s

responses to the caseworker, which were

largely answers t6 leading questions:

With fespect to B.A., it seéiis

to me the issue comes down to whether

OF not leading questions of a

difficult child witness fender the

ultimate statements of the Ghiid

unreliable. Ih this eiFéitstance

where there is other corroboration,

where the saiie statements 6¢ sitilar

statements were made by the child in

response t6 open-ended questions and

in a MUCH More Spontanheciis context,

it seems t6 me it does AGt. GQiiite

Glearly it does Avot.

B - 76

With regard to the remaining Parris

factors indicating reliability, the trial

court observed that more than one person

heard similar stories of abuse from the

girls. The court also found that the time

of the girls' declarations indicated

reliability, since they were volunteered

as soon as the topic was broached and since

the girls made the similar statements on

two consecutive days without discussing the

matter between themselves. With regard to

the relationship of the declarant and the

witness, the court observed that witnesses

Conradi and Bratvold had a relationship of

trust with the girls since they taught at

and operated the girls' day-care center.

Both were present when the CPS caseworker

interviewed the girls, indicating that

people were present who were trusted by the

child in each case. B.A.'s foster mother

and R.T.'s father also were undoubtedly

B- 77

trusted by the children.

Turning to the four Dutton factors cited

in Ryan, the girls' statements contained

express assertions about past fact, but as

we recently noted, child hearsay statements

about sexual abuse will usually contain

statements about past fact. That factor

weighed neither in favor of reliability nor

unreliability in State v. Leavitt, 111 Wn.

2d 66, 75, 758 P.2d 982 (1988). However,

R.T.'s complaints of pain in her bottom

describe a present state. With regard to

the second Dutton factor, it is doubtful

whether cross examination could have shown

either child's lack of knowledge. During

the competency hearing, B.A. was unable to

speak, while R.T. could not respond

appropriately to questions in a courtroom

setting. This is similar to the situation

>Sstate v. Leavitt, 111 Wn. 2d 66, 75,

758 P.2d 982 (1988).

B- 78

before the Court of Appeals when it

assessed the reliability of a 30-year-old's

hearsay statements in State V. Gitchel, 41

Wn. App. 820, 828, 706 P.2d 1091, review

denied, 105 Wn.2d 1003 (1985): "cross

examination would not have shown R's lack

of knowledge under these circumstances, as

R demonstrated that she did not respond to

questions in a courtroom setting." As the

Court of Appeals explained in Gitchel, even

if R were capable of being cross-examined,

‘the number of times she described her abuse

tended to establish that R's description

of what occurred was credible.>’ The same

could be said here. The girls' repetition

of similar and unusual details of abuse

tends to establish that their descriptions

were credible even absent cross

examination.

The trial court did not directly address

*7Gitchel, 41 Wn. App. at 828.

B- 79

the Dutton factor of whether the

possibility of the declarant's, faulty

recollection is remote. In Leavitt, we

observed that because the child's

statements to a social worker were made

soon after the event and were consistent

with statements made to her aunt and

mother, the possibility that she was

speaking from faulty recollection was

38 Here, the specific timing of any

remote.

acts of abuse is unknown, but the girls did

make consistent statements of abuse to five

people.>*”

The final Dutton factor is whether

circumstances suggest that the declarant

misrepresented the defendant's involvement.

Such circumstances are not apparent here.

*Sreavitt, 111 Wn.2d at 75.

>We are not unaware that R.T. at one

point evidently also told the police that

"Jerry" - her father - put marbles in her

botton. ;

B - 80

It is clear that not every factor listed

in Ryan needs to be satisfied before a

court will find a child's hearsay

statements reliable under the child victim

hearsay statute, RCW 9A.44.120. 60

Moreover, it is also clear that a child's

incompetency as a witness is not

determinative of the reliability of his or

61 The Court of

her hearsay statements.

Appeals in this case found no abuse of

discretion on the part of the trial court

in finding the statements reliable. We

uphold this finding because the reliability

factors described in Ryan are substantially

met.

60see Leavitt, 111 Wn.2d at 75; Frey,

43 Wn. App. at 611; Doe, 105 Wn.2d at 896;

Gitchel, 41 Wn. App. at 827-28.

61 Vv , 105 Wn.2d 889,

896, 719 P.2d 554 (1986); State v. Ryan,

103 Wn.2d 165, 174, 691 P.2d 197 (1984);

Frey, 43 Wn. App. at 611 n.9; State v.

Griffith, 45 Wn. App. 728, 733, 727 P.2d

247 (1986).

B- 81

ISSUE FIVE.

CONCLUSION. Though the State's rebuttal

evidence did overlap the evidence in the

State's case in chief to a degree, the

trial court did not abuse its discretion

by permitting the State to call the

rebuttal witnesses that it did.

State v. White, 74 Wn.2d 386, 394-95,

444 P.2d 661 (1968) contains the classic

statement of the scope and purpose of

rebuttal evidence:

Rebuttal evidence is admitted

to enable the plaintiff to answer new

matter presented by the defense.

Genuine rebuttal evidence is not

simply a reiteration of evidence in

chief but consists of evidence

offered in reply to new matters. The

plaintiff, therefore, is not allowed

to withhold substantial evidence

supporting any of the issues which

it has the burden of proving in its

case in chief merely in order to

present this evidence cumulatively

at the end of defendant's case.

Ascertaining whether the rebuttal

evidence is in reply to new matters

established by the defense, however,

is a difficult matter at times.

Frequently true rebuttal evidence

will, in some degree, overlap or

coalesce with the evidence in chief.

B - 82

Therefore, the question of

admissibility of evidence on rebuttal

rests largely on the trial court's

discretion, and error in denying or

allowing it can be predicated only

upon a manifest abuse of that

discretion.

(Citations omitted.) See also 5A K.

Tegland, Wash. Prac., Evidence § 249, at

278-79 (3d ed. 1989).

Defendants assign error to the admission

of hearsay testimony offered by two

rebuttal witnesses. After the defendants

William and Kathleen Swan testified that

they had never put anything but a

suppository into the vaginal or anal

regions of B.A. or R.T., B.A.'s foster

mother testified that B.A. told her that

her parents put marbles and other things

in her bottom. After a detective testified

that R.T. said that Jerry put marbles in

her bottom, her father (named Gerald)

testified that R.T. complained to him later

that "Bill and Kathy are bad" and that they

B- 83

put marbles in her botton.

The defense argues that these hearsay

statements were cumulative evidence that

was improperly withheld from the State's

case in chief so that it could be offered

when it would have the most dramatic and

prejudicial effect. It is true that this

rebuttal evidence did repeat some of the

hearsay statements admitted in the State's

case in chief. However, as the court in

White declared, rebuttal evidence will

frequently overlap with the evidence in

chief. ©

Moreover, we recently held that once a

defendant has "opened the door" by

62state v. White, 74 Wn.2d 386, 395,

444 P.2d 661 (1968); see also State v.

Hightower, 36 Wn. App. 536, 548, 676, P.2d

1016, review denied, 101 Wn.2d 1013 (1984)

(some degree of overlapping with pervious

state expert testimony occurred, "but even

at that the trial court's ruling as to what

was proper rebuttal was a discretionary

ruling, and we conclude there was no

manifest abuse thereof").

B- 84

testifying to his or her own past good

behavior and denying prior acts of

misconduct, the State may legitimately

impeach such assertions. 63 the trial court

in this case ruled that the proposed

rebuttal testimony impeached assertions by

defense witnesses and was admissible. The

foster mother's testimony followed William

Swan's assertion that he had not had sexual

contact with B.A., and R. T.'s father

responded to the detective's recollection

of R.T.'s statement potentially implicating

"Jerry". Neither piece of rebuttal

evidence was substantial, and both replied

to new matters raised by the defense.

Accordingly, we do not consider the two

witnesses' testimony inappropriate under

the rules set forth in White.

Defendants make the related argument

751 P.2ad 1165 (1988); Kremer v. Audette,

35 Wn. App. 643, 648, 668 P.2d 1315 (1983).

B= 85

that the foster mother's rebuttal testimony

was improper because the defense did not

have advance notice of the hearsay

statements she would be offering into

evidence. The child victim hearsay

statute, RCW °A.44.120, provides that

A statement may not be admitted under

this section unless the proponent of

the statement makes known to the

adverse party his intention to offer

the statement and the particulars of

the statement sufficiently in advance

of the proceedings to provide the

adverse party with a fair opportunity

to prepare to meet the statement.

This requirement, in the context of

rebuttal testimony, must be considered with

another holding in White that is not error

to admit rebuttal testimony even though the

witness' name has not been endorsed upon

the information or furnished to the

defendant in advance of trial because

genuine rebuttal witnesses need not be so

listed. ©

64white, 74 Wn.2d at 395.

B= 86

The State responds that it did disclose

its intention to have B.A.'s foster mother

testify at the close of the defendant's

case. Moreover, she did not testify until

a full day after the defense was told about

the hearsay to which she would testify.

The State argues that the content of the

hearsay was no surprise and that the

defense had the "fair opportunity to

prepare to meet the statement" required by

the statute, RCW 9A.44.120. Since the

defense at no time requested a continuance

or a chance to reopen its case, it cannot

now argue that ample preparation time was

lacking. In any event, the trial court

considered this objection and rejected it,

and did not commit a manifest abuse of

discretion in so doing.

ISSUE SIX.

CONCLUSION. The trial court did not

abuse its discretion in declining to allow

B =- 87

a psychologist to testify as an expert

witness.

ER 702, which governs the admissibility

of expert testimony, provides:

If scientific, technical, or

other specialized knowledge will

assist the trier of fact to

understand the evidence or to

determine a fact in issue, a witness

qualified as an expert by knowledge,

skill, experience, training, or

education, may testify thereto in the

form of an opinion or otherwise.

This court has stated that the

admissibility of expert testimony under ER

702 depends upon whether "(1) the witness

qualifies as an expert, (2) the opinion is

based upon an explanatory theory generally

accepted in the scientific community, and

(3) the expert testimony would be helpful

whether or not to admit expert opinion

S5state v. Allery, 101 Wn.2d 591, 596,

682 P.2d 312 (1984); gee also State v.

, 90 Wn.2d 808, 812-14, 585 P.2d

1185 (1978).

B= 88

evidence is within the discretion of the

trial court and will not be disturbed

absent a showing of an abuse of that

discretion. °°

At the trial of this case, the defense

sought to qualify Dr. Ralph Underwager, a

licensed psychologist, as an expert

witness. He would have testified about how

a child's memory capacity is affected by

age and about the factors that create

suggestion when an adult interviews a

child, such as the adult's expectations.

The trial court ruled that the

psychologist's proposed testimony was not

proper because there was no indication that

the results of the doctor's work had been

accepted in the scientific community and

because the testimony went directly to the

°Sstate v. Mak, 105 Wn.2d 692, 715,

718 P.2a 407, cert. denied, 479 U.S. 995

(1986); Keegan v. Grant Cy. P.U.D. 2, 34

Wn. App. 274, 282, 661 P.2d 146 (1983).

—_—|_|

B= 89

Gredibility of the vidtitis and invaded the

provinee of the jury. The trial court alse

wuled that the idea that interviews of

Children may be suggestive was within the

general experience of the average person.

The trial court reiterated its position in

Genying the motion for a new trial:

[T]he Court remains convineed [the

psychologist] did Act have the

an a te testify as a

octer, and that the 6ffered

testimony, in any event, was within

the common experience of the jury.

» « « the dangers of interviews of

Children . . .«. was [sie] within

common experience Gf all of us. That

was fully explored 6h 4éF6ss=

examination wi 6ther witnesses.

(The coe {W]as a researcher

who id not have bena fide

qualifications in the view of the

Court. Hé Was Aot invelved if an

independent research undertaking, but

rather was approached t6 thdertake

research by an interested party with

an interest (in] the sutcome of the

research. It is the Court's memory

(the psychologist's] research was

undertaken at the behest of the

insurances industry relative te civil

Glaims for child sexiial abuse. The

fact that threée=-and=-a-hal f-year=old

children are suggestible, think,

is within the Gommon experience of

any jurer. '

B - 90

The Court of Appeals devoted attention

to this issue because it felt that the

offer of such evidence was likely to occur

at the retrial it ordered. It concluded

that the trial court did not abuse its

discretion in excluding the psychologist's

testimony. "We have reviewed the record

and find that it does not sufficiently

establish the reliability of the expert's

methodology, factors, or the principles

which he proposed to use in his testimony."

We agree. It was not shown at trial

that the psychologist's position on child

interviewing was accepted by the scientific

community. Moreover, the argument that

child interviews could be suggestive was

amply aired during the cross examination

of the State's witnesses and, as the trial

court declared, was well within the

understanding of the jury. The

B- 91

psychologist's proposed testimony did not

satisfy the test for admissibility set

forth in ER 702 and was properly refused.

ISSUE SEVEN.

CONCLUSION. The trial court's statement

here at issue revealed no personal

attitudes toward the case or the evidence

and did not constitute a prohibited comment

on the evidence.

Article 4, section 16 of the Washington

State Constitution prohibits a trial court

from commenting on the evidence. The

purpose of this provision is to prevent a

jury from being influenced by knowledge

conveyed to it by the trial judge as to the

trial judge's opinion of the evidence

submitted.°” An impermissible comment is

one which conveys to the jury a judge's

personal attitudes toward the merits of the

67state v. Jacobsen, 78 Wn.2d 491,

495, 477 P.2ad 1 (1970).

B- 92

case or allows the jury to infer from what

the judge said or did not say that the

judge personally believed the testimony in

question. °8

The defendants claim that the trial

court impermissible commented oon the

evidence in accepting Dr. Carol Jenny as

an expert witness. The trial court's words

are as follows, with the alleged comment

emphasized:

Well, I think the evidence

establishes her qualifications in the

general subject of sexual abuse of

children. The court will accept her

as _an expert on that subject.

The Court of Appeals examined this issue

and concluded that the trial court's

statement was not a comment on the

evidence. It held that "(t]he court's

ruling merely indicates that the threshold

Indus., 111 Wn.2d 569, 571, 761 P.2da 618

(1988); State v. Ciskie, 110 Wn.2d 263,

283, 751, P.2d 1165 (1988).

B- 93

query provided in ER 702 was satisfied.

The court offered no opinion as to the

credibility, sufficiency, or weight of Dr.

Jenny's testimony."

We agree. A court must be allowed to

rule as to the qualifications of expert

witnesses and inform counsel of its

decision. The trial court did not that in

its ruling regarding Dr. Jenny and did not

offer a personal opinion about the doctor's

testimony. There was no comment on the

evidence in accepting the doctor as an

expert witness.

ISSUE EIGHT.

CONCLUSION. There was no error in the

trial court's evidentiary ruling in

question since the court did not strike the

defendant's explanation from the record.

The ruling here challenged occurred when

the defendant William Swan was testifying

on direct:

Q. Was there a situation where your

B- 94

daughter made reference to the

bathroom and described or used a

word to describe the bathroom?

A. Yes.

Q. Okay. I'll ask you to recall for

the jury, recount to the jury what

that situation was.

A. Okay. I was in the process of

using the bathroom in question,

which happens to be across the hall

from her room, with the door

locked, as is my habit. She came

up, turned the door knob and, of

course, the door didn't open, and

then she tried it again, and so I

told her, "Just a minute, [B.A],"

and then she started banging on

the door a bit. I said, "Just a

minute, {B.A}, I'll be out in just

a minute," and then she started

crying and carrying on and saying

"Daddy, Daddy is in my potty".

Q. Was that her phrase for. the

bathroom, "My potty?"

A. Yes.

[Prosecutor]: I would object as -

- I am sorry, I do object to that

question and answer on the basis

of lack of foundation at this

point, ask that it be stricken.

THE COURT: Sustained.

Defense counsel did not pursue this line

of questioning but went on to ask the

defendant about medication he gave to his

daughter. The defendants contend on

appeal, however, that the objection as to

B- 95

lack of foundation was insufficient and

improper.

The admission and exclusion of relevant

evidence is within the sound discretion of

the trial court. This is yet another place

in the trial of a case where the trial

court's decision will be reversed absent

a manifest abuse of discretion. °?

While the lack of foundation objection

may be considered a general objection,

general objections are not prohibited. 7°

According to one Washington practice text:

The court may sustain or overrule a

general objection in light of its own

understanding of the merits of the

objection or the evidence offered.

If the trial court sustzins a general

objection, the ruling will] be

affirmed if there was any valid basis

for excluding the evidence.

6°maehren v. Seattle, 92 Wn.2d 480,

488, 599 P.2d 1255 (1979), cert. denied,

452 U.S. 938 (1981); Chhuth v. George, 43

Wn. App. 640, 648, 719 P.2d 562, review

denied, 106 Wn.2d 1007 (1986).

705 K. Tegland, Wash. Prac., nce

§ 10, at 32 (3d ed. 1989).

B- 96

(Footnotes omitted.) 5 K. Tegland, Wash.

Prac., Evidence §10, at 32, 35 (3d ed.

1989).

A valid basis for sustaining the

objection to the "potty" question was that

it was a leading question improperly used

71 Thus, we could

on direct examination.

affirm the court's ruling on that ground.

More to the point, however, is the wording

used to sustain the objection. The trial

court merely ruled "sustained". It did not

strike the testimony, as the deputy

prosecuting attorney requested, nor did it

instruct the jury to disregard it. The

defendant's testimony thus remained in the

record for the jury's consideration and

defendants' position on this issue is

without merit.

ISSUE NINE.

71sa K. Tegland, Wash. Prac., Evidence

§ 250, at 281 (3d ed. 1989); ER 61l(c).

Be- 97

CONCLUSION. No reversible error was

committed in the deputy prosecuting

attorney's closing argument since the jury

was instructed to disregard the only

statement objected to and since none of the

other statements now claimed to have been

erroneous was so flagrant, ill-intentioned,

or prejudicial as to require reversal.

Defendants argue that each of four

statements made by the deputy prosecuting

attorney during closing argument

constitutes reversible error. Two of the

statements (emphasized immediately below)

descried some of the testimony given by Dr.

Parris, the Swans' family physician, and

were part of the State's rebuttal argument:

(By the deputy prosecuting

attorney): t

: : - If you

w Vv

What did the Swans do? They asked

C.P.S. to take the child to Dr.

Parris.

(Defense counsel): Objection,

Your Honor. The last two statements

are not in evidence and are not

B= 96

reflecting the truth. I would

request they be stricken.

(Deputy prosecuting attorney):

I'm speaking with reference to [the

CPS caseworker].

(Defense counsel): (The

caseworker] is not a party to the

conversation.

THE COURT: Sustained. I don't

recall that. The jury will disregard

that remark.

(Deputy prosecuting attorney):

's of a equest

that this child be rushed to

Harborview so they could prove their

e. was

t one w on't

Ow fe) ¢ - *

(Italics ours.)

The third allegedly prejudicial argument

(emphasized below), also made during the

State's rebuttal argument, described the

medical evidence given by Thomas Ritter,

the nurse practitioner who examined B.A.:

The other thing is all this talk

about hymens. I thought it was quite

Clear, Dr. Jenny, Dr. Ciliberti, all

the people say the presence or the

nonpresence of a hymen doesn't mean

a thing. Mr. Ritter said in his

there was not there -- one there.

Ww. . Dr.

Parris said he did not note one in

his report, but he sort of assumes

» @- 99

he saw one. So whether it was there

or not or present is sort of up in

the air.

(Italics ours.)

The final challenged remark (emphasized

below) was part of the deputy prosecuting

attorney's descriptions of B.A. and R.T.:

Between the two of them -- We

know that [B.A.] had no sex education

from her parents. That was pretty

Clear. And he also know that neither

chi ° wi - That

wasn't something that came out, that

there were problems with these

children lying or that these were

children you had to watch carefully.

These _ were little girls who could

talk, you could trust, they told the

truth.

(Italics ours.)

At trial, the defense objected to only

the first of the foregoing statements, the

one regarding Dr. Parris.

We have consistently held that unless

prosecutorial conduct is flagrant and ill-

intentioned, and that the prejudice

resulting therefrom so marked and enduring

that corrective instructions or admonitions

B = 100

could not neutralize its effect, any

objection to such conduct is waived by

failure to make an adequate timely

objection and request a curative

instruction. 7? Thus, in order for an

appellate court to consider an alleged

error in the State's closing argument, the

defendant must ordinarily move for a

mistrial or request a curative

instruction.’? The absence of a motion for

mistrial at the time of the argument

strongly suggests to a court that the

argument or event in question did not

appear critically prejudicial to an

72State v. Charlton, 90 Wn.2d 657,

661, 585 P.2d 142 (1978); State v. Brown,

29 Wn.App. 770, 774, 630 P.2d 1378, review

denied, 96 Wn. 24 1013 (1981).

7313 R. Ferguson, Wash. Prac.,

Criminal Practice and Procedure § 4006, at

404 (1984).

B - 101

appellant in the context of the trial. ’4

Moreover, "(c]ounsel may not remain silent,

speculating upon a favorable verdict, and

then, when it is adverse, use the claimed

misconduct as a life preserver on a motion

for a new trial or an appeal."75

Defense counsel did object to the

statement regarding Dr. Parris. The

objection was sustained, and the jury was

instructed to disregard the prosecutor's

remark. While this statement was not

supported by the evidence, it was not

prejudicial error that denied the

defendants a fair trial since the jury is

presumed to follow the court's instructions

74state v. Miller, 66 Wn.2d4 535, 537,

403 P.2d 884 (1965); State v. Walton, 5 Wn.

App. 150, 152, 486 P.2d 1118 (1971).

75s5ones v. Hogan, 56 Wn.2d 23, 27, 351

P.2d 153 (1960); State v. Atkinson, 19

Wn.App. 107, 111, 575 P.2da 240, review

denied, 90 Wn.2d 1013 (1978).

B= 102

to disregard it. ’6 ao

Defense counsel voiced no objection to

the prosecutor's second reference to Dr.

Parris' testimony, i.@., “There's no

evidence of any request that this child be

rushed to Harborview so they could prove

their innocence. Instead, the child was

taken to someone who said, ‘I don't know

about this. I'm not an expert.'"

It is true that B.A. never was taken to

the Sexual Assault Center at Harborview

Medical Center. At trial, Dr. Parris

testified that before he examined B.A., he

recommended to the defendants that she be

examined at a sexual assault center to see

if the alleged abuse had occurred. CPS

originally took B.A. to nurse practitioner

Thomas Ritter for a physical examination.

76state v. Knoll, 87 Wn.2d 829, 835,

558 P.2d 173 (1976); State vy. Fondren, 41

Wn. App. 17, 25, 701 P.2d 810, review

denied, 104 Wn.2d 1015 (1965).

B = 103

No one took the child to Harborview.

The sontext of the deputy prosecuting

attorney's arguments here objected to is

as follows. In the defendants' closing

argument, it was defense counsel who argued

that the failure to take B.A. to Harborview

was the fault of CPS, and that this failure

meant that the prosecution lacked the

medical evidence needed to prove its case.

The deputy prosecuting attorney's

subsequent effort, in rebuttal argument,

to blame the defendants for that omission

was both a response to the defense argument

and an inference that could be drawn from

the evidence presented at trial. While Dr.

Parris did not testify in the exact words

the deputy prosecuting attorney quoted, his

testimony céuld reasonably lead to the

inference that the defendants never took

B.A. to someone who was an expert on sexual

abuse.

B - 104

Counsel must be accorded a reasonable

latitude in argument to draw and express

inferences and deductions from the

7 Moreover, remarks of the

evidence.

deputy prosecuting attorney that would

otherwise be improper are not grounds for

reversal where they are in reply to defense

counsel's statements unless the remarks are

so prejudicial that an instruction would

not cure then. 7® While not absolutely

accurate, the statement attributed to Dr.

Parris in argument was made in response to

defense counsel's argument and under the

circumstances was not so flagrant and ill-

intentioned as to result in prejudice that

could not have been cured by a timely

77State v. Johnson, 40 Wn. App. 371,

381, 699 P.2d 221 (1985); State v. Hunter,

35 Wn. App. 708, 715, 669 P.2d 489, review

denied, 100 Wn. 24 1030 (1983).

78 Vv , 100 Wn.2a 757,

761, 675 P.2d 1213 (1984) (citing State v.

La Porte, 58 Wn.2d 816, 822, 365 P.2d 24

(1961)).

B= 105

objection and a curative instruction.

The statement regarding Thomas Ritter's

medical findings also is technically

incorrect, since Ritter testified that he

did not note whether B.A. had a hymen.

However, as the deputy prosecuting

attorney's argument shows, the evidence

about the presence or absence of a hymen

was fairly murky. Ritter found an enlarged

vaginal opening but did not note whether

the hymen was missing. Dr. Parris did not

note the presence or absence of the hymen,

but apparently saw the hymenal ring. Dr.

Jenny noted the lack of a specific finding

regarding the hymen but concluded that

Ritter's ability to see inside the vagina

meant that he could see the hymenal

opening.

In closing argument, the defense

attempted to discredit Ritter's findings,

stating that "he obviously did not do a

B - 106

close examination." The defense also

referred to Dr. Parris' observation of a

hymenal ring. Then on rebuttal, the State

stated somewhat less than artfully that

Ritter thought his failure to note a hymen

meant that one was absent, and that Dr.

Parris assumed he saw one. Neither

statement is completely accurate. Closer

to the mark is the State's last reference

to the subject: "So whether it was there

or not or present is sort of up in the

air."

Here again, we do not perceive the error

made in argument about the Ritter statement

to be prejudicial. The deputy prosecuting

attorney's references to the medical

evidence were equivocal, as was the medical

testimony itself. An objection and a

request for a curative instruction could

have remedied any misstatement or potential

for prejudice. The failure to object to

B- 107

this reference waived the objection.

The final remark the defendants object

to is the State's reference to the girls'

truthfulness. It is, of course, improper

for a prosecutor to express a personal

opinion about the credibility of a witness

during closing argument. 7? However,

prejudicial error does not occur until it

is clear that the prosecutor is not arguing

an inference from the evidence, but is

80 The

expressing a personal opinion.

credibility of two State witnesses was

"strenuously attacked" by defense counsel

in State v. Papadopoulos, 34 Wn. App. 397,

399, 662 P.2d 59, review denied, 100 Wn.2d

1003 (1983). In closing argument, the

79State v. Reed, 102 Wn.2d 140, 145,

684 P.2d 699 (1984); v. Cae

Wn. App. 611, 624, 722 P.2d 1379, review

denied, 107 Wn.2d 1009 (1986).

S0pobinson, 44 Wn. App. at 624; State

v. Papadopoulos, 34 Wn. App. 397, 400, 662

P.2d 59, review denied, 100 Wn. 2d 1003

(1983).

B - 108

prosecutor stated that

"(the witnesses] have testified

honestly before you", and, . . .that

"(tjhe gist of what they have said

has been the truth."

Papadopoulos, 34 Wn. App. at 399.

The Court of Appeals did not see those

statements as an expression of personal

belief on the prosecutor's part, holding

that the argument viewed in context

revealed that the prosecutor merely called

the jury's attention to the facts and

circumstances in evidence tending to

support the witnesses' credibility. ®+

In this case, evidence was introduced

showing that both B.A. and R.T. were well-

behaved, normal children who did not have

a problem with lying. There was no

objection to this testimony. Nor was there

any objection when the deputy prosecuting

attorney recalled this testimony in closing

Slpapadopoulos, 34 Wn. App. at 400.

B - 109

argument and then went on to describe the

facts and circumstances that supported the

girls' credibility. Thus, it is clear to

us that the deputy prosecuting attorney was

simply drawing a reasonable inference from

the evidence -- indeed, simply repeating

the evidence -- and was properly recounting

the testimony concerning the girls’

truthfulness. Even were we to view the

arguments as error, however, it was not of

such an egregious sort that a curative

instruction could not have removed any

resulting prejudice. The deputy

prosecuting attorney's arguments here

complained of were apparently not viewed

as prejudicial at trial, nor do they so

appear on appeal. The State did not commit

reversible error during closing argument.

ISSUE TEN.

CONCLUSION. The abuse of discretion

standard is appropriate standard of review

B - 110

under RCW 9A.44.120.

The determination of whether statements

are admissible under the statutory child

abuse hearsay exception is within the sound

discretion of the trial court.°* ‘This is

the standard of review generally applied

to rulings on the admissibility of

evidence. °°

Defendants contend that this standard

of review is erroneous because any ruling

on the admissibility of child hearsay

involves fundamental constitutional issues.

Where constitutional rights are involved,

an appellate court will independently

evaluate the evidence to see if such rights

62 Vv s , 48 Wn. App.

572, 579, 740 P.2d 872 (1987); State v.

Frey, 43 Wn. App. 605, 611, 718 P.2d 846

(1986).

83 Vv , 112 Wn.2d 488, 496

n.7, 772 P.2d 496 (1989); Caruso v. Local

Union 690, Int'l Bhd. of Teamsters, 107

Wn.2d 524, 535, 730 P.2d 1299, cert.

denied, 484 U.s. 815 (1987).

os = 22424

have been violated. °4

It is clear, however, that even when

such an independent review is undertaken,

the trial court's findings are entitled to

great weight. ®° This is because the trial

court is "in a prime position to observe

and evaluate the demeanor of witnesses. "®®

As the court of Appeals has explained, the

appellate court

will independently examine the record

to determine if fundamental

constitutional rights have been

denied. In considering credibility,

however, deference will be made to

the trial court, which had the

opportunity to evaluate the

witnesses' demeanor below. We will

review the trial court's inferences

and conclusions, but not its findings

as to credibility or the weight to

be given evidence.

84see state v. Daugherty, 94 Wn.2d

263, 269 616 P.2d 649 (1980), cert. denied,

450 U.S. 958 (1981); State v. Agee, 89

Wn.2d 416, 419, 573 P.2d 355 (1977).

S5paugherty, 94 Wn.2d at 269; Adee,

89 Wn.2d at 419.

Sstate v. Miller, 22 Wn. App. 960,

963, 593 P.2a 177, review denied, 92 Wn.2d

1031 (1979).

SB - iid

(Citations omitted.) In re Bugai, 35 Wn.

App. 761, 765, 669 P.2d 903 (1983).

The admissibility of child hearsay

statements does touch upon constitutional

rights such as the right of confrontation

guaranteed by the Sixth Amendment.

However, the admissibility of child hearsay

depends upon a series of decisions made

only after evaluating the competency and

credibility of witnesses. The trial court

must conduct a hearing during which it

determines (a) that the time, content, and

circumstances of the statement provide

sufficient indicia of reliability and (b)

that the child either may testify or is

incompetent as a witness. If the child is

incompetent, the court must determine

whether there is corroborative evidence of

the act before admitting the hearsay

So =~ 223

statements. °’

Appellate courts will

carefully review the evidence and testimony

presented in evaluating the exclusion and

admission of child hearsay statements even

under the abuse of discretion standard. °°

Appellate courts also recognize, however,

that the trial court is in the best

position to make the decisions as to

competency and credibility. The abuse of

discretion standard, as applied in child

hearsay cases, does not ignore the

constitutional issues at stake, but

acknowledges the obvious, that the trial

court is the only court that sees the

children and listens to them and to the

other witnesses in such a case.

ISSUE ELEVEN.

S7RCW 9A.44.120.

88see e.g., State v. Jones, 112 Wn.2d

488, 722 P.2a 496 (199);

State v.

Justiniano, 48 Wn. App. 572, 740 P.2d 872

(1987).

B- 114

CONCLUSION. We adhere to our previous

decisions upholding the constitutionality

of the child victim hearsay statute, RCW

9A.44.120.

This court decided this issue in State

v. Ryan, 103 Wn.2d 165, 691 P.2da 197

(1984). Defendants recognize this, but

contend that the court in Ryan improperly

relied on factually distinguishable cases

in holding that RCW 9A.44.120 is

constitutional. The cases relied on in

Ryan that the defendant questions are Ohio

v. Roberts, 448 U.S. 56, 65 L. Ed. 24 597,

100 S. Ct. 2531 (1980) and Dutton v. Evans,

400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct.

210 (1970). Both cases involved ths

admission of hearsay testimony, which is

Clearly relevant to any discussion of RCW

9A.44.120, and both are recognized as key

cases on the admissibility of out-of-court

B =- 115

statements. °9

Defendants urge this court to rely

instead on Coy v. Iowa, ___—iU«.S. __s, 101

L. Ed. 2d 857, 108 S. Ct. 2798 (1988) in

assessing the admissibility of child

hearsay. At issue in Coy was the

constitutionality of a screen placed

between the defendant and two child victims

while they testified in court. Coy does

not contain the factual parallels to this

case that are allegedly absent from Roberts

and Dutton. Nor does the legal analysis

in Coy seem directly relevant here. The

United States Supreme Court in Cov held

that the screen violated the

confrontational clause and was

unconstitutional. ?° The confrontational

Clause guarantees the defendant a face-to-

89 see Coy v. Iowa, U.S. , 101

L.Ed. 24 857, 108 3. Ct. 2798, 2800 (1988).

9coy, 108 S. Ct. at 2803.

B = 116

face meeting with witnesses appearing

before the trier of fact.24 ‘The Court in

Coy expressly left open the question of

whether any exceptions to the right to

face=face confrontation exist.?? The Court

cited Roberts after stating that

“(w)hatever they may be, they would surely

be allowed only when necessary to further

an important public policy. "99

Thus, the United States Supreme Court

has not held that the admission of child

hearsay statements violates any provision

of the federal constitution. We adhere to

our holding in Ryan that RCW 9A.44.120 is

constitutional.

ISSUE TWELVE.

CONCLUSION. The State did not knowingly

withhold exculpatory evidence from the

9leoy, 108 S. Ct. at 2803.

92coy, 108 S. Ct. at 2803.

93coy, 108 S. Ct. at 2803.

B = 117

defense is viclation of due process.

This contention was raised éarlier in

connection with Issue Two. The defendants

argue that the prosecution suppressed

evidence regarding Lisa Conradi's sexual

abuse and thus violated their right to due

process. Defendants maintain that

Conradi's predisposition to discover sexual

abuse should have been a central issue at

trial.

The prosecutor has a constitutional duty

to disclose exculpatory matter to the

defense. 24

"This duty is breached where

the omitted evidence, ¢valuated in the

centext of the entire record, creates a

reasonable doubt as to defendant's guilt

that did not otherwise exist. “9°

‘ , te. 1987), By ~ Ay. «24 515, 522,

anuett ‘ Fan State xs

103 24 alge 62

(1984), NF acs denied, 493 U. 6. 1094 (1985).

ont 108 Wn.2d at 522; see also

, 103 Wh.2a@ at 17.

B - 118

The evidence allegedly showing that the

State possessed information about Conradi's

abuse is the following statement made by

the State when Conradi was being deposed:

When asked if she had ever been

abused or about the individual who

had abused her two sons, the

prosecutor advised Conradi not to

answer unless relevancy could be

shown.

Supplemental Brief of Petitioner, at 10.

Apart from the fact that no attempt to

require the witness to answer this question

or establish relevancy was ever made, it

does not follow that the State suppressed

information about Conradi's abuse. Even

if the State had suppressed such

information, however, we fail to see what

it was exculpatory evidence that could have

created a reasonable doubt as to the

defendants' guilt that did not otherwise

exist. Witness Conradi's credibility was

strenuously challenged at trial, and her

alleged predisposition to discover sexual

B- 119

abuse was also argued. Moreover, Conradi

was not the only witness to reveal the

girls' hearsay statements. Other witnesses

repeated equally damaging hearsay. Nothing

suggests that further evidence of witness

Conradi's alleged predisposition to

discover abuse would have exculpated the

defendants. We perceive no error in this

regard and no due process violation.

The Court of Appeals is reversed and the

convictions of the two defendants in the

trial court are affirmed.

ANDERSEN, J.

WE CONCUR:

Zs/ Callow, C.J. Zs/_ Dolliver, J.

Zs/ Utter, J. Zs/_ Durham, J.

—,

}

IN THE SUPREME COURT

OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 55393-9

ORDER CLARIFYING

ATTORNEYS '

STATUS

)

Petitioner, )

)

) IN OPINION AND

)

Vv.

DENYING MOTIONS

FOR MODIFICATION

AND

RECONSIDERATION

WILLIAM ORR SWAN, and

KATHLEEN ROWLAND SWAN,

and each of then,

Respondents.

IT IS HEREBY ORDERED that the opinion

in the above case, as the same-appears at

114 Wn.2d 613, is clarified at the request

of Respondents' counsel by adding to the

end of footnote 1 on Page 618 of the

opinion the following sentence:

"Defendants' attorney at the trial court

were not the same attorneys as represented

them at the appellate court level."

IT IS FURTHER ORDERED that, aside from

the foregoing, the motions for modification

and reconsideration filed herein are

denied.

DATED this 22nd day of June, 1990.

CHIEF JUSTICE

APPROVED:

fs/ Utter, J. Zs/ Andersen, J._

/s/ Brachtenbach, J. /s/ Durham, J.

s v J. /s/_ Smith, J.

/[s/ Dore, A/C/J

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