# Petition for Writ of Certiorari — Swan v. Washington

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1046

## Text

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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

i
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

ii
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?

iv

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

Vv

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

2
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.

3
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.

4
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;
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

5

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.

6
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
8
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."

9

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.

10

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

11
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 ’

12

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 ——— — —— -

13

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

14
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."

15

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
16

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

17

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

as
18

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

19
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

20
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

21

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

22

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-

23
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.

/

24
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.

25
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,

26
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

27
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

28
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.

29

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

30
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.

3i

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

32
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

ee

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;

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.

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).

9

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.

ae

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

3

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
0

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

ae

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.
37
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

ee

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).

ee
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

a
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

56

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2923%3A1. Public record. Not legal advice.