State Of Washington v. Tanner J. ( 2015 )


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  •  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    STATE OF WASHINGTON
    No. 72523-8-I
    Respondent,
    DIVISION ONE
    UNPUBLISHED OPINION
    TANNER J.,1"
    DOB: 10/17/99,
    Appellant.                    FILED: November 16, 2015
    Trickey, J. — Tanner J. appeals his juvenile offender adjudication of child
    molestation in the first degree. He claims that the court abused its discretion and
    violated his right to due process by admitting unreliable hearsay evidence.
    Additionally, Tanner claims that, even with the hearsay evidence, the State did not
    prove his guilt beyond a reasonable doubt. We hold that it was not an abuse of
    discretion to admit the hearsay statements, that substantial evidence supports the
    findings of fact, and that the findings of fact support the conclusions of law. We
    affirm the trial court's adjudication, but remand to address a clerical error in the
    conclusions of law.
    FACTS
    For approximately four months in the beginning of 2013, Elizabeth
    Dellinger-Frye lived with Van J. in Concrete, WA. Living with them were Van's son
    Tanner J. and Dellinger-Frye's son M.A., the victim in this case. Tanner was 13
    years old, and M.A. turned 6, while they lived together.
    tThe trial court's case caption has been modified to reflect the "State ofWashington" as
    the responding party, and the appellant's last name has been replaced with the initial "J."
    No. 72523-8-1 / 2
    In October 2013, M.A. and his family moved in with Randi Cate and her
    family in Concrete, Washington. M.A. shared a bedroom with two of Cate's sons,
    Andrew and Logan. Andrew is about M.A.'s age, and Logan is a little younger.
    One day in November 2013, Logan told Cate that Andrew and M.A. were
    "pulling down their pants and kissing each others' [sic] butts."1 The boys had
    played similarly inappropriate games for a couple of weeks before this incident.
    This time, Cate called Dellinger-Frye, who was not at home.          Dellinger-Frye
    returned, and the two mothers talked to M.A. and Andrew about this kind of playing.
    The women asked the boys where they had learned the game. Initially, M.A. said
    that Andrew had taught him that behavior. When Andrew said he had learned it
    from M.A., M.A. told them that Tanner had done it to him. M.A. said that Tanner
    would have him "pull down his pants and sit on top of him with his pants down."2
    At that point, Cate and Dellinger-Frye stopped questioning M.A. and called the
    police.
    As part of the police investigation, Officer Deborah Ridgeway interviewed
    M.A. Officer Ridgeway is a child interview specialist. She elicited more details
    from M.A. about his interactions with Tanner. M.A. described sitting unclothed with
    Tanner's penis in his butt, or with his butt on Tanner's penis, and Tanner's hands
    on M.A.'s penis. M.A. also said that Tanner told him to "suck on" Tanner's penis.
    The court determined M.A.'s statements to Officer Ridgeway, Cate, and
    Dellinger-Frye were reliable as child's hearsay per RCW 9A.44.120. The court
    found that M.A. was competent to testify.
    1 Report of Proceedings (RP) (Sep. 8, 2014) at 59.
    2RP(Sep. 8, 2014) at 63.
    No. 72523-8-1 / 3
    M.A. testified at trial that he heard about the "sexing game" from Tanner.3
    However, he denied having had any sexual contact with Tanner, playing
    inappropriately with Andrew, and telling Cate, Dellinger-Frye, and Officer
    Ridgeway about the inappropriate contact with Tanner.
    Cate, Dellinger-Frye, and Officer Ridgeway all testified.           Each of them
    described their conversations with M.A. about Tanner and inappropriate touching.
    The court found Tanner guilty of child molestation in the first degree.
    Tanner appeals.
    ANALYSIS
    Child Hearsay
    Tanner argues that his right to due process was violated by the admission
    of unreliable hearsay evidence. Specifically, he claims that the trial court abused
    its discretion when it determined that M.A.'s statements to Cate and Dellinger-Frye,
    satisfied the nine Ryan factors. State v. Ryan. 
    103 Wash. 2d 165
    , 175-76, 691 P.2d
    197(1984). We disagree.
    In cases of sexual or physical child abuse, courts will admit hearsay
    testimony from declarants who are under 10 years old if the hearsay meets certain
    criteria. RCW 9A.44.120. Those criteria include that the statements must have
    "sufficient indicia of reliability" and either that the child testifies, or, if the child is
    unavailable, that there be "corroborative evidence of the act." RCW 9A.44.120.
    Courts look to nine factors to determine reliability:
    1.      Whether the declarant, at the time of making the statement,
    had an apparent motive to lie;
    2.      Whether the declarant's general character suggests
    RP (Sep. 8, 2014) at 31-32.
    No. 72523-8-1 / 4
    trustworthiness;
    3.     Whether more than one person heard the statement;
    4.     The spontaneity of the statement;
    5.     Whether trustworthiness is suggested from the timing of the
    statement and the relationship between the declarant and the
    witness;
    6.     Whether the statement contains express assertions of past
    facts;
    7.    Whether the declarant's lack of knowledge could be
    established by cross-examination;
    8.    The remoteness of the possibility that the declarant's
    recollection is faulty; and
    9.    Whether the surrounding circumstances suggest that the
    declarant misrepresented the defendant's involvement.
    State v. C.J., 
    148 Wash. 2d 672
    , 683-84, 
    63 P.3d 765
    (2003).             Courts have
    determined that statements are spontaneous when the child is responding to
    questioning but "the details of the event and the identity of the defendant were not
    suggested." State v. Madison, 53Wn. App. 754, 759,770 P.2d 662, review denied.
    
    113 Wash. 2d 1002
    , 
    777 P.2d 1050
    (1989). "Not every factor need be satisfied; it is
    enough that the factors are 'substantially met.'" State v. Woods. 
    154 Wash. 2d 613
    ,
    623-24, 
    114 P.3d 1174
    (2005) (quoting State v. Swan. 
    114 Wash. 2d 613
    , 652, 
    790 P.2d 610
    (1990)).
    We review a trial court's decision to admit child hearsay for an abuse of
    discretion. State v. Borboa. 
    157 Wash. 2d 108
    , 121, 
    135 P.3d 469
    (2006). A court
    abuses its discretion if its "decision is manifestly unreasonable or is based on
    untenable reasons or grounds." 
    CJ^, 148 Wash. 2d at 686
    .
    Here, the record reflects that the court considered seven of the nine Ryan
    factors.
    On the first factor, the court noted that although M.A. might have believed
    No. 72523-8-1 / 5
    he was in trouble, he had no "motive to lie about Tanner per se."4 The court
    reasoned that M.A. and Tanner had not lived together for six months and M.A.
    would have no reason to attempt "to get Tanner in trouble at that moment in time."5
    For the second factor, the court found there was no reason to doubt M.A.'s
    character, M.A.'s truthfulness was "pretty ordinary" for a 6- or 7-year-old, and M.A.
    was not known for "spinning] wild tales."6 Likewise, the third factor was met
    because Cate and Dellinger-Frye heard M.A.'s statements at the same time and
    related them in consistent ways.
    Addressing the fourth factor next, the court concluded that M.A.'s
    accusations against Tanner were "relatively spontaneous."7 The court noted that,
    although M.A.'s disclosures were in response to questions about sexual conduct,
    Cate and Dellinger-Frye asked him if he had seen this behavior on television, did
    not include Tanner's name, and the questions were not leading or suggestive.
    Moving to the fifth factor, the court commented that the timing of M.A.'s
    statements did not add or detract from their reliability. But, the fact that M.A. first
    made the disclosures to trusted figures, his mother and caretaker, "enhance[d] the
    reliability of the statements."8
    The court evaluated the eighth factor next, and determined that the chance
    that M.A.'s recollections were "faded" or "distorted" was remote because the
    disclosure occurred only six months after the alleged incidents.9
    4RP(Aug.   1,2014) at    93.
    5RP(Aug.   1,2014) at    93.
    6RP(Aug.   1,2014) at    94.
    7RP(Aug.   1, 2014) at   94.
    8RP(Aug.   1,2014) at    95.
    9RP(Aug.   1,2014) at    95-96.
    No. 72523-8-1 / 6
    Finally, the court considered the ninth factor, and observed that there was
    nothing about the surrounding circumstances to suggest that M.A. would
    "misrepresent Tanner's involvement."10
    The court did not discuss whether the statements included statements of
    past facts, or whether cross-examination would establish the declarant's
    knowledge, the sixth and seventh factors. But, our Supreme Court has made it
    clear that, when looking at child hearsay statements about sexual abuse, the
    inclusion of statements about past facts do not have a significant impact on the
    reliability of the statements. 
    Swan. 114 Wash. 2d at 650-51
    . Further, because the
    parties knew M.A. intended to testify, itwas appropriate forthe court notto consider
    factor seven. See 
    Woods. 154 Wash. 2d at 624
    .
    In short, the trial court properly considered the Ryan factors in making its
    reliability determination.   The factors identified by the court indicate that the
    statements were reliable. Additionally, M.A. testified at trial, which satisfies the
    other statutory requirement for admission of this hearsay evidence. The trial court
    did not abuse its discretion when it admitted at trial M.A.'s statements to Cate and
    Dellinger-Frye.
    Tanner's primary challenge to this reliability determination is that M.A.,
    aware of the hostility between M.A.'s mother, Tanner's father, and Tanner,
    accused Tanner in order to escape trouble. This would give M.A. a motive to lie,
    indicate that M.A.'s relationships with Cate and Dellinger-Frye weighed against
    reliability, and reduce the spontaneity of the comments. The trial court declined to
    10RP(Aug. 1,2014) at 96.
    No. 72523-8-1 / 7
    make that inference, and we cannot say that decision was unreasonable
    Tanner also argues that M.A.'s character weighs against reliability. He
    asserts that M.A.'s "developmental history and unconfirmed current diagnosis [of
    autism]" impacts whether his character suggests trustworthiness.11 But Tanner
    draws no connection between M.A.'s background and M.A.'s trustworthiness.
    Further, even if this factor weighed against reliability, the factors collectively would
    still be substantially met.
    Lastly, Tanner contends that the trial court's decision to disregard M.A.'s
    live testimony "undercuts the reliability of [M.A.'s] unsworn statements."12 Given
    that the court made its determination of reliability before M.A. testified at trial,
    M.A.'s testimony had no impact on the court's determination. Nothing about the
    court's decision to credit M.A.'s hearsay statements over his in-court testimony
    required the court to revisit its determination that M.A.'s statements were reliable.
    Thus, this argument is not persuasive.
    Sufficiency of the Evidence
    Tanner contends that the State did not prove beyond a reasonable doubt
    that he committed child molestation in the first degree. Specifically, he claims that
    the court's credibility determination was illogical and thatthere was not substantial
    evidence to support four of the court's findings of fact. We disagree.
    "Due process requires the State to prove every element of a crime beyond
    a reasonable doubt." State v. Deer. 
    175 Wash. 2d 725
    , 731, 
    287 P.3d 539
    (2012).
    A person is guilty of child molestation in the first degree when the
    person has, or knowingly causes another person under the age of
    11 Appellant's Reply Br. at 11.
    12 Appellant's Br. at 21.
    No. 72523-8-1 / 8
    eighteen to have, sexual contact with another who is less than twelve
    years old and not married to the perpetrator and the perpetrator is at
    least thirty-six months older than the victim.
    RCW 9A.44.083. The statute defines "sexual contact" as "any touching of the
    sexual or other intimate parts of a person done for the purpose of gratifying sexual
    desire of either party or a third party." RCW 9A.44.010(2).
    We will sustain a conviction when, "after viewing the evidence [in the light]
    most favorable to the State," we determine that "any rational trier of fact could have
    found the essential elements of [the crime] beyond a reasonable doubt." State v.
    Green. 
    94 Wash. 2d 216
    , 221-22, 
    616 P.2d 628
    (1980) (emphasis omitted). A claim
    of insufficiency admits the truth of the State's evidence and all the reasonable
    inferences that can be drawn from it. State v. Salinas. 
    119 Wash. 2d 192
    , 201, 
    829 P.2d 1068
    (1992).
    First, we determine if there is substantial evidence to support the trial court's
    findings offact. State v. B.J.S.. 
    140 Wash. App. 91
    , 97, 
    169 P.3d 34
    (2007). Second,
    we determine if the findings offact supportthe conclusions of law. B.J.S.. 140Wn.
    App. at 97.
    We "must defer to the trier of fact on issues of conflicting testimony,
    credibility of witnesses, and the persuasiveness of the evidence." State v. Fiser.
    
    99 Wash. App. 714
    , 719, 
    995 P.2d 107
    (2000). Unchallenged findings of fact are
    verities on appeal. 
    B.J.S.. 140 Wash. App. at 97
    . "We review conclusions of law de
    novo." 
    B.J.S.. 140 Wash. App. at 97
    .
    Here, Tanner first challenges the determination that M.A.'s out-of-court
    statements were more believable than his in-court testimony. This is implicitly a
    8
    No. 72523-8-1 / 9
    challenge to finding of fact 11, which describes M.A.'s demeanor during his
    testimony. This also represents a challenge to the many findings of fact that are
    supported by hearsay testimony, and thus, rely on the court's initial determination.
    The court, as it explained in its oral ruling, believed that M.A. was trying to finish
    his testimony as quickly as possible. Therefore, the court credited M.A.'s other,
    fairly consistent statements. That was not an unreasonable conclusion for the trial
    court to make.      We will not disturb the findings of fact that depend on that
    conclusion.
    Tanner also alleges that findings of fact 4, 5, 12, and 19 are not supported
    bythe evidence. Findings offact 4, 5, and 12 describe circumstances surrounding
    M.A.'s initial disclosures, and his feelings about Tanner. They are not necessary
    to support Tanner's adjudication. In any event, they are supported by substantial
    evidence in the record. Cate's testimony supports findings offact 4 and 5.13 M.A.'s
    own testimony supports finding of fact 12.
    In finding of fact 19, the trial court found:
    The contact that occurred was done for the purposes of [Tanner's]
    sexual gratification and the sexual contact involved [Tanner]
    instructing M.A. to pull down his pants and underwear and climb on
    top of [Tanner] while [Tanner] had the front of his pants down and
    had M.A. sit with [Tanner's] penis in [M.A.'s] butt.'14'
    Tanner objects to the finding that Tanner's penis was "in [M.A.'s] butt" because no
    one ever had M.A. explain what that meant. Officer Ridgeway testified that M.A.
    first said his "butt was on [Tanner's] pee-pee" and then said that Tanner's penis
    13 Tanner objects that Cate's testimony was based on hearsay, not her personal
    observations. Tanner did not object to this hearsay within hearsay at trial.
    14 Clerk's Papers (CP) at 237.
    No. 72523-8-1/10
    was "[i]n [M.A.'s] butt."15 This testimony supports finding of fact 19.
    Finding of fact 19 establishes that the contact between Tanner and M.A.
    was sexual contact, and explains what that contact was.
    Tanner does not challenge finding of fact 18, which establishes that Tanner
    had contact with unclothed intimate parts of M.A.'s body, specifically that Tanner's
    hands were on M.A.'s penis, and that neither of the boys were clothed when M.A.
    was sitting on Tanner's lap. Tanner also does not challenge finding of fact 20,
    which establishes M.A.'s and Tanner's birthdays, or finding of fact 21, which
    establishes that M.A. and Tanner are not married. Thus, these findings are verities
    on appeal.
    Together with finding of fact 19, these findings support the court's oral
    conclusion that Tanner's conduct satisfied the elements of child molestation in the
    first degree: sexual contact occurred between M.A. and Tanner, that M.A. was
    under 12 years of age, at least 36 months younger than Tanner, and that the two
    were not married.
    These challenged findings, together with the unchallenged findings, support
    the trial court's verdict that Tanner is guilty of child molestation in the first degree.
    Substantial evidence supports the adjudication.
    We affirm the trial court's adjudication but remand to the trial court to correct
    an apparent clerical error in conclusion of law 3. An error is clerical ifthe judgment
    does not "embod[y] the trial court's intention." Marchel v. Bunger. 
    13 Wash. App. 81
    ,
    84, 
    533 P.2d 406
    (1975). By statute, the victim and perpetrator must be at least
    15 RP (Sep. 8, 2014) at 167-68.
    10
    No. 72523-8-1 /11
    36 months apart. RCW 9A.44.083(1). The trial court's third conclusion of law says,
    "M.A. was and is at least twenty four months younger than the [respondent."16
    This is an error, but it is a technical one, not a substantive, judicial one. The
    court's oral ruling reflected the correct statutory age difference. Similarly, finding
    of fact 20 establishes that Tanner is more than seven years older than M.A., a far
    greater age difference than the statute requires. Tanner's stipulation to his own
    birthday and Dellinger-Frye's testimony regarding M.A.'s birthday support that
    finding.
    We affirm and remand to the trial court to address the error.
    (/• \okz vj ,-4
    WE CONCUR:
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    16
    CP at 238.
    11