State Of Washington v. Donald William Winsor ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80373-5-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
DONALD WILLIAM WINSOR,
Appellant.
MANN, C.J. — Donald Winsor appeals his convictions for rape of a child, child
molestation, and communicating with a minor for immoral purposes. He argues that the
trial court erred by ruling that the videotaped interview of the child victim, B.D., was
admissible at trial. But even if inadmissible, any error was harmless. The jury heard
Winsor’s detailed videotaped confession which was corroborated by B.D.’s sister’s
eyewitness account.
We affirm.
FACTS
In November 2017, 5-year-old B.D. lived with his mother, grandmother, and 11-
year-old sister, M.B., in Enumclaw. Winsor, then 69 years old, lived next door to B.D.
and his family. Winsor and B.D.’s grandmother were close friends and often went for
Citations and pin cites are based on the Westlaw online version of the cited material.
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walks together in the neighborhood. Winsor also became “best friends” with B.D. B.D.
had a standing invite to visit and would often wander over whenever he felt like it.
On November 20, 2017, B.D. was visiting Winsor at his house. B.D.’s sister, 11-
year-old M.B., went to Winsor’s house to get B.D. for dinner. She did not see B.D. or
Winsor in the kitchen or living room, so she proceeded towards Winsor’s bedroom.
Standing outside Winsor’s bedroom, she saw B.D. laying on the bed with his pants
down and no underwear. Winsor was on top of B.D. and was licking B.D.’s penis.
M.B. returned home and told her grandmother what she had seen. She then
returned to Winsor’s house and knocked on the back door; Winsor and B.D. came to the
door, and M.B. and B.D. went home. The next day, B.D.’s mother reported the incident
to the police.
The next day, B.D. and M.B. separately met with forensic child interviewer Alyssa
Layne. The interviews were videotaped. In his interview, B.D. stated that he was
playing “hide and seek with your pants down” with Winsor. B.D. said when it was
Winsor’s turn to hide “he hid right in his bedroom” and finding him was easy because
“he’s just laying on the bed.” B.D. said “Don said part of the game is pulling your pants
down.” He said Winsor “just wanted to play with my weanie and that’s all.” He said
Winsor “just wiggled it around” with his fingers. He demonstrated the hand motion that
Winsor used when touching his penis. He said Winsor “told me that he didn’t want
anybody to know” about their game.
Winsor was arrested that same day and charged with first degree rape of a child,
first degree child molestation, and communicating with a minor for immoral purposes.
The police interviewed Winsor after his arrest. The interview was videotaped. Winsor
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confessed to performing oral sex on B.D., as well as other sexual contact and
communications.
After a pretrial hearing under CrR 3.5, the trial court determined that Winsor’s
recorded interview was admissible. Also prior to trial, the State offered B.D.’s recorded
interview as evidence arguing that the recorded statements were admissible under a
statutory hearsay exception for disclosure of sexual misconduct made by a child under
10 years old. RCW 9A.44.120. 1 Winsor objected on two grounds: (1) that B.D. was not
competent to testify at the time of the interview and (2) that B.D.’s statement lacked the
necessary indicia of reliability required under RCW 9A.44.120 and State v. Ryan, 103
Wn.2d 165, 691 P.2d 197 (1984). The trial court concluded that B.D. was competent to
testify and that his videotaped interview had sufficient indicia of reliability.
Trial took place in May and June 2019. Pursuant to the court’s pretrial rulings,
both B.D’s and Winsor’s videotaped interviews were played for the jury. Winsor did not
testify. B.D. testified that he did not know if Winsor ever touched him inappropriately
and did not remember Winsor touching him with his fingers or mouth. M.B. testified as
to what she saw on November 20, 2017.
The jury convicted Winsor as charged. Winsor appeals.
1 RCW 9A.44.120(1) provides:
“A statement not otherwise admissible by statute or court rule is admissible in evidence
in…criminal proceedings . . . if
(a)(i) It is made by a child when under the age of ten describing any act of sexual contact
performed with or on the child by another . . .
(b)The court finds . . . that the time, content, and circumstances of the statement provide
sufficient indicia of reliability; and
(c) The child either . . . [t]estifies at the proceedings; or. . . [i]s unavailable as a witness . . .
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ANALYSIS
Winsor contends that the trial court erred in concluding the recorded interview of
5-year-old B.D. was admissible under RCW 9A.44.120 and Ryan. The State argues
that the trial court did not err, but even if it did, any error was harmless because there
was overwhelming evidence of Winsor’s guilt. We agree with the State that even if
there was error, the error was harmless.
Because B.D. testified at trial, Winsor’s right to confrontation was satisfied. See
State v. Price, 158 Wn.2d 630, 650-51, 146 P.3d 1183 (2006). 2 Thus, any error in
admitting B.D.’s hearsay statements was not of constitutional magnitude. State v.
Warren, 55 Wn. App. 645, 650, 779 P.2d 1159 (1989). A non-constitutional error
warrants reversal “only if there is a reasonable probability that the error materially
affected the outcome of the trial.” State v. Kindell, 181 Wn. App. 844, 853, 326 P.3d
876 (2014).
To find Winsor guilty of first degree child molestation, the jury had to find that he
had “sexual contact” with B.D. See RCW 9A.44.083. To find Winsor guilty of first
degree rape of a child, the jury had to find that he had “sexual intercourse” with B.D.
See RCW 9A.44.073. To convict Winsor of communicating with a minor for immoral
purposes, the jury had to find that Winsor communicated with B.D., a minor, “for
immoral purposes.” RCW 9.68A.090(1). For purposes of this statute, “communicate”
includes conduct as well as words, and “immoral purpose” refers to sexual misconduct.
State v. Falco, 59 Wn. App. 354, 358, 796 P.2d 796 (1990).
2 In Price, the Supreme Court concluded that out-of-court statements made by a 6-year-old victim
of child molestation were admissible and satisfied the purposes of the confrontation clause because the
child testified at trial and was subject to cross-examination, despite the child’s inability to recall the
events.
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Any error in admitting B.D.’s videotaped interview was harmless because Winsor
confessed, on a videotape shown to the jury, to sexual contact and sexual intercourse
with B.D., and to communicating with B.D. for the immoral purpose of sexual
misconduct.
As Winsor explained:
Well, it started earlier this summer, just sort of messing around, and one
day he came in and I sort of masturbated him. And then that led to, he
said, oh well, you can put—you can put it in your mouth, if you don’t bite it.
So, okay. So that was—went on for—I mean, the one time. And all of a
sudden last week, last weekend in fact, he was wanting me to play with
him and to put it in my mouth and he—next think you know, the next day
he comes over, he wanted it done again. Well, okay. So then Monday he
came over and we—I kept telling him, we can’t do that. We can’t do it, but
he was wanting it. Oh, he said, it feels good, so . . . And like I say,
that’s—then Monday—pardon me—Monday he came over. He said—
asked me if we could go to my bedroom. Oh, okay. Bedroom. Well,
anyway, his sister came in to get him and she—she was in the kitchen.
We were in the bedroom. So that’s when, I think, that she knew
something was going on. So she went over, told Grandma, and then
when he went home, evidently he thought (unintelligible), so, and he told.
Because I told him before, I said, well, you can’t tell anybody. Oh, no, he
says, I won’t tell anybody, you know, and that’s—that’s all—all that was
led up to it.
Winsor admitted he knew B.D. was “only five.”
Winsor was later asked by the officer to “walk me through, through the first time,
how it led up and . . . kind of what happened, the whole picture.” Winsor responded,
Well, he was—like I say, he was coming in and I just sort of said to him, I
asked him, I said, well, if you don’t want me to do anything, let me know . .
. Well, then, oh, okay. Well, then next thing you know, then he pulls his
pants down and I—like I say, I was just playing with him and then all of a
sudden it led to, like, well, well, gee, if you want to, he says, he says, but
don’t bite. So that’s— that’s more or less what—what happened there.
And like I say, I told him, I said, we can’t do it . . . That’s it. Well, then, all
of a sudden, I say, this—I said a couple days ago or so, he wanted—he
had to have it done, so—well, he didn’t have to. I mean, I didn’t have to
do it, but I did, which is wrong on my part. It’s like, and then he kept
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wanting it done. Well, stupid me, I kept doing it. So, I’m—like I say, I know
I shouldn’t have.
The officer asked about the first time it happened and whether Winsor or B.D
initiated it. Winsor responded that it was “more on my part . . . because he was sort of
hesitant about it. He didn’t really. And then, but then after and it was all right with him.
And in fact, like I say, he was wanting to—he was wanting me to have oral sex with him
even after that, the next day, or whatever, and I told him, I said, [B.D.], I can’t.”
The officer then asked when it first happened “did you give him oral sex or were
you just touching him with your hands?” Winsor responded,
The first [time] I was just touching him with it, with my hand. I was just sort
of seeing, like maybe seeing how far I could go and then—and then all of
a sudden, then like I say, then he sort of like, oh, well, then—then he sort
of, like say, well, if I—well, as long as if you don’t bite it, he says. And it’s
like I’m thinking, well, you know, I wonder if he’s ever had it before. I
mean, it just seemed sort of strange that all of a sudden he would say that
. . . Because, I mean, he wouldn’t know. Why in the heck would all of a
sudden he say something like that?
So, it was like, you know, sort of a two-way street, but of course it’s my
fault for doing it.”
Winsor explained that he was “sort of like grooming him a little bit, but not really
too grooming him. It just got to a point where—I don’t know. I just, I just, I mean, like I
say, I know damn well I shouldn’t have done it. I was told before not to do it.”
Two days before Winsor’s interview, Winsor explained “[T]he last time, which
was, like I say, a couple days ago, Monday, it was his sister had came into the kitchen
and she hollered to him. And so anyway, he rolled off the bed and put his pants up and
what have you. And so I guess she—she knew something was going on then.” Winsor
further explained that on Monday B.D.:
hid behind the chair, but I knew he was there, because he always laughs
and makes himself . . . So then he goes, goes into the bedroom and gets
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under the bed. And so anyway, I was getting ready to watch football, I
think it was, and he comes in on the couch and he says, do you want to
go—do you want to go to the bedroom, and I says [sic] yeah, okay. And
that was he gets on the bed, pulls his pants down, and I proceed to give
him oral sex.
M.B.’s testimony corroborated Winsor’s confession about November 20, 2019.
M.B. testified that, standing outside Winsor’s room, she saw B.D. laying on the bed with
his pants down. She said she could see B.D. from the waist down and B.D. did not
have underwear on. She said Winsor was on top of B.D. with his clothes on. She said
that Winsor was licking B.D.’s “thingy,” or “dick.”
In short, Winsor’s gave a detailed and comprehensive confession of sexual
contact and sexual intercourse with B.D., as well as communicating with him for the
purpose of sexual misconduct. He does not challenge this confession on appeal.
Winsor’s confession was corroborated by M.B.’s eyewitness testimony.
Thus, even if it was, arguendo, error to introduce B.D.’s interview, there is no
“reasonable probability that the error materially affected the outcome of the trial.”
Kindell, 181 Wn. App. at 853.
Affirmed.
WE CONCUR:
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