State Of Washington v. A.e.w ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
January 29, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50750-1-II
Respondent,
v.
A.E.W. UNPUBLISHED OPINION
Appellant.
MELNICK, J. — AEW appeals his adjudications for rape of a child in the first degree and
child molestation in the first degree. AEW argues that insufficient evidence exists to support his
adjudications after a bench trial in juvenile court.
We affirm.
FACTS
I. INCIDENT
In March 2016, SGA, the father of EGA (then age five) and TNA (then age nine), called
the police to report that AEW had sexually abused his children. SGA learned of the abuse from
his children.
Tumwater Police Department Detective Tim Eikum arranged forensic interviews for the
children. Sue Villa interviewed EGA and TNA separately at Monarch Children’s Justice and
Advocacy Center (Monarch). After the interviews, Eikum arrested AEW.
50750-1-II
The State charged AEW, then age sixteen, with rape of a child in the first degree of EGA
and child molestation in the first degree of TNA. AEW pleaded not guilty. He proceeded to trial
in juvenile court.
II. CHILD HEARSAY HEARING
Before trial, the State moved to admit statements made by EGA and TNA to Villa and
SGA. All four testified at the child hearsay hearing.
A superior court commissioner presided over the hearing and ruled on the admissibility of
the child hearsay statements. A different judicial officer presided over the subsequent trial.
Villa testified that during EGA’s interview, EGA asked her, “‘Can I tell you something
that’s very, very appropriate?’” Report of Proceedings (RP) (Aug. 3, 2017) at 17. EGA then
stated, “‘[AEW] just stuck his—stuck my finger in his butt—in my butt, actually.’” RP (Aug. 3,
2017) at 17. Villa asked, “‘Stuck his finger in your butt?’” RP (Aug. 3, 2017) at 17. EGA
responded, “‘Yeah.’” RP (Aug. 3, 2017) at 17.
Villa testified that during TNA’s interview, he told her that he was there “‘to talk about the
crime that [AEW] did.’” RP (Aug. 3, 2017) at 50. TNA discussed an incident where AEW tackled
him to the ground and humped him. TNA also told Villa about an incident approximately two
years prior where AEW tackled TNA behind a tree and touched his privates. TNA discussed
another incident where AEW had TNA touch him. TNA stated that AEW’s behavior happened
frequently for two years.
SGA testified about when he initially learned of the abuse. EGA was getting out of the
shower “then he just kind of announced to everybody that his . . . butt hurt.” RP (Aug. 3, 2017) at
105. When SGA asked him why, EGA stated that it hurt because AEW touched it. SGA asked
where AEW touched his butt, and EGA pointed to his rectum and said, “‘In the middle.’” RP
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(Aug. 3, 2017) at 105. SGA visually inspected EGA’s rectum and noticed it was red, so he put
Vaseline on it. SGA then asked TNA whether AEW had ever done the same to him. TNA
responded that AEW had done the same thing to him the week prior.
EGA testified that he told SGA and Villa that AEW had touched him in his privates on the
back. He described where AEW touched him.
TNA testified that he remembered AEW touching him. He indicated that AEW touched
his penis. He also stated that AEW touched him under his clothes on his butt.
The court ruled that EGA’s and TNA’s statements to SGA and Villa were admissible at
trial. The court entered a written order on the admissibility of the child hearsay statements. It
included findings of fact and conclusions of law.
III. TRIAL
At trial, the parties agreed to the admission of the order on the admissibility of the child
hearsay statements as an exhibit. This admitted exhibit included the actual child hearsay
statements.
The State called Tumwater Police Department Detective Tyler Boling, Eikum, Villa, SGA,
TNA, and EGA as witnesses. AEW called Amber Herrera, JH, Tona Miller, Qing Xin Lee, Patrick
Williams, and HNM, AEW’s mother. AEW also testified.
The court found AEW guilty on both counts and entered written findings of fact and
conclusions of law. AEW appeals.
ANALYSIS
AEW argues that substantial evidence does not support findings of fact 2, 4, 12, 13, 16,
and 23 from the child hearsay hearing. He argues that because these findings are not supported by
substantial evidence, insufficient evidence supports his convictions. We disagree.
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“[F]ollowing a bench trial, appellate review is limited to determining whether substantial
evidence supports the findings of fact and, if so, whether the findings support the conclusions of
law.” State v. Homan, 181 Wash. 2d 102, 105-06, 330 P.3d 182 (2014). Evidence is substantial if it
is “sufficient to persuade a fair-minded person of the truth of the asserted premise.” Homan, 181
Wash. 2d at 106. Unchallenged findings of facts, along with findings of fact supported by substantial
evidence, are verities on appeal. Homan, 181 Wash. 2d at 106. We review conclusions of law de
novo. Homan, 181 Wash. 2d at 106.
AEW agreed to the admission at trial of the court’s written order on the admissibility of
the child hearsay statements. Accordingly, the trial court considered it as substantive evidence.
To the extent the court used the findings of facts in the order to adjudicate AEW’s guilt,
AEW is precluded from arguing that insufficient evidence supports those findings. RAP 2.5(a).
We also note that AEW does not challenge any of the court’s findings of fact or conclusions of
law that it entered following AEW’s trial. Failure to do so precludes AEW from arguing that
insufficient evidence supports his conviction. Homan, 181 Wash. 2d at 105-06.
Notwithstanding the above, we have taken it upon ourselves to review the record and we
conclude that substantial evidence supports the court’s challenged findings of fact from the child
hearsay hearing.
“[W]e review the trial court’s decision to admit child hearsay evidence for an abuse of
discretion.” State v. Borboa, 157 Wash. 2d 108, 121, 135 P.3d 469 (2006). A court abuses its
discretion “‘only when its decision is manifestly unreasonable or is based on untenable reasons or
grounds.’” Borboa, 157 Wash. 2d at 121 (quoting State v. C.J., 148 Wash. 2d 672, 686, 63 P.3d 765
(2003)).
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We review challenges to findings of fact supporting the admission to determine whether
substantial evidence supports each challenged finding and review the trial court’s conclusions of
law de novo to determine whether the findings support the challenged conclusions. State v.
Halstien, 122 Wash. 2d 109, 128-29, 857 P.2d 270 (1993); State v. B.J.S., 140 Wash. App. 91, 97, 169
P.3d 34 (2007); State v. Alvarez, 105 Wash. App. 215, 220, 19 P.3d 485 (2001). Substantial evidence
is evidence sufficient to persuade a fair-minded, rational person of the truth of the premise’s
assertion. Halstien, 122 Wash. 2d at 129.
“RCW 9A.44.120 governs the admissibility of out-of-court statements made by putative
child victims of sexual abuse.” State v. Brousseau, 172 Wash. 2d 331, 351, 259 P.3d 209 (2011).
RCW 9A.44.120 provides that statements of a child under the age of ten describing acts of, or
attempts at, “sexual contact performed with or on the child” are admissible in criminal
proceedings, if the trial court concludes, after a hearing, “that the time, content, and circumstances
of the statement provide sufficient indicia of reliability,” and the child “[t]estifies at the
proceedings.”
In determining the reliability of child hearsay statements, the trial court is to consider the
following nine factors from State v. Ryan, 103 Wash. 2d 165, 175-76, 691 P.2d 197 (1984):
“(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 declaration and 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.
(Quoting State v. Parris, 98 Wash. 2d 140, 146, 654 P.2d 77 (1982).)
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“No single Ryan factor is decisive.” State v. Kennealy, 151 Wash. App. 861, 881, 214 P.3d
200 (2009). A court does not abuse its discretion where it follows the requirements of RCW
9A.44.120 and the Ryan factors in concluding that a child’s hearsay statements are reliable. C.J.,
148 Wash. 2d at 686.
Here, the court did not abuse its discretion because it followed the requirements of RCW
9A.44.120 and analyzed the child hearsay statements under the Ryan factors. Furthermore,
substantial evidence supports the challenged findings of fact1 from the child hearsay hearing.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Melnick, J.
We concur:
Maxa, C.J.
Lee, J.
1
AEW argues that both EGA and TNA had a motive to lie, but AEW did not assign error to finding
of fact number 17. Clerk’s Papers at 52 (“There is no evidence that either child had any motive to
lie.”). His challenge is therefore precluded under RAP 10.3(g). Regardless, our review of the
record shows that substantial evidence supports the finding.
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