State Of Washington, V Hugo Ruiz

Filed
Washington State
Court of Appeals
Division Two
August 28, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON No. 49719-1-II
Respondent,
v.
HUGO RUIZ UNPUBLISHED OPINION
Appellant.
LEE, J. — Hugo Ruiz appeals his jury trial convictions for three counts of first degree child
molestation involving separate incidents with his former step-daughters, R.C-Z and P.C-Z.1 Ruiz
argues that his trial attorney provided ineffective assistance of counsel by failing to object to the
State’s pretrial motion to join the two cases involving R.C-Z and P.C-Z and then failing to move
to sever the charges during trial. Ruiz also argues that the trial court erred in allowing the expert
testimony of child forensic interviewer Keri Arnold in the areas of delayed disclosure, child
memory, and recantation. We affirm.
FACTS
A. THE ABUSE
Hugo Ruiz and Bricia Sanchez married in 2004. At the time, Sanchez had two daughters
from a prior relationship, R.C-Z and P.C-Z
1
Pursuant to our General Order 2011-1, we use initials for child witnesses in sex crimes.
No. 49719-1-II
1. Incidents Involving R.C-Z
In 2011, then 10 year old R.C-Z told her school friends that Ruiz had touched her “private
area” on several occasions. 5 Verbatim Report of Proceedings (VRP) (Oct. 5, 2016) at 426.
Specifically, when she was in third grade, Ruiz regularly asked R.C-Z to help him get items from
their garage. Outside of the garage, Ruiz lifted R.C-Z into the air, positioned his body to touch the
back of her body, and moved his “private part” in a thrusting motion. 5 VRP (Oct. 5, 2016) at 431.
R.C-Z described Ruiz’s movements as “dry humping” her. 5 VRP (Oct. 5, 2016) at 430. R.C-Z
estimated that Ruiz did this more than five times.
On another occasion, Ruiz entered R.C-Z’s bedroom as she slept, spread her legs apart,
and positioned himself in between her legs. With Ruiz’s “private area” touching her “private area”
through clothing, Ruiz moved his body in a thrusting motion. 5 VRP (Oct. 5, 2016) at 435.
R.C-Z’s friends reported her disclosure to their school counselor, who then reported the
allegations to Child Protective Services. Ruiz was subsequently charged with three counts of first
degree child molestation. R.C-Z later denied that Ruiz had ever touched her, and the State
dismissed the charges.
2. Incidents Involving P.C-Z
Ruiz and Sanchez separated in December 2014. In February 2015, 13 year old P.C-Z told
her mother’s new boyfriend, Jose Sanchez Figueroa, that Ruiz had molested her when she was 7
or 8 years old. According to P.C-Z, Ruiz often touched her when she was alone in the car with
him. Ruiz would place P.C-Z on his lap and move his body around as she sat on him. P.C-Z also
recalled lying in bed one morning when Ruiz came into her bedroom, climbed on top of her, and
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No. 49719-1-II
began moving his body up and down toward her head and feet. P.C-Z heard Ruiz breathing heavily
in her ear as he rubbed his body on her body.
Figueroa contacted law enforcement. The State charged Ruiz with four counts of first
degree child molestation involving P.C-Z. The State also refiled the 2011 charges against Ruiz
involving R.C-Z.
B. MOTION TO JOIN THE CASES
The State moved to join the cases involving P.C-Z and R.C-Z pursuant to CrR 4.3.2 Ruiz
agreed to join the cases. At the hearing on the State’s motion, Ruiz’s counsel stated, “Yes, Mr.
Ruiz has agreed to join the cases. It makes sense, and the evidence probably would have come in
under 404(b) regardless.” 1 VRP (Feb. 12, 2016) at 3.
The trial court joined the cases involving P.C-Z and R.C-Z The State subsequently filed
an amended complaint, charging Ruiz with six counts of first degree child molestation—three
involving P.C-Z and three involving R.C-Z
C. RELEVANT PORTIONS OF TRIAL
1. Lay Witness Testimony
R.C-Z and P.C-Z testified to the facts set out above. R.C-Z also explained that she took
back her allegations against Ruiz in 2011 because Ruiz had told R.C-Z. that it was up to her to
keep their family together. On cross-examination, Ruiz asked R.C-Z whether she was “pretty close
2
CrR 4.3(a) allows two or more offenses to be joined in one charging document when the offenses
“(1) [a]re of the same or similar character, even if not part of a single scheme or plan; or (2) [a]re
based on the same conduct or on a series of acts connected together or constituting parts of a single
scheme or plan.”
3
No. 49719-1-II
with [her] sister, [P.C.-Z].” 5 VRP (Oct. 5, 2016) at 452. He also questioned R.C-Z on whether
she loved P.C-Z and supported P.C-Z.
During P.C.-Z’s testimony, Ruiz cross-examined her on how her uncle had previously
sexually assaulted her. Ruiz further asked P.C-Z whether she had spoken with R.C-Z about R.C-
Z’s experience with Ruiz before reporting that Ruiz had molested her. Ruiz then questioned P.C-
Z about her dislike of Ruiz as a stepfather and about whether she liked her mother’s new boyfriend
more than she liked Ruiz. P.C-Z testified that she “would get really mad” when Ruiz and her
mother reconciled and that she and her sister “didn’t want anything to do with them being back
together.” 5 VRP (Oct. 5, 2016) at 522.
Ruiz also testified and denied touching either girl for his own sexual gratification. Ruiz
claimed that he had never been alone with R.C-Z during the time he was married to Sanchez.
2. Expert Witness Testimony
Pretrial, Ruiz objected to Keri Arnold, a child interviewer in the Pierce County Prosecuting
Attorney’s Office, being called as an expert witness, arguing that Arnold did not qualify as an
expert witness. The trial court ruled that Arnold qualified as an expert through her training and
experience to discuss in general the concept of script and episodic memory, how children verbalize
or communicate in interviews, and the reasons for and commonality of delayed disclosure. The
court also ruled that Ruiz could object at trial if he felt that Arnold was testifying outside of her
expertise.
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No. 49719-1-II
At trial, Arnold testified that she interviewed R.C-Z. in 2011, after the disclosure, and again
in 2015. In her time at the prosecutor’s office, Arnold had conducted more than 2,200 forensic
interviews, most of which involved allegations of sexual abuse. To become a child forensic
interviewer, Arnold attended the Washington State child interviewer training, where she observed
other forensic interviewers. She also conducted mock interviews, reviewed research and training
materials related to child abuse and child development as it relates to memory, suggestibility, and
recantation. She also attended the weeklong training of the American Professional Society for the
Abuse of Children on interviewing protocol and various conferences and trainings on sex
offenders, child fatality investigations, and child sexual abuse and exploitation. The practices she
employs when interviewing children are generally accepted within the child forensic interview
community.
Arnold also testified about the concepts of delayed disclosure, script memory, and
recantation. She explained that delayed disclosure refers to a lapse in time from when the alleged
abuse occurred and when the child disclosed the abuse. According to Arnold, approximately 95
percent of cases she works on involve some sort of delay between the time when the abuse
allegedly began and when the child reported the abuse.
Arnold explained that a child’s memory develops over time and their ability to recall
specific events improves over time. For example, when a child is young, he or she may only be
able to provide simple elements and details of an event, but their ability to recall in more detail
develops as they get older.
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No. 49719-1-II
Arnold detailed the difference between script and episodic memory, explaining that script
memory refers to something that occurs with a great deal of frequency. Signs a child is relaying
script memory include use of language “I usually,” “most of the time,” or “almost always” when
describing an event. Comparatively, episodic memory refers to a child’s ability to recall specific
details of one incident.
Finally, Arnold explained that recantation occurs when a child makes a disclosure and then
later says that his or her disclosure was not true. According to Arnold, recantation is commonly
discussed in trainings related to child sexual abuse because one factor that might play a role in
recantation is when the offender is someone close to the child, such as a family member. A child
may recant because he or she fears upsetting the non-offending parent or the allegation has
disrupted the family. Arnold further explained that recantation is so common that the trainings
and conferences she attends frequently discuss factors to look for and questions to ask when a child
recants.
3. Motion to Dismiss
Prior to resting its case-in-chief, the State amended the complaint, dismissing one of the
counts involving R.C-Z and two of the counts involving P.C-Z The State explained that based on
the testimony, there were three specific acts of molestation that could proceed forward—the
incident involving Ruiz lifting R.C-Z outside the garage; the incident where Ruiz climbed on top
of R.C-Z in her bed; and the incident where Ruiz climbed on top of P.C-Z in her bed.
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No. 49719-1-II
4. Closing Argument
In closing, Ruiz argued that the details of P.C-Z and R.C-Z’s disclosures had changed over
the course of the case. After explaining how the girls’ disclosures had changed, defense counsel
argued, “I did find it interesting that they both say that [Ruiz] came in under cover of night and
perpetrated these crimes . . . . And it is completely askew from what it was that they initially
reported. It’s brand new, and . . . the stories are very similar: Dry humping, cover of night.” 8
VRP (Oct. 12, 2016) at 891, 892. Later, defense counsel argued that P.C-Z and R.C-Z’s stories
had continued to evolve “[a]nd . . . [P.C-Z] and [R.C-Z] have discussed, okay, what’s been going
on[.] They’ve talked about this.” 8 VRP (Oct. 12, 2016) at 898.
Counsel also suggested that the motivation for P.C-Z and R.C-Z to fabricate the allegations
was their preference for their mother’s new boyfriend and their desire to prevent their mother from
reconciling with Ruiz. Defense counsel drew the jury’s attention to the similarities between the
testimony of P.C-Z and R.C-Z and told the jury that they had discussed the allegations with one
another.
The trial court instructed the jury:
A separate crime is charged in each count. You must decide each count
separately. Your verdict on one count should not control your verdict on any other
count.
Clerk’s Papers (CP) at 122. The jury found Ruiz guilty on all three counts. Ruiz appeals.
ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Ruiz argues that his trial counsel rendered ineffective assistance by failing to object to the
joining of his offenses involving P.C-Z with his offenses involving R.C-Z. He also argues that his
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No. 49719-1-II
counsel rendered ineffective assistance by failing to move for a severance in light of how the
testimony of P.C-Z and R.C-Z unfolded. We disagree.
1. Legal Principles
The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the
United States Constitution and article I, section 22 of the Washington Constitution. State v. Grier,
171 Wash. 2d 17, 32, 246 P.3d 1260 (2011), cert. denied, 135 S. Ct. 153 (2014). To prevail in an
ineffective assistance of counsel claim, the defendant must show that (1) defense counsel’s
performance was deficient, and (2) the deficient performance resulted in prejudice. State v.
Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004).
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
Grier, 171 Wash. 2d at 33. Counsel’s performance is not deficient if it can be characterized as
legitimate trial strategy or tactics. Id. To prevail in an ineffective assistance of counsel claim, the
defendant must overcome “a strong presumption that counsel’s performance was reasonable.”
State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009).
In order to establish prejudice, the defendant must show that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. State v. Estes, 188 Wash. 2d
450, 458, 395 P.3d 1045 (2017). Thus, the defendant must show that the objection would likely
have been successful. State v. Gerdts, 136 Wash. App. 720, 727, 150 P.3d 627 (2007).
We review a claim of ineffective assistance of counsel de novo. Estes 188 Wash. 2d at 457.
And “[c]omptency of counsel is determined based upon the entire record below.” State v.
McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995).
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No. 49719-1-II
2. Failure to Object to Join the Cases
a. Counsel did not render deficient performance
Ruiz argues that there was “no fathomable reason” for his trial counsel to strategically
agree to join cases involving two victims alleging multiple counts of sexual conduct by him. Br.
of Appellant at 35. We disagree.
Ruiz’s trial strategy largely involved attacking P.C-Z and R.C-Z's credibility. In closing,
defense counsel drew the jury’s attention to ways in which the girls’ disclosures changed over the
course of the case. After detailing how both girls’ disclosures had changed, defense counsel argued
that their new allegations were very similar. Defense counsel also argued, “I did find it interesting
that they both say that [Ruiz] came in under cover of night and perpetrated these crimes.” 8 VRP
(Oct. 12, 2016) at 891. Defense counsel further argued, “And it is completely askew from what it
was that they initially reported. It’s brand new, and . . . the stories are very similar: Dry humping,
cover of night.” 8 VRP (Oct. 12, 2016) at 892. Defense counsel referenced how both girls waited
until three weeks before trial to disclose the allegations of “dry humping.” 8 VRP (Oct. 12, 2016)
at 890. Later, counsel argued that the girls’ stories had continued to evolve “[a]nd . . . [P.C-Z] and
[R.C-Z] have discussed, okay, what’s been going on[.] They’ve talked about this.” 8 VRP (Oct.
12, 2016) at 898. Counsel also argued that P.C-Z and R.C-Z’s motivation to allege such abuse
was their preference for their mother’s new boyfriend and their desire to prevent her from
reconciling with Ruiz.
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No. 49719-1-II
Thus, the record shows that part of defense counsel’s trial strategy was to suggest that P.C-
Z and R.C-Z conspired to fabricate the allegations in order to ensure that their mother would not
reconcile with Ruiz. Defense counsel supported this theory by drawing the jury’s attention to the
similarities between P.C-Z and R.C-Z’s testimony and arguing that they had discussed the case
with one another. Defense counsel was able make such arguments because the cases were joined.
Ruiz’s counsel also may have believed that trying the cases together would allow the
weaker case to undermine the stronger case. And trying the cases together allowed the jury to hear
evidence that the girls’ uncle had been convicted for sexually assaulting P.C-Z, which may not
have been inadmissible in a separate trial involving R.C-Z. Therefore, defense counsel’s
agreement to join the cases can be characterized as legitimate trial strategy or tactic.
b. Ruiz fails to show prejudice
Ruiz fails to show that the trial court would have denied the State's motion if defense
counsel had objected to the joinder. Thus, Ruiz fails to show prejudice.
If the State originally charges a defendant of multiple counts in separate charging
documents, the court may join the offenses on a party’s motion. CrR 4.3(a); State v. Bluford, 188
Wash. 2d 298, 306, 393 P.3d 1219 (2017). Offenses are eligible for joinder if they “ ‘[a]re of the
same or similar character, even if not part of a single scheme or plan.’ ” Id. (quoting CrR 4.3(a)).
Here, the counts involving P.C-Z and R.C-Z were of similar character, as they were all
allegations of first degree child molestation involving Ruiz’s former stepdaughters. And while our
Supreme Court has noted that prior sexual offenses have an inherently prejudicial effect, the court
has also held joinder to be proper when a defendant is accused of multiple child sex crimes
involving different victims. See Bluford, 188 Wash. 2d at 315; State v. Markle, 118 Wash. 2d 424, 439,
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No. 49719-1-II
823 P.2d 1101 (1992) (affirming joinder of two counts of statutory rape and one count indecent
liberties involving defendant’s two nieces).
In determining whether joinder would result in prejudice, the court must consider four
factors:
(1) the strength of the State’s evidence on each count; (2) the clarity of defenses as
to each count; (3) court instructions to the jury to consider each count separately;
and (4) the admissibility of evidence of the other charges even if not joined for trial.
Bluford, 188 Wash. 2d at 311-12 (quoting State v. Russell, 125 Wash. 2d 24, 63, 882 P.2d 747 (1994),
cert. denied, 514 U.S. 1129 (1995)). Ruiz acknowledges that the record is insufficient for us to
determine if the trial court would have found joinder to be prejudicial if defense counsel had
objected.
Ruiz “bears the burden of showing, based on the record developed in the trial court, that
the result of the proceeding would have been different but for counsel’s deficient representation.”
McFarland, 127 Wash. 2d at 337. Without a sufficient record for us to determine whether the trial
court would have found joinder to result in prejudice, Ruiz is unable to show that but for his
counsel’s failure to object, the trial court would have denied the State’s motion to join the cases.
Because Ruiz fails to show that his counsel’s performance was deficient and fails to show
resulting prejudice, his ineffective assistance counsel claim fails.
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No. 49719-1-II
2. Failure to Move for a Severance During Trial
Ruiz also argues that his trial counsel was ineffective for failing to move to sever the cases
during trial in light of P.C-Z and R.C-Z’s trial testimony.3 Again, we disagree.4
When multiple offenses have been properly joined, a party may bring a motion to sever the
charges and divide the joined offenses into separate charging documents under CrR 4.4(b).
Bluford, 188 Wash. 2d at 306. Upon motion, the trial court “shall grant a severance of offenses
whenever before trial or during trial with consent of the defendant, the court determines that
severance will promote a fair determination of the defendant’s guilt or innocence of each offense.”
CrR 4.4(b). As in joinder, in assessing whether the potential for prejudice requires severance, the
court must consider:
(1) the strength of the State’s evidence on each count; (2) the clarity of defenses as
to each count; (3) court instructions to the jury to consider each count separately;
and (4) the admissibility of evidence of the other charges even if not joined for trial.
Russell, 125 Wash. 2d at 63.
3
We note that Ruiz’s arguments on severance undercuts his challenge that defense counsel was
ineffective for failing to object to joinder. Ruiz argues, “[b]ecause the extent of prejudice resulting
from joinder of offenses may not be apparent until trial unfolds, CrR 4.4 provides that a motion to
sever may be made during trial.” Br. of Appellant at 42-43. Thus, Ruiz’s own argument suggests
that it is legitimate trial strategy for counsel to agree to joinder pretrial and then determine whether
to move to sever the cases in light of the actual evidence that unfolds at trial. Ruiz’s argument
here also undermines his argument that his counsel’s failure to object to joinder resulted in
prejudice because he argues that his counsel still could have moved to sever the cases at any point
until the close of evidence at trial.
4
The State appears to argue that Ruiz waived this issue because he never moved for severance.
However, Ruiz’s challenge here is based on ineffective assistance of counsel, which is a claim of
“ ‘manifest error affecting a constitutional right’ ” reviewable for the first time on appeal.
McFarland, 127 Wash. 2d at 333 (quoting RAP 2.5(a)(3)).
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No. 49719-1-II
a. Counsel was not deficient
Ruiz argues that there was no legitimate tactical reason for defense counsel to fail to move
to sever the cases because such motion “would only have been to Mr.’s Ruiz’s benefit.” Br. of
Appellant at 43. However, as explained above, part of Ruiz’s theory of the case was that his
stepdaughters had fabricated the allegations against him to prevent their mother from reconciling
with Ruiz. By allowing the jury to hear the testimony of both girls in the same trial, Ruiz was able
to point to the similarities in their allegations and argue that the similarities showed that they had
conspired to fabricate the allegations to ensure that their mother would not reconcile with Ruiz.
Therefore, the record shows a legitimate tactical reason for defense counsel to not move to sever
the cases in light of how P.C-Z and R.C-Z’s testimony developed.
b. Ruiz fails to show prejudice
Ruiz also fails to show that had defense counsel moved to sever the cases during trial, the
trial court would have granted the motion after considering the four factors articulated in Russell.
Therefore, Ruiz fails to show prejudice.
Ruiz argues that the State’s evidence on the charges involving P.C-Z was significantly
weaker than its charges involving R.C-Z because the State sua sponte dismissed two of the counts
involving P.C-Z during trial. However, the State also sua sponte dismissed one of the charges
involving R.C-Z. And the State’s evidence on the remaining counts was solely based upon the
testimony of P.C-Z and R.C-Z. Therefore, under the first Russell factor, the strength of the State’s
evidence as to each of the remaining charges was of similar strength.
Ruiz’s defense was a general denial to all the charges. And the trial court instructed the
jury that:
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No. 49719-1-II
A separate crime is charged in each count. You must decide each count
separately. Your verdict on one count should not control your verdict on any other
count.
CP at 122. Thus, there is no potential for prejudice requiring severance under the second and third
Russell factors.
As to the fourth Russell factor, Ruiz argues that the testimony of R.C-Z and P.C-Z would
not have been cross-admissible because the allegations lacked the “high-level of similarity” to
constitute evidence of a common scheme or plan under ER 404(b). Br. of Appellant at 39.
However, “[t]he mere fact that evidence is not cross admissible does not automatically preclude
joinder.” Bluford, 188 Wash. 2d at 315. Thus, Ruiz fails to show that had defense counsel moved to
sever the cases during trial, the trial court would have granted the motion after considering the
Russell factors.
Ruiz also fails to present any argument showing that had the trial court severed the cases,
his trial outcome would have differed. He, therefore, fails to show that but for defense counsel’s
failure to bring such a motion, the outcome of the proceeding would have differed.
B. EXPERT TESTIMONY OF KERI ARNOLD
Ruiz argues that the trial court abused its discretion in allowing Arnold to testify as an
expert on the concepts of delayed disclosure, child memory, and recantation. He argues that
Arnold was not qualified as an expert to testify on these topics, that her testimony was not helpful,
and that her testimony amounted to profiling evidence.5 We disagree.
5
The State argues that Ruiz waived his objection to Arnold’s testimony under ER 702 because the
trial court only issued a tentative ruling and he never sought a final ruling on the State’s motion to
admit Arnold’s expert testimony. But the record shows that the trial court did make a final ruling
as to whether Arnold was qualified to testify as an expert witness at trial.
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No. 49719-1-II
1. Legal Principles
We review a trial court’s decision to admit or exclude expert testimony for abuse of
discretion. State v. Phillips, 123 Wn. App. 761,765, 98 P.3d 838 (2004), review denied, 154 Wash. 2d
1014 (2005). “A trial court abuses its discretion if it relies on unsupported facts, applies the wrong
legal standard, or adopts a position no reasonable person would take.” In re Detention of McGary,
175 Wash. App. 328, 337, 306 P.3d 1005, review denied, 178 Wash. 2d 1020 (2013). We will not
disturb the trial court’s ruling if the basis for admitting the expert testimony is fairly debatable.
Johnston-Forbes v. Matsunaga, 181 Wash. 2d 346, 352, 333 P.3d 388 (2014).
2. The Trial Court did not Abuse its Discretion
ER 702 governs the admissibility of expert testimony at trial and 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.
Thus, under ER 702, expert testimony is generally admissible if (1) the expert is qualified; (2) the
expert relies on generally accepted theories in the scientific community; and (3) the testimony
would be helpful to the trier of fact. Johnston-Forbes, 181 Wash. 2d at 352. “Education and practical
experience may qualify a witness as an expert.” State v. Jones, 71 Wash. App. 798, 814, 863 P.2d
85 (1993), review denied, 124 Wash. 2d 1018 (1994).
a. Arnold was qualified under ER 702
Ruiz contends that Arnold was not qualified as an expert to testify about child memory and
recantation because her experience was solely based on her experience as a child forensic
interviewer and the trainings she had attended. However, a witness may qualify as an expert
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No. 49719-1-II
“based on training, experience, professional observations, and acquired knowledge.” Jones, 71
Wash. App. at 815.
Here, Arnold testified that she had conducted more than 2,200 forensic interviews of
children, most which involved sexual abuse allegations. Her training to become a child forensic
interviewer involved observing forensic interviews, conducting mock interviews, researching
training materials related to child abuse and development as it relates to memory and recantation.
Arnold also attended numerous conferences and trainings related to child fatality investigations
and child sexual abuse and exploitation. Thus, based on Arnold’s training, experience,
professional observations, and knowledge, she was qualified to testify about child memory and
recantation.6
b. Arnold’s testimony was helpful to the jury
Expert testimony is admissible only if it is helpful to the trier of fact. State v. Morales, 196
Wash. App. 106, 122, 383 P.3d 539 (2016), review denied, 187 Wash. 2d 1015 (2017). “Expert
testimony is helpful to the jury if it concerns matters beyond the common knowledge of the average
6
Ruiz also argues that under Black and Jones, Arnold’s testimony regarding the “imprinting of
childhood memories” was scientific and, therefore, needed to be based upon an explanatory theory
generally accepted in the scientific community. Br. of Appellant at 47. However, neither of these
cases involved expert testimony related to a child’s memory formation. State v. Black, 109 Wash. 2d
336, 342, 745 P.2d 12 (1987); Jones, 71 Wash. App. at 813-14. In Black, our Supreme Court held
that expert testimony on “rape trauma syndrome” had not been generally established as a
scientifically reliable means of proving lack of consent in a rape case. 109 Wash. 2d at 348.
Meanwhile, the Jones court addressed expert testimony that the child victim’s propensity to act
out and experience nightmares were common behaviors of sexually abused children. 71 Wash. App.
at 813-14. Therefore, these cases do not support Ruiz’s contention that Arnold’s testimony related
to childhood memory was scientific.
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No. 49719-1-II
layperson and is not misleading.” State v. Groth, 163 Wash. App. 548, 564, 261 P.3d 183, review
denied, 173 Wash. 2d 1026 (2011).
Ruiz argues that Arnold’s testimony regarding delayed disclosure and recantation was not
helpful to the jury. Specifically, Ruiz contends that Arnold’s testimony was not based upon
specialized knowledge, provided only a general definition of delayed disclosure and recantation,
and merely “conveyed basic notions well within the purview of the average juror.” Br. of
Appellant at 49.
However, in addition to providing a general definition of delayed disclosure, Arnold also
testified that it was extremely common for children to delay in reporting abuse. She further
testified that approximately 95 percent of cases she had worked on involved some sort of reporting
delay. She also identified common factors that may impact a child’s delay in disclosing abuse,
such as the victim’s relationship to the perpetrator and the child’s lifestyle.
Similarly, after providing a general definition of recantation, Arnold explained that
recantation is not uncommon in child sexual abuse cases because the offender is often someone
close to the child, such as a family member. Arnold also explained that a child may recant out of
fear of upsetting the non-offending parent or because the allegations have disrupted the family.
Thus, contrary to Ruiz’s assertion, Arnold did not merely testify to the general definitions
of delayed disclosure and recantation. She also testified as to the commonality of delayed
disclosure and recantation in child sexual abuse cases and provided reasons based on her training
and experience as to why a child may delay in reporting abuse or recant after making an allegation.
Frequency of and reasons for delayed disclosure and recantation is not within the common
knowledge of the average layperson. And our Supreme Court has already held expert testimony
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No. 49719-1-II
regarding delayed disclosure to be admissible when limited to an opinion that delay in reporting
abuse is not unusual. State v. Petrich, 101 Wash. 2d 566, 575-76, 683 P.2d 173 (1984), overruled on
other grounds by State v. Kitchen, 110 Wash. 2d 403, 756 P.2d 105 (1988).
Further, when a witness’s credibility is put in issue, the trial court may in its discretion,
allow an expert witness to provide evidence tending to corroborate the testimony. Id. at 575. Here,
Ruiz extensively cross-examined R.C-Z on her recanting the accusations she made against Ruiz in
2011. He also cross-examined P.C-Z on the time it took her to disclose the incident with Ruiz.
Ruiz also spent much of his closing argument discussing the credibility of R.C-Z and P.C-Z,
drawing the jury’s attention to the fact that R.C-Z had recanted in 2011. Because Ruiz put the
credibility of the girls at issue and specifically cross-examined them on recantation and delay in
reporting the incidents, Arnold’s testimony regarding commonality of delayed disclosure and
recantation was helpful to the trier of fact.
c. Arnold’s testimony did not amount to profiling evidence
Ruiz argues that Arnold’s testimony regarding delayed disclosure and recantation
amounted to profile testimony because many of the factors Arnold testified about resembled the
family dynamics of P.C-Z and R.C-Z’s household. We disagree.
As a general rule, profile testimony that merely identifies a person as a member of a group
more likely to commit the charged crime is inadmissible, as it lacks probative value when
compared to the danger of its unfair prejudice. State v. Braham, 67 Wash. App. 930, 936, 841 P.2d
785 (1992). However, Ruiz acknowledges that Arnold never testified as to the possible reasons
for the delayed disclosure or recantation in this particular case. Further, the record shows that
Arnold never identified Ruiz as a member of a particular group more likely to commit child
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No. 49719-1-II
molestation. Instead, her testimony was limited to describing whether delayed disclosure and
recantation were common in child sex abuse cases. She also explained possible reasons why a
child might delay in disclosing abuse or later recant. At no point did Arnold reference how the
specific living situation of P.C-Z and R.C-Z contributed to P.C-Z’s delayed disclosure and R.C-
Z’s recantation.
Ruiz has failed to show that Arnold’s testimony was inadmissible. Therefore, we hold that
the trial court did not abuse its discretion in allowing Arnold to testify as an expert on delayed
disclosure, child memory, and recantation.
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.
Lee, J.
We concur:
Worswick, J.
Maxa, C.J.
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