Opinion
No. 35988-0-II.
July 1, 2008.
Appeal from a judgment of the Superior Court for Lewis County, No. 06-1-00245-2, Richard L. Brosey, J., entered January 30, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Jerry Curtis Bergman appeals his conviction of first degree child molestation of his daughter, S.T.B, arguing that the trial court erred in several evidentiary rulings and that insufficient evidence supports his conviction. We affirm.
FACTS
We derive the facts from the trial evidence, taken in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Bergman and S.T.'s mother, Brianna Ramsey, married in August 1998. S.T. was born on February 24, 1999. Between November 1999 and January 2003, Bergman was incarcerated for crimes unrelated to this case.
In April 2001, Bergman and Ramsey dissolved their marriage. Ramsey and Bergman's parenting plan provided for Bergman's supervised visitation with S.T. for one to three hours, one day a week, for a six-month period.
After Bergman's release from prison in January 2003, he began living with his mother and stepfather in a house on Woodard Road in Napavine. He then began supervised visitation with almost four-year-old S.T.
At some point, Bergman requested increased visitation and Ramsey agreed to Saturday visitation which, according to her, took place almost every weekend for a period of time and then every other weekend until spring 2005. When S.T. was approximately five years old, Ramsey agreed that Bergman's visits with S.T. no longer needed to be supervised.
On direct examination, Ramsey agreed it was possible that Bergman's unsupervised visits with S.T. began in April 2003.
The last unsupervised visit Bergman had with S.T. was in May 2005. Ramsey testified that in June 2005, Bergman's girl friend informed her that Bergman wanted to see S.T. but found it difficult to make arrangements through Ramsey. Ramsey testified that this message surprised her because she thought that she and Bergman had always had a good understanding and agreement as to visitation. She testified that she tried to call Bergman multiple times to discuss the matter but he never returned her calls. She further testified that when she did speak with him about the issue, he told her that it was too much trouble for him to have visits with S.T. because his family and others wanted to see her and he did not feel it worth the trouble to share her with his family.
In June 2005, Bergman expressed an interest in resuming visitation. In July 2005, at Ramsey's invitation, Bergman attended S.T.'s swimming lesson and told Ramsey that he wanted overnight visitation with S.T. Ramsey testified that she declined because visitation had been so inconsistent, at which point Bergman grew angry and threatened to take her to court.
In February 2006, S.T. turned seven years old. On March 5, Bergman served Ramsey with a motion for modification of their parenting plan. On March 6 or 7, Ramsey met with an attorney to discuss the motion and possible changes to the visitation schedule.
According to Ramsey, on the same day she met with her attorney, she told S.T. that she would likely resume visitation with her father. Ramsey stated that S.T. questioned whether visitation would begin soon, when they were going to court, and what would happen there. She also described that S.T. became quiet and withdrawn and expressed worry about visitation.
Ramsey further testified that later the same evening she watched a recorded episode of The Oprah Show containing a segment on child molestation. S.T. overheard the term "sexual molestation" on the program and asked Ramsey what it meant. Clerk's Papers (CP) at 150. Ramsey told her that it occurred when someone touches a child in the wrong way in their private area and hurts them. Ramsey described that S.T. reacted strangely upon hearing this and turned her head away, prompting Ramsey to ask her if that had ever happened to her. S.T. remained quiet but Ramsey repeated her question and S.T. replied yes, put her head in her hands, and started to cry.
According to Ramsey, S.T. then told her that Bergman had touched her and that it had occurred some time ago. She stated that the incident took place at her grandparents' house on Woodard Road and that Bergman took her into his bedroom and made her watch a "nasty" movie with naked people in it, told her to get naked and to touch him, and touched and put lotion on her private parts. CP at 150. She also said that she did not want to do it but he made her.
The same evening, Ramsey called the Lewis County Sheriff's Office to report S.T.'s disclosure. S.T. eventually repeated her account to three other individuals: Lewis County Deputy Sheriff Robert Nelson, Dr. Debra Hall of the St. Peter Hospital sexual assault unit, and Ramsey's counselor, Phillip Williams.
By amended information, the State charged Bergman with one count of first degree child molestation for acts occurring on, about, or between January 1, 2003, and June 1, 2005. Pretrial, the State moved under RCW 9A.44.120 to admit S.T.'s hearsay statements made to Hall, Williams, Ramsey, and Nelson. The trial court held a child hearsay and competency hearing. S.T. testified about the abuse. Williams, Hall, Nelson, and Ramsey also testified about S.T.'s out-of-court statements regarding the abuse.
At the hearing, defense counsel did not challenge S.T.'s competency and agreed to the admissibility of S.T.'s statements to her mother and Williams. Counsel stated that he would not argue that he had an insufficient opportunity to cross-examine S.T. and would not object to Hall's or Nelson's testimony if their statements fit within any ER 803 hearsay exception.
The trial court found S.T. competent to testify under State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967), and found her statements reliable under State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). It ruled that S.T.'s statements to Hall, Nelson, Williams, and Ramsey were all admissible if S.T. testified. Although the trial court asked the State to prepare written findings and conclusions, apparently none were entered.
Allen sets forth the factors a trial court considers regarding child competency. Ryan sets forth the factors a trial court considers in admitting child hearsay statements.
A jury heard the matter. S.T. testified about Bergman's abuse and that she told her mother, Nelson, and Hall. Ramsey, Hall, Williams, and Nelson testified as to S.T.'s out-of-court statements regarding the abuse. The trial court overruled defense counsel's objections to Ramsey's, Williams's, and Nelson's testimony as inadmissible hearsay.
The jury convicted Bergman of one count of first degree child molestation, occurring on, about, or between January 1, 2003, and June 1, 2005. He appeals.
ANALYSIS S.T.'s Competency to Testify
We first address Bergman's contention that the trial court erred in finding S.T. competent to testify and that her incompetence rendered her unavailable as a witness. Specifically, Bergman argues that the second Allen factor was not satisfied because S.T. could not provide a time frame for the abuse and the third Allen factor was not satisfied because Williams acknowledged using leading questions while interviewing S.T. 70 Wn.2d at 692. He argues that because the record does not support the trial court's finding that the Allen factors were met, it improperly allowed her statements in through Ramsey's, Williams's, Hall's, and Nelson's testimony. He also contends that the trial court improperly admitted S.T.'s statements because it failed to enter written findings as to S.T.'s competency to testify.
At the close of testimony at the child competency and hearsay hearing, defense counsel stated he had no objection regarding S.T.'s competency other than to raise the issue that there was no finding that she was able to relate the abuse to a time period sufficient to give notice. The trial court found that the issue went to the statements' admissibility rather than S.T.'s competency, which defense counsel conceded. After the trial court found S.T. competent, defense counsel replied, "Great. Then I can just go ahead and address my next concern." Report of Proceedings (RP) (July 7 and 11, 2006) at 126. At trial, defense counsel also made no objection to S.T.'s ability to testify.
Citing State v. Swan, 114 Wn.2d 613, 790 P.2d 610 (1990), State v. Hopkins, 137 Wn. App. 441, 154 P.3d 250 (2007), and State v. Griffith, 45 Wn. App. 728, 727 P.2d 247 (1986), Bergman contends that he may raise the competency issue for the first time on appeal. We disagree that these cases apply, as all involve either a trial court finding or counsels' concession that the victim was not competent to testify. Here, the trial court found S.T. competent to testify and she did so at trial.
An objecting party may not wait to hear testimony and then object to the witness's competency if that testimony is unfavorable. State v. C.M.B., 130 Wn. App. 841, 847, 125 P.3d 211 (2005). A party must object to competency at the first opportunity; a failure to do so precludes further objection. C.M.B., 130 Wn. App. at 847. By failing to timely raise the competency issue at trial, Bergman waived the issue on appeal and, we decline to address it further. C.M.B., 130 Wn. App. at 848.
We note that even had Bergman preserved the issue, his argument fails. The competency determination lies within the trial court's sound discretion and, we will not disturb it on appeal absent a manifest abuse of that discretion. In the Matter of the Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998). The absence of written findings here does not preclude our review. See A.E.P., 135 Wn.2d at 223. The trial court specifically addressed the Allen factors in its oral findings. And the record supports the trial court's competency finding on the basis that S.T. understood the obligation to speak truthfully on the witness stand; could recall contemporaneous events showing she had the mental capacity at the time of the occurrence to receive an accurate impression of it; had a sufficient memory to retain an independent recollection of the abuse incident; had the capacity to express in her own words her memory of the occurrence; and had the capacity to understand simple questions about it. Allen, 70 Wn.2d at 692.
Reliability of S.T.'s Statements
Bergman next contends that the trial court erred in finding S.T.'s statements reliable under Ryan, arguing that the fifth, eighth, and ninth Ryan factors were not met because Williams tainted S.T.'s memory with improper interview techniques and because there was a substantial delay in her reporting the abuse. He also assigns error to the trial court's finding that the fourth Ryan factor was met because Ramsey's questioning elicited S.T.'s statements months after the alleged abuse occurred and S.T. equivocated as to why she did not report the abuse earlier.
RCW 9A.44.120 provides for the admission of child hearsay statements when the statements describe sexual abuse of the child and (1) the trial court finds, in a hearing conducted outside the jury's presence, that the time, content, and circumstances of the statements provide sufficient indicia of reliability; and (2) the child either testifies at the proceedings or is unavailable as a witness. Where a child witness is unavailable, the trial court may admit the statement only if there is corroborative evidence of the act; but where a child is competent to and does testify, no corroboration is required. RCW 9A.44.120(2)(b); State v. Woods, 154 Wn.2d 613, 623 n. 1, 114 P.3d 1174 (2005).
We review a trial court's decision to admit hearsay statements under RCW 9A.44.120 for abuse of discretion. State v. Hirschfield, 99 Wn. App. 1, 3, 987 P.2d 99 (1999). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
In determining whether child hearsay statements have sufficient indicia of reliability, the trial court considers nine factors: (1) whether there is an apparent motive to lie; (2) the declarant's general character; (3) whether more than one person heard the statements; (4) the statements' spontaneity; (5) the declaration's timing and the relationship between the declarant and the witness; (6) whether the statements contained express assertions of past fact; (7) whether cross-examination could show the declarant's lack of knowledge; (8) the remoteness of the possibility of the declarant's recollection being faulty; and (9) whether the surrounding circumstances suggested the declarant misrepresented the defendant's involvement. Ryan, 103 Wn.2d at 175-76. No single factor is decisive, State v. Young, 62 Wn. App. 895, 902-03, 802 P.2d 829, 817 P.2d 412 (1991), but the factors "must be substantially met before a statement is demonstrated to be reliable." Griffith, 45 Wn. App. at 738-39.
The trial court made the following oral findings as to the Ryan factors: (1) S.T. had no apparent motive to lie; (2) there was no attack on her general character; (3) whether Ryan required one statement heard by several people or that one person heard a statement and another person heard the same statement at a later time, both were satisfied here; (4) S.T.'s statements were spontaneous in the manner contemplated by the statute and case law; (5) although delayed reporting was a negative, due to the way her statements arose and the fact that a wide range of relationships existed in the people to whom S.T. made statements, the factor was met; (6) express assertions of past fact are always inadmissible; (7) it was possible cross-examination could show S.T.'s lack of knowledge; (8) the possibility that S.T.'s recollection was faulty was remote but this could change at trial; and (9) there was no indication that S.T. misrepresented Bergman's involvement.
First, the record does not support Bergman's contention that Williams's interview techniques were improper or tainted S.T.'s recall of events. Although Williams admitted on cross-examination that it was very possible that he generally used leading questions in conducting evaluations, he had no specific recollection that he used leading questions in evaluating S.T., and he unequivocally testified that he did not suggest to S.T. that she had been sexually assaulted and that S.T. told him she had been sexually assaulted.
Williams also described that he only questioned S.T. as to why she had a different last name from her father, at which point S.T. voluntarily disclosed that she could not see her father anymore, manifested a traumatic response, and stated that "[m]y father touched me in my private areas," at which point Williams stopped pursuing the topic. RP (July 7 and 11, 2006) at 58. Williams also testified that, on later visits with S.T., she made no additional disclosures regarding sexual assault and he focused his treatment of her on other areas. The record lacks evidence that Williams used improper interview techniques or tainted S.T.'s recall.
We also note that we consider statements regarding abuse made in the presence of law enforcement or other professionals to have enhanced reliability. See State v. Henderson, 48 Wn. App. 543, 551, 740 P.2d 329 (1987).
Likewise, the record does not support Bergman's contention that Ramsey elicited a particular response from S.T. in questioning her. We recognize a child's answers to questions as spontaneous so long as the questions are not leading or suggestive and define spontaneity in light of the entire context in which the child made the statement. Young, 62 Wn. App. at 901.
Here, Ramsey described that S.T.'s alarming response to her explanation of the term "sexual molestation" prompted her to ask S.T. if that had ever happened to her, which in turn prompted S.T.'s statement that it had. RP (July 7 and 11, 2006) at 98. Ramsey testified that she then asked S.T. who it happened with, where it happened, when it happened, and if anyone else saw what happened. These questions did not suggest a particular response by S.T. in terms of identities or details. See Swan, 114 Wn.2d at 649-50.
Further, delayed reporting of abuse is not decisive in assessing a child witness's reliability. See State v. Holland, 77 Wn. App. 420, 427, 891 P.2d 49 (1995). Nor is a child victim's inability to limit the abuse to a specific date determinative, particularly where the defense to the abuse allegation is that it never occurred. Holland, 77 Wn. App. at 427.
Here, the State charged Bergman with abuse occurring between January 2003 and June 2005. In her statements to police, at the competency hearing, and at trial, S.T. repeatedly described that the abuse occurred once at the house on Woodard Road; she described the house and recalled having visits with Bergman there when she was five years old. Other testimony confirmed that Bergman resided at the house on Woodard Road between January 2003 and February 2004. The testimony sufficiently specified a time frame for the abuse incident, and S.T.'s delayed reporting of the abuse and inability to recall the precise date it occurred were not determinative of her statements' reliability.
We also note the other evidence demonstrating the reliability of S.T.'s statements, including her competency hearing and trial testimony; that her description of the abuse details remained consistent with each person to whom she disclosed; and that she described sufficiently unusual details to suggest she was not fabricating the statements, including what her father's private parts looked like. See Swan, 114 Wn.2d at 651.
In sum, the record supports the trial court's determination that the fourth, fifth, eighth, and ninth Ryan factors were met and that S.T.'s statements were reliable. The trial court did not abuse its discretion.
Whether State's Direct Examination of S.T. Violated Bergman's Right To Confront Witnesses
Bergman next contends that the State failed to properly question S.T. regarding the abuse incident and her out-of-court statements to Ramsey, Hall, Nelson, and Williams. He asserts that by introducing her statements through those witnesses, the State impermissibly shielded S.T. from cross-examination, violating his right to confront witnesses.
Bergman raises a manifest error affecting a constitutional right which we address for the first time on appeal. RAP 2.5(a)(3); State v. Rohrich, 132 Wn.2d 472, 476 n. 7, 939 P.2d 697 (1997), rev'd on other grounds, 149 Wn.2d 647, 71 P.3d 638 (2003). We review de novo the legal question whether admitting the hearsay statements violated Bergman's Sixth amendment right to confrontation. Hopkins, 137 Wn. App. at 452.
Where a witness is produced at trial, testifies at length regarding the events related in statements to others, and is subject to cross-examination, no constitutional confrontation clause violation occurs. C.M.B., 130 Wn. App. at 848. But the State must question the witness about both the underlying event and her statements about it to others. State v. Price, 158 Wn.2d 630, 650, 146 P.3d 1183 (2006). "[A]n inability to remember does not render a witness unavailable for confrontation clause purposes." Price, 158 Wn.2d at 651. Inconsistencies in testimony bear on credibility, not admissibility. State v. Woodward, 32 Wn. App. 204, 208, 646 P.2d 135 (1982).
Here, the State questioned S.T. about the abuse event and she testified about it extensively and also testified that she reported it to her mother. Immediately after her testimony, the State asked S.T. who else she told, and she stated she told "Deputy Bob" and a doctor. I RP at 49.
On direct examination, S.T. testified that she remembered having visits with Bergman sometimes when she was five and sometimes when she was six; Bergman lived with his mother and father but she had been at the house alone with him before; she knew the difference between a truth and a lie; she was testifying because Bergman did something really bad to her; Bergman touched her private spot; she thought she was six when he did it; she did not remember telling police officers she thought she was four or five, but she could have been; the incident happened at Bergman's old house in his room; he touched her private spot with his hand while she had her clothes off; he told her to take her clothes off and at first she did not know what he was doing; it was daytime and there was no one else in the house; she saw his private and it was "round and it had a circle and it was kind of pinkish"; Bergman told her to watch a video and he wanted to trade his private spot; the television was black with a "little video thing" underneath; the video was about trading private spots and had a male and female adult in a room; Bergman told her there was a little hole to put his private in and then trade while they were watching the movie; after the movie, he put lotion on her private spot with his hand (demonstrating a circular gesture); she thought Bergman's hand went inside and touched her privates; Bergman was holding his private; he tried to put his private on her private but his mother came home; and when his mother came home, he told her to hurry to the bathroom and put her clothes on. I RP at 42.
S.T.'s trial testimony was the same in nearly all respects as what Ramsey, Hall, Nelson, and Williams testified that she reported to them. Her extensive direct testimony regarding the abuse and testimony as to who she told sufficiently demonstrated the content of her out-of court statements. See State v. Williams, 137 Wn. App. 736, 744-45, 154 P.3d 322 (2007) (finding no Sixth amendment violation where, in part, the victim testified extensively at trial about being raped and this was the primary content of her extrajudicial statements). The record shows that Bergman enjoyed a full opportunity for cross-examination before the jury and that the State did not shield S.T. from cross-examination. See In the Pers. Restraint of Grasso, 151 Wn.2d 1, 18, 84 P.3d 859 (2004). Bergman's confrontation clause argument fails.
We disagree with Bergman's contention that S.T.'s trial testimony substantially differed from her out-of-court statements. See State v. Montgomery, 95 Wn. App. 192, 198-99, 974 P.2d 904 (1999). In any event, inconsistencies in S.T.'s testimony go to her credibility, not her statements' admissibility. Woodward, 32 Wn. App. at 208.
Testimonial Statements
Bergman raises another argument regarding the admissibility of S.T.'s testimonial statements through Ramsey, Hall, Nelson, and Williams, contending that the admission violates Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Again, we review Bergman's assignment of constitutional error de novo and for the first time on appeal. RAP 2.5(a)(3); Hopkins, 137 Wn. App. at 452. Under Crawford, where evidence is testimonial, the Sixth amendment requires either that the witness testify at trial or else a showing of unavailability and a prior opportunity for cross-examination. 541 U.S. at 68.
Crawford expressly states that where the declarant appears for cross-examination at trial, the confrontation clause does not constrain the use of prior testimonial statements. 541 U.S. at 59 n. 9. Because we affirm the trial court's finding that S.T. was competent to testify and find that the State's direct examination of her allowed Bergman a full opportunity for cross-examination, Bergman's argument fails.
Sufficiency of the Evidence
Finally, Bergman contends that insufficient evidence supports his conviction. He asserts that because S.T. was not competent to testify and her out-of-court statements to Nelson, Hall, Williams, and Ramsey were inadmissible, no evidence otherwise supports his conviction.
Sufficient evidence supports a conviction where, viewed in the light most favorable to the State, any rational fact finder could have found the essential elements of the crime charged beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences reasonably drawn from it. Salinas, 119 Wn.2d at 201. On review, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We do not review the jury's credibility determinations. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
The trial court properly admitted S.T.'s, Ramsey's, Hall's, Nelson's, and Williams's testimony. Taken in the light most favorable to the State, this evidence sufficiently supports Bergman's conviction.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
We concur:
Armstrong, J.
Quinn-Brintnall, J.