Opinion
No. 59299-8-I.
March 17, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-01071-4, Anita L. Farris, J., entered December 14, 2006.
Affirmed by unpublished per curiam opinion.
A jury found Lawrence Scott Dodgen guilty of one count of first degree child molestation. We conclude that the trial court did not abuse its discretion in finding the child victim competent to testify and the child's hearsay statements reliable and admissible. Nor did the court err in limiting the testimony of two witnesses. Accordingly, we affirm Dodgen's conviction.
FACTS
In late July 2005, four-year-old A.W. spent two nights with her brother at the Marysville home of a neighbor, appellant Dodgen. A.W.'s mother, Tiffany Williams, was in the process of moving the family and used the opportunity to transport the family's furniture to Montana. A.W.'s brother and Dodgen's son were good friends. When Williams picked her children up, she noticed nothing unusual, and A.W. made no complaints. A.W. and her family then moved to Montana.
About six weeks later, on the evening of September 11, 2005, Dodgen returned a telephone call from Williams. Because she was preparing dinner, Williams let the answering machine take the call. While listening to Dodgen's message, A.W. said "Scott's gross." Williams immediately asked "why is Scott gross?" and A.W. replied:
Because when I spent the night over there, he put his hands down my pants and he made me put my hands down his pants.
Williams took A.W. to a bedroom and asked her to explain what happened:
She told me that they were laying on the couch, and his daughter was at one end of the couch asleep, and she was laying in his arms, somewhat cradled and that he was tickling her tummy. And by tickling, I mean a soft tickle because [A.W.] likes to get her back tickled, and she's a tickler. And he was tickling her tummy, and she said that he just kept going down and went down below her panty line, and rubbed her with his two fingers.
Williams told A.W. that what Dodgen had done was "very wrong." A.W. answered "no" when Williams asked whether Dodgen had put his fingers into her vagina.
Williams reported the incident to Marysville police, who later arrested Dodgen. Dodgen told the arresting officer that on the first evening of the visit, A.W. and his daughter had been unable to sleep, and he had brought them both out to the couch with him, where A.W. lay on his chest until she fell asleep. Dodgen then moved both girls back to bedroom. Dodgen explained to the officer that while A.W. was lying on his chest,
he pulled her pajamas up and rubbed her belly because she was being cranky. He said that he felt his hand go under the waistband of her pajama bottoms, and it may have gone under the waistband of her underwear, but he did not touch her vagina.
Dodgen said that at one point, A.W. lifted up Dodgen's shirt and began rubbing his belly, but he stopped her hand "after a few rubs."
The State charged Dodgen with one count of first degree child rape and one count of first degree child molestation. The trial court found that A.W. was competent to testify and ruled that the hearsay statements A.W. made to her mother and to a child interview specialist were reliable and admissible under RCW 9A.44.120. The hearsay statements included allegations of penetration.
At trial, A.W. testified that while she was on the couch with Dodgen's daughter, Dodgen "put his hand down my pants and then he tried to put my hand down his pants." A.W. explained that she was sleeping on the couch, but she could see Dodgen's daughter because "my eyes were kind of open." A.W. described Dodgen's hand as "moving around" on her "private."
Dodgen testified that on the first night of the sleepover, A.W. had bumped her head and was crying. He then gave A.W. and his daughter cookies and milk and waited on the couch, where the girls eventually joined him. Dodgen first rubbed his daughter's belly, a technique he used frequently to encourage children to fall asleep. After both girls fell asleep, Dodgen attempted to leave the couch, but A.W. woke up. He then performed the "belly rub thing" by rubbing his fingers in a circular motion on A.W.'s belly until she fell asleep. When both girls were sleeping, Dodgen covered them with a light blanket and left them on the couch. He explained that his earlier statement about bringing the girls back to the bedroom was inaccurate. Dodgen denied that he had improperly touched A.W.
The jury acquitted Dodgen of first degree child rape, but found him guilty of first degree child molestation. The court imposed a mid-range minimum sentence of 60 months.
DECISION
Dodgen contends that the trial court erred in finding A.W. competent to testify. "The competency of a youthful witness is not easily reflected in a written record, and we must rely on the trial judge who sees the witness, notices the witness's manner, and considers his or her capacity and intelligence." State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1174 (2005). Consequently, we review the trial court's determination of competency for a manifest abuse of discretion. Id.
A child witness is competent if he or she (1) understands the obligation to speak the truth on the witness stand; (2) has the mental capacity, at the time of the occurrence concerning which he or she is to testify, to receive an accurate impression of it; (3) has a memory sufficient to retain an independent recollection of the occurrence; (4) has the capacity to express in words his or her memory of the occurrence; and (5) has the capacity to understand simple questions about the occurrence. State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).
After considering testimony at the competency hearing, the defense interview of A.W., and A.W.'s interview with Nova Robinson, a child interview specialist, the trial court found A.W. competent to testify and made detailed findings in support of all five Allen factors:
She is not a perfect witness, but overall, the totality of the interview, particularly the defense interview, I think she is a fairly precocious child for her age. She demonstrated that she was able to give a fairly complete and accurate account of the event. Though she is young, I believe, in general, she has the capacity to reach just impressions about the facts and relate them if she wished to do so. So I am finding her to be competent.
Obligation to Speak the Truth
Although A.W. initially responded "no" when asked whether she had "learned about the difference between telling the truth and telling a lie," she demonstrated an ability to understand the difference between telling the truth and lying when asked certain concrete questions, including questions about clothing and hairstyles. She acknowledged that making up stories or pretending could be lies and that telling lies was "bad" and telling the truth was "good." A.W.'s mother described A.W. as generally truthful.
Mental Capacity to Receive Accurate Impression of the Abuse
As the trial court noted, A.W. was able to communicate significant details about events and circumstances at the time of the alleged abuse in July 2005, including details about those present in Dodgen's house, where the abuse occurred, school activities, and other neighbors. A.W. also gave consistent Page 6 accounts of acts of abuse. A child's ability to recount such contemporaneous details suggests an ability to accurately perceive events. See Woods, 154 Wn.2d at 620-21.
Independent Recollection of the Abuse
A.W.'s disclosure of the abuse was made spontaneously one evening in response to Dodgen's voice on a telephone answering machine. A.W. was also able to describe the incident with significant detail in her own words. Dodgen correctly notes that A.W.'s ability to recall certain details was inconsistent and that she responded to a number of questions by indicating that she did not know or had forgotten. But her descriptions of the primary incident remained generally consistent during multiple disclosures. See State v. Perez, 137 Wn. App. 97, 104, 151 P.3d 249 (2007) (despite "flights of fancy" and inconsistencies, trial court did not abuse its discretion in finding four-year-old child competent to testify).
Capacity to Express in Words a Memory of the Alleged Occurrence/Capacity to Understand Simple Questions About the Occurrence
Questioning during the defense interview established that A.W. was able to recall and describe the occurrence in her own words. A.W. then responded appropriately to a series of questions asking for additional details about the incident.
In challenging A.W.'s competence to testify, Dodgen relies on several specific areas of questioning. During the course of the defense interview, defense counsel elicited answers from A.W. about defense counsel's non-existent dog peeing on the carpet and about A.W. sleeping during the alleged abuse. Dodgen also points to A.W.'s statement during the competency hearing that the deputy prosecutor had "poked" the trial judge in the eye.
The trial court recognized during her competency ruling that A.W. displayed some confusion "if the questioning particularly is done in hypothetical form or assumption form or she may take things more literally or get a word confused where an adult may not." But the court concluded that at least some of the confusion and inconsistency could be traced to ambiguous questioning. For example, the court noted that defense counsel had begun the questioning about the phantom puppy by informing A.W. that "[w]e also have a puppy dog" and that A.W. at one point acknowledged she did not know defense counsel's puppy. The court also recognized that the deputy prosecutor's question about poking the judge in the eye had been preceded by two gestures, possibly confusing A.W. Finally, the court found that despite A.W.'s statements about sleeping, the crux of her explanation was that she had been trying to sleep and that Dodgen's touching had kept her awake.
In summary, the record supports the trial court's determination that all five Allen factors were satisfied here. The trial court did not abuse its discretion by finding A.W. competent to testify
Dodgen next contends that the trial court erred in admitting A.W.'s hearsay statements because they were not corroborated. But RCW 9A.44.120(2)(b) requires corroboration only if the child does not testify. Because the trial court did not abuse its discretion in finding A.W. competent to testify, we do not address this issue. See Woods, 154 Wn.2d at 623 n. 1.
Dodgen also asserts that the hearsay statements were not reliable under the nine factors set forth in State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). But in finding the statements reliable, the trial court supported its decision with a detailed analysis of all of the Ryan factors. On appeal, Dodgen has not addressed any of the Ryan factors or identified any error in the trial court analysis or findings. Accordingly, he has not identified any abuse of discretion in the trial court's ruling. See Woods, 154 Wn.2d at 623 (trial court's ruling on admission of hearsay under RCW 9A.44.120 is reviewed for an abuse of discretion).
Dodgen next contends that this court should reevaluate the application and constitutionality of RCW 9A.44.120 in light of the United States Supreme Court decision in Crawford v. Washingtonm, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In Crawford, the court held that the admission of testimonial hearsay requires a showing that the declarant is unavailable and a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. But Crawford has no application where, as here, the declarant testified and was subject to cross-examination. See Perez, 137 Wn. App. at 97; State v. Hopkins, 137 Wn. App. 441, 452, 154 P.3d 250 (2007); see also State v. Shafer, 156 Wn.2d 381, 128 P.3d 87 (2006) (upholding constitutionality of RCW 9A.44.120 in light of Crawford). Contrary to Dodgen's suggestion, a child witness who is unable to remember relevant events or prior disclosures is not unavailable for confrontation clause purposes under Crawford. State v. Price, 158 Wn.2d 630, 651, 146 P.3d 1183 (2006).
Dodgen next contends that the trial court violated his constitutional right of confrontation by limiting his ability to cross-examine A.W.'s mother. A criminal defendant has a constitutional right to cross-examine and confront opposing witnesses. Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). But the trial court has discretion to limit the admission of such testimony under the rules of evidence. See State v. Rupe, 101 Wn.2d 664, 686, 683 P.2d 571 (1984).
During a pretrial interview, Dodgen learned that Tiffany Williams had witnessed her father sexually molest her friends when she was a young child. Dodgen maintained that he should be permitted to introduce evidence about the identity of the abuser, the specific nature of the acts Williams had observed, and the defense's claim that William's had originally lied to defense counsel by stating she had witnessed only a single incident of abuse. He argued that these circumstances established a motive for Williams to fabricate or exaggerate the claims of her daughter in order to see "justice done" and were therefore relevant to her credibility.
The trial court permitted Dodgen to cross-examine Williams about her observations of the abuse. Williams then testified that beginning when she was five years old, she had witnessed someone repeatedly molest her friend over a period of years. Williams acknowledged that the observations were very disturbing and that she had not immediately reported the abuse. During closing argument, defense counsel argued at length that Williams' exposure to the incidents affected her credibility.
The trial court ruled that the identity of the abuser and the specific acts of abuse, were at best marginally relevant to Dodgen's theory and potentially confusing to the jury and that the danger of unfair prejudice substantially outweighed any probative value. See Evidence Rule (ER) 403. Dodgen has not presented any argument on appeal suggesting how the exclusion of these specific details hampered his ability to challenge Williams' credibility. Moreover, defense counsel's claim that Williams had originally lied about the number of incidents of abuse would have required the parties to explore a collateral matter in some detail. Williams explained that she had simply misunderstood defense counsel's original question to refer to the number of her father's convictions, rather than to the number of incidents of abuse she witnessed. The trial court did not abuse its discretion in limiting Dodgen's cross-examination on these matters.
Dodgen contends that the trial court also improperly limited the testimony of Dr. John Yuille, a defense expert on child interview techniques. The trial court has broad discretion to determine the scope of expert testimony. Christensen v. Munsen, 123 Wn.2d 234, 241, 867 P.2d 626 (1994); see also ER 702.
Although the precise nature of the evidentiary challenge on appeal is unclear, Dodgen appears to contend that the trial court erred in not permitting Dr. Yuille, who was otherwise permitted to testify about leading questions, to testify about all four "boundary conditions" that increase the likelihood that leading questions will result in false memories in children. Dr. Yuille identified these four conditions as (1) the relationship between the interviewer who is making the suggestions and the child; (2) the repetition of the suggestions; (3) the plausibility of the suggestions; and (4) the age of the child. Although frustrated with defense counsel's failure to provide a timely offer of proof, the trial court nonetheless considered the proposed testimony and ruled that Dr. Yuille could not testify about plausibility or about the child's age, but could testify fully about the remaining two conditions in conjunction with leading questions.
Dr. Yuille himself indicated that the plausibility condition was not relevant in this case because "[the plausibility condition] only addresses the very improbable or extremely unlikely suggestion." And contrary to Dodgen's contention, State v. Willis, 151 Wn.2d 255, 87 P.3d 1164 (2004), does not mandate the admission of expert testimony about the susceptibility of young children to suggestion. Although the court in Willis determined that evidence about the effect of certain interview techniques on children's memories is admissible, the court reaffirmed "the general principle that younger children are more susceptible to suggestion is `well within the understanding of the jury.'" Willis, 151 Wn.2d at 261 (quoting State v. Swan, 114 Wn.2d 613, 656, 790 P.2d 610 (1990)). The trial court did not abuse its discretion in limiting Dr. Yuille's testimony.
Affirmed.