Opinion
No. 37938-4-II.
January 12, 2010.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-8-00952-1, Katherine M. Stolz, J., entered June 27, 2008.
Affirmed by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
S.B. appeals her adjudication of guilt in juvenile court for three counts of first degree child molestation and two counts of first rape of a child, arguing that the juvenile court erred in admitting child hearsay evidence and that the court denied her constitutional right to a jury trial. We affirm.
FACTS
Dan Buford and Tina Burrell, who divorced in 2003, are the parents of J.B. and T.B., born August 20, 1999, and February 16, 1997, respectively. S.B., born August 1, 1993, is Tina's child from a prior relationship. Dan and Tina had custody arrangements that changed over time, but J.B. and T.B. split time between their two homes. Dan and Shayla Buford started dating in August 2002. They moved in together in August 2003 and married on June 5, 2004.
We use some first names, intending no disrespect.
We derive the facts from evidence adduced at trial.
There is a long history of inappropriate physical contact between T.B., J.B., S.B., and other children. Shayla testified to a series of concerns regarding the children's behavior, including their bathing habits and physical play. One example stems from a family trip with Shayla, Dan, T.B., J.B., and another family. Shayla's sister found J.B. and her cousin alone in a room playing together with J.B.'s pants off and her legs in the air, making inappropriate sexualized gestures.
In July 2006, Dan, Shayla, T.B., and J.B. went to a restaurant for dinner with friends. Dan took J.B. to the bathroom, left her there, and returned to the table. After J.B. did not return to the table for quite some time, Shayla checked in on her. Shayla knocked on the bathroom stall but J.B. did not respond. Shayla then saw that another girl was in the stall with J.B. Nothing else happened at that time and they returned to the dinner table.
On the car ride home, Shayla brought up what happened in the bathroom. J.B. then replied that the girls touched each other. Once at home, Shayla, Dan, T.B., and J.B. sat at the table to discuss their sexual behavior. Shayla and Dan asked a series of questions, such as where they learned to play this way. Although both children initially denied S.B.'s involvement, they said they learned this behavior by watching pornographic videos that S.B. played for them to watch at Tina's house. T.B. and J.B. then described how they would imitate what they saw in the videos with each other. Both children initially denied S.B.'s involvement.
Dan and Shayla separated the children and each talked to them individually. They all gathered again later and continued to talk as a group. T.B. then told Shayla, and eventually Dan, more details about inappropriate sexual contact between him and his sister, J.B. Dan ultimately grounded the children. The next day, Dan told Tina all that he had learned. They agreed to take steps to keep the children separated when at Tina's house.
Initially, the children's behavior changed. Soon thereafter, however, sexual behavior started again and Dan and Shayla asked the children more questions. J.B. and T.B. both said that S.B. was present when they were acting out sexually. Shayla asked what S.B. was doing while this was going on and J.B. said that S.B. was participating.
Dan and Shayla asked for specific details about S.B.'s involvement, and T.B. told them in explicit detail how S.B. would touch him and J.B. Dan did not punish the children. Dan told Tina what had occurred and the children continued to visit Tina's house. Days later, Dan and Shayla asked if the children were safe at Tina's home and T.B. said that he, J.B., and S.B. all went behind the Christmas tree and touched each other. T.B. told Shayla that he had sex with S.B. in her bedroom. When asked why they did not tell anyone, T.B. and J.B. both said that S.B. told them that she would not love them or be their friend if they told.
On December 15, 2006, Vicki Colosimo-Asaeli, a Department of Social and Health Services Child Protective Services investigator, interviewed T.B. and J.B. at Dan's home. J.B. told Colosimo-Asaeli that she felt safe at her dad's home but not very safe at her mom's. J.B. also described sexual contact among her, S.B., and T.B. T.B. was very uncomfortable during the interview and told Colosimo-Asaeli that he felt safe at his dad's home but not very safe at his mom's. T.B. would not discuss anything else.
On December 27, 2006, Cheryl Hanna-Truscott, a Mary Bridge Child Abuse Intervention Department nurse practitioner, examined J.B. and T.B. T.B. described watching pornographic movies starting when he was five years old. He also remembered his mom telling S.B. not to watch them. T.B. also told Hanna-Truscott about sexual contact among T.B., J.B., and S.B. T.B. also said that he had sex with most of the children of his mom's friends. Hanna-Truscott's physical exam of T.B. resulted in no physical findings. J.B. was much more talkative during her interview with Hanna-Truscott and talked about S.B. putting a bad movie on the television. J.B. said that the sexual contact happened almost daily. J.B.'s physical examination resulted in no physical findings either.
On January 9, 2007, J.B. and T.B. met with Jennifer Knight, a child therapist. Knight interviewed the children separately and both discussed past sexual contact with S.B.
By amended information, the State charged S.B. with three counts of first degree child rape and one count of first degree child molestation. RCW 9A.44.073, .083. On March 5 and 6, 2008, the juvenile court held a child competency hearing. It entered findings of fact and conclusions of law finding both T.B. and J.B. competent to testify. S.B. moved for a jury trial, but the juvenile court denied the motion.
At trial, J.B. and T.B. testified regarding S.B.'s sexual conduct. Both specifically testified about the Christmas tree incident. The juvenile court found S.B. not to have committed count I, first degree rape of a child (J.B.), but that she did commit counts II-IV, first degree child molestation (J.B.) and two counts of first degree rape of a child (T.B.). S.B. appeals.
ANALYSIS Admission of Child Hearsay Statements
S.B. contends that the juvenile court made evidentiary errors. She asserts that it erred by admitting T.B.'s and J.B.'s hearsay statements to their father and stepmother under the child hearsay statute.
We do not address S.B.'s same argument as to statements made to Knight because S.B. conceded admissibility below. RAP 2.5(a).
We reverse a trial court's admission of child hearsay statements under RCW 9A.44.120 when it abuses its discretion. State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174 (2005). The trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003).
We review the factual findings supporting the admission for substantial evidence. Substantial evidence is that sufficient to persuade a fair-minded, rational person of the truth of the premise asserted. State v. Halstien, 122 Wn.2d 109, 128-29, 857 P.2d 270 (1993). But we consider an erroneous finding harmless if it does not materially affect the trial court's legal conclusions. State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992).
Hearsay statements of children under age 10, describing actual or attempted sexual contact, are admissible in juvenile adjudications if the juvenile court determines that "the time, content, and circumstances of the statement[s] provide sufficient indicia of reliability." RCW 9A.44.120. We look to the circumstances surrounding the statement's making, rather than to later corroboration of the criminal act, to determine reliability. State v. Ryan, 103 Wn.2d 165, 174, 691 P.2d 197 (1984). The child hearsay statement's reliability depends on the nine Ryan 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) whether the statements were spontaneous, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) whether the statement contains express assertions about past facts, (7) whether cross-examination could show the declarant's lack of knowledge, (8) whether the possibility that the declarant's recollection is faulty is remote, and (9) whether the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented the defendant's involvement. 103 Wn.2d at 175-76; State v. Swan, 114 Wn.2d 613, 647-48, 790 P.2d 610 (1990). The statements must only substantially meet these factors. Woods, 154 Wn.2d at 623-24.
Motive to Lie
S.B. first contends the juvenile court erred by finding without substantial evidence that T.B. and J.B. had no apparent motive to lie. S.B. asserts that T.B. and J.B. both had a motive to lie because their parents initially punished them for denying S.B.'s involvement. S.B. also asserts that T.B.'s answers on the witness stand substantiate this, because his father grounded him after the initial denial but did not punish him once he named S.B. as the one who taught him the behavior.
The record does not support S.B.'s assertions. As the State correctly notes, the children's parents grounded them for their sexual behavior, not because they initially denied S.B.'s involvement. Nothing in the record suggests the parents told T.B. and J.B. that they would go unpunished if S.B. was involved or anything similar that might have encouraged them to lie. The juvenile court made a detailed oral ruling, noting the absence of any credible motive for the children to lie. Substantial evidence exists to demonstrate that T.B. and J.B. had no apparent motive to lie.
Spontaneity
S.B. next contends that the juvenile court erred by finding without substantial evidence that T.B.'s and J.B.'s statements "`were spontaneous as defined by the case law.'" Appellant's Br. at 1. The spontaneity requirement under Ryan is a broad one. See State v. Madison, 53 Wn. App. 754, 759, 770 P.2d 662 (1989) (statement is spontaneous even though mother was reading a book about reproduction to the child); State v. Henderson, 48 Wn. App. 543, 550-51, 740 P.2d 329 (1987) (statement is spontaneous if question is not leading or suggestive).
S.B. asserts that T.B.'s and J.B.'s statements were not spontaneous because their father and stepmother repeatedly asked about S.B.'s involvement and punished them until they named S.B. as the one who taught them the behavior. The record does not support this assertion. Although their father and stepmother eventually asked whether S.B. was involved, nothing suggests they coerced or threatened the children with punishment until they named S.B. Instead, as the State points out, the questioning did not lead or suggest and included questions such as where they learned the sexualized behavior. Substantial evidence in the record demonstrates T.B.'s and J.B.'s statements were "spontaneous as defined by the case law." Clerk's Papers at 13.
Timing and Relationship
S.B. further contends that the juvenile court erred in finding that there is nothing about the timing of T.B.'s and J.B.'s statements or anything about a relationship among the people they talked to that suggests an improper motive. S.B. again relies on her argument that the father and stepmother pressured the children to implicate her, suggesting a motive to lie.
This Ryan factor measures the relationship of the child to the witness. When the witness is in a position of trust with a child, this factor is likely to enhance the reliability of the child's statement, not detract from it. See Swan, 114 Wn.2d at 650. Here, the children made statements to their father and stepmother the same evening J.B. and T.B.'s parents discovered some inappropriate sexual behavior. As the State points out, Knight testified that delayed reporting in sexual abuse cases is a common problem. The juvenile court properly decided that this factor weighed in favor of admitting the statements.
Faulty Recollection / Misrepresenting the Defendant's Involvement
S.B. also challenges the juvenile court's findings that the possibility that J.B.'s and T.B.'s recollections were faulty is remote and that, based on the totality of the circumstances surrounding the making of the statements, there is no reason to believe they misrepresented S.B.'s involvement. S.B. speculates that the manner in which the parents asked T.B. and J.B. questions contaminated their memories. S.B. specifically calls attention to the fact J.B. had no memory of anything happening before she was five and could only describe one of two sexual acts her hearsay statements described. She also notes that T.B. was inclined to embellish, telling the nurse he had sex with nearly all of his female friends and testifying to a third never before revealed sexual act. S.B. also asserts that the parents pressured and questioned them in an outrageous fashion, rendering their recollection faulty.
S.B. cites no authority supporting this argument. Although these circumstances may detract from the reliability of the statements made, they are not compelling enough to ignore the overwhelming evidence that substantiates the juvenile court's findings. The record simply does not demonstrate the parent's questioning to be as pressured or severe as S.B. suggests. When viewed in light of the totality of the circumstances, substantial evidence supports a belief that the children's recollection was not faulty and that they represented S.B.'s involvement accurately.
The juvenile court properly found substantial evidence to meet the Ryan factors. S.B.'s argument fails.
Juvenile Right to a Jury Trial in Sex Offense Cases
S.B. also contends that article I, section 21 of the Washington Constitution guarantees her a jury trial in juvenile court. Relying on State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), she argues that Washington's constitution affords greater protection for juvenile offenders than the federal constitution.
We rejected a similar request for a juvenile jury trial in State v. Chavez, 134 Wn. App. 657, 142 P.3d 1110 (2006), aff'd, 163 Wn.2d 262, 180 P.3d 1250 (2008). Chavez notes that our Supreme Court "has long held that the state constitution does not require a jury trial for juvenile offenders." 134 Wn. App. at 664.
Nevertheless, S.B. argues that sex offense penalties under the juvenile system have shifted away from rehabilitation toward punishment, compelling jury trials. She cites Monroe v. Soliz, 132 Wn.2d 414, 427, 939 P.2d 205 (1997), for the proposition that juveniles are entitled to jury trials once their proceedings substantively resemble adult criminal trials or when juveniles are" `encumbered with the far more onerous ramifications of . . . adult conviction.'" Appellant's Br. at 25. But Washington courts have consistently held that juvenile proceedings focus on rehabilitation. See, e.g., State v. Watson, 146 Wn.2d 947, 952-53, 51 P.3d 66 (2002); Chavez, 134 Wn. App. at 664-65; State v. Meade, 129 Wn. App. 918, 925-26, 120 P.3d 975 (2005).
S.B. raises several specific arguments for how the juvenile system now substantively resembles the adult system. She asserts that (1) under RCW 13.04.011(1), a juvenile adjudication has the same meaning as conviction in RCW 9.94A.030, and they are to be construed identically and used interchangeably; (2) the Juvenile Justice Act, ch. 13.04 RCW, amendments have lengthened the minimum commitment period, added a "clearly too lenient" aggravating factor, and eliminated flexibility in imposing restitution; (3) the goals of the juvenile and adult systems have converged; (4) juveniles are increasingly housed in adult prison; (5) confidentiality and privacy have disappeared from juvenile proceedings and juvenile offenders are stigmatized just the same as adults; (6) juvenile courts invade the offender's privacy by collecting personal data, including fingerprints, DNA, and blood for HIV testing; and (7) juvenile convictions play a significant role in adult sentencing.
Washington courts have already addressed many of these arguments. There is no right to a jury simply because the State may transfer juveniles to adult facilities. Monroe, 132 Wn.2d at 419-20. Restitution is remedial in the context of a juvenile adjudication. State v. J.H., 96 Wn. App. 167, 182, 978 P.2d 1121 (1999). And the juvenile system is still rehabilitative despite the stigmas. J.H., 96 Wn. App. at 176-77. Moreover, jury trial rights do not attach merely because a sentencing court may consider juvenile adjudication criminal history at a later adult prosecution. J.H., 96 Wn. App. at 175. With regard to sex offender registration, a process exists for juveniles to be relieved from that obligation. See RCW 9A.44.140(4).
Further, there are stark differences between sentences under the juvenile and adult systems. The juvenile court here sentenced S.B. to a special sex offender disposition alternative, RCW 13.40.160(3), of 15-36 weeks per count to run consecutively but suspended as long as she complied with her sex offender treatment program and 24 months of probation. Throughout sentencing, the juvenile court expressed its primary intention was to rehabilitate S.B. The adult sentence for S.B.'s crimes would have been much more severe; whereas, adult sentencing guidelines start at 93-123 months for first degree child rape and 51-68 months for first degree child molestation. RCW 9.94A.515; RCW 9.94A.510.
S.B. provides an insufficient basis for us to deviate from our prior holdings. Significant differences remain between the juvenile and adult systems. Thus, we reject S.B.'s argument that she was entitled to a jury trial in juvenile court.
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.
QUINN-BRINTNALL, J. and VAN DEREN, C.J., concur.