IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
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Respondent, ]
DIVISION ONE
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DAYLON ALBERT GEPNER, ; UNPUBLISHED OPINION
Appellant. ) FILED: June 8. 2015 V.O O'"''
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Spearman, C.J. — Daylon Gepner was found guilty of one count of child
molestation in the first degree. He appeals, arguing that the trial court erred in
finding a child witness competent to testify and admitting child hearsay. Finding
no error, we affirm.
FACTS
Daylon Gepner resided with his father, Kelly Gepner, his stepmother
Wendy Gepner, and his step-brother D.W. in Granite Falls, Washington. On
October 30, 2012, Wendy found Gepner, age sixteen at the time, and her son,
D.W., age eight, sitting close together under a blanket on the family's couch. She
found the behavior odd because of the way that they were sitting, and asked
them to get up. When they did, Wendy noticed that D.W.'s pants were undone.
Gepner wrapped the blanket around his waist and moved to a different couch.
Wendy confronted Gepner about what she had seen, and after an argument,
Gepner left the house.
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Wendy said to D.W., "[pjlease don't lie to me. I need to know what
happened. Did he touch you?" Verbatim Report of Proceedings (VRP) (04/29/14)
at 110. D.W. responded that Gepner had touched him. D.W. spoke with his
mother later in the evening and he told her about another time that Gepner had
touched him and had tried to penetrate him.
D.W. was taken to the hospital to be examined the following day. At some
point D.W. told his mother that Gepner had touched his private parts numerous
times during the past two years, beginning when Wendy began dating Gepner's
father. Wendy asked D.W. if Gepner had touched her other son, CM., as well,
and D.W. said that he had. CM. testified at trial that Gepner had never touched
him inappropriately.
Later that day D.W. spoke with a sexual assault nurse examiner and told
her that he was there because Gepner had tried to touch his private parts the
night before, and that Gepner had subjected him to masturbatory and penetrative
activity before. D.W. indicated that he was not in any pain at that time, and
declined to undergo specific physical examinations. The following day D.W. was
interviewed by a child interview specialist, during which he wrote that his brother
had "tried to touch [him] in [his] privates." VRP (4/29/14) at 90.
On April 24, 2014, Gepner was charged with one count of child
molestation in the first degree, two counts of rape of a child in the first degree,
and two counts of attempted rape of a child in the first degree. At the
adjudication, the court heard testimony from D.W., D.W.'s mother, Wendy, child
interview specialist C. Webster, registered nurse T. Phillips, Snohomish County
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Sheriff's Office Detective J. Ross, C M., and Gepner's father Kelly. Over
Gepner's objections, the trial court permitted Wendy and Ms. Phillips to testify
about D.W.'s out-of-court statements, and admitted D.W.'s recorded statements
to Ms. Webster. The trial court also found D.W. competent to testify.
Gepner was found guilty of child molestation in the first degree. On June
2, 2014, Gepner was sentenced to 30-40 weeks institutional placement with the
Washington State Department of Social and Health Services, Division of Juvenile
Rehabilitation. The trial court also imposed a no-contact order against Gepner on
behalf of D.W.
DISCUSSION
We first address the issue of D.W.'s competency, since a declarant's
competency is a precondition to admission of his hearsay statements. State v.
Ryan, 103 Wn.2d 165, 173, 691 P.2d 197 (1984). Competency of a witness is a
matter to be determined by the trial court within the framework of RCW 5.60.050.
]d. at 172. Under the statute, "[c]hildren under ten years of age, who appear
incapable of receiving just impressions of the facts, respecting which they are
examined, or of relating them truly," will be considered incompetent to testify.
RCW 5.60.050(2), Laws of 1986, Ch. 195, § 2. The trial court is tasked with
determining the witness's ability to meet the statutory requirements, through
seeing the witness, noticing his or her manner, and considering his or her
capacity and intelligence. State v. Allen. 70 Wn.2d 690, 692, 424 P.2d 1021
(1967). The determination of competency lies within the sound discretion of the
trial court and will not be disturbed on appeal absent a manifest abuse of
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discretion. ]d_. On appeal, we may examine the entire record in reviewing the
competencv determination. State v. Woods. 154 Wn.2d 613, 617, 114 P.3d 1174
(2005).
The test for a child's competency as a witness consists of the following:
"(1) an understanding of the obligation to speak the truth on the witness stand;
(2) the mental capacity at the time of the occurrence concerning which he is to
testify, to receive an accurate impression of it; (3) a memory sufficient to retain
an independent recollection of the occurrence; (4) the capacity to express in
words his memory of the occurrence; and (5) the capacity to understand simple
questions about it." Allen, 70 Wn.2d at 692.
Gepner argues that the trial court erred in finding that the second and third
Allen factors were satisfied. Br. of Appellant at 18. Gepner argues that D.W. did
not have the mental capacity to perceive other alleged incidents of abuse
because he did not remember specific locations or times when they occurred.
Gepner also argues that D.W. did not have an independent memory of the event
in the living room because his account of that event contained multiple
inconsistencies. The State argues that the record demonstrates otherwise.
Inconsistencies in a child's testimony go to weight and credibility,
however, not to competency. State, v. Kennealy, 151 Wn. App. 861, 878, 214
P.3d 200 (2009). We place particular reliance on the trial court's judgment in
assessing a child witness's competency. Id. Here, D.W. demonstrated that he
had the mental capacity at the time of the event to accurately perceive what was
happening to him. D.W. may have been confused about what incidents occurred
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when and where, but the record supports the trial court's finding of no fault with
D.W.'s recollection of events that took place between March 2012 and October
30, 2012. We hold that the trial court did not abuse its discretion in finding that
D.W. was competent to testify.
Gepner next argues that D.W.'s hearsay statements were inadmissible
because they lacked sufficient reliability as required by RCW 9A.44.120(1).
Under RCW 9A.44.120, a statement made by a child under ten years old
describing acts of sexual contact or physical abuse, is admissible if:
(1) The court finds, in a hearing conducted outside the
presence of the jury, that the time, content, and
circumstances of the statement provide sufficient indicia of
reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: PROVIDED, That when
the child is unavailable as a witness, such statement may be
admitted only if there is corroborative evidence of the act.
The decision to admit child hearsay statements is reviewed for an abuse of
discretion. Woods. 154 Wn.2d at 623. A trial court abuses its discretion only
when its decision is manifestly unreasonable or is based on untenable reasons or
grounds. Statev.C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003).
The reliability of a statement admitted under the child hearsay statute
must be found in reference to circumstances surrounding the making of the out-
of-court statement, and not from subsequent corroboration of the criminal act.
Ryan. 103 Wn.2d at 174. The factors applicable to determining the reliability of
out-of-court declarations are (1) whether the child had an apparent motive to lie;
(2) the child's general character; (3) whether more than one person heard the
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statements; (4) the spontaneity of the statements; (5) whether trustworthiness
was suggested by the timing of the statement and the relationship between the
child and the witness; (6) whether the statements contained express assertions
of past fact; (7) whether the child's lack of knowledge could be established
through cross-examination; (8) the remoteness of the possibility of the child's
recollection being faulty, and (9) whether the surrounding circumstances
suggested that the child misrepresented the defendant's involvement. Id. at 175-
76. No single factor is decisive; the factors must be "substantially met" before a
statement will be considered reliable. Kennealv. 151 Wn. App. at 881.
Gepner first argues that D.W. had a motive to lie in order to keep his
mother's anger directed at Gepner, and not himself. The State argues there is
nothing in the record that suggests D.W. was interested in getting anyone in
trouble or avoiding his mother's anger. The focus of the inquiry on this factor is
"whether the child was being truthful at the time the hearsay statements were
made." State v. Gribble. 60 Wn. App. 374, 383, 804 P.2d 634 (1991). In Ryan,
the trial court found that the child declarants had motive to lie because "each
child initially told a different version of the source of the candy they were not
supposed to have." 103 Wn. 2d at 176. In State v. Griffith. 45 Wn. App. 728, 739,
727 P.2d 247 (1986), the victim initially accused her father, and later alleged that
her uncle had assaulted her. The trial court found that she had an apparent
motive to lie because she testified that "Uncle Jimmy would hurt her father if she
did not say [her father] did it. ... Id.
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In State v. Leavitt. 111 Wn.2d 66, 74, 758 P.2d 982 (1988), the defendant
testified that the child had motive because she wanted her mother to assume full-
time care of her and made the allegations to convince her mother to do so. The
state Supreme Court found that while the testimony "suggested] a motive to lie,"
it declined to find such motive because "it would be more reasonable for the child
to lie about her day-to-day treatment from her aunt if she wanted her mother to
resume care of her." jd. The court was also persuaded by the fact that the child
first complained to her aunt, and not her mother, and because of her young age
and graphic descriptions of sexual contact, it found it unlikely that she would
have fabricated the events. Id.
Gepner argues that we should find motive to lie based on Wendy's anger
at Gepner and her testimony that she observed the boys arguing and other
changes in their behavior when she and D.W. moved into the house. We agree
with the State that this is insufficient to show that D.W. had motive to lie. There is
no evidence in the record that suggests that D.W. was trying to avoid his
mother's anger or keep it directed at Gepner.
Gepner also argues that the trial court erred when it found that D.W.'s
character had some indicia of reliability. He argues that the trial court disregarded
evidence that D.W. had wrongly alleged that Gepner had inappropriately touched
his half-brother CM. and that CM. had done the same to D.W. The State argues
that D.W.'s general character was good and the record supported that he had no
problems with dishonesty and knew the difference between a truth and a lie.
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According to the State, the trial court is in the best position to judge a witness's
reliability and this court should not disturb its findings on appeal.
We agree with the State. The basis for this factor is whether the child has
a reputation for telling the truth. State v. Lopez , 95 Wn. App. 842, 853, 980 P.2d
224 (1999). In State v. Karpenski. 94 Wn. App. 80, 122, 971 P.2d 553 (1999),
abrogated on other grounds by State v. C.J.. 148 Wn.2d 672, 63 P.3d 765
(2003), the trial court found the child's hearsay statements to be unreliable where
each statement of abuse "came after numerous equivocal responses" and were
"accompanied by highly inconsistent responses demonstrating an extremely
confused state of mind." Here, the only evidence in the record that suggests that
D.W. was not telling the truth were his allegations, later recanted, that his half-
brother had also touched him inappropriately, and that the half-brother had also
been abused by Gepner, which were denied. The record also shows that D.W.
knew the difference between a truth and a lie and that he had never had
problems at home or at school with telling the truth. The trial court did not err
when it found that D.W. had no "propensity to lie." CP at 42.
Gepner argues that D.W's statements were not spontaneous because
they resulted from leading or suggestive questions. Gepner claims that all of the
statements are unreliable because Wendy initially proposed the conduct to D.W.
and he agreed to it. The State contends that the question was not suggestive,
and even if it were, the answer was still spontaneous.
For purposes of determining reliability of a statement made by an alleged
child victim of sexual abuse, "any statements made that are not the result of
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leading or suggestive questions are spontaneous." In re Dependency of S.S..
61, Wn. App. 488, 497, 814 P.2d 204 (1991). Questions such as whether
"anybody had touched [the child] in her private parts," are "not leading and in no
way suggested an answer." State v. McKinnev. 50 Wn. App. 56, 59, 63, n.4, 747
P.2d 1113(1987). The definition of "spontaneous" for child hearsay purposes
also "considers the entire context in which the child makes the statement." State
v. Henderson. 48 Wn. App. 543, 550, 740 P.2d 329 (1987).
In Henderson, the child told the detective that her father rubbed her vagina
with his hand. He asked her if it hurt and she said yes. When he asked her why it
hurt, the child responded "[h]e sticks his fingers in me." jd. at 546. Henderson
argued that the child's response to the latter question was inadmissible because
it was made in response to the detective's questioning and therefore, not
spontaneous. We rejected the argument, concluding that the question was
neither leading nor suggestive and that the child had volunteered the information.
Id, at 550. Similarly, in State v. C.M.B.. 130 Wn. App. 841, 849, 125 P.3d 211
(2005), we found that the child's statements were sufficiently reliable even
though the mother asked "'[Y]ou didn't touch each other in a bad way, did you?'"
and admitted that she pressured her son to tell her what happened. She also
testified that she did not ask any clarifying questions, but "'was just letting him
talk to [her].'" Id
Gepner cites to In re Dependency of A.E.P.. 135 Wn.2d 208, 232-33, 956
P.2d 297 (1998) to support his argument that Wendy's "leading questioning of
D.W. suggests that all of the statements D.W. made are unreliable." Brief of
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Appellant at 12. In that case, the trial court considered whether the child's
minimal sexual knowledge could have been obtained by her interactions with
other children or her caretaker's repeated questioning of her about any possible
abuses. These 12-15 estimated interrogations, each as long as 45 to 90 minutes,
involved only closed and leading questions. Here, Gepner submits only the
occurrence of Wendy asking D.W. whether or not Gepner "touched him,"
immediately after discovering them together. We find that this single incident of a
non-leading question insufficient to cause us to question the spontaneity of D.W's
statements.
Gepner argues that D.W.'s statements were not reliable because they
were made to Wendy, D.W.'s mother, a non-neutral party, and someone with
whom he had a relationship. He also argues that the surrounding circumstances,
including Wendy's shock and anger at the discovery, made D.W.'s statements
unreliable. In Leavitt. the court noted the fact that the child's statements were
made to a social worker with whom she had no prior relationship with — "the
initial relationship was neutral," weighed in favor of the statements' reliability. 111
Wn.2d at 75.
Gepner merely speculates that the confrontation between him and Wendy
caused D.W. to make statements confirming her suspicions. But other than
speculation, Gepner points to nothing in the record to show that Wendy's anger
at Gepner would cause D.W. to falsely state what had occurred between them.
The record shows no history of issues between D.W. and Wendy, and D.W.
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testified that she was the only person he wanted to tell about the ongoing
conduct.
We hold that the trial court did not err in holding that D.W.'s statements
were admissible under RCW 9A.44.120.1
Affirm.
WE CONCUR
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A™)3- —
1Gepneralso argues that the statements made to the forensic nurse were not admissible
under the exception for medical diagnosis and treatment. ER 803(a)(4) provides an exception for
"[statements made for purposes of medical diagnosis or treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."
Because we find that the trial court properly admitted D.W.'s statements under the child hearsay
exception, we do not address their admissibility under ER 803(a)(4).
11