State v. Smith

Quinn-Brintnall, J.

(concurring in judgment) — The main question before this court is whether the trial court erred in determining that J.S. was unavailable to tell her story to the jury directly. Although I am unable to agree with Judge Armstrong’s conclusion that the plain language of RCW 9A.44.150(1) allows only the State to request video testimony, I note the trial court fully considered the defendant’s request and I concur in the judgment. I base my opinion on *592the fact that J.S.’s out-of-court statements, some of which were spontaneous or made during the course of medical examinations, reveal sufficient indirect evidence of abuse to be admissible and that the record clearly demonstrates J.S. was unavailable.

To admit a child’s out-of-court reports of abuse pursuant to RCW 9A.44.120, the State must prove the child is competent, the child’s statements are inherently reliable and corroborated, and the child is unavailable. See State v. Ryan, 103 Wn.2d 165, 171, 691 P.2d 197 (1984) (unavailability requires prosecutor’s good faith effort to obtain witness’ presence at trial); State v. Swan, 114 Wn.2d 613, 623, 790 P.2d 610 (1990) (reliability depends on the comments and circumstances surrounding the statement; corroboration includes indirect evidence, such as a child victim’s precocious knowledge of sexual activity, a child’s nightmares and psychological evidence). See also State v. Bouchard, 31 Wn. App. 381, 386, 639 P.2d 761 (1982) (evidence of prior sexual assault may be admitted if its relevance outweighs prejudice.). The competency of a witness depends on her ability to accurately perceive, recall, and relate facts. State v. Karpenski, 94 Wn. App. 80, 100-01, 971 P.2d 553 (1999).

Competency

In this case, all witnesses, including Smith, testified J.S. was an honest, intelligent, and precocious seven-year-old child. Moreover, she was not known as a child who told lies. Thus, while not stipulated, there was little question of J.S.’s competency to accurately recall and relate the events.

Inherent Reliability of Statements

J.S. and her two brothers were left at their aunt’s home on November 29,1998, supposedly for an hour. Their aunt’s friend was watching the group of children. After they had been there for more than six hours, the friend began to “reassure” J.S. and her brother that their mother and Smith (the defendant) would soon arrive to take them home. J.S.’s older brother became agitated and indicated he *593did not want to go home. He told the friend Smith had hit him with a belt. He showed her a belt mark on his body.5

The friend asked J.S. whether Smith had ever hit her. J.S. replied “not only hits.” 1 Suppl. Report of Proceedings (RP) at 80. J.S. did not want to say anything in front of her aunt and indicated that she did not want to hurt her aunt. So the friend, herself a victim of abuse as a child, took J.S. into a bedroom to continue the conversation. The Mend first described J.S.’s reluctance to disclose.

At first she wouldn’t talk. She started sucking her thumb. Fidgeting and crying. I told her — and she told me she’d get in trouble. ... I said, “You won’t get in any trouble.” . . . “You mean it?” And, I told her there’s — I wouldn’t let anything happen to her. . . . She looked at me, and she’d look down, she’d look at me, she’d look down. She — cuz [sic] she was crying a lot.

1 Suppl. RP at 81. After being reassured, J.S. disclosed the actual events.

She told me that — well, first I asked her if he ever touched her — if Mike ever had touched her. She told me, “Yes.” I asked her if it was on the clothes or under the clothes. . . . She — at first she said, “Yes.” . . . And, I said, “Where?” And, she pointed below the waist, and I asked her again if it was — I asked her again if it was under the clothes, and she told me, “Yes.” I also — then I asked her if he made her touch him, and she wouldn’t answer me. And, I asked that — I don’t exactly know how many times I asked that question throughout our conversation. And, then, she proceeded to tell me that, “White stuff came out of it.”

1 Suppl. RP at 82. Lastly, J.S. related to the friend her fear that her mother would not believe her.

I’m calling the police. She’s crying. She’s scared to death. Didn’t want to go home. Told me, “Mom wouldn’t believe her.” . . . She said that he said — she said that Mike would spank her if she told anybody. That’s why she wouldn’t talk to begin with. ... I asked her if she tried talking to mom. She told me, “No.” *594“Mommy didn’t listen when she told her that he hit her — hit em.”

1 Suppl. RP at 83.

Detective Dills from the Jefferson County Sheriff’s Office interviewed J.S. on December 2, 1998, using various child interview aids. After discussing safe and unsafe touching, the detective asked J.S. if anything like that had ever happened to her. She said “yes.” When asked to tell about it, she told the detective she had been touched by two separate individuals. One of them was the defendant, Smith.

J.S. indicated the molestation occurred in the bedroom her mother shared with Smith. She described the events both preceding and following the molestation. The detective recalled the specific account as follows:

[S]he put her head down, and she opened her mouth and stuck her tongue out, and she went like, this, and she made like a licking motion from — from—with her chin down to her chest, her head tipped all the way up, and then she took her finger and she put it on her . . . crotch, and she ran her figure (sic) all the way up to her mouth. . . . [A]nd then she said. . . “and, then, he did, this,” and she opened her mouth, and she opened it as wide as she could, and she stuck her finger back in the back of her throat until she gagged, and then she took her hand out of her mouth. . . . [A]nd she was telling me that this was with his private in her mouth. And, um, — and I said, “Well, did his private do anything?” . . . And she said that — that, “White stuff came out.” And, I asked her how she knew it was white, and she told me it was daytime and she could see it. ... I [asked her] did he say anything about telling or not telling, and she said, “Yes, he said he would spank me with a belt just like he did Joseph.”

2 Suppl. RP at 106-09 (report to Detective Dills several days after molestation).

J.S. disclosed similar facts to the specialized sexual assault nurse examiner three weeks after the incident. She said:

Mike was alone with her, and took her clothes off in bed, and laid on her, and touched her private parts. “Child reports to us *595that Mike put his dick in her mouth and yucky stuff that was white came out of his dick.” She told us this was around Thanksgiving time, and that she told her mom when her mom came home. She said that, “Mike’s dick went by her vagina, and it hurt for only a second, and there was no blood.” Um, the child also told us that she was not sure if the white stuff got on her vagina, and she thought that this only happened one time. And, then, [J.S.] proceeded to spontaneously demonstrate the yucky stuff that was in her mouth by spitting all over the exam floor, and. . . she actually got off the exam table and proceeded spitting on the exam floor, and told us that she was “showing us the white sticky stuff that came out of Mike’s dick.”

2 Suppl. RP at 161-62 (report to nurse).

Two months later, J.S. spontaneously repeated the account of oral sex with her therapist who was not interviewing her concerning the events.

Later on, it was the end of the session, and we were playing, and she was talking about good things at her foster mom’s house, um, and she talked about that they had this really great chocolate pudding for desert (sic) last week, and that there was this — this good white stuff on the top of it, and was mixed in with it, and she looked at me, um, and I had — I don’t know what expression I had on my face, but she looked at me, and she said, “Oh, no, Lisa, it’s not like the white stuff that Mike put in my mouth. It was really good.”

2 Suppl. RP at 136-37 (report to therapist).

J.S. gave consistent accounts, both spontaneously and upon questioning, over the course of two months. Her account of the molestation indicated it was not the result of coaching, including her reference to gagging and her recitation of events before and after. Even though she was unable to give a specific date of the molestation, she indicated it had occurred sometime around Thanksgiving, November 26, 1998. Based in part on the testimony set out above, the trial court found J.S.’s out-of-court reports and behaviors were reliable and the statements corroborated by indirect proof of the abuse.

*596In her dissent, Judge Hunt states, “And there is no indirect evidence of abuse, such as the child victim’s precocious knowledge of sexual activity, Swan, 114 Wn.2d at 623, because J.S. had been molested previously. 2 Suppl. RP at 103.” Dissent at 597 n.6. While it is true that J.S. had been molested previously, the record amply demonstrated that J.S. differentiated between the two incidents. From reports of the perpetrator, law enforcement and medical interviewers to whom J.S. made the reports were aware of the fall extent of the previous molestation and that it had not involved either ejaculation or oral sex, which J.S. reported this time. Applying the Swan analysis to the record in this case reveals indirect evidence of abuse sufficient to corroborate the out of court reports.

Unavailability of Child

In my view, this record discloses the defendant’s request for video testimony was carefully considered by the trial court. Specifically, the defense requested: “I would remark that we do have the facilities in the District Courtroom that does — does have video tape communication in the jail wherein if the child were out there and made comfortable we could all view her.” 1 Suppl. RP at 17.

Smith’s request that the court use the closed circuit video equipment available in the district court clearly was not an acceptable option. First, the testimony of the social worker and therapist did not establish that J.S. would be able to testify via video. Secondly, the district court equipment was not set up to record from the witness chair and the district court courtroom accommodated only six jurors. The existing technology might have been satisfactory if the defendant waived his right to be present and he were the one to view the proceedings from the jail. As was his right, he declined to do this. But most importantly, use of the equipment as the defendant requested would have required the child to be in the jail. The trial court did not err in refusing to grant the defendant’s request for the use of the district court’s video equipment.

Given the nature of the defendant’s request below and *597the evidence on this record, it is clear that a traumatized child who is unable to even completely enter the courtroom would likewise be unable to testify by video from inside the jail. Thus, she is legally unavailable for purposes of the child hearsay statute.

On this record, I concur in the result reached by Judge Armstrong.

Smith admitted hitting the eight-year-old boy for pooping in his pants but claimed that he had swatted him with his hand eight times.