                                                                             riLny
                                                                    COURT OF APPEALS DIV I
                                                                     STATE OF WASHINGTON
                                                                    2018 JUN 4 PM 12:53




 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                      )
                                           )    No. 76059-9-1
                       Respondent,         )
                                           )    DIVISION ONE
             V.                            )
                                           )
 THOMAS PIPES, SR.,                        )    UNPUBLISHED OPINION
                                           )
                       Appellant.          )    FILED: June 4, 2018
                                           )

       BECKER, J. — Appellant, convicted of one count of child molestation,
challenges the State's late disclosure of allegedly exculpatory evidence and the

trial court's determination that the child victim was competent to testify. He also

contends the trial court erred in admitting child hearsay and in excluding

evidence of alleged prior abuse by a different person. We affirm.

       During the summer of 2014, As.D lived in Monroe with her 6-year-old

daughter A.D. and A.D.'s younger brother. Because As.D commuted to work in

Redmond, the two children often stayed during the week in Bothell with Kimberli

and appellant Thomas Pipes Sr. Kimberli is As.D's mother. Pipes is her

stepfather and is thus the step-grandfather of A.D.

       When spending the night in Bothell, the two children generally slept on a

mattress on the floor of the grandparents' bedroom. The grandparents routinely
No. 76059-9-1/2


gave the children back rubs or "rubb es" at bedtime to help them get to sleep.

Kimberli and Pipes were planning to move in with As.D.

       On the evening of August 31, 2014, as As.D was tucking A.D. into bed at

home, A.D. giggled nervously and said,"'Mom, I need to tell you something."

A.D. then said that she did not want Pipes to move in. Although somewhat

reluctant, A.D. said that when Pipes gave her "rubbies," he rubbed her "girl

parts." A.D. indicated that it had happened on two occasions. A.D. responded

"no" when As.D asked if Pipes had ever "poked her butt or ... her front pee-pee."

       As.D reported the conversation to the police, who advised her to take A.D.

to the hospital emergency room. On the following day, As.D took A.D. to

Evergreen Monroe Hospital to meet with Lori Moore, a forensic nurse examiner.

       Moore asked A.D. why she came to the hospital. A.D. responded,

"because my grandpa touches me.'" A.D. said Pipes had touched her with his

hand "in my private part." When Moore asked where her private part was, A.D.

pointed to her crotch area. A.D. saic that the touching occurred in the Pipes'

bedroom. During a physical examination, Moore observed genital erythema or

redness, but no injuries. Moore could not determine the cause of the redness.

       After the hospital visit, As.D took A.D. home, where several relatives and

family friends had gathered. During the course of the evening, Danica Pornel

took A.D. upstairs to talk to her alone. Pornel was dating A.D.'s uncle and

thought of A.D. as a "little sister." At first, A.D. was shy and reluctant to say

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No. 76059-9-1/3


anything. Without providing specific details, Pornel told A.D. that she had "went

through something similar with my grandfather" and encouraged A.D. to tell her if

something was bothering her. A.D. eventually told Pornel that she was afraid of

Pipes and did not want him to move in. A.D. said that Pipes rubbed her and

"makes my body feel funny." A.D. lispered to Pornel that Pipes would put his

fingers "in her butt hole." A.D. indicated the touching occurred both over and

under her underwear.

       On September 2, 2014, A.D. spoke with Heidi Scott, a forensic

interviewer. During the interview, A.D. described how Pipes had rubbed various

parts of her body. A.D. did not want to name one of the spots that Pipes rubbed

but said it was "a real funny word" arid "embarrassing." When asked to write the

word, A.D. wrote "koh." Scott ended the interview when A.D. said she was tired.

       A.D. spoke with Scott again oli the following day. A.D. recalled that"my

grandpa rubbed all over my body" arid "it's like he's rubbing my body all at night

and he rubs my body everyday." She said that Pipes was rubbing "mostly

everywhere" and that the rubbing felt "weird." A.D. felt "kinda . . . great" about

not seeing Pipes again because she wanted him to stop rubbing her.

       On September 3, 2014, Snohomish County Sheriffs Office detectives

spoke with Pipes at the school in Everett where he taught. Pipes explained that

he and Kimberli would routinely have the children go to sleep between them in

the bed and then later move them to a mattress on the floor. A.D. would

                                            -3-
No. 76059-9-1/4


generally be next to Pipes. Pipes acknowledged that he routinely gave A.D.

"rubbies" but denied ever touching A D.'s genitals. Pipes said he had observed

A.D. stimulating her "hooch"(genital area) and "button" (clitoris) with a pillow.

Pipes said he told A.D. she was not old enough for this behavior.

        Detectives spoke with Pipes again on October 2, 2014, after he completed

a polygraph examination.' During the interview, Pipes said that he had used his

cell phone to take pictures of A.D.'s genital areas after she took a bath. During

the process, he touched A.D.'s leg "next to the labia in order to help spread the

area so he could get a good picture.' Pipes also made a video recording of A.D.

masturbating. Pipes said that he took the pictures and video in order to educate

A.D. and answer some of her questions and to show A.D.'s mother. Pipes did

not show the pictures or video to anyone and later deleted them. Pipes gave his

cell phone to the detectives for forensic testing.

        Pipes also recalled that on one occasion, he had fallen asleep on the bed

after taking some pain medication. He awoke suddenly and found A.D. rubbing

her vagina on his hand. Pipes explained that this was "the only time 1 was out of

control."




        1 Pipes' participation in the polygraph examination was not disclosed to the
jury.

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No. 76059-9-1/5


        In November 2015,just before a scheduled defense interview, A.D. told

her mother that Pipes "had licked he butt hole and she didn't think it tasted very

good." Heidi Scott conducted a third forensic interview of A.D. on November 13,

2015. During the interview, A.D. indicated that Pipes had not rubbed her with

anything other than his hand.2

        The State charged Pipes with one count of child molestation in the first

degree. Following a pretrial hearing, the trial court found that A.D. was

competent to testify and that her statements were admissible under the child

hearsay statute, RCW 9A.44.120.

        At trial, A.D. was reluctant to talk about the charged offense. She

repeatedly indicated that she had f&gotten certain details but admitted that she

was "shy" about being in the courtroom. A.D. explained that she stopped going

to the school she was attending when Pipes did "bad stuff" to her. At first, A.D.

did not specify the nature of the "bad stuff" but admitted that she had told others

about it, including her mother, Pornel, and the forensic nurses. A.D. finally

acknowledged that Pipes had made her feel "uncomfortable" when he touched

"my private parts" with his hands. A D. explained that she used her private parts




    2 The three forensic interviews   with Scott were video recorded and played for the
jury.

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No. 76059-9-1/6


for "going to the bathroom" and that Pipes had touched her privates in the

bedroom on more than one occasion.

       Detective Tyler Quick of the Snohomish County Sheriffs Office testified

that he conducted a forensic search of Pipes' cell phone. Quick was unable to

recover any deleted files from the phone's memory. Quick then provided the cell

phone to the United States Secret Service for further examination.

       A Secret Service investigator successfully recovered about 160 deleted

photographs and videos from the removable memory card of Pipes' cell phone.

The recovered photos did not include those that Pipes had described or

otherwise have any evidentiary value. The deleted photos and video could have

been stored in the cell phone's internal memory, which the investigator was

unable to access.

       The deputy prosecutor did not learn of the Secret Service report until the

State had nearly concluded its case-in-chief. She immediately notified defense

counsel of the information.

       Defense counsel moved for a mistrial. The trial court denied the motion,

finding that the State had exercised due diligence in providing the defense with

the information. The court also found that the result of the Secret Service

investigation was consistent with Pipes' testimony and did not prevent the

defense from presenting its theory of the case. The court also noted that the

defense still had time to determine if it needed to call additional witnesses,

                                            -6-
No. 76059-9-1/7


including a defense expert witness, uring its own case-in-chief. The court

indicated its willingness to consider a defense request for a continuance if it

became necessary.

       The jury found Pipes guilty as charged.

Disclosure of Cell Phone Testing

        Pipes contends that the State's late disclosure of additional cell phone

testing violated his rights under Brady v. Maryland, 373 U.S. 83,83 S. Ct. 1194,

10 L. Ed. 2d 215 (1963). His assignment of error states as follows: "The

government's suppression of Brady evidence until after trial had commenced

requires reversal." This assignment of error fails to comply with the Rules of

Appellate Procedure (RAP). RAP 10.3(a)(4) provides that a party's assignments

of error should include "[a] separate concise statement of each error a party

contends was made by the trial court, together with the issues pertaining to the

assignments of error." (Emphasis added). By avoiding the requirement to

identify action or inaction by the trial ourt, appellant presents the issue as if it

can be decided in the abstract. Assignments of error must be included in the

appellant's brief so that the reviewing court can pinpoint the time and place in the

record at which the trial court allegedly committed error, either by ruling or by

failing to rule.

        Here, Pipes has not assigned error to a trial court ruling or a failure to rule.

Rather, he formulates the issue of belated disclosure of the cell phone testing

                                              -7-
No. 76059-9-1/8


results in abstract terms as a Brady violation and essentially ignores the fact that

the issue was presented to the trial court through a motion for a mistrial. Based

on the improper assignment of error, Pipes' opening brief contains some three

pages of boilerplate citations to various Brady authorities. Pipes did not call the

trial court's attention to any of these citations, and they are not relevant to the

trial court's decision on his motion fo a mistrial.

       We will analyze this case as if appellant had made a proper assignment of

error, i.e., "The trial court erred in denying the defendant's motion for a mistrial."

A decision denying a motion for a mistrial is reviewed for abuse of discretion.

State v. Weber, 99 Wn.2d 158, 166,659 P.2d 1102(1983). A mistrial should be

granted only when the defendant has been so prejudiced that nothing short of a

new trial can insure that the defendat will be tried fairly. State v. Gamble, 168

Wn.2d 161, 177, 225 P.3d 973(2010). Only those errors that may have affected

the outcome of the trial are prejudicial. Weber, 99 Wn.2d at 165.

       Pipes moved for a mistrial on September 30, 2016. At the time, the State

had nearly completed its case-in-chief. Neither Pipes' written motion nor oral

argument mentioned Brady. Rather, Pipes relied solely on CrR 4.7(h)(7)(i),

which reads as follows:

              (7) Sanctions.
                      (i) if at any time during the course of the proceedings
              it is brought   to the attention of the court that a party has
              failed to comply with an applicable discovery rule or an order
              issued pursuant thereto, the court may order such party to

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No. 76059-9-1/9


              permit the discovery of material and information not
              previously disclosed, grant a continuance, dismiss the action
              or enter such other order as it deems just under the
              circumstances.

Granting of a mistrial is an available anction for a violation of this rule if the

State withholds evidence that is favorable to a defendant and material to his

case. State v. Jones, 33 Wn. App. 865, 870-71, 658 P.2d 1262, review denied,

99 Wn.2d 1013(1983).

       After hearing argument, the trial court reserved ruling on Pipes' motion.

Because of the trial schedule, the parties had several days to obtain some

additional materials associated with he Secret Service examination of Pipes' cell

phone.

       On October 5, 2016, after receiving copies of the recovered photos and

videos, Pipes filed a "supplemental defense motion" for a mistrial. The written

motion includes a single citation to Brady, but Pipes' legal arguments relied

solely on two Washington decisions addressing alleged discovery violations

under CrR 4.7. See State v. Dunivan, 65 Wn. App. 728, 829 P.2d 799 (trial court

did not abuse its discretion in granting new trial after State failed to disclose that

defense witness had been a paid confidential informant against defendant),

review denied, 120 Wn.2d 1016 (1992); State v. Linden, 89 Wn. App. 184, 947

P.2d 1284(1997)(trial court did not buse its discretion in denying mistrial after




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No. 76059-9-1/10


belated disclosure of defendant's prior arrest for cocaine possession), review

denied, 136 Wn.2d 1018 (1998).

       Pipes contends that the delayed disclosure of the Secret Service

examination of his cell phone prevented him from effectively raising a "false

confession" defense or challenging the admission of "lustful disposition"

evidence. The record does not support these claims.

       During his postpolygraph interview, Pipes admitted that he used his cell

phone to take photographs of A.D.'s genitals. He also said that he made a video

recording of A.D. masturbating. Pipes explained that he wanted to use the

photos and video to educate A.D. arld "to show his wife and the child's mother

what she was doing, what[A.D.] was asking and what she was doing by touching

her own privates." The trial court admitted Pipes' statements about the photos

and video for the purpose of showing his "lustful disposition." See State v. Ray,

116 Wn.2d 531, 547, 806 P.2d 1220(1991)(evidence of collateral sexual

misconduct may be admissible to demonstrate the defendant's "lustful

disposition" toward the victim).

       Clearly, Pipes would have known from the beginning of the case whether

the admissions he made about the photos and video were true or false. The

defense would also have been aware of the detectives' interrogation techniques

during the postpolygraph interview and that Detective Quick had been unable to

recover any photos or videos from the cell phone. Under the circumstances,

                                          -10-
No. 76059-9-1/11


nothing prevented Pipes from claiming that the coercive interrogation techniques

caused him to lie about taking the photographs. See generally State v. Rafay,

168 Wn. App. 734, 756-66, 285 P.3d 83(2012), review denied, 176 Wn.2d 1023,

cert. denied, 571 U.S. 867(2013).

          The evidence from the Secret Service examination of the cell phone

provided scant additional support for a "false confession" defense. Although the

federal experts recovered 160 innocuous photos and videos from the cell

phone's removable memory card, they were unable to access the cell phone's

internal memory. The additional evidence therefore remained essentially

consistent with Pipes' statements that he took the photographs and then deleted

them. The photos and video could have been saved in the cell phone's internal

memory, which no one had been able to access, or they could have been deleted

from the memory card and overwritten by subsequently saved files.

          Pipes' claim that the additional evidence would have helped him rebut or

exclude the "lustful disposition" evidence is not persuasive. Because the new

evidence did not seriously undermine the truth of Pipes' admissions, there is no

reasonable likelihood it would have had any effect on the trial court's evidentiary

ruling.

          Moreover, at the time of the isclosure, the State had not yet completed its

case-in-chief. Nothing prevented defense counsel from making effective use of



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No. 76059-9-1/12



the new evidence had she so desired. The defense could have recalled any of

the State's witnesses for additional cross-examination or asked the trial court to

reconsider its ruling on the admission of the "lustful disposition" evidence. The

trial court also offered defense counsel time to seek additional witnesses,

including an expert witness, and indicated it would consider a continuance if

necessary. The court noted that both before and after disclosure of the new

evidence, defense counsel remained free to argue that Pipes had falsely

confessed and that his admissions were not evidence of a lustful disposition.

During closing argument, defense counsel suggested only in passing that the

State's inability to find the photos that Pipes described was evidence "that that

may never have happened."

       Under the circumstances, the record fails to demonstrate any reasonable

probability that the result of the trial would have been different had the evidence

been disclosed earlier. Nor has Pipes shown that the belatedly disclosed

evidence was favorable to him or material to his case. The trial court did not

abuse its discretion in denying the motion for a mistrial.

Competency

       Pipes next contends the trial court erred in finding A.D. competent to

testify. We disagree.

       In Washington, all persons are presumed competent to testify regardless

of their age. State v. S.J.W., 170 Wn.2d 92, 102, 239 P.3d 568 (2010). The



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No. 76059-9-1/13



party challenging the competency of a child witness bears the burden of rebutting

the presumption with evidence establishing one of the statutory grounds for

incompetency set forth in RCW 5.60.050, including an inability "of receiving just

impressions of the facts, respecting which they are examined, or of relating them

truly." RCW 5.60.050(2); see also S.J.W., 170 Wn.2d at 102. The following

factors continue to guide the trial court's determination of a child witness's

competency:
       "(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."

In re Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297(1998), quoting

State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). An appellate court

necessarily accords significant deference to the trial court's competency

determination:

       There is probably no area of the law where it is more necessary to
       place great reliance on the trial court's judgment than in assessing
       the competency of a child witness. The trial judge is in a position to
       assess the body language, the hesitation or lack thereof, the
       manner of speaking, and all the intangibles that are significant in
       evaluation but are not reflected in the written record.
State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810, review denied, 114 Wn.2d

1026 (1990), disapproved on other grounds by State v. Rohrich, 132 Wn.2d 472,

939 P.2d 697(1997). We will disturb the trial court's competency determination


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No. 76059-9-1/14



only for a manifest abuse of discretion. State v. Brousseau, 172 Wn.2d 331, 340,

259 P.3d 209 (2011).

       A.D. was about six at the time she disclosed the charged offense and

eight and one-half at the time of the competency hearing. She had turned nine

by the time she testified at trial.

       At the competency hearing, A.D. freely provided details about her family,

pets, the school she was attending, her activities at school, and the city she lived

in. A.D. also demonstrated that she understood the difference between the truth

and a lie.

       At first, A.D. said she could not remember what she told her mother about

Pipes. But after first saying that she did not remember, A.D. described the

touching:
       Q. What did you tell your mom?
       A. I don't remember what I told my mom.
       Q. Okay. Did you tell your mom something that happened to you?
       A. Yes.
       Q. Okay. What did you tell her?
       A. I told her that Tom touched my privates.
       Q. Touched your privates? Okay. What do you use your privates
       to do?
       A. Going to the bathroom.
       Q. Going to the bathroom, okay. A.D., do you understand it's
       important to tell the truth?
       A. Yes.
       Q. And do you know the difference between telling the truth and
       telling a lie?
       A. Yes.
       Q. So if I told you that that piece of paper over there was green,
       would that be the truth or a lie?
       A. A lie.

                                           -14-
No. 76059-9-1/15


       Q. Okay. And do you know that it's important to tell the truth here
       today?
       A. Yes.
       Q. Okay. A.D., you said that you told your mom that Tom touched
       your privates. How did it make you feel when Tom touched your
       privates?
       A. I did not like it.
       Q. Okay. And how come you told your mom that Tom touched
       your privates?
       A. I don't know. Because I need to tell somebody.

       At the competency hearing, the trial court heard testimony that A.D. was

"articulate for her age" and that her truthfulness was "[e]xcellent." The court also

considered the video recordings of A.D.'s interviews. Based on the testimony

and other evidence, the court found A.D. competent:

               Clearly, based upon what I've seen,[A.D.] is competent.
       She's clear. She's articulate. She shows insight. She understands
       the time, place and manner of the event as she understands it.
       She has a good command of the English language. At six years
       old she also had quite a bit of a good command of the English
       language and a good understanding of what was happening.
               One thing that came to mind as I was thinking about this was
       I think it's the third interview where she asks for pencil and paper
       and begins to write things down. In terms of competency, not
       credibility, but in terms of competency, when a witness can say I
       can't tell you because I think she was embarrassed, but I can write
       it down for you, I'm not talking about in terms of credibility, is this a
       competent witness? The answer is yes.[A.D.] is a competent
       witness. . . . She clearly demonstrated she knew the difference
       between a truth and a lie.
               ... And so while I do feel that maybe the encounter with her
       -- with [Pornel] did involve some leading questions on the issue of
       competency, I don't have any doubt at this point. I'll find she's a
       competent witness.




                                             -15-
No. 76059-9-1/16



       Contrary to Pipes' contentions, the record supports the trial court's

determination that A.D. had a sufficient memory of the abuse and the mental

capacity to describe the incident in words. The trial court did not abuse its

discretion in finding A.D. competent to testify.

       Pipes correctly notes that A.D. frequently responded initially to questions

by saying that she could not remember or did not know. But her claims of a lack

of memory were often followed by a disclosure about some detail about the

touching. Inconsistencies and contradictions do not render a witness

incompetent. State v. Stange, 53 Wn. App. 638, 642, 769 P.2d 873, review

denied, 113 Wn.2d 1007 (1989). Rather, such inconsistencies go to the weight

of the testimony, not its admissibility. Stange, 53 Wn. App. at 642. The trial

court was in the best position to determine, based on A.D.'s demeanor, whether

A.D.'s reluctant disclosures reflected a lack of memory or merely her

embarrassment or unwillingness to talk about the incident in the courtroom. "A

child's reluctance to testify about specific acts of abuse does not render him or

her incompetent." State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536(1991),

review denied, 120 Wn.2d 1022(1993). We find no abuse of discretion.

       Pipes also appears to contend that evidence presented at trial

demonstrated A.D.'s incompetence. See generally State v. Brousseau, 172

Wn.2d at 347 (witness's trial testimony may be relevant to competency). In

particular, he claims that the repeated questioning "tainted" A.D.'s testimony.



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No. 76059-9-1/17



       "Competency may be challenged at any time, including at trial."

Brousseau, 172 Wn.2d at 347. Consequently, a criminal defendant may renew a

pretrial competency challenge during trial. Brousseau, 172 Wn.2d at 348. "A

child found competent at one point in time may become incompetent at trial, at

which point a litigant may raise an objection based on the child's trial testimony."

Brousseau, 172 Wn.2d at 348.

       But Pipes did not raise this objection at trial or renew his challenge to

A.D.'s competency. See Brousseau, 172 Wn.2d at 348. Nor has he

demonstrated a manifest constitutional error warranting consideration for the first

time on appeal. See RAP 2.5(a)(3); see also Brousseau, 172 Wn.2d at 335

(because the consequence of even an erroneous pretrial finding of witness

competency is that the witness will testify at trial and be subject to cross-

examination, risk of due process violation is minimal). Accordingly, we decline to

review this argument.

Child Hearsay

       Pipes contends the trial court's admission of A.D.'s statements to her

mother, the forensic nurse, Pornel, and the forensic examiner violated the child

hearsay statute. RCW 9A.44.120.

       An out-of-court statement by a testifying child victim is admissible under

RCW 9A.44.120(1) if the court finds "that the time, content, and circumstances of

the statement provide sufficient indicia of reliability." In determining the reliability



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No. 76059-9-1/18



of child hearsay, a court considers nine nonexclusive factors, including (1)

whether the declarant had an apparent motive to lie; (2)the declarant's general

character;(3) whether more than one person heard the statement;(4) the

spontaneity of the statement;(5) the timing of the declaration and the relationship

between the declarant and the witness;(6) whether the statement contains

express assertions of past fact;(7) whether the declarant's lack of knowledge

could be established by cross-examination;(8)the possibility of the declarant's

recollection being faulty; and (9) whether the circumstances suggest the

declarant misrepresented the defendant's involvement. State v. Ryan, 103

Wn.2d 165, 175-76, 691 P.2d 197(1984). The court considers the foregoing

factors as a whole; no single factor is decisive. State v. Young, 62 Wn. App. 895,

902, 802 P.2d 829, 817 P.2d 412(1991); State v. Swan, 114 Wn.2d 613, 652,

790 P.2d 610, cert. denied, 498 U.S. 1046 (1990). We review the trial court's

determination of reliability solely for a manifest abuse of discretion. State v.

Pham,75 Wn. App. 626, 631, 879 P.2d 321 (1994), review denied, 126 Wn.2d

1002(1995).

(1) Motive to Lie

       Pipes suggests that A.D. "likely. . . wanted to please her mother" by

fabricating the allegations of abuse. Pipes suggests As.D's cool relationship with

him and the lengthy periods that A.D. spent with her grandparents were the

motivating factors. Neither suggestion is persuasive or supported by the record.



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No. 76059-9-1/19



       As.D testified that before A.D.'s disclosure, she had had a "cordial

relationship" with Pipes when she lived with him. At the time of A.D.'s disclosure,

As.D was allowing both of her children to spend most weekday nights with her

mother and stepfather while she commuted to work. Nothing in the record

suggests that A.D. believed As.D disliked Pipes or had any other motive for

fabricating claims of abuse.

(2) Declarant's Character

       Pipes does not challenge the trial court's finding that A.D. was "considered

a good kid" and that "her general character is for truthfulness." Rather, he

asserts that her inconsistent accounts of the touching "suggest she has trouble

relaying information truthfully." But the fact that some of A.D.'s statements were

contradictory or inconsistent does not support an inference she had a reputation

for not telling the truth. See State v. Lopez, 95 Wn. App. 842, 853, 980 P.2d 224

(1999).

(3) Whether More Than One Person Heard the Statements

       With the exception of the forensic nurse examiner, A.D.'s statements were

made to one person. A.D. was clearly reluctant or embarrassed to talk about the

details of the incident and did not reveal all of the same details to all of the

speakers. But her general descriptions of the nature of the touching and the

rubbing and its effect on her were largely consistent. A.D.'s statements satisfied




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No. 76059-9-1/20



this factor. See Lopez, 95 Wn. App. at 853(similar statements to different

people on different occasions satisfies this factor).

(4) Spontaneity of the Statements

       A.D. spontaneously asked to tell her mother something and then said she

did not want Pipes to move in. With a little encouragement, A.D. then disclosed

that when Pipes gave her "rubbies" at bedtime, he touched her "girl parts."

Almost a year later, A.D. volunteered that Pipes had "licked her butt hole and she

didn't think it tasted very good."

       Pipes argues that the statements to the forensic nurse were not

spontaneous because they assumed Pipes had touched her. But the visit began

with the open-ended question about why A.D. was in the hospital. It was only

after A.D. volunteered that she was there because Pipes had touched her

"private part" that the nurse asked about the nature and location of the touching.

The questioning was not leading or suggestive. A child's answers for purpose of

this factor are spontaneous if the questions are not leading or suggestive.

Young,62 Wn. App. at 901.

       The trial court found A.D.'s statements to Pornel "somewhat problematic"

because they were both spontaneous and possibly "tainted." But A.D.'s

disclosure that Pipes "put his fingers in her butt hole" was not in response to a

leading or suggestive question. Pornel indicated to A.D. that she had also been

abused but did not provide any details about the touching. Under these



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circumstances, the trial court did not abuse its discretion in concluding that this

factor favored admission.

5. Timing of the Statement and the Relationship Between the Declarant and the
Witness
       Pipes contends that nothing about the timing of A.D.'s statements

supports their reliability. He also claims that statements to authority figures or

law enforcement personnel "[do] not favor reliability." Pipes provides no citation

to authority or meaningful legal argument to support these conclusory

allegations.

       As the trial court noted, A.D. likely made her initial statements shortly after

the touching occurred. The fact that the statements were made to a close family

member and family friend or occurred "in a trusting or clinical atmosphere" likely

enhances the reliability of the statements. See State v. Kennealy, 151 Wn. App.

861, 884, 214 P.3d 200 (2009), review denied, 168 Wn.2d 1012(2010); see also

State v. Lopez, 95 Wn. App. at 853(presence of professionals investigating child

abuse "enhances the reliability of the statements").

6. Whether the Statements Contain Any Express Assertion About Past Facts/ 7.
Whether Cross-Examination Could Show the Declarant's Lack of Knowledge

       A.D.'s statements contained express assertions about past facts, and she

was subject to cross-examination at trial. But Washington courts have found that

these two factors are of minimal relevance when determining the reliability of

child hearsay. See State v. Lopez, 95 Wn. App. at 852.


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8. Possibility of Faulty Recollection

       A.D. gave generally consistent accounts of the touching to multiple

witnesses. The trial court could reasonably conclude that when viewed in

context, A.D.'s expressed lack of memory was a reluctance to talk about the

touching, not a faulty memory. The trial court did not abuse its discretion in

finding that this factor weighed in favor of reliability.

9. Circumstances Surrounding the Statements

       Although A.D. supplied only a few details about the touching, she clearly

described the general location and nature of the incident. Nothing in the

circumstances surrounding the statements suggests that A.D. misrepresented

Pipes' involvement. See generally Borland 57 Wn. App. at 11 (concerns of the

8th and 9th Ryan factors are addressed in the first five factors).

       The trial court did not abuse its discretion in concluding that the Ryan

factors supported admission of the child hearsay statements.

Exclusion of Prior Abuse

       Pipes contends the trial court violated his right to present a defense when

it excluded evidence of a past allegation that another child had sexually abused

A.D. Evidence of a prior act of sexual abuse against a young child victim may be

admissible "to rebut the inference they would not know about such sexual acts

unless they had experienced them with the defendant." State v. Carver, 37 Wn.

App. 122, 124, 678 P.2d 842, review denied, 101 Wn.2d 1019 (1984). In Carver,

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the defendant was charged with indecent liberties and statutory rape of his two

young stepdaughters, including an act of anal intercourse. On appeal, the court

held that evidence of similar sexual abuse by another person was admissible to

rebut the inference that the two young girls were conversant with such acts "only

because [the] defendant was guilty as charged." Carver, 37 Wn. App. at 124.

The court concluded that the relevance of the evidence was not outweighed by

the danger of unfair prejudice. When assessing the relevance of such evidence,

however, the trial court must also consider the potential prejudice to both the trial

process and the child victim. See State v. Kilgore, 107 Wn. App. 160, 180-81, 26

P.3d 308 (2001), aff'd on other grounds, 147 Wn.2d 288, 53 P.3d 974 (2002).

       Here, our review is hampered because the record contains no meaningful

evidence or offer of proof about the specific nature of the alleged abuse or the

surrounding circumstances. Defense counsel identified only allegations of prior

abuse involving the daughter of a different relative. The deputy prosecutor

referred only to "prior sexual conduct having to do with H.B."

       A.D.'s statements about the rubbing and touching used relatively plain

language that was arguably age appropriate and did not include particularly

explicit or graphic descriptions. See Kilgore, 107 Wn. App. at 180. The evidence

did not suggest that A.D. had a motive to lie about Pipes, much less a motive to

lie that was related to the alleged prior abuse. See Kilgore, 107 Wn. App. at 181.

As indicated, the record provides no evidence of the nature of the alleged prior

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