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                                                                           FILED
                                                                         JUNE 9, 2015
                                                                 In the Office of the Clerk of Court
                                                               W A State Court of Appeals, Division III




              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                 DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )        No. 32105-3-111
                        Respondent,            )
                                               )
         v.                                    )
                                               )
WILLIAM A. BROUSSEAU,                          )        UNPUBLISHED OPINION
                                               )
                        Appellant.             )

         KORSMO, J. -    William Brousseau appeals from the trial court's detennination

after a reference hearing that a victim's recantation was not credible. Concluding that the

trial court applied the proper standards, we affinn.

                                           FACTS

         Mr. Brousseau was tried and convicted in 2007 of child rape and child molestation

in the Asotin County Superior Court. The victim was seven year old J.R. She initially

disclosed the abuse to her friend's grandmother and a school counselor, and then later to

a Child Protective Services (CPS) investigator and a detective. The child also testified at

trial.
No. 32105-3-II1
State v. Brousseau


       Mr. Brousseau appealed directly to the Washington Supreme Court, primarily

challenging whether a competency hearing had been required. The court affirmed the

convictions. State v. Brousseau, 172 Wn.2d 331, 259 P.3d 209 (2011).1 Mr. Brousseau

then timely filed a personal restraint petition (PRP) in the spring of2012. The petition

included an affidavit signed by lR. in which she recanted the allegations of abuse. The

Chief Judge of this court directed that a reference hearing be held to determine the

credibility of the recantation and, if credible, whether the recantation constituted newly

discovered evidence justifying a new trial under State v. Macon, 128 Wn.2d 784,911

P.2d 1004 (1996).

       The matter proceeded to hearing before the Honorable John Lohrmann, a visiting

judge from Walla Walla County.2 Mr. Brousseau called lR. to testify and also relied on

the report of defense expert, Dr. Daniel Rybicki. The State called the four witnesses

before whom J.R. had made her disclosures-the grandmother, the school counselor, the

CPS investigator, and the detective. Judge Lohrmann also considered the affidavit and a

transcript of J.R.' s trial testimony.




       1 The facts of the case can be found in the published opinion and will not be
repeated here.
       2 Reference hearings must be held before someone other than the judge whose
rulings are at issue. RAP 16.12.


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No. 32105-3-III
State v. Brousseau


       Judge Lohrmann found the recantation not credible under the circumstances. lR.

had been brought by her mother and an "aunt" to see Dr. Rybicki for the sole purpose of

recanting her trial testimony. There she signed an affidavit prepared by a defense

investigator who also happened to be present. The affidavit blamed the abuse on her

previous stepfather. In contrast, the four State's witnesses reiterated her consistent

identification of Mr. Brousseau as her abuser at the time of the disclosures.

       Written findings were entered. Mr. Brousseau then timely appealed to this court.

                                        ANALYSIS                                                I
       Mr. Brousseau primarily argues that the trial court applied the wrong standard in        I
                                                                                                I
its consideration of the matter at the reference hearing. He also argues that courts should     !
not apply a presumption of unreliability to recantations made by a child. We address            I
those issues in the noted order.

       Standard Applied at Reference Hearing
                                                                                                Ii
                                                                                                !
       Mr. Brousseau initially argues that the trial court erred in applying the Macon

standard required by this court's order directing the remand hearing. He contends that
                                                                                                I
the test should not be whether the trial judge finds the recantation credible, but whether or

not the new testimony might have created reasonable doubt for a juror. Macon, which             II
squarely rejected this argument, governs this action and we must follow it.
                                                                                                i
       A trial court may grant a new trial based on newly discovered evidence if the            f
defendant proves the new evidence "( 1) will probably change the result of the trial; (2)       ,f
                                             3
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                                                                                                I
                                                                                                I
No. 32105-3-III
State v. Brousseau


was discovered since the trial; (3) could not have been discovered before trial by the

exercise of due diligence; (4) is material; and (5) is not merely cumulative or

impeaching." State v. Williams, 96 Wn.2d 215,222-23,634 P.2d 868 (1981). The trial

court's ruling is reviewed for abuse of discretion. Id. at 221.

       Macon expressly applied the Williams test to the recanting witness situation. 128

Wn.2d at 800. In Macon, the count of first degree child rape in question involved a five­

year-old girl whose mother had married the defendant after sentencing and reclaimed

custody of the child from the maternal grandmother. Id. at 796-97. A year later the child

allegedly recanted the abuse allegation to a friend of the mother's. Id. at 797. The trial

judge did not find the recantation credible and denied the motion for a new trial. Id. at

798-99.

       The Washington Supreme Court ultimately heard the case and affirmed the ruling.

In the course of its analysis, the court noted some of its prior decisions that held that a

trial court abused its discretion in denying a new trial when a witness later recants and

there was no corroboration. Id. at 800 (citing State v. Rolax, 84 Wn.2d 836, 838, 529

P.2d 1078 (1974) and State v. Powell, 51 Wash. 372, 374-75, 98 P. 741 (1909)). Macon

then overruled Powell. 128 Wn.2d at 805. It also restated the rule of Rolax:

       State v. Rolax supports the conclusion that when a defendant's conviction is
       based solely upon the testimony of a recanting witness, the trial court does
       not abuse its discretion if it determines the recantation is unreliable and
       denies the defendant's motion for a new trial. But it also follows from
       Rolax that when a defendant's conviction is based solely upon the

                                              4

No. 32105-3-III
State v. Brousseau


       testimony of a recanting witness, and the trial court determines the
       recantation is reliable, the trial court must grant the defendant's motion for
       new trial.

Id. at 804. In reaching its results, the Macon court returned to the standard applied in

State v. Wynn, 178 Wash. 287,288-90,34 P.2d 900 (1934) (recognizing that trial court

can reject recantation testimony). 128 Wn.2d at 802.

       Division One of this court thoroughly addressed the trial court's recantation

assessment obligations the following year in State v. Ieng, 87 Wn. App. 873, 942 P.2d

1091 (1997), review denied, 134 Wn.2d 1014 (1998). There the court concluded that the

existence of corroborating evidence is not a dispositive factor and that the trial court must

make its own determination concerning the credibility of a recantation. Id. at 879-80. In

particular, the determination must be made "without regard to whether a jury might find

the witness credible." Id. at 880.

       Despite the overruling of Powell and the restatement of Rolax, Mr. Brousseau

urges us to follow those cases instead of Macon and Ieng. However, this court is not free

to disregard controlling precedent from the Washington Supreme Court. State v. Gore,

101 Wn.2d 481, 487, 681 P.2d 227 (1984). Macon controls here. When a recantation is

deemed not credible, it is not "material" evidence within the meaning of the new trial

test. 128 Wn.2d at 800-01.




                                             5

No. 32105-3-II1
State v. Brousseau


       The trial court considered the totality of the circumstances and concluded,

understandably, that the recantation was not credible. J.R. was brought to an expert

witness for the purpose of recanting, not treatment. She expressed.sadness about the

effects of the disclosure on the defendant rather than any sadness due to falsely naming

the defendant. The recantation occurred after she was returned to the custody of her

mother, a supporter of the defendant. The misidentification of the offender claimed by

the recantation was inconsistent with the earlier disclosure, on three occasions, to four

witnesses, as well as with J.R.'s trial testimony. Under the circumstances, the trial judge

was free to determine that the recantation was manufactured and not credible.

       The trial court applied the correct standard to its analysis of the recantation. There

was no error.

       Presumption of Unreliability

       Mr. Brousseau also argues that there should be no presumption that a recantation

is unreliable when it comes from a small child. This is a non-issue. Washington does not

apply a presumption of unreliability.

       It appears that Mr. Brousseau is asking this court to change a legal standard that

does not actually exist. When a party asks the court for a new trial because of newly

discovered evidence, that party bears the burden of establishing its case. See State v.

Swan, 114 Wn.2d 613,641-42,790 P.2d 610 (1990); State v. Franks, 74 Wn.2d 413, 418,

445 P.2d 200 (1968). In deciding whether to award a new trial based on any newly

                                             6

No. 32105-3-111
State v. Brousseau


discovered evidence, the trial judge must assess the credibility of proffered testimony.

State v. West, 139 Wn.2d 37, 43, 983 P.2d 617 (1999). Effectively, the proponent of the

recantation evidence must establish its believability.

       It is in this context that Washington courts have expressed skepticism about

recantation evidence. "Recantation testimony is inherently questionable." Macon, 128

Wn.2d at 801. While expressing that view, Macon nonetheless did not apply it to the trial

court's new trial calculus when considering recantation evidence. Macon did not direct

trial judges to start with a presumption against reliability or otherwise suggest that the

recantation evidence was suspect. Instead, it made its observation explaining why this

type of evidence was the subject of much litigation and careful scrutiny. However, it did

not put its thumb on the trial court's scale.

       Nothing in this record supports a suggestion that the trial court applied some

presumption against lR.'s recantation. Instead, the record shows that the visiting judge

carefully considered the record of the case, J .R. 's brief recantation, and the testimony of

the five witnesses before rejecting the new trial. Judge Lohrmann properly considered

the recantation and assessed it as required by Macon. He reached his conclusion that it

was not credible after a careful weighing of the evidence on the record. There is no sign

that he applied any presumption against the evidence.




                                                7

No. 32105-3-II1
State v. Brousseau


      Again, there was no error.

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 




      Fearing, J.



      Lawrence-Berrey, .




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