                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                       October 31, 2017




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 49658-5-II

                               Respondent,

        v.

 MARC ANTHONY GRUBB, JR.,                                    UNPUBLISHED OPINION

                               Appellant.

       LEE, J. – Marc Anthony Grubb Jr. appeals from his juvenile court disposition order finding

him guilty of attempted first degree rape of a child and first degree child molestation. Grubb’s

court-appointed attorney has filed a motion to withdraw on the ground that there is no basis for a

good faith argument on review. We grant the motion to withdraw and dismiss the appeal.

       Pursuant to State v. Theobald, 78 Wn.2d 184, 185, 470 P.2d 188 (1970), and Anders v.

California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the motion to withdraw

must

       “be accompanied by a brief referring to anything in the record that might arguably
       support the appeal. A copy of counsel’s brief should be furnished the indigent and
       time allowed him to raise any points that he chooses; the court-not counsel-then
       proceeds, after a full examination of all the proceedings, to decide whether the
       case is wholly frivolous.”
No. 49658-5-II


State v. Hairston, 133 Wn.2d 534, 538, 946 P.2d 397 (1997) (quoting Anders, 386 U.S. at 744).

This procedure has been followed.1 Grubb’s counsel on appeal filed a brief with the motion to

withdraw. Grubb was served with a copy of the brief and informed of his right to file a statement

of additional grounds for review.

       The material facts are accurately set forth in counsel’s brief in support of the motion to

withdraw. We have reviewed the briefs filed in this court and have independently reviewed the

entire record. We specifically considered the following potential issues raised by counsel:

       1. Whether appellate counsel provided ineffective assistance by failing to request
       a continuance when the State requested to amend the information.

       2. Whether the trial court erred in admitting child hearsay.

       3. Whether the trial court erred in admitting Grubb’s statement to police.

       4. Whether convictions for first degree rape of a child and first degree child
       molestation violate double jeopardy.

       First, to establish ineffective assistance of counsel, Grubb must demonstrate both that

defense counsel’s representation was deficient and that the deficient representation prejudiced him.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Here, the State filed an

amended information on September 6, 2016 that added a first degree child molestation charge.

Trial commenced on September 6, 2016 and then recessed until September 20. Defense counsel

stated on the record that he was prepared to proceed to trial. Our record shows defense counsel




1
  Relying on State v. Folden, 53 Wn. App. 426, 427-28, 767 P.2d 589, review denied, 112 Wn.2d
1022 (1989) and State v. Rolax, 104 Wn.2d 129, 135-36, 702 P.2d 1185 (1985), the State argues
there is an additional step that defense counsel must take when filing an Anders brief. These cases,
however, concern steps necessary when there is a motion on the merits. This case is not being
decided as a motion on the merits.

                                                 2
No. 49658-5-II


was prepared to cross-examine the State’s witnesses, objected at appropriate times, called defense

witnesses, and made closing remarks. There is no showing of deficient performance or prejudice

to support an ineffective assistance of counsel claim.

       Second, we review the trial court’s decision to admit child hearsay evidence for an abuse

of discretion. State v. Borboa, 157 Wn.2d 108, 121, 135 P.3d 469 (2006). State v. Ryan, 103

Wn.2d 165, 175-76, 691 P.2d 197 (1984) provides nine factors to guide our analysis in assessing

the reliability of the child’s out-of-court statement. The Ryan factors are the following:

       “(1) [W]hether there is an apparent motive to lie; (2) the general character of the
       declarant; (3) whether more than one person heard the statements; (4) whether the
       statements were made spontaneously; . . . (5) the timing of the declaration and the
       relationship between the declarant and the witness”[;] . . . [(6)] the [lack of any]
       express assertion about past fact[; (7) whether] cross-examination could not show
       the declarant's lack of knowledge[; (8) whether] the possibility of the declarant's
       faulty recollection is remote[; and (9) whether] the circumstances surrounding the
       statement . . . are such that there is no reason to suppose the declarant
       misrepresented defendant's involvement.[2]

Id. (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982) and citing Dutton v. Evans,

400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)). Not every factor needs to be met for

a statement to be sufficiently reliable; the factors need only be “‘substantially met.’” State v.

Woods, 154 Wn.2d 613, 623-24, 114 P.3d 1174 (2005) (quoting State v. Swan, 114 Wn.2d 613,

652, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991)).




2
  Factors six and seven no longer apply. See State v. Leavitt, 111 Wn.2d 66, 75, 758 P.2d 982
(1988) (every statement a child makes concerning sexual abuse will be a statement relating a past
fact.); State v. Stange, 53 Wn. App. 638, 647, 769 P.2d 873, review denied, 113 Wn.2d 1007 (1989)
(cross-examination could in every case possibly show error in the child hearsay statement).


                                                 3
No. 49658-5-II


         Here, the trial court went through each Ryan factor and found each one was met. Tenable

grounds, therefore, support the trial court’s ruling to allow child hearsay evidence. Thus, there

was no abuse of discretion.

         Third, we review the trial court’s decision to admit Grubb’s statement by reviewing the

trial court’s CrR 3.5 findings of fact for substantial evidence and review de novo whether the

findings support the conclusions of law. State v. Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250

(2008). Our record shows the facts were undisputed. The investigating officer read Grubb his

Miranda3 rights from a preprinted card. Grubb acknowledged understanding his rights as each

was read to him. And Grubb initialed and signed the Miranda waiver form to signify that he

understood his rights and wanted to waive them. Grubb never requested an attorney, never stated

that he wanted to stop answering questions, and never appeared confused. Grubb was not

threatened, and he appeared to understand and track the investigating officer’s statements and

questions. Because Grubb indicated he understood his rights, and knowingly and voluntarily

waived those rights before giving a statement to the investigating officer, the trial court properly

concluded that Grubb’s statement was admissible.

       Fourth, we review double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180
Wn.2d 975, 979-80, 329 P.3d 78 (2014). Because attempted child rape involves attempted
penetration and child molestation involves the touching of sexual parts for sexual gratification,
the two offenses do not violate double jeopardy. State v. Land, 172 Wn. App. 593, 600, 295 P.3d
782, review denied, 177 Wn.2d 1016 (2013).




3
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                 4
No. 49658-5-II


        Based on the above, the potential issues raised by counsel are wholly frivolous. The motion

to withdraw is granted and the appeal is dismissed.

        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 in accordance with RCW 2.06.040,

it is so ordered.




                                                                        Lee, J.
 We concur:



                    Worswick, P.J.




                      Sutton, J.




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