                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            March 5, 2019
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 49596-1-II

                                Respondent,                    UNPUBLISHED OPINION

         v.

    JIMMY WOODBEE PIERCE,

                                Appellant.

        BJORGEN, J.* — Jimmy Pierce appeals from his convictions of attempted first degree

child molestation and first degree child molestation.

        He argues that (1) the trial court erred by determining that the victims, P.P. and her

relative, J.F.,1 were competent to testify, (2) the trial court erred by admitting child hearsay

statements made by P.P. and J.F., (3) the trial court erred by not dismissing juror 8, and (4) the

State did not present sufficient evidence for a jury to convict him of attempted first degree child

molestation and first degree child molestation.

        We affirm.




*
 Judge Thomas Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to
RCW 2.06.150.
1
  See Gen. Order 2011-1 of Division II, In re the Use of Initials or Pseudonyms for Child
Witnesses in Sex Crime Cases, http://courts.wa.gov/appellate_trial_courts. In this case, P.P. and
J.F. were both under the age of 18 when the abuse occurred. Therefore, we refer to the victims
using their initials.
No. 49596-1-II


                                               FACTS

       In August 2014, P.P. and J.F. were on a camping trip with members of their families.

Angela Prendiville and Debora Profitt were sitting outside one of the trailers and talking about

the fact that Pierce was in the hospital for a heart related issue. Angela2 is P.P.’s mother. Profitt

is the sister of Pierce’s wife and is J.F.’s great-aunt. P.P. used to attend a daycare run by Pierce’s

wife, but P.P. had stopped attending the daycare a few months before the August camping trip.

As Angela and Profitt were talking, P.P. stated “out of the blue” that Pierce had carried her to the

upstairs of the daycare on his shoulder, then P.P. walked off to the picnic area away from the

trailer. Verbatim Report of Proceedings (VRP) (Vol. IX) at 701-02.

       Surprised by P.P.’s statement, Angela followed her down to the picnic area and asked

P.P. if Pierce had touched her. P.P. initially responded by lowering her head and denying that

Pierce had touched her. Sensing that “[s]omething wasn’t right,” Angela asked a second time,

“[D]id he touch you?” VRP (Vol. IX) at 705-06. P.P. said, “Yes.” VRP (Vol. IX) at 706.

Angela then asked where Pierce touched her, and P.P. replied, “My pee-pee,” and pointed to her

vagina. According to Profitt, Angela and P.P. were talking alone for 20 to 30 minutes.

       Angela then ran up to the other adults, yelling, “He touched her. He touched her.” VRP

(Vol. IX) at 709. Angela told her husband Patrick that Pierce had touched P.P., and then went

into the trailer. After speaking with Angela, Patrick walked down to the picnic area to speak

with P.P., where she told him that Pierce had touched her genitals. P.P. then went inside one of




2
 We refer to Angela and her husband Patrick Prendiville by their first names to avoid confusion.
We intend no disrespect.

                                                  2
No. 49596-1-II


the trailers, at which point Patrick told the other adults what P.P. told him about Pierce touching

her.

       After P.P.’s family returned home from camping, Angela called Child Protective Services

(CPS). Angela continued to question P.P. about the touching over the following two to three

days. At one point during this questioning, P.P. said that she did not know if Pierce had touched

her. Angela testified, “She told me no, and then she told me yes, and then I kept questioning her.

. . . I questioned her for three days, and she said, ‘Mommy, I don’t know.’” VRP (Vol. IX) at

769. On August 13, P.P. attended a forensic interview conducted by Keri Arnold, where P.P.

again disclosed that Pierce had touched her genitals.

       At the time of the camping trip, J.F. was still attending Pierce’s wife’s daycare. Although

J.F. was present during the August camping trip, she claimed she did not know about P.P.’s

disclosure. J.F. and her family were just arriving at the campground when Angela returned to the

trailers after talking to P.P., though Angela could not say whether J.F. was present when she told

the other adults about the touching. According to Profitt, J.F. was not present when Angela was

yelling that “[h]e touched her.” VRP (Vol. X) at 915. Profitt thought J.F. was inside Profitt’s

trailer when Patrick told the other adults about P.P.’s disclosure to him.

       The Monday after J.F. and her family returned from camping, J.F. disclosed to Profitt

while they were driving that Pierce had touched her genitals. Profitt texted Jamie Robertson,

J.F.’s mother, about J.F.’s disclosure. After receiving the text, Robertson called CPS to report

J.F.’s disclosure. On August 19, J.F. attended a forensic interview also conducted by Keri

Arnold, where J.F. disclosed several instances of Pierce touching her genitals.




                                                 3
No. 49596-1-II


         On February 5, 2015, the State charged Pierce with one count of first degree child

molestation as to P.P. and three counts of first degree child molestation as to J.F. On October 22,

Pierce challenged P.P.’s and J.F.’s competency to testify and moved to exclude their child

hearsay testimony.

         After a hearing on August 15, 2016, the trial court entered an order finding P.P. and J.F.

competent to testify at trial. The order stated in part:

         The court makes the following findings on the Allen[3] factors.

         1. P.P. [and J.F. understand their] obligation to speak the truth on the witness stand;

         2. P.P. [and J.F.] had the mental capacity at the time of the incident to receive an
         accurate impression of it;

         3. P.P. [and J.F. have] sufficient memory to retain an independent recollection of
         the incident;

         4. P.P. [and J.F. have] the capacity to express in words [their] memory of the
         incident;

         5. P.P. [and J.F. have] the capacity to understand simple questions about the
         incident.

Clerk’s Papers (CP) at 96-97.

         Also on August 15, the trial court entered an order finding child hearsay statements made

by P.P. and J.F. admissible. The order stated in part:

         The court makes the following findings on the Ryan[4]factors:




3
    State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967).
4
    State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).

                                                   4
No. 49596-1-II


      1. P.P. has no apparent motive to lie;

      2. P.P. is generally of good character;

      3. P.P. made statements to Angela and Patrick Prendiville (her parents), [Debora]
      Profitt (a family friend)[,] and Keri Arnold (forensic interviewer), and those
      statements, though at different times with different purpose, were generally
      consistent;

      4. P.P.’s statements were spontaneous as defined by the case law;

      5. There is nothing about the timing of P.P.[’s] statements that suggests an
      improper motive, nor does anything about the relationship between P.P. and the
      persons she talked to[;]

      6. The possibility P.P.’s recollection is faulty is remote;

      7. Based on the totality of the circumstances surrounding the making of P.P.’s
      statements, there is no reason to believe P.P. misrepresented the defendant’s
      involvement.

      ....

      The court makes the following findings on the Ryan factors:

      1. J.F. has no apparent motive to lie;

      2. J.F is generally of good character;

      3. J.F. made statements to [Debora] Profitt (her great-aunt), Jamie Robertson (her
      mother), Keri Arnold (forensic interviewer), and Michelle Breland, ARNP
      [Advanced Registered Nurse Practitioner], and those statements, though at different
      times with different purpose, were generally consistent;

      4. J.F.’s statements were spontaneous as defined by the case law;

      5. There is nothing about the timing of J.F.’s statements that suggests an improper
      motive, nor does anything about the relationship between J.F. and the persons she
      talked to[;]

      6. The possibility J.F.’s recollection is faulty is remote;




                                                5
No. 49596-1-II


        7. Based on the totality of the circumstances surrounding the making of J.F.’s
        statements, there is no reason to believe J.F. misrepresented the defendant’s
        involvement.

CP at 99-101.

        During trial, one of the jurors informed the court that he believed juror 8 had been

sleeping. After the jury had begun deliberating, Pierce moved to dismiss juror 8. The trial court

questioned juror 8 about whether she had heard all the evidence presented and if she could

properly fulfill her function as a juror. Juror 8 responded that she could, and the trial court

denied Pierce’s motion to dismiss juror 8.

        The jury found Pierce guilty of attempted first degree child molestation of P.P. as a lesser

alternative to first degree child molestation. The jury also found Pierce guilty of one count of

first degree child molestation as to J.F, but found him not guilty of the other two counts of first

degree child molestation as to J.F.

        Pierce appeals his convictions.

                                             ANALYSIS

                                    I. CHILD COMPETENCY TO TESTIFY

        Pierce argues that the trial court erred by determining that P.P. and J.F. were competent

to testify at trial. We disagree.

A.      Legal Principles and Standard of Review

        All witnesses, children and adults alike, are presumed competent until proved otherwise

by a preponderance of the evidence. State v. Brousseau, 172 Wn.2d 331, 341, 259 P.3d 209

(2011). The burden of proving incompetency is on the party challenging the competency of the

witness. Id.


                                                  6
No. 49596-1-II


        A child’s age is not determinative of a child’s competency to testify. State v. Woods, 154

Wn.2d 613, 617, 114 P.3d 1176 (2005). Rather, our Supreme Court has explained:

        A young child is competent to testify if she: (1) understands the obligation to speak
        the truth on the witness stand; (2) has the mental capacity, at the time of the
        occurrence concerning which she is to testify, to receive an accurate impression of
        it; (3) has a memory sufficient to retain an independent recollection of the
        occurrence; (4) has the capacity to express in words her memory of the occurrence;
        and (5) has the capacity to understand simple questions about the occurrence.

Id. at 618.

        Our Supreme Court has noted that “‘[t]here is probably no area of 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.’” Id. at 617 (quoting State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810

(1990)). We afford great deference to the trial court because “[t]he competency of a youthful

witness is not easily reflected in a written record,” and we “must rely on the trial judge who sees

the witness, notices the witness’s manner, and considers his or her capacity and intelligence.” Id.

We may consider the entire record in reviewing the trial court’s determination of competency to

testify. Id.

        We review the trial court’s determination of competency to testify for a manifest abuse of

discretion. Id. A trial court abuses its discretion if its decision is manifestly unreasonable or is

exercised on untenable grounds or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654,

71 P.3d 638 (2003). A decision is based on untenable grounds or made for untenable reasons if

it rests on facts unsupported by the record or applies the wrong legal standard. Id. A decision is

manifestly unreasonable if the court, despite applying the correct legal standard to the supported

facts, reaches an outcome that is outside the range of acceptable choices, such that no reasonable

person could arrive at that outcome. Id. A court’s exercise of discretion is also unreasonable if it

                                                  7
No. 49596-1-II


is premised on a legal error. State v. Ramirez, 191 Wn.2d 732, 741, 426 P.3d 714 (2018). Pierce

bears the burden to establish that the trial court abused its discretion in determining that P.P. and

J.F. were competent to testify. Woods, 154 Wn.2d at 622.

B.         Competency of P.P. to Testify

           Pierce claims the trial court erred in applying the Allen factors with respect to P.P.5 We

hold that the trial court did not abuse its discretion by determining that P.P. was competent to

testify.

           1. Mental Capacity at the Time of the Occurrence

           Pierce argues that the trial court erred by determining that P.P. had the mental capacity at

the time of the alleged occurrence to receive an accurate impression of the occurrence.

           First, Pierce contends that because the trial court did not establish when the alleged abuse

occurred, it could not have reasonably determined whether P.P. had a sufficient mental capacity

to receive an accurate impression of the event at the time it occurred. P.P. testified at trial that

the incident occurred when she was eight years old and in second grade. Arnold testified that

P.P. told her that the incident occurred during the summer time. P.P. was born in November

2004, so she would have been eight during the summer of 2013. The trial court, therefore, could

have reasonably determined that the incident occurred during the summer of 2013.

           Second, Pierce maintains that P.P.’s inability to recall objective facts shows that she did

not have sufficient mental capacity to receive an accurate impression of the incident.



5
  Pierce assigns error to findings of fact 1, 2, 3, 4 and 5 regarding the Allen factors. However, he
presents arguments related only to Allen factors 2 and 3. Unchallenged findings of fact are
treated as verities on appeal. Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015).
Because Pierce makes no argument on factors 1, 4, and 5, we decline to consider them.

                                                     8
No. 49596-1-II


Specifically, Pierce claims that P.P.’s confusion regarding who her teachers were from

kindergarten to fifth grade shows that she did not have a sufficient mental capacity to receive an

accurate impression of the incident. Pierce suggests that P.P.’s recollection is faulty because

Angela gave different answers when asked who P.P.’s teachers were from kindergarten to fifth

grade. However, it is unclear from the record whether P.P. or Angela was generally correct as to

who P.P.’s teachers were, and with regard to P.P.’s fifth grade teacher, Angela acknowledged

that she had been mistaken and that P.P. had correctly identified her fifth grade teacher.

       P.P. also testified about the layout and organization of the daycare where the abuse

occurred. Angela corroborated P.P.’s description of the daycare house. Furthermore, P.P. was

able to correctly recall how many bedrooms were in the house she lived in, when the incident

occurred, and that she had lived in that house for five years. Although P.P. mistakenly stated

that the house was in Key Center, rather than Lakebay, Angela explained that “[Key Center is]

beside Lakebay. That’s – our little town is Key Center.” VRP (Vol. I) at 35. Angela also

clarified that P.P. was mistaken about the color of the house in Lakebay.

       Third, Pierce asserts that P.P. did not have a sufficient mental capacity to form an

accurate impression at the time of the incident because P.P. stated that for some time she was

uncertain whether the incident was a dream. Pierce acknowledges that P.P. also testified that she

thought the incident was real. Arnold testified that although P.P. was initially uncertain during

her forensic interview whether Pierce had inappropriately touched her, as the interview

proceeded, P.P. “was clear in her recall that [Pierce] touched [her].” VRP (Vol. VI) at 514.

       As noted, the party challenging the witness’s competency to testify has the burden of

proving incompetency. Brousseau, 172 Wn.2d at 341. Given the evidence summarized above,


                                                 9
No. 49596-1-II


Pierce has not shown that the trial court’s determination that P.P. had the requisite mental

capacity at the time of the occurrence was manifestly unreasonable or made for untenable

reasons or on untenable grounds. The mistakes and inconsistencies in P.P.’s recall were minor,

and the record otherwise contains ample support for the trial court’s determination that she had

the requisite mental capacity. We conclude that Pierce has not met his burden, and consequently

the trial court did not abuse its discretion.

        2. Sufficient Memory to Retain an Independent Recollection

        Pierce argues that the trial court abused its discretion by determining that P.P. had

sufficient memory to retain an independent recollection of the incident.

        First, Pierce contends that P.P.’s inability to recall her teachers’ names shows that P.P.

did not have sufficient memory to retain an independent recollection of the incident. As

explained above, the record does not clearly reflect who P.P.’s teachers were, and P.P. was able

to describe where the abuse occurred, how she was specifically abused, what she was wearing at

the time of the incident, and that Pierce told her to not tell his wife about what had occurred.

        Second, Pierce maintains that P.P. did not have sufficient memory to retain an

independent recollection of the incident because she stated that for some time she was uncertain

whether the incident was a dream. As mentioned above, P.P. testified that she was sure the

incident was real and Arnold stated that after initial uncertainty, P.P. “was clear in her recall that

[Pierce] touched [her].” VRP (Vol. VI) at 514.

        With this evidence, the trial court did not abuse its discretion by determining that P.P. had

sufficient memory to retain an independent recollection of the incident. The court did not abuse

its discretion in determining that P.P. was competent to testify.


                                                  10
No. 49596-1-II


C.         Competency of J.F. to Testify

           Pierce also claims the trial court erred in applying the Allen factors with respect to J.F.6

We hold that the trial court did not abuse its discretion by determining that J.F. was competent to

testify.

           1. Obligation to Speak the Truth on the Witness Stand

           Pierce argues that the trial court abused its discretion by determining that J.F. understood

her obligation to speak the truth on the witness stand. He asserts that J.F.’s statement that it

would be okay to guess the answer to a question that she did not know to show that she did not

understand the obligation to speak the truth.

           While J.F. initially stated that it would be better to guess if she did not know the answer

to a question, the State also had J.F. confirm that she would not make guesses in court:

           [Prosecution]:         Okay. Here in court, [J.F.], it is really important that you
                                  don’t guess about anything you aren’t sure about. Okay?

           [J.F.]:                Okay.

           [Prosecution]:         Can you look at the judge and tell her that you promise not
                                  to make any guesses?

           [J.F.]:                I promise not to make any guesses here in court.

           [Prosecution]:         Okay. So I want to make sure you’re clear. If I ask you a
                                  question and you don’t know the answer, you are not to make
                                  a guess. You are to tell the truth and say, I don’t know the
                                  answer. Do you understand that?

6
  Pierce’s assignments of error 2 and 4 are identical; each assigns error to findings 1 through 5 in
relation to P.P.’s competency. Pierce’s only assignment of error, 3, in relation to J.F.’s
competency challenges the trial court’s conclusion that J.F. was competent to testify. From the
context, assignment of error 4 was likely intended to refer to J.F., instead of merely duplicating
the assignment relating to P.P. Pierce, however, presents arguments related only to factors 1, 2,
and 3. Consistently with Rush, 190 Wn. App. at 956, we consider only those arguments. We
follow this approach whether or not assignment of error 4 is deemed to apply to J.F.

                                                     11
No. 49596-1-II



       [J.F.]:                 Yes.

VRP (Vol. III) at 320-21. Given J.F.’s acknowledgement that guessing would be wrong and her

promise to the judge not to guess, we conclude that the trial court did not abuse its discretion in

determining that she understood her obligation to speak the truth.

       2. Mental Capacity at the Time of the Occurrence

       Pierce maintains that the trial court erred by determining that J.F. had the mental capacity

at the time of the alleged occurrence to receive an accurate impression of the occurrence.

       First, Pierce suggests that because the trial court did not establish when the alleged abuse

occurred, it could not have reasonably determined whether J.F. had sufficient mental capacity at

the time to receive an accurate impression of the event. The trial court viewed Arnold’s

interview with J.F., during which J.F. disclosed that the incidents involving Pierce occurred

when she was seven and in second grade. J.F. was born in August 2006. This suggests that the

trial court could have reasonably determined that J.F. alleged that the incidents occurred between

August 2013 and August 2014.

       Second, Pierce argues that J.F.’s inability to recall where she went to school or her

teachers’ names shows that she did not have sufficient mental capacity to receive an accurate

impression of the incident. Although J.F. was not able to recall her teachers’ names, she was

able to recall the names of her cats that she had when she was in second grade, as well as the

layout of the daycare center. There was a reasonable basis for the trial court to conclude that J.F.

had the requisite mental capacity.




                                                 12
No. 49596-1-II


       Consequently, we hold that the trial court did not abuse its discretion in determining that

J.F. had the mental capacity at the time of the alleged occurrence to receive an accurate

impression of the occurrence.

       3. Sufficient Memory to Retain an Independent Recollection

       Pierce contends that the trial court abused its discretion by determining that J.F. had

sufficient memory to retain an independent recollection of the incident. Although J.F. wavered

in her testimony regarding where some of the incidents took place, she consistently stated that

one of the incidents occurred in Pierce’s motor home. See State v. S.J.W., 149 Wn. App. 912,

926, 206 P.3d 355 (2009), affirmed on other grounds, 170 Wn.2d 92 (2010). Thus, it was

reasonable for the trial court to determine that J.F. had sufficient memory to retain an

independent recollection.

       Pierce also suggests that J.F. did not have an independent recollection because she

overheard P.P.’s initial disclosure, but the record does not support this assertion. The record

shows that J.F. was not present when P.P. disclosed to Angela, and Angela and Profitt testified

that they did not see J.F. present during any of the subsequent discussions among the adults

about P.P.’s disclosure. Furthermore, P.P. testified that she never spoke to J.F. about Pierce

touching her, and J.F. testified that she did not remember P.P. saying anything that stuck out to

her during the camping trip. Thus, it was reasonable for the trial court to determine that J.F. had

sufficient memory to retain an independent recollection.

       For these reasons, the trial court did not abuse its discretion in determining that J.F. was

competent to testify.




                                                 13
No. 49596-1-II


                                        II. CHILD HEARSAY

       Pierce argues that the trial court erred by admitting child hearsay evidence. He

challenges the trial court’s findings with respect to P.P.’s motive to lie, the spontaneity of her

disclosures, the timing and relationship of her disclosures, and the possibility of her faulty

recollection. He also challenges the court’s findings on J.F.’s motive to lie and the timing and

relationship of her disclosures. We conclude that the trial court did not err.

A.     Legal Principles and Standard of Review

       We review the trial court’s decision to admit child hearsay statements for an abuse of

discretion. State v. Kennealy, 151 Wn. App. 861, 879, 214 P.3d 200 (2009). We review

challenges to findings of fact for substantial evidence. State v. Halstien, 122 Wn.2d 109, 128,

857 P.2d 270 (1993). Substantial evidence is evidence sufficient to persuade a fair-minded,

rational person that an assertion is true. Id. at 129. Unchallenged findings are verities on appeal.

Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015). We may affirm the trial

court’s evidentiary rulings on any basis supported by the record. Kennealy, 151 Wn. App. at

879.

       Out-of-court statements by a child under the age of 10 who testifies at the trial may be

admitted if the court finds sufficient indicia of reliability. RCW 9A.44.120. State v. Ryan

established that the trial court considers nine factors to determine the reliability of child hearsay

statements. 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). The Ryan factors are:

       (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 statement; (4) the
       spontaneity of the statements; (5) the timing of the declaration and the relationship
       between the declarant and the witness; (6) whether the statement contained express
       assertions of past fact; (7) whether the declarant’s lack of knowledge could be
       established through cross-examination; (8) the remoteness of the possibility of the

                                                  14
No. 49596-1-II


        declarant’s recollection being faulty; and (9) whether the surrounding
        circumstances suggested the declarant misrepresented the defendant’s involvement.

Kennealy, 151 Wn. App. at 880 (footnote omitted). We have noted that the seventh factor,

whether the declarant’s lack of knowledge could be established through cross-examination, does

not apply in circumstances where the child testifies at trial. Kennealy, 151 Wn. App. at 880 n.6.

Additionally, we have reasoned that the sixth factor, whether the statements contained express

assertions of past fact, need not be satisfied “so long as other factors indicating reliability are

considered.” State v. Young, 62 Wn. App. 895, 902, 802 P.2d 829 (1991). No single factor is

dispositive and we strive to determine whether the factors are substantially met based on an

overall evaluation of the factors. Kennealy, 151 Wn. App. at 881.

B.      Statements of P.P.

        Pierce argues that the trial court erred by admitting P.P.’s child hearsay statements to

Angela, Patrick, Profitt, and Arnold about Pierce touching her genitals.7 We disagree.

        1. Motive to Lie (Ryan Factor 1)

        Pierce maintains that the trial court erred by determining that P.P. did not have a motive

to lie about the incident.

        First, Pierce asserts that the animosity between him, Angela, and Patrick could have

provided P.P. with a reason to lie. Although P.P. knew that her parents did not like Pierce, she

stated that she thought that she switched daycares because her parents found a different daycare

and she did not recall any fighting between Pierce and her parents. When the State asked P.P.



7
 Although Pierce identifies Ryan factors 1, 3, 4, 5, and 6 in his assignment of error, he presents
arguments related only to factors 1, 4, 5, and 8. We therefore decline to consider factors 3 and 6.
See Rush, 190 Wn. App. at 956.

                                                  15
No. 49596-1-II


why she was present to testify, she responded, “Because [Pierce] did something wrong that he

wasn’t supposed to.” VRP (Vol. I) at 26.

       Second, Pierce claims that Angela “badgered [P.P.] to say that Pierce had touched her

[genitals].” Br. of Appellant at 50. However, the citations in Pierce’s briefing do not support

this assertion, and some of the citations refer to testimony from Profitt. The record shows to the

contrary that Angela’s questioning at the time of the initial disclosure was not badgering, but was

the sort of reasonable inquiry a parent might make in response to a child’s disclosure of this

nature. Understandably concerned about the unusual statement from P.P. that Pierce had carried

her upstairs on his shoulder, Angela asked P.P. if he touched her. When P.P. dropped her head

and avoided eye contact, it was reasonable for Angela to suspect that there was something going

on and to question her again. Angela asked P.P. whether Pierce touched her and where he

touched her, but the record does not show that Angela asked P.P. whether she was touched in a

particular place. This line of inquiry from a parent was reasonable under the circumstances.

Also, although Angela did continue to question P.P. for the following several days, the fact

remains that P.P.’s initial disclosure came after only the second time Angela asked her if Pierce

touched her.

       Pierce’s remaining citations refer to Profitt asking P.P., “[D]id [Pierce] touch you

anywhere your bathing suit would cover?” VRP (Vol. II) at 264-65. P.P. did not respond to

Profitt’s question and Profitt did not pursue the issue. Pierce has not explained why Profitt’s

question suggests that P.P. was motivated to lie about the incident, and we do not consider

conclusory arguments unsupported by citation to authority or rational argument. State v. Mason,

170 Wn. App. 375, 384, 285 P.3d 154 (2012).


                                                16
No. 49596-1-II


       Finally, Pierce argues that inconsistent statements by a child may be indicative of a

child’s motivation to lie, citing Ryan, 103 Wn.2d 165. In Ryan, one of the victims’ mothers

found him with candy that he was not allowed to have, and the victim made inconsistent

statements regarding where he acquired the candy. 103 Wn.2d at 168. Our Supreme Court

explained that “there was a motive to lie, and each child initially told a different version of the

source of the candy they were not supposed to have.” Ryan, 103 Wn.2d at 176. The court’s

analysis in Ryan appears to focus on the fact that the children were not allowed to have candy,

which provided them a motive to lie about how they acquired the candy in order to avoid

punishment. Given those circumstances, the inconsistencies in the children’s statements in Ryan

could have been viewed as supporting the inference that the children were lying.

       Unlike the circumstances in Ryan, there is nothing in the record to suggest that P.P.

fabricated her disclosure in order to avoid potential punishment. P.P. gave inconsistent answers

to Angela’s questions over the several day period after the initial disclosure. Although those

inconsistencies might call into question P.P.’s credibility generally, they do not indicate a

motivation to lie. Pierce’s contention is unpersuasive.

       Substantial evidence supports the trial court’s finding that P.P. did not have a motive to

lie.

       2. Spontaneity (Ryan Factor 4)

       Pierce contends that P.P.’s disclosures were not spontaneous because Angela repeatedly

questioned her about her disclosure. We have explained that “statements made in response to

questioning are spontaneous so long as the questions are not leading or suggestive.” Kennealy,

151 Wn. App. at 883. After P.P. left the camp fire, Angela followed P.P. and asked her, “[D]id


                                                 17
No. 49596-1-II


[Pierce] touch you?” and after an ambiguous response, P.P. responded, “Yes.” VRP (Vol. I) at

58. Angela then asked P.P., “Where did he touch you at?” and P.P. responded that Pierce had

touched her genitals. VRP (Vol. I) at 58. Although Angela’s question regarding touching was

leading, the question regarding where Pierce touched P.P. was open ended and did not suggest

any particular response.8

        After Angela’s questioning of P.P., Patrick also questioned P.P. Patrick asked P.P. “what

happened” and P.P. told him that Pierce “did a spider, like spider fingers on her leg. . . . [A]nd

then he – he touched me.” VRP (Vol. II) at 215-16. Patrick asked P.P. where Pierce touched her

and she responded that he touched her genitals. Patrick’s questions were almost entirely open-

ended and prompted P.P. to disclose details that she did not disclose to Angela. Therefore, based

on the circumstances surrounding P.P.’s disclosure to Angela and Patrick, we conclude that

substantial evidence supports the trial court’s finding that P.P.’s disclosures were spontaneous.

        3. Timing and Relationship (Ryan Factor 5)

        Pierce argues that P.P.’s disclosures to Angela and Patrick are not reliable because both

of them had animosity toward Pierce. We have reasoned that “[w]hen the witness is in a position

of trust with a child, this factor is likely to enhance the reliability of the child’s statement.”

Kennealy, 151 Wn. App. at 884. Hence, the relationship in question is that of the declarant to the

witness, not the witness to the defendant. P.P. initially disclosed to her parents, Angela and




8
  Profitt’s question to P.P., whether Pierce touched her anywhere her bathing suit would cover, is
more suggestive of an answer than Angela’s questioning, but does not necessarily suggest an
inappropriate touching. Further, Pierce does not argue that P.P.’s statements lacked spontaneity
on this basis.

                                                   18
No. 49596-1-II


Patrick, with whom she was in a relationship of trust. See id. Substantial evidence supports the

trial court’s finding on this factor.

        4. Possibility of Faulty Recollection (Ryan Factor 8)

        Pierce asserts that the possibility of P.P. having a faulty recollection is not remote

because P.P. was not sure if the incident was a dream, P.P. could not provide sufficient objective

detail of the incident, and P.P.’s testimony at trial was “vague and reluctant.” Br. of Appellant at

52-53. At trial, P.P. testified that the incident really occurred and was not a dream. P.P. was also

able to describe where the abuse occurred, how she was specifically abused, what she was

wearing at the time of the incident, and that Pierce told her to not tell his wife about what had

occurred. Arnold additionally testified that she did not have any concerns that P.P. was coached

or that she was overly suggestible. Therefore, we disagree with Pierce’s challenge on the

possibility of faulty recollection.

        We consider whether the Ryan factors have been substantially met by evaluating all the

factors as a whole. See Kennealy, 151 Wn. App. at 881. All of the reliability findings

challenged by Pierce are supported by substantial evidence. Furthermore, because we treat the

unchallenged findings as verities on appeal, those findings not challenged by Pierce support our

conclusion that the Ryan factors are substantially met. Rush, 190 Wn. App. at 956. We

accordingly hold that the trial court did not abuse its discretion by admitting P.P.’s child hearsay

statements to Angela, Patrick, Profitt, and Arnold.




                                                  19
No. 49596-1-II


C.     Statements of J.F.

       Pierce argues that the trial court erred by admitting J.F.’s child hearsay statements to

Profitt, Arnold, Jamie Robertson, and Michelle Breland about Pierce touching her genitals.9 We

disagree.

       1.      Motive to Lie (Ryan Factor 1)

       Pierce maintains that the trial court erred by determining that J.F. had no motive to lie.

Pierce’s argument on this issue appears to focus on whether Profitt fabricated J.F.’s disclosure,

stating, “It seems unlikely that [J.F.’s] disclosure ever occurred.” Br. of Appellant at 53.

However, whether Profitt fabricated J.F.’s initial disclosure is not immediately related to whether

J.F. had a motive to lie about abuse. Although Robertson stated that she had some problems with

J.F. lying, she also testified that she did not think “J.F. [had] any reason to misrepresent what she

says [Pierce] did to her.” VRP (Vol. III) at 347. Additionally, Robertson and Profitt testified

that J.F. was generally a truthful child. Therefore, we conclude that substantial evidence

supports the trial court’s finding that J.F. had no motive to lie.

       2. Timing and Relationship (Ryan Factor 5)

       Pierce mentions the trial court’s finding regarding the timing, consistency, and

relationships involved in J.F.’s disclosures, but does not include any argument regarding this

factor. We do not consider conclusory arguments unsupported by citation to authority or rational

argument. Mason, 170 Wn. App. at 384. Therefore, we decline to consider this issue.




9
 Although Pierce identifies Ryan factors 1, 3, 4, 5, 6, and 7 in his assignment of error, he
addresses only factors 1 and 5 in his argument. We accordingly decline to consider factors 3, 4,
6, and 7. See Rush, 190 Wn. App. at 956.

                                                  20
No. 49596-1-II


       All of the relevant reliability findings are supported by substantial evidence or are

unchallenged verities. As noted above, because we consider the reliability factors taken together

as a whole, we are satisfied the Ryan factors were substantially met. Kennealy, 151 Wn. App. at

881. We accordingly hold that the trial court did not abuse its discretion by admitting J.F.’s child

hearsay statements to Profitt, Robertson, Arnold, and Breland.

C.     Forensic Interviews

       For the first time in his reply brief, Pierce argues that the trial court erred by admitting the

forensic interviews of P.P. and J.F. because they contained information unrelated to the abuse

that could have caused the jury to improperly sympathize with the victims. Our Supreme Court

has held that “[a]n issue raised and argued for the first time in a reply brief is too late to warrant

consideration.” Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992). Therefore, we decline to consider this issue.

                                             III. JUROR 8

       Pierce argues that the trial court erred by failing to dismiss juror 8 because juror 8 may

have been sleeping. We disagree.

A.     Legal Principles and Standard of Review

       Under RCW 2.36.110, a judge shall “excuse from further jury service any juror, who in

the opinion of the judge, has manifested unfitness as a juror by reason of . . . inattention.” CrR

6.5 also states, “If at any time before submission of the case to the jury a juror is found unable to

perform the duties the court shall order the juror discharged, and the clerk shall draw the name of

an alternate who shall take the juror’s place on the jury.” We have explained that RCW 2.36.110

and CrR 6.5 “place a continuous obligation on the trial court to excuse any juror who is unfit and


                                                  21
No. 49596-1-II


unable to perform the duties of a juror.” State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866

(2000).

          We review the trial court’s decision regarding whether to excuse a juror for abuse of

discretion. Id. at 226. We defer to the trial court’s credibility determinations, since the trial

court was able to observe the juror and court proceedings. Id. at 229.

B.        Fitness of Juror 8

          Outside the presence of the jury, the trial court explained that juror 1 had spoken with the

court’s judicial assistant and informed the assistant that he believed that juror 8 was sleeping.

The court stated that she had not observed juror 8 because she was taking notes, but commented

that court staff saw juror 8 leaning her head back and closing her eyes. The State mentioned that

one of its witnesses had also observed that juror 8 appeared to be fighting to stay awake.

Pierce’s counsel stated that he saw juror 8 close her eyes, but he “didn’t get the impression she

was actually sleeping.” VRP (Vol. XII) at 1179. After the jury returned, the court reminded the

jury that it was important for them to pay close attention and that the jurors could request breaks

if needed.

          During the State’s closing argument, juror 1 stated that he believed juror 8 was sleeping,

although juror 8 responded that she was listening. After the jury had begun deliberating, Pierce’s

counsel raised the issue of whether juror 8 had been sleeping and asked the court to dismiss juror

8. The State suggested that the court question juror 8 to determine whether she could effectively

fulfill her obligation as a juror. When asked if she was sleeping, juror 8 responded that she had

closed her eyes but she was not “full sleep[ing],” and that she had “fully and fairly heard all the

evidence in the case in a way that [enabled her] to perform [her] duties as a juror.” VRP (Vol.


                                                   22
No. 49596-1-II


XVI) at 1706-07. Pierce’s counsel renewed his motion to dismiss juror 8, and the trial court

denied the motion.

       Pierce asserts that the trial court was obligated to stop the proceedings and inquire about

juror 8’s attentiveness after juror 1 first informed the court that he thought juror 8 was sleeping.

However, the record shows that the trial court had been taking notes and had not seen whether

juror 8 was sleeping. Additionally, Pierce’s counsel told the court that he did not think that juror

8 was actually sleeping. Therefore, we conclude that the trial court did not abuse its discretion

by choosing to remind the jury to pay attention, rather than questioning juror 8 at that time.

       Pierce contends that the trial court erred by not questioning juror 8 after juror 1

mentioned that juror 8 was sleeping during the State’s closing argument. Immediately after juror

1 stated that he thought juror 8 was sleeping, juror 8 responded that she was not sleeping. The

trial court could have reasonably determined that juror 8 was not sleeping based on her quick

response to juror 1’s statement. We conclude that the trial court did not abuse its discretion by

not questioning juror 8 during the State’s closing argument.

       Pierce further argues that the trial court erred by accepting juror 8’s explanation that she

was not sleeping because “a sleeping or dozing juror would hardly know whether she had heard

all of the evidence.” Br. of Appellant at 57. However, whether juror 8 was mistaken or lied to

the superior court about hearing all of the evidence presents a credibility issue. We generally

defer to the credibility determinations of the trial court, who was able to directly observe juror 8.

Jorden, 103 Wn. App. at 229. Therefore, we hold that the trial court did not abuse its discretion

by declining to dismiss juror 8.




                                                 23
No. 49596-1-II


                                  IV. SUFFICIENCY OF THE EVIDENCE

          Pierce maintains that the State did not present sufficient evidence for a jury to convict

him of attempted first degree child molestation as to P.P. and first degree child molestation as to

J.F.10 We disagree.

A.        Legal Principles and Standard of Review

          In evaluating the sufficiency of the evidence, we view the evidence in the light most

favorable to the State to determine whether any rational trier of fact could have found the

elements of the crime beyond a reasonable doubt. State v. Mines, 163 Wn.2d 387, 391, 179 P.3d

835 (2008). A challenge to the sufficiency of the evidence admits the truth of the State’s

evidence. Id. We do not review credibility determinations, which are reserved for the trier of

fact. Id. Furthermore, we consider direct and circumstantial evidence equally reliable in

evaluating the sufficiency of the evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470

(2010).

          Under RCW 9A.44.083, a person is guilty of first degree child molestation when the

person has, or knowingly causes another person under the age of 18 to have, sexual contact with

another who is less than twelve years old and not married to the perpetrator, and the perpetrator

is at least 36 months older than the victim. RCW 9A.44.010(2) defines “sexual contact” as “any

touching of the sexual or other intimate parts of a person done for the purpose of gratifying



10
  Pierce states in his brief that “[t]he jury acquitted Pierce of two counts of first degree child
molestation against J.F. and thus it is unknown what acts they relied upon to convict him for the
one count of conviction.” Br. of Appellant at 58. However, Pierce has not cited to any authority
or made additional argument regarding jury unanimity. We do not consider conclusory
arguments unsupported by citation to authority or rational argument. Mason, 170 Wn. App. at
384. Therefore, we decline to consider this issue.

                                                   24
No. 49596-1-II


sexual desire of either party or a third party.” Under RCW 9A.28.020(1), “[a] person is guilty of

an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act

which is a substantial step toward the commission of the crime.”

       Our Supreme Court has explained that in the context of first degree child molestation, the

definition of “sexual contact” in RCW 9A.44.010(2) “excludes inadvertent touching or contact

from being a crime.” State v. Lorenz, 152 Wn.2d 22, 34, 93 P.3d 133 (2004). Division One of

our court has held that “‘[p]roof that an unrelated adult with no caretaking function has touched

the intimate parts of a child supports the inference the touch was for the purpose of sexual

gratification.’” State v. Harstad, 153 Wn. App. 10, 21, 218 P.3d 624 (2009) (quoting State v.

Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991)). However, if the contact occurred when

clothes covered the intimate part, we require additional proof of sexual purpose. Id. at 21.

Furthermore, “[c]ontact is ‘intimate’ . . . if the conduct is of such a nature that a person of

common intelligence could fairly be expected to know that, under the circumstances, the parts

touched were intimate and therefore the touching was improper.” Id. (quoting State v. Jackson,

145 Wn. App. 814, 819, 187 P.3d 321 (2008)).

B.     Attempted Molestation of P.P.

       P.P. testified that when she was eight years old and in second grade, Pierce carried her to

the upstairs of the daycare and touched her genitals. P.P. stated that the touching was over her

clothing. P.P. also testified that Pierce told her not to tell his wife about the encounter. Angela

further stated that while Pierce would occasionally help his wife with daycare matters, she did

not think that he had much of a role in operating the daycare. P.P. also mentioned that Pierce

had never helped her use the restroom or change clothes while she was at the daycare.


                                                  25
No. 49596-1-II


       Based on P.P.’s and Angela’s testimony, the jury could have reasonably found beyond a

reasonable doubt that Pierce took a substantial step towards first degree child molestation by

touching P.P.’s genitals over her clothing. The jury could have also inferred that the touching

was for the purpose of gratifying sexual desire and not innocent or accidental because Pierce was

unrelated to P.P., participated minimally in the operation of the daycare, and told P.P. not to tell

anyone about the incident. Therefore, we hold that the State presented sufficient evidence to

convict Pierce of attempted first degree child molestation.

C.     Molestation of J.F.

       The State submitted J.F.’s forensic interview into evidence and the interview was

published to the jury. During the interview, J.F. stated that all of the incidents took place when

she was seven. J.F. recalled that the most recent incident took place in Pierce’s motor home, and

that other incidents had occurred in Pierce’s bedroom and the daycare’s upstairs living room.

J.F. stated that Pierce directly touched her genitals in the motor home. J.F. also mentioned that

Pierce told her not to tell anyone about the incident in the motor home. J.F.’s forensic interview

establishes that Pierce directly touched J.F.’s genitals.

       The jury reasonably could have inferred that the touching was for the purpose of

gratifying sexual desire and not accidental or innocent based on the direct contact and the fact

that Pierce told J.F. to not tell anyone about the contact. Therefore, viewing the evidence in the

light most favorable to the State, a reasonable trier of fact could find that the elements of first

degree child molestation were proven beyond a reasonable doubt. We hold that the State

presented sufficient evidence to convict Pierce of first degree child molestation.




                                                  26
No. 49596-1-II


                                          CONCLUSION

        We affirm Pierce’s convictions.

        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.



                                                      Bjorgen, J.P.T.
 We concur:



 Lee, A.C.J.




 Sutton, J.




                                                 27
