                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                           October 30, 2018



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
 STATE OF WASHINGTON,                                                  No. 50215-1-II

                                 Respondent,

          v.                                                    UNPUBLISHED OPINION

 W.F.,

                                 Appellant.


         MAXA, C.J. – WF appeals his juvenile court adjudication of guilty of first degree child

molestation, which arose from an interaction with a six-year-old girl, GKJ, in WF’s backyard.

GKJ told three people – her mother, a forensic interviewer, and a medical doctor – that WF

reached inside her pants and touched her vagina.

         We hold that (1) the trial court did not err in ruling that GKJ was competent to testify, (2)

the trial court did not err in admitting GKJ’s hearsay statements, and (3) the State presented

sufficient evidence to prove that WF touched GKJ. Accordingly, we affirm WF’s adjudication.

                                               FACTS

         On September 14, 2016, GKJ was walking past WF’s house when WF told her that she

could use his cell phone if she came into his backyard. GKJ was six years old and WF was 13

years old at the time. In the backyard, WF put his hand down GKJ’s pants and touched the skin

of her vagina. WF also tried to pull down GKJ’s pants multiple times. Shortly thereafter, GKJ
No. 50215-1-II


told her mother that WF had touched her “pee-pee spot.” Clerk’s Papers (CP) at 69. GKJ’s

mother contacted law enforcement. The State charged WF with first degree child molestation.

       GKJ’s mother had discussions with GKJ about the incident with WF. GKJ also

participated in a videotaped forensic interview with Kim Holland, and a sexual assault medical

exam and an audio recorded interview with Dr. Kimberly Copeland. In the discussions with her

mother and in both interviews, GKJ disclosed that WF had touched her vagina.

       At trial, the trial court acknowledged the need for a hearing on the admissibility of GKJ’s

hearsay statements under RCW 9A.44.120. The parties agreed to treat the testimony from the

child hearsay hearing as trial testimony. All the State’s trial testimony was elicited in the RCW

9A.44.120 hearing portion of the trial with the exception of one witness.

       Holland testified about what GKJ told her about the incident, and the trial court viewed

the digital video disk of the interview. When Holland asked GKJ if she knew why she was

talking with her, GKJ stated, “Because somebody did something really inappropriate to me.”

Report of Proceedings (RP) at 73. GKJ stated to Holland that WF pulled her pants down and

touched her on her “potty part.” RP at 73. GKJ also told Holland that she had gone into WF’s

backyard to play on his phone. GKJ stated that WF touched her vagina one time, and then she

got up. GKJ told Holland that WF was trying to pull her pants down as she was walking away.

       Dr. Copeland testified about what GKJ told her about the incident, and the trial court

listened to the compact disk of the interview. Dr. Copeland asked GKJ about how she was

treated at home and whether anything inappropriate had happened to her before. GKJ told Dr.

Copeland that she was being interviewed because her brother’s friend had touched her “potty

parts.” RP at 115. GKJ told Dr. Copeland that WF touched the skin of her vagina one time with

his hand. GKJ stated that WF “pants[ed] me and touched my skin on my potty parts.” RP at




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No. 50215-1-II


115. GKJ explained to Dr. Copeland that WF first touched her vagina inside her clothes and

then tried to pull down her pants.

         GKJ’s mother testified about her conversations with GKJ. She stated that GKJ had

checked in with her earlier in the evening and gone back out into the neighborhood. GKJ’s

mother stated that she was leaving to pick up GKJ from the neighbor’s house where she assumed

GKJ was playing when GKJ came “flying out of [WF’s] driveway.” RP at 128. She stated that

GKJ told her she had been playing a game with WF and he tried to pull her pants down multiple

times. GKJ’s mother testified that GKJ said WF touched her “pee pee spot” after he pulled down

her pants. RP at 132.

         GKJ testified and answered questions about her understanding of the difference between

the truth and a lie, as well as her interaction with WF. GKJ stated that she knew the difference

between the truth and a lie, and she recalled details from her birthday party. GKJ testified that

WF told her that if she wanted to play on his phone she had to go in his backyard. GKJ went in

the backyard and played with WF’s phone. GKJ then stated that WF touched her where she goes

pee, under her clothes and on her skin. She also said that WF pulled down her pants.

         After hearing this testimony, the trial court considered argument regarding the

admissibility of GKJ’s hearsay statements. The State focused its argument on the Ryan1 factors

for admissibility under RCW 9A.44.120. The State only briefly discussed GKJ’s competency to

testify, stating, “I think there is no question that [GKJ] is a competent witness.” RP at 198. In

response, WF argued that certain Ryan factors were not present. WF did not argue that GKJ was

not competent to testify.




1
    State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).



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No. 50215-1-II


         The trial court provided a detailed oral ruling that GKJ was competent to testify,

analyzing each of the Allen2 factors for competency. The trial court expressly found that GKJ

had an understanding of the obligation to speak the truth based on her responses to the

prosecutor’s questions about what was a lie and what was the truth. The trial court entered

specific findings of fact regarding those factors and entered a conclusion of law that GKJ was

competent to testify.

         The trial court then provided a detailed oral ruling that GKJ’s hearsay statements to

GKJ's mother, Holland, and Dr. Copeland were admissible under RCW 9A.44.120, analyzing

each of the Ryan factors. The trial court entered specific findings of fact regarding most of those

factors and entered conclusions of law that all of GKJ’s hearsay statements were reliable and

were admissible.

         After the trial court’s rulings, WF testified in his defense. He denied touching GKJ

inside her clothing or pulling down her pants.

         The trial court adjudicated WF guilty of first degree child molestation. WF appeals the

trial court’s adjudication.

                                            ANALYSIS

A.       COMPETENCY OF CHILD WITNESS

         WF argues that the trial court erred in finding GKJ competent to testify at trial. We

disagree with WF.

         1.   Standard of Review

         Under RCW 5.60.050, all witnesses – including child witnesses – are presumed to be

competent to testify unless proved otherwise by a preponderance of the evidence. State v.



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


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No. 50215-1-II


Brousseau, 172 Wn.2d 331, 341, 259 P.3d 209 (2011). The party challenging the witness’s

competency has the burden of proof. Id.

       In State v. Allen, the Supreme Court outlined the test a trial court must employ when

assessing the competency of a child witness. 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). The

trial court must determine whether the child demonstrates:

       (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.

Id.; see also Brousseau, 172 Wn.2d at 337.

       We review a trial court’s ruling on a child’s competency to testify for a manifest abuse of

discretion. Brousseau, 172 Wn.2d at 340. Because the competency of a minor witness is not

easily reflected in a written record, we “must rely on the trial judge who sees the witness, notices

the witness’s manner, and considers his or her capacity and intelligence.” State v. Woods, 154

Wn.2d 613, 617, 114 P.3d 1176 (2005). “There 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. (quoting State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810 (1990),

overruled on other grounds, State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997)). We may

examine the entire record in reviewing the trial court’s competency determination. Woods, 154

Wn.2d at 617.

       2.    Failure to Challenge in Trial Court

       A party must object to the competency of a witness at the first opportunity in the trial

court. State v. C.M.B., 130 Wn. App. 841, 847, 125 P.3d 211 (2005). A witness’s competency

to testify cannot be challenged for the first time on appeal. Id.



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No. 50215-1-II


        Here, WF did not expressly object to GKJ’s competency and did not argue that GKJ was

not competent to testify. However, despite WF’s failure to address the issue, the trial court made

express findings of fact and a conclusion of law regarding GKJ’s competency. WF assigned

error to the trial court’s conclusion that GKJ was competent to testify. And the State does not

argue that WF should be precluded from challenging GKJ’s competency for the first time on

appeal. Therefore, we exercise our discretion to consider WF’s competency argument.

        3.   No Abuse of Discretion

        WF argues that the trial court erred in finding that GKJ understood her obligation to tell

the truth, the first Allen factor. As a result, he argues that the trial court should not have ruled

that GKJ was competent to testify.

        We review a challenge to a trial court’s findings of fact to determine if substantial

evidence supports them. State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014).

Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth of

the premise stated. Id. at 106. The party challenging the finding of fact bears the burden of

demonstrating that the finding is not supported by substantial evidence. State v. Smith, 185 Wn.

App. 945, 957, 344 P.3d 1244 (2015).

        Here, the trial court found that GKJ understood her obligation to tell the truth based on

her answers to the prosecutor’s questions. GKJ testified that she knew the difference between

the truth and a lie and promised to tell the truth. When the prosecutor stated that her jacket was

red and asked GKJ if the statement was the truth or a lie, GKJ correctly stated that it was a lie.

And when the prosecutor stated that her jacket was black, GKJ correctly stated that it was true.

GKJ also promised to tell the truth. This testimony supports the trial court’s finding that GKJ

could distinguish between the truth and a lie.




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No. 50215-1-II


        WF argues that the court’s finding was insufficient to satisfy the first Allen factor. He

claims that the State did not establish that GKJ understood what it meant to promise to tell the

truth or that she knew why it was important to tell the truth in court. However, we hold that

GKJ’s promise to tell the truth and her demonstrated ability to tell the difference between the

truth and a lie was sufficient to satisfy the first Allen factor. Accordingly, we hold that the trial

court did not abuse its discretion in finding GKJ competent to testify.

B.      ADMISSIBILITY OF CHILD HEARSAY STATEMENTS

        WF argues that the trial court erred in admitting GKJ’s hearsay statements to her mother,

Holland, and Dr. Copeland. He argues that the trial court erred in finding GKJ’s hearsay

statements reliable because (1) there was no corroborative evidence, and (2) the trial court failed

to consider the reliability of each statement separately. We disagree.

        1.   Legal Principles

        RCW 9A.44.120 states that the otherwise inadmissible hearsay statements of a child

witness under the age of 10 are admissible in a criminal case when (1) the statements describe

sexual or physical abuse of the child; (2) the court finds that the time, content, and circumstances

of the statements provide sufficient indicia of reliability; and (3) either the child testifies at the

proceedings or the child’s statements are supported with corroborative evidence of the act. RCW

9A.44.120(1), (2)(a), (b); State v. Kennealy, 151 Wn. App. 861, 880, 214 P.3d 200 (2009).

        In determining whether the child witness’s statements are reliable, the trial court must

consider nine factors, first discussed in State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197

(1984). Kennealy, 151 Wn. App. at 880. The trial court must find that the factors are

substantially met, but all nine factors need not be satisfied. Id. at 881.




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No. 50215-1-II


       Because only the trial court has the opportunity to see and evaluate the child and the other

witnesses, it is in the best position to determine the reliability of child hearsay statements. State

v. Pham, 75 Wn. App. 626, 631, 879 P.2d 321 (1994). As a result, “[t]he trial court is

necessarily vested with considerable discretion in evaluating the indicia of reliability.” State v.

C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003). We review a trial court’s decision to admit child

hearsay statements for an abuse of discretion. Kennealy, 151 Wn. App. at 879.

       2.    Need for Corroborative Evidence

       WF argues that the trial court should have ruled that GKJ was not competent to testify at

trial. If GKJ was not competent, she would not have been available to testify and the State

would have been required to present corroborative evidence to admit her hearsay statements.

WF points out that there was no such corroborating evidence.

       However, because we hold above that the trial court did not abuse its discretion in ruling

that GKJ was competent to testify, GKJ was not unavailable as a witness. And because GKJ

testified at trial, the State was not required to support GKJ’s statements with corroborative

evidence. RCW 9A.44.120(2)(a), (b).

       3.    Indicia of Reliability

       WF argues that the trial court erred in finding sufficient indicia of reliability to admit

GKJ’s statements under RCW 9A.44.120. We disagree.

             a.   Separate Examination of Each Statement

       WF argues that the trial court erred by failing to examine the reliability of each of the

three statements separately. He cites State v. Stevens, 58 Wn. App. 478, 794 P.2d 38 (1990). In

that case, the court stated, “The plain language of [RCW 9A.44.120] indicates that the individual




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No. 50215-1-II


statements are the proper focus of the inquiry,” and stated that a trial court should apply the Ryan

factors to each statement offered in order to properly test reliability. Id. at 486-87.

        However, the court in Stevens also stated that challenges to the trial court’s method of

analysis could not be raised for the first time on appeal unless under RAP 2.5(a)(3) the challenge

involved a manifest constitutional error. 58 Wn. App. at 485-86. The court stated that if both

the child declarant and the hearsay recipient testify and are available for cross examination, “no

constitutional confrontation or due process concerns arise.” Stevens, 58 Wn. App. at 486.

Therefore, the court held that an error in the method of analysis is not of constitutional

magnitude and is not preserved for appellate review if both the declarant and hearsay recipient

testified at trial. Id.

        Here, WF never objected to the trial court’s method of applying the Ryan factors.

Therefore, we hold that WF cannot challenge the trial court’s method of analyzing the

admissibility of GKJ’s statements for the first time on appeal.3

              b.    Challenges to Findings of Fact

        WF challenges the trial court’s findings of fact regarding the first, third, and ninth Ryan

factors. He claims that substantial evidence did not support these findings. As noted above, we

review challenges to findings of fact to determine if substantial evidence supports them. Homan,

181 Wn.2d at 105-06.

        The first Ryan factor is whether the child had an apparent motive to lie. Kennealy, 151

Wn. App. at 880. Finding of fact 10 states, “There is no evidence that G.K.J. has any motivation



3
  In any event, the trial court did address the statements individually to some extent. The trial
court entered separate findings that GKJ’s statements to her mother, Holland, and Dr. Copeland
were in response to nonleading questions. And the court entered separate conclusions of law
regarding both the reliability and admissibility of GKJ’s statements to her mother, Holland, and
Dr. Copeland.


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No. 50215-1-II


to lie about the sexual contact with [WF].” CP at 65. WF argues that the trial court’s finding

that there was “ ‘no evidence that [GKJ] had any motiv[ation] to lie’ ” is not supported by

substantial evidence because GKJ indicated in her testimony that she did have a motive to lie

when she stated that she was worried about being in trouble after WF touched her. Br. of

Appellant at 25 (quoting RP at 182).

       However, GKJ’s mother testified that GKJ had permission to play in the neighborhood

and that GKJ and her brother had played with WF at other times. And GKJ indicated in the

interview with Dr. Copeland that she is not punished very often. GKJ also stated that she

previously had been in trouble when she had not told the truth. Therefore, we hold that

substantial evidence supports finding of fact 10.

       The third Ryan factor is whether more than one person heard the statements. Kennealy,

151 Wn. App. at 880. Finding of fact 12 states, “Three independent people heard G.K.J.’s

description of what occurred with [WF] ([GKJ’s mother], Kim Holland and Dr. Copeland.) The

statements G.K.J. made to these three individuals were highly consistent.” CP at 65. WF argues

that substantial evidence did not support the trial court’s finding because GKJ’s three

descriptions were inconsistent. For example, he argues that GKJ told Holland that the touching

had hurt, but stated to Dr. Copeland that the touching did not feel different. In addition, GKJ

told Holland that WF had laid her across his stomach, but GKJ’s mother testified that GKJ never

told her about laying on WF.

       However, GKJ’s three different accounts were consistent in that they all described the

same acts of touching her vagina under her clothes and trying to pull down her pants. GKJ told

each of the witnesses that WF had touched her vagina one time and pulled down her pants. And

GKJ used consistent language when describing how WF had touched her to each of the




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No. 50215-1-II


witnesses, saying WF had touched her potty part or pee pee spot. The differences in GKJ’s

statements to the witnesses reflect responses to different questions and do not directly contradict

each other. Therefore, we hold that substantial evidence supported finding of fact 12.

       The ninth Ryan factor is whether the surrounding circumstances suggested that the child

misrepresented the defendant’s involvement. Kennealy, 151 Wn. App. at 880. Finding of fact

17 states, “There was no evidence to suggest that G.K.J. misrepresented [WF]’s involvement.”

CP at 65. WF argues that the inconsistencies in GKJ’s statements to the witnesses are evidence

that GKJ might have misrepresented what happened.

       However, GKJ’s statements differed on insignificant details like the games she had

played that afternoon and exactly what the items in the backyard were, but not on WF’s

involvement. GKJ told each of the witnesses that WF had put his hand inside her clothes to

touch her vagina and had tried to pull down her pants. And GKJ told her mother and Holland

that WF had offered to let her play on his phone in the backyard. Therefore, we hold that

substantial evidence supported finding of fact 17.

            c.   Summary

       Substantial evidence supported the trial court’s findings regarding the first, third, and

ninth Ryan factors. And WF does not challenge the court’s analysis of the other factors.

Accordingly, we hold that the trial court did not abuse its discretion in ruling that GKJ’s hearsay

statements were admissible under RCW 9A.44.120.

C.     SUFFICIENCY OF EVIDENCE

       WF argues that without GKJ’s testimony or her hearsay statements admitted under RCW

9A.44.120, the State did not present sufficient evidence to prove that he committed first degree

child molestation. However, we hold that the trial court did not err in allowing GKJ’s testimony




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No. 50215-1-II


and admitting her hearsay statements. WF does not argue that the evidence was insufficient if

this evidence was admitted. Therefore, we reject WF’s sufficiency argument.

                                         CONCLUSION

        We affirm WF’s adjudication of guilty of first degree child molestation.

        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.



                                                     MAXA, C.J.


 We concur:



 BJORGEN, J.



 LEE, J.




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