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                                                                                                  1014 JAS+28 P1 q: tzo
       IN THE COURT OF APPEALS OF THE STATE OF W

                                                     DIVISION II

STATE OF WASHINGTON,                                                              No. 431


                                         Respondent,


            V.



ADRIAN JOSEPH MAUPIN,                                                     UNPUBLISHED OPINION


                                         M

            Penoyar, ,J. —      Adrian Maupin appeals his conviction for first degree child molestation.


He contends the trial court violated his right to due process and his right to remain silent under

the Fifth and Fourteenth Amendments and the Washington State Constitution when it admitted

statements he made to Kelso Police Detective Dave Voelker that he alleges were coerced and

thus   involuntary.          In his   statement   of additional   grounds (   SAG), Maupin also argues the trial


court violated his time for trial right, improperly found two witnesses' inconsistent statements

reliable and admissible, and improperly treated a second Ryan' hearing as a continuation of the

first Ryan        hearing,    instead   of a new   hearing. We hold substantial evidence supports the trial

court' s finding that Maupin' s statements were not coerced, but were voluntary and the product of

his own rational balancing of the competing circumstances. We also hold Maupin' s time for trial

right was not violated, the trial court properly exercised its discretion when admitting the

witnesses' statements from the Ryan hearing, and the second Ryan hearing was a continuation of

the first. We affirm Maupin' s conviction.




1
    State   v.   Ryan, 103 Wn.2d 165, 691 P. 2d 197 ( 1984).
43191 -2 -II



                                                                     FACTS


I.         BACKGROUND


           In 2011, Samantha West and Maupin had been close friends for over ten years and


considered each other              family. Maupin frequently babysat West' s two children, J. W. and M.W.,

either at his house or at West' s house. West' s children referred to Maupin as their uncle.

           While West        was         changing J. W.' s2      diaper in May or June. 2011, J. W. told West to stop

touching him         and   that Maupin had " touched his                     wee wee."    lA Report of Proceedings ( RP) at


51.    West testified that J. W. seemed serious and kind of scared when he made this statement.

           Again in                2011,               West          watching her friends'       children,     J. W. " out of the blue
                       July                while               was




       said   that [ Maupin]         put   his    wee wee       in my   mouth."     lA RP       at    59.   After the other children


left, West asked J. W. about what he had said and J.W. again told West that Maupin " put his wee

wee    in my     mouth."       lA RP        at   61.   Also, while West was babysitting in July 2011, one of West' s

friend'    s children,     J. C., who was eight at the time, heard J. W. twice state that Maupin " touched


my     pee pee."      lA RP         at    30.    West did not immediately report J. W.' s statements to the police.

Instead, after she talked with her counselor about it, her counselor reported J. W.' s statements.

           Detective Voelker               received      the   case   for investigation.        West took J. W. to a Children' s


 Justice                            Center ( CJAC) forensic interview              on    July   26, 2011.     When the interviewer
           and   Advocacy

 mentioned       Maupin'       s    name        to J. W.,   J. W. became upset and hid in an alcove in the room.


 Attempting to make J. W. feel more comfortable, the interviewer brought West into the room.

 However, when the interviewer brought up Maupin again, J. W. became angry and started

 pinching      and   hitting       West,    so   the interviewer       ended    the interview.        A couple weeks after J. W.' s


 second       CJAC interview, J. W.              again   told West that Maupin " put            his   wee wee    in my   mouth."   lA



 2
     J. W. was two and a half years old at the time.
                                                                         2
43191 -2 -II



RP    at   72.    West also testified that she saw behavioral changes in J. W. beginning in September

2011.       She   stated     J. W. " pe[ ed]" in places other than the toilet, and pulled down his pants and


asked      his brother, M.W., to kiss his " wee              wee."   4 RP at 538.


            After J.W. attended the Ryan hearing in December 2011, West noted that J.W. seemed

distant.     When she asked him what was wrong, J.W. said he did not want to go back to court.

When West          asked      J. W. if he   saw      Maupin in     court,   J. W.   replied, "   Yeah, [ Maupin] put his wee


wee    in my      mouth.      I don' t   want   to   go   back there."    4 RP at 535.


II.         MAUPIN' S INTERACTION WITH DETECTIVE VOELKER


            Beginning on July 27, 2011, Detective Voelker made several attempts to contact Maupin
to schedule        an   interview.        Maupin failed to attend the first scheduled interview on August 4,

2011.       Maupin again failed to attend the rescheduled interview the morning of August 10, 2011.

Maupin, however, showed up at the police station unannounced around 1: 30 P. M. on August 10,

2011.


            Detective Voelker told Maupin that because he was in a police station, everything was

                             Detective Voelker took             Maupin to     what    is referred to      as   a " soft" interview
being      recorded.




room.        1B RP      at   108.   The room was approximately 12 feet by 12 feet and contained two tables

 and chairs.       Detective Voelker and Maupin sat at the center table together, with. Maupin seated

 closest     to the door,      which remained unlocked               throughout the      interview.      Detective Voelker was


 dressed in civilian clothes, but he wore a firearm holstered at his side.
                                                                                                                        Miranda3


             Before he began questioning Maupin, Detective Voelker                                read   Maupin his


 rights.     Maupin never asked any questions about his rights or expressed any confusion about his
 rights.     Maupin agreed to talk to Detective Voelker and signed the form waiving his Miranda


 3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
                                                                      3
43191 -2 -II



rights.   At the time of the interview Maupin was 22 years old and had an 11th grade education.

The interview. lasted just under 30 minutes.

          In    preparation    for his interview           with      Maupin, Detective Voelker            created    a "   ruse"




document.        1B RP   at   104.       Detective Voelker printed a copy of RCW 9A.44.030 from the state

legislature     website and altered        the title to   state, "   Sexual contact with a minor, when permissible."


Ex. 5 ( Altered       Copy    of   RCW 9A.44. 030).             Detective Voelker         also   added   a " no   penetration"




defense to the       altered printout of       the   statute: "      FURTHER, That it is a defense that only exterior

touching       occurred of,   body       parts, without penetration           however so   slight."   Ex. 5 ( Altered Copy

of   RCW 9A. 44. 030).        Detective Voelker explained that he decided to use the document because

Maupin had prior experience with the police and he was educated on the interview techniques

and might be leery of talking to the police, especially considering that Maupin had already failed

to   attend    two   scheduled     appointments.          Detective Voelker expressed his opinion that Maupin


appeared to be an intelligent, articulate man who comprehended everything discussed in the

interview.


          At the beginning of the interview, Detective Voelker told Maupin that he could either be

his friend or his enemy and that Maupin could trust him, which he reiterated throughout the

interview.        Detective Voelker also suggested to .Maupin that he had evidence that Maupin

touched        J. W. from J. W.'     s   CJAC forensic interview.              Detective Voelker told Maupin that the


forensic interview "      applies         scientific principles          to everything"   and that the evidence from the


CJAC forensic interview            was as sure as "       gravity."       Ex. 5 ( Interview Transcript), at 11.




                                                                     0
43191 -2 -II




            Early in the interview, .Detective Voelker also told Maupin that the law had " changed a
little bit" since his 2004 conviction,4 and he showed Maupin a copy of the ruse document. Ex. 5,

at   3.   Detective Voelker reiterated throughout the interview that no penetration was a defense and

that if Maupin would confess to no penetration sexual contact, then he could close out the case.

Ex. 5,      at    7 ( " Now    you understand           if   you     told    me, yeah,   I touched his —his wiener, that I can


close this out. And I' m not doing anything about that because it' s a defense. No penetration. ");

Ex. 5,      at    14 ( " Now —now that'             s not penetration either.            And so, technically that' s permissible

too.      I' m   not    saying do it. But I' m saying if                 you wanna    say that,   we can—       we can just knock this


out.      That    would      be helpful. "); Ex. 5,          at   17 ( " I' m    just thinking there' s no penetration and that' s

okay.").


            Maupin questioned the no penetration defense and what Detective Voelker meant by

closing the            case out.     Although Detective Voelker showed Maupin the ruse document, Maupin

never actually read it, nor did he really look at it. Maupin stated that the no penetration defense
was " so         ridiculous."         Ex. 5,    at    15.     When Maupin first questioned Detective Voelker about

                 out   the   case    he   asked, "     That       would      like what   end   this -   end     it all ?" and Detective
closing


Voelker                                                      but I           it to be the truth." Ex. 5,        at   15. The second time
                 responded, "       Pretty   much ...                need




Maupin           asked, "    So if    you    just    close   the     case,   what    does that    mean?   It'   s    done   and over,"   and




 Detective Voelker             responded, "         Yeah, it[']      s   done    and over with."    Ex. 5,      at   22 -23.   Maupin told


 Detective Voelker that he did not understand, but then immediately thereafter confessed.

 Maupin said he interpreted closing the case out to mean that " it would be done with and I would

 4 Maupin was investigated in 2004 for allegations of sexual contact with his five- year -old female
 cousin. Sergeant Kimber Yund interviewed Maupin in the same interview room where Detective
 Voelker interviewed him in 2011.                           Maupin denied the allegations and was allowed to leave the
 police      department.            He was later charged and pled guilty to second degree attempted child
 molestation.

                                                                             5
43191 -2 -II



be   able   to leave.    That if I    said what      he    wanted me        to say I    could   leave."    1B RP   at   170.   But


Maupin stated that he also thought he was going to jail after his interview anyway because he

had a warrant for his arrest on a prior DUI charge.

            Even though Detective Voelker used the no penetration defense ruse and told Maupin he

just wanted to close the case out, Detective Voelker testified that he never made any threats to

get Maupin to speak with him, nor did he make any promises about what would or would not

happen in the case. Detective Voelker explained that closing the case was his goal in every case,

which required going forward with the interview and working to the conclusion of the case.

            Maupin initially denied all allegations and explained that he possibly touched J.W. with a

wipe    while     he . changed J. W.' s diaper.             Maupin then confessed to touching J. W. but shortly

thereafter retracted his confession by stating he confessed only because it was what Detective

Voelker      wanted      to hear.     Toward the end of the 30- minute interview Maupin confessed by

saying, " I did it,"      and   then answering "          yes"    to three   questions: (   1) Did you touch J. W.' s butt?;


 2) Did     you   touch J. W.' s    penis ?; and (   3) Did       you    touch J. W.'   s penis with your    lips? Ex. 5, at 23.


Thus, Maupin' s         confession consisted of            his   general statement, "      I did it,"   and answering " yes" to

three   of   Detective Welker'        s six questions.           Ex. 5, at 23.    Maupin did not confess to any form of

penetration. After Maupin confessed, Detective Voelker told Maupin he was under arrest for the

warrant and       for   child molestation,    to   which         Maupin    replied, "   I figured."     1B RP at 118.


III.        PROCEDURAL HISTORY


            The State charged Maupin with first degree child rape and first degree child molestation.

Maupin       was arraigned and         trial was     set   for October 17, 2011.            The trial date was continued to


November 28, 2011               upon    the   State'   s    motion.        The State then filed a second motion for




                                                                     n
43191 -2 -II



continuance      because there       was not adequate        time   for the Ryan   hearing before   trial.   The trial


court found good cause for the continuance and set a new trial date for January 3, 2012.

         On December 5, 16, and 21, 2011, the trial court conducted a Ryan hearing to determine

the admissibility of J. W.' s child hearsay statements under RCW 9A.44. 120, and a CrR 3. 5
hearings

           to determine the admissibility              of   Maupin'   s   statements   to Detective Voelker.    After



determining that J. W. was incompetent and thus unavailable to testify, the trial court heard

testimony from West and J. C. regarding statements J. W. made to them about Maupin touching

him.    The trial court also heard testimony from Detective Voelker, Sergeant Kimber Yund, who

interviewed Maupin regarding the 2004 sexual contact with a minor investigation, and Maupin.

         The day before trial on January 2, 2012, the State learned of new statements J. W. made to
West    after   the December 5, 2011 Ryan             hearing. The trial court pushed the trial date to January

26, 2012, to allow time for a continuation of the Ryan hearing to determine the admissibility of

J.W.' s new statements. Maupin objected to this continuance, but the trial court found good cause

and    determined Maupin        would not       be   prejudiced.    At the continued Ryan hearing, the trial court

heard testimony from West and West' s neighbor, to whom J.W. also allegedly made statements

after the December 5, 2011 Ryan hearing.

         Regarding the Ryan hearing, the trial court determined that J.W.' s alleged statements to

West and J. C. were reliable and were corroborated by additional evidence. The trial court found


s
    CrR 3. 5(   a)   provides   in   relevant   part, "   When a statement of the accused is to be offered in
evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if
not previously held, for the purpose of determining whether the statement is admissible."

 6 This included West' s testimony regarding J.W.' s statement to her in May or June 2011 while
 she was changing his diaper, the statement J.W. made in July 2011 while West was babysitting,
the statement J. W. made a couple weeks after his second CJAC forensic interview, and the
statement J. W. made after the December 5, 2011 hearing.
                                                               7
43191 -2 -II




J. W.' s    alleged statements       to West'     s neighbor unreliable and            thus inadmissible.        Regarding the

CrR 3. 5 hearing, the trial court found that Detective Voelker did not use any threats or coercion

to obtain Maupin' s statement, that Maupin' s testimony was not credible, that Maupin was not

convinced of the no penetration defense, that Detective Voelker' s statement that he wanted to
                                                                                                           o




close the case out did not overbear Maupin' s will and cause him to make an irrational choice,

and    that Maupin'      s choice    to   confess was rational.              The trial court also stated the no penetration


defense      was "    sufficiently   vague and unclear           that   it didn' t really   mislead   Mr. Maupin."        2 RP at


281.       The trial court concluded that Maupin' s statements to Detective Voelker were made


knowingly, intelligently, and voluntarily and were admissible at trial.

            Maupin waived his right to a jury trial and the trial court found him not guilty of first

degree      child rape,    but guilty     of   first degree     child molestation.       The trial court sentenced Maupin


to 119 months to life. Maupin timely appeals.

                                                               ANALYSIS


I.          STANDARD OF REVIEW


            Our Supreme Court rejected the principle of an independent appellate review of the

record      in   a confession case: "          We hold that the rule to be applied in confession cases is that


findings of fact entered following a CrR 3. 5 hearing will be verities on appeal if unchallenged;

and,   if   challenged,     they   are verities        if   supported   by   substantial. evidence    in the   record."   State v.


Broadaway,            133 Wn.2d 118, 131, 942 P. 2d 363 ( 1997). "                   Consequently, when reviewing a trial

court's conclusion of voluntariness, an appellate court determines ` whether there is substantial

evidence in the record from which the trial court could have found that the confession was

voluntary        by   a preponderance of         the    evidence. "'    State v. Rafay, 168 Wn. App. 734, 757 -58, 285

P. 3d 83 ( 2012) ( quoting         Broadaway,           133 Wn.2d       at   129).
43191 -2 -II



H.       VOLUNTARY CONFESSION


         Maupin argues the trial court improperly admitted his involuntary statements in violation

of his right to due process and his right to remain silent under the Fifth and Fourteenth

Amendments        and    the Washington State Constitution.                    Specifically, Maupin contends Detective

Voelker misrepresented the law, made false promises of immunity, gave Maupin incorrect legal

advice, lied about the facts of the case, and presented himself as a trustworthy friend; which he

argues . all together resulted in his involuntary statement that the trial court should have

suppressed.      Because Maupin made the rational and voluntary decision to confess and his will

was not overborne by coercive police tactics, we affirm.

         The Fifth Amendment to the United States Constitution                           states   that "[   n] o person ...   shall




be    compelled      in any      criminal     case    to be    a witness     against   himself."     U.S. CONST. amend. V.


Article I,     section      9    of    the Washington State Constitution                states   that "[    n] o person shall be


compelled      in any    criminal case         to    give evidence against         himself."     The protection provided by

the   state provision       is   coextensive with        that      provided   by   the Fifth Amendment.           State v. Unga,


165 Wn.2d 95, 100, 196 P. 3d 645 ( 2008).


          We examine the totality of the circumstances to determine if statements made during a

custodial interrogation were coerced, meaning that the defendant' s will was overborne by the

circumstances        surrounding the giving             of   the   confession.     Unga, 165 Wn.2d at 100; Broadaway,

 133 Wn.2d      at   132.       Circumstances relevant to the totality of the circumstances analysis include

the location, length, and continuity of the interrogation; the defendant' s maturity, education,
physical condition, and mental health; and whether the police advised the defendant of his Fifth

Amendment         rights.        Unga, 165 Wn.2d          at   101.       So long as the defendant' s decision to confess

Was     a "`   product      of [      his]   own .   balancing      of    competing    considerations,        the confession is

                                                                      E
43191 -2 -II



                      Unga, 165 Wn.2d        at    102 ( quoting Miller         v.   Fenton, 796 F. 2d 598, 605 ( 3d Cir.
voluntary. "'


1986)).


          The totality of the circumstances test specifically applies to determine whether a

confession was coerced by any express or implied promise or by the exertion of any improper

influence.          Unga, 165 Wn.2d         at    101.    Police lies, promises, or misrepresentations during an

investigation do        not   automatically         render      any resulting        statements   inadmissible.      Unga, 165


Wn.2d     at   101;   Broadaway,      133 Wn.2d          at   132. But if the police tactics manipulated or prevented


a defendant from making a rational, independent decision about giving a statement, the statement

is inadmissible.         Unga, 165 Wn.2d            at   102 ( quoting Miller, 796 F.2d            at   605);   Broadaway, 133

Wn.2d     at   132.    Thus, the misstatement or promise must be sufficiently compelling to overbear

the suspect' s will in light of all the attendant circumstances.


          A detective' s misstatement or misrepresentation of the law also does not automatically

result in a subsequent confession being involuntary. See, e.g., Conner v. McBride, 375 F.3d 643,

654 ( 7th Cir. 2004) ( trial        court was not unreasonable in determining defendant' s confession was

voluntary, even though police officer' s may have misrepresented state criminal law after the
defendant'      s   voluntary Miranda            waiver);     Jackson    v.   Frank, 348 F. 3d 658, 663, 665 ( 7th Cir.


2003) ( citing Soffar         v.   Cockrell,. 300 F. 3d 588, 591 ( 5th Cir. 2002)) ( state trial court was not


unreasonable in concluding that defendant' s Miranda waiver was voluntary despite the

 detective' s misstatement of state law regarding the availability of a public defender for the

 defendant      while   he    was   being   questioned);         State v. Curtiss, 161 Wn. App. 673, 690, 250 P. 3d

 496 ( 2011) (      defendant' s statements were not involuntary when detective correctly told defendant

 that the statute of limitations for rendering criminal assistance expired and then defendant' s

 statements were used          to   charge and convict           her   with   first degree   murder).      Our Supreme Court

                                                                    10
43191 -2 -II



has    stated   that "[   w]hile we do not condone deception, that alone does not make a confession

inadmissible         as a matter of     law." State v. Braun, 82 Wn.2d 157, 161, 509 P. 2d 742 ( 1973).


           Instead, to be involuntary, the detective' s deception must overbear the defendant' s " will

to    resist   and    bring     about   confessions        not    freely         determined."
                                                                            self -                          Braun, 82 Wn.2d at 162


                               Richmond, 365 U. S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 ( 1961)). "`                                   The
 quoting Rogers           v.




question [ is] whether [ the interrogating officer's] statements were so manipulative or coercive

that they deprived [ the suspect] of his ability to make an unconstrained, autonomous decision to
confess. "'     Unga, 165 Wn. 2d             at   102 ( quoting Miller, 796 F. 2d            at    605) (   alterations      in   original).   In


Curtiss, we held that a police officer' s accurate statement to Renee Curtiss that the statute of

limitations had           run   for rendering          criminal     assistance      did    not "    override Curtiss' s independent


decision -
         making            process      or   coerce     her into giving          a statement,"        which resulted in her being

convicted of         first degree     murder.          161 Wn.    App.      at   690.   We held Curtiss' s failure to realize all


                                                                             did                     its voluntary          nature.    Curtiss,
the    possible consequences of              giving the       statement            not change




161 Wn. App. at 691 ( citing State v. Heggins, 55 Wn. App. 591, 598 -99, 779 P. 2d 285 ( 1989)

 stating that the United States Supreme Court has " never embraced the theory that a defendant's
ignorance of the full consequences of his decisions vitiates their voluntariness" when assessing

the     voluntariness           of   custodial         statements) (     internal         quotation         marks     omitted) (       quoting


Connecticut v. Barrett, 479 U.S. 523, 530, 107 S. Ct. 828, 93 L. Ed. 2d 920 ( 1987))).

           Additionally, "[ a] police officer' s psychological ploys, such as playing on the suspect' s

 sympathies, saying that honesty is the best policy for a person hoping for leniency, or telling the

 suspect that he could help himself by cooperating may play a part in a suspect's decision to
 confess."        Unga,         165 Wn. 2d        at   102;   see    also    Miller, 796 F. 2d              at   605 ( "[   I]t is generally

 recognized that the police may use some psychological tactics in, eliciting a statement from a
                                                                       11
43191 -2 -II



suspect. ").         So long as the statements are a product of the defendant' s own balancing of

                considerations,          the    statements          are    voluntary.     Unga, 165 Wn.2d            at   102. ( quoting
competing

Miller, 796 F. 2d        at   605)..   The question we must answer, then, is not whether Detective Voelker' s

                        the cause of Maupin'               s confession         indeed,   we assume      that to be the      case — but
statements were




whether those statements were so manipulative or coercive that they deprived Maupin of his

ability to make an unconstrained, autonomous decision to confess.

          Here, Detective Voelker stated early in the interview that he could either be Maupin' s

friend or his enemy, and Detective Voelker reiterated throughout the interview that he could be
Maupin'    s   friend    and    that Maupin          could      trust     him. Detective Voelker told Maupin that he had


conclusive evidence from the CJAC forensic interview with J. W. that Maupin had touched J.W.

and that Maupin had put his lips on J. W.

          Detective Voelker              also    told      Maupin the law "             changed   a    little bit"    since his 2004


conviction and now " no penetration"                       is   a   defense to    sexual contact with a minor.              Ex. 5, at 3.


Detective Voelker showed Maupin a copy of the relevant statute, which he had altered, to

reinforce the no penetration defense, and then read a portion of the altered statute to Maupin:

   I]t is a defense that only exterior touching occurred of, body parts, without penetration

however        so    slight."    Ex. 5 ( Altered           Copy       of   RCW 9A.44. 030).           Detective Voelker also told


Maupin he just            wanted        to   close   the     case       out.    Throughout Maupin' s 30- minute interview,

 Detective Voelker reiterated the no penetration defense and that he wanted to close the case out

 multiple times.


          Maupin twice            questioned         the   no       penetration   defense   and   stated, "[   I] t' s so ridiculous."


 Ex. 5,   at   15.    Maupin stated that he never actually read the document with the altered statute, nor

 did he really look at it. Maupin also twice asked Detective Voelker what closing the case out

                                                                           12
43191 -2 -II




meant.      The first time Maupin          asked, "      That       would      like   what end   this —end it    all ?" and   Detective


Voelker     responded, "       Pretty   much ...        but I      need   it to be the truth." Ex. 5, at 15. The second time


Maupin      asked, "   So if     you    just    close    the    case,     what    does that      mean?   It' s done   and over,"       and




Detective Voelker          responded "         Yeah, it[']     s    done   and over with."        Ex. 5,   at   22 -23.   Maupin then


stated he did not.understand and immediately thereafter confessed. When asked what he thought

closing the case meant at the CrR 3. 5 hearing, Maupin said he interpreted it to mean if he told
Detective Voelker          what     he    wanted     to hear, then Maupin                could    leave.    Maupin also stated he


believed he was going to jail after his interview with Detective Voelker anyway because he had a

warrant for his arrest.


          The trial court found that Detective Voelker did not use any threats or coercion to obtain

Maupin' s statement, that Maupin' s testimony was not credible, that Maupin was not convinced

of the no penetration defense, that Detective Voelker' s statement that he wanted to close the case

out   did    not   overbear       Maupin' s will          and       cause      him to    make     an   irrational   choice,     and that



Maupin'     s choice      to   confess was rational.                The trial court also stated the no penetration defense


was "                     vague and unclear          that it didn' t really mislead Mr. Maupin." 2 RP                      at   281.   We
        sufficiently


agree.



            Maupin was given Miranda warnings and knew his rights. He acknowledged and waived

these    rights.    There is no evidence that he lacked the capacity to understand his rights or the

consequences         of   waiving his          rights.     He        was    22   years    old.    The questioning was of short

 duration, lasting only 30 minutes. Maupin was questioned in a small room containing a table and

two   chairs,      where       the door   was     left   unlocked.             The interviewing officer was not in uniform.

 There is no evidence that Detective Voelker used a threatening tone, raised his voice, badgered

 Maupin,      attempted         to intimidate him,             or   engaged       in   other   similar   tactics.     Maupin was not

                                                                          13
43191 -2 -II



subjected   to   lengthy,    prolonged    questioning,       nor with repeated rounds of          questioning.    There is


no evidence that he was deprived of any necessities such as food, sleep, or bathroom facilities.

In United States     v.   LeBrun, 363 F.3d 715, 726 ( 8th Cir. 2004), the Court found the defendant' s


confession was       voluntary, noting among             other   things that   it   placed "   substantial weight on the


fact that [ the defendant]        confessed after a mere                  three
                                                                   thirty -       minutes"     and the situation was not

one where officers wore down the defendant's will with persistent questioning over a

considerable length of time.


        Maupin       also   had   prior   experience      with police      interviews.      In his 2004 interview with


Detective Yund in the same interview room, Maupin denied the allegations of sexual contact

with   a child    and     left the   police   station.    Maupin was later arrested and charged with a sex


offense,    to   which    he   pleaded    guilty.    He acknowledged at the CrR 3. 5 hearing that merely

walking out of the police station did not mean that the investigation was over. Thus, Maupin did

not reasonably rely on Detective Welker' s statements regarding the no penetration defense and

closing the case because Maupin understood that confessing and leaving an interview room did
not end the investigation or close the case.


         Although Maupin certainly felt pressure to confess, there is sufficient evidence that his

statements were voluntary and the product of his own rational choice. As discussed above, even

if an officer' s psychological ploys played a part in a defendant' s decision to confess, as long as

                                                                                                                          the
the decision is "`       a product of     the   suspect' s   own      balancing     of   competing   considerations, "'




 confession      is voluntary.       Unga, 165 Wn.2d          at      102 ( quoting Miller, 796 F. 2d      at   605).     Any

promise by the police must be sufficiently compelling to overbear the suspect' s will in light of all
 attendant circumstances.            Unga, 165 Wn.2d at 108 ( quoting United States v. Leon Guerrero, 847

 F. 2d 1363,     1366 ( 1988)).        Maupin' s potential failure to realize the possible consequences of

                                                                 14
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giving his       statements     does        not change        its voluntary       nature.      See Curtiss, 161 Wn. App. at 691.

Because the interview was of a short duration, Maupin was 22 years old and had experience with

a sexual conduct with a child investigation, and Maupin does not appear to have believed or have

reasonably relied on Detective Voelker' s no penetration defense, the trial court did not err when
it concluded that Maupin' s statements were voluntary and admissible. Thus, Detective Voelker' s

no penetration defense and statements regarding closing out the case did not overbear Maupin' s

will   and       cause   him to       make     an         irrational   choice.       Under the totality of the circumstances

Maupin' s confession was voluntary. Accordingly, we affirm the trial court.

III.       SAG ARGUMENTS


           A.        CRR 3. 3 TIME FOR TRIAL


           Maupin maintains the trial court misread CrR 3. 3, which resulted in a violation of his

time for trial right. Although CrR 3. 3( b)( 1)( i) requires trial within 60 days when the defendant is

in custody, this         requirement "`         is    not    a constitutional mandate. "'                 State v. Carson, 128 Wn.2d


805, 821, 912 P. 2d 1016 ( 1996) (                   quoting State v. Terrovona, 105 Wn.2d 632, 651, 716 P. 2d 295

  1986)).        Under CrR 3. 3( h),          the trial court must dismiss charges when the applicable time for

trial period has expired without a trial, but CrR 3. 3( e) excludes the time allowed based on valid

continuances and other delays from the time for trial period.

            When any      period of          time    is    excluded    from the time for trial            period under   CrR 3. 3(   e),   the



time    for trial    period extends           to     at    least " 30 days       after   the   end   of   that   excluded period."         CrR


 3. 3( b)( 5).    Excluded      periods under              CrR 3. 3(   e)   include delays "         granted by the court pursuant to

 section ( f)."     CrR 3. 3(   e)(   3).    A court may grant a continuance based on " written agreement of the

 parties, which must        be    signed       by    the     defendant"      or "[   o] n motion of the court or a party" where a


 continuance " is required in the administration of justice and the defendant will not be prejudiced
                                                                            15
43191 -2 -II




in the   presentation      of   his   or   her defense."         CrR 3. 3( f)(1), (     2).   Furthermore, moving for a

continuance " by or on behalf of any party waives that party's objection to the requested delay."
CrR 3. 3( f)(2).


         Here, Maupin           was   arraigned        on   August 24, 2011,          and the first trial setting was for

October 17, 2011.       After Maupin made a discovery motion, the State moved for a continuance, to

which    Maupin' s     counsel,   but      not   Maupin,     agreed.    The trial court found good cause to continue

the   matter and set a new        trial date      of   November 28, 2011.             The State filed a second motion to


continue on November 18, 2011 because it would not have time to do the Ryan hearing before

trial, to   which   Maupin      objected.        The trial court again found good cause to continue and set a


new    trial date of   January    3, 2012.        Due to the State receiving new evidence the day before trial

on January 2, 2012, the trial date was pushed back to January 26, 2012, so that the trial court

could hold a continuation of the Ryan hearing to determine the admissibility of the new evidence.

Maupin objected to this continuation, but the trial court found good cause and determined

Maupin would not be prejudiced.


            Because the trial court found good cause to continue the trial to January 3, 2012, under

CrR 3. 3( f)(2),    the time from November 28, 2011, through January 3, 2012, was considered an

excluded period under CrR 3. 3( e) and the time for trial period extended 30 days after the new

trial date of    January   3, 2012 to        February       2, 2012.    The trial court held Maupin' s trial on January

26 -27, 2012, and the trial court gave its verdict on January 30, 2012. Thus, the trial court did not

violate Maupin' s time for trial right under CrR 3. 3.




                                                                  WGI
43191 -2 -II




            B.          RELIABILITY OF TESTIMONY AT RYAN HEARING .


            Maupin argues the trial court improperly admitted J. W.' s hearsay statements from J. C.' s

and   West'       s   testimony in        the Ryan      hearing. Maupin maintains their testimony was inconsistent

and thus unreliable.


            We review a trial court's admission of child hearsay statements to determine if its

decision is manifestly                  unreasonable or     based      on untenable reasons or .grounds.         State v. Borboa,


157 Wn. 2d 108, 121, 135 P. 3d 469 ( 2006).                            After finding J. W. incompetent to testify, the trial

court assessed the reliability of J. W.' s statements to J. C. and West using the nine elements

required         by    State   v.   Ryan, 103 Wn.2d 165, 691 P. 2d 197 ( 1984), and found the statements


reliable.         Because the trial court properly weighed the elements of reliability of the witnesses'

testimony as required by Ryan, we do not disturb its decision on appeal.
             C.          RYAN HEARING


             Maupin argues the trial court improperly treated the Ryan hearing on January, 17, 2012,

as    a    continuation        of   the Ryan          hearing   held    on   December 5,      16,   and   21, 2011.   Specifically,

because J.W. only testified in December. 2011, Maupin contends the trial court cannot take its
 best      guess of what        the      child[' s]    development has been," and instead the trial court was required


to   re-   determine J. W.'         s   competency to      testify in January 2012. SAG at 4.

             We review a trial court' s decision to admit child hearsay statements to determine if its

 decision was manifestly unreasonable or based on untenable grounds or reasons. State v. Woods,
 154 Wn.2d 613, 623, 114 P. 3d 1176 ( 2005);                           State v. Kennealy, 151 Wn. App. 861, 879, 214 P. 3d

 200 ( 2009).          Child hearsay statements are admissible under RCW 9A.44. 120, which provides:

             A statement made by a child when under the age of ten describing any act of
             sexual       contact         performed      with    or    on    the    child  by another, describing ; any
             attempted act of sexual contact with or on                       the   child by another ... is admissible in

                                                                         17
43191 -2 -II



           evidence      in ...    criminal proceedings ...             in the courts of the state of Washington
           if.


            1) The court finds, in a hearing conducted outside the presence of the jury, that
           the time, content, and circumstances of the statement provide sufficient indicia of
           reliability; and


            2) The child either:


            a) Testifies at the proceedings; or


            b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as
           a witness, such statement may be admitted only if there is corroborative evidence
           of the act.


           The State must make an effort to produce the child for the court to make a decision on the

child' s    availability.         Ryan, 103 Wn.2d          at    172.     A child may be unavailable because he is

incompetent to testify.            Ryan, 103 Wn.2d          at    172.    Competency is a matter to be determined by
                                                                               7
the trial   court within      the framework       of   RCW 5. 60. 050.              Ryan, 103 Wn.2d          at   172. Guidelines for



the trial court in reaching its determination presume that the court has examined the child, and

observed his manner, intelligence, and memory. Ryan, 103 Wn.2d at 172.

            Here, the trial court made a determination of J.W.' s incompetency on the first day of the

Ryan    hearing      on   December 5, 2011.            After new evidence came to light on January 2, 2012, the

trial   court    held   a continuation of      the Ryan         hearing   on       January   17, 2012.       The trial court did not


re- evaluate J. W. at the continuation hearing on January 17, 2012, and instead stated that its initial

examination of J. W. was sufficient and that J. W. was unavailable:

                        I talked    about    developmental issues.                 Obviously, I' m not an expert on
            developmental issues            of children.    I do    recall,    though,       when     I   watched [   J. W.]   on


            his testimony from December 5th, he'                   s a   very young          child.       He' s a very young
            child.   And even if he made tremendous gains, to say that there' s a pink elephant


 z RCW 5. 60. 050( 2) provides in relevant part that persons " who appear incapable of receiving just
 impressions of the facts, respecting which they are examined, or of relating them truly" are not
 competent to testify.
                                                                    18
43191 -2 -II



         in the   room, or     to say that his house is   pink,    it' s just — m not going to revisit that.
                                                                               I'
         I think, you know, six weeks, five weeks from the time that I determined that he
         was unavailable or incompetent and therefore unavailable, I think that ruling still
         holds today. And so, I' ll make that finding that he' s unavailable.

3 RP at 423 -24.


         Nothing in RCW 9A.44. 120 requires that the trial court make a determination of the

child' s unavailability at a second Ryan hearing for the same trial, let alone a continuation of a

Ryan    hearing. Instead, the statute requires only that the trial court make a finding that the child

is   unavailable   for the    child   hearsay   statements   to   be   admissible.   See RCW 9A.44. 120. The trial


court here examined J.W., observed his manner, intelligence, and memory on December 5, 2011

and found him to be unavailable. Accordingly, the trial court' s decision to treat the January 2012
                                                   to find its December 5,           2011 determination of J. W.' s
Ryan     hearing   as   a    continuation   and




unavailability sufficient was not manifestly unreasonable.

          We affirm Maupin' s conviction.


          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.




        Worswick,           C. J.

                                                              M
