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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                           DIVISION II

STATE OF WASHINGTON,


                                          Respondent,               I                      No. 43438 -5 -II


         ME                                                                        PART PUBLISHED OPINION


ROBERT BARRY,


                                          Appellant.




         MAXA, J. –        Robert Barry appeals his conviction of first degree child molestation

 domestic      violence),   claiming that the trial court erred in admitting child hearsay statements and

erred   in   instructing   the   jury   that   it   could consider      Barry' s   courtroom demeanor         as evidence.       In         L


the published portion of this opinion, we hold that the trial court' s instruction regarding

consideration of Barry' s demeanor was erroneous, but Barry cannot show prejudice from the trial

court' s instruction. In the unpublished portion, we hold that the record supports the trial court' s


child   hearsay    findings.      Accordingly, we affirm.

                                                                FACTS


             The State charged Barry with first degree child molestation ( domestic violence)

committed against CC, his grandson. The case proceeded to trial. During its deliberations, the

jury   sent a note   asking the     court, "        Can   we use as ` evidence',     for deliberation, our observations of


the defendant' s – actions –            demeanor       during the       court case[ ?]"   Clerk'   s   Papers ( CP)   at   115. The
No. 43438 -5 -II



trial   court   instructed the jury,    " Evidence      includes        what you witness        in the   courtroom."       CP at


115. Barry objected to this instruction.

             The jury found Barry guilty as charged. Barry appeals.

                                                          ANALYSIS


             Barry   argues   that the trial   court erred   in   instructing   the   jury that "[ e] vidence includes

what you witness        in the   courtroom,"      in response to the jury' s question about whether during

deliberations it could use as evidence Barry' s actions and demeanor during the case. CP at 115.

He asserts that allowing the jury to consider his demeanor violated both his Fifth Amendment]
                                                                    Amendment2

                       incrimination and
privilege against self -                                his Sixth                       right to a verdict based solely on

the evidence.


             We disagree that the trial court' s instruction violated the Fifth Amendment. And


although we agree that the trial court' s instruction misstated the law, we do not find a


constitutional error. We hold that the absence of any record regarding the nature of Barry' s

demeanor precludes him from showing that the improper instruction prejudiced him.

A.           RIGHT TO NOT TESTIFY


             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." Article I, section 9 of the


Washington State Constitution             also states     that "[   n] o person shall be compelled in any criminal
                                                                                        3
case    to   give evidence against      himself." Under both              provisions,        a defendant has a right to not




    U. S. CONST. amend. V.

2
    U.S. CONST. amend. VI.

3
    Our Supreme Court has held that the scope of these provisions is the same. E.g., State v. Unga,
165 Wn.2d 95, 100, 196 P. 3d 645 ( 2008).
                                                                    2
No. 43438 -5 - II



testify at trial. RCW 10. 52. 040; State v. Epefanio, 156 Wn. App. 378, 388, 234 P. 3d 253 ( 2010).

Barry apparently argues that by equating his demeanor with evidence, the trial court violated this

right. We disagree.

        Under the plain language of the constitutional provisions, the violation of the right


against self incrimination must involve some form of government compulsion. State v. Foster,
             -


91 Wn.2d 466, 473, 589 P. 2d 789 ( 1979).           Here, neither the State nor the trial court forced Barry

to do anything with regard to his demeanor. He had full control over how he acted in the

courtroom. Other than citing the Fifth Amendment, Barry does not explain how he was

compelled to give evidence against himself. We hold that allowing the jury to consider the

defendant' s demeanor as evidence does not violate the Fifth Amendment or article I, section 9.

B.      DEFENDANT' S DEMEANOR As EVIDENCE


        Barry argues that the trial court' s instruction violated his Sixth Amendment right to a

verdict based solely on the evidence. Implicit in this argument is that a defendant' s demeanor at

trial is not evidence and therefore that the instruction misstated the law. We review claimed

errors in instructions de   novo.   State   v.   Levy,   156 Wn.2d 709, 721, 132 P. 3d 1076 ( 2006). We


agree that Barry' s demeanor at trial was not " evidence" and therefore that the instruction was

improper. But we hold that Barry cannot establish prejudice.

         Initially, we note that the trial court' s instruction was improper in its overbreadth. The

State cites no authority for the proposition that anything a jury witnesses in the courtroom

constitutes evidence. And many things a jury might witness in the courtroom would not

constitute " evidence."   For example, our Supreme Court has held that trial spectators may be

allowed to display buttons showing a photograph of the victim. State v. Lord, 161 W.2d 276,



                                                            91
No. 43438 -5 -II



284, 165 P. 3d 1251 ( 2007).         Such buttons obviously would not constitute " evidence" the jury

could consider in determining the defendant' s guilt.

        Barry limits his argument to the jury' s observations of his demeanor as evidence and not

some other courtroom observations. Accordingly, we limit our analysis to that issue and

conclude that a defendant' s demeanor was not evidence in this case.


        1.     Court' s Introductory Jury Instruction

        The trial court instructions to the jury included an introductory instruction (instruction

number 1) modeled after 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 1. 02, at 13 ( 3d ed. 2008) that addressed consideration of a witness' s


demeanor. The instruction permitted the jury to consider " the manner of the witness while

testifying" when evaluating the witness' s credibility. CP at 120. However, as Barry points out,

here he exercised his constitutional right to not testify, and neither his credibility as a witness nor

his character was at issue. Accordingly, the jury could not have considered Barry' s demeanor in

evaluating his credibility as a witness. Further, even if a witness' s credibility is at issue, nothing

in the instruction   states   that a witness' s manner in      testifying   constitutes " evidence."   The


witness' s   demeanor is just    a   factor for the jury to   consider —along with several other       factors —in


assessing credibility.


        Moreover, instruction number 1 establishes that the jury cannot consider the defendant' s

demeanor as evidence. The instruction expressly states that the evidence the jury may consider

is the testimony of witnesses and the admitted exhibits. The defendant' s demeanor does not fall

into either category, and the instruction does not allow for the consideration of anything else as

evidence.     Because neither party objected to instruction number 1, it represents the law of this

case. See State v. Hickman, 135 Wn.2d 97, 101 -02, 954 P. 2d 900 ( 1998).


                                                          11
No. 43438 -5 -II



        2.        Washington Case Law


        Although they are not directly on point, two Washington cases support our conclusion

that a defendant' s demeanor is not evidence. Both held that it is improper for a prosecutor to


comment on the defendant' s demeanor in closing argument. In State v. Klok, the prosecutor

commented that the defendant had been laughing during the trial. 99 Wn. App. 81, 82, 992 P. 2d

1039 ( 2000). Division One of this court stated that " it is improper to comment on a defendant' s


demeanor and to invite the jury to draw from it a negative inference about the defendant' s

character."       Klok, 99 Wn. App at 85.

        In State v. Smith, the prosecutor commented on the defendant' s demeanor, describing him

as someone who         looked like he had         an attitude and a   chip   on   his   shoulder.   144 Wn.2d 665, 679,


30 P. 3d 2994 ( 2001),     superseded        by   statute on other grounds,        LAWS     of   2002,   ch.   107, § 1.   The


court cited Klok in stating that " it may be improper to comment on a defendant' s demeanor so as

to invite    a   jury to draw   a negative   inference    about   the defendant'        s character."    Smith, 144 Wn.2d


at 679. The court also concluded that the prosecutor' s comments about the defendant' s

demeanor " were        likely improper." Smith, 144 Wn.2d - t 679.
                                                          a


        Neither of these cases controls because they both involve prosecutor comments on a

defendant' s demeanor, not whether a defendant' s demeanor constitutes evidence. Here, the


prosecutor did not comment on Barry' s courtroom behavior and therefore did not encourage the

jury to use character evidence in support of a guilty verdict as in Klok and Smith. However, Klok

and Smith are inconsistent with a holding that a defendant' s demeanor constitutes evidence. If a




                                                              5
No. 43438 -5 -II



defendant' s demeanor constituted evidence that a jury could consider, a prosecutor' s comment
                                                                                     4
about such evidence       in closing     argument would not          be improper.


          We hold that here the trial       court erred    in   instructing   the   jury that "[   e] vidence includes


what you witness       in the   courtroom."       CP at 115. This instruction improperly allowed the jury to

consider Barry' s courtroom demeanor as evidence they could consider in determining his guilt.

C.        PREJUDICE


          Barry argues that because the trial court' s instructional error implicated his Sixth

Amendment right to have the jury consider only the evidence properly before it, we must apply a

constitutional error analysis and determine whether the instruction was harmless beyond a

reasonable    doubt. State      v.   Maupin, 128 Wn.2d 918, 928 -29, 913 P. 2d 808 ( 1996). We disagree,


and hold that the nonconstitutional prejudice standard applies.


          Even though the trial court gave an instruction to the jury, it essentially made an

evidentiary decision —allowing            the jury to consider Barry' s demeanor as evidence. An error in

admitting evidence generally is not reviewed under the more stringent constitutional standard for

prejudice. See, e.g.; State v. Gresham, 173 Wn.2d 405, 432 = 269 P. 3d 207 ( 2012)( admission
                                                           33,

of evidence violated      ER 404( b));     State v. Hardy, 133 Wn.2d 701, 712, 946 P.2d 1175 ( 1997)

    admission of evidence violated        ER 609( a)( 1));      State v. Bourgeois, 133 Wn.2d 389, 403, 945


P. 2d 1120 ( 1997). Instead, the test for admission of evidence is whether the defendant has



4
    Both Barry and the State cite multiple cases from other jurisdictions. Compare United States v.
Carroll, 678 F. 2d 1208, 1209 -10 ( 4th Cir. 1982) ( " non- testimonial behavior in the courtroom
could not    be taken   as evidence of      his   guilt ") with     State v. Brown, 320 N.C. 179, 199, 358 S. E.2d
 1, 15 -16 ( 1987) (   evidence is not only what they hear on the stand but what they witness in the
courtroom).   The cases from other jurisdictions are not particularly helpful. Most of these cases
are distinguishable because like Klok and Smith they involve a prosecutor' s comments on a
defendant' s demeanor. And there are cases on both sides of the issue of whether a defendant' s
demeanor constitutes evidence.


                                                                0
No. 43438 -5 -II



shown that the trial outcome would have been materially affected absent the error. Gresham,

173 Wn.2d at 433.


        Applying the nonconstitutional error standard, we hold that the error was not prejudicial

for two reasons. First, the record contains no reference to any behavior, comments, or other

demeanor   by Barry during         5
                             trial .   As a result, we do not know what demeanor " evidence" the

jury may have considered or whether his demeanor could have affected the verdict.

Consequently, it is impossible to conclude that the improper jury instruction prejudiced Barry.

        Second, without any information identifying what demeanor the jury may have

considered, it is impossible to know whether that consideration was favorable or unfavorable to


Barry. In the abstract, a defendant' s demeanor is neutral. Depending on the demeanor, a jury

could draw a negative inference or. a positive inference from how the defendant acts during trial.

As a result, merely stating that a jury may have considered a defendant' s demeanor without any

information about that demeanor cannot establish prejudice because that consideration may have

favored the defendant.


        We hold that the absence in the record of any description of Barry' s demeanor precludes

him from establishing that the trial court' s instruction that allowed the jury to consider that

demeanor prejudiced him. Accordingly, although we hold that the instruction was improper, the

absence of prejudice precludes reversal on this basis.


        We consider Barry' s remaining arguments in the unpublished portion of this opinion. We

affirm his conviction.




5
  Barry points out that the trial court directed Barry and trial observers to sit stoically through
trial. But nothing in the record indicates whether Barry followed that direction.
                                                     7
No. 43438 -5 -II


        A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.

                                           ADDITIONAL FACTS


        CC was born in August 2002. His parents RC and GB divorced in 2010. The divorce


was very contentious. CC was aware of a conflict between RC and Robert Barry, GB' s father,
and he witnessed a dispute between the two men that resulted in both men obtaining mutual

restraining orders.


        In February 2011, RC and his wife LL learned that CC had inappropriate sexual contact

with CC' s cousin. CC was eight years old at the time. RC questioned CC, and CC admitted that

the behavior had happened and said that TT had taught it to him. TT was CC' s friend, whom CC

had not seen for nearly two years as he had moved away. CC later revealed that he had initiated

the sexual contact with TT.


         RC and LL took CC to see Jennifer Fisher, a mental health therapist. Fisher believed

that CC had learned about sexual behavior from an adult, not TT. One evening before a therapy

session, RC and LL sat with CC, reassured him that it was safe to talk to them, and encouraged


him to be truthful    with   his therapist. CC   responded, " `   It' s there, but it' s deep. It' s there. It' s

deep.' " Report of Proceedings ( RP) at 137. He mentioned Dennis, one of his.mother' s ex-

boyfriends. However, CC quickly said it was not Dennis after RC talked to him about the

seriousness of making such an accusation. RC then left the room while LL remained with CC.

When RC       returned,   LL told CC to   repeat what   he had just told her. CC      mouthed     the   words, "    It' s


my   papa,"   which was his name for Barry. RP at 138.



                                                         8
No. 43438 -5 -II



        Fisher referred CC to Thomas Sherry, a therapist who specialized in working with

children with inappropriate sexual acting out. CC disclosed to Sherry that he had had sexual

contact with four people, one of whom was Barry. Sherry later testified that in his opinion, CC' s

disclosures were of real events in his life. CC repeated his allegations about Barry to Sasha

Mangahas, a child forensic interviewer with the Kitsap County Prosecutor' s Office Special

Assault Unit.


        The State charged Barry with first degree child molestation (domestic violence)

committed against CC. Later, CC' s younger brother disclosed that Barry also had molested him.

By amended information, the State charged Barry with a second count of first degree child

molestation (domestic violence) committed against CC' s brother.


        The trial court held a preliminary hearing to determine whether the boys' statements to

their parents, therapists, and the forensic interviewer were admissible as child hearsay

statements. It found that both boys' statements were reliable and therefore admissible as child


hearsay, and entered detailed findings. Those statements were admitted at trial.

        The jury found Barry guilty of count I (CC) and found that the special domestic violence

allegation was proven.       It   could not reach a verdict on count   II (CC'   s   brother).   Barry appeals.

                                             ANALYSIS


        Barry contends that the trial court erred in finding that CC' s statements to his parents,

therapists, and the forensic interviewer were admissible as child hearsay statements. We

disagree, and hold that the trial court properly exercised its discretion in admitting this evidence.

        We review for abuse of discretion a trial court' s decision to admit child hearsay

statements.   State   v.   Kennealy,   151 Wn.   App.   861, 879, 214 P. 3d 200 ( 2009). A trial court




                                                          9
No. 43438 -5 -II



abuses its discretion when its ruling is manifestly unreasonable or is based on untenable grounds

or reasons. Kennealy, 151 Wn. App. at 879.

         RCW 9A.44. 120, the child hearsay exception, 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, or describing any
         act of physical abuse of the child by another that results in substantial bodily harm
         as defined by RCW 9A.04. 110, not otherwise admissible by statute or court rule,
         is admissible in evidence in dependency proceedings under Title 13 RCW and
         criminal proceedings, including juvenile offense adjudications, 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.


Because CC was under the age of 10 and testified at trial, the only question here is whether his

statements had sufficient indicia of reliability under RCW 9A.44. 120( 1).

         In determining whether a child' s statements are reliable, the trial court must consider the

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

 1984): ( 1)    whether         there is   an apparent motive    to lie, ( 2) the declarant'    s general character, ( 3)



whether more        than    one person       heard the   statement, ( 4)   the spontaneity   of   the   statements, (   5)   the



timing   of   the   statements and         the relationship between the       declarant   and   the   witness, (   6) whether


the   statements contained express assertions about past                   fact, ( 7) whether the declarant' s lack of


knowledge      could       be   established    through   cross -examination, (      8) the remoteness of the possibility

of the declarant' s recollection being faulty, and ( 9) whether the surrounding circumstances

suggested     that the     declarant       misrepresented   the defendant'     s   involvement.       See Kennealy, 151


                                                                 10
No. 43438 -5 -II



Wn. App. at 880. The reliability assessment is based on an evaluation of all the factors, and no

single    factor is determinative.       Kennealy, 151 Wn. App.          at   881. But the factors must be


substantially met to establish reliability. Kennealy, 151 Wn. App. at 881.

          Barry   argues   that   factors ( 1), (   2),   and (4) show that CC' s hearsay statements were

unreliable. But we conclude that consideration of these and the remaining factors supported the

trial court' s finding of reliability.

           1.    Motive To Lie


           Barry contends that CC had a motive to lie because his parents had been in a contentious

divorce and he knew there was animosity between CC' s father and Barry, and CC wanted to

please his father. The trial court found:


                   Neither BC nor CC has an apparent motive to lie. There is evidence that
           the parents of BC and CC do not get along and their relationship can be described
           as acrimonious. The counselors of BC and CC have indicated that the discord
           between the parents. of BC and CC understandably causes them stress. While one
           could argue an inference that somehow the inability of the adults to get along
           could be a cause for these allegations, there is no evidence that this is the case. A
           connection ( based on the evidence and not a mere inference) has not been made
           regarding the marriage dissolution discord and the allegations of the boys
           regarding their grandfather.

CP   at   145.   The record supports this finding. While there was testimony that CC wanted both

parents' approval, there was no evidence that he would, gain anything by accusing Barry. The

trial court correctly observed that absent such evidence, this factor weighs in favor of reliability.

           2.    General Character of Declarant


           Barry contends that the trial court erred in finding that the general character factor was

neutral when there was evidence that CC " demonstrated a willingness to lie about this situation"


by repeatedly changing his story with regard to the sexual contact. Br. of Appellant at 12. The



                                                                 11
No. 43438 -5 -II



trial   court   found that "[ t] he general character of BC and CC is neutral in this case. There is no


evidence        regarding the two boys   and   any   reputation    for   lying."   CP at 145.


           When assessing a child' s character, we consider whether the child has a " reputation for

truthfulness."       Kennealy,   151 Wn.   App.   at   881.   While there was evidence that CC lied about


who taught him this sexual behavior, we consider CC' s statements in context. While there was


undisputed evidence that he lied, CC testified that he was scared to tell the truth because Barry

had threatened to separate him from his family if he ever said anything about the sexual contact.

Because CC' s false statements can be explained by Barry' s threats, in our view this evidence

does not show that CC had a reputation for not telling the truth. Further, no evidence was

presented in the child hearsay hearing regarding CC' s general " reputation" regarding

truthfulness. We agree that this factor is neutral.


           3.      Statements Heard By More Than One Person

           CC repeated his statements to his father, two therapists, and a sexual assault unit child


interviewer. The trial court did not make a written finding but did reference this factor in its oral

decision. This factor weighs in favor of reliability.

           4.      Spontaneity of Statements

           The trial court found that CC' s statements were not spontaneous as they were the product

of inquiry. Barry points out that this factor weighs in favor of exclusion. Br. of Appellant at 13.

e agree. However, this is the only factor that supports exclusion of the statements.

           5.      Timing and Relationship between Declarant and Witness

           The trial court found based on the counselors' testimony that the intervention of

counseling between the event and CC' s reporting of it did not affect the statement. Barry does

not contest this finding. We further note that CC made his statements to family members and
                                                              12
No. 43438 -5 -II



therapists in a clinical setting, further supporting the trial court' s finding. Kennealy, 151 Wn.

App. at 884.

          6.   Express Assertions about Past Fact


          The trial court found that CC made express assertions of past facts. Barry does not

contest this finding.

          7.   Availability of Cross -Examination

          The trial court found that through cross -examination, the defense would have the ability

to establish any lack of knowledge by CC Barry does not contest this finding. Further, our

Supreme Court has held that this factor does not apply when the child testifies. State v. Woods,

154 Wn.2d 613, 624, 114 P. 3d 1174 ( 2005).


          8.   Possibility of Faulty Recollection

          The trial court found that " CC acknowledged both in court and out - - ourt that there
                                                                             of c


was sexual contact      between himself       and   the defendant."          CP at 146. In its oral decision, the trial


court stated   that " I have   no concerns about [         CC'   s]   ability to   recall."   RP at 406. Barry does not

contest this finding. This factor weighs in favor of reliability:

          9.   Circumstances Conducive to Reliability

           The trial court did not make a finding on this factor and Barry does not address it on

appeal.




          In summary, the trial court properly considered the Ryan reliability factors. This

consideration demonstrated that the factors were substantially met and therefore that CC' s

hearsay    statements   had    sufficient   indicia   of   reliability    under    RCW 9A. 44. 120( 1).   We hold that




                                                                 13
No. 43438 -5 -II



the trial court did not abuse its discretion in admitting CC' s hearsay statements. Accordingly, we

affirm Barry' s conviction.




                                                       V/                       r

                                                  MAXA, J.
We concur:




                          V
                              ij a
             A.C. J.




BJRGEN..`




                                                14
