       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                                          Cf,

STATE OF WASHINGTON,                                     No. 71467-8-1              "11




                      Respondent,                        DIVISION ONE

              V.

EMYLL S. MATOS-RAMOS,                                    UNPUBLISHED                CJ1

                      Appellant.                        FILED: February 21, 2017



       Cox, J. — Emyll Matos-Ramos appeals his judgment and sentence based

on his conviction of second degree assault of a child, A.S. The trial court did not

abuse its discretion in admitting evidence of Matos-Ramos's prior acts to rebut

the claim of accident for this charged crime. The child's hearsay statements

were properly admitted, and the child was competent to testify. Matos-Ramos's

challenge to the trial court's failure to give a jury instruction that he did not

request is not properly before us. But he correctly argues that the inclusion of a

domestic violence finding in the judgment, which the jury had not found, was

incorrect. We affirm Matos-Ramos's conviction, vacate the domestic violence

finding, and remand for correction of the judgment and sentence. We also deny

any request for an award of appellate costs to the State.
No. 71467-8-1/2

      A.S. and his mother lived with Matos-Ramos for approximately two years.

Matos-Ramos often supervised A.S. while the mother worked. Matos-Ramos

describes his relationship with A.S. as having "its ups and downs."

       A.S., then four, sustained a fractured femur in July 2010 while at home

alone with Matos-Ramos. After Matos-Ramos called 911, first responders

arrived at the scene. There was conflicting evidence on what happened.

       A.S. first told police and firefighters, who responded to the 911 call, that he

had run into a table.   He then told Officer Stacy Eckert that Matos-Ramos had
kicked him for not reading properly. A.S. said that he was not supposed to tell

what really happened and was supposed to say he ran into a table. On the way

to the hospital, A.S. asked the ambulance driver if the true cause of his injury

could remain secret. At trial, A.S., then seven, testified that Matos-Ramos had

kicked him during the July 2010 incident.

       Matos-Ramos claimed to have been playing video games when he heard

a noise behind him during this incident. He allegedly turned to see A.S. on the

floor, near a table. Matos-Ramos then called 911.

       A.S. spoke to others as well after the incident, including treatment

providers at the hospital and a forensic child interview specialist. Following

investigation, police arrested Matos-Ramos.

       The State charged him with one count of second degree assault of A.S.

The information also alleged domestic violence.




       I Amended Brief of Appellant at 6.
                                              2
No. 71467-8-1/3

       Before trial, the State sought to admit evidence of two prior incidents

under ER 404(b). In both, A.S. had sustained bruising while in Matos-Ramos's

care. Over Matos-Ramos's objection, the court admitted the evidence for both

incidents.

       Matos-Ramos also challenged A.S.'s hearsay statements to several

witnesses. The trial court admitted these statements.

       Matos-Ramos sought a hearing on A.S.'s competency. After reviewing

evidence and arguments, the court denied Matos-Ramos's motion and permitted

A.S. to testify at trial. After A.S. and his mother testified at trial, Matos-Ramos

again challenged A.S.'s competency. The trial court again rejected this claim.

       A jury found Matos-Ramos guilty of second degree assault. The verdict

did not include any finding on the domestic violence allegation in the information.

The trial court entered its judgment and sentence on the jury verdict but also

included a finding that domestic violence "was[pleaded] and proved."

       Matos-Ramos appeals.

                              ABSENCE OF ACCIDENT

       Matos-Ramos argues that the trial court abused its discretion by admitting

evidence of his two prior acts under ER 404(b). We hold that admission of this

evidence was proper under the "absence of. . . accident" exception of this rule.2

          Under ER 404(b), trial courts may not admit certain evidence. This rule

states:




       2 ER 404(b).


                                              3
No. 71467-8-1/4

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident[31

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

evidence.4

                                      Other Acts

       Matos-Ramos argues that the trial court abused its discretion by admitting

evidence of two other acts that the State offered to show a lack of accident.

Specifically, he claims the "lack of accident" exception is only relevant when a

defendant "admits he engaged in the criminal act[charged] but claims he did so

accidentally." That is not the law.

       First, there is no support for this argument in the plain language of ER

404(b). Nowhere does this rule state a requirement to show either that the

accused admits engaging in the charged crime or that the accused claims he did

so accidentally. There is no reason to imply such requirements where the rule

does not expressly state them.

       Second, in State v. Norlin, the supreme court held that evidence of prior

injuries is admissible under this rule in child abuse cases.5 But it is admissible




       3(Emphasis added.)


       4 State   v. Quaale, 182 Wn.2d 191, 196, 340 P.3d 213(2014).

       5 134 Wn.2d    570, 572, 951 P.2d 1131 (1998).

                                             4
No. 71467-8-1/5

only if the State shows by a preponderance of the evidence a connection

between the accused and the child's prior injuries.6

       Here, it is undisputed that Matos-Ramos is connected to A.S.'s prior

injuries. The unchallenged findings in the trial court's ER 404(b) ruling, which are

verities on appeal, state:

       2. The State has proved by a preponderance of the evidence that
       A.S. had bruising to his chin and forehead on July 27, 2010 and
       that this was caused by the defendant holding or pinning him down.

       3. The State has proved by a preponderance of the evidence that
       A.S. had bruising to his lower back in approximately March of 2010
       and that this was caused by the defendant hitting him with a slipper
       or flip-flop.m

       Third, Norlin does not impose the additional requirement to admissibility

argued here by Matos-Ramos. More importantly, no other case authority

supports the bar to admission of other acts evidence that he argues in this case.

       State v. Rotti6 is instructive. Randolph Roth's wife drowned while the two

were on an outing at Lake Sammamish.6 He was the beneficiary of a large

insurance policy on her life at the time.16




       6   Id.

       7 Clerk's   Papers at 89; In re Estate of Barnes, 185 Wn.2d 1, 9, 367 P.3d
580 (2016).

       8 75 Wn. App. 808, 881    P.2d 268 (1994).

           Id. at 810.
       10   Id.

                                              5
No. 71467-8-1/6

       The charges against him included first degree murder, first degree theft,

and second degree theft.11 He pleaded not guilty to all charges.12

       At trial, the State sought to admit evidence regarding the earlier death of

Roth's prior wife who had died from a 300-foot fal1.13 This occurred under

suspicious circumstances while he was on an outing with her. He was also the

beneficiary of a large insurance policy on her life.14

       Over Roth's objection, the trial court admitted the evidence regarding

Roth's prior wife's death.15 The court concluded Roth's position at trial was that

his current wife's death was an accident.16 Thus, admission of this evidence was

relevant to rebut that claim.17

       On appeal, we affirmed." We did so because "the events surrounding

[the prior wife's] death were admissible under ER 404(b) to prove absence of

accident" in the current wife's death.19




       11 Id. at 811.

       12   Id. at 812.

       13   Id. at 812.

       14   Id. at 812-14.

       15   Id. at 814-15.

       16   Id.

       17 Id.


       18   Id. at 810.

       19   Id. at 818.

                                              6
No. 71467-8-1/7

       In reaching this conclusion, we cited two cases: State v. Fernandez20 and

State v. Gogolin.21 We observed that in each of these precedents, a material

issue of accident arose where the defendant denied committing the current crime

and asserted "happenstance or misfortune" as the cause of the victims' injuries.22

       In all these cases, the accused claimed accident in defense to the charged

crime. In no case did the accused claim that he engaged in the charged conduct,

accidentally or otherwise. To the contrary, in Roth, the defendant denied any

involvement in the charged crime.23 Nevertheless, the admission of the other

acts evidence was proper to rebut the claim of accident for the charged crime.

       The same is true in this case. Matos-Ramos expressly asserted "to the

initial police and fire personnel that A.S. had hurt himself by accident."24

Moreover, his connections to the prior other acts are undisputed. The trial court

properly exercised discretion in admitting evidence of Matos-Ramos's other acts.

       Matos-Ramos relies on State v. Bowen25 and State v. Hernandez26 to

support his novel argument. Neither case provides such support.



       20 28 Wn. App. 944, 628 P.2d     818(1980).

       21   45 Wn. App. 640, 727 P.2d 683(1986).

       22   Roth, 75 Wn. App. at 819.

       23   Id. at 811.

       24   Clerk's Papers at 89.

       25 48 Wn. App. 187, 738 P.2d316 (1987), abrogated in part on other
grounds by State v. Lough, 125 Wn.2d 847, 889 P.2d 487(1995).

       26 99 Wn. App. 312, 997 P.2d     923(1999).

                                             7
No. 71467-8-1/8

       In Bowen, James Bowen, a physician appealed his indecent liberties

conviction, arguing that the trial court abused its discretion by admitting evidence

of two prior incidents in which he touched different female patients' breasts.27

His defense at trial was general denia1.28 Specifically, he denied touching the

current victim's private parts, even accidentally.29 The trial court held that the

prior acts evidence was inadmissible because there was no assertion of accident

by the physician.39

       Notably, the defendant in that case had not admitted to the charged

conduct. So that case does not support the theory Matos-Ramos now argues.

And there is absolutely no wording in the opinion to support his novel theory in

this appeal.

       At oral argument, Matos-Ramos's counsel also relied on Hernandez to

support the argument. We see nothing in that case that holds there is any

requirement for the admission of other acts evidence that the accused admits the

charged conduct but claims it was done accidentally.

       In sum,there is no basis, either in the text of ER 404(b) or the case law, to

support the argument that Matos-Ramos makes. We reject it.




       27   Bowen, 48 Wn. App. at 188-89.

       28   Id. at 193.

       28   Id.

       38 Id. at   193-94.

                                              8
No. 71467-8-1/9

                                        Intent

       We note that the trial court also admitted evidence of Matos-Ramos's

other acts as evidence of his intent. This was also proper.

       Under ER 404(b), the trial court may admit evidence of a person's other

crimes, wrongs, or acts to show intent. But this evidence must be relevant to a

material issue before the jury.31 Specifically, "prior misconduct evidence is only

necessary to prove intent when intent is at issue or when proof of the doing of the

charged act does not itself conclusively establish intent."32

       State v. Daniels33 is analogous to this case. There, Audie Daniels cared

for a toddler, S, while S's mother worked.34 The State charged Daniels with two

counts of second degree assault arising from incidents in June 1994 and January

1995 resulting in S's injuries.35 Daniels claimed that S sustained injuries during

the first incident by falling.36 He also claimed that S sustained injuries during the

second incident by jumping from a couch.37




        State v. Olsen, 175 Wn. App. 269, 280, 309 P.3d 518(2013), aff'd 180
       31
Wn.2d 468, 325 P.3d 187(2014).

       32 State   v. Powell, 126 Wn.2d 244, 262, 893 P.2d 615(1995).

       33 87 Wn. App. 149, 940 P.2d   690(1997).

       34   Id. at 151.

       35   Id.

       36   Id.

       37 Id.



                                             9
No. 71467-8-1/10

       A jury convicted Daniels and he appealed, arguing that the trial court

abused its discretion by admitting evidence of Daniels's other abuse of S.38 The

trial court admitted testimony from S's mother regarding S's bruises that

appeared after Daniels cared for S in October 1994.39 Daniels explained to S's

mother that he spanked S while going up stairs and that S hit her head on each

step.4° S's bruising from this incident was similar to her bruising in June.41

       The State had to prove that Daniels recklessly inflicted substantial bodily

harm to S.42 This court stated that "the similarity" in S's bruising made "the

evidence relevant to show intent and recklessness."43 This court concluded that

the trial court did not abuse its discretion in admitting the evidence because it

"show[ed] Danielsis] knowledge of the risk of the harm."44 Additionally, the

evidence "was relevant to prove his later conduct was reckless, since it tended to

show he should have learned that such extreme discipline of a young child can

cause injury."48 As to intent, this court concluded that "the challenged evidence




       38   Id. at 151, 157.

       89   Id. at 157.

       4° Id.

       41   Id.

       42   Id.

       43 Id. at   158.

       44   Id.

       45 Id.

                                             10
No. 71467-8-1/11

show[ed] that Daniels intentionally disciplined the child excessively, with

repeated physical strikes."46

        Here, the State alleged that Matos-Ramos kicked A.S., ultimately causing

his fractured femur. The State had to prove that Matos-Ramos "intentionally

assault[ed]" A.S. "and thereby recklessly inflict[ed] substantial bodily harm." The

State sought to admit the evidence of A.S.'s prior bruises to prove Matos-

Ramos's intent and recklessness.

        Matos-Ramos's intent was thus at issue because "proof of the doing of the

charged act does not itself conclusively establish intent."47 Specifically, the fact

that Matos-Ramos allegedly kicked A.S. does not, in itself, conclusively establish

Matos-Ramos's intent to assault A.S. and recklessly inflict substantial bodily

harm.

        As in Daniels, the trial court here properly admitted evidence of Matos-

Ramos's other acts that caused A.S.'s prior injuries to show Matos-Ramos's

knowledge of the risk of the harm. The trial court recognized that whether Matos-

Ramos intended to cause A.S.'s fractured femur "[wa]s the central issue at trial."

Thus, the court concluded that the evidence "would be relevant as it does tend to

show that the injuries may have been a result of an intentional act of the

Defendant rather than an accident."




        46   id.

        47   Powell, 126 Wn.2d at 262.

                                             11
No. 71467-8-1/12

       Because Matos-Ramos's intent was also at issue, evidence of his other

acts was admissible to show his intent under ER 404(b). Thus, the trial court did

not abuse its discretion in admitting this evidence.

                                 CHILD HEARSAY

       Matos-Ramos argues that the trial court abused its discretion by admitting

A.S.'s hearsay statements. We hold that the statements were properly admitted.

       RCW 9A.44.120 governs the admissibility of child hearsay statements and

states in relevant part:

       A statement made by a child when under the age of ten describing.
       . . any act of physical abuse of the child by another that results in
       substantial bodily harm.. . , not otherwise admissible by statute or
       court rule, is admissible in 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 witnessr.i


       A trial court has broad discretion to determine the reliability of a child

hearsay statement, as it had the opportunity to observe the child and other

witnesses." We review for abuse of discretion a trial court's decision to admit

evidence.49

       In State v. Kennealy, the supreme court identified nine factors applicable

to determine the reliability of a child's out-of-court declarations:



       48   State v. Swanson,62 Wn. App. 186, 191 n.1, 813 P.2d 614(1991).

       48   Quaale, 182 Wn.2d at 196.

                                              12
No. 71467-8-1/13

      (1) whether there is an apparent motive to lie,(2)the general
      character of the declarant,(3) whether more than one person heard
      the statements,(4)the spontaneity of the statements,(5)the timing
      of the declaration and the relationship between the declarant and
      the witness,(6) whether the statement contained express
      assertions of past fact,(7) whether the declarant's lack of
      knowledge could be established through cross-examination,(8) the
      remoteness of the possibility of the declarant's recollection being
      faulty, and (9) whether the surrounding circumstances suggested
      the declarant misrepresented the defendant's involvement.(501

       Not every factor must be satisfied in every case.51 But the factors must be

"'substantially met."52

       Prior to trial in this case, Matos-Ramos challenged A.S.'s statements to

several witnesses. Here, his argument only focuses on A.S.'s statements to

Officer Eckert and Susannah Marshall, the forensic interview specialist for

children. Thus, our analysis is limited to the statements to these two individuals.

       Before the trial court made its decision on this issue, it heard Officer

Eckert's testimony and reviewed several witness reports and statements. The

trial court considered all of the Ryan factors, except for factors six and seven,

stating that these factors were not meaningful to the analysis. The trial court

determined that A.S.'s statements provided sufficient indicia of reliability for

admission. On appeal, only factors one, two, four, and five are at issue.




     50 151 Wn. App. 861, 880, 214 P.3d 200(2009)(citing State v. Ryan, 103
Wn.2d 165, 175-76, 691 P.2d 197(1984)).

       51   State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174(2005).

       52Id. at 623-24 (quoting State v. Swan, 114 Wn.2d 613, 652, 790 P.2d
610 (1990)).

                                             13
No. 71467-8-1/14

                               Apparent Motive to Lie

       Matos-Ramos argues that the record does not support the trial court's

conclusion that A.S. had no motive to lie to Officer Eckert and Marshall. We

disagree.

       "The critical inquiry is whether the child was being truthful" when he or she

made the hearsay statements.53

       Here, Officer Eckert testified pretrial about her conversation with A.S. She

questioned him about his injury near the ambulance while first responders were

present and heard the conversation. A.S. initially stated that he ran towards a

table. Additionally, A.S. told Officer Eckert that Matos-Ramos kicked him. A.S.

also told two of the first responders in the ambulance that it was a secret. The

following day, A.S. disclosed to Marshall, the forensic interview specialist for

children, that Matos-Ramos kicked him.

       The trial court also considered transcripts of Detective Heather Castro's

interview with Matos-Ramos and A.S.'s mother after the incident. Detective

Castro asked Matos-Ramos if A.S. had the tendency to lie. Matos-Ramos

responded that A.S. does lie. But Matos-Ramos also explained that A.S. would

"not say something [be]cause he's afraid it's [going] to get him in trouble but not

to the point where he'll just make up something like this." Matos-Ramos further

explained his concern of how A.S. was questioned, stating that he will "just

repeat back whatever we're saying."




       53 State   v. Gribble, 60 Wn. App. 374, 383, 804 P.2d 634 (1991).

                                             14
No. 71467-8-1/15

       Detective Castro asked A.S.'s mother if she felt that A.S. would lie to get

Matos-Ramos into trouble. She responded that she did not know because A.S.

has lied. She also explained that in a prior incident, A.S. would not respond to

questions or admit what he had done because he thought he would get into

trouble. She further explained that A.S. repeats or picks up things said to him

and that it is hard to tell what is true.

       Pretrial, Matos-Ramos argued that A.S. might have lied to avoid getting in

trouble. The trial court found that A.S.'s mother might have told him not to

explain what really happened. But the court also found no evidence that A.S.

had "anything to gain" by lying because "there was no evidence presented

indicating that [A.S.] was going to get in trouble for the incident. .. ."

Additionally, the trial court found that A.S. "feared what would happen after

disclosing that the defendant had kicked him" and "desired to keep this

information private." Thus, the trial court concluded that A.S. did not have a

motivation to lie when he made the hearsay statements.

       The record supports the trial court's conclusion. In addition to Matos-

Ramos's statements discussed above, he also stated that he was surprised and

did not understand why A.S. would say that Matos-Ramos kicked him.

Similarly, A.S.'s mother stated that she did not know why A.S. would state that

Matos-Ramos kicked him.

       Additionally, A.S.'s grandmother's stated to a defense investigator that

A.S.'s mother and Matos-Ramos "seem to say [that A.S. is] probably making

things up." A.S.'s grandmother also stated that A.S. generally tells the truth and


                                              15
No. 71467-8-1/16

that she has not witnessed him "mak[e] up stories or hav[e] an active imagination

about things that go on around the house.. . ."

       The record shows that A.S. may have lied and denied his involvement in

certain situations if he believed he would get into trouble. But the record also

supports the trial court's conclusion that A.S. did not have a motive to lie when he

made statements to Officer Eckert and Marshall about this incident. Nothing in

the record indicates that A.S. believed he would get into trouble before he made

the challenged statements. Rather, Officer Eckert reassured A.S. that he was

not in trouble and that she needed to know what had happened. And A.S.

promised to tell Marshall the truth during the interview.

       Additionally, nothing in the record indicates that A.S. heard or picked up

something from someone else that would cause him to say that Matos-Ramos

kicked him. Thus, the record supports the trial court's conclusion that A.S. did

not have a motive to lie when he made the challenged statements.

       Matos-Ramos also argues that A.S. had a motive to lie because he "bore

animosity toward" and feared Matos-Ramos. Matos-Ramos relies on A.S.'s trial

testimony where he testified that he was scared to see Matos-Ramos again and

that Matos-Ramos "always scar[ed]" him. But A.S. testified during trial, not at the

time of the court's hearsay ruling. There is nothing in this to suggest that the

ruling would have been overturned on this basis.

       Matos-Ramos relies on Ryan to argue that the motive factor

"encompasses the diminished reliability that occurs" when a child makes different




                                            16
No. 71467-8-1/17

and inconsistent statements. But that case is distinguishable and does not

support that argument.

      There, the State charged John Ryan with indecent liberties with two

children.54 The children's parents questioned the children about the source of

the candy they possessed.55 The children initially claimed one source of the

candy but later stated that Ryan provided it.56 The supreme court determined

that the children had a motive to lie about the source of candy that they were not

supposed to have.57

       Here, conversely, nothing in the record shows that A.S. sought to hide any

misbehavior of his. Thus, the record does not show that A.S. had the motivation

to lie when he made the challenged statements. And despite A.S's initial

statement about his injury to Officer Eckert and Marshall, the record shows that

A.S. later disclosed that Matos-Ramos kicked him. These inconsistent

statements, alone, do not establish that A.S. had the motivation to lie when he

made the challenged statements.

                             General Character of Declarant

       Matos-Ramos argues that the record does not support the trial court's

conclusion regarding A.S.'s general character. We again disagree.




      54    Ryan, 103 Wn.2d at 167.

       55   Id. at 168-69.

       56   Id.

       57   Id. at 176.

                                             17
No. 71467-8-1/18

       This factor focuses on the child's reputation for truthfulness.58

       Here, the trial court found that A.S. has a history of hyperactivity and has

refused to admit things to avoid getting into trouble. The trial court also found

that A.S. would sometimes "pick things up and make them his own story." Most

importantly, the trial court found that A.S. was "an intelligent child" who did "not

have a history of lying" and that "lying would be out-of-character for him." Thus,

the court concluded that this factor had been satisfied. The trial court was in the

best position to weigh properly the competing evidence.

       Although the record does not support one of the trial court's findings, the

record supports the trial court's decision. Specifically, first responder Genessa

Olson allegedly overheard A.S. tell Officer Eckert that he was told to say that he

ran into the table. Thus, the record does not support the trial court's finding that

there was "no evidence that anybody told [A.S.] what to say" regarding the

incident.

       But the record supports the trial court's conclusion that this factor had

been satisfied. Although the record shows that A.S. has lied to avoid getting into

trouble, his grandmother stated that he generally told the truth. Matos-Ramos

also stated that A.S. would "not say something [be]cause he's afraid it's [going] to

get him in trouble but not to the point where he'll just make up something like

this." A.S.'s mother similarly stated that she did not know why A.S. would state

that Matos-Ramos kicked him.




       58   Kennealv, 151 Wn. App. at 881.

                                             18
No. 71467-8-1/19

      Thus, the trial court's erroneous finding made no difference to the

outcome. These facts support the trial court's conclusion that this factor had

been satisfied.

                                   Spontaneity

       Matos-Ramos argues that A.S.'s statements to Officer Eckert were not

spontaneous. We agree.

      Statements made in response to questioning are spontaneous so long as

the questions are not leading or suggestive.59

      Pretrial, Officer Eckert testified to her conversation with A.S. Near the

ambulance, she asked A.S. what had happened to his leg. A.S. replied that he

hit himself "on the table, running." Officer Eckert then asked: "Did anyone give

you any owies today." A.S. responded:"Yes. My dad just kicked me" and

pointed to his leg. Officer Eckert then asked why his dad kicked him, and A.S.

responded:"For not reading. He kept kicking me." The trial court concluded that

A.S.'s statements to Officer Eckert were spontaneous because they were made

in response to open-ended, non-suggestive, and non-leading questions.

       Matos-Ramos argues that the trial court incorrectly found that no one told

A.S. what to say. This is true as we discussed above, but irrelevant to the court's

ultimate conclusion. Matos-Ramos did tell A.S. to tell the table story. There is no

evidence that anyone else tried to put words in A.S.'s mouth. So, this erroneous

finding regarding spontaneity made no difference to the ultimate outcome

regarding A.S.'s hearsay statements.


      59   Id. at 883.

                                           19
No. 71467-8-1/20

                              Timing and Relationship

       Lastly, Matos-Ramos argues that A.S.'s statements to Officer Eckert were

unreliable under this factor. We disagree.

       This factor focuses on "the timing of the declaration and the relationship

between the declarant and the witness."6° The reliability of a child's statement

may be enhanced when the testifying witness is in a position of trust with the

child.61 Additionally, this court has recognized that "[a]s long as there are law

enforcement officers... investigating child abuse,... a child's statements will

almost always be made after professionals become aware of the abuse."62 This

fact does not necessarily diminish the reliability of a child's statements, and in

some situations, the presence of a police officer or nurse may enhance the

statement's reliability.63

       Here, the trial court found that A.S.'s statements to Officer Eckert were

"contemporaneous with the incident." The court also found that Officer Eckert

was a "professional witness" and stated that it did not have "any concern"

regarding her lack of objectivity. The court then concluded that the "timing of

these statements shows their reliability." We agree.




       60
        Ryan, 103 Wn.2d at 176 (quoting State v. Parris, 98 Wn.2d 140, 146,
654 P.2d 77(1982)).

       61   Kennealy, 151 Wn. App. at 884.

       62 State   v. Young,62 Wn. App. 895, 901, 802 P.2d 829 (1991).

       63 See   id.; Kennealy, 151 Wn. App. at 884.

                                             20
No. 71467-8-1/21

       Matos-Ramos does not dispute the timing of A.S.'s statement to Officer

Eckert. Rather, he argues that A.S. had no prior relationship with Officer Eckert

and that the officer's position would "likely trigger a readiness to lie to avoid

getting in trouble[] and a willingness to say what the officer apparently wanted to

hear .. . ."

       This argument is not supported by any citation to authority and is mere

speculation. Accordingly, we reject it.

       In sum, the record supports the trial court's conclusions as to the first,

second, and fifth Ryan factors at issue here. Because the factors are

substantially met, the trial court did not abuse its discretion in admitting A.S.'s

hearsay statements to Officer Eckert and Marshall.

                               CHILD COMPETENCY

       Matos-Ramos argues that the trial court abused its discretion in finding

A.S. competent to testify. We disagree.

       Witnesses are presumed competent to testify until proved otherwise by a

preponderance of evidence.64 RCW 5.60.050 provides that witnesses are not

competent to testify if they are "of unsound mind" or are "incapable of receiving

just impressions of the facts, respecting which they are examined, or of relating

them truly."65




       64 State   v. Brousseau, 172 Wn.2d 331, 341, 259 P.3d 209 (2011).

       65   RCW 5.60.050.

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No. 71467-8-1/22

        The party challenging a witness's competency bears the burden of proving

the witness's incompetency.66 Courts are not required to "examine a child

witness regarding the particular issues and facts of the case to determine

competency."67 Additionally, a witness's competence is presumed throughout

the proceedings but may be challenged at any time.66

       "The responsibility for determining a witness'[s] competency rests with the

trial court, who `saw the witness, noticed her manner[,] and considered her

capacity and intelligence.'"69

        We review for abuse of discretion a trial court's determination of a child

witness's competency.79 We examine the entire record in making this

determination, even though a trial court determines a witness's competency

pretrial 71

        In State v. Allen, the supreme court established the "true test of the

competency of a young child," which consists of the following factors:

       (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


        68    Brousseau, 172 Wn.2d at 341.

       87 State v. Avila, 78 Wn. App. 731, 736, 899 P.2d 11(1995)(quoting State
v. Przvbylski, 48 Wn. App. 661, 665, 739 P.2d 1203(1987)).

        88    Brousseau, 172 Wn.2d at 341.

                                         State v. Johnson, 28 Wn. App. 459,
        69 Avila, 78 Wn. App. at 735 (quoting
461,624 P.2d 213(1981), aff'd, 96 Wn.2d 926 (1982)).

        79    Brousseau, 172 Wn.2d at 340.

        71    Id.

                                             22
No. 71467-8-1/23

       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.[72]

       All five factors must be met before a child witness can be declared a

competent witness." Additionally, inconsistencies in a child witness's testimony

go only to the child's credibility, not to admissibility of the testimony.74

       Here, pretrial, Matos-Ramos challenged A.S.'s competency and requested

a competency hearing. The court considered the same evidence that it

considered for the hearsay issue and found A.S. to be "very intelligent," "playful(,]

and somewhat distracted in demeanor." The court denied Matos-Ramos's

motion for a competency hearing and permitted A.S. to testify at trial.

       After A.S. and his mother testified at trial, Matos-Ramos again challenged

A.S.'s competency, arguing that he did not take seriously the oath to testify

truthfully. Matos-Ramos also expressed concern about A.S.'s ability to testify

truthfully. The trial court disagreed, ruling that A.S. was competent to testify.

       On appeal, only the first and third Allen factors are at issue.

                            Obligation to Speak the Truth

       Matos-Ramos argues that A.S. did not understand his obligation to tell the

truth. We disagree.




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

       73 In   re Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297(1998).

       74 Woods, 154    Wn.2d at 621.

                                               23
No. 71467-8-1/24

       A child's promise to tell the truth satisfies this factor.75 And "[a] child's

inability to express an understanding of the meaning of truth does not affect his

competency as long as he possesses a sufficient understanding of truth to insure

his testimony is not the result of fabrication or imagination."76

       Here, during the pretrial proceedings, the trial court referred to A.S.'s

interview with Marshall. There, Marshall asked A.S. a series of "real/pretend"

questions and asked him if it were real or pretend that it was snowing in the

room. A.S. responded:

              [A.S.]: Real.
              S. MARSHALL: Is it snowing in this room right now?
              [A.S.]: Nope.
              MARSHALL: Oh okay so is it real. . .
              [A.S.]:'Cause it's...
              MARSHALL:.. . is it real or pretend?
              [A.S 1.    pre, pretend.177]

       The trial court found that A.S.'s answers "were made in a playful or

teasing type of manner rather than a manner which would cause the [c]ourt

concern that this child really believed it was snowing in the room."

       A.S. was seven years old when he testified and promised to tell the truth.

When the prosecutor asked A.S. if he knew the difference between a truth and a

lie, he responded:"No." The prosecutor then tested A.S.'s ability to distinguish a

truth from a lie and asked:



       75State v. S.J.W., 149 Wn. App. 912, 925, 206 P.3d 355 (2009), aff'd on
other grounds, 170 Wn.2d 92, 239 P.3d 568(2010).

       76 State   v. Sims,4 Wn. App. 188, 190, 480 P.2d 228 (1971).

       77 Trial   Exhibit 31 at 12.

                                              24
No. 71467-8-1/25

                Q: If I said my hair is green, what would you say?
                A: It's not green.
                Q: What color is it?
                A: I don't know.
                Q: You don't know?
                A: No.

                Q: If I said my hair is orange, is that true?
                A: No.
                Q: Is that a lie?
                A: Yeah.r781

       During cross-examination, A.S. stated that he knew the difference

between a truth and a lie. When asked to explain his previous answer to the

prosecutor, A.S. responded: "I don't understand."

       After A.S. testified, Matos-Ramos challenged A.S.'s competency again.

The trial court found that A.S. "underst[ood] the difference between truth and a

lie, although sometimes the child may choose to lie."

       The record supports the trial court's conclusion that A.S. was competent to

testify. Contrary to A.S.'s initial statement during his testimony, the record shows

that he understood the difference between a truth and a lie because he

successfully completed the truth and lie exercises with Marshall. Marshall also

used certain questions to determine A.S.'s ability to understand the

consequences resulting from lies. For example, Marshall asked A.S. to select

whether a lying character or a truthful character would get into trouble. A.S.

selected the lying character as the one to get into trouble.




       78   Report of Proceedings Vol. V(December 5, 2013) at 484-85.

                                               25
No. 71467-8-1/26

       Overall, the first Allen factor has been satisfied because A.S. understood

the difference between a truth and a lie, understood the negative consequences

resulting from telling a lie, and promised to tell the truth before testifying.

       Matos-Ramos argues that A.S. did not understand his obligation to tell the

truth, relying on A.S.'s inconsistent statement regarding his understanding of the

difference between a truth and a lie. Matos-Ramos also relies on A.S.'s allegedly

"false[]" testimony, where he stated that he did not remember how he sustained

his injury and stated that he pretends to sleep at night. But this testimony does

not establish by a preponderance of evidence that A.S did not understand his

obligation to tell the truth.

       As previously stated, the record shows that A.S. knew the difference

between a truth and a lie, despite his initial statement to the contrary, because he

successfully completed the truth and lie exercises with Marshall.

       Additionally, Matos-Ramos's allegation that A.S. made a false statement

regarding his sleep does not, by itself, establish that he failed to understand his

obligation to tell the truth. Matos-Ramos fails to explain otherwise.

       Further, the fact that A.S. initially testified that he did not remember how

he sustained his injury does not establish, by itself, that he failed to understand

his obligation to tell the truth. Rather, this demonstrates his discomfort while

testifying due to the many people present and "staring" at him.

       More importantly, the fact that A.S. initially testified that he did not

remember how he sustained his injury before he actually stated that Matos-

Ramos kicked him shows that A.S. made an inconsistent statement. And any


                                              26
No. 71467-8-1/27

inconsistencies in a child witness's testimony go only to the child's credibility, not

to admissibility of the child's testimony.79

                        Independent Recollection of Incident

       Matos-Ramos argues that A.S. did not have an independent recollection

of the incident. We disagree.

       A child's ability to recall the incident satisfies this factor.8° "[A] child's

reluctance to testify about specific acts of abuse does not render him or her

incompetent."81

       Here, pretrial, Matos-Ramos argued that the passage of time since the

incident raised a "red flag." The trial court responded:"[A] simple passage of

time is not affirmative evidence of incompetence. Of course, anybody can have

difficulties remembering specifics over the time. But, that doesn't... constitute

an affirmative showing of incompetence and is something that can be tested on

cross-examination."

       After A.S. testified, the court found that A.S. made conflicting statements.

But it also found that A.S. had "a pretty impressive ability to recall" the events

that took place. The court also stated that any "inability to recall details or conflict

can go to the weight of the testimony rather than to the competence of the child."

       The record establishes A.S.'s ability to independently recall the events

surrounding his injury. A.S. testified about these events, explaining what he was


       79 Woods, 154 Wn.2d      at 621.

       90 See   S.J.W., 149 Wn. App. at 925-26.

       91   State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536(1991).

                                               27
No. 71467-8-1/28

doing, where he was sitting before the incident, and who else was there. A.S.

also described the incident in detail. A.S. further testified to events after the

incident, including Matos-Ramos's call for the ambulance, the ambulance ride,

and where he lived afterwards.

       Based upon A.S.'s testimony, the trial court properly determined that A.S.

could independently remember the incident. Thus, the trial court did not abuse

its discretion in concluding that A.S. was competent to testify.

       Matos-Ramos argues that A.S. did not independently recall the incident.

He focuses on A.S.'s inability to independently remember that he lived with

Matos-Ramos at the time of his injury. Matos-Ramos also focuses on A.S.'s "I

don't know" response when asked how he sustained his injury.

       But A.S.'s "I don't know" response does not establish that A.S. could not

independently recall the incident. As previously stated, this response

demonstrates his reluctance to explain what happened before he actually

explained the circumstances. Additionally, A.S.'s inability to independently

remember that he lived with Matos-Ramos does not establish that A.S. could not

independently recall the incident. His detailed testimony about the

circumstances surrounding his injury shows otherwise.

                               JURY INSTRUCTION

       Matos-Ramos argues that the trial court's failure to instruct the jury that all

twelve jurors must be involved during deliberations violated his right to a fair trial

and unanimous verdict. He did not request this instruction at trial. Because he




                                             28
No. 71467-8-1/29

fails to establish that he falls within the narrow exception of RAP 2.5(a)for

unpreserved claims, we do not reach the merits of this argument.

       Under RAP 2.5(a), a party may raise for the first time on appeal "a

manifest error affecting a constitutional right."82 The party has the burden to

show this.83

                                   Manifest Error

       Matos-Ramos argues that the trial court's error is manifest. Not so.

       To show such an error,.a party must"make a plausible showing that the

error resulted in actual prejudice, which means that the claimed error had

practical and identifiable consequences in the trial."84 "If the facts necessary to

adjudicate the claimed error are not in the record on appeal, no actual prejudice

is shown and the error is not manifest."85

       Here, Matos-Ramos argues that "[tihe jury was essentially ignorant of how

to reach a constitutionally unanimous verdict." He contends that "[n]othing

informed the jurors [that] they could not deliberate in small groups over lunch," or

while some jurors were absent while using the restroom.




       82RAP 2.5(a)(3); see also State v. Lamar, 180 Wn.2d 576, 582, 327 P.3d
46 (2014).

       83   Lamar, 180 Wn.2d at 583.

       84   Id.

       85 State   v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).

                                             29
No. 71467-8-1/30

         This record shows that the court gave the jury unchallenged instructions

on their duty to deliberate. But there is nothing in this record to show what went

on in the jury room. We simply do not know whether any of the claims he makes

on appeal are real in this case. Absent such a showing, his assertions are

entirely speculative. There is no showing of any manifest error. Accordingly, we

do not reach the merits of this argument.

                          DOMESTIC VIOLENCE FINDING

         Matos-Ramos argues that the trial court improperly included a domestic

violence finding in the judgment and sentence. The State properly concedes this

error.

         Here, the judgment and sentence includes a domestic violence finding and

provides that domestic violence "was [pleaded] and proved." While the

information alleged domestic violence, the jury never made such a finding.

         The proper remedy for this error is to remand to the trial court to correct

it.86 We do so here.

                                        COSTS

         Matos-Ramos argues that this court should decline to award the State

appellate costs should the State prevail on appeal. We hold that there shall be

no award of costs on appeal to the State.




      86 In re Pers. Restraint of Mayer, 128 Wn. App. 694, 701-02, 117 P.3d 353
(2005); see also CrR 7.8(a).

                                              30
No. 71467-8-1/31

      RCW 10.73.160(1) gives appellate courts discretion to decline to impose

appellate costs on appea1.87 Under State v. Sinclair, there is a presumption that

indigency continues unless the record shows otherwise.88

      Here, the trial court granted Matos-Ramos's motion to seek appellate

review at public expense. Nothing in this record overcomes the presumption of

his indigence. Thus, an award to the State for appellate costs is inappropriate

under these circumstances.

      We affirm the second degree assault conviction, vacate the domestic

violence finding, and remand for correction of the judgment and sentence. We

also deny any request for an award of appellate costs to the State.




WE CONCUR:




       87 State   v. Nolan, 141 Wn.2d 620, 629, 8 P.3d 300(2000).

       88 192 Wn. App. 380, 393, 367 P.3d   612, review denied, 185 Wn.2d 1034
(2016).
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