                                                                                                                   1` 1 L. ED
                                                                                                          COURT OF APPEAL.
                                                                                                                aMIC1110N Ti

                                                                                                        2013 OCT 29 A'          9: 47
       IN THE COURT OF APPEALS OF THE STATE OF W

                                                     DIVISION II

STATE OF WASHINGTON,                                                                    No. 428E


                                        Respondent,


           V.



T.T.,                                                                          UNPUBLISHED OPINION


                                        Appellant.




           JOHANSON, J. —          Following an earlier direct appeal and remand for further proceedings,
TT1
         again appeals        his first degree   child rape   juvenile    court adjudication.         He primarily argues

that the juvenile court erred by conducting a supplemental hearing on remand instead of holding

a new     trial.   Because our 2010 decision reversed TT' s adjudication due to a confrontation clause


violation and we declined to reach TT' s remaining claims, a new trial was required when we

    remand[ ed]     for further     proceedings."     Accordingly, we reverse and again remand for a new

trial.


                                                            FACTS


           In 2008, the juvenile        court adjudicated     TT guilty       of   first degree   child rape.   State v. T.T.,


noted at        157 Wn.   App.     1011, 2010 WL 2927453,         at *   1.   On appeal, TT argued that the juvenile


court had violated his confrontation clause rights by admitting child hearsay testimony when the

State failed to ask the victim at trial about his ( the victim' s) out -of court statements. In 2010, we
                                                                           -


held that the juvenile court violated RCW 9A.44. 120 and TT' s rights under the federal and state




1
    We    use   initials to   protect minors'    privacy.
No. 42861 -0 -II -



confrontational clauses.          T.T., 2010 WL 2927453,              at *   3.   Although TT requested that his charges


be    dismissed    with    prejudice,    we    disagreed.      T.T., 2010 WL 2927453,                      at *   3.   Because the


evidence at trial, including the erroneously admitted hearsay was sufficient to support proof of

the elements of first degree child rape beyond a reasonable doubt, we reversed TT' s adjudication

based solely       on   the     confrontation    violation,       declined to           reach     TT' s   other    arguments,    and



remanded for further proceedings. T.T., 2010 WL 2927453, at * 3.


          At a hearing on remand, the juvenile court noted that .it had reviewed the State' s trial

memorandum and our 2010 opinion, and had spoken with the State and with defense counsel the


day    before.    Both parties interpreted our 2010 decision ( 1) to direct the juvenile court to engage


in " further     proceedings"      which "    would be most appropriately handled by the State presenting

additional     testimony regarding        the child    hearsay         statements"        and ( 2) to not direct the juvenile


court to conduct a new trial. Verbatim Report Proceedings ( Nov. 22, 2011) at 18. The State then

called the child victim to the stand and asked him several questions about the alleged incident

and his out - - ourt statements. Defense counsel was afforded cross- examination.
            of c

          After the State rested, TT moved to dismiss arguing that the victim' s lack of memory

could not support         introduction   of   the   child   hearsay        statements.          The juvenile court denied TT' s


motion, ruling that the confrontation clause. and the Clary test were satisfied because the child

victim    took the      stand   and was      asked questions          about       his   prior        of - ourt
                                                                                                 out -  c         statements..   The


juvenile      court   again   adjudicated     TT guilty      of   first degree           child    rape.   TT again appeals his


adjudication.




2
     T.T., 2010 WL 2927453,           at *   2 ( citing State         v.   Clark, 139 Wn.2d 152, 159, 985 P. 2d 377
    1999)).



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No. 42861 -0 -I1



                                                            ANALYSIS


          TT argues that he was entitled to a new trial on remand and that the juvenile court erred

                                                              3
by    conducting only          a supplemental      hearing.       We    agree.    A new trial on remand was necessary

because our prior decision reversed based solely on confrontation clause grounds and, thus,

neither reached nor resolved TT' s other arguments on appeal.


           RAP 12. 2      provides,       in   part, "   The appellate court may reverse, affirm, or modify the

decision being reviewed and take any other action as the merits of the case and the interest of

justice may      require."       When an appellate court reverses a judgment and makes no final ruling on

all   the issues in   a case,     the   usual procedure contemplated              is   a new   trial. "`   This is true when it is


fairly apparent from the court' s discussion of the case that the cause is remanded with that object

in    view. "'   State   v.   Jones, 148 Wn.2d 719, 722, 62 P. 3d 887 ( 2003) (                      quoting Elliot v. Peterson,

92 Wn.2d 586, 588, 599 P. 2d 1282 ( 1979)).                       Division One of this court has held that when we


remand "     for further        proceedings"       or    instruct   a   trial   court   to   enter   judgment "    in any lawful

manner"      consistent with our opinion, "              we expect the court to exercise its authority to decide any

issue necessary to            resolve   the    case on remand."         State v. Schwab, 134 Wn. App. 635, 645, 141

P. 3d 658 ( 2006), aff'd, 163 Wn.2d 664, 185 P. 3d 1151 ( 2008). But such language does not give


the trial court the authority to decide that a new trial is not necessary when our decision has

signaled that the remand is for a new trial. See Jones, 148 Wn.2d at 722.




3 Because we reverse his adjudication and remand for a new trial, we do not reach his ineffective
assistance of counsel claim.                  We also do not reach the insufficiency of the evidence argument
because we addressed this issue in our 2010 decision and concluded there was sufficient
evidence.




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No. 42861 -0 -II



          This   case   has important           similarities   to Jones.        In Jones, the Supreme Court reversed the


trial court' s refusal to grant Jones a new trial after Division One of this court had reversed for a


discovery violation and remanded to the trial court. Jones, 148 Wn.2d at 720. Before trial, Jones

had sought discovery of an internal police investigation but the trial court denied his request.

Jones, 148 Wn.2d          at   721.     After a jury found him guilty, Jones appealed arguing that the police

investigation files       were       discoverable.        Jones, 148 Wn.2d              at    721.    And Division One agreed,


explaining that the trial court should have at least performed an in- camera examination, and

remanded - or proceedings " consistent with
         f                                                     its   opinion."    Jones, 148 Wn.2d           at    721.   Division One


also noted that it need not reach Jones' s remaining arguments because it was reversing on the

discovery violation. Jones, 148 Wn.2d at 722.

          On remand, the trial court held an in- camera hearing and decided the investigation files

were discoverable; but it ruled that the information would not have changed the trial' s outcome,


refused to conduct a new trial over Jones' s objection, and left the earlier convictions intact.

Jones, 148 Wn.2d          at    721 -22.        Jones appealed again and our Supreme Court reversed, holding

that on   remand     the trial       court' s   failure to hold       a new     trial   was error.     Jones, 148 Wn.2d at 722.


The Supreme Court explained that in the first appeal Division One was dealing with an appeal as

of right    under    both      our     court     rules   and   article    I, section 22 of the state constitution, and,


therefore, its declining to reach all of Jones' s arguments " plainly signaled the court' s intent that

the   remand     be for   a new       trial."   Jones, 148 Wn.2d           at   722.    Otherwise, Division One would have


decided the remaining issues               or explained        why it     was not obligated          to do   so.   Jones, 148 Wn.2d


at   722. " Furthermore, [ Division One] gave specific instructions to the trial court on remand to


determine        whether       the    information        was    privileged       and     to    what    extent,     if any,   discovery



                                                                      0
No. 42861 -0 -II



limitations        would   be necessary.        Those instructions were meaningless unless the court was


contemplating a new trial, at which a jury would determine the weight, if any, to give to the new

evidence."         Jones, 148 Wn.2d at 722.


            Like in Jones,      our prior opinion (      1) dealt       with an appeal as of right, (           2) addressed only

one of   TT'   s several arguments, (         3) indicated that we need not address TT' s remaining arguments

because      we reversed on confrontation clause grounds, (                    4) gave specific instructions to address


the   confrontation clause violation, and (            5)    remanded "       for further   proceedings."             T.T., 2010 WL


2927453, * 3.        In similar circumstances, the Supreme Court held that under the court rules and the


state constitution, not addressing all of Jones' s arguments was a plain signal that the court

intended a remand for a new trial rather than just a hearing to address the discovery issue. Jones,

148 Wn.2d at 722.4

            The State argues here that a new trial was not necessary because our prior decision did

not   clearly direct the juvenile         court on remand          to   conduct a new       trial. 5    The State is correct that

we    did    not    directly   say that   a   new    trial   was    necessary, but     we      did say      we "      reverse[ d] and


remanded]          for further- proceedings."         T.T., 2010 WL 2927453,                at *   3.    Division One in Jones


remanded       for " proceedings     consistent with         its   opinion."    Jones, 148 Wn.2d           at   721.      After noting

that the usual procedure contemplated is a new trial, the Supreme Court determined that Division




4 But TT' s case also differs from Jones because ( 1) TT is a juvenile and therefore not entitled to
a jury trial on remand and ( 2) TT agreed to the supplemental proceedings.      These distinctions,
however, do not alter our application of Jones' s rationale here.


5 The State also argues that because both parties agreed with the juvenile court' s reading of our
prior opinion, we          should   agree     that   a new    trial     was   not required.        The State fails to cite any
supporting authority for this argument so we consider it no further. RAP 10. 3(                                 a)(   6), ( b);   see also

State v. Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004).


                                                                    5
No. 42861 -0 -II



One had " plainly"    signaled     its intention for   a new     trial.   Jones, 148 Wn.2d      at   722.        We see no


meaningful    distinction between the language          we used and       the language   used   in Jones. We reject


the State' s argument.


        Because our prior opinion on direct review did not address all of TT' s arguments and

because   we " reverse[   d]   and remand[ ed]     for further   proceedings,"   T.T., 2010 WL 2927453, at * 3,


we signaled our     intent that    a new   trial   was required on remand.        Accordingly, we reverse and

again remand for a new trial.


        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.

                                                                                                            il




                                                                                  Johanson, J
We coner:




                    Worswick, C




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