                                                                          FILED 

                                                                       MARCH 27, 2014 

                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 30521-0-111
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
RAMON RIOS GONZALEZ,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, J.-Ramon Rios Gonzalez appeals his conviction for first degree child

molestation. He mainly assigns error to the trial court's admission and consideration of

the victim's out-of-court statements and his trial attorney's ineffective assistance for not

challenging the statements. We reject his contentions and conclude the evidence

sufficiently supports the related findings of fact and Mr. Gonzalez's conviction. Because

we reject Mr. Gonzalez's error claims, we do not address his cumulative error

contentions. Accordingly, we affirm.

                                          FACTS

       All but two factual findings are unchallenged verities on appeal. See RAP

10.3(g); Davis v. Dep't of Labor & Indus.,. 94 Wn.2d 119,123,615 P.2d 1279 (1980).

The State charged Mr. Gonzalez with first degree child molestation of B.P., his great

niece, who was six years old during the molestation and nine years old at trial. She
No. 30521-0-111
State v. Gonzalez

testified that while attending a family gathering in the summer of 2008, Mr. Gonzalez

called her into a dark bedroom and touched her "private parts" under her pants, near

her vagina. Clerk's Papers (CP) at 45-47; see Report of Proceedings (RP) at 47. B.P.

could not identify Mr. Gonzalez at trial. She disclosed the incident to her mother, Miriam

Pinon, the next day, identifying her molester as "my daddy's uncle," "the uncle from the

boat." RP at 53.

      Ms. Pinon recounted B.P. identified Mr. Gonzalez through exhibit 5, a group

photograph from the family gathering, a few months later. Ms. Pinon took action about

a year later, when two other nieces disclosed Mr. Gonzalez had raped or molested them

too. A victim's advocate, Amy Gallardo, recounted B.P. identified her molester as "my

dad's uncle" during her forensic interview. RP at 148; accord Ex. 6, at 1:44:36-:44:56

p.m., Jan. 22, 2010. Additionally, B.P. described her molester as a man with "lighter

skin, short hair that was kind of dark, tall and thin"; and a man who "she had never seen

... before the party ... or since the party." RP at 146, 148-49.

      In an earlier pretrial hearing, the attorneys and the trial judge extensively

discussed whether to admit B.P.'s out-of-court statements:

          THE COURT: .... You [the deputy prosecutor] have someone - the
      child that you want to interview and put on tomorrow as far as her
      testimony, is that right, in the morning?
          MR. BOSWELL [the deputy prosecutor]: Yes.
          MR. SANDLIN [defense counsel]: What is the problem with the child
      hearsay rule? If he's going to put the child on, that's fine. We want the
      child on so we can examine her.
          MR. BOSWELL: And it's the State's intent to call her, planning on
      calling the child as a witness. The child hearsay rule is just even with the
      child testifying we can still, depending upon what she testifies to­



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No. 30521-0-111
State v. Gonzalez

          THE COURT: Do we need a competency hearing. Are you saying she
      can testify?
          MR. BOSWELL: She's nine now. She's competent.
          MR. SANDLIN: Of course she is, yeah.
          THE COURT: Well, if you agree on that, that takes care of that
      problem.
          MR. SANDLIN: Then there's no child hearsay, that's the problem.'
          THE COURT: Well, it would be hearsay because she made
      statements at the time when she was underage. 

          MR. BOSWELL: Yes, under the age of ten . 


         . . . And I know the State provided briefing to that but I don't think Mr.
      Sandlin ever did, at least I didn't see any.

         MR. SANDLIN: Well, the rule is clear, if it's under nine but the issue is
      was she competent and if she's competent why are we restating what
      she's saying?

         THE COURT: ... I'm quoting now from Ms. Rosborough [the former
      deputy prosecutor]'s brief [regarding competency] ....

         MR. BOSWELL: It's my understanding that Mr. Sandlin has had an
      opportunity to interview her.
         MR. SANDLIN: Yeah.
         THE COURT: [Case law] directs trial courts to the Ryan[1) factors as
      useful to determining reliability. I have to - I gotta compliment Ms.
      Rosborough in this brief. I think she did ­
         MR. SANDLIN: Yeah, I think it was very good .

          . . . Well, that's the reason I didn't respond to the brief. She put all the
      law in there.
          THE COURT: Well, again, those are things the Court has to do unless
      counsel agree that we can proceed. Let's begin. I'm not going to get into
      that. That's up to both counsel.
          MR. SANDLIN: I think - she was competent when 1listened to her.
          MR. BOSWELL: I guess the issue is not whether - I guess if she's not
      competent, the statements can still come in if there's the reliability as I
      (inaudible) on the Ryan factors but even is [sic] she is competent, the
      statements can still come in.




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

                                             3
No. 30521-0-111
State v. Gonzalez

            . .. Does that make sense? I think Mr. Sandlin - the impression I'm
       getting from Mr. Sandlin is that if she testifies, the statements don't come
        in because she's testifying.
            MR. SANDLIN: Well, we'll want them to come in anyway for
       impeachment purposes.
            MR. BOSWELL: Okay, okay. 

            THE COURT: Okay, so am I safe to say that there's not a problem 

       here?
            MR. SANDLIN: Doesn't seem to me that there's a problem here.
            THE COURT: Okay.
            MR. SANDLIN: However, how many hearsay statements are we going
       to admit? Are we going to have three tiers of hearsay statements, what
       she said to mom, what she said to dad later, what she said to the sexual
       assault victim later, you know. There's gotta be an end to this at some
       point.
            MR. BOSWELL: It's - my understanding it's just the two levels. It's
       just the immediate disclosure to the mother which was the day after the
       incident and then a year later when she talked with Amy Gallardo of our
       Victim Witness Unit. It's my understanding she's never spoken to the
       father about this.
            MR. SANDLIN: Well, she has, but whatever. 

            THE COURT: Okay. 

            MR. BOSWELL: I guess I'm a little confused where we're going .... 


           THE COURT: I think what I'm hearing from Mr. Sandlin allays my
       concern here. I mean, the defense has agreed to a number of things, if I
       understand correctly, that would make a continuation not necessary. I
       think we can go, and I - you know, that's a - these things have a habit of
       kind of niorphing. We'll just have to deal with it if we start the trial.

RP (Sept. 19, 2011) at 15-19 (emphasis added).

       Mr. Gonzalez soon waived his jury trial right. After the colloquy, the attorneys

and the trial judge briefly discussed this waiver's impact:

          THE COURT: Okay. Alright, the Court's satisfied. 

          MR. SANDLIN: Okay. So that solves a lot of pretrial motions, too. 

          THE COURT: Well, it certainly does. 


          MR. BOSWELL: No. Do we still want to do - I guess now that it's a
       bench trial, I understand that but how do we want to handle the [ER]
       404(b), [RCW] 10.58.090? Do we still want to do that beforehand­


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No. 30521-0-111
State v. Gonzalez

         MR. SANDLIN: No, I think it's a bench trial­ 

         MR. BOSWELL: - as a part of trial. 

         MR. SANDLIN: We can - it's a bench trial, so therefore there's not 

      going to be a - if we've read the material and you're [the trial judge] not
      going to compartmentalize your brain. You're going to look at it and make
      a decision, it's that simple.

RP (Sept. 19, 2011) at 35.

      At a bench trial, the deputy prosecutor presented B.P.'s out-of-court statements.

Defense counsel did not object to the statements on grounds of hearsay or RCW

9A.44.120(1) reliability. The trial court eventually admitted the statements, found Mr.

Gonzalez guilty as charged, and entered two challenged factual findings:

      1.7 	   B.P. identified the defendant through State's Exhibit 5. There was
              some question as to whether this was an appropriate exhibit. The
              Court would agree with the defendant and defense counsel that
              had this been done by law enforcement it probably would not have
              been admitted. Nevertheless it was done by a lay person in a way
              the Court finds was not leading, and did not infer what the answer
              should be. The Court accepts Miriam Pinon's testimony that she
              did not specifically point at the defendant here, but pointed at the
              picture and asked the child to identify the defendant, which B.P.
              did. There is also testimony that B.P. remembered the defendant
              from the trip on the boat. It is clear to the Court that the
              identification is acceptable and reliable. The Court accepts the
              testimony.

      1.10 	 The Court did consider that B.P.'s physical description of the
             perpetrator is different than the defendant's actual physical
             appearance; however, based upon the oral description B. P. gave to
             her mother and Ms. Gallardo the Court finds that is the substantial
             item that the Court basis it's decision.

CP at 47-48; accord RP at 422,425. Mr. Gonzalez appealed.




                                            5

No. 30521-0-111
State v. Gonzalez

                                        ANALYSIS

                        A. Statements Under RCW 9A.44.120(1)

       The issue is whether the trial court erred in admitting B.P.'s out-of-court

statements. Mr. Gonzalez contends the statements are not reliable under RCW

9A.44.120(1). The State argues Mr. Gonzalez waived any error claim because his trial

attorney did not object to the statements on grounds of hearsay or RCW 9A.44.120(1)

reliability.2 We agree with the State. We reject an error claim challenging hearsay or

RCW 9A.44.120(1) reliability for the first time on appeal. See RAP 2.5(a); ER 103(a)(1);

State v. Leavitt, 111 Wn.2d 66, 71-72, 758 P.2d 982 (1988).

       Even so, alternative grounds exist to affirm admitting the specific statements Mr.

Gonzalez challenges. See RAP 2.5(a); Thomas v. French, 99 Wn.2d 95, 104,659 P.2d

1097 (1983). We review evidence admission for abuse of discretion. 3 State v. Swann,

114 Wn.2d 613, 665, 790 P.2d 610 (1990). The child hearsay statute partly 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, ... not
      otherwise admissible by statute or court rule, is admissible in evidence in
      ... criminal proceedings ... if:


       2 The record is ambiguous on whether Mr. Gonzalez invited any error. We need
not decide this issue because Mr. Gonzalez did not object to the statements on grounds
of hearsay or RCW 9A.44.120(1) reliability.
       3 A trial court abuses its discretion if its decision is "manifestly unreasonable,"
based on "untenable grounds," or made for "untenable reasons." State ex rei. Carroll v.
Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971); see also State v. Rohrich, 149 Wn.2d
647, 654, 71 P.3d 638 (2003) ("A decision is based on untenable grounds or made for
untenable reasons if it rests on facts unsupported in the record or was reached by
applying the wrong legal standard. A decision is manifestly unreasonable if the court,
despite applying the correct legal standard to the supported facts, adopts a view that no
reasonable person would take, and arrives at a decision outside the range of acceptable
choices." (citations omitted) (internal quotation marks omitted)).

                                             6

No. 30521-0-111
State v. Gonzalez

           (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;[4] 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.

RCW 9A.44.120; see ER 807.

       The child hearsay statute does not apply to the specific statements Mr. Gonzalez

challenges because they merely identify him as her molester. 5 If an out-of-court

statement is solely "one of identification of a person made after perceiving the person,"

it is not hearsay and is thus admissible where the declarant testifies at trial subject to




       4 Nine factors assist in evaluating the reliability of child hearsay statements:

      (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)
      whether the statements were made spontaneously; ... (5) the timing of
      the declaration and the relationship between the declarant and the
      witness[;] ... ([6]) the statement contains no express assertion about past
      fact[;] ([7]) cross examination could not show the declarant's lack of
      knowledge[;] ([8]) the possibility of the declarant's faulty recollection is
      remote[;] and ([9]) the circumstances surrounding the statement ... are
      such that there is no reason to suppose the declarant misrepresented
      defendant's involvement.

Ryan, 103 Wn.2d at 175-76 (internal quotation marks omitted) (quoting State v. Parris,
98 Wn.2d 140, 146,654 P.2d 77 (1982» {citing Dutton v. Evans, 400 U.S. 74, 88-89, 91
S. Ct. 210, 27 L. Ed. 2d 213 (1970».
       5 Mr. Gonzalez challenges B.P.'s out-of-court statements identifying her molester
as "my daddy's uncle"; "the uncle from the boat"; "my dad's uncle"; a man with "lighter
skin, short hair that was kind of dark, tall and thin"; and a man who "she had never seen
... before the party ... or since the party." RP at 53, 146, 148-49.

                                             7

No. 30521-0-111
State v. Gonzalez

cross-examination. 6 ER 801(d)(1)(iii); see, e.g., State v. Simmons, 63 Wn.2d 17,385

P.2d 389 (1963), cited in ER 801 (d)(1)(iii) cmt., 91 Wn.2d 1163 (1978); State v. Stratton,

139 Wn. App. 511,516-18,161 P.3d 448 (2007); State v. Grover, 55 Wn. App. 923,

931-34,780 P.2d 901 (1989); State v. Grover, 55 Wn. App. 252, 255-59, 777 P.2d 22

(1989); State v. Jenkins, 53 Wn. App. 228,230-36,766 P.2d 499 (1989). The child

hearsay statute does not apply to such identifications because they do not "describ[e]

any act of sexual contact performed with or on the child by another" and are "otherwise

admissible by statute or court rule." RCW 9A.44.120. The trial court did not err in

admitting B.P.'s out-of-court statements.

                                B. Ineffective Assistance

      The issue is whether Mr. Gonzalez received ineffective assistance of counsel

regarding B.P.'s out-of-court statements. He contends his trial attorney performed
       •
deficiently and prejudiced the defense when he did not object to the statements on

grounds of hearsay or RCW 9A.44.120(1) reliability.

      The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 & n.14, 90 S. ct.

1441,25 L. Ed. 2d 763 (1970); Yarborough v. Gentry, 540 U.S. 1,5,124 S. Ct. 1, 157 L.

Ed.2d 1 (2003). To prove counsel was ineffective, the defendant must show "counsel's

performance was deficient" and "the deficient performance prejudiced the defense."




      6 Hearsay is an out-of-court statement "offered in evidence to prove the truth of
the matter asserted." ER 801(c). Hearsay is inadmissible unless an exception applies.
ER 802.
                                            8

No. 30521-0·111
State v. Gonzalez

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Failure to show either element defeats the claim. Id. at 697.

       Deficient performance occurs if "counsel's representation fell below an objective

standard of reasonableness." Id. at 688. This standard requires "reasonableness under

prevailing professional norms" and "in light of all the circumstances." Id. at 688,690.

The defendant must overcome a "strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance." Id. at 689. To do so, the

defendant must show counsel's performance cannot be explained as a sound defense

strategy. Id.

       Prejudice occurs if "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id. at

694. A reasonable probability of a different result exists where counsel's deficient

performance "undermine[s] confidence in the outcome." Id. The defendant "need not

show that counsel's deficient conduct more likely than not altered the outcome in the

case." Id. at 693. Instead, the defendant "has ... the burden of showing that the

decision reached would reasonably likely have been different absent the errors." Id. at

696. This standard requires evaluating the totality of the record. Id. at 695.

       Because the specific statements Mr. Gonzalez challenges were admissible as

non·hearsay under ER 801(d)(1)(iii), it makes no difference whether his trial attorney

objected to the statements on grounds of hearsay or RCW 9A.44.120(1) reliability.

Therefore, his trial attorney neither performed deficiently nor prejudiced the defense.




                                             9

No. 30521-0-111
State v. Gonzalez

Mr. Gonzalez did not receive ineffective assistance of counsel regarding B.P.'s out-of­

court statements.

                                       C. Confrontation

       The issue is whether the trial court violated Mr. Gonzalez's confrontation right by

admitting B.P.'s out-of-court statements. He contends the statements are inadmissible

because they lack "'adequate indicia of reliability,'" considering they neither fit a '''firmly

rooted hearsay exception'" nor bear '''particularized guarantees of trustworthiness. "'7

Second Am. Br. of Appellant at 48 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct.

2531,65 LEd. 2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 124

S. Ct. 1354, 158 LEd. 2d 177 (2004».

       The United States Supreme Court discarded the Roberts test 10 years ago, as

numerous judicial opinions have since recognized. Crawford, 541 U.S. at 60-69; Davis

v. Washington, 547 U.S. 813, 825 & n.4, 126 S. Ct. 2266,165 LEd. 2d 224 (2006);

United States v. Gonzalez-Lopez, 548 U.S. 140, 145-46, 126 S. Ct. 2557, 165 LEd. 2d

409 (2006); Whorton v. Bockting, 549 U.S. 406, 413, 416, 127 S. Ct. 1173, 167 LEd.

2d 1 (2007); Danforth v. Minnesota, 552 U.S. 264, 270, 128 S. Ct. 1029, 169 LEd. 2d

859 (2008); Giles v. California, 554 U.S. 353, 374 & n.6, 128 S. Ct. 2678, 171 LEd. 2d

488 (2008); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312-13, 317, 129 S. Ct.

2527,174 LEd. 2d 314 (2009); Michigan v. Bryant, _            U.S. _,131 S. Ct. 1143,


       7 Mr. Gonzalez may not raise this error claim for the first time on appeal
because, as discussed below, he has not shown a "manifest error affecting a
constitutional right." RAP 2.5(a)(3); see State v. Kronich, 160 Wn.2d 893, 899-901, 161
P.3d 982 (2007), overruled on other grounds by State v. Jasper, 174 Wn.2d 96,116,
271 P.3d 876 (2012).

                                              10 

No. 30521-0-111
State v. Gonzalez

1152, 179 L. Ed. 2d 93 (2011); Bullcoming v. New Mexico, _         U.S. _ , 131 S. Ct.

2705, 2713, 180 L. Ed. 2d 610 (2011); Williams v. Illinois, _     U.S. _ , 132 S. Ct.

2221,2232, 183 L. Ed. 2d 89 (2012) (plurality opinion).

       Now, under Crawford, "[t]estimonial statements of witnesses absent from trial

[may be] admitted only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine." 541 U.S. at 59. Because B.P.

testified at trial subject to cross-examination, her out-of-court statements were

admissible regardless of whether they were testimonial. See id. at 59 n.9 (citing

California v. Green, 399 U.S. 149, 162, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970)).

Therefore, the trial court did not violate Mr. Gonzalez's confrontation right by admitting

B.P.'s out-of-court statements.

                                  D. Evidence Sufficiency

       The issues are whether sUbstantial evidence supports factual findings 1.7 and

1.10, and whether sufficient evidence supports Mr. Gonzalez's conviction for first

degree child molestation.

       Following a bench trial, we review the trial court's factual findings and legal

conclusions to determine whether substantial evidence supports the findings and the

findings support the conclusions. Morgan v. Prudential Ins. Co. of Am., 86 Wn.2d 432,

437,545 P.2d 1193 (1976); State v. Halstein, 122 Wn.2d 109, 128,857 P.2d 270

(1993). Evidence substantially supports a factual finding if it is "evidence in sufficient

quantum to persuade a fair-minded, rational person of the truth of a declared premise."

Helman v. Sacred Heart Hosp., 62 Wn.2d 136, 147,381 P.2d 605 (1963). Where


                                             11 

No. 30521-0-111
State v. Gonzalez

substantial evidence supports a factual finding, we must not "substitute [our] finding for

that of the trial court," even if we might have resolved the factual dispute differently.

Thorndike   v.   Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959). We

defer to the trial court's assessment of witness credibility and evidence weight. In re

Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973).

       The Fourteenth Amendment due process clause requires the State to prove all

essential elements of a charged crime beyond a reasonable doubt. In re Winship, 397

U.S. 358,364,90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). And, the Fifth Amendment

double jeopardy clause "forbids a second trial for the purpose of affording the

prosecution another opportunity to supply evidence which it failed to muster in the first

proceeding." Burks v. United States, 437 U.S. 1, 11,98 S. Ct. 2141, 57 L. Ed. 2d 1

(1978). Evidence sufficiently supports a guilty finding if '''after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d

216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443

U.S. 307, 319,99 S. Ct. 2781,61 L. Ed. 2d 560 (1979». An evidence sufficiency

challenge "admits the truth of the State's. evidence and all inferences that reasonably

can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992).

Again, we defer to the trial court's assessment of witness credibility and evidence

weight. State v. Carver, 113 Wn.2d 591,604, 781 P.2d 1308,789 P.2d 306 (1989).

       A person commits first degree child molestation if he or she has "sexual contact

with another who is less than twelve years old and not married to the perpetrator and


                                             12 

No. 30521-0-111
State v. Gonzalez

the perpetrator is at least thirty-six months older than the victim." RCW 9A44.083(1).

"It is axiomatic in criminal trials that the prosecution bears the burden of establishing

beyond a reasonable doubt the identity of the accused as the person who committed

the offense." State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974).

       First, Mr. Gonzalez argues B.P. gave Ms. Pinion and Ms. Gallardo no "oral

description" identifying him as her molester. CP at 48. He complains the trial court

could not find such identification from B.P.'s out-of-court statements because they were

too general and self-contradictory. Ms. Pinon testified that the day after the molestation,

B.P. identified her molester as "my daddy's uncle," "the uncle from the boat." RP at 53.

Ms. Gallardo testified that during her forensic interview, B.P. identified her molester as

"my dad's uncle." RP at 148; accord Ex. 6, at 1:44:36-:44:56 p.m., Jan. 22, 2010.

These identifications pinpointed Mr. Gonzalez because he is B.P.'s great uncle and B.P.

knew him from when she and Ms. Pinon rode in a boat he was selling. Assessing

witness credibility and evidence weight, the trial court believed this testimony, even

considering B.P.'s deficiencies in giving an accurate physical description and

inconsistent answers about not seeing her molester before or after the family gathering.

We defer to the trial court's appraisal of these matters. The evidence is enough to

persuade a fair-minded, rational person that B.P. identified Mr. Gonzalez as her

molester. Thus, we conclude substantial evidence supports factual finding 1.10.

      Second, Mr. Gonzalez argues B.P. did not "identif[y] the defendant through ...

Exhibit 5" but merely suggested she recognized the family gathering or another great

uncle depicted in the photograph. CP at 47. Additionally, he argues the trial court could


                                             13 

No. 30521-0-111
State   v.   Gonzalez

not find this out-of-court identification lacked suggestiveness because neither Ms. Pinon

nor B.P. could remember its full details.

         But Ms. Pinon testified that a few months after the molestation, B.P. identified Mr.

Gonzalez through Exhibit 5. The photograph depicted Mr. Gonzalez among three other

great uncles. Ms. Pinon showed the photograph to B.P. and asked her to identify Mr.

Gonzalez. While Ms. Pinon could not recall the exact words she used, she was certain

she did not point at any specific person depicted in the photograph and did not

otherwise suggest an answer. B.P. pointed to the man with the hat, Mr. Gonzalez.

AsseSSing witness credibility and evidence weight, the trial court believed this

testimony. Again, we defer to the trial court's appraisal of these matters. The evidence

is enough to persuade a fair-minded, rational person that B.P. identified Mr. Gonzalez

through Exhibit 5. Additionally, the evidence is enough to persuade a fair-minded,

rational person the out-of-court identification lacked suggestiveness. Thus, we

conclude substantial evidence supports factual finding 1.7.

        Any conflicts between B.P.'s trial testimony and her prior statements are likewise

matters of witness credibility and evidence weight, on which we defer to the trial court.

In sum, viewing the evidence in the light most favorable to the State, a rational trier of

fact could find Mr. Gonzalez was B.P.'s molester beyond a reasonable doubt.

Accordingly, we conclude sufficient evidence supports Mr. Gonzalez'S conviction for first

degree child molestation.




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No. 30521-0-111
State v. Gonzalez

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





                                           15 

