        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 71928-9-


                      Respondent,                     DIVISION ONE


   v.



FIDEL BAUTISTA-GONZALEZ,                              UNPUBLISHED


                      Appellant.                      FILED: September 21, 2015




        Cox, J. - A jury found Fidel Bautista-Gonzalez guilty of four counts of rape

of a child in the first degree. On appeal, he fails to demonstrate that the trial

court abused its discretion in finding that one of the child victims was competent

to testify. He also fails to establish any reversible evidentiary error. We affirm.

        Andrea C. began a relationship with Bautista-Gonzalez in 2009. For

several years, Andrea and her two young daughters, L.C. and W.C., lived

intermittently with Bautista-Gonzalez. Bautista-Gonzalez would watch the girls

while Andrea attended her regular evening AA meetings.

        In late November 2011, Andrea noticed that four-year-old L.C. had painful

blisters around her vagina and anus. L.C.'s physician diagnosed her with herpes

simplex type 2. A follow-up examination at Seattle Children's Hospital indicated

that L.C. was experiencing a primary outbreak and had been exposed to the

virus in recent weeks or months through anal contact.

        Andrea and a hospital social worker contacted the police and Child

Protective Services (CPS). Andrea also arranged a herpes test for all of the men
No. 71928-9-1/2




in her family. Andrea did not suspect that Bautista-Gonzalez might have been

involved. But Bautista-Gonzalez was the only man who tested positive for

herpes. Andrea also learned that she had herpes.

        As part of the CPS investigation, child interview specialist Carolyn

Webster interviewed L.C. and W.C. in December 2011. Neither child disclosed

any sexual abuse, but Webster and witnesses to the interview noted that L.C.

refused to talk about Bautista-Gonzalez. At CPS's insistence, Andrea moved out

of Bautista-Gonzalez's home and moved into her mother's home. At that point,

CPS closed the case.

        In 2012, Andrea purchased her own home. At some point, Andrea

resumed her relationship with Bautista-Gonzalez. Bautista-Gonzalez regularly

spent the night at Andrea's house and cared for the two children while Andrea

attended her AA meetings. In November 2012, the couple broke up for the last

time, although Bautista-Gonzalez continued to visit Andrea to help out and

babysit the children. In early 2013, Andrea asked Bautista-Gonzalez to cover the

windows with insulating plastic. Bautista-Gonzalez also watched the children at

the same time. Andrea had no contact with Bautista-Gonzalez after January 19,

2013.

        In early February 2013, Andrea was lying in bed and reading to the girls.

L.C. was five years old and W.C. was eight. W.C. asked Andrea, "mama, do you

have what boys have?"1 In response to Andrea's question, W.C. said, "boys




    1 Report of Proceedings (March 3, 2014) at 6.


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No. 71928-9-1/3




have the bananas and girls have the flowers."2 L.C. added, "just like Fidel has."3

Andrea asked L.C. if she had seen Bautista-Gonzalez's penis. L.C. replied,

"when he used to do uh-uh-uh to us," a term that L.C. and W.C. used for having

sex.4 L.C. explained that "it only hurt when he did it on my butt, not when he did

it on my flower."5 W.C. indicated that Bautista-Gonzalez had also done "uh-uh-

uh" to her and that it only hurt "when he would do it in my butt."6

       On the following day, Andrea reported the conversation to the police.

Child interview specialist Carolyn Webster scheduled interviews with L.C. for two

days later. But before the interview, Andrea became concerned that the children

might not report the abuse, as had happened during the 2011 interview. Ignoring

the police request that she not question L.C. and W.C. further before the

interviews, Andrea borrowed a video camera. Andrea then filmed the girls after

asking them to repeat what they had told her about Bautista-Gonzalez. During

the interview, L.C. added that one of the incidents of abuse occurred on the day

that Bautista-Gonzalez had put plastic on the windows. Andrea gave the video

recording to the police. In videotaped interviews, both L.C. and W.C. told

Webster that Bautista-Gonzalez had sexually abused them on several occasions.




    2ld
    3]d
    4 Id at 8.
    5 Id at 12.
    6 Id.
No. 71928-9-1/4




       The State charged Bautista-Gonzalez with four counts of rape of a child in

the first degree, two counts involving L.C. and two counts involving W.C.

Following a hearing, the trial court found both L.C. and W.C. competent to testify.

       L.C. and W.C. testified at trial. The trial court also admitted the video

recordings of Webster's interviews with the children and Andrea's video

recording of her interview. Bautista-Gonzalez testified that he was surprised

when he tested positive for herpes and believed that Andrea had infected him.

He denied sexually assaulting L.C. and W.C. or having any inappropriate contact

with them.

       The jury found Bautista-Gonzalez guilty as charged. The court imposed

concurrent standard range indeterminate sentences of 318 months to life.

       Bautista-Gonzalez appeals.

                                     Competency

       Bautista-Gonzalez contends that the trial court violated his due process

right to a fair trial when it found W.C. competent to testify. He argues that the

State failed to establish that W.C. could distinguish truth from falsity.

       In Washington, all persons are presumed competent to testify regardless

of their age.7 The party challenging the competency of a child witness bears the

burden of rebutting this presumption with evidence establishing one of the

statutory grounds for incompetency set forth in RCW 5.60.050, including an

inability "of receiving just impressions of the facts, respecting which they are




    7 State v. S.J.W., 170 Wn.2d 92, 102, 239 P.3d 568 (2010).
No. 71928-9-1/5




examined, or of relating them truly."8 The factors set forth in State v. Allen

continue to guide the trial court's determination of a child witness's competency:

       (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
       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.[9]
       "The competency of a youthful witness is not easily reflected in a written

record, and we must rely on the trial judge who sees the witness, notices the

witness's manner, and considers his or her capacity and intelligence."10

Consequently, an appellate court reviews the trial court's determination of

competency for a manifest abuse of discretion.11

       On appeal, Bautista-Gonzalez challenges only the first Allen factor -

W.C.'s understanding of the obligation to tell the truth. In particular, he points to

testimony at the competency hearing, during which W.C. said that she would not

get in trouble if she told a lie to her mother and responded that the deputy

prosecutor would be telling the truth if she said that the blue pen she was holding

in her hand was pink.

        Bautista-Gonzalez also relies on W.C.'s apparent confusion during the two

pre-trial interviews with Caroline Webster. During the February 2013 interview



    8 RCW 5.60.050(2); see also S.J.W., 170 Wn.2d at 102.
    9 In re Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998) (quoting,
State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967)).
    10 State v. Woods. 154 Wn.2d 613, 617, 114 P.3d 1174 (2005).
    11 Id.
No. 71928-9-1/6




with Webster, W.C. responded "yes" when asked if it is good to tell a lie and then

said, "I forgot," when asked to explain further. During the December 2011

interview, W.C. repeatedly referred to a story and an "accident" in which she

apparently "died years ago."12

       Bautista-Gonzalez contends that the record established W.C.'s long

standing inability to understand the difference between telling the truth and telling

a lie and that the trial court therefore erred in finding her competent to testify.

       As the trial court recognized, W.C.'s testimony during the pre-trial

interviews and competency hearing must be considered in context. During the

competency hearing, the court heard extensive testimony about the results of

W.C.'s evaluation in August 2013 for fetal alcohol syndrome. Dr. Julia Bledsoe, a

pediatrician at the University of Washington, diagnosed W.C. with static

encephalopathy and alcohol exposed, a condition involving significant central

nervous system damage and dysfunction. W.C. also has Attention Deficit

Hyperactive Disorder. Although W.C. has a normal I.Q., her condition has

resulted in a significant language learning disability.

       Dr. John Thome, a speech language pathologist, explained that W.C.'s

language disabilities could cause her some difficulties when attempting to correct

miscommunications. He also noted that such impairment causes difficulties with

words that involve finer distinctions, such as the distinction between "often" and

"frequently." Thome commented that although W.C. was more likely to have




    12 Report of Proceedings (March 6, 2014) at 42.
No. 71928-9-1/7




difficulties with expressing her memory of any event in words than other children,

"even children with very severe language impairments communicate their

message most of the time."13

       During her testimony at the competency hearing, W.C. testified in detail

about her school and her teacher. She described how she had celebrated

Christmas and described the presents she received. W.C. was not responsive to

all questions and could not explain precisely why it was bad to tell a lie. But she

repeatedly acknowledged that it was important to tell the truth:
      Q. Now, [W.C], do you understand that it's important that you tell
      the truth today? Do you?

      A. Yes.

       Q. Okay. And can you tell me why that's important?

      A. Because we got to tell the truth.

       Q. Okay. And do you understand that when you - [W.C], can you
       put your bear down, please? Do you understand when you come to
       court that it's important to tell the truth?

       A. Yes.


       Q. How often have you talked to your mom about why you're in
       court today?

       A. Because we're here to tell the truth.



       A. [Andrea] doesn't make stories about Fidel.

       Q. Okay. Did she tell you to make up a story?

       A. No.




    13 Report of Proceedings (January 9, 2014) at 290.


                                             -7-
No. 71928-9-1/8



      Q. Okay. And are you making up the story about Fidel?

      A. No.

      Q. Now, do you know what a lie is? Do you know that word?

      A. Yes.

      Q. Okay. Can you tell me what it means?

      A. It means when you lie, it's not even nice to lie.

      Q. Okay. It's not nice to lie?

      A. (Pause.)

       Q. Okay. Now, did your mom tell you to lie in court today?

      A. No.

       Q. No? What did she tell you?

       A. She tell me to tell the truth.

       Q. Okay. And are you telling the truth today?

       A. Yes.™


       After considering the testimony at the competency hearing and viewing

W.C.'s pre-trial interviews, the trial court found that she was competent to testify.
The court acknowledged that there were problematic aspects to her testimony,

but concluded that based on her testimony at the competency hearing, she was

able to recall past events and experiences. The court expressly noted the

progress in W.C.'s ability to respond to questions that occurred between her first
interview in 2011 and her testimony in early 2014 at the competency hearing.




    14 Report of Proceedings (January 8, 2014) at 110-22.


                                             -8-
No. 71928-9-1/9




Despite aspects that merited cross examination, the court found that W.C. was

able to understand the obligation to tell the truth in court.15 The evidence

supports that determination.

          Bautista-Gonzalez's reliance on State v. Karpenski16 is misplaced. In

Karpenski, the court reversed the child rape and child molestation convictions

after concluding that the child victim was incapable of distinguishing truth from

falsity. But the seven-year-old child victim in that case had taken an oath and

promised to tell the truth and not make up any stories. He then described in

"vivid detail" how he and his two-year-old brother had been born at the same

time. The testimony at the competency hearing "merely manifested] his long

standing, often-observed inability to distinguish what was true from what was

not."17

          Here, when asked in simple terms, W.C. usually described past events

and circumstances accurately. Andrea acknowledged that when W.C. was

younger, her language disability sometimes made it difficult to determine whether

she was telling the truth or lying. But Andrea explained that this usually involved

"little lies" and that W.C. was generally truthful in more serious situations. W.C.

had no history of fabrication remotely comparable to the child victim in Karpenski.

The trial court did not abuse its discretion in finding W.C. competent to testify.




    15 See State v. Carlson, 61 Wn. App. 865, 874, 812 P.2d 536 (1991)
(inconsistencies in a child's testimony go to weight and credibility, not competency).
    16 94 Wn. App. 80, 971 P.2d 553 (1999), overruled on other grounds in State v. C.J.,
148 Wn.2d 672, 63 P.3d 765 (2003).
     17 Id. at 106,
No. 71928-9-1/10




                                     Child Hearsay

       Bautista-Gonzalez contends that the trial court erred in admitting the video

recording that Andrea made of her interview of L.C. and W.C. shortly after they

initially disclosed the abuse. He argues that the girls' hearsay statements were

not spontaneous and therefore not admissible as child hearsay under RCW

9A.44.120.

       Hearsay statements of a child under the age of 10 are admissible in a

criminal case when the statements describe sexual or physical abuse of the

child, the court finds that the time, content, and circumstances of the statements

provide sufficient indicia of reliability, and the child testifies at the proceedings.18

When determining the reliability of child hearsay, the trial court considers the nine

Ryan19 factors:
       (1) whether there is an apparent motive to lie, (2) the general
       character of the declarant, (3) whether more than one person heard
       the statement, (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.[20]




    18 RCW 9A.44.120: see State v. Kennealv, 151 Wn. App. 861, 880, 214 P.3d 200
(2009).
    19 See State v. Ryan, 103Wn.2d 165,691 P.2d 197(1984).
    20 Kennealv, 151 Wn. App. at 880 (footnote omitted).


                                              -10-
No. 71928-9-1/11




We review the admission of evidence under RCW 9A.44.120(1) for abuse of

discretion.21

       Bautista-Gonzalez's arguments rest on a brief statement in Ryan for the

proposition that the girls' statements in the interview were not spontaneous

because they were "in response to questioning."22 Bautista-Gonzalez maintains

that "the questioning negated a finding that the statements were spontaneous

and/or trustworthy"23 and that all statements "after these initial statements were

also the result of questioning and were not spontaneous."24

       It is well established, however, that the Ryan spontaneity factor is not

undermined merely because the hearsay statement is in response to

questioning. "For purposes of a child hearsay analysis, spontaneous statements

are statements the child volunteered in response to questions that were not

leading and did not in any way suggest an answer.25 Bautista-Gonzalez's

arguments provide no meaningful analysis of Andrea's questioning or any

support for his conclusory assertion that the children's hearsay statements were

not spontaneous for purposes of RCW 9A.44.120. We therefore decline to

address further the alleged error.26




     21 State v, Swan, 114 Wn.2d 613, 665, 790 P.2d 610 (1990).
      22 Ryan, 103 Wn.2d at 176.
      23 Brief of Appellant at 17.
      24 id at 19-20.
      25 Carlson, 61 Wn. App. at 872; see also Swan. 114 Wn.2d at 649.
      26 See State v. Tinker, 155 Wn.2d 219, 224, 118 P.3d 885 (2005) (appellate court
will decline to review an issue that is unsupported by cogent argument and briefing).


                                              -11-
No. 71928-9-1/12




       Bautista-Gonzalez also contends that the trial court erred in admitting

portions of L.C.'s second interview with Webster, in which L.C. referred to his

sexual contact with W.C. He asserts that the child hearsay describing sexual

abuse of another is not admissible under RCW 9A.44.120.27

       But the record fails to support Bautista-Gonzalez's assertion that

Webster's second interview with L.C. was "admitted ... in its entirety."28 Rather,

the trial court granted defense counsel's request that the video recording be

redacted to delete references to sexual abuse of W.C. Consequently, the

majority of the statements that Bautista-Gonzalez challenges on appeal were not

admitted at trial. The only challenged statements admitted at trial were L.C.'s

statements that Bautista-Gonzalez "did privates" to L.C. and W.C. and that

Bautista-Gonzalez "was also doing our butt and our flower, but it hurted when he

did our butt. But it didn't hurt when he did our flower."29

       Even if the trial court erred in admitting these comments, the error was

clearly harmless. L.C.'s two brief comments regarding sexual contact with W.C.

were essentially identical to other evidence admitted without objection at trial,

including W.C.'s trial testimony. Under the circumstances, there is no reasonable




    27 See State v. Harris. 48 Wn. App. 279, 284, 738 P.2d 1059 (1987) (RCW
9A.44.120 "does not by its terms apply to a statement by a child describing an act of
sexual contact performed on a different child").
    28 Brief of Appellant at 21.
    29 Report of Proceedings (February 26, 2014) at 18.


                                              •12-
No. 71928-9-1/13




likelihood that the outcome of the trial would have been different had the error not

occurred.30

       We affirm the judgment and sentence.

                                                               4p*. -J-

WE CONCUR:




                                                                                        CO
                                                                                        rn   • •




    30 State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981) (evidentiary error is not
prejudicial "unless, within reasonable probabilities, the outcome of the trial would have
been materially affected had the error not occurred").



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