      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 67424-2-1

                     Respondent,                      DIVISION ONE


             v.



MANUEL VILLAREAL-CRUZ                                 UNPUBLISHED


                     Appellant.                       FILED: March 11. 2013




       Cox, J. — Manuel Villareal-Cruz appeals his conviction of rape of a child

in the first degree and three counts of violation of a no contact order claiming that

the victim's statements to a police detective were inadmissible hearsay. We hold

that the court did not abuse its discretion by admitting these statements as

excited utterances. Additionally, the arguments Villareal-Cruz makes in his

Statements of Additional Ground for Review are not persuasive. We affirm.

       In 2010, Villareal-Cruz dropped his daughter, sixth-grader S.M., off 20

minutes late for school. School officials observed that S.M. was emotional aftg         5>§s

looked scared when she arrived. After several hours, school officials permitted ^3/

S.M. to return home because she reported that she did not feel well.           §^ -c£t
                                                                               UD
                                                                                    OM
      When S.M. returned home, she was visibly upset. Her uncle grew           en   r^o

concerned about what had happened to her and called 911. Officer Allen Bass

arrived first, and S.M.'s mother told him that Villareal-Cruz had raped S.M. Later,

Detective Gina Crosswhite interviewed S.M. When Detective Crosswhite asked
No. 67424-2-1/2



S.M. whether she knew why she was interviewing her, S.M. began crying. S.M.

then told Detective Crosswhite that Villareal-Cruz had raped her.

       After her interview with S.M., Detective Crosswhite took the child and her

mother and siblings to the emergency room, where a nurse examined S.M. S.M.

told the examining nurse the same account of the rape she had related to

Detective Crosswhite. The nurse found that, consistent with S.M.'s account of

the rape, she had what appeared to be semen on her stomach. The nurse also

found S.M. had injuries to her vaginal tissue.

       Another Bellingham detective interviewed Villareal-Cruz on the day of the

rape. During this interview, which was recorded, Villareal-Cruz explained that, on

the morning of the rape, he had asked S.M. if she "wanted to do things." He then

drove S.M. to a dead end street, helped her take off her pants, and had

intercourse with her. At trial, Villareal-Cruz changed his story and testified that

he did not have intercourse with S.M. The videotape of Villareal-Cruz's

admission was played for the jury.

       After crime lab testing of various pieces of evidence, DNA matching

Villareal-Cruz's was found on S.M.'s stomach. DNA matching S.M.'s was found

on Villareal-Cruz's boxers. Finally, DNA matching both Villareal-Cruz's and

S.M.'s were present on a wet spot found in the car in which Villareal-Cruz drove

S.M. to school on the day of the rape. The fabric also tested positive for semen.

       The State charged Villareal-Cruz with one count of rape of a child in the

first degree, two counts of intimidating a witness, and three counts of violation of

a no-contact order.
No. 67424-2-1/3



       At trial, S.M. recanted her account of being raped and testified that she

had made up the story because she and her mother wanted Villareal-Cruz to

stop drinking. S.M.'s mother also recanted, testifying that she had helped S.M.

make up her allegations. The examining nurse, the lab technician who examined

the evidence in the case, Detective Crosswhite, and the detective who

interviewed Villareal-Cruz, all testified at trial and provided evidence of Villareal-

Cruz's rape of S.M.

       Prior to sending the case to the jury, the trial court dismissed the

intimidation of a witness charge. The jury convicted Villareal-Cruz of all other

counts charged.

       Villareal-Cruz appeals.

                               EXCITED UTTERANCE


       Villareal-Cruz argues that the trial court abused its discretion when it

admitted S.M.'s statements to Detective Crosswhite under the excited utterance

exception to the hearsay rule. We disagree.

       Hearsay is "a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted."1 It is not admissible unless an exception applies.2 "A
statement that qualifies for admission under 'a firmly rooted hearsay exception is

so trustworthy that adversarial testing can be expected to add little to its




       1 ER 801(c).
       2 ER 802.
No. 67424-2-1/4



reliability.'"3 An excited utterance is such an exception. Under ER 803(a)(2) an
excited utterance is "[a] statement relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or

condition."4

       Essential to determining whether a statement qualifies as an excited

utterance "is 'whether the statement was made while the declarant was still under

the influence of the event to the extent that [the] statement could not be the result

offabrication, intervening actions, or the exercise of choice or judgment.'"5 "[T]he
startling event or condition that must occur for purposes of the excited utterance

exception need not be the 'principal act' underlying the case."6 And, while "[t]he
passage of time between the startling event and the declarant's statement is a

factor to be considered in determining whether the statement is an excited

utterance . . . [it] is not dispositive."7 Determining whether a statement qualifies
as an excited utterance is a fact-specific inquiry.8 We review a trial court's




       3State v. Chaoin. 118 Wn.2d 681, 685-86, 826 P.2d 194 (1992) (quoting
White v. Illinois. 502 U.S. 346, 357, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992)).

       4 ER 803(a)(2).
       5State v. Strauss. 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (alteration in
original) (quoting Johnston v. Ohls. 76 Wn.2d 398, 406, 457 P.2d 194 (1969)).

       6 Chapin. 118Wn.2d at 686 (quoting 6 James Henry Wigmore, Evidence
in Trials at Common Law§ 1753, at 225-26 (James H. Chadbourn rev. ed.
1974)).

       7Strauss, 119Wn.2d at 416-17 (citations omitted).

       8 State v.Brown. 127 Wn.2d 749, 757-59, 903 P.2d 459 (1995).
No. 67424-2-1/5



determination that a statement qualifies as an excited utterance for an abuse of

discretion.9

       In State v. Thomas, this court held that a statement made by a rape victim

constituted an excited utterance.10 There, S.C. testified that Thomas had

intercourse with her early in the morning, and she then cried herself to sleep.11
S.C. left Thomas's house at 11 a.m. and telephoned her mother at 11:30 a.m.12

S.C.'s mother testified that S.C. was very upset and told her that she had just

been raped.13 This court held that though the record reflected a six to seven-
hour time span, the record supported the trial court's determination that "S.C.

was still upset when she called her mother."14

       Similarly, in State v. Flett. Division Three held that a rape victim's

statement made to her daughter seven hours after the alleged incident was

admissible as an excited utterance.15 There, after Flett raped her, the victim
went to work at a grocery store where she encountered the rapist's wife.16 The
court held that "events which transpired in the 7-hour period—the rape . . . and



       9 Strauss, 119 Wn.2d at 417.

       10 46 Wn. App. 280, 284-85, 730 P.2d 117 (1986).
       11 Id. at 282.

       12 Id.

       13 Jd, at 282-83.
       14 id, at 284-85.

       15 40 Wn. App. 277, 287, 699 P.2d 774 (1985).
       16 Id.
No. 67424-2-1/6



the stress of contact with Mrs. Flett in the store just prior to the statement—were

all part of a 'continuous process' satisfying the elements of the excited utterance

exception."17
       Here, S.M.'s behavior supported the trial court's conclusion that her

statement to Detective Crosswhite constituted an excited utterance. After

explaining the interview process to S.M., Detective Crosswhite asked S.M. "[d]o

you know why I'm here today?" Detective Crosswhite testified that S.M. then

"indicated she did, and without me even asking an open-ended question like tell

me what happened, she started crying, and she just told me everything about

that morning." S.M. continued crying throughout the interview, which lasted

between 30 and 40 minutes.


       Though Villareal-Cruz raped S.M. five hours prior to her statement to the

detective, as this court previously noted, passage of time does not automatically

indicate that a statement is not an excited utterance.18 And, as in Flett and

Thomas. S.M.'s behavior demonstrated that she was still under the effect of this

traumatic event.


       Further, prior to S.M.'s statement to the detective, she had arrived at

school upset, left school at least in part due to her emotional state, and was

visibly distraught when she returned home. Prior to her interview with the

detective, S.M. had been in the same room with Villareal-Cruz for a sustained

period of time. As in Flett. these events were likely part of a "'continuous



       17kL

       18 Strauss. 119 Wn.2d at 416-17.
No. 67424-2-1/7



process'" of stress.19 Thus, the trial court did not abuse its discretion when it
determined that S.M.'s statements to the detective were admissible as excited

utterances.


       Villareal-Cruz argues that the passage of six hours between the rape and

S.M.'s statements resulted in time for S.M. "to exercise choice and judgment

when she answered Crosswhite's questions." But, as noted above, passage of

time between the startling event and the statement does not automatically

indicate that it is not an excited utterance.20 Washington cases have previously

held that a statement made after six or seven hours could constitute an excited

utterance under the proper circumstances. And S.M.'s behavior here supported

the trial court's admission of the evidence.

       Villareal-Cruz also contends that S.M.'s quiet and relatively calm

demeanor before her interview with Detective Crosswhite gave "'every indication

that, if motivated to do so, she could have fabricated some of the details.'"21 But,
just as passage of time is not dispositive, an individual can be "under the stress

of excitement caused by" a startling condition even if she has been calm for a

period oftime prior to her excited utterance.22 Thus, in Flett. the victim's




       19 Flett. 40 Wn. App. at 287.

       20 Strauss. 119 Wn.2d at 416-17.

       21 Brief of Appellant at 15 (quoting Dixon. 37 Wn. App. at 874).

       22 ER 803(a)(3).
No. 67424-2-1/8



statement to her daughter after she had worked at a grocery store for several

hours, still constituted an excited utterance.23

       Villareal-Cruz cites State v. Chapin24 and State v. Dixon25 to support his
argument regarding the passage of time and S.M.'s demeanor. But these cases

are distinguishable. In Chapin. a patient with Alzheimer's disease told his wife, in

response to her questions, that a nurse had raped him a day or so earlier.26 The
supreme court pointed out that the patient had been "calm and had engaged in

his usual activities" prior to his statement and that it had been made only after his

wife "calmed him down and in response to her question as to why he was angry

with Chapin."27 It then held that the patient's statement did not constitute an

excited utterance.28 Here, while S.M. was quiet and unemotional when Detective

Crosswhite arrived at the house, S.M. began crying and continued to cry

throughout her statement to the detective. Thus, the victim's emotional state

when she made her statements is distinct from that in Chapin and supports the

trial court's admission of these statements.

       S.M.'s statements to Detective Crosswhite were also unlike the victim's

statement in Dixon. There, this court held that the victim's four-page written



       23 Rett 40 Wn. App. at 286-87.

       24 118 Wn.2d 681, 826 P.2d 194 (1992).

       25 37 Wn. App. 867, 684 P.2d 725 (1984).

       26 Chapin. 118 Wn.2d at 683-84.

       27 Jd, at 689, 690.
       28 Id at 691.


                                           8
No. 67424-2-1/9



statement given to a police officer was too detailed to constitute an excited

utterance.29 The court noted that the victim added several lines of additional

details to the statement "with the explanation that [she] remembered them after

giving 3 1/2 pages of her statement."30 It then concluded that the trial court "went
too far in admitting this detailed 4-page statement as an excited utterance."31
Here, however, Detective Crosswhite interviewed S.M. for only 30 to 40 minutes.

There is no indication that her statements to the detective constituted a complete,

detailed account of her rape, nor did the trial court admit an entire written account

for the jury to review. Thus, it was properly admitted.

                   STATEMENT OF ADDITIONAL GROUNDS

       In his statement of additional grounds, Villareal-Cruz essentially argues

that there was insufficient evidence to convict him of first degree rape of a child.

Villareal-Cruz also appears to argue that S.M. and her mother falsely accused

him of rape. There is no substantive argument to support either claim.

Accordingly, we need not review them.32




       29 Dixon. 37 Wn. App. at 873-74.

       30 Id at 873.

       31 Jd at 874.
       32 State v.Johnson. 119Wn.2d 167, 171.829P.2d 1082(1992).

                                          9
No. 67424-2-1/10



      We affirm the judgment and sentence.

                                                ^bft.J.
WE CONCUR:




                                             \je J<e e




                                     10
