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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

STATE OF WASHINGTON,                               No. 71520-8-


                      Respondent,

           v.



CHAD CURTIS CHENOWETH,                             PUBLISHED OPINION


                     Appellant.                    FILED: June 22, 2015


       Verellen, A.C.J. — Chad Chenoweth appeals his conviction for first degree

incest committed against his son, who was 19 years old at the time. He contends that

the trial court erred by admitting his wife's testimony in violation of the spousal privilege,

admitting hearsay testimony about the son's disclosures, and instructing the jury that

corroboration of the son's testimony was not required. Because the statutory exception

to the spousal privilege for criminal proceedings involving "any child" of the spouses is

not limited to minor children, the trial court properly admitted the wife's testimony. And

because the son's disclosures were not offered for the truth of the disclosures but to

show context for the investigation, this evidence was properly admitted. Finally, the

court's instruction on noncorroboration was a correct statement of the law and did not

amount to a comment on the evidence. Accordingly, we affirm.
No. 71520-8-1/2



                                           FACTS

       Jainni and Chad Chenoweth married in 1991. Jainni1 already had a daughter at

the time. She and Chenoweth then had a son, C.C, who was born in Washington in

January 1992. After C.C. was born, the family moved to Idaho.

       Jainni described C.C. as disabled and mentally slow. C.C. was placed in a

special education program at school. He also attended counseling and was on

medication for attention deficit hyperactivity disorder for a period of time.

       When C.C. was 12, he was placed in a state school and hospital in Idaho for

individuals with mental disorders. C.C. remained in that placement until age 18.

       When C.C. was about 16 or 17, Jainni moved back to Washington. In 2010, C.C.

moved in with Jainni and Chenoweth in Bow, Washington. C.C. stayed in a downstairs

room and spent most of his time playing video games. He could not cook for himself

and had to be reminded to shower and dress properly. He was unable to hold a job and

received SSI benefits.

       Chenoweth was working at an auto repair shop in Marysville at the time. In

October 2011, Jainni was hospitalized for a few days and Chenoweth cared for C.C. In

April 2012, Chenoweth moved out of the home but remained married to Jainni. In late

summer 2012, C.C. also moved out to live with his sister.

       Soon after he moved out, C.C. disclosed to Jainni that Chenoweth had raped him

while she was hospitalized in October 2011 and he was in Chenoweth's care. C.C. told

his mother that one day while he was playing video games at the house, Chenoweth

came into the room, put C.C. face down on the bed and anally raped him. C.C. was 19


        For ease of reference, we refer to Jainni Chenoweth by her first name.
No. 71520-8-1/3



years old at the time. C.C. did not report the incident to anyone until he disclosed it to

Jainni.


          After the disclosure, Jainni advised C.C. to contact Adult Protective Services.

Following a mental health evaluation, Adult Protective services referred C.C.'s case to

the police and assigned him a social worker. A deputy from the county sheriff's office

took the initial report from C.C, and the social worker interviewed C.C. about the

incident. The social worker determined that C.C. was a vulnerable adult.

          The State ultimately charged Chenoweth with one count of third degree rape by

lack of consent and one count of first degree incest. The State also sought an

exceptional sentence.

          The case proceeded to trial and the jury heard testimony from C.C, his mother,

his sister, the investigating deputy, the social worker, and the mental health assessor.

Chenoweth did not testify. At the close of evidence, the court dismissed the third

degree rape charge for insufficient evidence of lack of consent. The jury found

Chenoweth guilty of first degree incest. The jury also returned special verdicts finding

that Chenoweth knew or should have known C.C. was particularly vulnerable or

incapable of resistance and that Chenoweth used his position of trust to facilitate

commission of the crime. The court sentenced Chenoweth to 102 months, the top of

the standard range.

          Chenoweth appeals.
No. 71520-8-1/4



                                      DISCUSSION

                                    Spousal Privilege

      Chenoweth contends that the trial court's admission of Jainni's testimony violated

the spousal privilege. Chenoweth argues that because C.C. was not a minor, the

exception to the privilege for proceedings involving a crime committed against "any

child" of either spouse did not apply. We disagree.

      Testimonial privileges are creatures ofstatute and should be strictly construed.2
The spousal privilege statute is designed to encourage marital harmony.3 The statute
both limits the competence of a spouse of a party to testify and provides a privilege for

confidential communications between spouses.4 One exception is for testimony in "a

criminal action or proceeding for a crime committed by said spouse or domestic partner

against any child of whom said spouse or domestic partner is the parent or guardian."5


       2 State v. Sanders. 66 Wn. App. 878, 883, 833 P.2d 452 (1992).
       3!4


       5 RCW 5.60.060(1). The statute provides that "[a] spouse or domestic partner
shall not be examined for or against his or her spouse or domestic partner, without the
consent of the spouse or domestic partner; nor can either during marriage or during the
domestic partnership or afterward, be without the consent of the other, examined as to
any communication made by one to the other during the marriage or the domestic
partnership. But this exception shall not apply to a civil action or proceeding by one
against the other, nor to a criminal action or proceeding for a crime committed by one
against the other, nor to a criminal action or proceeding against a spouse or domestic
partner if the marriage or the domestic partnership occurred subsequent to the filing of
formal charges against the defendant, nor to a criminal action or proceeding for a crime
committed by said spouse or domestic partner against any child of whom said spouse
or domestic partner is the parent or guardian, nor to a proceeding under chapter
70.96A, 70.96B, 71.05, or 71.09 RCW: PROVIDED, That the spouse or the domestic
partner of a person sought to be detained under chapter 70.96A, 70.96B, 71.05, or
71.09 RCW may not be compelled to testify and shall be so informed by the court prior
to being called as a witness."
No. 71520-8-1/5



       Here, Jainni testified that C.C. told her about the alleged rape approximately a

year after it occurred. She also confirmed that she was hospitalized during the time the

rape allegedly occurred. Jainni did not testify about what C.C disclosed. She only

testified to the fact that he disclosed "the allegations" and that his demeanor was "[kjind

of down" during the disclosure.6

       Chenoweth moved in limine to exclude Jainni's testimony, contending that "child,"

as used in the exception to the spousal privilege, includes only minor children and did

not apply to C.C, who was over age 18 at the time of the crime. The trial court

disagreed, acknowledging that "there is no case law involving an adult child in this

specific application," and noting that its ruling was "based on an interpretation that the

child is not limited to someone under the age of 18 in this particular language."7

       "Child" is not defined in chapter 5.60 RCW, which provides for the spousal

privilege. And, as the parties acknowledge, there is no case law addressing whether
"child" as used in Washington's spousal privilege statute is limited to minors.

Chenoweth points to RCW 9A.42.010(3), which defines "child" as "a person under

eighteen years of age." But that definition applies "[a]s used in this chapter," i.e.,

chapter 9A.42, "Criminal Mistreatment."8 There is no other definition of "child" in

Title 9A, the Washington criminal code. The definitions for sex offenses in chapter




       6 Report of Proceedings (RP) (Dec. 10, 2013) at 83.
       7RP(Dec. 9, 2013) at 28.
       8 RCW 9A.42.010. These offenses refer to a "child" or "dependent person" under
the care of the defendant. See, e.g.. RCW 9A.42.020, .030, .035 (defining first, second,
and third degree criminal mistreatment).
No. 71520-8-1/6



9A.44 RCW do not define "child." Rather, sex offenses that relate to child victims

specify a particular age of the victim.9 The incest statute under which Chenoweth was

charged, RCW 9A.64.020, does not use the term "child." It defines the offense as one

involving a victim who is related to the perpetrator "as an ancestor, descendant, brother,

or sister."10

       The interpretation of a statute is a question of law reviewed de novo.11 Courts

first examine the language of the statute and determine the plain meaning "from the

ordinary meaning of the language at issue, the context of the statute in which that

provision is found, related provisions, and the statutory scheme as a whole."12 Statutes

must be interpreted to give effect to all language used, rendering no portion

meaningless or superfluous.13

        Here, viewed in context, RCW 5.60.060 evidences an intent that "any child" in

section (1) is not limited to minors because "minor child" is specified elsewhere in the

statute. Section (2)(b) specifically refers to a "minor child": "A parent or guardian of a

minor child arrested on a criminal charge may not be examined as to a communication


       9 See, e.g.. RCW 9A.44.073 (victim of first degree rape of a child must be under
12 years old); RCW 9A.44.076 (victim of second degree rape of child must be at least
12 years old but less than 14 years old); RCW 9A.44.079 (victim of third degree rape of
a child must be at least 14 years old but less than 16 years old); RCW 9A.44.083 (victim
of first degree child molestation must be under 12 years old); RCW 9A.44.086 (victim of
second degree child molestation must be at least 12 years old but under 14 years old);
RCW 9A.44.089 (victim of third degree child molestation must be at least 14 years old
but under 16 years old).
        10 RCW 9A.64.020.
        11 State v. Gonzalez. 168 Wn.2d 256, 263, 226 P.3d 131 (2010).
        12 State v. Engel. 166 Wn.2d 572, 578, 210 P.3d 1007 (2009).
     13 City of Seattle v. State. 136 Wn.2d 693, 698, 965 P.2d 619 (1998) (quoting
Whatcom County v. City of Bellingham. 128 Wn.2d 537, 546, 909 P.2d 1301 (1996)).
No. 71520-8-1/7



between the child and his or her attorney if the communication was made in the

presence of the parent or guardian." Because the legislature saw the need to

specifically use the term "minor child" in section 2(b), itwould be inconsistent to

conclude that the legislature meant the term "child" in section (1) to mean the same

thing. Such a reading would render the term "minor" in section (2)(b) superfluous.14
       Chenoweth contends that the dictionary definition supports his interpretation of

"child" in section (1) to apply only to minors. "When a statutory term is undefined, the

words of a statute are given their ordinary meaning, and the court may look to a

dictionary for such meaning.15 Black's Law Dictionary provides multiple definitions of

"child," some in terms of age—"under the age of majority," "not reached the age of 14,"

"a young person," "baby or fetus"— and others in terms of a family relationship—"son or
daughter."16 Chenoweth cites Black's Law Dictionary online, which also recognizes

these two meanings of "child" in law:

       (1) In the law of the domestic relations, and as to descent and distribution,
       it is used strictly as the correlative of "parent," and means a son or
       daughter considered as in relation with the father or mother. (2) In the law
       of negligence, and in laws for the protection of children, etc., it is used as
       the . . . opposite of "adult," and means the young of the human species,
       (generally under the age of puberty,) without any reference to parentage
       and without distinction of sexJ17]



       14 The Sentencing Reform Act of 1981 also uses the term "minor child" and does
not include a definition of "child." RCW 9.94A.030(31) (defining "minor child" as "a
biological or adopted child ofthe offender who is under age eighteen at the time ofthe
offender's current offense.")
       15 Gonzalez. 168 Wn.2d at 263.
       16 Black's Law Dictionary 290 (10th ed. 2014).
       17 What is Child?, http://thelawdictionary.org/child. The online definition cited by
Chenoweth appears to rely on a Florida case, Miller v. Finegan. 26 Fla. 29, 7 So. 140, 6
L. R. A. 813(1890).
No. 71520-8-1/8



          Chenoweth contends that "child" as used in the exception to the spousal privilege

statute relates to laws for the protection of children, citing case law recognizing that this

exception seeks to protect against child abuse.18 Therefore, he argues, the second

definition of "child" applies, i.e., the opposite of adult, or a minor.

          While the cases cited by Chenoweth recognize that the exception to the privilege

promotes the protection of children from abuse, those cases all involved minor children

and do not specifically address any age limit for a "child" in such contexts.19 Nor do

they limit the exception to children involved in child abuse cases. Rather, the focus in

those cases was the interpretation of the words "parent" and "guardian." The court held

that the exception applied to children who were under the care of the spouse to the

extent that the spouse functioned as a parent or guardian, even if not the legal parent or

guardian.20 The cases Chenoweth cites do not support the proposition that the

exception is limited to minor children because the only goal is to protect minor children

from abuse.

          Here, "the child," though over the age of 18, was still under the care of and was

dependent upon his parents. Such a "child" is equally deserving of protection from

incest.




          18 See State v. Waleczek. 90 Wn.2d 746, 752, 585 P.2d 797 (1978) (citing child
abuse reporting statutes and recognizing that "'the legislature's purpose was to facilitate
the disclosures of abuses of children, so that the offenders might be punished and the
children be protected from further mistreatment'") (quoting State v. Lounsberv. 74
Wn.2d 659, 663, 449 P.2d 1017 (1968)); accord Sanders, 66 Wn. App. at 884.
          19 See Waleczek 90 Wn.2d at 752-53; Sanders. 66 Wn. App. at 884.
          20 Waleczek 90 Wn.2d at 752; see also State v. Wood. 52 Wn. App. 159, 165-66,
758 P.2d 530 (1988); State v. Modest. 88 Wn. App. 239, 248, 944 P.2d 417 (1997).


                                                8
No. 71520-8-1/9



       More importantly, the overriding purpose of the spousal privilege is to promote

marital harmony.21 Applying the statute to any child without regard to age is not

contrary to the goal of marital harmony. If one spouse harms the parties' child,

regardless of the child's age, there is no domestic harmony to protect. "When there is

no domestic harmony to protect, we believe the policy supporting a spousal privilege

does not merely pale; it withers and dies."22

       In People v. McGraw. the California court came to a similar conclusion.23 There,

the court interpreted a similar statute in a prosecution for the murder of the defendant's

stepson, who was an adult. The California spousal privilege statute provided an

exception for criminal proceedings in which one spouse is charged with a crime

committed against "a child of either [spouse]."24 The court concluded that this exception

was not limited to crimes committed against minor children and held that the

defendant's wife was permitted to testify against him in a prosecution for the murder of

her 22-year-old son. As the court explained:

              Statutes must be given a reasonable and common sense
       construction that leads to a wise policy and avoids absurd results.
       Realistically, the word "child" connotes a family relationship without any
       age limitations. A person remains a child of one's parents throughout life,
       not simply until the age of majority is reached.



            Our interpretation accords with the basic purpose of the marital
       communications privilege which is to preserve confidence and marital
       harmony between the spouses. Section 985, subdivision (a) is grounded

       21 Sanders. 66 Wn. App. at 883.
       22 Wood. 52 Wn. App. 159, 165 n.3.
       23141 Cal. App. 3d 618, 190 Cal. Rptr. 461 (1983).
       24 Id. at 620.
No. 71520-8-1/10



      on the self-evident premise that marital harmony would be nonexistent in
      criminal actions where a child of either spouse is the victim of a crime
      committed by one of the spouses. A parent is no less outraged, and
      marital harmony is no less obliterated because the child who was
       murdered was past his 18th birthday.1251

Similarly, here, "any child" as used in RCW 5.60.060(1) means the child of either

spouse, regardless of age. The trial court correctly ruled that the spousal privilege did

not preclude Jainni's testimony.

                                   Evidence of Disclosures


       Chenoweth next challenges the admission of testimony that C.C. disclosed the

rape to Jainni, his sister, and law enforcement a year after it occurred. The State

argued to the trial court that the disclosures were admissible under the fact of complaint

exception to the hearsay rule. Chenoweth argued that because they were not timely

made, the disclosures were inadmissible under that hearsay exception. The trial court

acknowledged the untimeliness of the disclosure, but ruled that evidence of the

disclosures was admissible to explain how the allegations came to the attention of law

enforcement:

            Well, without going into any actual statement: Did you tell
       someone, yes or no? Is that hearsay? I'm trying to obviously balance it,
       but I do believe the State is entitled—and let me back up a bit. A year or
       approximately a year is certainly what I would not consider timely in that
       sense. But I don't believe that prevents the State from presenting or the
       juryfrom hearing howthese matters came to be where they are. So
       without allowing me any detail of the incidents alleged or the identification
       of the perpetrator, the fact that he told someone and someone then
       encouraged him to do something else I believe is admissible. And it will
       stay absolutely that generic[,] simply to explain to the jury how we get
       here, nothing more, or how the case came to light. I shouldn't say how we
       get here, but how it came to law enforcement's attention.



       25 JU at 622 (citations omitted).


                                             10
No. 71520-8-1/11



              So I will, this is a motion in limine, but I'll deny that motion and allow
       the State to present testimony as to a particular time frame that a
       complaint was made by the alleged victim and what, if anything, without
       specific words they encourage him to do or not doJ26'

       At trial, Jainni, C.C.'s sister, the investigating officer, and a social worker all

testified that C.C. told them about the allegations. A mental health assessor also

testified that "[b]asically [C.C] said that his father had sexually abused him one time,

and it occurred since his birthday that year, since January 2012."27 Each of these

witnesses further testified about C.C.'s mental status, generally agreeing that he had

some sort of developmental delay, or at least appeared to have the mental capacity of a

child rather than an adult.

       Chenoweth is correct that the disclosures were inadmissible under the fact of

complaint exception to the hearsay rule because they were not timely made. The fact of

complaint or hue and cry doctrine allows the prosecution in sex offense cases to

present evidence that the victim complained to someone after the assault.28 But "[t]he

rule admits only such evidence as will establish that the complaint is timely made."29

The State attempts to interpret the case law as permitting any testimony establishing

when the complaint was made, not only that a timely complaint was made.30 But


       26RP(Dec. 9, 2013) at 7-8.
       27 RP (Dec. 10, 2013) at 153-54.
       28 State v. Ferguson, 100Wn.2d 131, 135, 667 P.2d 68 (1983).
       29 |d at 135-36.
      30 The State cites language in State v. Goebel. 40 Wn.2d 18, 25, 240 P.2d 251
(1952) ("[t]he general rule is that, in cases of this kind, a witness may testify that the
prosecutrix made complaint after the assault") and State v. Murlev. 35 Wn.2d 233, 237,
212 P.2d 801 (1950) ("[W]e permit the state to show in its case-in-chief when the
woman first made a complaint consistent with the charge."). But in both cases, the
evidence was offered to show that the complaints were in fact timely. In Goebel. "[t]his

                                               11
No. 71520-8-1/12



neither case cited by the State eliminated the timeliness requirement, as it was later

made explicit in Ferguson.31

       Here, as the trial court found, the disclosures made nearly a year later cannot

reasonably be considered "timely." Therefore, the disclosures were not admissible

under the fact of complaint exception. But the trial court admitted the evidence to show

only how the allegations came to the attention of law enforcement. We agree.

       In State v. Iverson, the trial court admitted a statement the victim made to a

police officer when she answered the door and identified herself to the officer.32 The

victim did not appear at trial and the officer testified that the woman who answered the

door identified herself as the victim. The trial court ruled that the statement was

admitted to show only that the person who answered the door identified herself with the

name of the victim, not to show that she was in fact the victim, and was therefore not

hearsay.33 On appeal, the court agreed that the statement was not hearsay because it

was not offered to prove the truth of the matter asserted.34 The court further concluded

that the statement was relevant to explain why the officers conducted further

investigation: "When a statement is not offered for the truth of the matter asserted, but



testimony was admitted to prove that the complaining witness properly and promptly
made hue and cry." 40 Wn.2d at 25. In Murley, "[t]he child and her parents denied that
they had delayed in complaining and asserted that they notified the police the same
day." 35 Wn.2d at 235.
       31 100Wn.2dat 135-36: see also State v. Alexander. 64 Wn. App. 147, 151, 822
P.2d 1250 (1992) ("this narrow exception allows only evidence establishing that a
complaint was timely made") (citing Ferguson).
       32 126 Wn. App. 329, 333, 108 P.3d 799 (2005).
       33 JU
       34 Id. at 336.



                                             12
No. 71520-8-1/13



is offered to show why an officer conducted an investigation, it is not hearsay and is

admissible."35

       Here, the witnesses simply testified that C.C. reported the "allegations" to them

without reference to any specifics of the allegations.36 This testimony was not offered

for the truth of the allegations, but to show what the witnesses did next and to provide a

basis for their testimony. At his mother's suggestion, C.C. contacted Adult Protective

Services, he was referred for a mental health evaluation, and he told the mental health

assessor that he had been sexually abused by his father. The case was then referred

to the police and assigned to a social worker, who determined that he was a vulnerable

adult. Thus, as in Iverson. C.C.'s disclosures were not hearsay because they were not

offered for the truth of the disclosures, but to give context for the investigation. They

also explained why the investigation was conducted, which was relevant to the

determination that C.C. was "particularly vulnerable," a fact at issue in the special

verdict finding submitted to the jury.37




       35 id, at 337; see also Williams v. Dep't of Licensing. 85 Wn. App. 271, 280, 932
P.2d 665 (1997) (statement a military gate guard made to a police officer that the
defendant smelled like alcohol gave a basis for the officer to detain the defendant for
further investigation, was not offered for truth of the matter asserted, and was therefore
admissible).
       36 RP (Dec. 10, 2013) at 83 (Jainni testified that she "learn[ed] about the
allegations of the present case" from her son); RP (Dec. 11, 2013) at 32 (Lind testified
that there was a time she became "aware of the present allegations in the case");
RP (Dec. 10, 2013) at 122 (social worker Kim Tyler testified that C.C. "explain[ed to her]
the nature of the allegation"); RP (Dec. 10, 2013) at 136 (investigating deputy Brad
Holmes testified that he had "a conversation with [C.C] that day about the allegation").
       37 Clerk's Papers (CP) at 95.


                                             13
No. 71520-8-1/14



       Chenoweth contends this testimony was irrelevant, citing State v. Edwards.38

There, the trial court permitted a detective to testify that a confidential informant told him

that a person with the same first name as the defendant was dealing cocaine, over a

hearsay objection. The court reversed on appeal, concluding that the statement was

inadmissible hearsay as its only relevance was the truth of the statement.39 Here, there

was no testimony about the content of the disclosures, so there was no "truth" to be

asserted other than the fact that C.C. disclosed the allegations.40 The trial court did not

abuse its discretion.

                                Noncorroboration Instruction

       Finally, Chenoweth challenges the following jury instruction as an impermissible

comment on the evidence:

              In order to convict a person of incest[,] it shall not be necessary that
       the testimony of the alleged victim be corroborated. The jury is to decide
       all questions of witness credibility.1411
Chenoweth acknowledges that RCW 9A.44.020(1) provides that testimony ofan alleged
sex offense victim need not be corroborated, but he argues that the crime for which he

was convicted, incest, does not fall within the statute. He contends that the court's

instruction was an incorrect statement of the law and an impermissible comment on the

evidence. We disagree.


       38131 Wn. App. 611, 128 P.3d 631 (2006).
       39 id, at 614-15.
       40 While arguably C.C.'s sister's testimony about the disclosure did not provide
context for the investigation and therefore may be of questionable relevance, any error
in its admission was harmless. Her testimony that she was "aware of the present
allegations in the case" was simply cumulative ofthe other testimony and did not
provide any substance of the disclosure. RP (Dec. 11, 2013) at 32.
       41 CP at 89.


                                              14
No. 71520-8-1/15



       Whether a jury instruction is legally correct is reviewed de novo.42 "A jury

instruction is not an impermissible comment on the evidence when sufficient evidence

supports it and the instruction is an accurate statement of the law."43

       RCW 9A.44.020(1) provides: "In order to convict a person of any crime defined in

this chapter[,] it shall not be necessary that the testimony of the alleged victim be

corroborated." Courts have upheld sex offense victim noncorroboration instructions as

correct statements of the law under the statute.44

       Chenoweth contends that the instruction given here was not a correct statement

of the law because the crime of incest is defined in chapter 9A.64 RCW rather than

chapter 9A.44 RCW. But the noncorroboration statute simply states that corroboration

is not required in sex offenses defined in chapter 9A.44 RCW; it does not state that

corroboration is required in all other cases. The lack of a reference to incest does not

reveal a legislative intent to require corroborating evidence in an incest case. To the

contrary, our case law expressly recognizes that, after the legislature abolished a former

statute requiring corroboration in a variety of sex offenses, corroboration is not required

in incest cases. As the court held in State v. Davis:

       "[l]t is not necessary that there shall be actual corroboration of the
       prosecutrix in such [incest] cases, since there is no statute requiring it... .
       [T]he actual rule there declared by the court is such that the
       uncorroborated testimony of the prosecutrix is sufficient if the jury finds it
       to be true. Of the truth the jurors shall be the judges."'451

       42 State v. Becklin. 163 Wn.2d 519, 525, 182 P.3d 944 (2008).
       43 State v. Johnson. 152 Wn. App. 924, 935, 219 P.3d 958 (2009).
       44 Id. at 936-37: State v. Zimmerman. 130 Wn. App. 170, 182-83, 121 P.3d 1216
(2005).
      45 20 Wn.2d 443, 447, 147 P.2d 940 (1944) (quoting State v. Conlin. 45 Wash.
478, 479, 88 P. 932 (1907): see also State v. Coffev. 8 Wn.2d 504, 505-06, 112 P.2d
989 (1941) (recognizing in an incest case that "[i]n the absence of a statute, none has

                                              15
No. 71520-8-1/16



This holding has not been overruled, and no statute requires corroboration in incest

cases.46 The trial court's instruction was a correct statement of the law.

      We do recognize that the Washington Supreme Court Committee on Jury

Instructions recommends against giving noncorroboration instructions:

              The matter of corroboration is really a matter of sufficiency of the
       evidence. An instruction on this subject would be a negative instruction.
       The proving or disproving of such a charge is a factual problem, not a
       legal problem. Whether a jury can or should accept the uncorroborated
       testimony of the prosecuting witness or the uncorroborated testimony of
       the defendant is best left to argument of counsel.1471

Several courts "share the Committee's misgivings."48 But there is a historical basis for

instructing the jury regarding corroboration for sex crimes, including incest. As case law

recognizes, corroboration of the complaining witness in a rape case was previously

required by statute.49 After that statute was abolished, courts held that corroboration is

not required in incest cases or other sex offenses, recognizing that "[s]uch offenses are

rarely[,] if ever[,] committed under circumstances permitting knowledge and observation




been called to our attention, requiring corroboration, the conviction may be had on
uncorroborated testimony of the prosecutrix").
        46 See State v. Galbreath. 69 Wn.2d 664, 669, 419 P.2d 800 (1966) (reiterating
that "the rule established in this state is that, in the absence of a statute to the contrary,
a person accused of a sex offense involving children may be convicted upon the
uncorroborated testimony of the complaining witness, if the jury finds such testimony to
be true").
       4711 Washington Pattern Jury Instructions: Criminal § 45.02, cmt. at 883
(3rd ed. 2008).
       48 Zimmerman. 130 Wn. App. at 182-83.
       49 See State v. Morden. 87 Wash. 465, 467, 151 P. 832 (1915) (noting that Rem.
& Bal. Code § 2443 was repealed in 1913).


                                              16
No. 71520-8-1/17



by persons other than the accused and the complaining witness, and not all such

offenses are otherwise capable of corroboration."50

      Because of such concerns in sex crimes, including incest and rape, it is

permissible to instruct the jury that there is no corroboration requirement. There

appears to be no comparable rationale to give such an instruction for other crimes.

While we are concerned with the use of such an instruction even in sex crimes, we do

not conclude that its use in this case was a comment on the evidence. The only witness

who described the allegations of incest was the 19-year-old developmentally delayed

child victim. There were no other witnesses to the incident.

      We affirm the judgment and sentence.




WE CONCUR:




       <&^J .




       50 Galbreath. 69 Wn.2d at 670.


                                            17
                             State v. Chenoweth. 71520-8-1

       Becker, J. (concurring) — If the use of the noncorroboration instruction were a

matter of first impression, I would hold it is a comment on the evidence and reverse the

conviction. I agree with the committee on pattern jury instructions that the matter of

corroboration is really a matter of sufficiency of the evidence. Many correct statements

of the law are not appropriate to give as instructions. But we are bound by State v.

Clayton. 32 Wn.2d 571, 202 P.2d 922 (1949), to hold that the giving of such an

instruction is not reversible error. State v. Zimmerman. 130 Wn. App. 170, 182-83, 121

P.3d 1216 (2005). Accordingly, I must concur.



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