                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            August 28, 2018




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

    STATE OF WASHINGTON                                                No. 49719-1-II

                                  Respondent,

           v.

    HUGO RUIZ                                                   UNPUBLISHED OPINION

                                  Appellant.

          LEE, J. — Hugo Ruiz appeals his jury trial convictions for three counts of first degree child

molestation involving separate incidents with his former step-daughters, R.C-Z and P.C-Z.1 Ruiz

argues that his trial attorney provided ineffective assistance of counsel by failing to object to the

State’s pretrial motion to join the two cases involving R.C-Z and P.C-Z and then failing to move

to sever the charges during trial. Ruiz also argues that the trial court erred in allowing the expert

testimony of child forensic interviewer Keri Arnold in the areas of delayed disclosure, child

memory, and recantation. We affirm.

                                                FACTS

A.        THE ABUSE

          Hugo Ruiz and Bricia Sanchez married in 2004. At the time, Sanchez had two daughters

from a prior relationship, R.C-Z and P.C-Z



1
    Pursuant to our General Order 2011-1, we use initials for child witnesses in sex crimes.
No. 49719-1-II


       1.      Incidents Involving R.C-Z

       In 2011, then 10 year old R.C-Z told her school friends that Ruiz had touched her “private

area” on several occasions. 5 Verbatim Report of Proceedings (VRP) (Oct. 5, 2016) at 426.

Specifically, when she was in third grade, Ruiz regularly asked R.C-Z to help him get items from

their garage. Outside of the garage, Ruiz lifted R.C-Z into the air, positioned his body to touch the

back of her body, and moved his “private part” in a thrusting motion. 5 VRP (Oct. 5, 2016) at 431.

R.C-Z described Ruiz’s movements as “dry humping” her. 5 VRP (Oct. 5, 2016) at 430. R.C-Z

estimated that Ruiz did this more than five times.

       On another occasion, Ruiz entered R.C-Z’s bedroom as she slept, spread her legs apart,

and positioned himself in between her legs. With Ruiz’s “private area” touching her “private area”

through clothing, Ruiz moved his body in a thrusting motion. 5 VRP (Oct. 5, 2016) at 435.

       R.C-Z’s friends reported her disclosure to their school counselor, who then reported the

allegations to Child Protective Services. Ruiz was subsequently charged with three counts of first

degree child molestation. R.C-Z later denied that Ruiz had ever touched her, and the State

dismissed the charges.

       2.      Incidents Involving P.C-Z

       Ruiz and Sanchez separated in December 2014. In February 2015, 13 year old P.C-Z told

her mother’s new boyfriend, Jose Sanchez Figueroa, that Ruiz had molested her when she was 7

or 8 years old. According to P.C-Z, Ruiz often touched her when she was alone in the car with

him. Ruiz would place P.C-Z on his lap and move his body around as she sat on him. P.C-Z also

recalled lying in bed one morning when Ruiz came into her bedroom, climbed on top of her, and




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No. 49719-1-II


began moving his body up and down toward her head and feet. P.C-Z heard Ruiz breathing heavily

in her ear as he rubbed his body on her body.

       Figueroa contacted law enforcement. The State charged Ruiz with four counts of first

degree child molestation involving P.C-Z. The State also refiled the 2011 charges against Ruiz

involving R.C-Z.

B.     MOTION TO JOIN THE CASES

       The State moved to join the cases involving P.C-Z and R.C-Z pursuant to CrR 4.3.2 Ruiz

agreed to join the cases. At the hearing on the State’s motion, Ruiz’s counsel stated, “Yes, Mr.

Ruiz has agreed to join the cases. It makes sense, and the evidence probably would have come in

under 404(b) regardless.” 1 VRP (Feb. 12, 2016) at 3.

       The trial court joined the cases involving P.C-Z and R.C-Z The State subsequently filed

an amended complaint, charging Ruiz with six counts of first degree child molestation—three

involving P.C-Z and three involving R.C-Z

C.     RELEVANT PORTIONS OF TRIAL

       1.      Lay Witness Testimony

       R.C-Z and P.C-Z testified to the facts set out above. R.C-Z also explained that she took

back her allegations against Ruiz in 2011 because Ruiz had told R.C-Z. that it was up to her to

keep their family together. On cross-examination, Ruiz asked R.C-Z whether she was “pretty close




2
 CrR 4.3(a) allows two or more offenses to be joined in one charging document when the offenses
“(1) [a]re of the same or similar character, even if not part of a single scheme or plan; or (2) [a]re
based on the same conduct or on a series of acts connected together or constituting parts of a single
scheme or plan.”


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No. 49719-1-II


with [her] sister, [P.C.-Z].” 5 VRP (Oct. 5, 2016) at 452. He also questioned R.C-Z on whether

she loved P.C-Z and supported P.C-Z.

       During P.C.-Z’s testimony, Ruiz cross-examined her on how her uncle had previously

sexually assaulted her. Ruiz further asked P.C-Z whether she had spoken with R.C-Z about R.C-

Z’s experience with Ruiz before reporting that Ruiz had molested her. Ruiz then questioned P.C-

Z about her dislike of Ruiz as a stepfather and about whether she liked her mother’s new boyfriend

more than she liked Ruiz. P.C-Z testified that she “would get really mad” when Ruiz and her

mother reconciled and that she and her sister “didn’t want anything to do with them being back

together.” 5 VRP (Oct. 5, 2016) at 522.

       Ruiz also testified and denied touching either girl for his own sexual gratification. Ruiz

claimed that he had never been alone with R.C-Z during the time he was married to Sanchez.

       2.      Expert Witness Testimony

       Pretrial, Ruiz objected to Keri Arnold, a child interviewer in the Pierce County Prosecuting

Attorney’s Office, being called as an expert witness, arguing that Arnold did not qualify as an

expert witness. The trial court ruled that Arnold qualified as an expert through her training and

experience to discuss in general the concept of script and episodic memory, how children verbalize

or communicate in interviews, and the reasons for and commonality of delayed disclosure. The

court also ruled that Ruiz could object at trial if he felt that Arnold was testifying outside of her

expertise.




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No. 49719-1-II


       At trial, Arnold testified that she interviewed R.C-Z. in 2011, after the disclosure, and again

in 2015. In her time at the prosecutor’s office, Arnold had conducted more than 2,200 forensic

interviews, most of which involved allegations of sexual abuse. To become a child forensic

interviewer, Arnold attended the Washington State child interviewer training, where she observed

other forensic interviewers. She also conducted mock interviews, reviewed research and training

materials related to child abuse and child development as it relates to memory, suggestibility, and

recantation. She also attended the weeklong training of the American Professional Society for the

Abuse of Children on interviewing protocol and various conferences and trainings on sex

offenders, child fatality investigations, and child sexual abuse and exploitation. The practices she

employs when interviewing children are generally accepted within the child forensic interview

community.

       Arnold also testified about the concepts of delayed disclosure, script memory, and

recantation. She explained that delayed disclosure refers to a lapse in time from when the alleged

abuse occurred and when the child disclosed the abuse. According to Arnold, approximately 95

percent of cases she works on involve some sort of delay between the time when the abuse

allegedly began and when the child reported the abuse.

       Arnold explained that a child’s memory develops over time and their ability to recall

specific events improves over time. For example, when a child is young, he or she may only be

able to provide simple elements and details of an event, but their ability to recall in more detail

develops as they get older.




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No. 49719-1-II


       Arnold detailed the difference between script and episodic memory, explaining that script

memory refers to something that occurs with a great deal of frequency. Signs a child is relaying

script memory include use of language “I usually,” “most of the time,” or “almost always” when

describing an event. Comparatively, episodic memory refers to a child’s ability to recall specific

details of one incident.

       Finally, Arnold explained that recantation occurs when a child makes a disclosure and then

later says that his or her disclosure was not true. According to Arnold, recantation is commonly

discussed in trainings related to child sexual abuse because one factor that might play a role in

recantation is when the offender is someone close to the child, such as a family member. A child

may recant because he or she fears upsetting the non-offending parent or the allegation has

disrupted the family. Arnold further explained that recantation is so common that the trainings

and conferences she attends frequently discuss factors to look for and questions to ask when a child

recants.

       3.      Motion to Dismiss

       Prior to resting its case-in-chief, the State amended the complaint, dismissing one of the

counts involving R.C-Z and two of the counts involving P.C-Z The State explained that based on

the testimony, there were three specific acts of molestation that could proceed forward—the

incident involving Ruiz lifting R.C-Z outside the garage; the incident where Ruiz climbed on top

of R.C-Z in her bed; and the incident where Ruiz climbed on top of P.C-Z in her bed.




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No. 49719-1-II


       4.      Closing Argument

       In closing, Ruiz argued that the details of P.C-Z and R.C-Z’s disclosures had changed over

the course of the case. After explaining how the girls’ disclosures had changed, defense counsel

argued, “I did find it interesting that they both say that [Ruiz] came in under cover of night and

perpetrated these crimes . . . . And it is completely askew from what it was that they initially

reported. It’s brand new, and . . . the stories are very similar: Dry humping, cover of night.” 8

VRP (Oct. 12, 2016) at 891, 892. Later, defense counsel argued that P.C-Z and R.C-Z’s stories

had continued to evolve “[a]nd . . . [P.C-Z] and [R.C-Z] have discussed, okay, what’s been going

on[.] They’ve talked about this.” 8 VRP (Oct. 12, 2016) at 898.

       Counsel also suggested that the motivation for P.C-Z and R.C-Z to fabricate the allegations

was their preference for their mother’s new boyfriend and their desire to prevent their mother from

reconciling with Ruiz. Defense counsel drew the jury’s attention to the similarities between the

testimony of P.C-Z and R.C-Z and told the jury that they had discussed the allegations with one

another.

       The trial court instructed the jury:

              A separate crime is charged in each count. You must decide each count
       separately. Your verdict on one count should not control your verdict on any other
       count.

       Clerk’s Papers (CP) at 122. The jury found Ruiz guilty on all three counts. Ruiz appeals.

                                              ANALYSIS

A.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Ruiz argues that his trial counsel rendered ineffective assistance by failing to object to the

joining of his offenses involving P.C-Z with his offenses involving R.C-Z. He also argues that his



                                                 7
No. 49719-1-II


counsel rendered ineffective assistance by failing to move for a severance in light of how the

testimony of P.C-Z and R.C-Z unfolded. We disagree.

       1.      Legal Principles

       The right to effective assistance of counsel is guaranteed by the Sixth Amendment to the

United States Constitution and article I, section 22 of the Washington Constitution. State v. Grier,

171 Wn.2d 17, 32, 246 P.3d 1260 (2011), cert. denied, 135 S. Ct. 153 (2014). To prevail in an

ineffective assistance of counsel claim, the defendant must show that (1) defense counsel’s

performance was deficient, and (2) the deficient performance resulted in prejudice. State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).

       Counsel’s performance is deficient if it falls below an objective standard of reasonableness.

Grier, 171 Wn.2d at 33. Counsel’s performance is not deficient if it can be characterized as

legitimate trial strategy or tactics. Id. To prevail in an ineffective assistance of counsel claim, the

defendant must overcome “a strong presumption that counsel’s performance was reasonable.”

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

       In order to establish prejudice, the defendant must show that, but for counsel’s deficient

performance, the outcome of the proceeding would have been different. State v. Estes, 188 Wn.2d

450, 458, 395 P.3d 1045 (2017). Thus, the defendant must show that the objection would likely

have been successful. State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007).

       We review a claim of ineffective assistance of counsel de novo. Estes 188 Wn.2d at 457.

And “[c]omptency of counsel is determined based upon the entire record below.” State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).




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No. 49719-1-II


       2.      Failure to Object to Join the Cases

               a.        Counsel did not render deficient performance

        Ruiz argues that there was “no fathomable reason” for his trial counsel to strategically

agree to join cases involving two victims alleging multiple counts of sexual conduct by him. Br.

of Appellant at 35. We disagree.

       Ruiz’s trial strategy largely involved attacking P.C-Z and R.C-Z's credibility. In closing,

defense counsel drew the jury’s attention to ways in which the girls’ disclosures changed over the

course of the case. After detailing how both girls’ disclosures had changed, defense counsel argued

that their new allegations were very similar. Defense counsel also argued, “I did find it interesting

that they both say that [Ruiz] came in under cover of night and perpetrated these crimes.” 8 VRP

(Oct. 12, 2016) at 891. Defense counsel further argued, “And it is completely askew from what it

was that they initially reported. It’s brand new, and . . . the stories are very similar: Dry humping,

cover of night.” 8 VRP (Oct. 12, 2016) at 892. Defense counsel referenced how both girls waited

until three weeks before trial to disclose the allegations of “dry humping.” 8 VRP (Oct. 12, 2016)

at 890. Later, counsel argued that the girls’ stories had continued to evolve “[a]nd . . . [P.C-Z] and

[R.C-Z] have discussed, okay, what’s been going on[.] They’ve talked about this.” 8 VRP (Oct.

12, 2016) at 898. Counsel also argued that P.C-Z and R.C-Z’s motivation to allege such abuse

was their preference for their mother’s new boyfriend and their desire to prevent her from

reconciling with Ruiz.




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No. 49719-1-II


       Thus, the record shows that part of defense counsel’s trial strategy was to suggest that P.C-

Z and R.C-Z conspired to fabricate the allegations in order to ensure that their mother would not

reconcile with Ruiz. Defense counsel supported this theory by drawing the jury’s attention to the

similarities between P.C-Z and R.C-Z’s testimony and arguing that they had discussed the case

with one another. Defense counsel was able make such arguments because the cases were joined.

       Ruiz’s counsel also may have believed that trying the cases together would allow the

weaker case to undermine the stronger case. And trying the cases together allowed the jury to hear

evidence that the girls’ uncle had been convicted for sexually assaulting P.C-Z, which may not

have been inadmissible in a separate trial involving R.C-Z.           Therefore, defense counsel’s

agreement to join the cases can be characterized as legitimate trial strategy or tactic.

               b.      Ruiz fails to show prejudice

       Ruiz fails to show that the trial court would have denied the State's motion if defense

counsel had objected to the joinder. Thus, Ruiz fails to show prejudice.

       If the State originally charges a defendant of multiple counts in separate charging

documents, the court may join the offenses on a party’s motion. CrR 4.3(a); State v. Bluford, 188

Wn.2d 298, 306, 393 P.3d 1219 (2017). Offenses are eligible for joinder if they “ ‘[a]re of the

same or similar character, even if not part of a single scheme or plan.’ ” Id. (quoting CrR 4.3(a)).

       Here, the counts involving P.C-Z and R.C-Z were of similar character, as they were all

allegations of first degree child molestation involving Ruiz’s former stepdaughters. And while our

Supreme Court has noted that prior sexual offenses have an inherently prejudicial effect, the court

has also held joinder to be proper when a defendant is accused of multiple child sex crimes

involving different victims. See Bluford, 188 Wn.2d at 315; State v. Markle, 118 Wn.2d 424, 439,



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No. 49719-1-II


823 P.2d 1101 (1992) (affirming joinder of two counts of statutory rape and one count indecent

liberties involving defendant’s two nieces).

            In determining whether joinder would result in prejudice, the court must consider four

factors:

           (1) the strength of the State’s evidence on each count; (2) the clarity of defenses as
           to each count; (3) court instructions to the jury to consider each count separately;
           and (4) the admissibility of evidence of the other charges even if not joined for trial.

Bluford, 188 Wn.2d at 311-12 (quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994),

cert. denied, 514 U.S. 1129 (1995)). Ruiz acknowledges that the record is insufficient for us to

determine if the trial court would have found joinder to be prejudicial if defense counsel had

objected.

           Ruiz “bears the burden of showing, based on the record developed in the trial court, that

the result of the proceeding would have been different but for counsel’s deficient representation.”

McFarland, 127 Wn.2d at 337. Without a sufficient record for us to determine whether the trial

court would have found joinder to result in prejudice, Ruiz is unable to show that but for his

counsel’s failure to object, the trial court would have denied the State’s motion to join the cases.

           Because Ruiz fails to show that his counsel’s performance was deficient and fails to show

resulting prejudice, his ineffective assistance counsel claim fails.




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No. 49719-1-II


       2.      Failure to Move for a Severance During Trial

       Ruiz also argues that his trial counsel was ineffective for failing to move to sever the cases

during trial in light of P.C-Z and R.C-Z’s trial testimony.3 Again, we disagree.4

       When multiple offenses have been properly joined, a party may bring a motion to sever the

charges and divide the joined offenses into separate charging documents under CrR 4.4(b).

Bluford, 188 Wn.2d at 306. Upon motion, the trial court “shall grant a severance of offenses

whenever before trial or during trial with consent of the defendant, the court determines that

severance will promote a fair determination of the defendant’s guilt or innocence of each offense.”

CrR 4.4(b). As in joinder, in assessing whether the potential for prejudice requires severance, the

court must consider:

       (1) the strength of the State’s evidence on each count; (2) the clarity of defenses as
       to each count; (3) court instructions to the jury to consider each count separately;
       and (4) the admissibility of evidence of the other charges even if not joined for trial.

Russell, 125 Wn.2d at 63.




3
  We note that Ruiz’s arguments on severance undercuts his challenge that defense counsel was
ineffective for failing to object to joinder. Ruiz argues, “[b]ecause the extent of prejudice resulting
from joinder of offenses may not be apparent until trial unfolds, CrR 4.4 provides that a motion to
sever may be made during trial.” Br. of Appellant at 42-43. Thus, Ruiz’s own argument suggests
that it is legitimate trial strategy for counsel to agree to joinder pretrial and then determine whether
to move to sever the cases in light of the actual evidence that unfolds at trial. Ruiz’s argument
here also undermines his argument that his counsel’s failure to object to joinder resulted in
prejudice because he argues that his counsel still could have moved to sever the cases at any point
until the close of evidence at trial.
4
 The State appears to argue that Ruiz waived this issue because he never moved for severance.
However, Ruiz’s challenge here is based on ineffective assistance of counsel, which is a claim of
“ ‘manifest error affecting a constitutional right’ ” reviewable for the first time on appeal.
McFarland, 127 Wn.2d at 333 (quoting RAP 2.5(a)(3)).


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No. 49719-1-II


               a.      Counsel was not deficient

        Ruiz argues that there was no legitimate tactical reason for defense counsel to fail to move

to sever the cases because such motion “would only have been to Mr.’s Ruiz’s benefit.” Br. of

Appellant at 43. However, as explained above, part of Ruiz’s theory of the case was that his

stepdaughters had fabricated the allegations against him to prevent their mother from reconciling

with Ruiz. By allowing the jury to hear the testimony of both girls in the same trial, Ruiz was able

to point to the similarities in their allegations and argue that the similarities showed that they had

conspired to fabricate the allegations to ensure that their mother would not reconcile with Ruiz.

Therefore, the record shows a legitimate tactical reason for defense counsel to not move to sever

the cases in light of how P.C-Z and R.C-Z’s testimony developed.

               b.      Ruiz fails to show prejudice

        Ruiz also fails to show that had defense counsel moved to sever the cases during trial, the

trial court would have granted the motion after considering the four factors articulated in Russell.

Therefore, Ruiz fails to show prejudice.

        Ruiz argues that the State’s evidence on the charges involving P.C-Z was significantly

weaker than its charges involving R.C-Z because the State sua sponte dismissed two of the counts

involving P.C-Z during trial. However, the State also sua sponte dismissed one of the charges

involving R.C-Z. And the State’s evidence on the remaining counts was solely based upon the

testimony of P.C-Z and R.C-Z. Therefore, under the first Russell factor, the strength of the State’s

evidence as to each of the remaining charges was of similar strength.

        Ruiz’s defense was a general denial to all the charges. And the trial court instructed the

jury that:



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No. 49719-1-II


              A separate crime is charged in each count. You must decide each count
       separately. Your verdict on one count should not control your verdict on any other
       count.

CP at 122. Thus, there is no potential for prejudice requiring severance under the second and third

Russell factors.

       As to the fourth Russell factor, Ruiz argues that the testimony of R.C-Z and P.C-Z would

not have been cross-admissible because the allegations lacked the “high-level of similarity” to

constitute evidence of a common scheme or plan under ER 404(b). Br. of Appellant at 39.

However, “[t]he mere fact that evidence is not cross admissible does not automatically preclude

joinder.” Bluford, 188 Wn.2d at 315. Thus, Ruiz fails to show that had defense counsel moved to

sever the cases during trial, the trial court would have granted the motion after considering the

Russell factors.

       Ruiz also fails to present any argument showing that had the trial court severed the cases,

his trial outcome would have differed. He, therefore, fails to show that but for defense counsel’s

failure to bring such a motion, the outcome of the proceeding would have differed.

       B.      EXPERT TESTIMONY OF KERI ARNOLD

       Ruiz argues that the trial court abused its discretion in allowing Arnold to testify as an

expert on the concepts of delayed disclosure, child memory, and recantation. He argues that

Arnold was not qualified as an expert to testify on these topics, that her testimony was not helpful,

and that her testimony amounted to profiling evidence.5 We disagree.



5
  The State argues that Ruiz waived his objection to Arnold’s testimony under ER 702 because the
trial court only issued a tentative ruling and he never sought a final ruling on the State’s motion to
admit Arnold’s expert testimony. But the record shows that the trial court did make a final ruling
as to whether Arnold was qualified to testify as an expert witness at trial.


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No. 49719-1-II


       1.      Legal Principles

       We review a trial court’s decision to admit or exclude expert testimony for abuse of

discretion. State v. Phillips, 123 Wn. App. 761,765, 98 P.3d 838 (2004), review denied, 154 Wn.2d

1014 (2005). “A trial court abuses its discretion if it relies on unsupported facts, applies the wrong

legal standard, or adopts a position no reasonable person would take.” In re Detention of McGary,

175 Wn. App. 328, 337, 306 P.3d 1005, review denied, 178 Wn.2d 1020 (2013). We will not

disturb the trial court’s ruling if the basis for admitting the expert testimony is fairly debatable.

Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 352, 333 P.3d 388 (2014).

       2.      The Trial Court did not Abuse its Discretion

       ER 702 governs the admissibility of expert testimony at trial and provides:

               If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness qualified
       as an expert by knowledge, skill, experience, training, or education, may testify
       thereto in the form of an opinion or otherwise.

Thus, under ER 702, expert testimony is generally admissible if (1) the expert is qualified; (2) the

expert relies on generally accepted theories in the scientific community; and (3) the testimony

would be helpful to the trier of fact. Johnston-Forbes, 181 Wn.2d at 352. “Education and practical

experience may qualify a witness as an expert.” State v. Jones, 71 Wn. App. 798, 814, 863 P.2d

85 (1993), review denied, 124 Wn.2d 1018 (1994).

               a.      Arnold was qualified under ER 702

       Ruiz contends that Arnold was not qualified as an expert to testify about child memory and

recantation because her experience was solely based on her experience as a child forensic

interviewer and the trainings she had attended. However, a witness may qualify as an expert




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No. 49719-1-II


“based on training, experience, professional observations, and acquired knowledge.” Jones, 71

Wn. App. at 815.

       Here, Arnold testified that she had conducted more than 2,200 forensic interviews of

children, most which involved sexual abuse allegations. Her training to become a child forensic

interviewer involved observing forensic interviews, conducting mock interviews, researching

training materials related to child abuse and development as it relates to memory and recantation.

Arnold also attended numerous conferences and trainings related to child fatality investigations

and child sexual abuse and exploitation.         Thus, based on Arnold’s training, experience,

professional observations, and knowledge, she was qualified to testify about child memory and

recantation.6

                b.     Arnold’s testimony was helpful to the jury

       Expert testimony is admissible only if it is helpful to the trier of fact. State v. Morales, 196

Wn. App. 106, 122, 383 P.3d 539 (2016), review denied, 187 Wn.2d 1015 (2017). “Expert

testimony is helpful to the jury if it concerns matters beyond the common knowledge of the average




6
  Ruiz also argues that under Black and Jones, Arnold’s testimony regarding the “imprinting of
childhood memories” was scientific and, therefore, needed to be based upon an explanatory theory
generally accepted in the scientific community. Br. of Appellant at 47. However, neither of these
cases involved expert testimony related to a child’s memory formation. State v. Black, 109 Wn.2d
336, 342, 745 P.2d 12 (1987); Jones, 71 Wn. App. at 813-14. In Black, our Supreme Court held
that expert testimony on “rape trauma syndrome” had not been generally established as a
scientifically reliable means of proving lack of consent in a rape case. 109 Wn.2d at 348.
Meanwhile, the Jones court addressed expert testimony that the child victim’s propensity to act
out and experience nightmares were common behaviors of sexually abused children. 71 Wn. App.
at 813-14. Therefore, these cases do not support Ruiz’s contention that Arnold’s testimony related
to childhood memory was scientific.


                                                 16
No. 49719-1-II


layperson and is not misleading.” State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183, review

denied, 173 Wn.2d 1026 (2011).

       Ruiz argues that Arnold’s testimony regarding delayed disclosure and recantation was not

helpful to the jury. Specifically, Ruiz contends that Arnold’s testimony was not based upon

specialized knowledge, provided only a general definition of delayed disclosure and recantation,

and merely “conveyed basic notions well within the purview of the average juror.” Br. of

Appellant at 49.

       However, in addition to providing a general definition of delayed disclosure, Arnold also

testified that it was extremely common for children to delay in reporting abuse. She further

testified that approximately 95 percent of cases she had worked on involved some sort of reporting

delay. She also identified common factors that may impact a child’s delay in disclosing abuse,

such as the victim’s relationship to the perpetrator and the child’s lifestyle.

       Similarly, after providing a general definition of recantation, Arnold explained that

recantation is not uncommon in child sexual abuse cases because the offender is often someone

close to the child, such as a family member. Arnold also explained that a child may recant out of

fear of upsetting the non-offending parent or because the allegations have disrupted the family.

       Thus, contrary to Ruiz’s assertion, Arnold did not merely testify to the general definitions

of delayed disclosure and recantation. She also testified as to the commonality of delayed

disclosure and recantation in child sexual abuse cases and provided reasons based on her training

and experience as to why a child may delay in reporting abuse or recant after making an allegation.

       Frequency of and reasons for delayed disclosure and recantation is not within the common

knowledge of the average layperson. And our Supreme Court has already held expert testimony



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No. 49719-1-II


regarding delayed disclosure to be admissible when limited to an opinion that delay in reporting

abuse is not unusual. State v. Petrich, 101 Wn.2d 566, 575-76, 683 P.2d 173 (1984), overruled on

other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).

        Further, when a witness’s credibility is put in issue, the trial court may in its discretion,

allow an expert witness to provide evidence tending to corroborate the testimony. Id. at 575. Here,

Ruiz extensively cross-examined R.C-Z on her recanting the accusations she made against Ruiz in

2011. He also cross-examined P.C-Z on the time it took her to disclose the incident with Ruiz.

Ruiz also spent much of his closing argument discussing the credibility of R.C-Z and P.C-Z,

drawing the jury’s attention to the fact that R.C-Z had recanted in 2011. Because Ruiz put the

credibility of the girls at issue and specifically cross-examined them on recantation and delay in

reporting the incidents, Arnold’s testimony regarding commonality of delayed disclosure and

recantation was helpful to the trier of fact.

                c.      Arnold’s testimony did not amount to profiling evidence

        Ruiz argues that Arnold’s testimony regarding delayed disclosure and recantation

amounted to profile testimony because many of the factors Arnold testified about resembled the

family dynamics of P.C-Z and R.C-Z’s household. We disagree.

        As a general rule, profile testimony that merely identifies a person as a member of a group

more likely to commit the charged crime is inadmissible, as it lacks probative value when

compared to the danger of its unfair prejudice. State v. Braham, 67 Wn. App. 930, 936, 841 P.2d

785 (1992). However, Ruiz acknowledges that Arnold never testified as to the possible reasons

for the delayed disclosure or recantation in this particular case. Further, the record shows that

Arnold never identified Ruiz as a member of a particular group more likely to commit child



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molestation. Instead, her testimony was limited to describing whether delayed disclosure and

recantation were common in child sex abuse cases. She also explained possible reasons why a

child might delay in disclosing abuse or later recant. At no point did Arnold reference how the

specific living situation of P.C-Z and R.C-Z contributed to P.C-Z’s delayed disclosure and R.C-

Z’s recantation.

        Ruiz has failed to show that Arnold’s testimony was inadmissible. Therefore, we hold that

the trial court did not abuse its discretion in allowing Arnold to testify as an expert on delayed

disclosure, child memory, and recantation.

        We affirm.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    Lee, J.

 We concur:



 Worswick, J.




 Maxa, C.J.




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