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Washington v. Gribble

as corrected.: January 28, 1991.

THE STATE OF WASHINGTON, RESPONDENT,
v.
WAYNE R. GRIBBLE, APPELLANT. IN THE MATTER OF THE PERSONAL RESTRAINT OF WAYNE R. GRIBBLE, PETITIONER



Scholfield, J. Webster, A.c.j., concurs. Forrest, J., concurs by separate opinion.

Author: Scholfield

Wayne Gribble appeals his conviction for statutory rape and indecent liberties. We affirm.

Facts

Gribble was charged by information with two counts of first degree statutory rape upon the persons of A.G. and K.G., his daughters, and one count of indecent liberties upon A.G. Ultimately, the charge relating to K.G. was dismissed.

In this appeal, Gribble challenges the trial court's admission of child hearsay, the admission of certain expert testimony, and also argues the evidence is insufficient to support the guilty verdict on the crime of statutory rape.

In July of 1988, the trial court held a combined testimonial competency and child hearsay hearing. A.G. testified to her name and age, although she did not know the date of her birthday. Her testimony demonstrated knowledge of the difference between telling the truth and telling lies. She testified that her father lived in a brown house and that was where the "bad touch" happened. She described a good touch as a hug and a spanking as a bad touch. When asked if her father had ever touched her in a way she did not like, she said yes, and that it was a bad touch. She testified further that her father had touched her with his "hot dog" on her "private part". When asked where this bad touch had occurred, A.G. testified that it was at Daddy's house. Her testimonial performance displayed a strong reluctance to discuss the "bad touches" in useful detail. The court determined that A.G. was

not really available as a witness in any realistic sense of the word. She is so shy and so reticent and so immature that she can't really present meaningful testimony in a courtroom setting context. She did very poorly as far as her testimonial capacity in this setting, and I would expect it to deteriorate sharply in the presence of the jury.

The court concluded that A.G. was incompetent to testify.

The child hearsay portion of the hearing included testimony from A.G.'s two day-care teachers, an investigator

from the sheriff's office, the two doctors who had examined the girls, and from Mrs. Gribble, her mother.

A.G. had complained of a back injury, and Kathi Farley, A.G.'s preschool teacher, while talking to A.G. about her back injury, felt that she was hiding something and asked A.G. if her father had hurt her. A.G. replied, "A little bit", and then told Farley that her father had touched her softly, in a caressing manner. When asked by Farley about "bad touches", A.G. told her about "icky touches" that made her feel uncomfortable. At this point, according to Farley, A.G. lapsed into baby talk. After this, A.G. told Farley that Daddy had put the "hot dog" in her mouth and between her legs. A.G. told Farley that these events happened on "visits with Daddy" and "at Daddy's".

Wendy Andresen, also one of A.G.'s day-care teachers, testified to being present for part of the discussion between A.G. and Farley. Andresen testified that the subject of bad touches was initiated by Farley and that A.G. did not understand when she was first asked about being touched in her "private area", and so Andresen and Farley asked A.G., "Has Daddy ever touched you down where you go potty?" She responded, "Sometimes."

Candy Ashbrook, a child victim interview specialist with the Snohomish County sheriff's office, testified that she interviewed A.G. twice in March 1988. During the first interview, A.G. did not indicate that any "bad touching" had occurred. When Ashbrook told A.G. that Farley and Andresen had told her that something happened with A.G.'s daddy, she responded, "They made me say it."

The second interview took place at the request of A.G. or her mother. Farley was present at the interview. A.G. told Ashbrook that her father had touched her once with his "hot dog" and that one time he had put his "hot dog" in her mouth. She further indicated that her father had touched her with his hand and his "hot dog" in her vaginal area and in her anal area and that this occurred in the bathroom at Daddy's house. A.G. indicated to Ashbrook

that she was 6, 5 and 4 years old when these events occurred.

Dr. Katherine Runyon, a pediatrician, testified that she examined A.G. in April 1988. Runyon found no evidence of injury, redness, or discharge when she examined A.G.'s genital area. However, her exam indicated that A.G.'s vaginal opening was approximately one-half centimeter, which would be the upper limits of normal for a child her age. Runyon also noted an abnormality -- that the hymenal ring was completely attenuated -- meaning that it had been thinned down, so as not to be identifiable. Runyon testified that the hymenal changes "were consistent with but not absolutely diagnostic of sexual abuse."

Katherine Gribble testified that A.G. attempted to disclose sexual abuse to her through the use of her stuffed bear. Katherine indicated that her two daughters had been acting withdrawn and "in remote control" at the time of A.G.'s disclosure to the day-care teachers, but they were recently returning to normal. Katherine testified that Gribble had had no contact with the girls since February 1988.

The trial court determined that A.G.'s hearsay statements would be admissible at trial. In its oral opinion, the court commented that the testimony of Farley and Andresen was not inconsistent with A.G.'s limited testimony. The court noted that the child hearsay statute requires a determination that the time, content, and circumstances of the hearsay statements provide sufficient indicia of reliability. The court stated that the time and content were appropriate and that the circumstances did not suggest that the statements were contrived. The court further determined that the medical evidence of Dr. Runyon presented sufficient corroboration of the hearsay statements to permit their introduction at trial. In addition, the trial court noted that the evidence of personality changes of the girls at the time of the disclosure also corroborated the statements. Finally, the trial court indicated that the girls corroborated each other.

On January 25, 1989, the trial court held a second hearing on A.G.'s availability as a witness. Although A.G. was able to distinguish between telling the truth and telling a lie and could tell the court her name, age, grade in school, and teacher's name, she could not or would not answer questions about the alleged sexual abuse, beyond stating that her father gave her bad touches. The trial court determined that A.G. was unavailable "for all the reasons that Judge Hansen indicated, and also by reason of lack of memory at this time."

Because Gribble had moved to exclude any medical evidence that did not comply with the Frye*fn1 standard, the trial court held a hearing on that issue before the State presented its medical witnesses at trial. Runyon testified that it was "readily accepted in the medical and scientific community" that an attenuated hymen and a larger than average vaginal opening would be consistent with sexual abuse. However, Runyon admitted on cross examination that there are normal variations of the size of the vaginal opening. The trial court ruled that there was sufficient evidence of acceptance by the medical community to allow Runyon's testimony at trial.

The defense also sought to exclude at trial evidence concerning A.G.'s behavior changes. At the hearing on the motion, Ashbrook testified that anxiety, withdrawal, deadening of affect, and change in character or personality, among others, "have been recognized as significant or symptomatic of child abuse". The trial court ruled that testimony that "some behavioral changes may be caused by sexual abuse" would be admissible, even though there may be other causes for such behavior.

Child Hearsay Testimony Admissible

Gribble argues that the child hearsay testimony should have been excluded because the trial court failed to determine A.G.'s competency at the time of disclosure of the

alleged sexual abuse. He contends further that the child's statements did not meet the required reliability test.

RCW 9A.44.120 reads in pertinent part:

A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and ...


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