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State v. Lewis

September 17, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
ROBERT EZRA LEWIS, APPELLANT.



Appeal from Superior Court of Yakima County. Docket No: 93-1-00673-5. Date filed: September 2, 1993. Judge signing: Hon. F. J. Gavin.

Petition for Review Denied April 4, 1997,

Authored by: Dennis J. Sweeney. Concurring: Ray E. Munson, Philip J. Thompson

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. In determining the competency of a child witness, the trial court considers the capacity of the child to express her memory of the event in question. State v. Allen, 70 Wash. 2d 690, 692, 424 P.2d 1021 (1967). In this child sexual abuse case, we are asked to decide whether children who testify only by way of stick figure drawings sufficiently demonstrate that capacity. We conclude that they do and hold that the trial court correctly found the children here competent to testify. *fn1

FACTS

In January 1993, Pat Attaway, a social worker for Child Protective Services, received a report that a six-year-old girl was exposing herself and touching little boys inappropriately while at school. On January 23, Ms. Attaway interviewed the child, B.M., who told her she had a touching problem with her grandfather, Robert Lewis.

Ms. Attaway contacted Robyn Cyr, the administrator of victim services and the senior investigator for the Yakima County Prosecuting Attorney's Office. Ms. Cyr interviewed B.M. on February 5. Based on information she obtained in that interview, Ms. Cyr talked to other grandchildren of Robert and June Lewis. Following an investigation, the State charged Mr. Lewis with one count of first degree rape of a child, and seven counts of first degree child molestation.

Before trial, the court conducted a hearing to determine whether the children were competent to testify. The court found all of them competent.

Because Mr. Lewis challenges that determination only as to A.B. and H.B., we limit our Discussion to the facts relating to the competency of those two children.

At the competency hearing, A.B. did not respond to the prosecutor's first questions. It was only after the prosecutor asked A.B. to draw pictures, and then asked her questions referencing those pictures, that

A.B. implicated Mr. Lewis:

Q. . . . .

Can you put an X on that figure where somebody touched you that you didn't like, [A.B.]? Can you put an X on there so the Judge understands. Huh? It's okay. It's real important he understands.

A. (Witness complied.)

Q. Okay. What do you call that place that you just put an X on? . .

. .

Q. Is that a private?

A. (Nods head affirmatively.)

Q. . . . .

Can you tell me who touched you someplace you didn't like on the picture that you just showed the Judge where you were touched that you didn't like? . . . .

Q. Could you write their name down for me?

A. (No response.)

Q. You don't have to say it out loud, if you could ...


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