Appeal from Superior Court of Snohomish County. Docket No: 93-1-01085-5. Date filed: 02/09/94. Judge signing: Hon. Kathryn E. Trumbull.
Petition for Review Denied May 6, 1997,
Authored by Ann L. Ellington. Concurring: Walter E. Webster, H. Joseph Coleman.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Daniel Ames was convicted of two counts of first degree rape of a child. On appeal, he claims that hearsay statements of the child should not have been admitted because they were not made spontaneously and were prejudicially cumulative. He also argues that there was not sufficient evidence to convict him of two counts of rape, and that he should have been granted a new trial because the jury filled out a verdict form that was to be used only for an alternative lesser charge. We conclude that the time, content, and circumstances of the hearsay statements provide sufficient indicia of the statements' reliability, ample evidence supports the convictions on both counts of first degree child rape, and the trial court did not abuse its discretion when it refused to grant Ames a new trial because the verdict on the lesser charge was not inconsistent with the other verdict and, hence, was properly treated as mere surplusage. We therefore affirm.
Mary Bagley was at her daughter's home one evening with her granddaughter, Rachel, and Rachel's nine-year-old friend, A.W. Bagley was sitting in the living room when Rachel came in and said A.W. was having a problem with her stepfather. On the way into the bedroom where A.W. was, Rachel said A.W.'s stepfather had been getting into bed with A.W. and touching her private parts and A.W. was afraid she would get pregnant. Bagley asked A.W. if that was true, and A.W. said "yes" and started crying. Bagley did not want to question A.W. in detail because A.W. was distraught, but she did ask whether A.W.'s stepfather had put his penis inside her. A.W. answered "yes." Bagley assured A.W. she was too young to get pregnant, and did not quiz her for any other details.
The next morning Bagley told A.W.'s mother, Dorothy Ames, what A.W. had said. A police officer was called and Dorothy attempted to have A.W. tell what happened, but she would not respond to her mother or the police officer, so Bagley asked her questions with Dorothy, but not the officer, present. A.W. said that on three different occasions Dan Ames had come to her bedroom at night and molested her. Bagley asked whether Ames had inserted his penis inside her and A.W. said "yes." At the police officer's direction, Bagley asked "where this was done" and A.W. responded, "He put it in my butt." A.W. said it hurt and had made her bleed on either the first or second occasion. She said the third time she fought him off and he had not succeeded in penetrating her.
When A.W. was responding to Bagley's questions, Dorothy recalled having made a doctor's appointment for A.W. because she had complained about "bleeding and pains in her stomach." Dorothy also recalled finding a pair of A.W.'s panties in the laundry basket that looked as if they might have been bloody.
A few days later, Mountlake Terrace Police Department Community Service Consultant Vickie Keith interviewed A.W., who confirmed to Keith that her stepfather, Dan Ames, had raped her. A.W. also indicated to Keith that Ames had asked her to touch his privates and she had complied.
Daniel Ames was charged with one count of first degree rape of a child. The information was later amended to include a second count of first degree rape of a child and, as an alternative to the first count of first degree rape of a child, one count of first degree child molestation.
Before trial, the court determined that A.W. was competent to testify, and that the statements A.W. made to Bagley, her mother, and Keith would be admissible at trial. After the case was heard, the jury was given three verdict forms (A, B, and C) and was instructed that if it found the defendant guilty on Verdict Form A of the first count of rape of a child, it should not use Verdict Form B, which related to the alternative charge of child molestation. Nevertheless, the jury wrote "guilty" on all three verdict forms.
Ames filed a motion for a new trial based upon the jury's failure to follow the instructions regarding the verdict forms. The trial court denied the motion. This appeal followed.
Ames argues that Bagley's, Keith's, and Dorothy Ames' statements were inadmissible hearsay. We conclude that the circumstances surrounding the statements established that they were reliable.
Hearsay that does not fit into an established hearsay exception is not barred by the Confrontation Clause if there is a showing, apart from any corroborating evidence, that the hearsay statement is particularly trustworthy. Idaho v. Wright, 497 U.S. 805, 818, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990). This general principle has been codified in Washington's "child victim hearsay statute," RCW 9A.44.120, which allows the hearsay statements of a child to be admitted if there are sufficient indicia of their reliability:
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 . . . criminal proceedings, . . . in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and (2) The child either:
(a) Testifies at the proceedings; or (b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if ...