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State v. Anthony

December 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
DONALD J. ANTHONY, AKA DONALD QUADE, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 94-1-00101-3. Date filed: 09/29/94. Judge signing: Hon. Ronald L. Castleberry.

Authored by Ann L. Ellington. Concurring: Walter E. Webster, H. Joseph Coleman.

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Donald Anthony appeals his conviction and sentence for first degree child molestation and first degree rape of a child. We conclude that his victim's hearsay statements were properly admitted because the circumstances in which the statements were made demonstrate they were reliable, and, although the victim was not competent to testify at trial, her statements were corroborated by other evidence, including Anthony's own statements to the police. We disagree that the prosecutor's statements in closing were so prejudicial that they could not have been neutralized by curative instructions. We remand, however, to ensure that the conditions of Anthony's sentence, including the requirement of taking polygraph tests, are tied to his treatment or to monitoring compliance with crime-related prohibitions.

STATEMENT OF FACTS

On the day that three-year-old C.A. returned to her mother after spending approximately a month living with her father and grandfather, C.A. was "acting different", so her aunt, Becky, asked if something was bothering her. C.A. responded that she was not supposed to tell. When Becky asked why not, C.A. said because Grandpa Don, the defendant, told her not to. Becky then asked, "Did he touch you in a bad spot or did he hurt you in any way?" and C.A. said yes. According to Becky, C.A. then said Grandpa Don "touched her with his tongue in her private areas, kissed her on her butt and on her face, and sometimes -- her words was [sic] 'put his pee-pee in her mouth.'"

C.A. repeated the accusations to her mother, Brenda Griffin, and to her uncle, Edgar Anthony. Then, a week or so later, Becky discovered C.A. in her room licking a Cabbage Patch doll between the legs. When Becky asked C.A. what she was doing, C.A. responded, "My grandpa did it." Brenda also said she saw C.A. put her head between her doll's legs and lay on top of the doll.

The police were contacted and child interview specialist Elaine Metz interviewed C.A. She told Metz that her grandfather touched her "ding-ding" with his "weewee", a lot of times, *fn1 and that he put his weewee "in her butt". When asked whether Anthony touched her ding-ding on the outside or on the inside, she responded, "backwards", then took a pencil with a small troll doll on the end, removed the doll from the end of the pencil, and said, "See, that's what he does in my butt."

Anthony was charged by information with one count of child molestation in the first degree. The information was later amended to charge one count of first degree child molestation and one count of first degree rape of a child. Before trial, the Judge agreed with the parties that C.A. was incompetent to testify, but ruled that C.A.'s hearsay statements were admissible.

A jury found Anthony guilty as charged on both counts. This appeal followed.

Discussion

Anthony argues that C.A.'s hearsay statements should not have been admitted because the circumstances did not show them to be reliable, and they were not corroborated by other evidence. We disagree.

Hearsay statements of children under ten describing another person having sexual contact with them are admissible under RCW 9A.44.120, *fn2 Washington's child victim hearsay statute, if the "time, content, and circumstances of the statements" show them to be particularly trustworthy. To determine whether there are sufficient indicia of reliability, courts must consider nine factors: *fn3

(1) whether the child had an apparent motive to lie;

(2) the child's general character;

(3 whether more than one person heard the statements;

(4) whether the statements were made spontaneously;

(5) the timing of the declaration and the relationship between the child and the witness;

(6) whether the statement contains express assertions about past fact;

(7) whether cross-examination could show the child's lack of knowledge;

(8) whether there is only a remote possibility the child's recollection was faulty;

and (9) whether the circumstances surrounding the statement are such that there is no reason to suppose the child misrepresented the defendant's involvement.

State v. Ryan, 103 Wash. 2d 165, 175-76, 691 P.2d 197 (1984). The trial court is vested with considerable discretion in evaluating the nine factors, and not all need to be satisfied for a court to find the statements to be considered reliable. State v. Swan, 114 Wash. 2d 613, 648, 652, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 111 S. Ct. 752, 112 L. Ed. 2d 772 (1991). Nor is a child's competency as a witness determinative of the reliability of the hearsay statements. Swan, 114 Wash. 2d at 652. However, when a child is unavailable to testify, the hearsay statement may not be admitted unless there is other evidence that corroborates the act alleged in the statement. RCW 9A.44.120; State v. Jones, 112 Wash. 2d 488, 496, 772 P.2d 496 (1989).

The Trial Court's Consideration Of The Ryan Factors Was Adequate Anthony complains that the trial court failed to consider most of the Ryan factors when it determined the statements were reliable, and implies that under State v. Quigg *fn4 and State v. Swanson, *fn5 the trial court was required to specifically consider each Ryan factor on the record. Neither Quigg, nor Swanson so holds. This court may affirm the admissibility of child hearsay statements if the record shows the statements were reliable. State v. Stevens, 58 Wash. App. 478, ...


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