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State v. Lampley

December 30, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
FRANK LAMPLEY, JR., APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-05068-7. Date filed: 05/26/95. Judge signing: Hon. Robert Alsdorf.

PER CURIAM. Frank Lampley appeals his conviction for one count of child molestation in the first degree. He contends the trial court erred in finding the victim competent to testify and in failing to timely enter written CrR 3.5 findings. Because an independent review of the factors relevant to competency shows the court was within its discretion, and because Lampley has not demonstrated prejudice resulting from the tardy entry of the findings, we affirm.

FACTS

The State charged Lampley with one count of first degree child molestation. The information alleged that he molested his daughter, C.L., between September 1, 1991 and December 31, 1992.

Following pretrial competency and CrR 3.5 hearings, the trial court ruled that C.L. was competent to testify and that Lampley's statements to police detectives were admissible. A jury convicted Lampley as charged, and Lampley appealed.

In his opening brief, Lampley challenged the court's failure to enter written findings and Conclusions as required by CrR 3.5(c). The court subsequently entered the findings. Lampley has not filed a reply brief.

DECISION

Lampley contends the trial court abused its discretion in finding C.L. competent to testify because it did not consider all of the Allen factors and because the evidence does not support several of those factors. We disagree.

A child is not competent to testify unless he or she demonstrates

(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

State v. Allen, 70 Wash. 2d 690, 692, 424 P.2d 1021 (1967); see also CrR 6.12(c)(2). *fn1 Although a trial court should address these factors on the record, failure to do so does not preclude review or require reversal where the record is sufficient for this court to independently assess the factors. Avila, at 735-36. The transcript of the competency hearing in this case is sufficient for that purpose.

C.L.'s testimony demonstrated that she knew the difference between a lie and the truth, and that she knew it was bad to tell a lie. That testimony satisfied the first factor, and Lampley does not argue otherwise.

The record also demonstrates satisfaction of the second and third factors. When, as here, a child witness testifies to events other than the charged events, the second and third factors may still be satisfied if the witness demonstrates the ability to remember events occurring contemporaneously with the charged events. State v. Avila, 78 Wash. App. 731, 736-37, 899 P.2d 11 (1995). C.L. remembered living at her father's residence and sharing a room with her brother. She also remembered that her brother slept on a couch in the room. She described in detail a nightmare she had while living with her father and remembered a night when he got mad at her while her mother was at work. Because all of these memories related to events occurring during the charging period, *fn2 C.L.'s testimony sufficiently demonstrated that she could recall distant events occurring contemporaneously with the abuse.

Finally, the fourth and fifth factors are satisfied by C.L.'s evident comprehension of, and answers to, questions at the ...


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