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State v. Jones

March 24, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
THOMAS JONES, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-05738-3. Date filed: 04/17/96. Judge signing: Hon. Norma S. Huggins.

PER CURIAM -- The juvenile court adjudicated Thomas Jones guilty of first degree child molestation. He appeals and seeks reversal because the juvenile court's written findings and Conclusions fail to state that it found him guilty beyond a reasonable doubt. He also argues that the juvenile court abused its discretion by concluding that the child victim was competent to testify. Finding no error on either basis, we affirm.

In February 1994, Jones was visiting his cousin Betty Pierce, the mother of the victim, A, who was nearly four years old then. After putting A to bed, Pierce went to a store to buy some cigarettes. When Pierce left, Jones was watching television in the living room. While she was gone, Jones went into A's bedroom and began touching her. He put his tongue in her mouth, kissed her buttocks, and licked her vagina. When Pierce returned, Jones was again in the living room watching television.

Several months later, A disclosed to Pierce that Jones had kissed her.

A few days after that, A told Pierce and her grandmother, Renee Walker, that Jones had put his tongue in her mouth, licked her "potty", and kissed her "butt". Approximately a week later, A repeated the same story to Walker and Walker's sister Wilbertta Pierce.

The police began their investigation in late 1994. A representative of the King County prosecutor's office interviewed A, who repeated the same account she had given to her mother, grandmother, and great aunt. A physician's examination yielded "non-specific" findings, which mean that the patient's symptoms are consistent with sexual abuse and other possible causes, as well.

The State charged Jones with first degree rape of a child and, in the alternative, first degree child molestation. After a fact-finding hearing, the juvenile court found Jones guilty on the alternative charge of first degree child molestation. He received a standard range Disposition.

I

Competency to Testify

Jones argues that the trial court erred by finding A competent to testify. We disagree.

RCW 5.60.050 provides that "those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly" are incompetent to testify. Under the well-established test set forth in State v. Allen, *fn1 a child witness demonstrates competency to testify by showing (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; (5) the capacity to understand simple questions about it.

We review child competency rulings for an abuse of discretion. *fn2 "A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds." *fn3 On appeal, we may also look to the witness' trial testimony to corroborate the trial court's Conclusion as to competency. *fn4

Jones challenges A's competency under the second and third factors, claiming that the questioning at her competency hearing did not establish her memory of February 1994, when the offense occurred. For support, he cites Jenkins v. Snohomish County PUD 1, *fn5 in which our Supreme Court reversed the trial court's competency finding. The child witness in that case did not learn about electricity until after the time when he claimed to have warned a companion about the danger of entering an electrical substation. Because the witness could not have warned his companion about a danger of which he knew nothing, the Supreme Court held that he had failed to satisfy the third element of the test i.e., having a sufficient memory to retain an independent recollection of relevant events. *fn6

Jenkins is distinguishable. A was able to recall Christmas celebrations in 1994 and 1995. She also remembered, albeit somewhat vaguely, her birthday celebration in May 1994, three months after the incident with Jones. During the fact-finding hearing, A described the assault in detail, including information about the time of day, ...


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