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State v. A.W.

Court of Appeals of Washington, Division 2

May 20, 2014

The State of Washington, Petitioner,
v.
A.W., Petitioner, Dwight A. Finch, Respondent

Oral Argument February 19, 2014.

Page 738

Appeal from Wahkiakum Superior Court. Docket No: 11-8-00005-3. Date filed: 09/09/2013. Judge signing: Honorable Michael J Sullivan.

Jodi R. Backlund, Skylar T. Brett, and Manek R. Mistry (of Backlund & Mistry ); Pamela B. Loginsky (of Washington Association of Prosecuting Attorneys ); and Daniel H. Bigelow, Prosecuting Attorney, and John G. Wetle, Deputy, for petitioners.

John A. Hays, for respondent.

David J. Ward on behalf of Legal Voice, National Crime Victim Law Institute, and Sexual Violence Law Center, amici curiae.

AUTHOR: Lisa Worswick, C.J. We concur: Jill M Johanson, J., Linda CJ Lee, J.

OPINION

Page 739

Worswick, C.J.

[181 Wn.App. 403] ¶ 1 In this interlocutory appeal, which is linked with State v. Dwight A. Finch, 181 Wn.App. 387, 326 P.3d 148 (2014), the juvenile court ordered a juvenile sex crime victim and offender to submit to polygraph testing.[1] A.W.,[2] a minor,[3] pleaded guilty to first degree child molestation and received a special sex offender disposition alternative (SSODA).[4] During treatment, A.W. disclosed that Dwight Finch had sexually assaulted him. The State charged Finch with first degree child rape and first degree child molestation, and the superior court, over the State's objection, ordered A.W. to submit to the polygraph test that the parties dispute on appeal. After we granted discretionary interlocutory review of that decision, Finch moved to intervene in A.W.'s juvenile disposition. Finch requested the juvenile court to order A.W. to take the disputed polygraph test to determine the truthfulness of his allegations against Finch, either by granting Finch's motion to intervene or on [181 Wn.App. 404] its own motion in the interest of justice. The juvenile court entered the instant order requiring A.W. to submit to the disputed polygraph test.

¶ 2 In this case, the State and A.W. appeal the juvenile court's order requiring A.W. to submit to the polygraph test. The State asks us to impose sanctions against Finch's trial counsel and to remand this case to a different judge. Because A.W.'s SSODA did not authorize the polygraph test, and because Finch had no right to intervene in State v. A.W., we hold that the juvenile court erred by ordering the polygraph test, and we reverse that order. To maintain the appearance of fairness, we remand this case to a different judge. Finally, we remand the matter of sanctions for the juvenile court's consideration.

FACTS

A. State v. A.W., with Finch as Intervenor

¶ 3 A.W. pleaded guilty to first degree child molestation. The juvenile court imposed a SSODA, which imposed conditions including:

[1.] [O]bey all ... laws.
[2.] Participate in weekly treatment.
[3.] Treatment compliance could be monitored every 6 months through a polygraph, if available.

Clerks Papers (CP) (A.W.) at 18, 22. The juvenile court modified the polygraph test condition from the boiler plate language, which had stated, " Treatment compliance shall be monitored every 6 months through a polygraph." CP (A.W.) at 22.

Page 740

¶ 4 While undergoing court ordered sex offender treatment, A.W. told his therapist that Finch committed sex acts against him.[5] A.W.'s therapist informed the State about [181 Wn.App. 405] A.W.'s disclosure, and the State charged Finch with first degree child rape [6] and first degree child molestation.[7]

B. State v. Finch

¶ 5 After being charged, Finch submitted to a polygraph test. The polygraph examiner concluded that Finch was truthful when he denied A.W.'s allegations. Finch then moved the superior court to use the juvenile court's authority over A.W.'s SSODA in State v. A.W. to require A.W. to submit to polygraph testing, the purpose of which would be to ...


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