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In re Detention of Peterson

Court of Appeals of Washington, Division 2

January 31, 2017

In Re the Detention of: JOSEPH M. PETERSON, Appellant.

          Sutton, J.

         Joseph M. Peterson appeals from the trial court's order concluding that his second degree assault conviction is a sexually violent offense for the purpose of civil commitment for sexually violent predators (SVP) under chapter 71.09 RCW. Peterson argues that the trial court erred by admitting the victim's statements as recorded recollections under ER 803(a)(5). We hold that the trial court did not err by admitting the victim's recorded recollections under ER 803(a)(5). Accordingly, we affirm the trial court.

         FACTS

         On March 29, 2013, the State filed a petition seeking Peterson's involuntary commitment as a SVP. The petition alleged that, on July 2, 2007, Peterson was convicted of second degree assault and that the assault was sexually motivated because the charges originated from a rape complaint. Therefore, Peterson's second degree assault conviction met the criteria for a sexually violent offense under RCW 71.09.020(17)(c). The petition also alleged that Peterson met the other criteria for an SVP.

         Peterson and the State stipulated that Peterson's SVP trial would be bifurcated. First, a bench trial would be held to allow the trial court to determine whether Peterson's second degree assault conviction was a sexually violent offense. Second, if the trial court determined that Peterson's second degree assault conviction was a sexually violent offense, the remaining issues in the SVP petition would be tried to a jury.

         The State moved to admit two of H.L.'s[1] statements as recorded recollections under ER 803(a)(5) to establish that the second degree assault was sexually motivated. Specifically, the State moved to admit H.L.'s handwritten statement given to detectives on the date of the incident and H.L.'s taped recorded statement given to detectives six days after the incident.

         At the hearing, H.L. testified that she had experienced memory loss and could not recall the events surrounding the 2007 assault. When asked to review her handwritten statement, H.L. testified that she recognized her handwriting but that she did not remember writing the statement. She also testified that she believed that what she wrote was true because "my memory was there at that time, and I would have been able to recall exactly what had happened." 1 Verbatim Report of Proceedings (VRP) at 79. H.L. also testified that she remembered going to give a recorded statement to the police, but she could not remember the conversation itself. H.L. testified that she believed her recorded statement was also true and accurate. She also testified, "I have nothing to gain from making up a story. To me, it doesn't seem like it would be smart." 1 VRP at 81. Finally, H.L. testified that she had not ever recanted or denied her statements.

         The State also presented the testimony of Detective Kim Holmes of the Lakewood Police Department, who was the detective assigned to investigate H.L.'s rape complaint. Holmes also testified that the recording accurately reflected her memory of the interview.

         Peterson objected to the admission of H.L.'s statements arguing that they did not meet the requirements of ER 803(a)(5) for recorded recollections. Peterson presented testimony from Detective Holmes that showed several inconsistencies between H.L.'s handwritten statement and her recorded statement. Peterson also called two former residents of H.L.'s apartment complex to testify that, at the time of the incident, H.L. had a reputation for dishonesty. And, H.L.'s ex-husband, who H.L. lived with at the time of the incident, also testified that he did not believe her statement that she had been raped.

         The trial court then entered the following findings of fact:

A. Both records pertain to a matter about which [H.L.] once had personal knowledge.
B. [H.L.] now has an insufficient recollection about the matter to testify fully and accurately.
C. The records were made or adopted by [H.L.] when the matter was fresh in her mind.
D. The records reflect [H.L.J's prior knowledge accurately because:
1. [H.L.] did not disavow the accuracy of her statements.
2. [H.L.] averred accuracy at the time of making the ...

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