In Re the Detention of: JOSEPH M. PETERSON, Appellant.
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.
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.
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.
State moved to admit two of H.L.'s 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.
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
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.
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.
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
1. [H.L.] did not disavow the accuracy of her statements.
2. [H.L.] averred accuracy at the time of making the