[No. 75921-9. En Banc.]
Considered March 31, 2005. Decided July 7, 2005.
In the Matter of the Petition to Recall CYNTHIA OLSEN , Commissioner of the Port of Tahuya .
[1] Elections - Recall - Petition - Court Review - Supreme Court. The Supreme Court reviews a recall petition using the same criteria as the superior court.
[2] Elections - Recall - Petition - Court Review - Scope - Sufficiency of Charges. A recall petition is reviewed by a court to determine whether the charges set forth in the petition are legally and factually sufficient.
[3] Elections - Recall - Petition - Sufficiency - Legal Sufficiency - Test. A charge in a recall petition is not legally sufficient unless it states with specificity substantial conduct clearly amounting to misfeasance, malfeasance, or a violation of the oath of office.
[4] Elections - Recall - Petition - Legal Sufficiency - Lawful Act. A charge in a recall petition is legally insufficient if it is based on conduct for which there is a legally cognizable justification.
[5] Port Districts - Commissioners - Actions Against - Legal Expenses - Indemnification by Port District - Statutory Authority. RCW 53.08.208 expressly grants to a port district the authority to defend and indemnify, at port district expense, a current officer of the district against whom a claim, suit, or proceeding has been brought so long as the officer is not found to have acted in bad faith or outside the scope of the officer's employment with or duties for the district.[6] Municipal Corporations - Contracts - Validity - Conflict of Interest - "Beneficial Interest" - Contract - Necessity. RCW 42.23.030 , which proscribes a municipal officer from having a
July 2005 In re Recall of Olsen 607
154 Wn.2d 606
beneficial interest in a municipal contract made by or through the officer or under the officer's supervision and which prohibits a municipal officer from voting to authorize, approve, or ratify a contract in which the officer has a beneficial interest, applies only when a contract is made or sought to be made. It does not apply to noncontractual acts or decisions by a municipality.
[7] Municipal Corporations - Contracts - Validity - Conflict of Interest - "Beneficial Interest" - Contract - What Constitutes - Indemnification of Officer for Legal Obligation. A decision by the governing body of a municipal corporation to indemnify a member thereof for an obligation arising from a claim, suit, or proceeding brought against the member does not involve a "contract" within the meaning of RCW 42.23.030 , which proscribes a municipal officer from having a beneficial interest in a municipal contract made by or through the officer or under the officer's supervision and which prohibits a municipal officer from voting to authorize, approve, or ratify a contract in which the officer has a beneficial interest. The member's participation in the vote to authorize such indemnification does not, therefore, violate RCW 42.23.030 .
[8] Municipal Corporations - Contracts - Validity - Conflict of Interest - "Beneficial Interest" - What Constitutes - Contract To Provide Legal Services To Defend Municipal Official. A contract between a municipality and an attorney to provide a defense to a member of the municipality's governing body against a claim, action, or proceeding against the member concerning an act taken within the scope of duties for the district is not one in which the member has a "beneficial interest" within the meaning of RCW 42.23.030 . The member's participation in the vote to authorize the provision of a defense at municipal expense does not, therefore, violate RCW 42.23.030 .
Nature of Action: Petition to recall a port district commissioner. The petition alleged that the commissioner violated the state code of ethics for municipal officers by voting on a motion for the port district to defend and indemnify the commissioner in an action against the commissioner alleging violations of the Open Public Meetings Act of 1970 (chapter 42.30 RCW).
Superior Court: The Superior Court for Mason County, No. 04-2-00636-1, David R. Draper, J., on August 13, 2004, entered a judgment dismissing the petition, finding the charges legally insufficient.
Supreme Court: Holding that the commissioner's act of voting on the motion was lawful, the court affirms the judgment.
608 In re Recall of Olsen July 2005
154 Wn.2d 606
Thomas C. O'Hare (of Smith & O'Hare, P.S., Inc. ), for appellants.
Blair B. Burroughs (of Lawler Burroughs & Baker, P.C. ), for respondent.
¶1 MADSEN, J . - Bradley J. Carey, Celeste A. Carey, Norton B. Young, Beatrice H. Young, Harold Carey, Barbara G. Carey, John L. Christen, Michael S. Christen, Ernest W. Aries, and Shirley J. Aries (Petitioners) have filed a petition to recall Cynthia Olsen from her position as port commissioner of the Port of Tahuya. Petitioners allege Olsen violated Washington State's code of ethics for municipal officers by voting for the authorization and approval of contracts in which they allege she was beneficially interested. The Mason County Superior Court dismissed the petition, finding the charges legally insufficient. We affirm.
FACTS
¶2 The Port of Tahuya was established in 1925, and its district consists of approximately 30 square miles of largely rural area, bounded to the south and west by Hood Canal. The Port of Tahuya Commission consists of three members, with each commissioner being elected for a staggered six-year term. Cynthia Olsen was appointed to the Port of Tahuya Commission in 1995 and has served as a commissioner since that time. Commissioners Olsen and Gilbert were defendants in a civil lawsuit brought by a local citizens group, the "Residents for Preservation of Quality of Life on Hood Canal," alleging, among other things, violations of the Washington Open Public Meetings Act of 1971, chapter 42.30 RCW.
¶3 On July 9, 2004, a special meeting of the port was called to consider motions for the port, pursuant to RCW
July 2005 In re Recall of Olsen 609
154 Wn.2d 606
53.08.208, to provide a defense to Commissioners Olsen and Gilbert in the existing Open Public Meetings Act litigation and future lawsuits and to indemnify them against claims or judgments in those lawsuits. "Commissioner Christen objected to the adoption of the various motions and stated his belief that it was a conflict of interest for Commissioners Olsen and Gilbert to vote on the motions for their own defense and indemnity."«1»Clerk's Papers (Mem. in Supp. of Recall Pet.) at 35. Commissioners Olsen and Gilbert voted on each of the motions. Each motion carried by a two-to-one majority. Immediately following the adoption of the motions, Commissioner Gilbert submitted his resignation as a port commissioner.
¶4 The citizens group that brought the prior legal action subsequently filed a petition for the recall of Commissioner Olsen. The petition alleged that Commissioner Olsen violated the Washington State code of ethics for municipal officers, RCW 42.23.030 , when she and Commissioner Gilbert voted for the port to retain legal counsel and indemnify them for the citizens group lawsuit.
¶5 In response to the petition, the Mason County prosecutor prepared a ballot synopsis and filed a petition in superior court to determine the sufficiency of the charges and the synopsis. After hearing oral arguments, the trial court found the charges contained in the petition for recall were not legally sufficient for submission to the voters.
DISCUSSION
[1, 2]¶6 The Washington State Constitution provides that the citizens of this state may seek the removal of a public official from his or her duly elected office before that official's term expires through a recall election. CONST. art. I, §§ 33-34; In re Recall of Kast , 144 Wn.2d 807 , 812, 31 P.3d 677 (2001). This court reviews recall petitions using the same criteria as the superior court. In re Recall of Shipman ,
«1»Counsel stipulated as to the facts recited in the memorandum in support of recall petition.
610 In re Recall of Olsen July 2005
154 Wn.2d 606
125 Wn.2d 683, 684, 886 P.2d 1127 (1995). The court's function is limited to evaluating the factual and legal sufficiency of the charges. Kast , 144 Wn.2d at 813 .
[3, 4]¶7 The challenge in this case is limited to the legal sufficiency of the petition. To be legally sufficient, the petition must state with specificity substantial conduct clearly amounting to misfeasance, malfeasance, or violation of the oath of office. Greco v. Parsons , 105 Wn.2d 669 , 671, 717 P.2d 1368 (1986). A legally cognizable justification for an official's conduct will render a recall charge insufficient. In re Recall of Pearsall-Stipek , 141 Wn.2d 756 , 766, 10 P.3d 1034 (2000).
¶8 The terms misfeasance, malfeasance, or violation of the oath of office are defined in RCW 29A.56.110 as follows:
(1) "Misfeasance" or "malfeasance" in office means any wrongful conduct that affects, interrupts, or interferes with the performance of official duty;
(a) Additionally, "misfeasance" in office means the performance of a duty in an improper manner; and
(b) Additionally, "malfeasance" in office means the commission of an unlawful act;
(2) "Violation of the oath of office" means the neglect or knowing failure by an elective public officer to perform faithfully a duty imposed by law.
The above definitions, as well as "the rest of the recall statute, are to be construed in favor of the voter, not the elected official." Pearsall-Stipek , 141 Wn.2d at 765 .
[5]¶9 Petitioners seek to recall Commissioner Olsen because she voted to indemnify the commissioners against claims or judgments and to have the port retain counsel to represent the commissioners. Petitioners argue the recall petition was legally sufficient because Olsen committed an act of malfeasance in her capacity as port commissioner by voting in the matter. Olsen, on the other hand, claims the recall petition is legally insufficient because the alleged acts were authorized by statute and, therefore, not wrongful. In
July 2005 In re Recall of Olsen 611
154 Wn.2d 606
support of this claim, Olsen cites RCW 53.08.208 . That statute provides:
Whenever any action, claim or proceeding is instituted against any person who is or was an officer, employee, or agent of a port district established under this title arising out of the performance or failure of performance of duties for, or employment with any such district, the commission of the district may grant a request by such person that the attorney of the district's choosing be authorized to defend said claim, suit or proceeding, and the costs of defense, attorney's fees, and any obligation for payment arising from such action may be paid from the district's funds: PROVIDED, That costs of defense and/or judgment or settlement against such person shall not be paid in any case where the court has found that such person was not acting in good faith or within the scope of his employment with or duties for the district.
RCW 53.08.208 .
¶10 As Olsen notes, RCW 53.08.208 contains an express grant of authority for a port district to retain an attorney to defend against claims, suits, or proceedings against current officers and to indemnify them for legal costs. A number of other municipal corporations have similar statutes. See RCW 54.16.097 ; RCW 28A.320.100 ; RCW 28B.10.842 . Here, pursuant to the statute, Commissioner Olsen voted to have the port retain an attorney to defend her in the existing and future lawsuits. However, the proviso prohibits the port from paying the costs of defense and/or settlement or judgment if the officer, employee, or agent was not acting in good faith or within the scope of employment. Thus, the only costs for which Olsen can be indemnified are those related to her official duties, not costs for which she would otherwise be legally obligated to pay.
[6-8]¶11 Although Petitioners acknowledge Olsen's authority under RCW 53.08.208 , they claim Olsen was directly and beneficially interested in the contract to hire an attorney because, absent the port's hiring such an attorney, she was faced with the prospect of hiring and paying an attorney on her own to defend the action. Petitioners concede that the "terms of RCW 53.08.208 create an obvious
612 In re Recall of Olsen July 2005
154 Wn.2d 606
exception to the limitations of RCW 42.23.030 allowing the Port Commission to vote [to] defend and indemnify its Port Commissioners." Br. of Appellant at 7. However, they argue that RCW 53.08.208 does not create an exception to the rule that a municipal officer cannot vote on a matter in which she is beneficially interested. Thus, Petitioners claim Commissioner Olsen violated that statute when she voted for her own defense and indemnification.
¶12 Petitioners' argument focuses on RCW 42.23.030 , which prohibits a municipal officer from making contracts on the municipality's behalf that give the officer a beneficial interest in the contract:
No municipal officer shall be beneficially interested, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, in whole or in part, or which may be made for the benefit of his or her office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein.
RCW 42.23.030 . The statute lists a number of exceptions to this rule that pertain to contracts for utility services, publication of legal notices required by law, and employment contracts for school bus drivers, other school district employees, and spouses of officials. See RCW 42.23.030 (1)-(11). The statute concludes by clarifying that:
A municipal officer may not vote in the authorization, approval, or ratification of a contract in which he or she is beneficially interested even though one of the exemptions allowing the awarding of such a contract applies. The interest of the municipal officer must be disclosed to the governing body of the municipality and noted in the official minutes or similar records of the municipality before the formation of the contract.
RCW 42.23.030 .
¶13 As the language of the statute makes clear, RCW 42.23.030 applies only to a vote to authorize a contract. The decision to indemnify does not involve a contract. Thus, Olsen's vote on indemnification is not governed by the
July 2005 In re Recall of Olsen 613
154 Wn.2d 606
statute. Turning to her vote to retain counsel, we cannot see how Olsen has a beneficial interest in a contract between the port and counsel. Rather, any "benefit" to Olsen resulted from the vote to indemnify herself and Gilbert, a vote which is authorized by RCW 53.08.208 and not subject to the restrictions of RCW 42.23.030 . Accordingly, there is an insufficient legal basis for this recall petition.
¶14 We affirm the trial court.
ALEXANDER , C.J, and C. JOHNSON , SANDERS , BRIDGE , CHAMBERS , OWENS , FAIRHURST , and J.M. JOHNSON , JJ ., concur . No. 74886-1. En Banc.]
Argued October 21, 2004. Decided June 30, 2005.
THE STATE OF WASHINGTON , Respondent , v. JAMES L. WOODS , Petitioner .
[1] Juveniles - Witnesses - Competency - Juveniles - Determination - Mental Ability To Understand Event - Evidence of Time of Occurrence - Necessity. A young child is not competent to testify in a judicial proceeding about a witnessed occurrence unless the child had the mental capacity at the time of the occurrence to receive an accurate impression of it. (See lead opinion of Ireland, J. Pro Tem., and dissenting opinion of Sanders, J.)
SANDERS , J., ALEXANDER , C.J., and C. JOHNSON and MADSEN , JJ., dissent by separate opinion; CHAMBERS and J.M. JOHNSON , JJ., did not participate in the disposition of this case.
Nature of Action: Prosecution for two counts of first degree child molestation.
Superior Court: The Superior Court for King County, No. 01-1-07143-9, Glenna Hall, J., on June 10, 2002, entered a judgment on a verdict of guilty.
Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 119 Wn. App. 1005 (2003).
614 State v. Woods June 2005
154 Wn.2d 613
Supreme Court: With an eight member court even split between four members voting to affirm and four members voting to reverse, leaving the court without a constitutional majority, the decision of the Court of Appeals stands .
Cheryl D. Aza (of Washington Appellate Project ), for petitioner.
Norm Maleng , Prosecuting Attorney, and Dennis J. McCurdy , Deputy, for respondent .
¶1 IRELAND, J.*- In this case, we are asked to determine whether the trial court abused its discretion in finding two children competent to testify against their father on charges of sexual molestation and whether the trial court abused its discretion in admitting the children's hearsay statements to their foster mother and the state investigative specialist. We hold that the trial court did not abuse its broad discretion, and we therefore affirm the Court of Appeals.
FACTS
¶2 Defendant James Woods is the father of two girls, HW and PW. HW was born on August 5, 1995, and PW was born on June 13, 1997. The girls lived with Woods and their mother from birth until 1998, when the mother left the home. Thereafter, the girls lived with Woods and began scheduled, supervised visits with the mother.
¶3 During a visit in March 2001, the mother noticed bruises on the girls. She called Child Protective Services (CPS) and said that she believed the girls had been abused and she did not want to return them to Woods. When
*Justice Faith Ireland is serving as justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a).
June 2005 State v. Woods 615
154 Wn.2d 613
interviewed by a CPS caseworker, each girl related instances of physical abuse by Woods. CPS took the girls into custody and placed them in a temporary foster home from March to June 2001. In June, the girls were taken to the foster home of Mike and Amanda Titus, where they remained throughout Woods's trial.
¶4 Shortly after arriving at the Titus home, the girls asked Amanda questions about whether physical abuse was acceptable, and they told Amanda about physical abuse inflicted by Woods. Amanda observed that the girls physically abused each other. When the girls made such statements or exhibited such behavior, Amanda noted it in a journal, as she had been trained to do in her foster-parenting class.
¶5 Amanda Titus also observed sexualized behavior of the girls: fondling of the family dog's genitals, insertion of fingers and bath toys in the vagina during a bath, lifting their shirts and stating "these are boobies." On at least three or four occasions, Amanda saw the girls rub their hands between dolls' legs while saying "hold still," "be a good girl," and "stop daddy." Report of Proceedings (RP) (Mar. 26, 2002) at 167-71; 5 RP at 25-28. Amanda also observed one girl rub the other girl's chest, who then said "stop daddy." RP (Apr. 3, 2002) at 31-32.
¶6 In July 2001, HW told Amanda that "Daddy Jim touched her like PJ." RP (Mar. 26, 2002) at 180. HW pointed to her vagina and said that "Daddy Jim touched me here, too." Id.
¶7 Shortly thereafter, PW was awake most of one night with nightmares. PW told Amanda that the nightmares were about her father and that she did not want to be hurt by her father anymore. After a discussion about "good" touches and "bad" touches, both girls said that Woods had touched them "bad."
¶8 In September 2001, PW described in detail acts of molestation by Woods. PW related that sometimes when HW was at school, PW was allowed to watch cartoons only
616 State v. Woods June 2005
154 Wn.2d 613
after she "did bad things first." RP (Mar. 26, 2002) at 198-99; RP (Apr. 3, 2002) at 98. PW stated that some of the molestation occurred when she was three years old. PW told Amanda that the abuse occurred in an "orange chair," on the bed, or on the floor.
¶9 In December 2001, HW also complained to Amanda about sexual abuse by Woods. HW described her bedroom where it took place, including the wall color and carpeting. HW said that much of the abuse took place in the "orange chair" or on the floor, which was colder than her floor at the Titus home. RP (Mar. 26, 2002) at 186. In addition, HW gave clear and descriptive details about the acts of abuse. Id . at 189. As she had done with PW, Amanda refrained from asking questions of HW about the sexual incidents and allowed HW to talk uninterrupted, while Amanda took notes.
¶10 The girls were interviewed by Christine Liebsack, a child interview specialist from the prosecutor's office. The girls underwent a medical examination, which was inconclusive regarding sexual abuse.
¶11 The State charged Woods with two counts of first degree child molestation in violation of RCW 9A.44.083 . Clerk's Papers at 1-2. The information alleged the incidents involving PW occurred "during a period of time intervening between June 13, 1997 through July 9, 2001," and the incidents involving HW occurred "during a period of time intervening between August 5, 1995 through July 9, 2001." Id. In other words, the charging document used the girls' dates of birth through July 9, 2001.
¶12 At a three day pretrial hearing, the court found the girls competent to testify. PW was then four years old and HW was six years old. The court also ruled that Amanda Titus and Christine Liebsack would be allowed to testify to the girls' out of court statements.
¶13 The jury convicted Woods on both counts. The court imposed a standard range sentence. Woods appealed, and Division One of the Court of Appeals affirmed in an unpub
June 2005 State v. Woods 617
154 Wn.2d 613
lished opinion. State v. Woods , noted at 119 Wn. App. 1005, 2003 WL 22683011, 2003 Wash. App. LEXIS 2610.
ISSUES
1. Whether the trial court abused its discretion in determining that the victims were competent to testify?
2. Whether the trial court abused its discretion in admitting the girls' out of court statements under the child hearsay statute?
STANDARD OF REVIEW
¶14 The determination of competency is within the sound discretion of the trial court, and it will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion. In re Dependency of A.E.P. , 135 Wn.2d 208 , 223, 956 P.2d 297 (1998); State v. Allen , 70 Wn.2d 690 , 692, 424 P.2d 1021 (1967). "There is probably no area of law where it is more necessary to place great reliance on the trial court's judgment than in assessing the competency of a child witness." State v. Borland , 57 Wn. App. 7 , 11, 786 P.2d 810 (1990). The competency of a youthful witness is not easily reflected in a written record, and we must rely on the trial judge who sees the witness, notices the witness's manner, and considers his or her capacity and intelligence. Allen , 70 Wn.2d at 692 ; State v. Przybylski , 48 Wn. App. 661 , 665, 739 P.2d 1203 (1987).
¶15 On appeal, we may examine the entire record in reviewing the competency determination. State v. Avila , 78 Wn. App. 731 , 737, 899 P.2d 11 (1995).
ANALYSIS
Did the trial court abuse its discretion in determining that the victims were competent to testify?
¶16 The age of a child is not determinative of a child's competency to testify. State v. Pham , 75 Wn. App. 626 , 630,
618 State v. Woods June 2005
154 Wn.2d 613
879 P.2d 321 (1994). By statute, "persons . . . who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly" are not competent to testify. RCW 5.60.050 (2).
[1]¶17 A young child is competent to testify if she (1) understands the obligation to speak the truth on the witness stand; (2) has the mental capacity, at the time of the occurrence concerning which she is to testify, to receive an accurate impression of it; (3) has a memory sufficient to retain an independent recollection of the occurrence; (4) has the capacity to express in words her memory of the occurrence; and (5) has the capacity to understand simple questions about the occurrence. Allen , 70 Wn.2d at 692 .
¶18 In this case, Woods contends that the trial court erred in finding that the second Allen factor was satisfied. Woods argues that the trial court arbitrarily picked an abuse date of March 2001 and then used that date in analyzing the second factor, whether the girls had mental capacity at the time of the abuse. According to Woods, this was error because the record "failed to demonstrate when any alleged abuse might have occurred, making it impossible for the trial court to have found the girls had the mental capacity at the time of the alleged event to accurately perceive what happened to them." Pet. for Review at 6.
¶19 In response to this argument, Division One held that although the time period of abuse used in the charging document was broad, "the record established a relatively narrow period of time in which the alleged abuse could have occurred." Woods *1, 2003 WL 22683011, at *1, 2003 Wash. App. LEXIS 2610. The court pointed out that the evidence showed the abuse occurred between PW's third birthday and the time that the girls were removed from Woods's home. The children were able to provide accurate recollections of events, places, and people from that time period. Thus, the Court of Appeals held that the trial court did not abuse its discretion in finding that the girls had the mental
June 2005 State v. Woods 619
154 Wn.2d 613
capacity at the time of the abuse to receive an accurate impression of it.
¶20 Woods contends that the Court of Appeals decision is at odds with In re Dependency of A.E.P. , 135 Wn.2d 208 , 956 P.2d 297 (1998). According to Woods, A.E.P. requires that the trial court must be able to affix a particular date to the abuse before it can make a determination as to the capacity of the child at the time of the abuse. However, A.E.P. does not support that rule. While A.E.P. did state that the trial court must have a "time period" during which the abuse occurred, A.E.P. does not require a young child to provide a specific date of the abuse in order for the court to make a determination of competency. Rather, A.E.P. reaffirms that a child's ability to receive just impressions at the time of the abuse may be demonstrated by the child's ability to recall events or circumstances occurring before the abuse or during the time period of the abuse. A.E.P. , 135 Wn.2d at 225 .
¶21 In A.E.P. , a couple who baby-sat the five year old victim claimed to have observed sexualized behavior by the child. In eliciting information from the child, the couple used "completely closed [and] leading questions." A.E.P. , 135 Wn.2d at 213 . When interviewed by CPS, the child alleged that she had been inappropriately touched by both her mother and father and also by the babysitters' son, C.M. During separate interviews with an examining physician, a police detective, and a psychologist, the child denied that her father had touched her and alleged that it was C.M. who touched her privates. A.E.P. , 135 Wn.2d at 218 -19. Other children also testified that C.M. would inappropriately touch and fondle kids on the school bus. Nevertheless, the trial court found that A.E.P. was competent to testify and concluded that A.E.P. had been abused by her father. A.E.P. , 135 Wn.2d at 221 .
¶22 On appeal, this court reversed, holding that A.E.P.'s competence to testify was not properly established. The record revealed that A.E.P. was asked only one time when the abuse occurred, and she "was unable to fix any particu
620 State v. Woods June 2005
154 Wn.2d 613
lar point in time when the alleged touching occurred." A.E.P. , 135 Wn.2d at 224 . Moreover, this court noted that there "is simply no information in the record which helps to narrow the time window of when the event occurred." A.E.P. , 135 Wn.2d at 225 . We explained that if A.E.P. had been able to relate impressions of events which occurred contemporaneously with the alleged abuse, the court could have inferred A.E.P.'s competency to testify about the abuse incidents as well. A.E.P. , 135 Wn.2d at 225 (citing Przybylski , 48 Wn. App. at 665 ).
¶23 Unlike the child in A.E.P. , the children in this case were able to provide details of contemporaneous events and circumstances which demonstrated that they had the mental capacity to receive accurate impressions. Whereas the child in A.E.P. gave a confused answer regarding when the abuse occurred and even recanted her allegations against her father while continuing to assert allegations against an uncharged person, the children in this case gave clear and consistent answers.
¶24 PW testified to the living situation at Woods's apartment: she slept in the same bed as her sister, and Woods slept in a different room. PW said the television was in the living room, along with a couch and chairs. PW stated some of the abuse occurred in the orange chair and sometimes when HW was at school. PW stated that she recalled that some of the abuse occurred when she was three years old (she turned three in June 2000). In addition, PW gave clear, specific, consistent details concerning the acts of abuse. Thus, the evidence not only demonstrated PW's capacity to perceive but also established a relatively narrow time frame during which some molestation occurred: the nine-month period between PW's third birthday in June 2000 and her removal from Woods's home in March 2001.
¶25 HW's testimony also demonstrated that at the time of the abuse, she had the mental capacity to receive accurate impressions of events. Like her younger sister, HW recalled being abused in "the orange chair." She remembered that after her mother moved out, they lived with
June 2005 State v. Woods 621
154 Wn.2d 613
Woods and she and her sister would take the bus to see their mother. HW described her bedroom at Woods's apartment, including the color of the walls and the carpeting. HW even recalled her living situation prior to the time her mother left the home and prior to the abuse. If the child demonstrates she had the ability to accurately perceive events prior to the abuse, the court can infer that the ability also existed at the time of the abuse. Pham , 75 Wn. App. at 630 .
¶26 PW's and HW's testimony is far from the confused and conflicting statements made by the child in A.E.P. Both PW and HW accurately and consistently recounted events and places contemporaneous with the molestation or occurring before the molestation.
¶27 Woods argues that PW's testimony was inconsistent. At one point PW testified that her bedroom at her father's apartment was upstairs even though the apartment was a single story unit. However, an inconsistency in the child's testimony goes to the child's credibility and not to admissibility. State v. Woodward , 32 Wn. App. 204 , 646 P.2d 135 (1982) (six year old child was inconsistent on several details but was unwavering in her testimony concerning the defendant's sexual intercourse with her). Furthermore, we note that overall the testimony of PW and HW was quite consistent concerning the acts of sexual molestation.
¶28 Woods focuses on the trial court's statement that it determined that the children were competent as of March 1, 2001. Woods would have us interpret this comment as indicating that the trial court found the children competent on that date alone. This is an unreasonable interpretation of the court's comment, particularly in the context of a three day hearing during which there was testimony about multiple acts of molestation over a period of time. At the conclusion of the hearing, the court determined that the children had the ability to accurately perceive the events that occurred. Our cases have established that the trial court may infer the child's ability to accurately perceive events from the child witness's "overall demeanor and the
622 State v. Woods June 2005
154 Wn.2d 613
manner of her answers," thus satisfying the second Allen factor. State v. Sardinia , 42 Wn. App. 533 , 537, 713 P.2d 122 (1986).
¶29 For example, in Sardinia , the court held that the second Allen factor was satisfied even though the child's testimony did not clearly reveal her mental capacity at the time of the occurrence. Sardinia , 42 Wn. App. at 537 . See also State v. Bailey , 52 Wn. App. 42 , 757 P.2d 541 (1988) (trial court's decision admitting testimony by victim aged three at time of abuse not abuse of discretion), aff'd , 114 Wn.2d 340 , 787 P.2d 1378 (1990); State v. Hunt , 48 Wn. App. 840 , 741 P.2d 566 (1987) (upholding trial court decision allowing testimony by a victim who was four years old when testifying to abuse that occurred when she was between two and one-half and three and one-half years of age).
¶30 The purpose of the second Allen factor is to ensure that the child has the mental capacity to perceive accurately the events to which the child is testifying. In this case, the trial court observed both PW's and HW's overall demeanor and manner of answering. The trial court found that the facts elicited at the competency hearing narrowed the time of the abuse to a period of approximately nine months. The trial court heard the girls describe events and places contemporaneous with this nine month period. Our review of the record confirms that the trial court properly exercised its discretion in finding the second Allen factor was satisfied. The defendant bears the burden of establishing that the trial court abused its broad discretion in finding PW and HW competent. Defendant has failed to do this.
Did the trial court abuse its discretion in admitting the girls' out of court statements under the child hearsay statute?
¶31 Defendant Woods also contends the trial court abused its discretion in allowing the foster mother, Amanda Titus, and the child interview specialist, Christine Liebsack, to testify to the girls' out of court statements.
June 2005 State v. Woods 623
154 Wn.2d 613
¶32 The child victim hearsay statute provides for the admission of hearsay statements when the declarants are victims of sexual abuse under the age of 10. RCW 9A.44.120 . Under the statute, the hearsay is admissible if:
(1) The court finds . . . that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
RCW 9A.44.120 . "A finding that statements are within the statutory child abuse exception should not be reversed absent a showing of manifest abuse of discretion." State v. Jackson, 42 Wn. App. 393 , 396, 711 P.2d 1086 (1985).
[1]¶33 In this case, the children testified, so the issue is whether their statements were sufficiently reliable.«1»Reliability is analyzed according to the nine Ryan factors. State v. Ryan , 103 Wn.2d 165 , 691 P.2d 197 (1984). The nine factors are (1) whether the child had an apparent motive to lie, (2) the child's general character, (3) whether more than one person heard the statements, (4) the spontaneity of the statements, (5) whether trustworthiness was suggested by the timing of the statement and the relationship between the child and the witness, (6) whether the statements contained express assertions of past fact, (7) whether the child's lack of knowledge could be established through cross-examination, (8) the remoteness of the possibility of the child's recollection being faulty, and (9) whether the surrounding circumstances suggested the child misrepresented the defendant's involvement. Ryan , 103 Wn.2d at 175 -76. Not every factor need be satisfied; it is enough that
«1»Defendant Woods also claims that the girls' hearsay statements should not have been admitted because they were not corroborated. The statute requires corroboration only when the children do not testify. Because we affirm the trial court's decision regarding the girls' competency to testify, corroboration was unnecessary and we do not reach the issue.
624 State v. Woods June 2005
154 Wn.2d 613
the factors are "substantially met." State v. Swan , 114 Wn.2d 613 , 652, 790 P.2d 610 (1990).
¶34 The parties do not dispute that factors one through five have been satisfied. However, Woods claims the trial court erred regarding factors six through nine. As to factor seven, Woods contends that the trial court erred in failing to discuss this factor. Factor seven applies in cases where the child declarant is unavailable to testify. Here, the child declarants testified, so the trial court was correct in not evaluating this factor.
¶35 As to factor eight, Woods contends the trial court erroneously used March 2001 as the date of the abuse even though the specific date of the abuse had never been established. This is essentially the same argument made by the defendant in State v. Young , 62 Wn. App. 895 , 802 P.2d 829, 817 P.2d 412 (1991). There, Young argued that it was impossible to properly evaluate factor eight and determine whether the child's recollection was faulty because it was unclear when the incidents occurred. The court found the argument unpersuasive because "it incorrectly equates knowledge of when an incident occurred with reliability of a child's recollection." Young , 62 Wn. App. at 902 . Regardless of when the incident took place, the jury evaluates a child's recollection by observing the manner in which the child recounts the events, the child's memory regarding other events (including current events), and the child's demeanor. Young , 62 Wn. App. at 902 . In Young, the record indicated that the child had a normal memory and ability to perceive, which satisfied factor eight.
¶36 Woods's argument regarding factor eight is similarly ineffective here. The trial court considered whether the girls' recollections were faulty and decided that they were not. Testimony from the foster mother established that the girls had a normal memory and ability to perceive. Woods does not point to evidence demonstrating otherwise, nor is such evidence found in our review of the record. The trial court did not abuse its discretion in finding factor eight satisfied.
June 2005 State v. Woods 625
154 Wn.2d 613
¶37 Finally, as to factor nine, the trial court did not specifically refer to this factor. The trial court did discuss other circumstances that might affect reliability, such as whether the children may have talked with each other about the allegations and been influenced by each other. However, the court found no such evidence. The trial court did not abuse its discretion in finding this factor satisfied.
¶38 Not every Ryan factor must be satisfied in order for the trial court to find a child's out of court statements reliable. Swan , 114 Wn.2d at 652 . In this case, at least eight of the nine factors are satisfied. The trial court did not abuse its discretion in finding the Ryan factors "substantially" established the reliability of the children's out of court statements. The statements were properly admitted under the child victim hearsay statute.
CONCLUSION
¶39 The trial court is given broad discretion in determining the competency of witnesses to testify and in determining the reliability of a child victim's hearsay. There was ample evidence to support the trial court's findings on both issues. The decision of the Court of Appeals is affirmed.
BRIDGE, OWENS, and FAIRHURST , JJ ., concur .
¶40 SANDERS, J. (dissenting) - James Woods, the father, was convicted of two counts of first degree child molestation of his daughters, HW and PW, and sentenced to 95 months in the penitentiary. Clerk's Papers at 67. The convictions rest wholly on the uncorroborated testimony of these small children and hearsay statements attributed to them. However, their competency to testify to events prior to March 2001 was never established. An innocent man may be imprisoned as a result.
[1]¶41 For a child witness to be competent to testify, it is essential that the trial court find the child had the requisite mental capacity "at the time of the occurrence
626 State v. Woods June 2005
154 Wn.2d 613
concerning which he is to testify." State v. Allen , 70 Wn.2d 690 , 692, 424 P.2d 1021 (1967). Here the trial court found the children were competent as of March 2001 ("But she clearly had the ability in March of '01 to have accurate impressions of events that were occurring to her."). Report of Proceedings (RP) (Mar. 27, 2002) at 353-54. Yet there is a paucity of evidence that the charged events in fact took place in March 2001, the last month they were in their father's custody. The charging document alleged that the acts took place sometime between the girls' birth and July 9, 2001 - several months after they left their father's custody, i.e., the charging period included literally years before March 2001.
¶42 The lead opinion poses the question as "[w]hether the trial court abused its discretion in determining that the victims were competent to testify?" lead op. at 617, and answers no. And I agree, provided we qualify our answer that the trial court determined, in its discretion, that the children were competent to testify regarding events which took place in March 2001 and thereafter, not before .
¶43 The problem is nothing in this record, and I mean nothing, establishes that the alleged abuse took place in March 2001 or thereafter.
¶44 The lead opinion claims the evidence "established a relatively narrow time frame during which some molestation occurred: the nine-month period between PW's third birthday in June 2000 and her removal from Woods's home in March 2001." Lead op. at 620. But even assuming this is correct, and I think it is a stretch on this record to suppose it is,«2»we must observe that eight of the nine months of the lead opinion's time frame wherein the abuse could have occurred are before the month in which the trial court concluded the girls could competently testify about events which occurred in that month and after.
«2»Both children lived in the same location prior to March 2001 (PW all her life and HW most of her life). Therefore memories about their living situation is not date specific. Moreover alleged memories about events or physical conditions were not verified from an independent source, e.g., did an "orange chair" exist and, if so, when?
June 2005 State v. Woods 627
154 Wn.2d 613
¶45 The lead opinion attempts to bridge the fanciful gap by claiming it "is an unreasonable interpretation of the court's comment," lead op. at 621, to limit the child's competence to testify about events to March 2001 and thereafter. I disagree. That is, after all, exactly what the trial court said: "She [HW] appears to have sufficient memory to retain an independent recollection of the events, going back as far as March of 2001 ." RP (Mar. 27, 2002) at 354 (emphasis added).
¶46 If the object of a trial is not necessarily to procure a conviction but rather determine the truth through competent evidence, care must be taken to exclude incompetent testimony. In March 2001 HW was five years old and PW was three years old. Convictions based upon testimony from uncorroborated accounts of small children can be sustained provided that the trial court determines, amongst other things, without abusing its discretion, that the child had the mental capacity at the time of the occurrence to receive an accurate impression of it. Here, however, there is simply no basis for that conclusion since the time of the occurrence was not established with reasonable probability during the period that either child had the mental capacity to receive an accurate impression.
¶47 Thus the case against the father falls like a house of cards. Moreover since the children could not competently testify to events occurring within the relevant time frame, they were "unavailable" as witnesses. This requires corroboration, of which there was none, as a prerequisite to admit child hearsay.
¶48 In a substantially similar situation we held:
Because A.E.P. was incompetent to testify, she was unavailable as a witness. Her hearsay statements regarding sexual abuse lacked corroboration and cannot be admitted under RCW 9A.44.120 . We reverse the finding of abuse which was entered in the dependency hearing.
In re Dependency of A.E.P. , 135 Wn.2d 208 , 234, 956 P.2d 297 (1998).
628 State v. Woods June 2005
154 Wn.2d 613
¶49 A similar result should follow here.
¶50 For these reasons I would reverse the convictions.
ALEXANDER , C.J., and C. JOHNSON and MADSEN , JJ ., concur with SANDERS , J.