Opinion
No. 31011-2-II
Filed: May 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-8-02795-1. Judgment or order under review. Date filed: 09/24/2003. Judge signing: Hon. Gary Steiner.
Counsel for Appellant(s), Richard Alan Hansen, Allen Hansen Maybrown PS, 600 University St Ste 3020, Seattle, WA 98101-4105.
Counsel for Respondent(s), Theresa Diane Clarkson, Prosecutor's Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
Robert (Bo) Francis Yackley appeals his juvenile conviction of first degree rape of a child. We affirm.
FACTS I. The Rape
Andrea and Michael Bradford have one child, C.B., who was born on November 3, 1997. In 1999, the Bradfords moved into a house in Puyallup, Washington, across the street from Yackley and his family. The Bradfords began having an 'estranged' relationship, although they remained living in the same house and maintained a '[w]orking relationship.' Report of Proceedings (RP) (Jul. 10, 2003) at 220, 195. In March 2002, Andrea moved to a separate residence in Puyallup.
For simplicity we refer to the Bradfords by their first names.
While the Bradfords lived together and after their separation, Michael worked five days a week from 8, 9 or 10 a.m. to between 6 and 9 p.m. When Andrea began attending college classes and working three to four evenings a week, the Bradfords hired different baby-sitters to care for C.B. while they were gone. Andrea was with C.B. during the day, and the baby-sitters would arrive at the Bradford residence in the late afternoon and remain until Michael returned home in the evening.
In the summer of 2001, when C.B. was three years old, Andrea asked Yackley to baby-sit C.B. Yackley was 12 years old. Andrea had frequently spent time with Yackley's mother, Tamara Kruger, and had obtained his name from a list of teenagers recommended as baby-sitters by their neighborhood association. In addition, Yackley baby-sat for his own brother and sister, and Andrea heard that he had taken a babysitting class at the YMCA. When Yackley baby-sat for C.B., Andrea normally gave him instructions for feeding C.B. and told him when Michael was expected to return that evening.
In the fall of 2001, C.B. told Andrea that he no longer wanted Yackley to baby-sit him. When she asked why, C.B. initially stated that he could not tell her. Eventually C.B. stated, 'Bo does something that I don't like. He plays a game that I don't like.' RP (Jul. 10, 2003) at 117-18. Andrea then asked C.B. if it was a game like hide-and-seek and C.B. replied, 'something like that.' RP (Jul. 10, 2003) at 118. Andrea testified that at the time, she did not understand what 'game' C.B. was referring to and that she assumed it was hide-and-seek because it was 'the only game [she] could think of that would scare him.' RP (Jul. 10, 2003) at 120. Andrea spoke with Kruger about her concerns, and Kruger assured her that Yackley would not scare C.B. again.
Yackley continued to intermittently baby-sit C.B. On August 10, 2002, C.B. again told Andrea that he no longer wanted Yackley to baby-sit him. RP at 124. When pressed, C.B. told his mother, '[Yackley] does things he shouldn't do sometimes.' RP (Jul. 10, 2003) at 124. On the evening of August 17, 2002, Andrea went to check on C.B. while he was sleeping and noticed that he looked very upset. With a shaky voice, he asked, 'Mommy, how do you stop thinking about something that you don't want to think about any more?' RP (Jul. 10, 2003) at 126. C.B. then began sobbing and told Andrea that Yackley had pulled his pants down and put his penis into C.B.'s 'bottom.' RP (Jul. 10, 2003) at 127. He continued, 'It . . . hurt, Mommy, it hurt bad.' RP (Jul. 10, 2003) at 127.
Andrea's boyfriend, Aaron Hall, testified that he was at Andrea's residence on the night of C.B.'s disclosure. Hall stated that he went into C.B.'s bedroom, observed him crying, and heard him ask Andrea how he could stop thinking about what had happened. However, Hall did not hear C.B. tell his mother that Yackley had raped him. Hall further testified that C.B. was crying 'to the point where . . . he had to gasp for air.' RP (Jul. 10, 2003) at 233.
Later that evening, Andrea called Michael and informed him of C.B.'s disclosure. The following day, Andrea brought C.B. to Michael's house. Michael told C.B. that he knew what had happened, and C.B. began 'crying inconsolably.' RP (Jul. 10, 2003) at 211. C.B. then told his father that Yackley had put his penis into his 'bottom' and that his underpants were damp when he put them back on. RP (Jul. 10, 2003) at 212. C.B. indicated that Yackley had raped him multiple times, both in his bedroom and in the upstairs of the house. C.B. further stated that he would cry when Yackley raped him and that Yackley would put his hand over C.B.'s mouth. C.B. asked his father, 'why, why are people mean . . . why do people hurt one another[?]' RP (Jul. 10, 2003) at 212. Michael asked C.B. whether any other person had done this to him and C.B. told his father that no one else had.
Andrea and Michael then contacted the police. Andrea also took C.B. in for a medical examination at Mary Bridge Children's Hospital and Health Center in Tacoma, Washington. Joanne M. Underhill, ARNP conducted the examination. Prior to the examination, Andrea told Underhill that C.B. was extremely shy and that when he did not want to answer a question or did not know the answer, he might 'bark' the answer. Ex. 7 at 1. In her report, Underhill indicated that C.B. had a normal anogential exam but that a normal exam does not exclude the possibility of abuse. Underhill also questioned C.B. about the rape.
Joanne M. Underhill's name is now Joanne M. Mettler.
C.B. told Underhill that 'somebody' did something that he did not like. Ex. 7 at 2; see also RP (Jul. 11, 2003) at 255. Underhill asked C.B. what happened and he replied, 'just something bad, really bad, not supposed to do.' Ex. 7 at 2; see also RP (Jul. 11, 2003) at 256. Underhill then asked C.B. who did something bad to him and C.B. told her that it was Yackley. C.B. then stated that Yackley zipped down both their pants and 'woof, woof, is what he did next.' Ex. 7 at 2; see also RP (Jul. 11, 2003) at 257. Underhill again asked C.B. what Yackley did when he unzipped their pants and C.B. told her that Yackley '[s]tuck his penis in my butt.' Ex. 7 at 2; see also RP (Jul. 11, 2003) at 257. C.B. further stated, '[s]o you know, my mom and dad know. I told them what happened and that one time I couldn't stop thinking about it and then I could get up the next morning and not think about it.' Ex. 7 at 2; see also RP (Jul. 11, 2003) at 257-58.
C.B. was also interviewed by Kim Shouse, a child interviewer with the Pierce County Prosecutor's Office, and by Lawrence W. Daly, a defense investigator. Shouse asked C.B. whether anyone had done something to him that he did not like, and C.B. replied, 'I'm gonna be woofing you this question. Okay. Woof, woof, woof, woof, woof, woof, woof, woof, woof, woof.' Ex. 3 at 6; see also RP (Jul. 14, 2003) at 311. Shouse again asked C.B. if a bad thing had happened to him and C.B. stated, '[w]oof, woof, woof, woof . . . [d]o, do, do, do, do.' Ex. 3 at 7; see also RP (Jul. 14, 2003) at 292. C.B. further stated that his barking 'telled [sic] . . . what bad happened.' RP (Jul 14, 2003) at 312. Shouse then asked C.B. who did the bad thing and C.B. told her that it was Yackley but that he could not 'remember' what Yackley had done to him. Ex. 3 at 7; see also RP (Jul. 14, 2003) at 291.
C.B. indicated that the bad thing occurred at his father's house, both in his bedroom and upstairs while his parents were away at work. C.B. further stated that when Yackley did the thing to him, he said 'ouch.' Ex. 3 at 9. When asked where the pain was, C.B. crouched down and pointed to his buttocks. C.B. repeatedly told Shouse that he did not know what Yackley had done to him, but C.B. did state that when he turned his head back to see what Yackley was doing, Yackley pushed his head away.
C.B. disclosed to Daly that Yackley had 'stuck his penis in [his] butt.' Ex. 6 at 5; see also RP (Jul. 14, 2003) at 329. C.B. stated that it 'hurt bad' and that it had occurred in his bedroom and upstairs in the computer room while Yackley was baby-sitting him. Ex. 6 at 6; see also RP (Jul. 14, 2003) at 329. C.B. explained that he was leaning against his bed while Yackley was behind him. C.B. further stated that he tried to turn his head toward Yackley but Yackley pushed it away. C.B. cried when Yackley was finished.
In January 2003, Yackley was charged by amended information with first degree rape of a child for raping C.B. between August 1, 2001, and August 17, 2002.
Under RCW 9A.44.073, a person is guilty of first degree rape of a child when he or she has sexual intercourse with another person who is less than twelve years old and is not married to the perpetrator and when he or she is at least twenty-four months older than the victim. RCW 9A.44.073(1).
II. Pre-Trial Motions
Prior to trial, the court granted Yackley's request that the court order a psychiatric evaluation of C.B. by Holly N. Galbreath, Ph.D., which the court granted. Dr. Galbreath met with C.B., who was then five years old, in June 2003.
In her report, Dr. Galbreath found that C.B. had average to above average cognitive abilities and was able to understand simply stated questions and attend to and remember information given to him. Dr. Galbreath also found that C.B. had a basic understanding of telling the truth and lying; when she asked C.B. whether he understood the difference between the truth and a lie, he stated, 'always tell the truth; it's bad to lie.' Ex. 1 at 7. Dr. Galbreath then asked C.B. to indicate whether a series of statements were true or a lie, and C.B. responded appropriately. In addition, Andrea informed Dr. Galbreath that C.B. did not usually lie. Dr. Galbreath concluded that C.B. had the capacity to truthfully testify. But she noted, '[C.B.], like many five years [sic] olds, has a well-developed imagination and actively weaves reality and fantasy into his understanding of the world' and, consequently, it would be 'difficult to ascertain how much of [C.B.'s] testimony at this time is based on true factual information and how much has been altered by intervening events or information.' Ex. 1 at 7.
Dr. Galbreath also found that C.B. had a history of shyness and difficulty in social interactions. She indicated that his 'barking' response to certain questions was not a sign of psychopathology but rather, an 'imaginative . . . attempt by a preschooler to deal with uncomfortable situations.' Ex. 1 at 7. Dr. Galbreath further noted that C.B. was able to sit and communicate with her for extended periods of time but that, like many young children, C.B. could become distraught or refuse to talk when questioned about the abuse by someone unfamiliar. Dr. Galbreath concluded that C.B. had adequate emotional and behavioral capacity to attend, sit quietly, and meaningfully communicate in an age-appropriate manner.
The court then held a hearing to determine whether C.B. was competent to testify. After C.B. was sworn in, the court asked him if he understood what he had just done, and C.B. stated that he did. C.B. then indicated that he did not understand what it meant to 'swear to tell the truth,' but he promised to tell the truth while testifying. RP (Jul 9, 2003) at 26. The court then made a series of statements, and C.B. appropriately identified whether each statement was true or a lie. C.B. also stated that he thought it was a '[b]ad thing' to tell a lie and that he would 'get in trouble' if he told a lie in court. RP (Jul. 9, 2003) at 27-28.
During questioning, C.B. was able to identify his age, his month of birth, his current and previous preschool classes and teachers, and his school friends. In addition, C.B. testified about how his father had moved to Mt. Rainier but that his mother lived 'down' from the mountain. RP (Jul. 9, 2003) at 31. C.B. discussed how both his parents shared custody and where he slept at each parent's home. C.B. also testified that when he was between the ages of one and four, his parents lived together, and he discussed who some of his neighborhood friends were at that time. In addition, C.B. testified about different holidays and what he had done to celebrate them.
At the time of trial, Michael was employed at the Paradise Inn on Mt. Rainier.
C.B. also testified that he had baby-sitters care for him and he identified Yackley as one of his sitters. C.B. could not remember the names of his other sitters, but he correctly stated that he did not have a baby-sitter named 'Tyler' on cross-examination. RP (Jul. 9, 2003) at 46. C.B. stated that he did not have fun when Yackley baby-sat him.
The court concluded that, based on C.B.'s testimony and Dr. Galbreath's report, C.B. was competent to testify at trial. In addition, the court admitted, under RCW 9A.44.120, C.B.'s hearsay statements to his mother and father, and it denied Yackley's motion to admit evidence of a favorable polygraph examination.
The State also moved to admit C.B.'s hearsay statements to Hill, Underhill, and Shouse, but Yackley specifically only addresses the admission of C.B.'s out-of-court statements to Andrea and Michael. However, we address the admissibility of each of C.B.'s hearsay statements because at oral argument, Yackley indicated his challenge to all statements.
III. Trial
At trial, C.B. testified about the rape, stating, '[Yackley] stuck his penis in my butt' when 'he babysitted [sic] me.' RP (Jul. 9, 2003) at 62. When asked, C.B. correctly identified his penis and his buttocks. C.B. testified that Yackley had raped him more than once, both in his bedroom and upstairs in the computer room when no one was home except his cats and pretend 'animals.' RP (Jul. 9, 2003) at 63-64. He stated that it hurt 'a lot' when Yackley penetrated him and that when he attempted to turn his head to face Yackley, Yackley pushed his head away. RP (Jul. 9, 2003) at 65.
C.B. further testified that Yackley penetrated him while he was standing against his bed and Yackley was kneeling down on the floor and while he was sitting in a chair upstairs playing computer games and Yackley was sitting in the chair behind him. He stated that Yackley had pulled his pants down but left his shirt on and that when he was in the computer room, a 'cow' was watching. RP (Jul. 9, 2003) at 69. When questioned as to how Yackley had penetrated him while he was sitting in the chair, C.B. replied that he did not know. C.B. stated that after Yackley had raped him in the computer room, he remembered running down the stairs crying. He testified that he waited awhile and then told his parents about the abuse '[o]ne time so [they] knew it happened.' RP (Jul. 9, 2003) at 76. C.B. further testified that he had told his parents and his other interviewers the truth about the rapes and that he knew what to say in court because '[he] was the one that it happened to.' RP (Jul. 9, 2003) at 103.
The trial court found Yackley guilty as charged.
ANALYSIS I. Competency to Testify at Trial
Yackley first contends that the trial court erred in finding that C.B. was competent to testify at trial. We disagree.
A child's competency to testify at trial is determined within the framework of RCW 5.60.050. State v. C.J., 148 Wn.2d 672, 682, 63 P.3d 765 (2003). Under that statute, the following persons are incompetent to testify at trial:
(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
A child is competent to testify at trial if that child has (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence to receive an accurate impression of the matter about which the witness is to testify; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words the witness's memory of the occurrence; and (5) the capacity to understand simple questions about it. C.J., 148 Wn.2d at 682; State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967). We review a trial court's determination of child competency for an abuse of discretion. C.J., 148 Wn.2d at 682.
Yackley argues that we may review the trial court's determination de novo, citing Jenkins v. Snohomish County Pub. Util. Dist. No. 1, 105 Wn.2d 99, 102, 713 P.2d 79 (1986). But that case simply states that a reviewing court may review a competency determination de novo where the trial court made its decision based on documentary evidence in the record rather than on personal observation of the witness. Jenkins, 105 Wn.2d at 102. Here, while the trial court considered Dr. Galbreath's report in determining C.B.'s competency to testify, it based its determination primarily on C.B.'s in-court testimony at the competency hearing.
First, Yackley argues that C.B. did not understand the obligation to speak the truth while testifying because C.B. testified that he did not understand what it meant 'to swear to tell the truth' or why it was 'better to tell the truth' than to lie. Br. of Appellant at 27. Nevertheless, C.B. demonstrated that he understood the difference between the truth and a lie, he stated that it was '[b]ad' to lie and that he would get in 'trouble' if he did, and he promised to tell the truth while testifying. RP (Jul. 9, 2003) at 27. Thus, while C.B. was unable to define what it means to 'swear' to tell the truth, he clearly demonstrated an understanding of the obligation to speak the truth, which the trial court found was the 'substance and spirit of the requirement.' RP (Jul. 9, 2003) at 58.
Next, Yackley asserts that C.B. lacked sufficient mental capacity to receive an accurate impression of the rape. He argues that C.B. was unable to distinguish factual memories from imaginary ones, noting that Dr. Galbreath stated in her report that C.B. had a 'well-developed imagination and actively weave[d] reality and fantasy into his understanding of the world,' that C.B. had at times pretended to be a dog during interviews, and that C.B. testified that a 'cow' was watching when Yackley raped him. Br. of Appellant at 28. In addition, Yackley argues that C.B. was unable to provide basic biographical information about the time period in question. These arguments fail.
Yackley also asserts that C.B. provided a 'fanciful' explanation when asked where his parents currently lived. Br. of Appellant at 29. However, Yackley fails to explain why C.B.'s answer was 'fanciful;' to the contrary, C.B. stated that his father lived 'up Mount Rainier,' at a time that Michael was employed by the Paradise Inn on Mt. Rainier, and that his mother lived 'down' the mountain, at a time when Andrea lived in Puyallup. RP (Jul. 9, 2003) at 31. Furthermore, evidence about where C.B. parents lived at the time of trial in 2003 was irrelevant as to C.B.'s mental capacity at the time of the rape.
Clearly, C.B., a three- to four-year-old child at the time of the abuse and a five-year-old child at the time of trial, had an active imagination. But he was able to detail real events occurring before, during, and after the abuse. Although C.B. testified that a 'cow' was watching while Yackley was raping him, he further testified that no person was home during the incident and that the animals 'watching' were not real. And the record shows that C.B. barked like a dog during some of his interviews because he was uncomfortable talking about the abuse with strangers.
Here, C.B. recalled holidays that occurred during the time of the rape. He remembered dressing up as a green dragon and trick-or-treating for Halloween, having a turkey on Thanksgiving, and decorating the Christmas tree for Christmas. C.B. also testified that he went to preschool and was in the 'green' class with 'Teacher Wilma' the previous year. RP (Jul. 9, 2003) at 30. C.B. recalled that his friends at preschool were 'Brandon' and 'Austin.' RP (Jul. 9, 2003) at 31.
In addition, C.B. remembered that, between the ages of one and four, his parents lived together. He recalled living in a two-story house and that he had cats. C.B. also remembered having baby-sitters care for him, and although he could not recite the names of his other sitters, he identified Yackley and he was able to recall who his sitters were when names were given to him. This evidence amply supports the trial court's finding that C.B. had sufficient mental capacity to receive an accurate impression of the rape.
Third, Yackley contends that C.B. lacked sufficient memory to retain an independent recollection of the rape. He argues that C.B. was unable to describe the incident to Shouse and that C.B. provided no specific details about the rape at trial. Yackley also argues that that C.B. described an 'impossible' sexual position when he testified that Yackley penetrated him from behind while 'he was sitting in a chair and . . . [Yackley] was sitting in a chair behind him'. Br. of Appellant at 34. But Yackley has misread the record; C.B. indicated that Yackley put his penis inside his anus while Yackley was sitting in the same chair behind him. And, while C.B. could not remember some of the fun things that he and Yackley may have done while Yackley baby-sat and was unable to testify as to how Yackley penetrated him, C.B. described the incident in great detail. Indeed, the trial court noted that when C.B. talked about, or directed his attention toward Yackley, 'he seemed to be quite pointed and alert in his recollection.' RP (Jul. 9, 2003) at 59.
C.B. testified that he did not remember playing baseball or basketball with Yackley.
C.B. testified that Yackley had put his penis inside his anus when Yackley was baby-sitting him and no one was home. He stated that he was in pain and that when he turned his head to face Yackley, Yackley pushed his head away. C.B. further testified that Yackley had raped him in his bedroom and upstairs in the computer room. When the incident occurred in C.B.'s room, he was standing against his bed while Yackley was kneeling on the floor behind him, and when it occurred upstairs in the computer room, C.B. was sitting in a chair playing computer games while Yackley was sitting in the chair behind him. In addition, C.B. testified that immediately after Yackley raped him, he would cry. This evidence, coupled by the fact that C.B. consistently reported the same story to his parents, Underhill, and Daly, supports the trial court's finding that C.B. expressed sufficient recollection of the rape. Furthermore, although C.B. did not verbally disclose to Shouse what Yackley had done, he 'barked' to indicate that Yackley had done something 'bad' and he physically indicated that Yackley had raped him by pointing to his buttocks and stating that Yackley had 'hurt' him there. Ex. 3 at 6, 9.
Nevertheless, Yackley argues that the 'turmoil' surrounding the separation of C.B.'s parents and the 'arrival of Aaron Hill [sic], [who] displaced C.B.'s habit of sleeping with his mother[,]' undermined the reliability of C.B.'s testimony. Br. of Appellant at 34. Yackley points to Dr. Galbreath's report stating that 'C.B. has been involved in . . . the arguing and separation of his parents,' which was a 'significantly traumatic event in the life of a pre-schooler.' Ex. 1 at 5-6.
At trial, Andrea testified that, although C.B. had difficulty sleeping and that he often had slept with her and Michael, C.B. always had his own bed. She further testified that he had been getting 'better and better' at staying in his own room and that when Hall moved in with her, she thought it was a 'great time to establish [C.B.] staying in his own . . . room.' RP (Jul. 10, 2003) at 187. She stated that C.B. did 'pretty well' after Hall moved in and that he had adapted to consistently sleeping in his own bed. RP (Jul. 10, 2003) at 187. In addition, both Andrea and Michael testified that C.B. was very close to them and got along well with Hall. The court considered these factors in determining C.B.'s competency, stating that C.B. was 'a little troubled,' and was well within its discretion in determining that C.B.'s memory of the abuse was nevertheless reliable. RP (Jul. 9, 2003) at 58.
Finally, Yackley argues that C.B. lacked the capacity to express in words his memory of the rape or to understand simple questions about it. These arguments fail as C.B. clearly was able to understand questions about the incident and to testify in his own words how Yackley had raped him. In conclusion, the trial court, after hearing C.B.'s testimony and observing his demeanor while testifying, properly exercised its discretion in finding that C.B. was competent to testify at trial.
II. RCW 9A.44.120
Yackley next contends that the trial court erred in admitting C.B.'s out-of-court statements under RCW 9A.44.120. Under that statute, an out-of-court statement made by a child when under the age of 10 describing any act of sexual contact is admissible if:
(1) The court finds, in a hearing conducted outside the presence of the jury, 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.
Yackley asserts that, because C.B. was not competent to testify, he was 'unavailable' for purposes of RCW 9A.44.120. He then argues that C.B.'s out-of-court statements were not admissible because they were not reliable or sufficiently corroborated. This argument fails. C.B. was both competent and available to testify at trial, and his out-of-court statements were sufficiently reliable.
In State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), our Supreme Court established several factors for trial courts to consider in determining whether a child's out-of-court statement is sufficiently reliable. These factors include the following: the child's motive to lie; the child's general character; the number of people who heard the statement; the spontaneity of the statement; the timing of the statement and the relationship between the child and the witness; the possibility that the child's recollection is faulty; and the circumstances surrounding the statement, i.e., whether there is any reason to suppose that the child misrepresented the defendant's involvement. Ryan, 103 Wn.2d at 175-76. See also State v. Stange, 53 Wn. App. 638, 769 P.2d 873, review denied, 113 Wn.2d 1007 (1989); State v. Leavitt, 111 Wn.2d 66, 758 P.2d 982 (1988). Not every factor must be satisfied before the trial court can find a child hearsay statement reliable. State v. Swan, 114 Wn.2d 613, 652, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
First, the evidence does not suggest that C.B. had any motive to lie about the abuse. Although C.B.'s parents had recently separated and Hall began living with Andrea, Andrea and Michael both testified that C.B. remained very close to them and got along well with Hall. In addition, C.B. testified that, before the abuse, he had liked Yackley. Second, the record reveals that C.B. was of good general character. During the competency hearing, C.B. testified that it was 'bad' to lie and he promised to tell the truth while testifying. Additionally, Andrea, Michael and C.B.'s teacher reported to Dr. Galbreath that C.B. did not regularly engage in deception. Dr. Galbreath found that although C.B. had an active imagination, he had the capacity to testify truthfully. Andrea also informed Dr. Galbreath that C.B. 'enjoyed interacting with other boys and girls' at T-ball and that when other children pushed him, he did not become physically aggressive. Ex. 1 at 3.
Third, C.B.'s statements were made spontaneously and not in response to any specific questioning about Yackley or the abuse. Andrea went to check on C.B. while he was sleeping and, when she noticed that he looked upset, she asked him what was wrong. C.B. replied that Yackley '[did] something he shouldn't do' but that he could not tell her. RP (Jul. 9, 2003) at 127. Andrea told C.B. that she wanted him to tell her what had happened, and C.B. disclosed that Yackley had raped him. The following day, C.B. went to Michael's house and asked his father if he knew what had happened. Michael replied that he was and C.B. began crying. C.B. then disclosed the abuse to his father. Equally spontaneous were C.B.'s statements to Underhill, the nurse practitioner and to Daly, the defense investigator. There was no evidence of suggestibility even with the interviewer Kim Shouse, to whom he barked but demonstrated the rape.
Fourth, as to timing, C.B. disclosed the abuse approximately one week after Yackley had last baby-sat. And he first made these statements to his mother and father, with whom he shared a close and trusting relationship. Further, the evidence does not suggest that either Andrea or Michael were predisposed to confirm what they had been told when C.B. told his mother in the fall of 2001 that Yackley played a 'game' that he did not like, she assumed the game was 'hide-and-seek,' and after speaking with Kruger, Andrea re-invited Yackley to baby-sit C.B. RP (Jul. 9, 2003) at 120.
Fifth, it is unlikely that C.B.'s recollection of the abuse is faulty. Although C.B. was known to have an active imagination and to 'actively weave reality and fantasy into his understanding of the world,' he testified in detail about the abuse and consistently reported the same story to his parents, Underhill, and Daly. Ex. 1 at 7.
Sixth, the circumstances surrounding C.B.'s statements do not suggest that he misrepresented Yackley's involvement in the abuse. C.B. had many baby-sitters and was certain that only Yackley had abused him. Moreover, he told Michael that no other person had abused him, and he testified at trial that had never heard of or seen anyone 'putting their penis in someone's butt.' RP (Jul. 9, 2003) at 77. Finally, although no other person was present when C.B. told his parents about the abuse, Hall testified that he was at Andrea's residence on the evening of C.B.'s disclosure and that he observed C.B. crying and asking Andrea how he could stop thinking about what had happened. In conclusion, we find the Ryan factors sufficiently met for purposes of RCW 9A.44.120. Reliability was properly established.
III. Excited Utterance
Even though we have analyzed C.B.'s out-of-court statements to his mother under RCW 9A.44.120, there is another ground for admission. It is compelling that these statements were excited utterances. Yackley conceded in oral argument that the statements were excited utterances and, thus, it is a separate ground for admission. As we stated in State v. Sunde, 98 Wn. App. 515, 520, 985 P.2d 413 (1999) (citing State v. Briscoeray, 95 Wn. App. 167, 172, 974 P.2d 912, review denied, 139 Wn.2d 1011 (1999)):
Because the excited utterance rule is based on the premise that the speaker has no opportunity to lie before making the utterance, if the speaker in fact did have the opportunity, then by definition the statement cannot be an excited utterance. In such a case, the credibility of the statement is irrelevant.
ER 803(a)(2) allows the admission of excited utterances as an exception to the rule excluding hearsay statements. Sunde, 98 Wn. App. at 520. An excited utterance is '[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.' ER 803(a)(2). See State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992) (proof of three closely related requirements needed to qualify as excited utterance: (1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and (3) the statement must relate to the startling event or condition).
Because C.B.'s statements to Andrea were admissible as excited utterances, the statements need not comply with RCW 9A.44.120. Nevertheless, we addressed the issue in an abundance of caution and because these statements demonstrated the reliability factors in conjunction with C.B.'s other hearsay statements.
IV. Right of Confrontation
Yackley also contends that the admission of C.B.'s out-of-court statements violated his right of confrontation and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because C.B. was an incompetent witness and therefore could not be cross-examined about these statements. These arguments fail as C.B. was competent to testify and indeed did testify and was subject to cross-examination by Yackley, both about the abuse and about his out-of-court statements. Moreover, Crawford has no bearing on this case as the confrontation clause is not implicated by the use of out-of-court statements when the declarant appears for cross-examination at a trial. Crawford, 124 S. Ct. at 1369, n. 9. Further, C.B.'s statements to his mother and father were non-testimonial.
In Crawford, the U.S. Supreme Court held that the admission of a witness's testimonial, out-of-court statements violates the confrontation clause when the witness does not testify at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness regarding the out-of-court statements. Crawford, 124 S. Ct. at 1354.
Yackley further asserts that the constitutionality of RCW 9A.44.120 must be reevaluated in light of Crawford because that statute permits the admission of some out-of-court statements where the child does not testify at trial, regardless of whether the defendant has had a prior opportunity to cross-examine the child about these statements. Because we find no violation of Yackley's right of confrontation under Crawford in this case, we do not address this issue.
V. Polygraph Examination
Lastly, Yackley asserts that the trial court violated his constitutional right to present a defense when it refused to admit evidence of his polygraph results. Yackley's argument is not well taken; '[r]esults of polygraph tests are not recognized in Washington as reliable evidence and are, in fact, inadmissible without stipulation from both parties.' State v. Thomas, 150 Wn.2d 821, 860, 83 P.3d 970 (2004) (citing State v. Renfro, 96 Wn.2d 902, 905, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982)). Here, the State did not stipulate to the admission of the Holden polygraph results.
Yackley argues that he should have been permitted to offer his unstipulated polygraph results because juvenile trials are 'different [in] nature' than adult criminal trials, with a special focus on 'treatment' and the 'involvement of 'parents.'' Br. of Appellant at 48. He further argues that, because juvenile adjudications are bench-tried, the danger of unfair prejudice is not present and that in bench trials, evidence may be liberally admitted because it is presumed that the trial court knows the rules of evidence and will not consider inadmissible evidence. Nevertheless, the rules of evidence apply in juvenile adjudicatory hearings. JuCR 7.2, .11, .12. Moreover, the primary justification for not admitting unstipulated polygraph results has been the unreliability of polygraph results, not the danger of unfair prejudice. See Thomas, 150 Wn.2d at 860; State v. Justesen, 121 Wn. App. 83, 95, 86 P.3d 1259 (polygraph evidence is not relevant because it is 'inherently unreliable as an indicator of deception'), review denied, 152 Wn.2d 1033 (2004); State v. Ahlfinger, 50 Wn. App. 466, 472, 749 P.2d 190 (polygraph results are inherently unreliable), review denied, 110 Wn.2d 1035 (1988).
Additionally, Yackley cites to cases in which unstipulated polygraph results were used in criminal proceedings. But these cases are inapposite as they either discuss the use of polygraph results during investigative and pre-trial proceedings or the admission of these results to establish an issue other than guilt. Here, Yackley sought to admit his polygraph results at trial, not to demonstrate the thoroughness of the police investigation as in Reay, or to impeach a witness as in Anderson, but to prove that he was not guilty of raping C.B. See Justesen, 121 Wn. App. at 94. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to admit Yackley's unstipulated polygraph results, particularly in light of the fact that Yackley's second polygraph examination yielded different results and was not presented to the trial court in his motion to admit the Holden results.
He cites State v. Reay, 61 Wn. App. 141, 810 P.2d 512 (1991) (polygraph results admitted to show that the decedent could not have been the victim of a murder); State v. Anderson, 41 Wn. App. 85, 702 P.2d 481 (1985) (evidence of polygraph examination admitted to impeach a witness's credibility), review denied, 107 Wn.2d 745 (1987); State v. Cherry, 61 Wn. App. 301, 810 P.2d 940 (polygraph results used to determine the existence of probable cause for a search warrant); review denied, 117 Wn.2d 1018) (1991), and State v. Roberson, 118 Wn. App. 151, 74 P.3d 1208 (2003) (polygraph results admitted as to question of whether the defendant breached his plea bargain where defendant's successfully passing was a condition of his plea).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J. and QUINN-BRINTNALL, C.J., Concur.