State Of Washington, Res/cross-app. v. Daylon Albert Gepner, App/cross-res.

• Court: Court of Appeals of Washington
• Decided: June 8, 2015
• Docket: 72017-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 72017-1-1 ro -:f>~T.- O _..-= c;-_ Respondent, ] DIVISION ONE v. ; C3 r'-;:v DAYLON ALBERT GEPNER, ; UNPUBLISHED OPINION

Appellant. ) FILED: June 8. 2015 V.O O'"'' to en Spearman, C.J. — Daylon Gepner was found guilty of one count of child

molestation in the first degree. He appeals, arguing that the trial court erred in

finding a child witness competent to testify and admitting child hearsay. Finding

no error, we affirm.

FACTS

Daylon Gepner resided with his father, Kelly Gepner, his stepmother

Wendy Gepner, and his step-brother D.W. in Granite Falls, Washington. On

October 30, 2012, Wendy found Gepner, age sixteen at the time, and her son,

D.W., age eight, sitting close together under a blanket on the family's couch. She

found the behavior odd because of the way that they were sitting, and asked

them to get up. When they did, Wendy noticed that D.W.'s pants were undone.

Gepner wrapped the blanket around his waist and moved to a different couch.

Wendy confronted Gepner about what she had seen, and after an argument,

Gepner left the house. No. 72017-1-1/2

Wendy said to D.W., "[pjlease don't lie to me. I need to know what

happened. Did he touch you?" Verbatim Report of Proceedings (VRP) (04/29/14)

at 110. D.W. responded that Gepner had touched him. D.W. spoke with his

mother later in the evening and he told her about another time that Gepner had

touched him and had tried to penetrate him.

D.W. was taken to the hospital to be examined the following day. At some

point D.W. told his mother that Gepner had touched his private parts numerous

times during the past two years, beginning when Wendy began dating Gepner's

father. Wendy asked D.W. if Gepner had touched her other son, CM., as well,

and D.W. said that he had. CM. testified at trial that Gepner had never touched

him inappropriately.

Later that day D.W. spoke with a sexual assault nurse examiner and told

her that he was there because Gepner had tried to touch his private parts the

night before, and that Gepner had subjected him to masturbatory and penetrative

activity before. D.W. indicated that he was not in any pain at that time, and

declined to undergo specific physical examinations. The following day D.W. was

interviewed by a child interview specialist, during which he wrote that his brother

had "tried to touch [him] in [his] privates." VRP (4/29/14) at 90.

On April 24, 2014, Gepner was charged with one count of child

molestation in the first degree, two counts of rape of a child in the first degree,

and two counts of attempted rape of a child in the first degree. At the

adjudication, the court heard testimony from D.W., D.W.'s mother, Wendy, child

interview specialist C. Webster, registered nurse T. Phillips, Snohomish County No. 72017-1-1/3

Sheriff's Office Detective J. Ross, C M., and Gepner's father Kelly. Over

Gepner's objections, the trial court permitted Wendy and Ms. Phillips to testify

about D.W.'s out-of-court statements, and admitted D.W.'s recorded statements

to Ms. Webster. The trial court also found D.W. competent to testify.

Gepner was found guilty of child molestation in the first degree. On June

2, 2014, Gepner was sentenced to 30-40 weeks institutional placement with the

Washington State Department of Social and Health Services, Division of Juvenile

Rehabilitation. The trial court also imposed a no-contact order against Gepner on

behalf of D.W.

DISCUSSION

We first address the issue of D.W.'s competency, since a declarant's

competency is a precondition to admission of his hearsay statements. State v.

Ryan, 103 Wn.2d 165, 173, 691 P.2d 197 (1984). Competency of a witness is a

matter to be determined by the trial court within the framework of RCW 5.60.050.

]d. at 172. Under the statute, "[c]hildren under ten years of age, who appear

incapable of receiving just impressions of the facts, respecting which they are

examined, or of relating them truly," will be considered incompetent to testify.

RCW 5.60.050(2), Laws of 1986, Ch. 195, § 2. The trial court is tasked with

determining the witness's ability to meet the statutory requirements, through

seeing the witness, noticing his or her manner, and considering his or her

capacity and intelligence. State v. Allen. 70 Wn.2d 690, 692, 424 P.2d 1021

(1967). The determination of competency lies within the sound discretion of the

trial court and will not be disturbed on appeal absent a manifest abuse of No. 72017-1-1/4

discretion. ]d_. On appeal, we may examine the entire record in reviewing the

competencv determination. State v. Woods. 154 Wn.2d 613, 617, 114 P.3d 1174

(2005).

The test for a child's competency as a witness consists of the following:

"(1) an understanding of the obligation to speak the truth on the witness stand;

(2) the mental capacity at the time of the occurrence concerning which he is to

testify, to receive an accurate impression of it; (3) a memory sufficient to retain

an independent recollection of the occurrence; (4) the capacity to express in

words his memory of the occurrence; and (5) the capacity to understand simple

questions about it." Allen, 70 Wn.2d at 692.

Gepner argues that the trial court erred in finding that the second and third

Allen factors were satisfied. Br. of Appellant at 18. Gepner argues that D.W. did

not have the mental capacity to perceive other alleged incidents of abuse

because he did not remember specific locations or times when they occurred.

Gepner also argues that D.W. did not have an independent memory of the event

in the living room because his account of that event contained multiple

inconsistencies. The State argues that the record demonstrates otherwise.

Inconsistencies in a child's testimony go to weight and credibility,

however, not to competency. State, v. Kennealy, 151 Wn. App. 861, 878, 214

P.3d 200 (2009). We place particular reliance on the trial court's judgment in

assessing a child witness's competency. Id. Here, D.W. demonstrated that he

had the mental capacity at the time of the event to accurately perceive what was

happening to him. D.W. may have been confused about what incidents occurred No. 72017-1-1/5

when and where, but the record supports the trial court's finding of no fault with

D.W.'s recollection of events that took place between March 2012 and October

30, 2012. We hold that the trial court did not abuse its discretion in finding that

D.W. was competent to testify.

Gepner next argues that D.W.'s hearsay statements were inadmissible

because they lacked sufficient reliability as required by RCW 9A.44.120(1).

Under RCW 9A.44.120, a statement made by a child under ten years old

describing acts of sexual contact or physical abuse, 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.

The decision to admit child hearsay statements is reviewed for an abuse of

discretion. Woods. 154 Wn.2d at 623. A trial court abuses its discretion only

when its decision is manifestly unreasonable or is based on untenable reasons or

grounds. Statev.C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003).

The reliability of a statement admitted under the child hearsay statute

must be found in reference to circumstances surrounding the making of the out-

of-court statement, and not from subsequent corroboration of the criminal act.

Ryan. 103 Wn.2d at 174. The factors applicable to determining the reliability of

out-of-court declarations 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 No. 72017-1-1/6

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 that the child misrepresented the defendant's involvement. Id. at 175-

76. No single factor is decisive; the factors must be "substantially met" before a

statement will be considered reliable. Kennealv. 151 Wn. App. at 881.

Gepner first argues that D.W. had a motive to lie in order to keep his

mother's anger directed at Gepner, and not himself. The State argues there is

nothing in the record that suggests D.W. was interested in getting anyone in

trouble or avoiding his mother's anger. The focus of the inquiry on this factor is

"whether the child was being truthful at the time the hearsay statements were

made." State v. Gribble. 60 Wn. App. 374, 383, 804 P.2d 634 (1991). In Ryan,

the trial court found that the child declarants had motive to lie because "each

child initially told a different version of the source of the candy they were not

supposed to have." 103 Wn. 2d at 176. In State v. Griffith. 45 Wn. App. 728, 739,

727 P.2d 247 (1986), the victim initially accused her father, and later alleged that

her uncle had assaulted her. The trial court found that she had an apparent

motive to lie because she testified that "Uncle Jimmy would hurt her father if she

did not say [her father] did it. ... Id. No. 72017-1-1/7

In State v. Leavitt. 111 Wn.2d 66, 74, 758 P.2d 982 (1988), the defendant

testified that the child had motive because she wanted her mother to assume full-

time care of her and made the allegations to convince her mother to do so. The

state Supreme Court found that while the testimony "suggested] a motive to lie,"

it declined to find such motive because "it would be more reasonable for the child

to lie about her day-to-day treatment from her aunt if she wanted her mother to

resume care of her." jd. The court was also persuaded by the fact that the child

first complained to her aunt, and not her mother, and because of her young age

and graphic descriptions of sexual contact, it found it unlikely that she would

have fabricated the events. Id.

Gepner argues that we should find motive to lie based on Wendy's anger

at Gepner and her testimony that she observed the boys arguing and other

changes in their behavior when she and D.W. moved into the house. We agree

with the State that this is insufficient to show that D.W. had motive to lie. There is

no evidence in the record that suggests that D.W. was trying to avoid his

mother's anger or keep it directed at Gepner.

Gepner also argues that the trial court erred when it found that D.W.'s

character had some indicia of reliability. He argues that the trial court disregarded

evidence that D.W. had wrongly alleged that Gepner had inappropriately touched

his half-brother CM. and that CM. had done the same to D.W. The State argues

that D.W.'s general character was good and the record supported that he had no

problems with dishonesty and knew the difference between a truth and a lie. No. 72017-1-1/8

According to the State, the trial court is in the best position to judge a witness's

reliability and this court should not disturb its findings on appeal.

We agree with the State. The basis for this factor is whether the child has

a reputation for telling the truth. State v. Lopez , 95 Wn. App. 842, 853, 980 P.2d

224 (1999). In State v. Karpenski. 94 Wn. App. 80, 122, 971 P.2d 553 (1999),

abrogated on other grounds by State v. C.J.. 148 Wn.2d 672, 63 P.3d 765

(2003), the trial court found the child's hearsay statements to be unreliable where

each statement of abuse "came after numerous equivocal responses" and were

"accompanied by highly inconsistent responses demonstrating an extremely

confused state of mind." Here, the only evidence in the record that suggests that

D.W. was not telling the truth were his allegations, later recanted, that his half-

brother had also touched him inappropriately, and that the half-brother had also

been abused by Gepner, which were denied. The record also shows that D.W.

knew the difference between a truth and a lie and that he had never had

problems at home or at school with telling the truth. The trial court did not err

when it found that D.W. had no "propensity to lie." CP at 42.

Gepner argues that D.W's statements were not spontaneous because

they resulted from leading or suggestive questions. Gepner claims that all of the

statements are unreliable because Wendy initially proposed the conduct to D.W.

and he agreed to it. The State contends that the question was not suggestive,

and even if it were, the answer was still spontaneous.

For purposes of determining reliability of a statement made by an alleged

child victim of sexual abuse, "any statements made that are not the result of

8 No. 72017-1-1/9

leading or suggestive questions are spontaneous." In re Dependency of S.S..

61, Wn. App. 488, 497, 814 P.2d 204 (1991). Questions such as whether

"anybody had touched [the child] in her private parts," are "not leading and in no

way suggested an answer." State v. McKinnev. 50 Wn. App. 56, 59, 63, n.4, 747

P.2d 1113(1987). The definition of "spontaneous" for child hearsay purposes

also "considers the entire context in which the child makes the statement." State

v. Henderson. 48 Wn. App. 543, 550, 740 P.2d 329 (1987).

In Henderson, the child told the detective that her father rubbed her vagina

with his hand. He asked her if it hurt and she said yes. When he asked her why it

hurt, the child responded "[h]e sticks his fingers in me." jd. at 546. Henderson

argued that the child's response to the latter question was inadmissible because

it was made in response to the detective's questioning and therefore, not

spontaneous. We rejected the argument, concluding that the question was

neither leading nor suggestive and that the child had volunteered the information.

Id, at 550. Similarly, in State v. C.M.B.. 130 Wn. App. 841, 849, 125 P.3d 211

(2005), we found that the child's statements were sufficiently reliable even

though the mother asked "'[Y]ou didn't touch each other in a bad way, did you?'"

and admitted that she pressured her son to tell her what happened. She also

testified that she did not ask any clarifying questions, but "'was just letting him

talk to [her].'" Id

Gepner cites to In re Dependency of A.E.P.. 135 Wn.2d 208, 232-33, 956

P.2d 297 (1998) to support his argument that Wendy's "leading questioning of

D.W. suggests that all of the statements D.W. made are unreliable." Brief of No. 72017-1-1/10

Appellant at 12. In that case, the trial court considered whether the child's

minimal sexual knowledge could have been obtained by her interactions with

other children or her caretaker's repeated questioning of her about any possible

abuses. These 12-15 estimated interrogations, each as long as 45 to 90 minutes,

involved only closed and leading questions. Here, Gepner submits only the

occurrence of Wendy asking D.W. whether or not Gepner "touched him,"

immediately after discovering them together. We find that this single incident of a

non-leading question insufficient to cause us to question the spontaneity of D.W's

statements.

Gepner argues that D.W.'s statements were not reliable because they

were made to Wendy, D.W.'s mother, a non-neutral party, and someone with

whom he had a relationship. He also argues that the surrounding circumstances,

including Wendy's shock and anger at the discovery, made D.W.'s statements

unreliable. In Leavitt. the court noted the fact that the child's statements were

made to a social worker with whom she had no prior relationship with — "the

initial relationship was neutral," weighed in favor of the statements' reliability. 111

Wn.2d at 75.

Gepner merely speculates that the confrontation between him and Wendy

caused D.W. to make statements confirming her suspicions. But other than

speculation, Gepner points to nothing in the record to show that Wendy's anger

at Gepner would cause D.W. to falsely state what had occurred between them.

The record shows no history of issues between D.W. and Wendy, and D.W.

10 No. 72017-1-1/11

testified that she was the only person he wanted to tell about the ongoing

conduct.

We hold that the trial court did not err in holding that D.W.'s statements

were admissible under RCW 9A.44.120.1

Affirm.

WE CONCUR ;^\V

A™)3- —

1Gepneralso argues that the statements made to the forensic nurse were not admissible under the exception for medical diagnosis and treatment. ER 803(a)(4) provides an exception for "[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Because we find that the trial court properly admitted D.W.'s statements under the child hearsay exception, we do not address their admissibility under ER 803(a)(4).