IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84854-2-I Respondent,
v. DIVISION ONE
ALAN CARLTON MOORE, JR., UNPUBLISHED OPINION Appellant.
CHUNG, J. — A jury convicted Alan Moore, Jr. of three sex offenses
stemming from sexual abuse of his six-year-old daughter, I.M. He challenges the
trial court’s denial of his CrR 8.3(b) motion to dismiss for the State’s
mismanagement of discovery. He also contends the court erred by finding I.M.
competent to testify and admitting her hearsay statements. We conclude that the
trial court’s decisions were not an abuse of its discretion and affirm the
convictions. However, we reverse and remand to strike the victim penalty
assessment (VPA) and DNA fee from Moore’s judgment and sentence.
FACTS
Alan Moore, Jr. and Sydney Williams began dating when they were in their
late teens, and Williams became pregnant early in their relationship. The
relationship ended soon after Williams gave birth in May 2014 to their daughter,
I.M. Williams and I.M. lived with Moore for a short time, but then moved back to
Louisiana to live with Williams’s family. No. 84854-2-I /2
In Louisiana, I.M. lived with her mother, her grandmother Kristine Traub, 1
her great-grandfather Nicholas Traub, her aunt, and her cousin. Because
Williams has disabilities, her family assists her with caring for I.M. In May 2020,
over her family’s objections, Williams and six-year-old I.M. travelled to
Washington to visit Moore.
Upon arriving in Washington, Williams and I.M. stayed with Moore at his
apartment along with his girlfriend, Nicole Miller, and their newborn baby. During
this time, I.M. told Williams, Moore, and Miller that her great-grandfather had
sexually abused her. I.M. described specific acts of sexual abuse by Nicholas.
While in Washington, I.M. also accused her cousin Caleb of sexually abusing
her. 2 I.M. had made similar allegations about Caleb and Nicholas, as well as
Williams’s boyfriend Josh Vicknair, 3 prompting a Child Protective Services (CPS)
investigation in Louisiana in 2019.
Moore made a CPS report and obtained a restraining order against
Williams in Washington. Williams returned to Louisiana without I.M. at the end of
July 2020. In November 2020, Williams obtained jurisdiction over I.M. in
Louisiana and returned to Washington to retrieve her. Soon after returning to
Louisiana, I.M. told Kristine that Moore had sexually abused her. Williams and
Kristine took I.M. to Children’s Hospital. I.M. reported vaginal pain, and a physical
examination showed a rash, anal gaping, and a healing bruise on her right thigh.
1 Due to the shared last name, we refer to Kristine and Nicholas by their first names. We
intend no disrespect. 2 Caleb is related to I.M. through Moore but lives in Louisiana. He was a child at the time
of the allegations. 3 Vicknair was the father of Williams’s second child. He is deceased.
2 No. 84854-2-I /3
At that time, I.M. made further allegations of sexual abuse by Moore to her
grandmother. The local sheriff’s office was notified and came to the hospital to
take a report from Williams. A child abuse pediatrician conducted an interview
and examination of I.M. in December 2020. I.M.’s physical exam was “normal”—
i.e., the pediatrician found no physical evidence of trauma or disease—but I.M.’s
statements raised concerns that I.M. had been sexually assaulted. In February
2021, the State charged Moore with two counts of rape of a child in the first
degree (domestic violence).
The case went to trial in September 2022. Prior to trial, the court
conducted a lengthy hearing to assess I.M.’s competency and determine the
admissibility of her hearsay statements to family members, an examining
physician, and a child forensic interviewer. During that hearing, the State
amended the information to add a count of first degree child molestation
(domestic violence). Moore also moved for dismissal due to governmental
mismanagement based on the State’s failure to timely produce recordings
requested in discovery. The court denied the motion to dismiss. The court found
I.M. competent to testify and admitted her hearsay statements to Kristine, the
examining physician, and the forensic interviewer. The court denied admission of
statements I.M. made to Williams.
A jury convicted Moore on all counts and found Moore and I.M. to be
members of the same family or household. The court sentenced Moore to an
indeterminate sentence of 216 months to life. Moore appeals.
3 No. 84854-2-I /4
DISCUSSION
I. CrR 8.3(b) Motion to Dismiss for Government Mismanagement
Moore argues the trial court erred by denying his motion to dismiss for
governmental mismanagement based on the State’s failure to timely produce
discovery. Moore’s claim fails because he cannot demonstrate prejudice from the
State’s delay.
Moore initially made a broad request for discovery in February 2021. In
July 2021, Moore e-mailed the State requesting that it produce specific
recordings. Moore had recorded telephone conversations with Williams, one of
which allegedly included Williams’s admission that I.M. fabricated the allegations
against him. Moore provided the recordings to a CPS social worker who turned
them over to law enforcement. Moore’s counsel’s July e-mail referenced and
requested a copy of the recordings: “Detective Bittinger’s report that starts on
Bates 115 mentions on a few occasions a recording or recordings he collected a
copy of from a DCYF case worker involving Sydney Williams stating the
allegations against Mr. Moore Jr. were fabricated/false.” The State acknowledged
the request. Defense counsel reminded the State of the request for this specific
discovery in September 2021, October 2021, and July 2022 but did not receive
the recordings from the State. During this time, the State never provided an
explanation for its failure to produce the recordings.
In a phone conversation after the July 2022 e-mail, which occurred in the
context of preparations for the entry of an omnibus order, the State asked
defense counsel if Moore was providing consent for Detective Bittinger to search
4 No. 84854-2-I /5
the USB in police possession for the requested recordings, listen to them, and
provide a copy. Moore’s attorney stated that he consented. The State followed up
through e-mail on August 16, 2022, requesting e-mail confirmation of Moore’s
authorization to search, listen to the recordings, and copy the thumb drive, to
which defense counsel responded with written authorization.
The court began the child hearsay hearing on September 7, 2022. On
September 14, the State requested a hearing on a motion to exclude audio
recordings to be held either September 21 or 22. Moore notified the State that he
still had not received the recordings. On September 16, the State e-mailed a PDF
attachment with a copy of Detective Bittinger’s report about the recordings and
delivered a copy of the recordings to Moore’s counsel’s office on Monday,
September 19. 4 The next day, Moore filed a motion to dismiss pursuant to CrR
4.7, CrR 8.3(b), and the due process clauses of the state and federal
constitutions. The trial court denied the motion to dismiss after finding neither
mismanagement nor prejudice, stating, “[I]t’s very hard for me to see how I could
possibly say Mr. Moore is unlikely to get a fair trial because of the late revelation
of this information. The prejudice is hard to see. And I am not able to find
mismanagement.”
Moore appeals the court’s decision only based on CrR 8.3(b). CrR 8.3(b)
allows the trial court to “dismiss any criminal prosecution due to arbitrary action
or governmental misconduct when there has been prejudice to the rights of the
accused which materially affect the accused’s right to a fair trial.” The party
4 The Snohomish County Public Defender Association received the audio files on September 19, but they were not uploaded to its internal filing system until September 22.
5 No. 84854-2-I /6
seeking dismissal bears the burden of showing both misconduct and actual
prejudice. State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017).
The moving party must show misconduct by a preponderance of the evidence,
but need not prove bad faith on the part of the prosecutor. Id. at 431.
Governmental misconduct need not be willful; “simple mismanagement will
suffice.” Id. at 428.
CrR 8.3(b) allows the court to dismiss a criminal action if the State violates
its discovery obligations. Salgado-Mendoza, 189 Wn.2d at 428. “Even if the State
fails to live up to its discovery obligations, however, relief under CrRLJ 8.3(b) is
available only if the trial court finds prejudicial governmental misconduct or
arbitrary action.” Id. at 428-29. Dismissal under CrR 8.3(b) is an extraordinary
remedy. State v. Rohrich, 149 Wn.2d 647, 658, 71 P.3d 638 (2003). The
misconduct must materially affect the defendant’s right to a fair trial. Salgado-
Mendoza, 189 Wn.2d at 429. While a defendant “may be impermissibly
prejudiced if a late disclosure compels him to choose between his right to a
speedy trial and his right to be represented by adequately prepared counsel,” the
party seeking relief must articulate how the misconduct prejudiced their defense.
Salgado-Mendoza, 189 Wn.2d at 436. The party must show “ ‘not merely
speculative prejudice but actual prejudice.’ ” Id. (quoting Rohrich, 149 Wn.2d at
649).
We review a trial court’s ruling on a CrR 8.3(b) motion for abuse of
discretion. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).
“Discretion is abused when the trial court’s decision is manifestly unreasonable,
6 No. 84854-2-I /7
or is exercised on untenable grounds, or for untenable reasons.” Id. A
discretionary decision is manifestly unreasonable or based on untenable grounds
“if it results from applying the wrong legal standard or is unsupported by the
record.” Salgado-Mendoza, 189 Wn.2d at 427.
Moore fails to establish that the State’s actions materially affected the
defendant’s right to a fair trial in order to demonstrate prejudice as needed to
benefit from the extraordinary remedy of dismissal under CrR 8.3(b). Moore
acknowledged he had previously obtained all the audio recordings, except for
one, through other means. In the one audio recording he did not receive until
September 22, Williams mentions that Kristine was going to kick her out of the
house if she did not follow her wishes when speaking at court hearings about I.M.
Williams stated did not feel that she and I.M. were safe in Louisiana and was
concerned that Kristine would attempt to gain custody of I.M. Williams also
admitted that she had told Moore that Nicholas had sexually abused her as a
child.
In considering the motion to dismiss, the court noted, “Prejudice is a little
bit unclear to me.” The court explained,
[T]here’s no good reason to think that its late revelation will prevent Mr. Moore from getting a fair trial. I have every reason to think that this revelation, even late, will provide for a vigorous cross- examination of Ms. Williams. Not that it is significantly different in nature than the cross-examination that must have happened before or would have happened anyway given the information in general was already known. The fact that this information is more specific and more particular and the impeachment might very well feature the item being played for the benefit of the jury for purposes of assessing Ms. Williams’ credibility . . . .
7 No. 84854-2-I /8
Moore was familiar with the statements made during the conversation at
issue, as he was a participant and made the recording. Moore does not argue
that the conversation revealed new facts requiring investigation. Rather, Moore
contends that “[w]ithout this information, we had no reason to ask more directly
and that would have made a substantial difference in how we conducted these
interviews.” But the defense had already pursued these avenues of investigation,
asking the witnesses questions pertaining to Kristine’s influence over Williams
and I.M. and allegations that Nicholas had sexually assaulted Williams and I.M.
As the court noted, these topics would have been used for cross-examination
and impeachment even absent disclosure of the missing conversation. The audio
recording, despite its untimely production, only provided greater detail for that
impeachment.
Because the recording merely provided more detail for information already
known to the defense, Moore cannot demonstrate that the late disclosure
materially affected his right to a fair trial. Therefore, he fails to establish actual
prejudice that would require dismissal under CrR 8.3(b). The trial court did not
abuse its discretion in denying the motion to dismiss. 5
II. Child Competency to Testify
Moore argues the trial court erred in finding I.M. competent to testify
because she did not understand the requirement to tell the truth, was not able to
accurately reflect the past events, or was unable to form accurate memories of
the events. The State contends the trial court did not abuse its discretion
5 The State moved to strike news articles cited in Moore’s reply brief on appeal. As we did
not consider the articles as part of the factual record, we deny the motion to strike.
8 No. 84854-2-I /9
because I.M.’s testimony demonstrated that she knew the difference between the
truth and a lie, had the capacity to receive accurate impressions of her stay in
Washington, had memory of the events, and could express the memories in
words. We agree with the State.
A child’s competency to testify at trial is determined within the framework
of the general competency statute, RCW 5.60.050. State v. C.J., 148 Wn.2d 672,
682, 63 P.3d 765 (2003). The bar for competency is low. State v. Brousseau, 172
Wn.2d 331, 347, 259 P.3d 209 (2011). Children are presumed competent until
proven otherwise by a preponderance of the evidence. Id. at 341. The burden of
proving incompetency is on the party challenging the child witness. State v.
S.J.W., 170 Wn.2d 92, 102, 239 P.3d 568 (2010).
A young child is competent to testify if the 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’ memory of the occurrence, and (5) the capacity to understand simple questions about it.
C.J., 148 Wn.2d at 682. “The determination of competency rests primarily with
the trial judge who sees the witness, notices his or her manner and demeanor,
and considers his or her capacity and intelligence.” Id. As a result, an appellate
court must place great reliance on the trial court’s judgment in assessing the
competency of a child witness. State v. Woods, 154 Wn.2d 613, 617, 114 P.3d
1174 (2005). We review the trial court’s determination of competency for abuse
of discretion. Id.
9 No. 84854-2-I /10
In assessing the five factors, the trial court determined that I.M.
demonstrated that she understood her obligation to tell the truth, was capable of
receiving an accurate impression at the time of the incidents, had a memory
sufficient to retain independent recollection of the events, had the capacity to
express in words her memory of the occurrence, and had the capacity to
understand questions. To challenge these findings, Moore points to I.M.’s
inconsistent and conflicting accounts of her past allegations of sexual abuse and
her clearly fabricated statements.
As to past allegations, I.M. initially denied that anyone else had ever
touched her or that she had previously claimed that someone else had touched
her, including Nicholas and Vicknair. She then corrected herself and said that
“her brother Caleb” had touched her on her privates. Testimony from the hearing
contradicted the statements regarding Nicholas and Vicknair. Miller testified that
I.M. had made detailed allegations of sexual abuse by Nicholas. Williams testified
that I.M. had told both her and Moore that Nicholas had sexually assaulted her.
And a deputy from Snohomish County Sheriff department testified that I.M. told
him about an incident with Vicknair. While these statements are clearly
inconsistent with I.M.’s testimony that no one else had ever touched her, “an
inconsistency in the child’s testimony goes to the child’s credibility and not to
admissibility.” Woods, 154 Wn.2d at 621. The contradictory statements could
impeach I.M.’s testimony, but they do not undermine I.M.’s competency to testify.
In addition to inconsistencies, Moore highlights “complete fabrications”
from I.M.’s prior interviews, including statements during her interview by defense
10 No. 84854-2-I /11
counsel that Miller was her “single aunt” and that I.M. lived in Washington for ten
years, lived with her brothers, and on one occasion, jumped out of the window,
flew onto the roof, then fell and bumped her head on a trampoline. I.M. also
recounted that one time, while Moore was sexually assaulting her, Miller’s six-
year-old son, Jackson, interrupted them to use the bathroom. However, Miller did
not have a son of that age or name. Miller’s only son, a 12-year-old who lived in
Portland, Oregon, with his father, had never visited the apartment or met I.M. No
boys lived in the apartment in Washington. Additionally, I.M. was only six years
old at the time, so could not have lived in Washington for ten years.
While these statements are fictitious, I.M. made them and most of the
other clearly fabricated statements during prior interviews. The defense interview
took place in October 2021, almost a year before the competency hearing. The
test for child competency requires an understanding of the obligation to speak
truthfully on the witness stand. See C.J., 148 Wn.2d at 682. During the hearing,
I.M. demonstrated that she understood this obligation. She promised to tell the
truth, explaining that “something that’s true really has happened. A lie is
something that never has happened.” She was able to distinguish a lie when the
State provided an example. And she reported that Williams told her that “if I do
not tell the truth, I will get in very big trouble because I am not actually telling
what’s actually going on.” She said her grandmother expected her to say
“[e]verything that happened and not to lie.” Moore notes that I.M. testified at that
hearing that she had eaten a peanut butter and jelly sandwich for breakfast, but
Kristine testified that I.M. had actually eaten eggs, bacon, a piece of toast, and
11 No. 84854-2-I /12
half of a brownie. However, other than this incorrect description of her breakfast,
I.M.’s testimony at the hearing supports the trial court’s conclusion that she
understood her obligation to tell the truth.
The demonstrably false statements from the past do not impact I.M.’s
understanding at the time of the hearing of the need to testify truthfully, but do
raise questions as to the second factor in assessing competency, whether I.M.
had the mental capacity to receive an accurate impression of the events as they
were occurring. In addition to the fictitious brother, I.M. also told the defense
investigator that Moore’s apartment had 16 rooms, Williams and Moore shared a
bedroom, Miller had her own bedroom, I.M. shared a bed with her newborn half-
sister, and her brother slept on the floor. She also said that her mother moved to
her own apartment where they had a dog for 16 days.
Despite these past statements, the trial court relied on information
gathered from I.M.’s testimony at the hearing. The court noted that I.M. “recalls
going to Washington to live with her dad. She recalled getting there via train,”
“[s]he clearly did remember some details about being in Washington, things that
she liked to do in Washington, things that she didn’t like in Washington.” Indeed,
I.M. relayed details from the train trip, talked about watching movies and playing
dolls with her father, and being annoyed by the cats. Based on these statements,
the trial court concluded that “there clearly is an understanding of her mental
capacity at the time of the occurrence [as to] which she is to testify.” I.M.’s
demonstrated ability to remember events that happened around the time of the
12 No. 84854-2-I /13
incidents at issue supports competency. 6 Any examples of past fabrications
could be used as impeachment but did not impact the court’s baseline
determination that she could form accurate memories at the time of the
occurrences at issue.
Moore raises additional examples of inconsistencies and fabrications in
I.M.’s past statements. However, those issues pertain to credibility rather than
competency. I.M.’s testimony at the hearing demonstrated that she understood
her obligation to be truthful, had formed independent memories of the
occurrences, and could answer questions about them in her own words. The trial
court did not abuse its discretion by finding I.M. competent to testify.
III. Child Hearsay
Moore claims that the factors for admissibility of I.M.’s hearsay statements
weighed against, rather than in favor of admission. The State argues the trial
court did not abuse its discretion in allowing the hearsay testimony because the
factors support admission. Again, we agree with the State.
Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted. ER 801. Generally, hearsay evidence is not admissible unless
subject to an exception under rule or statute. ER 802. RCW 9A.44.120(1)(a)(i)
allows for admission of hearsay evidence “made by a child when under the age
6 During oral argument, Moore cited to In re Dependency of A.E.P., 135 Wn.2d 208, 956
P.2d 297 (1998), in support of his claim that I.M. was incompetent to testify because she did not have the ability to receive accurate impression at the time of the alleged events. In A.E.P., the trial court “had not been told by anybody when the events were supposed to have occurred.” 135 Wn.2d at 225. Without knowing the timeframe of the occurrence, the court could not properly assess whether the child had the capacity at the time of the event to receive an accurate impression and, therefore, abused its discretion by finding the child competent to testify. Id. at 225-26. Here, the timeframe is clear and I.M. testified to details of her visit and life in Washington. A.E.P. is inapposite.
13 No. 84854-2-I /14
of ten describing any act of sexual contact performed with or on the child by
another.”
When reviewing whether to admit hearsay evidence, the court must
conduct a hearing outside the presence of the jury and find “that the time,
content, and circumstances of the statement provide sufficient indicia of
reliability.” RCW 9A.44.120(1)(b). Admissibility of child hearsay statements does
not require a showing of testimonial competency at the time of the out-of-court
statements, including the ability to distinguish between truthful and false
statements and an understanding of the obligation to tell the truth. C.J., 148
Wn.2d at 682-83. Rather, the inquiry focuses on whether the comments and
circumstances surrounding the out-of-court statement indicate reliability. State v.
Borboa, 157 Wn.2d 108, 120, 135 P.3d 469 (2006).
The Supreme Court has identified nine factors that courts should consider
when assessing admissibility of child hearsay statements pursuant to RCW
9A.44.120, known as the Ryan 7 factors. Courts must consider
(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.
7 State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).
14 No. 84854-2-I /15
Woods, 154 Wn.2d at 623. These factors must be “substantially met,” and not
every factor must be satisfied. Id. We review a trial court’s decision on
admissibility of child hearsay statements for abuse of discretion. Id.
Here, the defense challenged the admissibility of several different
statements made to Williams, Kristine, the examining physician, and the forensic
interviewers. Kristine testified that during bath time right after returning to
Louisiana, I.M. complained to her of pain in her bottom and showed Kristine that
both her anus and vagina “were torn open” and said “[m]y daddy did this.”
According to Kristine, I.M. slowly revealed additional details and described
various acts of sexual abuse by her father. Williams testified that Kristine initially
informed her that I.M. had been sexually abused. A week or two after returning
from Washington, I.M. began talking directly to Williams about the abuse, saying
“daddy hurt me,” and “daddy touched my private parts.”
After I.M. made these disclosures, she was evaluated by a child abuse
physician. The physician testified that I.M. gave “history of sexual abuse by her
father.” A copy of the audio recording of the interview was admitted during the
hearsay hearing. In February 2021, a child forensic interviewer spoke with I.M. A
video of this interview was also admitted for the hearsay hearing.
The trial court admitted the hearsay statements made to Kristine, the
physician, and the forensic interviewer, but denied admission of Williams’s
hearsay testimony. During trial, Kristine testified about I.M.’s disclosure to her.
The State also played the recordings of the interviews with the examining
physician and forensic interviewer.
15 No. 84854-2-I /16
In assessing the Ryan factors, the trial court noted that not all of the
factors weighed in favor of admissibility. Notably, the court explained that as to
factor one, “[t]he motives of the adults around her are necessarily imparted onto
the child because she is aware of what people want of her.” The court
elaborated, “[t]here’s no question but that she at the age of eight understands
that to say something about her [great-] grandfather now would disrupt the family
that she’s now in. So, factor number one militates against admissibility.” For
factor two, the court acknowledged that I.M. had made statements that were not
true and, “in a given circumstance, this child will say something that isn’t true.
That is beyond dispute.” Factor three, whether more than one person heard the
statements, militated in favor of admissibility as “lots of people have heard these
statements.” Fourth, as to whether the statements were made spontaneously, the
court noted this generally depends on “whether or not the statements followed
leading questions,” and that as to Kristine, the physician, and the forensic
interviewer, the testimony indicated the statements were spontaneous, but it was
less clear as to Williams.
Regarding the fifth factor, the timing of the statement and the relationship
between the declarant and the witness, the close relationship with Kristine
“militates in favor of admissibility,” but did not “do[] much” with regard to Williams,
who did not have as close of a relationship. Regarding the sixth factor, whether
the statement was an assertion of past fact, the court stated, “I suppose it
militates in favor of admissibility” but “it’s a net zero.” As to the seventh factor,
whether cross-examination could show the declaration’s lack of knowledge, the
16 No. 84854-2-I /17
court found it could, but because I.M. would testify and be subject to cross-
examination, this factor did not “say a whole lot either way.” Finally, as to factor
eight, the court assessed whether or not I.M.’s recitation, rather than recall, is
likely faulty, concluding “the possibility of a faulty recitation of events is far from
remote,” so this factor did not weigh in favor of admission of the hearsay
statement.
Moore challenges the trial court’s analysis of the ninth factor, “whether the
surrounding circumstances suggested the child misrepresented the defendant’s
involvement,” which the court described as “a big one.” In assessing this factor,
the court considered the timing of the events:
[I.M.] was talking about something that she said her own father had done in Washington right after she came back from Washington, during a period of time when really the only people who could have had access to her were the defendant and his girlfriend, Nicole. And the other people that are -- who were subjects of former allegations, they would not have had access to [I.M.] any time in the recent past because, of course, she was in Washington. It is, of course, possible that they happened before she left Louisiana. But the circumstances, again, are that this disclosure came out right around the first opportunity that . . . [I.M.] would have had to confide in her grandmother. And so, these circumstances do more strongly support an inference that the declarant didn’t misrepresent the defendant’s involvement in her statements than that she did.
The trial court’s analysis of this factor is logical. I.M. had been with her father,
rather than any of the other potential abusers, for several months, including time
without her mother around. Moore had the most recent access to I.M. And I.M.
immediately confided the abuse to her grandmother when they were reunited.
The timing suggests that I.M. did not misrepresent Moore as the abuser in her
statements to Kristine.
17 No. 84854-2-I /18
Moore argues that the trial court should have analyzed the factor as
whether I.M. had a motive to lie, citing State v. Leavitt, 111 Wn.2d 66, 75, 758
P.2d 982 (1988). However, Leavitt merely states, “defendant’s claim that the
child lied in order to be cared for by her mother is unpersuasive, and the
circumstances are otherwise such that it is unlikely that the child misrepresented
the defendant’s involvement.” 111 Wn.2d at 75. In this case, the trial court’s
analysis reflects this approach, focusing on whether I.M. had a reason to lie at
the time she made the statement. The circumstances of I.M.’s statements, made
immediately after returning home from spending months with her father, make it
unlikely that she misrepresented Moore’s involvement.
Moore’s theory of the case relied directly on issues of credibility related to
I.M., Williams, and Kristine. Therefore, the trial court properly placed great weight
on factor eight in assessing admissibility of the hearsay statements. The timing
and circumstances support that I.M. did not misrepresent Moore’s involvement.
Given the abuse of discretion standard, we conclude the trial court did not err by
admitting the hearsay statements made to Kristine, the physician, and the
forensic interviewer.
IV. VPA and DNA Fee
The court imposed the required VPA and DNA fee but waived all other
legal financial obligations. While this case was pending on appeal, the legislature
enacted RCW 7.68.035(4), which prohibits the court from imposing the VPA “if
the court finds that the defendant, at the time of sentencing, is indigent.” The
legislature also amended RCW 43.43.7541 to remove the language that made
18 No. 84854-2-I /19
the DNA fee mandatory. See LAWS OF 2023, ch. 449, §§ 1(4), 4; State v. Ellis, 27
Wn. App. 2d 1, 17, 530 P.3d 1048 (2023). Amendments to cost statutes apply
prospectively to cases still pending on appeal. See State v. Wemhoff, 24 Wn.
App. 2d 198, 202, 519 P.3d 297 (2022).
At sentencing, the court found Moore indigent. The State concedes the
recent amendments require that these legal financial obligations be stricken. We
agree and remand to strike the VPA and DNA fee from Moore’s judgment and
sentence.
CONCLUSION
The trial court did not abuse its discretion in denying Moore’s CrR 8.3(b)
motion because he failed to demonstrate the requisite prejudice necessary for
the extraordinary remedy of dismissal. The court also did not abuse its discretion
by finding I.M. competent to testify and admitting her hearsay statements. We
affirm Moore’s convictions for two counts of child rape in the first degree and
child molestation in the first degree.
Affirmed, reversed and remanded to strike the VPA and DNA fees.
WE CONCUR: