State Of Washington, V. Donald Henry Moulton

• Court: Court of Appeals of Washington
• Decided: December 9, 2025
• Docket: 58963-0
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

December 9, 2025 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 58963-0-II

Respondent,

v.

DONALD HENRY MOULTON, UNPUBLISHED OPINION

Appellant.

GLASGOW, J.—OJ, a four-year-old girl, approached her mother and said that Donald

Moulton, her step-great-grandfather, had put his finger in her vagina while they were alone

together on Moulton’s boat. OJ then said the same thing during a forensic interview several days

later.

In January 2022, the State charged Moulton with first degree child rape. Based primarily

on requests from Moulton’s defense counsel, the trial court delayed Moulton’s trial until October

2023. Before trial, the trial court held a child hearsay hearing and found OJ unavailable to testify.

However, the trial court found OJ’s prior statements to her mother and to the forensic interviewer

sufficiently reliable to admit under RCW 9A.44.120, which allows admission of child hearsay

under specific circumstances.

At trial, OJ’s mother testified about OJ’s out-of-court statements, and the State played a

video recording of OJ’s forensic interview for the jury. The jury convicted Moulton of first degree

child rape, and the trial court sentenced him to an indeterminate sentence of 108 months to life.

On appeal, Moulton argues that the trial court violated his constitutional right to confront

witnesses by admitting OJ’s out-of-court statements. He also argues that the trial court abused its No. 58963-0-II

discretion by finding OJ’s statements sufficiently reliable for admission under RCW 9A.44.120.

Finally, Moulton argues that the trial court’s delay of his trial violated his constitutional right to a

speedy trial and the mandatory trial deadlines set out in CrR 3.3.

We conclude that because of her young age, OJ’s statements to her mother and the forensic

interviewer were not testimonial, so they do not implicate Moulton’s right to confront witnesses.

And the trial court’s findings that OJ’s statements were sufficiently reliable are supported by

substantial evidence. Finally, because Moulton’s defense counsel requested a majority of the

continuances that delayed trial, the trial court did not violate Moulton’s constitutional right to a

speedy trial or CrR 3.3. Accordingly, we affirm.

FACTS

I. BACKGROUND

In November 2021, OJ, a four-year-old girl, approached her mother and said she had a

secret. OJ’s mother told OJ, “[W]e don’t have secrets in our family” and asked OJ what happened.

1 Verbatim Rep. of Proc. (VRP) at 104. OJ said that she loved her “Grandpa Don,” which is what

she called Moulton, but he “stuck his finger in her vagina” and it hurt. Id.

Starting in the summer of 2021, Moulton spent time at OJ’s mother’s property working on

a boat that he was storing there. Moulton was OJ’s stepfather’s grandfather. OJ would sometimes

spend time with Moulton on the boat.

OJ’s mother recalled that in September 2021, she went out to the boat to check on OJ and

Moulton and saw OJ underneath blankets without any clothes on. OJ’s mother said that when she

asked why OJ was naked, Moulton replied that she had had an accident. When OJ’s mother entered

2 No. 58963-0-II

the boat, Moulton was fully clothed, and she did not hear any “sudden rustling or rushing around.”

3 VRP at 765.

One or two days after OJ disclosed the alleged sexual assault, OJ’s mother called 911 and

spoke with law enforcement. When she made this call, Moulton had not been to her property in at

least two weeks. Several days later, OJ participated in a forensic interview. The same day as the

interview, a nurse practitioner evaluated OJ and determined that OJ had a normal genital exam.

Police searched Moulton’s boat on OJ’s mother’s property and found no evidence of the alleged

sexual assault.

II. PRETRIAL

Police arrested Moulton and he was released from custody on January 6, 2022. The State

charged Moulton with one count of first degree child rape of OJ.

A. OJ’s Testimony at Child Hearsay Hearing

The trial court held a child hearsay hearing. Moulton’s counsel moved to exclude OJ’s

testimony because OJ’s mother had not allowed him to interview OJ before the hearing, so he

would be “flying blind” when examining OJ during the hearing. 1 VRP at 77. Moulton’s counsel

also alerted the trial court that he anticipated challenging OJ’s competency to serve as a witness.

The trial court moved forward, allowing OJ to testify at the hearing.

OJ testified first at the child hearsay hearing. The trial court established that OJ knew she

should tell the truth and demonstrated that she knew the difference between the truth and a lie. OJ

knew her age but did not remember her birthday. The State then also demonstrated that OJ knew

the difference between the truth and a lie. OJ testified that she had gotten in trouble “[a] lot” for

telling lies and then admitting that they were lies. 1 VRP at 83.

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OJ testified that she did not go by any other names besides her first name. She then

confirmed that she also went by a nickname. When asked on cross-examination whether she lied

when she stated earlier that she did not go by any other names, OJ said, “I did lie the first time”

and explained that it was because she was “a little nervous.” 1 VRP at 90. OJ then confirmed that

she knew she should not lie while on the stand.

OJ initially said she did not have a “Grandpa Don” and did not spend time with Grandpa

Don. 1 VRP at 83. She could not identify Moulton in the courtroom. When asked again if Moulton

was Grandpa Don, OJ replied, “I think.” Id. Immediately after this, when asked if she spent time

with Grandpa Don, OJ replied, “Yeah.” 1 VRP at 84. OJ confirmed that Grandpa Don had a boat

at her house, and she was on that boat with him when she was three years old. When asked if

Grandpa Don ever touched her on the boat, OJ said that he did “a few times” when she was hugging

him. Id. OJ said she had not “played doctors” with Grandpa Don or told anyone that she had played

doctors with him. Id. OJ also stated that she missed Grandpa Don and had not seen him in a long

time.

When asked if she ever told her mother a secret about Grandpa Don, OJ replied, “I don’t

keep secrets.” Id. She then said she had not told her mother about something that Grandpa Don

did. OJ also said she had not told her mother that Grandpa Don touched her. OJ stated that she had

never told her mother or anyone else a lie about Grandpa Don, and that if she had, she would have

told the truth if asked about it later.

When asked if she knew what “private parts” are, OJ answered, “My butt one.” 1 VRP at

86. When prompted to list other private parts, she said, “I have my nose and my mouth and my

ears are, my head is.” Id. OJ said that nobody had touched her vagina except for herself.

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During cross-examination, OJ said that she had not told the State she did not have a

Grandpa Don. OJ then again stated, “I don’t have a Grandpa Don,” and that she did not know who

Grandpa Don was. 1 VRP at 89.

After this exchange, OJ expressed that she was scared and refused to stand up from the

floor. The trial court allowed OJ’s child advocate to stand near her over defense counsel’s

objection. OJ’s behavior then started to deteriorate. She would not stand up or answer questions,

so the trial court took a short break. During questioning after the break, OJ struggled to focus and

said that she had “two faces.” 1 VRP at 93. She again stated that she had lied about her nickname

but she “didn’t mean to” and it was the only thing she had lied about that day. 1 VRP at 92. When

asked by defense counsel, she confirmed that lying was something she “can’t control.” 1 VRP at

93.

Defense counsel moved to find OJ incompetent as a witness. After hearing from both

parties, the trial court determined that OJ was incompetent and therefore unavailable as a witness

for trial. The trial court stated that OJ consistently understood her “obligation to speak the truth on

the witness stand” and could comprehend “[d]irect, simple questions.” 1 VRP at 98-99. But she

did not have sufficient independent memory or ability to express her memory of the alleged

occurrence. Given OJ’s testimony and “her brief meltdown,” the trial court concluded that she was

unavailable as a witness. 1 VRP at 99.

B. OJ’s Mother’s Testimony at Child Hearsay Hearing

The trial court then continued with the child hearsay hearing. OJ’s mother testified that

Moulton would come to their house to work on his boat, which he stored on their property. OJ’s

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mother testified that OJ and Moulton were alone together several times on the boat. She also stated

that Moulton had not been to their property for about a year.

OJ’s mother said that in November 2021, OJ approached her:

At first she didn’t want to tell me because she said that it was a secret, and that was a red flag for me, because we don’t have secrets in our family. And so I told her, you know, you can tell me anything, we don’t have secrets, and then she stated that she loves Grandpa Don, but he stuck his finger in her vagina.

1 VRP at 104. Immediately after this disclosure, she brought OJ to see OJ’s grandmother. When

asked to tell her grandmother what she had said to her mother, OJ again said that Moulton put his

finger in her vagina.

OJ’s mother recalled a prior instance where she walked onto the boat on her property and

saw OJ naked under a blanket. When she asked Moulton why OJ was naked, he said that OJ had

an accident and “just wanted to sleep like that.” 1 VRP at 107. Moulton was fully clothed when

she walked in and was not “moving about and fumbling around, trying to cover things up.” 1 VRP

at 118. OJ’s mother also remembered a conversation where Moulton said OJ “was asking questions

about her vagina and he said that he was educating her,” which OJ’s mother described as a “red

flag.” 1 VRP at 108.

OJ’s mother said that OJ would tell “simple” lies about things like whether she cleaned her

room and would sometimes lie to her cousin. 1 VRP at 109. Other than that, “[OJ] doesn’t lie.” 1

VRP at 110. In addition, when confronted with a lie about cleaning her room, for example, OJ

would apologize and fix it.

6 No. 58963-0-II

C. Forensic Interviewer’s Testimony at Child Hearsay Hearing

During the hearing, the forensic interviewer first explained that a forensic interview “is

a[n] interview that’s based on research and is done in preparation for a court hearing if one comes

up.” 1 VRP at 131. The trial court then watched a recording of OJ’s forensic interview.

During the forensic interview, OJ was excited and enthusiastic; she stood on her chair and

jumped around. Even while disclosing the alleged sexual assault, she exhibited active and childlike

behaviors, spinning in circles and wandering in a comfortable and playful manner.

The forensic interviewer asked OJ what she had eaten that day and OJ indicated that she

had not eaten anything, though she was eating chips at the time. However, when the interviewer

asked, “What about chips?” OJ said, “I was eating chips.” Ex. 40, at 3.

During the interview, OJ identified her chest, bottom, and vagina as “private parts.” Id. at

12. OJ told the forensic interviewer that Moulton put his finger in her vagina and it hurt, and she

demonstrated that act while lying on her back. OJ also said that she “jump[ed] to get his finger

out” and demonstrated that motion. Id. at 13. This occurred on the boat at her house. OJ said that

while on the boat with Moulton, they played games, including “doctors” where she “checked” him.

Id. at 16. She said that Moulton would do “kisses and cuddles.” Id. at 18. OJ demonstrated peck-

like kisses and wrapped her arms around her own torso and squeezed to show how Moulton

touched her. OJ told the forensic interviewer that somebody burned her and Moulton’s clothes and

they went outside naked.

After hearing arguments from both parties, the trial court found that OJ’s statements to her

mother and the child forensic interviewer were sufficiently reliable to be admitted as child hearsay.

The trial court also found OJ’s statements were sufficiently corroborated so that OJ’s mother and

7 No. 58963-0-II

the forensic interviewer could testify about them during trial even though OJ was unavailable to

testify because the trial court had ruled she lacked competence. More details about the trial court’s

ruling appear in the relevant analysis sections below.

III. TRIAL

Due to a variety of circumstances and requests from both parties, the trial court continued

Moulton’s trial many times. Moulton objected to eight of these requests for continuances.

Moulton’s trial began on May 10, 2023. However, due to a failure of the trial court’s recording

technology, the first three days of jury selection were not recorded, which led to a mistrial. Again,

based on multiple requests from both parties, the trial court further continued Moulton’s trial until

October 11, 2023, about 21 months after Moulton was first charged. We include a more detailed

description of the delays in the relevant analysis section below.

A. May 2023 Trial

At the trial on May 10, 2023, defense counsel moved to exclude the video of OJ’s forensic

interview and the forensic interviewer’s testimony. Defense counsel argued that admission of the

interview and testimony would violate Moulton’s right to confront witnesses. Defense counsel

argued that OJ’s statements to the forensic interviewer were testimonial and therefore could only

be admitted if defense counsel had the opportunity to cross-examine OJ.

The State responded that OJ’s statements were not testimonial because children her age do

not understand the purpose of their statements in the context of the criminal justice system. The

State contended that OJ’s behavior during the forensic interview demonstrated that OJ was a “very

energetic four-year-old girl who was playing around, sliding down chairs, eating chips. That might

have been the most telling of how this was not a formal interview from her mindset. This is, she’s

8 No. 58963-0-II

just having a talk. She’s having a talk with somebody who’s asking her questions about her

wellbeing.” 1 VRP at 212.

The trial court concluded that OJ’s statements were not testimonial because “statements

made by a child at three are almost never going to be testimonial. And there is absolutely nothing

in this case that points to those statements being testimonial.” 1 VRP at 221.1 The trial court denied

defense counsel’s motion to exclude the forensic interview and the forensic interviewer’s

testimony.

B. October 2023 Trial

Before opening arguments at the October 11 trial, defense counsel renewed his motion to

exclude the video of OJ’s forensic interview. The trial court again denied the motion.

At trial, OJ’s mother testified consistently with her statements during the child hearsay

hearing. OJ’s mother additionally testified that at some point during the period where OJ spent

time with Moulton, OJ’s behavior changed. OJ started to “get angry,” which OJ’s mother stated

was “very unlike her,” and began to have more accidents despite being potty trained. 3 VRP at

760. On cross-examination, OJ’s mother stated that OJ would sometimes take her clothes off when

she got too hot but would keep her underwear or her pants on.

The State played the video of OJ’s forensic interview for the jury and called the forensic

interviewer as a witness. The State also called the nurse practitioner who physically examined OJ

and the detectives who investigated the alleged incident as witnesses. The nurse testified that a

normal genital exam does not necessarily indicate that sexual abuse did not occur. And one of the

detectives testified that she did not look for burn piles while searching Moulton’s boat.

1 The trial court apparently misspoke. OJ was four years old at the time of the forensic interview.

9 No. 58963-0-II

The jury found Moulton guilty of one count of first degree child rape of OJ. The trial court

sentenced Moulton to an indeterminate standard-range sentence of 108 months to life with lifetime

community custody.

ANALYSIS

I. ADMISSION OF OJ’S OUT-OF-COURT STATEMENTS

A. Confrontation Clause

Moulton argues that the trial court’s admission of OJ’s out-of-court statements to her

mother and the child forensic interviewer, including the video of the forensic interview with OJ,

violated Moulton’s right to confront witnesses.

A criminal defendant has the right to confront the witnesses against them. U.S. CONST.

amend. VI.; WASH. CONST. art. I, § 22. The confrontation clause prohibits admission of testimonial

hearsay statements from a witness who did not appear at trial unless the witness was unavailable

to testify and the defendant had a prior opportunity for cross-examination. State v. Hall-Haught, 4

Wn.3d 810, 815, 569 P.3d 315 (2025). Accordingly, nontestimonial statements are outside of the

scope of the confrontation clause. State v. Wilcoxon, 185 Wn.2d 324, 332, 373 P.3d 224 (2016).

We review confrontation clause claims de novo. State v. Galeana Ramirez, 7 Wn. App. 2d 277,

283, 432 P.3d 454 (2019).

To determine whether a witness’s statements are testimonial, we apply the primary purpose

test. State v. Scanlan, 193 Wn.2d 753, 765-66, 445 P.3d 960 (2019). Generally, statements are

testimonial when circumstances indicate that the primary purpose of questioning a witness was “to

establish or prove past events potentially relevant to later criminal prosecution.” Davis v.

Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

10 No. 58963-0-II

However, in Ohio v. Clark, the United States Supreme Court explained that statements “by

very young children will rarely, if ever, implicate the Confrontation Clause.” 576 U.S. 237, 247-

48, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015). This is because research demonstrates that young

children do not understand the details of the criminal justice system. Id. at 248. The Court thus

concluded that a 3-year-old’s statements to his teachers were not testimonial in part because it was

“extremely unlikely” that he intended his statements to be a substitute for trial testimony. Id. A

young child disclosing abuse in these circumstances “would simply want the abuse to end, would

want to protect other victims, or would have no discernable purpose at all.” Id. The Clark Court

also recognized that “‘the informality of the situation and the interrogation’” is a factor to consider

when determining if statements are testimonial. Id. at 245 (quoting Michigan v. Bryant, 562 U.S.

344, 377, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)). For example, a formal police station

interrogation “is more likely to provoke testimonial statements, while less formal questioning is

less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the

accused.” Id.

Surveying federal and state cases applying the confrontation clause, including Clark,

Division One also concluded that in some circumstances, statements are not testimonial where the

declarant is unaware that their statements will possibly be used later in a criminal prosecution,

even when the interviewer is asking the declarant questions for that purpose. See State v.

Ta’afulisia, 21 Wn. App. 2d 914, 930-38, 508 P.3d 1059 (2022).

Moulton contends that OJ’s statements to her mother and to the forensic interviewer were

made for the purpose of investigating and prosecuting Moulton, and they were therefore

testimonial. We disagree.

11 No. 58963-0-II

OJ’s statements to her mother were spontaneous; OJ’s mother was not aware that OJ would

discuss Moulton or an alleged sexual assault until after the statements were made. Thus, OJ’s

statements were not made for the purpose of establishing facts for a criminal prosecution and were

not testimonial.2

Although the forensic interviewer’s primary purpose was to gather evidence potentially to

be used at trial, OJ was only four years old when she spoke to the interviewer. The forensic

interviewer did not inform OJ that her statements would potentially be used to prosecute Moulton

and asked mostly open-ended questions about OJ’s experiences instead of direct, interrogative

questions. Even though the forensic interviewer’s purpose was to determine whether a crime

occurred that should be prosecuted, the interviewer’s purpose alone is not determinative under our

case law. See Ta’afulisia, 21 Wn. App. 2d at 930-38. Here, OJ was so young that her answers were

likely not given with investigation or prosecution in mind. During the interview, OJ seemed

relaxed and excited and was jumping around and eating chips. This reflects a more informal

environment than a traditional police interview and demonstrates that OJ did not understand that

her statements during the interview could be used for the very serious purpose of prosecuting

Moulton. OJ’s actions align with the reasoning in Clark that statements from young children “will

rarely, if ever, implicate the Confrontation Clause” because very young children often cannot

comprehend the implications of the criminal justice system. 576 U.S. at 248. Accordingly, OJ’s

statements during the forensic interview were not testimonial.

2 Although we resolve this issue, we note that Moulton only nominally raises this issue in his opening brief but does not analyze or discuss this issue at all.

12 No. 58963-0-II

Because we hold that OJ’s statements to her mother and the forensic interviewer were not

testimonial, they do not implicate the confrontation clause. Wilcoxon, 185 Wn.2d at 332. Thus, we

need not address whether Moulton had an opportunity to cross-examine OJ in the context of this

claim.

B. Child Hearsay

Moulton argues that the trial court erred by admitting OJ’s hearsay statements to her mother

and the forensic interviewer as child hearsay.

1. Legal principles

Under RCW 9A.44.120(1)(a)(i), a trial court may admit an otherwise inadmissible hearsay

statement from a child under the age of ten “describing any act of sexual contact performed with

or on the child by another.” To admit these child hearsay statements, 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). Additionally, either the

child must testify at trial, or the trial court must find that the child is unavailable as a witness and

there is corroborative evidence of the alleged sexual assault. RCW 9A.44.120(1)(c)(i)-(ii).

Often in cases of sexual child abuse, prosecutors “must rely on the testimony of the child

victim to make their cases because in general, acts of abuse occur in private and often leave no

physical evidence.” State v. Houser, 30 Wn. App. 2d 235, 264, 544 P.3d 564, review denied, 3

Wn.3d 1015 (2024). The child hearsay statute is meant to ameliorate “the difficult problems of

proof that often frustrate prosecutions for child sexual abuse.” State v. Jones, 112 Wn.2d 488, 493-

94, 772 P.2d 496 (1989).

13 No. 58963-0-II

Courts consider nine factors to determine whether to admit child hearsay statements under

RCW 9A.44.120, as outlined by the Washington Supreme Court in State v. Ryan, 103 Wn.2d 165,

175-76, 691 P.2d 197 (1984). Houser, 30 Wn. App. 2d at 266. The Ryan factors are

(1) whether there is an apparent motive to lie, (2) the general character of the declarant, (3) whether more than one person heard the statement, (4) the spontaneity of the statements, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) whether the statement contained express assertions of past fact, (7) whether the declarant’s lack of knowledge could be established through cross-examination, (8) the remoteness of the possibility of the declarant’s recollection being faulty, and (9) whether the surrounding circumstances suggested the declarant misrepresented the defendant’s involvement.

State v. Kennealy, 151 Wn. App. 861, 880, 214 P.3d 200 (2009) (footnote omitted). “No single

Ryan factor is dispositive,” and courts must determine that these factors are “‘substantially met”’

from an overall evaluation of the circumstances. Houser, 30 Wn. App. 2d at 266; Kennealy, 151

Wn. App. at 881 (quoting State v. Griffith, 45 Wn. App 728, 738-39, 727 P.2d 247 (1986).

“We review a trial court’s decision to admit child hearsay statements for an abuse of

discretion.” Kennealy, 151 Wn. App. at 879. A trial court abuses its discretion if its decision is

manifestly unreasonable or based on untenable grounds or reasons. Id. “We review challenges to

findings of fact to determine whether substantial evidence supports each challenged finding.” State

v. A.X.K., 12 Wn. App. 2d 287, 298, 457 P.3d 1222 (2020). “Substantial evidence is evidence

sufficient to persuade a fair-minded, rational person of the truth of the premise’s assertion.” Id.

Appellate courts may use the trial court’s oral rulings to interpret written findings and conclusions

if no inconsistency exists. State v. Ward, 125 Wn. App. 138, 145, 104 P.3d 61 (2005).

2. Application of the Ryan factors

Moulton contends that the trial court abused its discretion by concluding that the Ryan

factors of reliability were substantially met. Specifically, Moulton challenges the trial court’s

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findings that factor 1 (apparent motive to lie), factor 2 (general character of declarant), factor 5

(timing of declaration and relationship between declarant and witness), and factor 8 (possibility

the declarant’s recollection is faulty) weighed in favor of finding OJ’s statements admissible. See

CP at 44-45.

a. Factor 1: apparent motive to lie

The trial court found that there was nothing in the testimony at the child hearsay hearing

that indicated OJ had a motive to lie about her allegations. In fact, OJ testified that she loved and

missed Moulton and her mother’s testimony showed she liked to spend time with him. The trial

court found that, on balance, this factor weighed in favor of reliability.

Moulton argues that the trial court ignored OJ’s demeanor at the child hearsay hearing,

which showed “a complete disregard for the truth.” Br. of Appellant at 35. Specifically, Moulton

contends that OJ showed a propensity to lie and told the forensic interviewer “outlandish things”

like Moulton had burned their clothes while outside the boat naked and that she had not eaten

anything the day of the interview while she was eating chips. Id.

Though OJ sometimes struggled to provide consistent or relevant statements during the

child hearsay hearing, nothing from her testimony indicated that she had a motive to lie that

Moulton sexually assaulted her. As the trial court indicated, OJ said that she loved and missed

Moulton, and she did not seem to understand the implications of the hearing. During both the

hearing and the forensic interview, OJ exhibited many characteristics of an active and easily

distractable young child, but not one with a reason to lie about this allegation. Substantial evidence

supports the trial court’s finding that OJ had no apparent motive to lie.

15 No. 58963-0-II

b. Factor 2: general character of declarant

The trial court found that OJ’s mother was “open about defiance and truthfulness issues at

home,” and testified that OJ “generally interacted well with others and made friends easily,

although tended to be nervous around people she didn’t know.” Clerk’s Papers (CP) at 43. The

trial also court found that though OJ “sometimes tells fibs,” the testimony at the child hearsay

hearing indicated that when confronted with those lies, “she rapidly backtracks and tries to make

things correct.” 1 VRP at 165. The trial court stated that this was a “normal childlike response to

when you’re caught with being [in] a fib,” and concluded that OJ was “just an eccentric, happy

five-year-old with way too much energy.” Id. The trial court ultimately concluded that there was

“no testimony of any propensity to telling falsehoods or creating any more disturbance” than any

other young child and that this factor weighed in favor of OJ’s reliability. CP at 43.

Moulton argues that the trial court “disregarded evidence that [OJ] was evasive, admitted

lying at times, [and] openly lied about absurd things,” which indicated that she did not have a

reputation for telling the truth. Br. of Appellant at 36.

“When assessing a child’s general character, we look to whether the child has a reputation

for truthfulness.” Kennealy, 151 Wn. App. at 881. Though there was testimony from OJ and her

mother that OJ sometimes told small lies, as the trial court found, the record also reflects that OJ

admitted when she lied and corrected the statements. OJ testified that she knew the difference

between the truth and a lie and the trial court found her sufficiently trustworthy given the normal

developmental limitations of her age. Moulton has not shown a lack of substantial evidence to

support the trial court’s finding.

16 No. 58963-0-II

c. Factor 3: whether more than one person heard the statements

The trial court found that both OJ’s mother and the child forensic interviewer heard OJ’s

consistent disclosures. The trial court determined that this factor weighed in favor of OJ’s

reliability. Moulton does not challenge this finding.

d. Factor 4: spontaneity of the statements

The trial court determined that OJ’s initial statements to her mother were spontaneous

because OJ brought up the alleged incident without any prompting. The trial court also stated that

OJ’s statements to the forensic interviewer were spontaneous because the forensic interviewer’s

“processes and training” were “designed to be child-driven and not lead the child to a preferred or

pre-determined place or disclosure.” CP at 44. The trial court found that this factor weighed in

favor of OJ’s reliability. Moulton does not challenge this finding.

e. Factor 5: timeline of declaration and relationship between declarant and witness

The trial court acknowledged that OJ’s disclosure was at most a few months after the

alleged incident. However, the trial court noted that consistent disclosures to OJ’s mother and the

forensic interviewer occurred within one week. And the trial court concluded that nothing

indicated OJ did not have a positive relationship with her mother, and OJ had no relationship with

the forensic interviewer at the time of the interview. Accordingly, the trial court concluded that

this factor weighed in favor of OJ’s reliability.

Moulton argues that before OJ’s initial disclosure, OJ’s mother said that their family had

no “‘secrets,’” and this created an expectation that OJ would have to tell her “something in order

to avoid being seen as keeping secrets, contrary to the family credo.” Br. of Appellant at 37.

17 No. 58963-0-II

Moulton contends that this demonstrates that the relationship and circumstances of the declaration

were not neutral.

When a witness “is in a position of trust with a child, this factor is likely to enhance the

reliability of the child’s statement.” Kennealy, 151 Wn. App. at 884. Here, as the trial court found,

there is nothing on this record that indicates OJ had anything but a positive relationship with her

mother. And OJ approached her mother spontaneously, stating that she had a secret; the fact that

OJ’s mother said their family did not keep secrets under these circumstances does not indicate that

OJ’s mother was putting pressure on OJ to reveal something about Moulton specifically. This

factor weighs in favor of reliability.

f. Factor 6: whether the statements contained express assertions of past fact

The trial court acknowledged that courts no longer look to this factor when assessing

reliability and accordingly did not address it. Moulton does not challenge this finding.

g. Factor 7: whether declarant’s lack of knowledge could be established through cross-examination

The trial court noted that the State conceded this factor weighed against reliability, and

Moulton does not challenge the trial court’s finding regarding this factor.

h. Factor 8: possibility declarant’s recollection is faulty

The trial court said it was balancing OJ “being a four-year-old and being prone to small

fibs” with “her appropriate four-year-old’s reaction to when she’s confronted with those types of

things” and “the consistency of [her] statements when she does make the statements.” 1 VRP at

169. The trial court also wrote that

[OJ’s] disclosures are consistent and nothing in this hearing indicated any defect in memory at the time of the disclosures. Each of the disclosures discuss Grandpa Don putting his finger in her vagina. This includes both the statement to her mother and

18 No. 58963-0-II

to [the forensic interviewer] in the forensic interview. It is highly unlikely her memory was faulty at the time of the initial disclosures.

CP at 44-45. Ultimately, the trial court concluded that this factor weighed in favor of reliability.

Moulton argues that OJ “was given to making outlandish, clearly false claims” and lied to

the forensic interviewer though she claimed she knew she had to tell the truth during the interview.

Br. of Appellant at 38. As a result, Moulton contends that “it cannot be realistically assumed that

the allegation of sexual abuse falls firmly into the realm of reality.” Id.

“[W]hen a child makes a statement soon after an event and then makes consistent

statements to other people shortly thereafter, there is little possibility that the child’s recollection

was faulty.” Kennealy, 151 Wn. App. at 884. Additionally, young children are “‘unlikely to

fabricate a graphic account of sexual activity because such activity is beyond the realm’” of their

experience. Id. (internal quotation marks omitted) (quoting State v. Frey, 43 Wn. App. 605, 610,

718 P.2d 846 (1986)).

Here, though the record does not establish exactly when the alleged sexual assault occurred,

OJ made consistent statements that Moulton put his finger in her vagina to her mother and the

forensic interviewer within a few days. Additionally, while OJ’s broader testimony was not always

consistent and sometimes included fantastical elements, her testimony about the assault itself was

consistent. OJ’s testimony constitutes a description of the kind of graphic sexual activity that courts

have found young children are unlikely to make up because it is typically beyond their experience.

Thus, the trial court did not abuse its discretion in finding this factor weighs in favor of reliability.

19 No. 58963-0-II

i. Factor 9: surrounding circumstances

When considering this factor, the trial court said that it had “significant concerns” about

the “potentially vibrant fantasy aspect” to some of OJ’s statements, like when she said her and

Moulton’s clothes were burned. 1 VRP at 169. The trial court then stated,

[W]e’re balancing that against the statements which are consistent, and in watching the video, that the physical actions demonstrated by [OJ] . . . are consistent with her statements. You know, the description of the hug. And I think, [defense counsel], you used the phrase bearhug, and that was exactly how [OJ] demonstrated that. But when she also talked about the touching of her vagina, she flopped down on her back, spread her legs, grabbed her vagina or very near to it. All in all, I think [factor] nine is a wash.

Id. Moulton does not challenge the trial court’s assessment of this factor.

3. Conclusion

We hold that the trial court did not abuse its discretion when it found facts related to the

Ryan factors, found the Ryan factors were substantially met, and determined that OJ’s statements

to her mother and the forensic interviewer were sufficiently reliable under a balancing of the Ryan

factors. As established above, each of the trial court’s challenged findings was supported by

substantial evidence.

In his assignments of error, Moulton also challenges the trial court’s finding that

corroborative evidence of the alleged assault supported OJ’s hearsay statements. The trial court

found that OJ’s statements were corroborated by several pieces of evidence: Moulton’s boat was

on OJ’s mother’s property and Moulton was routinely there; OJ’s mother saw OJ naked on the

boat with Moulton on one occasion; OJ’s mother testified that Moulton said OJ asked him about

her vagina; and during the forensic interview, OJ demonstrated jumping to get Moulton’s finger

out of her vagina. The argument made in Moulton’s brief does not specifically refute the trial

20 No. 58963-0-II

court’s reasoning. Thus, there has not been a showing of an abuse of discretion as to this aspect of

the child hearsay analysis.

In sum, we conclude that the trial court did not err when it admitted OJ’s out-of-court

statements, including the video of the forensic interview.

II. DELAY OF TRIAL

Moulton argues that the trial court committed reversible error by delaying his trial for

almost 21 months. He argues that this violated his constitutional right to a speedy trial and the

required trial deadlines outlined in CrR 3.3. We disagree.

A. Trial Timeline

Moulton appeared for his arraignment on January 18, 2022, and trial was set for April 5,

2022. Moulton’s final trial did not start until October 11, 2023, almost 21 months after his

arraignment.

Throughout Moulton’s proceedings, defense counsel asked for 7 out of the 10 trial

continuances. This included seven defense requests for continuances that ultimately delayed

Moulton’s time for trial date under CrR 3.3.3 Defense counsel requested to delay trial for several

reasons, all relating to his ability to properly prepare for Moulton’s defense. For example, defense

counsel asked for several continuances because he needed more time to investigate or to schedule

an interview with OJ, whose mother refused to let him interview her. He also requested

continuances because he needed more time between the child hearsay hearing and trial, because

3 Defense counsel also requested, and the trial court granted, many more trial continuances that did not delay the time for trial date under CrR 3.3. Moulton also objected to two of these requests for continuances.

21 No. 58963-0-II

of other trials and preplanned vacations, and because counsel was sick. On several occasions,

Moulton signed a waiver of speedy trial for these continuances.

Moulton objected to two of his defense counsel’s requests for continuances that delayed

the time for trial date. During one of his objections on September 19, 2022, Moulton requested

dismissal of his case under CrR 3.3: “It seems overwhelming at this point, that the case should be

dismissed because it cannot reach a trial date within the reasonable parameters. I see it as numbers

in my head. That’s what the numbers say.” 1 VRP at 54. The trial court found that defense counsel

had established a need for a delay to properly prepare for trial by continuing to attempt to make

arrangements to interview OJ to assess her competence and prepare for the child hearsay hearing.

Defense counsel was also concerned about too short a time between the child hearsay hearing and

the start of trial. For Moulton’s second objection, the trial court found that a delay was warranted

because of defense counsel’s long-planned, out-of-state travel to take his son to college.

In addition, during Moulton’s proceedings, the State requested only four trial continuances.

On August 29, 2022, the State requested a period to be excluded from the time for trial calculation

until September 10 because a key medical witness was unavailable. Moulton’s defense counsel

agreed to the continuance, stating that he was not ready for trial because he still needed to schedule

a deposition with OJ. Moulton objected to the continuance and requested dismissal of his case

under CrR 3.3. The trial court granted the State’s continuance request due to the witness’s

unavailability, and Moulton’s counsel stated he needed more time. The trial court also denied the

request for dismissal.

On March 21, 2023, the State requested two excluded periods totaling three weeks because

one witness had just had surgery and another detective witness was unavailable due to training.

22 No. 58963-0-II

Moulton objected to the continuance. However, defense counsel noted that between the excluded

periods, he would be away on vacation and did not “see any prejudice to the presentation of Mr.

Moulton’s case” if the trial court granted the continuance. 1 VRP at 184. The trial court granted

the State’s continuance due to witness unavailability and, again, defense counsel said there would

not be prejudice to Moulton’s case.

On September 12, 2023, the State requested a two-week continuance because a detective

witness was unavailable due to training. The trial court granted the continuance over Moulton’s

objection. However, this continuance did not delay Moulton’s time for trial date.

On September 26, 2023, the State asked for a week-long continuance because a key witness

was out of state. Defense counsel asked to proceed with trial but noted that he would not be willing

to stipulate to a missing witness instruction and that he did not “see any prejudice to Mr. Moulton’s

ability to present a case with the [c]ourt granting a continuance,” even “notwithstanding Mr.

Moulton’s continued objection to violation to his speedy trial rights.” 1 VRP at 274. The trial court

granted the State’s continuance over Moulton’s objection because of witness availability and,

again, defense counsel acknowledged there would be no prejudice to Moulton’s case.

B. Constitutional Right to Speedy Trial

Moulton argues that the trial court violated his constitutional right to a speedy trial. We

disagree.

The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution both guarantee a criminal defendant the right to a speedy trial. State v.

Ross, 8 Wn. App. 2d 928, 932, 441 P.3d 1254 (2019). Under United States Supreme Court

23 No. 58963-0-II

precedent, prosecutors and the courts bear the “‘primary burden’” to ensure that cases are brought

to trial efficiently. Id. (quoting Barker v. Wingo, 407 U.S. 514, 529, 92 S. Ct. 2182, 33 L. Ed. 2d

101 (1972)).

Our analysis for the right to a speedy trial under the Sixth Amendment and article I, section

22 is substantially the same. Id. at 941. “We review de novo whether a defendant’s constitutional

right to a speedy trial has been violated.” Id.

To trigger a constitutional speedy trial analysis, a defendant must first “make a threshold

showing that the time between the filing of charges and trial exceeded the ordinary interval for

prosecution and crossed into presumptively prejudicial delay.” Id. at 942.

Once a defendant makes this threshold showing, we then apply the balancing analysis

outlined in Barker to determine if the delay violated the defendant’s constitutional right to a speedy

trial. State v. Ollivier, 178 Wn.2d 813, 827, 312 P.3d 1 (2013). The nonexclusive Barker factors

include the “[l]ength of delay, the reason for the delay, the defendant’s assertion of [their] right,

and prejudice to the defendant.” Barker, 407 U.S. at 530. The Barker analysis is fact-specific and

dependent “on the particular circumstances of the case.” Ross, 8 Wn. App. 2d at 942. No one

Barker factor “is sufficient or necessary to find a violation, but they assist in determining whether

the speedy trial right was violated.” Id.

2. Application of Barker factors

The State concedes that the delay in this case was sufficient to trigger the Barker analysis.

a. Length of the delay

The first Barker factor “focuses on the extent to which the delay stretches past the bare

minimum needed to trigger the Barker analysis.” State v. Iniguez, 167 Wn.2d 273, 283-84, 217

24 No. 58963-0-II

P.3d 768 (2009). The Ollivier court cited cases from other jurisdictions where delays ranging from

21 months to over four years were not considered “exceptionally long” if “the delay was

attributable to the defense.” 178 Wn.2d at 828. The court determined that, under this Barker factor,

the 23-month trial delay allowing defense counsel to prepare for Ollivier’s defense weighed against

finding a violation of Ollivier’s speedy trial right. Id. at 830-31.

Moulton argues that the delay of his trial for almost 21 months, which both parties agree

triggers the Barker analysis, weighs in favor of a speedy trial violation. We disagree.

Here, while a 21-month delay triggers the Barker analysis, it is not exceptionally long

under our case law. This is particularly true because Moulton’s defense counsel requested a

majority of the continuances that led to the delay in this case. Accordingly, the length of the delay

weighs against finding the trial court violated Moulton’s right to a speedy trial.

b. Reason for the delay

The second Barker factor, the reason for the delay, is “the focal point of the balancing

analysis.” Ross, 8 Wn. App. 2d at 944. Our analysis of this factor focuses on whether the State or

the defendant is “‘more to blame’” for the delay. Id. (quoting Doggett v. United States, 505 U.S.

647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992)). “The State’s deliberate delays will be

weighed heavily against it, but even negligence that causes delay will be weighed against the

State.” Id. On the other “end of the spectrum is the situation where the defendant requests or agrees

to the delay and therefore ‘is deemed to have waived his speedy trial rights as long as the waiver

is knowing and voluntary.’” Ollivier, 178 Wn.2d at 831 (quoting Iniguez, 167 Wn.2d at 284). Even

where the defendant objects to defense counsel’s requests for continuances, the delay is still

25 No. 58963-0-II

attributable to the defendant if defense counsel sought the continuances in order to provide

adequate representation. Id. at 834-35.

Moulton acknowledges that the reason for the delay was due to both the State’s and defense

counsel’s requests for continuances and that he signed several speedy trial waivers. However,

Moulton argues that the trial court violated his constitutional right to a speedy trial under this factor

because, on several occasions, he “strenuously objected” to the motions to continue and moved for

dismissal of the case based on speedy trial grounds. Br. of Appellant at 45.

Here, the majority of the continuances were requested by defense counsel in order to

properly prepare for trial. The four continuances requested by the State, all based on witness

unavailability, are understandable given multiple delays over almost two years and the difficulty

of coordinating several witnesses over indefinite and extended periods of time. Accordingly, this

factor weighs against finding that the trial court violated Moulton’s right to a speedy trial.

c. Defendant’s assertion of their right

For the third Barker factor, Moulton acknowledges that when “a defendant asserts the right

to speedy trial but his or her attorney seeks continuances to prepare for trial, this factor is neutral.”

Br. of Appellant at 45 (citing Ollivier, 178 Wn.2d at 839-40). Moulton also notes that a trial court

“may grant continuances for good cause, even without the consent of the defendant.” Id. However,

despite these concessions, Moulton argues that his repeated objections should “weigh heavily” in

favor of finding that the trial court violated his right to a speedy trial. Br. of Appellant at 46.

We agree that this factor is neutral where here, like in Ollivier, Moulton’s defense counsel

sought a majority of the continuances to properly prepare for trial. 178 Wn.2d at 838-40. To the

extent Moulton objected to the State’s requested continuances, this factor is outweighed by other

26 No. 58963-0-II

considerations, including the State’s need to reschedule witness testimony multiple times to

accommodate defense counsel’s requested continuances.

d. Prejudice to defendant

Under the fourth Barker factor, a defendant may be prejudiced by delay because of (1)

oppressive pretrial incarceration, (2) the defendant’s anxiety and concern, and (3) the possibility

that the defendant’s dimming memories and the loss of exculpatory evidence will impair the

defense. Ross, 8 Wn. App. 2d at 955.

Defendants generally must show actual prejudice to establish a violation of their right to

speedy trial. Id. at 956. “However, prejudice will be presumed when the delay results from the

State’s negligence and there has been ‘extraordinary delay.’” Id. (quoting Ollivier, 178 Wn.2d at

842). Courts have generally presumed prejudice only in cases where the delay was at least five

years. See Ollivier, 178 Wn.2d at 842-43. And in Ollivier, the court held that a delay of 23 months

was not sufficient to establish actual prejudice on its own. Id. at 821, 843.

Moulton argues that the length of the delay in this case creates a strong presumption of

actual prejudice. Moulton contends that “sufficiently unjustified and egregious delay can warrant

relief even in the absence of specifically identifiable prejudice, because excessive delay

compromises the reliability of a trial in ways that cannot be proven or even clearly identified.” Br.

of Appellant at 46.

Here, Moulton’s trial was delayed for almost 21 months, less than the defendant’s in

Ollivier. And like in Ollivier, Moulton’s defense counsel requested a majority of the continuances

because he needed time to properly prepare in order to adequately represent Moulton at trial. This

delay is not sufficient to establish prejudice on its own.

27 No. 58963-0-II

Additionally, Moulton was not incarcerated before trial, which weighs against a finding of

prejudice. Generally, a defendant’s anxiety and concern are “‘always present to some extent, and

thus absent some unusual showing [are] not likely to be determinative in defendant’s favor.’”

Ollivier, 178 Wn.2d at 845 (quoting WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING &

ORIN S. KERR, CRIMINAL PROCEDURE § 18.2(e) (3d ed. 2007) (footnotes omitted)). Moulton has

not made a showing that he experienced any unusual anxiety or concern due to the delay of his

trial. The primary evidence in this case was OJ’s initial statements to her mother and the forensic

interviewer. The trial court determined that OJ was unavailable as a witness at trial, so the loss of

her memory due to trial delay was not relevant. A recording of the forensic interview was played

at trial, so concerns about memory of the forensic interviewer were not relevant. And OJ’s mother

testified consistently with the statements she initially made to the police about what OJ disclosed.

Accordingly, Moulton has not demonstrated actual prejudice due to the delay, and this

factor weighs against finding that the trial court violated Moulton’s constitutional right to a speedy

trial.

e. Conclusion

Considering all the Barker factors, the trial court did not violate Moulton’s constitutional

right to a speedy trial by granting continuances delaying his trial.

C. CrR 3.3

Moulton also argues that the trial court violated his right to a speedy trial under CrR 3.3

and his conviction should be remanded for dismissal in accordance with this rule. Moulton

acknowledges that under CrR 3.3, “a motion for continuance made by defense counsel is generally

28 No. 58963-0-II

presumed to waive objection on behalf of the defendant.” Br. of Appellant at 49. However, he

argues that “this rule is not limitless” and the trial court failed to provide an “articulable, adequate

basis” for continuances outside of the CrR 3.3 deadline. Id. at 49, 50.

Under CrR 3.3(b)(2)(i), a defendant not held in custody pending trial must be tried within

90 days of their arraignment. A trial court may continue trial based on a motion from either party

if the continuance “is required in the administration of justice” and the defendant’s case will not

be prejudiced. CrR 3.3(f)(2). Under the rule, a motion for a continuance “by or on behalf of any

party waives that party’s objection to the requested delay.” Id. (emphasis added). We review a trial

court’s decision to grant or deny a motion for a continuance for an abuse of discretion. Ollivier,

178 Wn.2d at 822-23.

In Ollivier, the Washington Supreme Court held that because Ollivier’s defense counsel

sought the continuances, any of Ollivier’s objections to those continuances were waived. Id. at

824. Ollivier also argued that the trial court granted the continuances without sufficient

investigation or reason. Id. at 822. However, the court concluded that the trial court did not abuse

its discretion by granting continuances where defense counsel requested additional time in order

to properly prepare for Ollivier’s defense. Id. at 824-25.

Moulton cites State v. Saunders, 153 Wn. App. 209, 220 P.3d 1238 (2009), as a case where

this court “dismissed a conviction for a CrR 3.3 violation despite defense counsel’s agreement to

continuances beyond the speedy trial period.” Br. of Appellant at 49-50. However, Ollivier

distinguishes Saunders:

In Saunders, three continuances at issue were granted that the Court of Appeals found to be unsupported by convincing and valid reasons. Indeed, the continuances were granted to permit ongoing plea negotiations over the defendant’s objection and contrary to his desire to go to trial. As the State points out in the present case,

29 No. 58963-0-II

whether to plead guilty is an objective of representation controlled by the defendant and not a matter of trial strategy to achieve an objective. In contrast, under CrR 3.3, counsel has authority to make binding decisions to seek continuances. Saunders is unlike Mr. Ollivier’s case because here the continuances were sought to enable defense investigation and preparation for trial.

Ollivier, 178 Wn.2d at 824-25 (footnote omitted) (citations omitted).

This case is more like Ollivier than Saunders. Moulton’s counsel requested a majority of

the trial continuances in this case, sometimes over Moulton’s objections. Defense counsel provided

a variety of reasons for these continuances, including difficulty scheduling witness interviews,

inability to properly prepare for Moulton’s defense in the required time period, and delay from

other trials. Under CrR 3.3(f)(2), Moulton’s defense counsel’s motions waived any of Moulton’s

objections to postponement of his time for trial date. Like in Ollivier, and unlike in Saunders,

Moulton’s defense counsel moved for continuances to enable an adequate defense and preparation

for trial.

As explained above, the State only requested four continuances in the course of Moulton’s

proceedings, and only three of these resulted in an extension of the time for trial date. The State

supported each of its requests with reasons that justified delay for the “administration of justice.”

CrR 3.3(f)(2); see State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993) (“The

unavailability of a material State witness is a valid ground for continuing a criminal trial where

there is a valid reason for the unavailability, the witness will become available within a reasonable

time, and there is no substantial prejudice to the defendant.”). This is particularly true where

defense counsel repeatedly requested continuances and the State had to coordinate the availability

of multiple witnesses for almost two years. Additionally, for each of the three continuances that

the State requested and that delayed the time for trial date, Moulton’s defense counsel stated that

30 No. 58963-0-II

Moulton’s defense would not be prejudiced by the delay. Accordingly, the trial court did not err

by granting the State’s requested continuances under CrR 3.3(f)(2), and Moulton’s trial does not

require dismissal on appeal.

CONCLUSION

We affirm Moulton’s conviction.

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 in accordance with RCW

2.06.040, it is so ordered.

GLASGOW, J. We concur:

LEE, P.J.

CHE, J.