State Of Washington, V Jeffrey Lee Antee

• Court: Court of Appeals of Washington
• Decided: January 23, 2023
• Docket: 84590-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84590-0-I Respondent, DIVISION ONE v.

JEFFREY LEE ANTEE, UNPUBLISHED OPINION

Respondent.

CHUNG, J. — Jeffrey Antee was convicted of rape, molestation, and

assault of his stepdaughter. He appeals his conviction for rape of a child in the

first degree, contending that admission of child hearsay statements violated his

constitutional right to confrontation. Because the child declarant testified and

Antee had ample opportunity for cross-examination, admission of the statements

did not infringe on his right to confrontation. We affirm.

FACTS

The State charged Antee with three counts of rape of a child in the first

degree, one count of child molestation in the first degree, one count of assault of

a child in the second degree, and two counts of assault of a child in the third

degree based on allegations of sexual and physical abuse against his 4-year-old

stepdaughter, D.D. 1

1 The second degree assault of a child charge and one of the third degree

assault of a child charges carried domestic violence designations. No. 84590-0-I/2

Prior to a jury trial, the State sought admission of statements by D.D. to

her mother, family friend, police officer, Sexual Assault Nurse Examiner (SANE),

and therapist. These statements consisted of descriptions of physical and sexual

contact between Antee and D.D. As required by the child hearsay statute, RCW

9A.44.120(1)(b), the court held two hearings to assess whether D.D. was

competent as a witness and whether her statements had sufficient indicia of

reliability for admission under the child hearsay statute. At the conclusion of the

hearings, the trial court concluded that D.D. was competent as a witness, she

was available to testify within the meaning of RCW 9A.44.120, and her

statements about sexual abuse to her mother, the family friend, and the police

officer were reliable and admissible child hearsay pursuant to that statute. As for

D.D.’s statements to the SANE and her therapist, the court did not consider their

admissibility under the child hearsay statute because Antee had stipulated the

statements were admissible as hearsay exceptions for medical diagnosis or

treatment through ER 803(a)(4).

By the time of trial, D.D. was 7 years old. She testified at trial and provided

some testimony describing physical assaults by Antee. When asked by the State

about specific instances of sexual contact, D.D. did not remember them or

denied that they happened.

Q. [D.D.], do you remember Jeffy[2] touching your pee-pee? A. No. Q. Do you remember Jeffy putting his pee-pee in your pee-pee? A. No.

2 D.D. testified that “Jeffy” is the name she used for Antee.

2 No. 84590-0-I/3

Q. Do you remember his pee-pee going into your mouth? A. That never happened. Q. Okay. Do you remember telling people it tasted like raspberries? A. That never happened either.

D.D.’s mother, family friend, therapist, and the SANE nurse provided testimony

on D.D.’s hearsay statements about physical and sexual contact with Antee. The

police officer testified only about D.D.’s statements regarding nonsexual physical

injuries, including bruising on her head.

The jury acquitted Antee of one count of first degree rape of a child and

one count of third degree assault of a child. The jury convicted Antee of two

counts of first degree rape of a child, one count of first degree child molestation,

one count of second degree assault of a child, and one count of third degree

assault of a child. The jury found that he and D.D. were members of the same

family or household for the second degree assault of a child. For all convictions,

the jury also returned special verdicts finding that Antee used his position of trust,

confidence, or fiduciary responsibility to facilitate the commission of the crime.

Based on the special verdicts, the trial court sentenced Antee to an exceptional

sentence. Antee appeals only the conviction for rape of a child in the first degree.

DISCUSSION

On appeal, Antee contends his constitutional right to confrontation was

violated by admission of D.D.’s hearsay statements. Antee further claims that

without the inadmissible hearsay evidence, the State introduced insufficient

evidence to support the child rape convictions. We disagree.

Hearsay is an out-of-court statement offered to prove the truth of the

3 No. 84590-0-I/4

matter asserted. ER 801. Generally, hearsay evidence is not admissible unless

subject to an exception under rule or statute. ER 802.

Admission of hearsay evidence impinges on a criminal defendant’s Sixth

Amendment right to confrontation, which guarantees that “the accused shall

enjoy the right . . . to be confronted with the witnesses against him.” See State v.

Neal, 144 Wn.2d 600, 607, 30 P.3d 1255 (2001); U.S. CONST. amend. VI.

Although hearsay implicates this right, “the admission of hearsay statements will

not violate the confrontation clause if the hearsay declarant is a witness at trial, is

asked about the event and the hearsay statement, and the defendant is provided

an opportunity for full cross-examination.” State v. Clark, 139 Wn.2d 152, 159,

985 P.2d 377 (1999).

Here, the trial court admitted the challenged hearsay statements to the

mother, family friend, and police officer under the child hearsay statute, RCW

9A.44.120. The statute allows for admission of hearsay evidence “made by a

child when under the age of ten describing any act of sexual contact performed

with or on the child by another, or describing any act of physical abuse of the

child by another that results in substantial bodily harm . . . .” RCW

9A.44.120(1)(a)(i). When deciding 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). Specifically, the Supreme Court has identified

nine factors that courts should consider when assessing admissibility of child

4 No. 84590-0-I/5

hearsay statements pursuant to RCW 9A.44.120. 3 See State v. Ryan, 103 Wn.2d

165, 175-76, 691 P.2d 197 (1984). Additionally, the child must testify at the

proceedings or be unavailable as a witness. RCW 9A.44.120(1)(c). If the child is

unavailable, admission of the statements requires corroborative evidence of the

act. RCW 9A.44.120(1)(c)(ii).

The trial court conducted the child hearsay hearing and determined D.D.

was competent as a witness, she was available to testify, and the statements

were reliable and admissible child hearsay. The court issued findings of fact and

conclusions of law addressing each of the nine Ryan factors before concluding

the hearsay statements were admissible. See Ryan, 103 Wn.2d at 175-76. Antee

does not challenge this decision. Instead, he argues admission of the hearsay

evidence violated his confrontation right because D.D. did not testify as to the

specific alleged acts of sexual contact as required by RCW 9A.44.120(1).

In support of this claim, Antee points to State v. Rohrich, 132 Wn.2d 472,

939 P.2d 697 (1997). There, the child testified but “was not asked about and did

not testify about any alleged abuse,” and the defendant did not cross-examine

3 The nine Ryan factors are:

(1) whether the child had an apparent motive to lie, (2) the child's general character, (3) whether more than one person heard the statements, (4) the spontaneity of the statements, (5) whether trustworthiness was suggested by the timing of the statement and the relationship between the child and the witness, (6) whether the statements contained express assertions of past fact, (7) whether the child's lack of knowledge could be established through cross-examination, (8) the remoteness of the possibility of the child's recollection being faulty, and (9) whether the surrounding circumstances suggested the child misrepresented the defendant's involvement. State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174 (2005). 5 No. 84590-0-I/6

her. Rohrich, 132 Wn.2d at 474. The Washington State Supreme Court

concluded, “[t]he Confrontation Clause requires the term ‘testifies,’ as used in the

child hearsay statute, RCW 9A.44.120(2)(a), to mean the child gives live, in-court

testimony describing the acts of sexual contact to be offered as hearsay.”

Rohrich, 132 Wn.2d at 482.

Antee ignores the salient facts that D.D. testified at trial, was asked about

the alleged sexual contact, physical harm, and her hearsay statements, and was

cross-examined. Rohrich is inapposite. Instead, this case is more akin to two

post-Rohrich cases, State v. Clark, 139 Wn.2d 152, 985 P.2d 377, 380 (1999),

and State v. Price, 158 Wn.2d 630, 642, 146 P.3d 1183 (2006).

In Clark, the trial court determined that the child hearsay statements

satisfied the Ryan factors and were sufficiently reliable for admission. 139 Wn.2d

at 155. However, Clark argued the child was “effectively unavailable” as a

witness because she denied the sexual contact and said that her previous

statements to the hearsay witnesses were lies. Id. at 159. The Washington

Supreme Court concluded that the hearsay evidence did not violate Clark’s right

to confrontation because he had a full opportunity to cross-examine the child

about her hearsay statements, the State did not shield the child from difficult

questions, and the child was not evasive in her answers. Id. at 161. The child

declarant “was not only sworn in as a witness at trial, asked about the alleged

incidents, and provided answers to the questions put to her, but she was actually

cross-examined.” Id. at 159.

6 No. 84590-0-I/7

Similarly, in Price, the defendant claimed the child declarant was

unavailable for purposes of the confrontation clause when she testified that she

could not remember the alleged abuse. Price, 158 Wn.2d at 632. The Court

noted that the testimony satisfied the “Clark test,” which requires the child

declarant to have been asked about the underlying events and prior statements,

and the defendant to have had an opportunity for full-cross examination. Price,

158 Wn.2d at 648. As a result, “because all of the purposes of the confrontation

clause are satisfied even when a witness answers that he or she is unable to

recall, an inability to remember does not render a witness unavailable for

confrontation clause purposes.” Id. at 651.

Here, on direct examination, D.D. denied sexual contact and her hearsay

statements about sexual contact. Antee then questioned D.D. as to whether he

had ever “touched [her] pee-pee” or “put his pee-pee in [her] mouth.” D.D. replied

“no” to both questions. D.D. denied the alleged incidents described during the

hearsay testimony, but her denials did not negate that Antee had the opportunity

to cross-examine her, and did so. D.D.’s testimony and Antee’s cross-

examination of her satisfy the Clark test. Antee had the opportunity to explore the

alleged events and the hearsay statements D.D. made to her mother and family

friend. Thus, his right to confrontation was not violated. “ ‘[T]he Confrontation

Clause guarantees only an opportunity for effective cross-examination, not cross-

examination that is effective in whatever way, and to whatever extent, the

defense might wish.’ ” Price, 158 Wn.2d at 642 (alteration in original) (internal

7 No. 84590-0-I/8

quotation marks omitted) (quoting United States v. Owens, 484 U.S. 554, 559,

108 S. Ct. 838, 98 L. Ed. 2d 951 (1988)).

Antee also challenges the statements that D.D. made to the SANE and

the therapist. But Antee did not object to admission of D.D.’s hearsay statements

to her therapist and the SANE under ER 803(a)(4). 4 As a result, RAP 2.5(a)

precludes review of Antee’s evidentiary challenge to statements admitted under

this exception. Additionally, the Washington Supreme Court has explicitly

adopted the requirement that a defendant raise an objection at trial or waive the

right of confrontation. State v. Burns, 193 Wn.2d 190, 210-11, 438 P.3d 1183

(2019). Therefore, Antee has also waived any argument that admission of

hearsay statements to the SANE and the therapist was a violation of his right to

confrontation.

Finally, Antee challenged the sufficiency of the State’s evidence based

solely on the contention that “[a]bsent the child hearsay statements, no rational

trier of fact could have found the elements of the crimes beyond a reasonable

doubt.” Because we conclude the hearsay evidence was properly admitted, we

need not address Antee’s claim of insufficiency of evidence.

Affirmed.

4 In fact, Antee stipulated the statements were admissible as hearsay exceptions

for medical diagnosis or treatment through ER 803(a)(4). 8 No. 84590-0-I/9

WE CONCUR: