Filed Washington State Court of Appeals Division Two
March 5, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 49596-1-II
Respondent, UNPUBLISHED OPINION
v.
JIMMY WOODBEE PIERCE,
Appellant.
BJORGEN, J.* — Jimmy Pierce appeals from his convictions of attempted first degree
child molestation and first degree child molestation.
He argues that (1) the trial court erred by determining that the victims, P.P. and her
relative, J.F.,1 were competent to testify, (2) the trial court erred by admitting child hearsay
statements made by P.P. and J.F., (3) the trial court erred by not dismissing juror 8, and (4) the
State did not present sufficient evidence for a jury to convict him of attempted first degree child
molestation and first degree child molestation.
We affirm.
* Judge Thomas Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW 2.06.150. 1 See Gen. Order 2011-1 of Division II, In re the Use of Initials or Pseudonyms for Child Witnesses in Sex Crime Cases, http://courts.wa.gov/appellate_trial_courts. In this case, P.P. and J.F. were both under the age of 18 when the abuse occurred. Therefore, we refer to the victims using their initials. No. 49596-1-II
FACTS
In August 2014, P.P. and J.F. were on a camping trip with members of their families.
Angela Prendiville and Debora Profitt were sitting outside one of the trailers and talking about
the fact that Pierce was in the hospital for a heart related issue. Angela2 is P.P.’s mother. Profitt
is the sister of Pierce’s wife and is J.F.’s great-aunt. P.P. used to attend a daycare run by Pierce’s
wife, but P.P. had stopped attending the daycare a few months before the August camping trip.
As Angela and Profitt were talking, P.P. stated “out of the blue” that Pierce had carried her to the
upstairs of the daycare on his shoulder, then P.P. walked off to the picnic area away from the
trailer. Verbatim Report of Proceedings (VRP) (Vol. IX) at 701-02.
Surprised by P.P.’s statement, Angela followed her down to the picnic area and asked
P.P. if Pierce had touched her. P.P. initially responded by lowering her head and denying that
Pierce had touched her. Sensing that “[s]omething wasn’t right,” Angela asked a second time,
“[D]id he touch you?” VRP (Vol. IX) at 705-06. P.P. said, “Yes.” VRP (Vol. IX) at 706.
Angela then asked where Pierce touched her, and P.P. replied, “My pee-pee,” and pointed to her
vagina. According to Profitt, Angela and P.P. were talking alone for 20 to 30 minutes.
Angela then ran up to the other adults, yelling, “He touched her. He touched her.” VRP
(Vol. IX) at 709. Angela told her husband Patrick that Pierce had touched P.P., and then went
into the trailer. After speaking with Angela, Patrick walked down to the picnic area to speak
with P.P., where she told him that Pierce had touched her genitals. P.P. then went inside one of
2 We refer to Angela and her husband Patrick Prendiville by their first names to avoid confusion. We intend no disrespect.
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the trailers, at which point Patrick told the other adults what P.P. told him about Pierce touching
her.
After P.P.’s family returned home from camping, Angela called Child Protective Services
(CPS). Angela continued to question P.P. about the touching over the following two to three
days. At one point during this questioning, P.P. said that she did not know if Pierce had touched
her. Angela testified, “She told me no, and then she told me yes, and then I kept questioning her.
. . . I questioned her for three days, and she said, ‘Mommy, I don’t know.’” VRP (Vol. IX) at
769. On August 13, P.P. attended a forensic interview conducted by Keri Arnold, where P.P.
again disclosed that Pierce had touched her genitals.
At the time of the camping trip, J.F. was still attending Pierce’s wife’s daycare. Although
J.F. was present during the August camping trip, she claimed she did not know about P.P.’s
disclosure. J.F. and her family were just arriving at the campground when Angela returned to the
trailers after talking to P.P., though Angela could not say whether J.F. was present when she told
the other adults about the touching. According to Profitt, J.F. was not present when Angela was
yelling that “[h]e touched her.” VRP (Vol. X) at 915. Profitt thought J.F. was inside Profitt’s
trailer when Patrick told the other adults about P.P.’s disclosure to him.
The Monday after J.F. and her family returned from camping, J.F. disclosed to Profitt
while they were driving that Pierce had touched her genitals. Profitt texted Jamie Robertson,
J.F.’s mother, about J.F.’s disclosure. After receiving the text, Robertson called CPS to report
J.F.’s disclosure. On August 19, J.F. attended a forensic interview also conducted by Keri
Arnold, where J.F. disclosed several instances of Pierce touching her genitals.
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On February 5, 2015, the State charged Pierce with one count of first degree child
molestation as to P.P. and three counts of first degree child molestation as to J.F. On October 22,
Pierce challenged P.P.’s and J.F.’s competency to testify and moved to exclude their child
hearsay testimony.
After a hearing on August 15, 2016, the trial court entered an order finding P.P. and J.F.
competent to testify at trial. The order stated in part:
The court makes the following findings on the Allen[3] factors.
1. P.P. [and J.F. understand their] obligation to speak the truth on the witness stand;
2. P.P. [and J.F.] had the mental capacity at the time of the incident to receive an accurate impression of it;
3. P.P. [and J.F. have] sufficient memory to retain an independent recollection of the incident;
4. P.P. [and J.F. have] the capacity to express in words [their] memory of the incident;
5. P.P. [and J.F. have] the capacity to understand simple questions about the incident.
Clerk’s Papers (CP) at 96-97.
Also on August 15, the trial court entered an order finding child hearsay statements made
by P.P. and J.F. admissible. The order stated in part:
The court makes the following findings on the Ryan[4]factors:
3 State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967). 4 State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).
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1. P.P. has no apparent motive to lie;
2. P.P. is generally of good character;
3. P.P. made statements to Angela and Patrick Prendiville (her parents), [Debora] Profitt (a family friend)[,] and Keri Arnold (forensic interviewer), and those statements, though at different times with different purpose, were generally consistent;
4. P.P.’s statements were spontaneous as defined by the case law;
5. There is nothing about the timing of P.P.[’s] statements that suggests an improper motive, nor does anything about the relationship between P.P. and the persons she talked to[;]
6. The possibility P.P.’s recollection is faulty is remote;
7. Based on the totality of the circumstances surrounding the making of P.P.’s statements, there is no reason to believe P.P. misrepresented the defendant’s involvement.
....
The court makes the following findings on the Ryan factors:
1. J.F. has no apparent motive to lie;
2. J.F is generally of good character;
3. J.F. made statements to [Debora] Profitt (her great-aunt), Jamie Robertson (her mother), Keri Arnold (forensic interviewer), and Michelle Breland, ARNP [Advanced Registered Nurse Practitioner], and those statements, though at different times with different purpose, were generally consistent;
4. J.F.’s statements were spontaneous as defined by the case law;
5. There is nothing about the timing of J.F.’s statements that suggests an improper motive, nor does anything about the relationship between J.F. and the persons she talked to[;]
6. The possibility J.F.’s recollection is faulty is remote;
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7. Based on the totality of the circumstances surrounding the making of J.F.’s statements, there is no reason to believe J.F. misrepresented the defendant’s involvement.
CP at 99-101.
During trial, one of the jurors informed the court that he believed juror 8 had been
sleeping. After the jury had begun deliberating, Pierce moved to dismiss juror 8. The trial court
questioned juror 8 about whether she had heard all the evidence presented and if she could
properly fulfill her function as a juror. Juror 8 responded that she could, and the trial court
denied Pierce’s motion to dismiss juror 8.
The jury found Pierce guilty of attempted first degree child molestation of P.P. as a lesser
alternative to first degree child molestation. The jury also found Pierce guilty of one count of
first degree child molestation as to J.F, but found him not guilty of the other two counts of first
degree child molestation as to J.F.
Pierce appeals his convictions.
ANALYSIS
I. CHILD COMPETENCY TO TESTIFY
Pierce argues that the trial court erred by determining that P.P. and J.F. were competent
to testify at trial. We disagree.
A. Legal Principles and Standard of Review
All witnesses, children and adults alike, are presumed competent until proved otherwise
by a preponderance of the evidence. State v. Brousseau, 172 Wn.2d 331, 341, 259 P.3d 209
(2011). The burden of proving incompetency is on the party challenging the competency of the
witness. Id.
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A child’s age is not determinative of a child’s competency to testify. State v. Woods, 154
Wn.2d 613, 617, 114 P.3d 1176 (2005). Rather, our Supreme Court has explained:
A young child is competent to testify if she: (1) understands the obligation to speak the truth on the witness stand; (2) has the mental capacity, at the time of the occurrence concerning which she is to testify, to receive an accurate impression of it; (3) has a memory sufficient to retain an independent recollection of the occurrence; (4) has the capacity to express in words her memory of the occurrence; and (5) has the capacity to understand simple questions about the occurrence.
Id. at 618.
Our Supreme Court has noted that “‘[t]here is probably no area of law where it is more
necessary to place great reliance on the trial court’s judgment than in assessing the competency
of a child witness.’” Id. at 617 (quoting State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810
(1990)). We afford great deference to the trial court because “[t]he competency of a youthful
witness is not easily reflected in a written record,” and we “must rely on the trial judge who sees
the witness, notices the witness’s manner, and considers his or her capacity and intelligence.” Id.
We may consider the entire record in reviewing the trial court’s determination of competency to
testify. Id.
We review the trial court’s determination of competency to testify for a manifest abuse of
discretion. Id. A trial court abuses its discretion if its decision is manifestly unreasonable or is
exercised on untenable grounds or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654,
71 P.3d 638 (2003). A decision is based on untenable grounds or made for untenable reasons if
it rests on facts unsupported by the record or applies the wrong legal standard. Id. A decision is
manifestly unreasonable if the court, despite applying the correct legal standard to the supported
facts, reaches an outcome that is outside the range of acceptable choices, such that no reasonable
person could arrive at that outcome. Id. A court’s exercise of discretion is also unreasonable if it
7 No. 49596-1-II
is premised on a legal error. State v. Ramirez, 191 Wn.2d 732, 741, 426 P.3d 714 (2018). Pierce
bears the burden to establish that the trial court abused its discretion in determining that P.P. and
J.F. were competent to testify. Woods, 154 Wn.2d at 622.
B. Competency of P.P. to Testify
Pierce claims the trial court erred in applying the Allen factors with respect to P.P.5 We
hold that the trial court did not abuse its discretion by determining that P.P. was competent to
testify.
1. Mental Capacity at the Time of the Occurrence
Pierce argues that the trial court erred by determining that P.P. had the mental capacity at
the time of the alleged occurrence to receive an accurate impression of the occurrence.
First, Pierce contends that because the trial court did not establish when the alleged abuse
occurred, it could not have reasonably determined whether P.P. had a sufficient mental capacity
to receive an accurate impression of the event at the time it occurred. P.P. testified at trial that
the incident occurred when she was eight years old and in second grade. Arnold testified that
P.P. told her that the incident occurred during the summer time. P.P. was born in November
2004, so she would have been eight during the summer of 2013. The trial court, therefore, could
have reasonably determined that the incident occurred during the summer of 2013.
Second, Pierce maintains that P.P.’s inability to recall objective facts shows that she did
not have sufficient mental capacity to receive an accurate impression of the incident.
5 Pierce assigns error to findings of fact 1, 2, 3, 4 and 5 regarding the Allen factors. However, he presents arguments related only to Allen factors 2 and 3. Unchallenged findings of fact are treated as verities on appeal. Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015). Because Pierce makes no argument on factors 1, 4, and 5, we decline to consider them.
8 No. 49596-1-II
Specifically, Pierce claims that P.P.’s confusion regarding who her teachers were from
kindergarten to fifth grade shows that she did not have a sufficient mental capacity to receive an
accurate impression of the incident. Pierce suggests that P.P.’s recollection is faulty because
Angela gave different answers when asked who P.P.’s teachers were from kindergarten to fifth
grade. However, it is unclear from the record whether P.P. or Angela was generally correct as to
who P.P.’s teachers were, and with regard to P.P.’s fifth grade teacher, Angela acknowledged
that she had been mistaken and that P.P. had correctly identified her fifth grade teacher.
P.P. also testified about the layout and organization of the daycare where the abuse
occurred. Angela corroborated P.P.’s description of the daycare house. Furthermore, P.P. was
able to correctly recall how many bedrooms were in the house she lived in, when the incident
occurred, and that she had lived in that house for five years. Although P.P. mistakenly stated
that the house was in Key Center, rather than Lakebay, Angela explained that “[Key Center is]
beside Lakebay. That’s – our little town is Key Center.” VRP (Vol. I) at 35. Angela also
clarified that P.P. was mistaken about the color of the house in Lakebay.
Third, Pierce asserts that P.P. did not have a sufficient mental capacity to form an
accurate impression at the time of the incident because P.P. stated that for some time she was
uncertain whether the incident was a dream. Pierce acknowledges that P.P. also testified that she
thought the incident was real. Arnold testified that although P.P. was initially uncertain during
her forensic interview whether Pierce had inappropriately touched her, as the interview
proceeded, P.P. “was clear in her recall that [Pierce] touched [her].” VRP (Vol. VI) at 514.
As noted, the party challenging the witness’s competency to testify has the burden of
proving incompetency. Brousseau, 172 Wn.2d at 341. Given the evidence summarized above,
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Pierce has not shown that the trial court’s determination that P.P. had the requisite mental
capacity at the time of the occurrence was manifestly unreasonable or made for untenable
reasons or on untenable grounds. The mistakes and inconsistencies in P.P.’s recall were minor,
and the record otherwise contains ample support for the trial court’s determination that she had
the requisite mental capacity. We conclude that Pierce has not met his burden, and consequently
the trial court did not abuse its discretion.
2. Sufficient Memory to Retain an Independent Recollection
Pierce argues that the trial court abused its discretion by determining that P.P. had
sufficient memory to retain an independent recollection of the incident.
First, Pierce contends that P.P.’s inability to recall her teachers’ names shows that P.P.
did not have sufficient memory to retain an independent recollection of the incident. As
explained above, the record does not clearly reflect who P.P.’s teachers were, and P.P. was able
to describe where the abuse occurred, how she was specifically abused, what she was wearing at
the time of the incident, and that Pierce told her to not tell his wife about what had occurred.
Second, Pierce maintains that P.P. did not have sufficient memory to retain an
independent recollection of the incident because she stated that for some time she was uncertain
whether the incident was a dream. As mentioned above, P.P. testified that she was sure the
incident was real and Arnold stated that after initial uncertainty, P.P. “was clear in her recall that
[Pierce] touched [her].” VRP (Vol. VI) at 514.
With this evidence, the trial court did not abuse its discretion by determining that P.P. had
sufficient memory to retain an independent recollection of the incident. The court did not abuse
its discretion in determining that P.P. was competent to testify.
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C. Competency of J.F. to Testify
Pierce also claims the trial court erred in applying the Allen factors with respect to J.F.6
We hold that the trial court did not abuse its discretion by determining that J.F. was competent to
1. Obligation to Speak the Truth on the Witness Stand
Pierce argues that the trial court abused its discretion by determining that J.F. understood
her obligation to speak the truth on the witness stand. He asserts that J.F.’s statement that it
would be okay to guess the answer to a question that she did not know to show that she did not
understand the obligation to speak the truth.
While J.F. initially stated that it would be better to guess if she did not know the answer
to a question, the State also had J.F. confirm that she would not make guesses in court:
[Prosecution]: Okay. Here in court, [J.F.], it is really important that you don’t guess about anything you aren’t sure about. Okay?
[J.F.]: Okay.
[Prosecution]: Can you look at the judge and tell her that you promise not to make any guesses?
[J.F.]: I promise not to make any guesses here in court.
[Prosecution]: Okay. So I want to make sure you’re clear. If I ask you a question and you don’t know the answer, you are not to make a guess. You are to tell the truth and say, I don’t know the answer. Do you understand that?
6 Pierce’s assignments of error 2 and 4 are identical; each assigns error to findings 1 through 5 in relation to P.P.’s competency. Pierce’s only assignment of error, 3, in relation to J.F.’s competency challenges the trial court’s conclusion that J.F. was competent to testify. From the context, assignment of error 4 was likely intended to refer to J.F., instead of merely duplicating the assignment relating to P.P. Pierce, however, presents arguments related only to factors 1, 2, and 3. Consistently with Rush, 190 Wn. App. at 956, we consider only those arguments. We follow this approach whether or not assignment of error 4 is deemed to apply to J.F.
11 No. 49596-1-II
[J.F.]: Yes.
VRP (Vol. III) at 320-21. Given J.F.’s acknowledgement that guessing would be wrong and her
promise to the judge not to guess, we conclude that the trial court did not abuse its discretion in
determining that she understood her obligation to speak the truth.
2. Mental Capacity at the Time of the Occurrence
Pierce maintains that the trial court erred by determining that J.F. had the mental capacity
at the time of the alleged occurrence to receive an accurate impression of the occurrence.
First, Pierce suggests that because the trial court did not establish when the alleged abuse
occurred, it could not have reasonably determined whether J.F. had sufficient mental capacity at
the time to receive an accurate impression of the event. The trial court viewed Arnold’s
interview with J.F., during which J.F. disclosed that the incidents involving Pierce occurred
when she was seven and in second grade. J.F. was born in August 2006. This suggests that the
trial court could have reasonably determined that J.F. alleged that the incidents occurred between
August 2013 and August 2014.
Second, Pierce argues that J.F.’s inability to recall where she went to school or her
teachers’ names shows that she did not have sufficient mental capacity to receive an accurate
impression of the incident. Although J.F. was not able to recall her teachers’ names, she was
able to recall the names of her cats that she had when she was in second grade, as well as the
layout of the daycare center. There was a reasonable basis for the trial court to conclude that J.F.
had the requisite mental capacity.
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Consequently, we hold that the trial court did not abuse its discretion in determining that
J.F. had the mental capacity at the time of the alleged occurrence to receive an accurate
impression of the occurrence.
3. Sufficient Memory to Retain an Independent Recollection
Pierce contends that the trial court abused its discretion by determining that J.F. had
sufficient memory to retain an independent recollection of the incident. Although J.F. wavered
in her testimony regarding where some of the incidents took place, she consistently stated that
one of the incidents occurred in Pierce’s motor home. See State v. S.J.W., 149 Wn. App. 912,
926, 206 P.3d 355 (2009), affirmed on other grounds, 170 Wn.2d 92 (2010). Thus, it was
reasonable for the trial court to determine that J.F. had sufficient memory to retain an
independent recollection.
Pierce also suggests that J.F. did not have an independent recollection because she
overheard P.P.’s initial disclosure, but the record does not support this assertion. The record
shows that J.F. was not present when P.P. disclosed to Angela, and Angela and Profitt testified
that they did not see J.F. present during any of the subsequent discussions among the adults
about P.P.’s disclosure. Furthermore, P.P. testified that she never spoke to J.F. about Pierce
touching her, and J.F. testified that she did not remember P.P. saying anything that stuck out to
her during the camping trip. Thus, it was reasonable for the trial court to determine that J.F. had
sufficient memory to retain an independent recollection.
For these reasons, the trial court did not abuse its discretion in determining that J.F. was
competent to testify.
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II. CHILD HEARSAY
Pierce argues that the trial court erred by admitting child hearsay evidence. He
challenges the trial court’s findings with respect to P.P.’s motive to lie, the spontaneity of her
disclosures, the timing and relationship of her disclosures, and the possibility of her faulty
recollection. He also challenges the court’s findings on J.F.’s motive to lie and the timing and
relationship of her disclosures. We conclude that the trial court did not err.
We review the trial court’s decision to admit child hearsay statements for an abuse of
discretion. State v. Kennealy, 151 Wn. App. 861, 879, 214 P.3d 200 (2009). We review
challenges to findings of fact for substantial evidence. State v. Halstien, 122 Wn.2d 109, 128,
857 P.2d 270 (1993). Substantial evidence is evidence sufficient to persuade a fair-minded,
rational person that an assertion is true. Id. at 129. Unchallenged findings are verities on appeal.
Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015). We may affirm the trial
court’s evidentiary rulings on any basis supported by the record. Kennealy, 151 Wn. App. at
879.
Out-of-court statements by a child under the age of 10 who testifies at the trial may be
admitted if the court finds sufficient indicia of reliability. RCW 9A.44.120. State v. Ryan
established that the trial court considers nine factors to determine the reliability of child hearsay
statements. 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). The Ryan factors are:
(1) [W]hether 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
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declarant’s recollection being faulty; and (9) whether the surrounding circumstances suggested the declarant misrepresented the defendant’s involvement.
Kennealy, 151 Wn. App. at 880 (footnote omitted). We have noted that the seventh factor,
whether the declarant’s lack of knowledge could be established through cross-examination, does
not apply in circumstances where the child testifies at trial. Kennealy, 151 Wn. App. at 880 n.6.
Additionally, we have reasoned that the sixth factor, whether the statements contained express
assertions of past fact, need not be satisfied “so long as other factors indicating reliability are
considered.” State v. Young, 62 Wn. App. 895, 902, 802 P.2d 829 (1991). No single factor is
dispositive and we strive to determine whether the factors are substantially met based on an
overall evaluation of the factors. Kennealy, 151 Wn. App. at 881.
B. Statements of P.P.
Pierce argues that the trial court erred by admitting P.P.’s child hearsay statements to
Angela, Patrick, Profitt, and Arnold about Pierce touching her genitals.7 We disagree.
1. Motive to Lie (Ryan Factor 1)
Pierce maintains that the trial court erred by determining that P.P. did not have a motive
to lie about the incident.
First, Pierce asserts that the animosity between him, Angela, and Patrick could have
provided P.P. with a reason to lie. Although P.P. knew that her parents did not like Pierce, she
stated that she thought that she switched daycares because her parents found a different daycare
and she did not recall any fighting between Pierce and her parents. When the State asked P.P.
7 Although Pierce identifies Ryan factors 1, 3, 4, 5, and 6 in his assignment of error, he presents arguments related only to factors 1, 4, 5, and 8. We therefore decline to consider factors 3 and 6. See Rush, 190 Wn. App. at 956.
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why she was present to testify, she responded, “Because [Pierce] did something wrong that he
wasn’t supposed to.” VRP (Vol. I) at 26.
Second, Pierce claims that Angela “badgered [P.P.] to say that Pierce had touched her
[genitals].” Br. of Appellant at 50. However, the citations in Pierce’s briefing do not support
this assertion, and some of the citations refer to testimony from Profitt. The record shows to the
contrary that Angela’s questioning at the time of the initial disclosure was not badgering, but was
the sort of reasonable inquiry a parent might make in response to a child’s disclosure of this
nature. Understandably concerned about the unusual statement from P.P. that Pierce had carried
her upstairs on his shoulder, Angela asked P.P. if he touched her. When P.P. dropped her head
and avoided eye contact, it was reasonable for Angela to suspect that there was something going
on and to question her again. Angela asked P.P. whether Pierce touched her and where he
touched her, but the record does not show that Angela asked P.P. whether she was touched in a
particular place. This line of inquiry from a parent was reasonable under the circumstances.
Also, although Angela did continue to question P.P. for the following several days, the fact
remains that P.P.’s initial disclosure came after only the second time Angela asked her if Pierce
touched her.
Pierce’s remaining citations refer to Profitt asking P.P., “[D]id [Pierce] touch you
anywhere your bathing suit would cover?” VRP (Vol. II) at 264-65. P.P. did not respond to
Profitt’s question and Profitt did not pursue the issue. Pierce has not explained why Profitt’s
question suggests that P.P. was motivated to lie about the incident, and we do not consider
conclusory arguments unsupported by citation to authority or rational argument. State v. Mason,
170 Wn. App. 375, 384, 285 P.3d 154 (2012).
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Finally, Pierce argues that inconsistent statements by a child may be indicative of a
child’s motivation to lie, citing Ryan, 103 Wn.2d 165. In Ryan, one of the victims’ mothers
found him with candy that he was not allowed to have, and the victim made inconsistent
statements regarding where he acquired the candy. 103 Wn.2d at 168. Our Supreme Court
explained that “there was a motive to lie, and each child initially told a different version of the
source of the candy they were not supposed to have.” Ryan, 103 Wn.2d at 176. The court’s
analysis in Ryan appears to focus on the fact that the children were not allowed to have candy,
which provided them a motive to lie about how they acquired the candy in order to avoid
punishment. Given those circumstances, the inconsistencies in the children’s statements in Ryan
could have been viewed as supporting the inference that the children were lying.
Unlike the circumstances in Ryan, there is nothing in the record to suggest that P.P.
fabricated her disclosure in order to avoid potential punishment. P.P. gave inconsistent answers
to Angela’s questions over the several day period after the initial disclosure. Although those
inconsistencies might call into question P.P.’s credibility generally, they do not indicate a
motivation to lie. Pierce’s contention is unpersuasive.
Substantial evidence supports the trial court’s finding that P.P. did not have a motive to
lie.
2. Spontaneity (Ryan Factor 4)
Pierce contends that P.P.’s disclosures were not spontaneous because Angela repeatedly
questioned her about her disclosure. We have explained that “statements made in response to
questioning are spontaneous so long as the questions are not leading or suggestive.” Kennealy,
151 Wn. App. at 883. After P.P. left the camp fire, Angela followed P.P. and asked her, “[D]id
17 No. 49596-1-II
[Pierce] touch you?” and after an ambiguous response, P.P. responded, “Yes.” VRP (Vol. I) at
58. Angela then asked P.P., “Where did he touch you at?” and P.P. responded that Pierce had
touched her genitals. VRP (Vol. I) at 58. Although Angela’s question regarding touching was
leading, the question regarding where Pierce touched P.P. was open ended and did not suggest
any particular response.8
After Angela’s questioning of P.P., Patrick also questioned P.P. Patrick asked P.P. “what
happened” and P.P. told him that Pierce “did a spider, like spider fingers on her leg. . . . [A]nd
then he – he touched me.” VRP (Vol. II) at 215-16. Patrick asked P.P. where Pierce touched her
and she responded that he touched her genitals. Patrick’s questions were almost entirely open-
ended and prompted P.P. to disclose details that she did not disclose to Angela. Therefore, based
on the circumstances surrounding P.P.’s disclosure to Angela and Patrick, we conclude that
substantial evidence supports the trial court’s finding that P.P.’s disclosures were spontaneous.
3. Timing and Relationship (Ryan Factor 5)
Pierce argues that P.P.’s disclosures to Angela and Patrick are not reliable because both
of them had animosity toward Pierce. We have reasoned that “[w]hen the 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. Hence, the relationship in question is that of the declarant to the
witness, not the witness to the defendant. P.P. initially disclosed to her parents, Angela and
8 Profitt’s question to P.P., whether Pierce touched her anywhere her bathing suit would cover, is more suggestive of an answer than Angela’s questioning, but does not necessarily suggest an inappropriate touching. Further, Pierce does not argue that P.P.’s statements lacked spontaneity on this basis.
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Patrick, with whom she was in a relationship of trust. See id. Substantial evidence supports the
trial court’s finding on this factor.
4. Possibility of Faulty Recollection (Ryan Factor 8)
Pierce asserts that the possibility of P.P. having a faulty recollection is not remote
because P.P. was not sure if the incident was a dream, P.P. could not provide sufficient objective
detail of the incident, and P.P.’s testimony at trial was “vague and reluctant.” Br. of Appellant at
52-53. At trial, P.P. testified that the incident really occurred and was not a dream. P.P. was also
able to describe where the abuse occurred, how she was specifically abused, what she was
wearing at the time of the incident, and that Pierce told her to not tell his wife about what had
occurred. Arnold additionally testified that she did not have any concerns that P.P. was coached
or that she was overly suggestible. Therefore, we disagree with Pierce’s challenge on the
possibility of faulty recollection.
We consider whether the Ryan factors have been substantially met by evaluating all the
factors as a whole. See Kennealy, 151 Wn. App. at 881. All of the reliability findings
challenged by Pierce are supported by substantial evidence. Furthermore, because we treat the
unchallenged findings as verities on appeal, those findings not challenged by Pierce support our
conclusion that the Ryan factors are substantially met. Rush, 190 Wn. App. at 956. We
accordingly hold that the trial court did not abuse its discretion by admitting P.P.’s child hearsay
statements to Angela, Patrick, Profitt, and Arnold.
19 No. 49596-1-II
C. Statements of J.F.
Pierce argues that the trial court erred by admitting J.F.’s child hearsay statements to
Profitt, Arnold, Jamie Robertson, and Michelle Breland about Pierce touching her genitals.9 We
disagree.
Pierce maintains that the trial court erred by determining that J.F. had no motive to lie.
Pierce’s argument on this issue appears to focus on whether Profitt fabricated J.F.’s disclosure,
stating, “It seems unlikely that [J.F.’s] disclosure ever occurred.” Br. of Appellant at 53.
However, whether Profitt fabricated J.F.’s initial disclosure is not immediately related to whether
J.F. had a motive to lie about abuse. Although Robertson stated that she had some problems with
J.F. lying, she also testified that she did not think “J.F. [had] any reason to misrepresent what she
says [Pierce] did to her.” VRP (Vol. III) at 347. Additionally, Robertson and Profitt testified
that J.F. was generally a truthful child. Therefore, we conclude that substantial evidence
supports the trial court’s finding that J.F. had no motive to lie.
2. Timing and Relationship (Ryan Factor 5)
Pierce mentions the trial court’s finding regarding the timing, consistency, and
relationships involved in J.F.’s disclosures, but does not include any argument regarding this
factor. We do not consider conclusory arguments unsupported by citation to authority or rational
argument. Mason, 170 Wn. App. at 384. Therefore, we decline to consider this issue.
9 Although Pierce identifies Ryan factors 1, 3, 4, 5, 6, and 7 in his assignment of error, he addresses only factors 1 and 5 in his argument. We accordingly decline to consider factors 3, 4, 6, and 7. See Rush, 190 Wn. App. at 956.
20 No. 49596-1-II
All of the relevant reliability findings are supported by substantial evidence or are
unchallenged verities. As noted above, because we consider the reliability factors taken together
as a whole, we are satisfied the Ryan factors were substantially met. Kennealy, 151 Wn. App. at
881. We accordingly hold that the trial court did not abuse its discretion by admitting J.F.’s child
hearsay statements to Profitt, Robertson, Arnold, and Breland.
C. Forensic Interviews
For the first time in his reply brief, Pierce argues that the trial court erred by admitting the
forensic interviews of P.P. and J.F. because they contained information unrelated to the abuse
that could have caused the jury to improperly sympathize with the victims. Our Supreme Court
has held that “[a]n issue raised and argued for the first time in a reply brief is too late to warrant
consideration.” Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549
(1992). Therefore, we decline to consider this issue.
III. JUROR 8
Pierce argues that the trial court erred by failing to dismiss juror 8 because juror 8 may
have been sleeping. We disagree.
Under RCW 2.36.110, a judge shall “excuse from further jury service any juror, who in
the opinion of the judge, has manifested unfitness as a juror by reason of . . . inattention.” CrR
6.5 also states, “If at any time before submission of the case to the jury a juror is found unable to
perform the duties the court shall order the juror discharged, and the clerk shall draw the name of
an alternate who shall take the juror’s place on the jury.” We have explained that RCW 2.36.110
and CrR 6.5 “place a continuous obligation on the trial court to excuse any juror who is unfit and
21 No. 49596-1-II
unable to perform the duties of a juror.” State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866
(2000).
We review the trial court’s decision regarding whether to excuse a juror for abuse of
discretion. Id. at 226. We defer to the trial court’s credibility determinations, since the trial
court was able to observe the juror and court proceedings. Id. at 229.
B. Fitness of Juror 8
Outside the presence of the jury, the trial court explained that juror 1 had spoken with the
court’s judicial assistant and informed the assistant that he believed that juror 8 was sleeping.
The court stated that she had not observed juror 8 because she was taking notes, but commented
that court staff saw juror 8 leaning her head back and closing her eyes. The State mentioned that
one of its witnesses had also observed that juror 8 appeared to be fighting to stay awake.
Pierce’s counsel stated that he saw juror 8 close her eyes, but he “didn’t get the impression she
was actually sleeping.” VRP (Vol. XII) at 1179. After the jury returned, the court reminded the
jury that it was important for them to pay close attention and that the jurors could request breaks
if needed.
During the State’s closing argument, juror 1 stated that he believed juror 8 was sleeping,
although juror 8 responded that she was listening. After the jury had begun deliberating, Pierce’s
counsel raised the issue of whether juror 8 had been sleeping and asked the court to dismiss juror
8. The State suggested that the court question juror 8 to determine whether she could effectively
fulfill her obligation as a juror. When asked if she was sleeping, juror 8 responded that she had
closed her eyes but she was not “full sleep[ing],” and that she had “fully and fairly heard all the
evidence in the case in a way that [enabled her] to perform [her] duties as a juror.” VRP (Vol.
22 No. 49596-1-II
XVI) at 1706-07. Pierce’s counsel renewed his motion to dismiss juror 8, and the trial court
denied the motion.
Pierce asserts that the trial court was obligated to stop the proceedings and inquire about
juror 8’s attentiveness after juror 1 first informed the court that he thought juror 8 was sleeping.
However, the record shows that the trial court had been taking notes and had not seen whether
juror 8 was sleeping. Additionally, Pierce’s counsel told the court that he did not think that juror
8 was actually sleeping. Therefore, we conclude that the trial court did not abuse its discretion
by choosing to remind the jury to pay attention, rather than questioning juror 8 at that time.
Pierce contends that the trial court erred by not questioning juror 8 after juror 1
mentioned that juror 8 was sleeping during the State’s closing argument. Immediately after juror
1 stated that he thought juror 8 was sleeping, juror 8 responded that she was not sleeping. The
trial court could have reasonably determined that juror 8 was not sleeping based on her quick
response to juror 1’s statement. We conclude that the trial court did not abuse its discretion by
not questioning juror 8 during the State’s closing argument.
Pierce further argues that the trial court erred by accepting juror 8’s explanation that she
was not sleeping because “a sleeping or dozing juror would hardly know whether she had heard
all of the evidence.” Br. of Appellant at 57. However, whether juror 8 was mistaken or lied to
the superior court about hearing all of the evidence presents a credibility issue. We generally
defer to the credibility determinations of the trial court, who was able to directly observe juror 8.
Jorden, 103 Wn. App. at 229. Therefore, we hold that the trial court did not abuse its discretion
by declining to dismiss juror 8.
23 No. 49596-1-II
IV. SUFFICIENCY OF THE EVIDENCE
Pierce maintains that the State did not present sufficient evidence for a jury to convict
him of attempted first degree child molestation as to P.P. and first degree child molestation as to
J.F.10 We disagree.
In evaluating the sufficiency of the evidence, we view the evidence in the light most
favorable to the State to determine whether any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. State v. Mines, 163 Wn.2d 387, 391, 179 P.3d
835 (2008). A challenge to the sufficiency of the evidence admits the truth of the State’s
evidence. Id. We do not review credibility determinations, which are reserved for the trier of
fact. Id. Furthermore, we consider direct and circumstantial evidence equally reliable in
evaluating the sufficiency of the evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470
(2010).
Under RCW 9A.44.083, a person is guilty of first degree child molestation when the
person has, or knowingly causes another person under the age of 18 to have, sexual contact with
another who is less than twelve years old and not married to the perpetrator, and the perpetrator
is at least 36 months older than the victim. RCW 9A.44.010(2) defines “sexual contact” as “any
touching of the sexual or other intimate parts of a person done for the purpose of gratifying
10 Pierce states in his brief that “[t]he jury acquitted Pierce of two counts of first degree child molestation against J.F. and thus it is unknown what acts they relied upon to convict him for the one count of conviction.” Br. of Appellant at 58. However, Pierce has not cited to any authority or made additional argument regarding jury unanimity. We do not consider conclusory arguments unsupported by citation to authority or rational argument. Mason, 170 Wn. App. at 384. Therefore, we decline to consider this issue.
24 No. 49596-1-II
sexual desire of either party or a third party.” Under RCW 9A.28.020(1), “[a] person is guilty of
an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act
which is a substantial step toward the commission of the crime.”
Our Supreme Court has explained that in the context of first degree child molestation, the
definition of “sexual contact” in RCW 9A.44.010(2) “excludes inadvertent touching or contact
from being a crime.” State v. Lorenz, 152 Wn.2d 22, 34, 93 P.3d 133 (2004). Division One of
our court has held that “‘[p]roof that an unrelated adult with no caretaking function has touched
the intimate parts of a child supports the inference the touch was for the purpose of sexual
gratification.’” State v. Harstad, 153 Wn. App. 10, 21, 218 P.3d 624 (2009) (quoting State v.
Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991)). However, if the contact occurred when
clothes covered the intimate part, we require additional proof of sexual purpose. Id. at 21.
Furthermore, “[c]ontact is ‘intimate’ . . . if the conduct is of such a nature that a person of
common intelligence could fairly be expected to know that, under the circumstances, the parts
touched were intimate and therefore the touching was improper.” Id. (quoting State v. Jackson,
145 Wn. App. 814, 819, 187 P.3d 321 (2008)).
B. Attempted Molestation of P.P.
P.P. testified that when she was eight years old and in second grade, Pierce carried her to
the upstairs of the daycare and touched her genitals. P.P. stated that the touching was over her
clothing. P.P. also testified that Pierce told her not to tell his wife about the encounter. Angela
further stated that while Pierce would occasionally help his wife with daycare matters, she did
not think that he had much of a role in operating the daycare. P.P. also mentioned that Pierce
had never helped her use the restroom or change clothes while she was at the daycare.
25 No. 49596-1-II
Based on P.P.’s and Angela’s testimony, the jury could have reasonably found beyond a
reasonable doubt that Pierce took a substantial step towards first degree child molestation by
touching P.P.’s genitals over her clothing. The jury could have also inferred that the touching
was for the purpose of gratifying sexual desire and not innocent or accidental because Pierce was
unrelated to P.P., participated minimally in the operation of the daycare, and told P.P. not to tell
anyone about the incident. Therefore, we hold that the State presented sufficient evidence to
convict Pierce of attempted first degree child molestation.
C. Molestation of J.F.
The State submitted J.F.’s forensic interview into evidence and the interview was
published to the jury. During the interview, J.F. stated that all of the incidents took place when
she was seven. J.F. recalled that the most recent incident took place in Pierce’s motor home, and
that other incidents had occurred in Pierce’s bedroom and the daycare’s upstairs living room.
J.F. stated that Pierce directly touched her genitals in the motor home. J.F. also mentioned that
Pierce told her not to tell anyone about the incident in the motor home. J.F.’s forensic interview
establishes that Pierce directly touched J.F.’s genitals.
The jury reasonably could have inferred that the touching was for the purpose of
gratifying sexual desire and not accidental or innocent based on the direct contact and the fact
that Pierce told J.F. to not tell anyone about the contact. Therefore, viewing the evidence in the
light most favorable to the State, a reasonable trier of fact could find that the elements of first
degree child molestation were proven beyond a reasonable doubt. We hold that the State
presented sufficient evidence to convict Pierce of first degree child molestation.
26 No. 49596-1-II
CONCLUSION
We affirm Pierce’s convictions.
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.
Bjorgen, J.P.T. We concur:
Lee, A.C.J.
Sutton, J.