Filed Washington State Court of Appeals Division Two
January 31, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
No. 47661-4-II In Re the Detention of:
JOSEPH M. PETERSON,
Appellant. PUBLISHED IN PART OPINION
SUTTON, J. — Joseph M. Peterson appeals from the trial court’s order concluding that his
second degree assault conviction is a sexually violent offense for the purpose of civil commitment
for sexually violent predators (SVP) under chapter 71.09 RCW. Peterson argues that the trial court
erred by admitting the victim’s statements as recorded recollections under ER 803(a)(5). We hold
that the trial court did not err by admitting the victim’s recorded recollections under ER 803(a)(5).
Accordingly, we affirm the trial court.
FACTS
On March 29, 2013, the State filed a petition seeking Peterson’s involuntary commitment
as a SVP. The petition alleged that, on July 2, 2007, Peterson was convicted of second degree
assault and that the assault was sexually motivated because the charges originated from a rape
complaint. Therefore, Peterson’s second degree assault conviction met the criteria for a sexually
violent offense under RCW 71.09.020(17)(c). The petition also alleged that Peterson met the other
criteria for an SVP. No. 47661-4-II
Peterson and the State stipulated that Peterson’s SVP trial would be bifurcated. First, a
bench trial would be held to allow the trial court to determine whether Peterson’s second degree
assault conviction was a sexually violent offense. Second, if the trial court determined that
Peterson’s second degree assault conviction was a sexually violent offense, the remaining issues
in the SVP petition would be tried to a jury.
The State moved to admit two of H.L.’s1 statements as recorded recollections under
ER 803(a)(5) to establish that the second degree assault was sexually motivated. Specifically, the
State moved to admit H.L.’s handwritten statement given to detectives on the date of the incident
and H.L.’s taped recorded statement given to detectives six days after the incident.
At the hearing, H.L. testified that she had experienced memory loss and could not recall
the events surrounding the 2007 assault. When asked to review her handwritten statement, H.L.
testified that she recognized her handwriting but that she did not remember writing the statement.
She also testified that she believed that what she wrote was true because “my memory was there
at that time, and I would have been able to recall exactly what had happened.” 1 Verbatim Report
of Proceedings (VRP) at 79. H.L. also testified that she remembered going to give a recorded
statement to the police, but she could not remember the conversation itself. H.L. testified that she
believed her recorded statement was also true and accurate. She also testified, “I have nothing to
gain from making up a story. To me, it doesn’t seem like it would be smart.” 1 VRP at 81. Finally,
H.L. testified that she had not ever recanted or denied her statements.
1 H.L. is the victim in the assault and we use initials to protect the victim’s privacy.
2 No. 47661-4-II
The State also presented the testimony of Detective Kim Holmes of the Lakewood Police
Department, who was the detective assigned to investigate H.L.’s rape complaint. Holmes also
testified that the recording accurately reflected her memory of the interview.
Peterson objected to the admission of H.L.’s statements arguing that they did not meet the
requirements of ER 803(a)(5) for recorded recollections. Peterson presented testimony from
Detective Holmes that showed several inconsistencies between H.L.’s handwritten statement and
her recorded statement. Peterson also called two former residents of H.L.’s apartment complex to
testify that, at the time of the incident, H.L. had a reputation for dishonesty. And, H.L.’s ex-
husband, who H.L. lived with at the time of the incident, also testified that he did not believe her
statement that she had been raped.
The trial court then entered the following findings of fact:
A. Both records pertain to a matter about which [H.L.] once had personal knowledge. B. [H.L.] now has an insufficient recollection about the matter to testify fully and accurately. C. The records were made or adopted by [H.L.] when the matter was fresh in her mind. D. The records reflect [H.L.]’s prior knowledge accurately because: 1. [H.L.] did not disavow the accuracy of her statements. 2. [H.L.] averred accuracy at the time of making the statements. 3. The recording process was reliable for both statements. 4. The totality of the circumstances establish the trustworthiness of the statements.
Clerk’s Papers (CP) at 312. Based on its findings, the trial court concluded that H.L.’s prior
statements were admissible as recorded recollections under ER 803(a)(5).
After the bench trial, the trial court entered findings of fact and conclusions of law on
whether Peterson’s second degree assault conviction was a sexually violent offense. The trial court
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found that Peterson was originally charged with first degree rape, but that he had entered a guilty
plea to an amended charge of second degree assault. The trial court found that H.L.’s statements
regarding the incident were credible and that Peterson’s statements were not credible. And, the
trial court found that Peterson’s actions were committed for his sexual gratification. Based on its
findings, the trial court concluded that the State proved, beyond a reasonable doubt, that Peterson
has a valid conviction for second degree assault that was committed with sexual motivation.
Therefore, the trial court concluded that Peterson had a conviction for a sexually violent offense
under RCW 71.09.020(17)(c).
Peterson’s SVP petition then proceeded to a jury trial. The jury found that the State did
not meet its burden to prove beyond a reasonable doubt that Peterson was a sexually violent
predator. Based on the jury’s verdict, Peterson was released from confinement. Peterson appeals
the trial court’s order concluding that his second degree assault conviction is a sexually violent
offense.
ANALYSIS
Peterson argues that the trial court erred by admitting H.L.’s prior statements as recorded
recollections under ER 803(a)(5). The State argues that Peterson’s appeal is not appropriately
before us because Peterson is not an aggrieved party under RAP 3.1. For the reasons set forth in
the unpublished portion of this opinion, we have determined that Peterson is an aggrieved party.
Therefore, we consider the merits of his argument that the trial court erred by admitting the
victim’s statements under ER 803(a)(5).
Peterson argues that the trial court abused its discretion by admitting H.L.’s statements
because H.L.’s prior statements lack other indicia of reliability. The trial court did not abuse its
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discretion in finding that H.L.’s statements were admissible as recorded recollections.
Accordingly, we affirm.
We review a trial court’s ruling admitting evidence under ER 803(a)(5) for an abuse of
discretion. State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831 (1998). ER 803(a)(5) states,
Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Evidence is admissible under ER 803(a)(5) when:
(1) the record pertains to a matter about which the witness once had knowledge; (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony; (3) the record was made or adopted by the witness when the matter was fresh in the witness’ memory; and (4) the record reflects the witness’ prior knowledge accurately.
Alvarado, 89 Wn. App. at 548 (citing State v. Mathes, 47 Wn. App. 863, 867-68, 737 P.2d 700
(1987); ER 803(a)(5)). Peterson does not challenge the first three factors. The only issue is
whether the recorded recollection reflects H.L.’s prior knowledge accurately.
When determining whether the record reflects the witness’s prior knowledge accurately,
the trial court must examine the totality of the circumstances. Alvarado, 89 Wn. App. at 551-52.
The totality of the circumstances includes:
(1) whether the witness disavows accuracy; (2) whether the witness averred accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthiness of the statement.
5 No. 47661-4-II
Alvarado, 89 Wn. App. at 552. Peterson argues that the facts surrounding H.L.’s statements do
not establish other indicia of reliability to support the admission of the statements. Specifically,
Peterson relies on inconsistencies in H.L.’s statements, H.L.’s motive to fabricate the allegation of
rape, and H.L.’s reputation for dishonesty. However, Peterson’s argument actually challenges the
credibility of H.L.’s statements, not the accuracy of the recorded recollection which is required for
admission under ER 803(a)(5).
Washington cases addressing the admissibility of recorded recollections imply a distinction
between the accuracy of the recorded recollection itself and the credibility of the witness’s
statement. See Alvarado, 89 Wn. App. at 552; State v. Derouin, 116 Wn. App. 38, 44-47, 64 P.3d
35 (2003). The accuracy of the record means that the recorded recollection itself accurately states
the witness’s perceptions of the event. In contrast, credibility refers to whether the content of the
witness’s statement is truthful. For the purposes of ER 803(a)(5), accuracy applies to the record,
credibility applies to the content–these are distinctions between form and substance.
Division I of this court’s analysis in Alvarado is instructive. There, the court determined
that the records admitted by the trial court under ER 803(a)(5) satisfied the accuracy prong even
though the witness had demonstrated he was capable of lying and he had made other statements
about the incident that he admitted were false. 89 Wn. App. at 552-53. The court also noted that
admission of the witness’s conflicting statements “provided a context from which defense counsel
could assail [the witness’s] credibility.” Alvarado, 89 Wn. App. at 553. The court’s analysis in
Alvarado demonstrates that a record can be considered accurate for the purposes under ER
803(a)(5) even when a witness’s credibility is clearly questionable.
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The appellate court’s analysis in Derouin, provides additional support for the distinction
between form and substance under ER 803(a)(5). 116 Wn. App. at 44-47. The court in Derouin
evaluated the totality of the circumstances, considered whether the recording process was reliable,
and noted that the recording process was not ideal because the detective wrote the statement which
the witness then signed under the penalty of perjury. Derouin, 116 Wn. App. at 46. The court
noted, “Such a recording process makes it more likely that the statement contained inaccuracies or
statements flavored by the officer’s perception of the events and not the actual witness’s
perceptions.” Derouin, 116 Wn. App. at 46. The court examined whether the record itself
accurately reflected the witness’s perceptions, not whether the perceptions themselves were
accurate. Derouin, 116 Wn. App. at 46. The court observed, “Any inaccuracies within the
statement due to the recording process can be argued at trial and should go to the weight, not the
admissibility of the evidence.” Derouin, 116 Wn. App. at 46. The court’s analysis in Derouin
further supports the distinction between the accuracy of the record itself and the credibility of the
witness.
Here, the trial court properly distinguished between the accuracy of the record itself and
the credibility of the witness to determine whether H.L.’s statements were admissible as recorded
recollections under ER 803(a)(5). The trial court found that the recording processes were reliable,
that H.L. had handwritten her first statement, and that H.L. testified that she recognized her
handwriting and signature on the statement. H.L’s second statements were recorded and the
detective, who was involved in the interview, testified that the recording and transcript accurately
reflected the detective’s recollection of the interview. The trial court also noted that H.L. never
disavowed the statements. And, at the time she made the statements, H.L. averred that the
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statements were accurate. Given the totality of the circumstances, the trial court did not abuse its
discretion in determining that the records accurately reflected H.L.’s statements regarding the
incident. Peterson’s argument against admission relates to H.L.’s credibility and goes to the weight
of the evidence, not to its admissibility. Accordingly, the trial court did not abuse its discretion by
admitting H.L.’s prior statements as recorded recollections under ER 803(a)(5).
A majority of the panel having determined that only the foregoing portion of this opinion
will be published in the Washington Appellate Reports and that the remainder shall be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
ORDER ON SEXUALLY VIOLENT OFFENSE
Peterson assigns error to the trial court’s order concluding that his second degree assault
conviction is a sexually violent offense under RCW 71.09.020(17)(c). Peterson’s argument
challenging H.L.’s statements relates to H.L.’s credibility. Because credibility determinations are
reserved solely for the trier of fact, Peterson’s challenge to the trial court’s order fails.
When reviewing a trial court’s decision following a bench trial, our review is limited to
whether substantial evidence supports any challenged findings of fact and whether the findings
support the conclusions of law. State v. Hovig, 149 Wn. App. 1, 8, 202 P.3d 318 (2009).
Unchallenged findings of fact are verities on appeal. State v. Madarash, 116 Wn. App. 500, 509,
66 P.3d 682 (2003). We do not review credibility determinations. State v. Kaiser, 161 Wn. App.
705, 724, 254 P.3d 850 (2011). Here, the trial court made a specific finding of fact that H.L. was
credible, which finding Peterson challenges. But Peterson’s challenge fails because we do not
review credibility determinations.
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H.L.’s statements regarding the incident establish that Peterson had sexual intercourse with
her. The fact that sexual intercourse occurred supports the trial court’s conclusion that the assault
was committed for Peterson’s sexual gratification, making the crime sexually motivated under
former RCW 9.94A.030(47).2 Because the second degree assault was sexually motivated, the trial
court properly concluded that Peterson’s second degree assault conviction was a sexually violent
offense under RCW 71.09.020(17)(c). Accordingly, we affirm the trial court’s order concluding
that Peterson’s second degree assault conviction is a sexually violent offense.
AGGRIEVED PARTY
The State argues that we should decline to address Peterson’s appeal because he is not an
aggrieved party as required by RAP 3.1. Specifically, the State argues that Peterson is not
aggrieved because a jury decided the ultimate issue in this case–whether Peterson is an SVP–in
Peterson’s favor and Peterson has been released from confinement. Because the trial court’s order
legally establishes that the State has proven a predicate sexually violent offense, the trial court’s
order has continuing legal consequences for Peterson. Accordingly, Peterson is an aggrieved
party.
Under RAP 3.1, “[O]nly an aggrieved party may seek review by the appellate court.” An
aggrieved party is “one whose personal right or pecuniary interests have been affected.” State v.
Taylor, 150 Wn.2d 599, 603, 80 P.3d 605 (2003) (citing State ex rel. Simeon v. Superior Court for
King County, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944)). An aggrieved party’s interest must be
2 Former RCW 9.94A.030(47) (2012), recodified as RCW 9.94A.030(48) states,
“Sexual motivation” means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification.
9 No. 47661-4-II
present and substantial rather than contingent. Tinker v. Kent Gypsum Supply, Inc., 95 Wn. App.
761, 764-65, 977 P.2d 627 (1999). “An aggrieved party is not one whose feelings have been hurt
or one who is disappointed over a certain result.” Taylor, 150 Wn.2d at 603. A party may not
seek appellate review of an issue on which the party prevailed simply because the party does not
agree with the trial court’s reasoning. State v. Alexander, 125 Wn.2d 717, 721 n.6, 888 P.2d 1169
(1995).
The State argues that Peterson prevailed on the ultimate issue at the trial court–whether he
is an SVP–therefore, he is not an aggrieved party entitled to appeal under RAP 3.1. The State
relies on Taylor to argue that, because the trial court’s order has no effect unless the State files a
new SVP petition, Peterson is not under any burden or obligation from the trial court’s order. We
disagree.
In Taylor, our Supreme Court held that the defendant was not an aggrieved party entitled
to seek discretionary review of the trial court’s order dismissing his criminal charges without
prejudice. 150 Wn.2d at 603. Specifically, our Supreme Court stated, “Until the State refiles
charges against [the defendant], if indeed it does, he is under no restriction, and he has the benefit
of a running statute of limitations. We cannot conclude, therefore, that he has been injured in any
legal sense.” Taylor, 150 Wn.2d at 603. However, under the SVP statute, the trial court’s order
has continuing legal consequences for Peterson. Therefore, the facts of this case are sufficiently
distinguishable from those in Taylor.
Under chapter 71.09 RCW, the State may involuntary commit a person who is found to be
an SVP. A conviction for a crime of sexual violence is a predicate to a finding that a person is an
SVP. RCW 71.09.020(18). In many cases, the conviction for a crime of sexual violence itself is
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sufficient to establish this predicate finding. RCW 71.09.020(17)(a). However, in some cases,
such as in Peterson’s, a trial court must make a finding of sexual motivation at a commitment
hearing before a conviction can be a predicate sexually violent offense. RCW 71.09.020(17)(c).
Once the State establishes a predicate sexually violent offense by a person, the State can rely on
the trial court’s order as a basis to file a new SVP petition. Under RCW 71.09.040, once the State
establishes probable cause for an SVP petition, a trial court must hold the person in total
confinement pending a trial on the SVP petition.3
Here, the trial court’s finding, that Peterson’s second degree assault conviction is a sexually
violent offense, has legal consequences to Peterson. Based on the trial court’s order, the State has
established a predicate sexually violent offense for the purposes of a SVP petition. RCW
71.09.030(1)(e). Therefore, in this case, the trial court’s order provides a basis for the State to file
a new SVP petition.
Because the trial court’s order has legal consequences, the trial court’s order is more
analogous to an order in an involuntary commitment proceeding. See In re Det. of M.K., 168 Wn.
App. 621, 279 P.3d 897 (2012). In M.K., we addressed whether an appeal was moot after an
involuntary commitment period had expired. We held that “it is clear that MK’s appeal of his
involuntary commitment order is not moot, despite the treatment period in the challenged order
having expired, because a trial court presiding over future involuntary commitment hearings may
consider MK’s prior involuntary commitment orders when making its commitment
3 RCW 71.09.040(4) provides, “If the probable cause determination is made, the judge shall direct that the person be transferred to the custody of the department of social and health services for placement in a total confinement facility operated by the department. In no event shall the person be released from confinement prior to trial.”
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determination.” 168 Wn. App. at 629. Although M.K. addressed an issue of mootness, rather than
whether the appellant was an aggrieved party, the reasoning is similar. Like an involuntary
commitment order, the trial court’s order here has a continuing, future effect because the order
subjects Peterson to the SVP statute.
Because the trial court’s order subjects Peterson to the SVP statute, the order affects his
personal right to be free from potential total confinement pending an SVP trial. Although this
effect is still contingent on the State filing a new SVP petition, the threat of total confinement
pending another SVP trial is substantial. Accordingly, Peterson is an aggrieved party under
RAP 3.1.
CONCLUSION
Peterson is an aggrieved party under RAP 3.1, therefore, we consider the merits of his
argument on appeal. The trial court did not abuse its discretion in admitting H.L.’s statements
under ER 803(a)(5), and we do not review credibility determinations. Accordingly, we affirm the
trial court’s order concluding that Peterson’s second degree assault conviction is a sexually violent
SUTTON, J. We concur:
WORSWICK, P.J.
LEE, J.