IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
o t o CD STATE OF WASHINGTON, ) ) No. 71466-0-1 S ^ Te r n. Respondent, ) -< &~n„. ) DIVISION ONE £ 3£^p v- ) x» oimV-l ) UNPUBLISHED OPINION §>'" K.L.G., ) V? 2^ o- ) Appellant. ) FILED: May 26,2015 ) Appelwick, J. — Twelve year old K.L.G. was convicted of child molestation in the
first degree of five year old C.S. K.L.G. asserts that the juvenile court applied an incorrect
legal standard and abused its discretion when it concluded C.S. was competent to testify.
He argues that the juvenile court erred in admitting C.S.'s child hearsay statements. He
alleges that the court erred when it allowed the child interview specialist to remain in the
courtroom during the proceedings. For the first time on appeal, he contends that C.S.'s
oath was not adequately administered. We affirm.
FACTS
Throughout his childhood, 12 year old K.L.G. has been repeatedly removed from
households because of his behavioral problems. Eventually, K.L.G. was placed with his
biological father, Newton Gibson. Gibson lived with his girlfriend, Jennifer Pursley, and
her three children, including her youngest child, C.S. On September 28, 2013, after six
weeks in the home, K.L.G. ran away.
The day K.L.G. ran away from home, C.S. told Pursley that "the other day" K.L.G.
had pulled down C.S.'s pants, put soap in C.S.'s bottom, and put his penis inside C.S.'s
bottom. But, when Pursley tried to get more details from C.S. about the incident at that No. 71466-0-1/2
time, C.S. was emotional and did not say anything else about it. Later that day, Pursley
called the police to report that K.L.G. had run away from home.
The police found K.L.G. and asked Pursley to come pick him up. When Pursley
arrived to pick up K.L.G., she spoke with Officer Molly Ingram. Pursley told Officer Ingram
that there had been some issues with K.L.G.'s disruptive behavior in the home and she
told Officer Ingram about what C.S. had told her.
Later that night, Pursley took C.S. to the hospital to be examined by Sexual Assault
Nurse Practitioner Sherry Allen. C.S. told Nurse Allen that K.L.G. does "gross stuff' when
they are alone together and that K.L.G. hurts him. Nurse Allen then performed a physical
exam. Nurse Allen did not observe anything in the rectal area and noted no trauma.
The next day, police officers interviewed K.L.G. K.L.G. denied the allegations and
remarked that he thought it was possible that C.S. was offered money to falsely accuse
K.L.G. in order to get K.L.G. into trouble. During the interview, K.L.G. also informed the
officers that he was physically abused and that there was drug abuse in the home.
On October 2, 2013, C.S. was interviewed by Child Interview Specialist Gina
Coslett. C.S. has developmental delay issues, and he was very distracted during the
interview. Nonetheless, during the interview, C.S. told Coslett that K.L.G. had humped
him and touched C.S.'s butt with his hands. C.S. said that humping means "doing gross
stuff."
That same day, the State charged K.L.G. with rape of a child in the first degree. It
subsequently added one count of child molestation in the first degree.
The juvenile court conducted a combined competency and child hearsay
determination during the course of trial. C.S. testified that K.L.G.'s "wiener" touched his No. 71466-0-1/3
bottom and that itwent inside his butt. At times, C.S. seemed reluctant to testify and said
that he did not know the answer to several questions. C.S. asked about lunch three times
during the course of his testimony and mentioned the service dog in the courtroom. C.S.
also asked to go to recess. Coslett and Pursley also testified. Coslett testified about her
prior interview with C.S. and Pursley testified about C.S.'s disclosure of the incident and
the events that took place that day.
The juvenile court concluded that C.S. was competent. And, it concluded that the
statements C.S. made to Pursley and Coslett were admissible as child hearsay. The
juvenile court entered written findings and conclusions about C.S.'s competence and
about the reliability and admissibility of C.S.'s statements to Pursley and Coslett.
The juvenile court found K.L.G. guilty of child molestation. K.L.G. appeals.
DISCUSSION
K.L.G. argues that the juvenile court erred when it concluded that C.S. was
competent to testify. He further maintains that the court erred when it admitted C.S.'s
child hearsay statements. He further contends that the court abused its discretion when
it denied his motion to exclude Coslett from the courtroom. And, he contends that his
motion to exclude Coslett from the courtroom below enables him to challenge the
propriety of C.S.'s oath for the first time on appeal, because Coslett interjected herself
into the oath administration.
I. Competency
K.L.G. first contends that the juvenile court performed an incorrect, incomplete
legal analysis when it determined that C.S. was competent to testify. No. 71466-0-1/4
This court reviews competency determinations for abuse of discretion. State v.
Stanqe. 53 Wn. App. 638, 642, 769 P.2d 873 (1989). Ifthe trial court's ruling is based on
an erroneous view of the law or involves application of an incorrect legal analysis, it
necessarily abuses its discretion. Dix v. ICT Grp., Inc.. 160 Wn.2d 826, 833, 161 P.3d
1016(2007).
The test of the competency of a young child as a witness consists of the following:
(1) an understanding of the obligation to speak the truth on the witness stand; (2) the
mental capacity at the time of the occurrence to receive an accurate impression of it; (3)
a memory sufficient to retain an independent recollection of the occurrence; (4) the
capacity to express in words his memory of the occurrence; and (5) the capacity to
understand simple questions about it. State v. Allen. 70 Wn.2d 690, 692, 424 P.2d 1021
(1967). Satisfaction of each of the Allen factors is essential to a determination that a child
may properly testify. Jenkins v. Snohomish County Pub. Util. Dist. No.1, 105 Wn.2d 99,
102-03, 713 P.2d 79 (1986).
K.L.G. first contends that the juvenile court did not satisfactorily employ the first
Allen factor, because it evaluated only if C.S. "understood his obligation to speak the
truth." According to K.L.G., the court failed to determine whether C.S. understood his
obligation to speak truthfully on the witness stand, in a legal proceeding. Allen, 70 Wn.2d
at 692. K.L.G. appears to be drawing this conclusion, because the findings of fact do not
specifically mention that C.S. understood he needed to speak truthfully on the witness
stand. But, just because the court did not enter a finding of fact mimicking the language
of the first Allen factor does not necessarily mean that the court did not engage in that
analysis. In fact, C.S. was on the witness stand when he promised to tell the truth. And, No. 71466-0-1/5
the record indicates that the court considered this fact in making its determination. The
juvenile court engaged in the correct inquiry under the first Allen factor.
K.L.G. then argues that the juvenile court did not accurately apply the second and
third Allen factors, because it considered only whether C.S. had "an accurate recollection
at the time of the occurrence and the ability to retain the recollection." K.L.G. contends
that the court did not make the required determination that C.S. had the ability to receive
an accurate and independent impression of the incident that allegedly occurred. But, the
record indicates the court did consider the proper standard in making its determination.
Specifically, the juvenile court opined that C.S. clearly had the mental capacity to receive
an accurate impression of the occurrence, noting that it was only three months before
trial. It continued that C.S. had a sufficient memory to retain an independent recollection
of the occurrence.
K.L.G. contends that even if the juvenile court applied the correct competency
analysis standard, the juvenile court abused its discretion by ultimately concluding that
C.S. was competent to testify under Allen. In reviewing a juvenile court adjudication, this
court must decide whether substantial evidence supports the trial court's findings of fact
and, in turn, whether the findings support the conclusions of law. State v. B.J.S., 140 Wn.
App. 91, 97, 169 P.3d 34 (2007). Unchallenged findings of fact are verities on appeal.
The determination of the witness's competence and ability to meet the
requirements of the Allen test rests primarily with the trial judge who sees the witness,
notices his manner, and considers his capacity and intelligence. Allen, 70 Wn.2d at 692.
These are matters that are not reflected in the written record for appellate review, jd. No. 71466-0-1/6
Their determination lies within the sound discretion of the trial judge and will not be
disturbed on appeal in the absence of proof of manifest abuse of discretion. ]d. There 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. State v. Woods.
154 Wn.2d 613, 617, 114 P.3d 1174 (2005). On appeal, this court may examine the
entire record in reviewing a competency determination. Id.
A. Obligation to Tell the Truth (Allen Factor (D)
K.L.G. alleges that the juvenile court abused its discretion, because there was not
substantial evidence to support the court's finding that C.S. understood his obligation to
tell the truth in a legal proceeding.
Prior to testifying at the competency hearing, the judge began to administer C.S.'s
oath:
THE COURT: Okay.
Good morning. We are going to ask you to raise your right hand. Can you do that for me? The other right hand. That's right. Put it back up.
Do you swear that the testimony you will give in this proceeding today will be the truth, the whole truth, and nothing but the truth?
MS. GINA COSLETT: Do you promise to tell the truth?
THE WITNESS: Yes.
Consequently, K.L.G. first contends that C.S. failed to understand his obligation to
tell the truth in a legal proceeding, because C.S. was improperly sworn in. He contends
that the oath did not solicit a promise to the judge to tell the truth in the courtroom setting.
He claims that C.S.'s silence after the judge asked him if he swore to tell the truth plainly
illustrates that C.S. did not understand the importance of telling the truth. But, K.L.G. No. 71466-0-1/7
agreed to tell the truth after Coslett clarified the question and distilled it into language a
five year old could better understand. Moreover, a formal oath is not a prerequisite to a
satisfaction of this Allen factor. See State v. Johnson, 28 Wn. App. 459, 461, 624 P.2d
213 (1981) (finding the witness competent even though the court did not require the child
to subscribe to a formal oath), affd, 96 Wn.2d 926, 639 P.2d 1332 (1982).
There is substantial evidence in the record indicating that C.S. understood the
importance of telling the truth in a legal proceeding. First, C.S. promised to tell the truth
during the oath in court. Additionally, he acknowledged that his parents told him it is
important to tell the truth. His mother testified that she taught C.S. the importance of
telling the truth and that lying is a bad thing. And, C.S. promised to tell the truth during
his prior interview with Coslett.
Nonetheless, K.L.G. cites to portions of the record and raises a number of
additional concerns about C.S.'s testimony, that C.S. testified that he sometimes tells the
truth and he sometimes does not tell the truth; that C.S. testified inconsistently about
whether he told his mother about the event in question; that he could not remember if
Coslett told him during their interview that it was important to tell the truth; and that he
"tricked" Coslett and later testified that he "didn't trick anything"—implying that C.S. was
lying about prior events. However, to the extent K.L.G. highlights inconsistencies in C.S.'s
testimony, inconsistencies in a child's testimony go to weight and credibility, not
competency. State v. Carlson, 61 Wn. App. 865, 874, 812 P.2d 536 (1991). Moreover,
appellate courts do not weigh evidence. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn.
App. 710, 717, 225 P.3d 266 (2009).
Substantial evidence supports the finding that C.S. satisfied this Allen factor. No. 71466-0-1/8
B. Independent Recollection and Ability to Retain and Describe the Events (Allen
Factors (3), (4), & (5))
K.L.G. further claims that the juvenile court abused its discretion when it
determined that C.S. had an independent recollection of the claimed event when he made
only occasional, vague, and fragmentary statements that were elicited by adult
professionals. He further challenges the juvenile court's finding of fact that C.S. had the
ability to describe the events and understand simple questions about the events.
He first asserts that C.S. did not answer simple questions with clear descriptions
that showed he had perceived or independently remembered the alleged event. Rather,
he contends, C.S. had to be prompted by adults questioning him via leading questions
and that C.S. failed to respond adequately to those questions. K.L.G. cites to several
examples from C.S.'s interview with Coslett. Coslett asked C.S. why C.S. came to speak
with her. C.S. responded that he did not know both times. Coslett asked why C.S.'s
mother was worried something happened to him, and C.S. responded that he did not
know. But, Coslett then told C.S. that she heard he went to see the doctor. At that point,
C.S. responded:
C.S.: Oh yeah then urn (unintelligible) was humping me and doing that stuff.
CIS Coslett: [Something what[?]
C.S.: Kyle was humping me and doing that stuff[.]
CIS Coslett: Kyle was humping you and doing that stuff[?]
C.S. [Y]eah[.] No. 71466-0-1/9
Neither Coslett nor C.S. mentioned K.L.G. or the specific incident until C.S.
mentioned it in response to why he went to the doctor. Then, during C.S.'s testimony in
court, he independently reiterated that K.L.G. did "gross stuff" to him. He then described
the "gross stuff' to be touching his butt with K.L.G.'s "wiener." And, he said that K.L.G.
was touching his butt. When asked whether K.L.G.'s wiener was on the outside of his
butt, C.S. independently responded that "it was in my butt." Even though C.S. was
distracted during both his interview with Coslett and while testifying, he still responded to
questions that showed he independently remembered the alleged event. There was
substantial evidence in the record that C.S. had the ability to independently describe the
events and understand simple questions about them.
K.L.G. also refers to instances which he claims show that C.S. did not have an
accurate recollection of the events. During his interview with Coslett, C.S. could not
remember what room he was in when there was "humping," but during his testimony in
court, C.S. said that the humping took place in his bedroom. And, C.S. could not
remember that he had previously defined "humping" as K.L.G. touching him with his
hands. But, again, inconsistencies in a child's testimony do not go to the question of
competency. Carlson, 61 Wn. App. at 874. And, the existence of inconsistencies or
contradictions in a witness's testimony do not render the witness incompetent. Stange,
53 Wn. App. at 642.
Substantial evidence supported the finding that C.S. satisfied Allen factors (3), (4),
and (5). No. 71466-0-1/10
C. Mental Capacity at the Time of Occurrence (Allen Factor (2))
Whether the juvenile court abused its discretion in finding that C.S. satisfied Allen
factor (2) is dependent upon C.S.'s mental capacity at the time of the occurrence. In re
Dependency of A.E.P.. 135 Wn.2d 208, 225-26, 956 P.2d 297 (1998). K.L.G. alleges the
court erred when it found C.S. competent to testify, because C.S. did not have the ability
to perceive the events at the time. He challenges the court's finding of fact that C.S. had
an accurate recollection at the time of the occurrence and the ability to retain the
recollection.
The trial court should determine whether the child has the capacity at the time of
the event to receive an accurate impression of the event, id. If the trial court has no idea
when the alleged event occurred, it cannot begin to determine whether the child had the
mental ability at the time of the alleged event to receive an accurate impression of it. jd.
at 225.
In A.E.P., an allegedly abused child testified that she was inappropriately touched
a very long time ago. jd. at 224. The child could not specify how long ago the event took
place. Id. The trial court considered whether the child could connect the event to another
point of reference in the child's life such as who her babysitter was at the time or where
her mother was living. Id. The child listed off four different babysitters who all babysat at
different points in time. jd. The A.E.P. court determined that because the trial court could
not determine when in the past the alleged events occurred, it could not possibly begin to
determine whether the child had the mental ability at the time of the incident. Id. at 225.
Consequently, the court held that the second Allen factor was not satisfied. Id. at 225-
26.
10 No. 71466-0-1/11
C.S.'s mother, Pursley, testified that C.S. does not know the difference between a
month, a couple of days, or a week. K.L.G. contends that, as a result, this Allen factor
cannot be satisfied. Coslett corroborated Pursley's statement and testified that C.S. does
not have an accurate sense of time. But, she also testified that this is not unusual for a
five year old and that time sequencing is difficult for children.
C.S. testified that he did not report the incident to his parents right after it
happened. He further testified that he told his mother about the incident on the same day
that K.L.G. ran away from home. When C.S. told Pursley about the incident, he said that
it happened "'the other day.'" Pursley further testified that about three weeks before C.S.
reported the alleged event, she noticed that C.S. became more clingy and emotional. She
identified one moment three weeks before the allegation surfaced in which she saw C.S.
with K.L.G. and C.S.'s face was red and teary. She further testified that C.S. was acting
scared and seemed too scared to report what was making him upset.
Here, although C.S.'s testimony was not specific as to the date the event occurred,
other evidence in the record allowed the juvenile court to determine an adequate
approximation of when the alleged event occurred. The court found that the event took
place sometime between September 1, 2013 and September 30, 2013.1 This is unlike
A.E.P. in which the court reasoned that it could not determine when the past alleged
events occurred.
Moreover, given that finding, there was substantial evidence in the record to
determine that C.S. had the mental capacity at the time of the occurrence to receive an
accurate impression. C.S. was clear about the date he reported it to his mother. C.S.
1 K.L.G. did not explicitly challenge this finding of fact.
11 No. 71466-0-1/12
testified that K.L.G.'s wiener went inside his butt, that he did not like it and said that it felt
bad, and that K.L.G. humped C.S. by touching his butt with his hands. And, the juvenile
court noted that when C.S. testified that he did not like K.L.G. touching him, C.S. was
assertive and looked at K.L.G. during that point in the testimony.
Substantial evidence supported the finding that C.S. satisfied Allen factor (2).
We conclude that the juvenile court did not abuse its discretion when it determined
that C.S. satisfied the Allen factors and was competent to testify.
II. Child Hearsay
The juvenile court ruled that C.S.'s statements to his mother, interview specialist
Coslett, and Nurse Sherry Allen2 were admissible as child hearsay. K.L.G. contends that
under State v. Ryan, 103Wn.2d 165,691 P.2d 197 (1984), the juvenile court erred when
it allowed Pursley and Coslett to testify as to C.S.'s statements.
"Hearsay" is a statement made by a declarant not testifying at trial that is offered
into evidence to prove the truth of the matter asserted. ER 801(c). Hearsay is not
admissible except as provided for by the rules of evidence, by other court rules, or by
statute. ER 802. The child hearsay statute provides that a statement made by a child
under the age of 10 describing an act of sexual conduct with the child or on the child is
admissible if the court finds that the time, content, and circumstances of the statement
provide sufficient indicia of reliability and the child either testifies at the proceedings or is
unavailable as a witness. RCW 9A.44.120. In determining whether the statements are
2 K.L.G. challenges only C.S.'s statements to Pursley and Coslett on appeal. Defense counsel stipulated to the admission of Nurse Allen's statements at trial based on the medical diagnosis hearsay exception. Therefore, the juvenile court did not analyze those statements under the Ryan factors.
12 No. 71466-0-1/13
reliable, this court applies nine factors known as the Ryan factors. State v. Swan, 114
Wn.2d 613, 647-648, 790 P.2d 610 (1990). A trial court need not determine that every
Rvan factor is satisfied before admitting child hearsay, but the trial court must show that
the factors are substantially met. Id. at 652. The Rvan 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 statements; (4) whether the statements were made spontaneously;... (5) the timing of the declaration and the relationship between the declarant and the witness"[; (6)] the statement contains no express assertion about past fact; [(7)] cross- examination could not show the declarant's lack of knowledge; [(8)] the possibility of the declarant's faulty recollection is remote; and [(9)] the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented defendant's involvement.
id. at 647-48 (citation omitted) (quoting Rvan, 103 Wn2d at 176).
The trial court is in the best position to make the determination of reliability as it is
the only court to see the child and the other witnesses. State v. Pham. 75 Wn. App. 626,
631, 879 P.2d 321 (1994). Whether statements are admissible pursuant to the child
hearsay exception is within the sound discretion of the trial court and will not be reversed
absent a showing of manifest abuse of discretion, id. Reliability does not depend on
whether the child is competent to take the witness stand, but on whether the comments
and circumstances surrounding the statement indicate it to be reliable. Swan, 114 Wn.2d
at 648. If the declarant was not competent at the time of making the statements, the
statements may not be introduced through hearsay repetition. Ryan, 103 Wn.2d at 173.
K.L.G. contends that an analysis of the Rvan factors show that the statements are
not reliable.
13 No. 71466-0-1/14
A. Apparent Motive to Lie
The juvenile court found that there was no evidence that C.S. had an apparent
motive to lie. K.L.G. contends that C.S. did have an apparent motive to lie and that there
is not substantial evidence in the record to support the juvenile court's finding. K.L.G.
references Pursley's testimony that C.S. and K.L.G. had a sibling rivalry and did not get
along with each other, just like normal brothers. But, there is no evidence in the record
that C.S. wanted K.L.G. out of the home. Nor is there evidence that five year old C.S.
knew that by fabricating a very specific sexual assault allegation K.L.G would be removed
from the home. No evidence suggests that, sibling rivalry or not, C.S. wanted to harm
K.L.G.
K.L.G. further claims that the record indicates that C.S. had a motive to lie, because
C.S.'s family wanted K.L.G. out of the house. When K.L.G. spoke with the police officers
he said that he thought C.S. was offered money to fabricate the allegations. But, there is
no additional evidence in the record that supports this possibility. And, this theory
presupposes that C.S. had the wherewithal to repeatedly lie on purpose. This is belied
by K.L.G.'s arguments attacking C.S.'s competence and mental abilities. The record
supports the finding that this factor is satisfied.
B. The Child's General Character
The basis of this factor is whether C.S. had a reputation for telling the truth. State
v. Lopez, 95 Wn. App. 842, 853, 980 P.2d 224 (1999). The juvenile court found that there
was no evidence that C.S. had a reputation for dishonesty and that he has the same
reputation for truthfulness of a normal five year old boy. K.L.G. contends that C.S.'s
character for honesty was "bad" and that the juvenile court neither expressly analyzed his
14 No. 71466-0-1/15
character for honesty nor had the substantial evidence necessary to enter its finding.
K.L.G. claims that C.S.'s character and reputation for honesty was bad, because he
tricked Coslett about what he had for breakfast during their interview and then lied about
it in court. And, because he was silent when the court administered the oath.
But, these two instances do not establish a reputation for dishonesty. Moreover,
Pursley testified that C.S. knew the importance of telling the truth and generally tells the
truth. This is reputation evidence, however limited, of the five year old's honesty. The
record supports a finding that this factor is satisfied.
C. Whether More than One Person Heard the Statements
The juvenile court found that C.S. told his mother, Coslett, and Nurse Allen about
the incident. This factor is satisfied where the child repeats similar statements to different
people on different occasions. Lopez, 95 Wn. App. at 853. K.L.G. contends that the
inconsistency of C.S.'s statements to these individuals cuts against satisfaction of this
factor.
Despite minor inconsistencies in C.S.'s definition of "humping" or "doing gross
stuff," C.S. told all three women similar versions of K.L.G. touching him sexually or "doing
gross stuff." It is true that aside from his testimony in court, C.S. only explicitly revealed
the sexual penetration to his mother. But, C.S. did reveal to different people similar
statements about sexual activity with K.L.G. See Lopez, 95 Wn. App. at 853 (finding this
Rvan factor satisfied even after children told different and inconsistent versions of their
stories because they revealed similar statements to different people about sexual activity
with their father). This factor is satisfied.
15 No. 71466-0-1/16
D. The Spontaneity of the Statements
The juvenile court found that all of C.S.'s statements were spontaneous.
For purposes of determining the reliability of a statement made by a child victim of sexual
abuse, any statements made that are not the result of leading or suggestive questions
are spontaneous. kL
K.L.G. argues that the statements were not spontaneous, but were a result of
coaxing and urging. He contends that the juvenile court lacked substantial evidence to
find that all the statements were spontaneous under the law. First, he contends that
C.S.'s statement to his mother was not spontaneous, because Pursley questioned C.S.
for several hours after he made a statement in the car about K.L.G. But, this questioning
was after C.S. told Pursley that K.L.G. had pulled C.S.'s pants down, put soap in his
bottom, and stuck his penis in. C.S. made that statement after he spontaneously told
Pursley that he had something to tell her and after Pursley gave him a little tickle and
asked him what was going on.
K.L.G. further contends that all of C.S.'s statements to Coslett were as a result of
drawn-out coaxing and urging. But, Coslett did not mention K.L.G. or the specific incident
until C.S. mentioned it in response to why he went to the doctor. Simply because Coslett
was speaking with C.S. and asking him vague questions does not mean that she led him
into making a specific statement about K.L.G. This factor is satisfied.
E. Timing of Statements and Relationship Between Declarant and Witness
The juvenile court found that C.S. waited to disclose the incident until K.L.G. was
out of the home, (as opposed to doing so when K.L.G. was still in the home with the
capability of hurting him again), implying that C.S.'s disclosure showed reliability. K.L.G.
16 No. 71466-0-1/17
contends that the timing of the statements was not reliable, because Pursley told the
police about C.S.'s statements only after first telling the officers about K.L.G.'s behavioral
problems. In so doing, K.L.G. is evaluating the timing of Purslev's statements and not
C.S.'s statements to Pursley that the State sought to admit as hearsay.
Pursley is C.S.'s mother. A relationship of trust between the child declarant and
the witness can establish reliability. See Swan, 114 Wn.2d at 650 (concluding reliability,
because children's parents were undoubtedly trusted by the children). Moreover, C.S.
made additional statements about the incident to Coslett, a professional trained in
properly interviewing sexually abused children. The presence of professionals
investigating child abuse enhances the reliability of the statements. State v. Young, 62
Wn. App. 895, 901, 802 P.2d 829, 817 P.2d 412 (1991).
K.L.G. further contends that the juvenile court abused its discretion by applying an
incorrect legal standard when assessing this prong. He claims this is so, because it
inquired about the relationship between the declarant, C.S., and the accused, K.L.G.,
instead of the relationship between C.S. and the witness, Pursley. While the juvenile
court did unnecessarily examine the relationship between K.L.G. and C.S., the Rvan
factors are nonexclusive. A.E.P., 135 Wn.2d at 230.
The timing of C.S.'s statements and the relationship between C.S. and Coslett and
Pursley suggest reliability. This factor is satisfied.
F. Remoteness of the Possibility of the Child's Recollection Being Faulty
The juvenile court found no indication that C.S.'s recollection was faulty or that he
misrepresented K.L.G.'s involvement. The juvenile court opined that C.S. was on the
witness stand and told the court about specific facts that had happened. It continued that
17 No. 71466-0-1/18
although there were questions in terms of what time the event may have occurred, there
was no reason to suppose that C.S.'s recollection was faulty. K.L.G. argues that this
factor is not satisfied, because the record indicates that C.S. is a person of poor
trustworthiness generally. He again refers to C.S.'s "admitted dishonesty" and the trick
C.S. played on Coslett during the interview.
C.S. recalled the incidents with specific facts and was able to be cross-examined.3
A child need not remember every detail of the event. See Lopez, 95 Wn. App. at 854.
This factor was satisfied.
G. Circumstances Surrounding the Statements and Accused's Involvement
The juvenile court found that there was no indication that C.S. misrepresented
K.L.G.'s involvement in the event, because C.S.'s statements were spontaneous and in
response to nonleading questions. K.L.G. contends that the circumstances do not show
the hearsay testimony to be reliable. But, he does not provide any additional support for
this argument. No evidence in the record indicates that C.S. misrepresented the facts.
This factor is satisfied.
We conclude that the juvenile court did not abuse its discretion in determining that
the Rvan factors were satisfied and in admitting Pursley's and Coslett's statements.4
3 K.L.G. contends that the juvenile court lacked the substantial evidence necessary to enter this finding of fact. But, C.S. was subject to cross-examination. And, while he may have had difficulty recalling what he had previously discussed with Coslett and defense counsel in earlier interviews, while on the stand, C.S. was able to recall K.L.G. touching him. 4 Because we conclude that the juvenile court did not abuse its discretion when it concluded that C.S. was both competent to testify and competent at the time he made the statements to Coslett and Pursley, we need not address K.L.G.'s confrontation clause argument.
18 No. 71466-0-1/19
III. Coslett's Presence in the Courtroom
K.L.G. also argues that the juvenile court erred when it denied his motion to
exclude Coslett from the courtroom. Below, K.L.G. moved to exclude Coslett from court
while other witnesses were testifying. The State claimed that because it was difficult to
keep C.S. focused, Coslett's expertise and presence would be beneficial. The juvenile
court denied K.L.G.'s motion reasoning that it did not know of any basis for it to exclude
Coslett. It opined that generally a testifying detective is allowed to remain in the courtroom
and it did not see a reason why Coslett should be treated any differently.
ER 615 states that at the request of a party, the court may order witnesses
excluded so they cannot hear the testimony of other witnesses. But, ER 615 does not
authorize exclusion of a person whose presence is shown to be reasonably necessary to
the presentation of the party's cause. When ER 615's exclusionary rule is invoked, it is
customary to exempt one witness to confer with the prosecutor during trial. State v.
Weaver, 60 Wn.2d 87, 90, 371 P.2d 1006 (1962). Questions concerning the exclusion of
witnesses and the violation of ER 615 are within the broad discretion of the trial court and
will not be disturbed, absent manifest abuse of discretion. State v. Schapiro, 28 Wn. App.
860, 867-68, 626 P.2d 546 (1981).
On appeal, K.L.G. contends that allowing a State's witness to be present in the
courtroom during the entire case risks many dangers, including, but not limited to, the
danger that the witness will be able to tailor his or her testimony to the testimony of
witnesses appearing beforehand. He claims that the State's desire to have a trial witness
in the courtroom who it believed could assist in keeping the complainant focused is not a
proper basis to allow the witness to stay.
19 No. 71466-0-1/20
K.L.G. provides no authority for any of his assertions that a child interview
specialist cannot remain in the courtroom during the proceedings. As a result, K.L.G. has
not established that the juvenile court abused its discretion by denying K.L.G.'s motion to
exclude Coslett.
IV. Adeguacv of C.S.'s Oath
K.L.G. argues that C.S.'s oath was inadequate, because its content was improper
and because an interested State's witness procured it. Prior to C.S.'s testimony, the
juvenile court judge began to administer the oath to C.S. When C.S. did not respond,
Coslett interjected and asked C.S. if he "promise[d] to tell the truth." K.L.G. challenges
the adequacy of the oath for the first time on appeal.
The State contends K.L.G.'s failure to object to the oath at trial constitutes a waiver
of any error. Failure to object to the adequacy of a child witness's oath at trial results in
a waiver of any error. See State v. Dixon. 37 Wn. App. 867, 876, 684 P.2d 725 (1984).
But, K.L.G. contends that his general objection to Coslett's presence in the courtroom
functioned as a standing objection as to anything Coslett did while in the courtroom—
including her involvement in administering C.S.'s oath.
The purpose underlying issue preservation is to encourage the efficient use of
judicial resources. State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011). Issue
preservation serves this purpose by ensuring that the trial court has the opportunity to
correct any errors. Jd. at 304-05. Here, K.L.G.'s counsel objected to Coslett's presence
in the courtroom, because "it's something [he had] never seen done before." Counsel
provided no rationale or argument to alert the court as to why Coslett's presence was an
error that needed to be corrected.
20 No. 71466-0-1/21
On appeal, K.L.G. contends that the oath was improperly administered, because
an interested State's witness helped procure it. But, there is no indication in the record
that K.L.G. objected to Coslett's presence because of a fear that she would improperly
interject herself into the proceedings. Therefore, K.L.G.'s general objection was
insufficient to serve as an objection to the content and manner of administration of the
oath.
Alternatively, K.L.G. argues that the absence of an adequate oath is manifest
constitutional error under RAP 2.5(a)(3) that can be challenged for the first time on appeal.
In State v. Avila, 78 Wn. App. 731, 737-38, 899 P.2d 11 (1995), the court rejected the
defendant appellant's RAP 2.5(a)(3) argument that it was manifest constitutional error for
a child witness to testify without first being administered a formal oath to tell the truth.
The Avila court rejected the argument, because Avila failed to engage in the four step
approach established by the court in State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251
(1992), for determining whether an alleged constitutional error may be raised for the first
time on appeal. Avila, 78 Wn. App. at 738. While K.L.G. cites to Lynn, he does not
engage in a meaningful analysis of the four factors. Therefore, like the court in Avila, we
reject K.L.G.'s RAP 2.5(a)(3) argument.
Even if we found the issue was properly before us, the oath was adequate. ER
603 requires that every witness be sworn before testifying. Avila, 78 Wn. App. at 738.
But, where the witness is a child, a trial court does not abuse its discretion in declining to
administer a formal oath. id. at 737-38. It is sufficient that a child promised to tell the
truth. id. at 738. The trial court administered the formal oath, but C.S. hesitated. Coslett
21 No. 71466-0-1/22
interrupted to clarify to C.S. that he was being asked if he would tell the truth. He
answered, "Yes" to the court. Therefore, there was no error here.
The juvenile court did not abuse its discretion when it concluded that C.S. was
competent to testify, when it admitted C.S.'s child hearsay statements, and when it denied
K.L.G.'s request to exclude Coslett from the courtroom. We affirm.
WE CONCUR:
WL/fc-e^