IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 80590-8-I ) Respondent, ) ) v. ) ) LAKENDRICK L. BUTTS, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — Lakendrick “Kenny” Butts was convicted of one count of first
degree rape of a child.
Butts contends the court prejudiced him by allowing an amendment to the
charging period in the information. Because the amendment did not change an
essential element of the crime charged and he fails to show prejudice from the
amendment, the court did not abuse its discretion.
Butts argues the court prejudiced his right to present a defense by rejecting
his proffered evidence that the victim’s biological grandmother was a prostitute
whose trade gave the victim a precocious sexual knowledge. Because this
evidence was itself an inference built upon other inferences and only exculpatory
by inference, the court did not abuse its discretion by excluding the evidence
under ER 403 as unduly prejudicial and confusing to the jury. No. 80590-8-I/2
Butts argues the court abused its discretion by admitting unreliable child
hearsay. Because the trial court’s unchallenged findings of fact and the record as
a whole support its conclusion that the victim’s hearsay statements were reliable,
Butts fails to show the court abused its discretion.
Therefore, we affirm.
FACTS
M.M. was placed with foster mother Francis Butts in late April of 2017.
Francis1 is the mother of M.M.’s godmother. Francis’s sister, Gloria, is the mother
of then-17-year-old Kenny. Butts family gatherings were often held at Gloria’s
house, and Francis brought M.M. and her grandchildren to Gloria’s house at least
once per month. There was a computer in Kenny’s room, and M.M. would go in
there to play games. Kenny was at home at least “once a month” when M.M. and
his cousins were visiting.2
On June 1, 2018, guidance counselor Kyra Miller was teaching a lesson to
M.M.’s kindergarten class about appropriate and inappropriate touching. After
reading a story in which an older boy asks to touch the private parts of the main
character, Miller wrapped up the lesson by asking the class what they should do if
someone tried to touch them inappropriately. M.M. “blurted out, ‘[W]hen my
cousin tells me to suck his private, I’m going to say no.’”3 After class, Miller spoke
1 Because Lakendrick, Francis, and others have the same last name, we refer to them by their first names. 2 Report of Proceedings (RP) (Aug. 22, 2019) at 1086. 3 RP (Aug. 7, 2019) at 73.
2 No. 80590-8-I/3
privately with M.M., and M.M. confirmed what she had said in class. Miller filed a
report that day with Child Protective Services (CPS).
Over the following week, CPS investigator Margarite Hatter and forensic
child interview specialist Alyssa Lane both interviewed M.M. In her interview with
Layne, M.M. said May 2 was the last time Kenny made her perform oral sex on
him. Detective Heather Castro of the Federal Way Police Department arrested
and interviewed Kenny. In August of 2018, the State charged Kenny with
committing one count of first degree child rape between May 1 and June 1. The
State later told defense counsel it would expand the charging period to include the
entire duration of M.M.’s time in Francis’s care.
On the first day of pretrial motions and before jury selection, the State
moved to amend the information by expanding the charging period to encompass
the time from April 17, 2017 through June 1, 2018. The court concluded the
amendment would not prejudice Kenny and granted the motion. The court also
held a child hearsay hearing, made findings of fact, and concluded M.M.’s hearsay
statements were admissible under RCW 9A.44.120. A pretrial defense motion
sought permission to argue M.M.’s precocious sexual knowledge came from living
with her biological grandmother, whom Kenny alleged was a prostitute who took
customers to her home. The court denied the motion, concluding the defense’s
offer of proof was insufficient given the potential for undue prejudice and jury
confusion.
3 No. 80590-8-I/4
In Kenny’s opening statement, defense counsel explained 11 people lived
in Gloria’s house, and the teenaged Kenny wanted to “make himself as scarce as
possible” because he “[did] not want to be in a place where there is no quiet, there
is no privacy, and there is no space.”4 M.M. testified at trial and reiterated that
Kenny made her perform oral sex on him between five and seven times. Miller
also testified, relating M.M.’s initial disclosures in school. M.M.’s interviews with
Hatter and Lane were played for the jury. The jury found Kenny guilty.
Kenny appeals.
ANALYSIS
I. Amended Information
CrR 2.1(d) allows amendment of an information any time before the verdict
if the substantial rights of the defendant will not be prejudiced. We review a
decision to grant a motion to amend an information for abuse of discretion.5 A
court abuses its discretion when its decision rests on untenable grounds or was
made for untenable reasons.6
Kenny argues the court abused its discretion because it allowed an
amendment of the charging period on the first day of pretrial motions. A
constitutionally permissible charging document must allege “all essential elements
of a crime to inform a defendant of the charges against him and to allow for
4 RP (Aug. 19, 2019) at 582-83. 5 State v. Brooks, 195 Wn.2d 91, 96, 455 P.3d 1151 (2020). 6 Id.
4 No. 80590-8-I/5
preparation of his defense.”7 The date when a defendant committed first degree
rape of a child is not an essential element of the crime.8 Because the date is not
an essential element, Kenny has the burden of proving prejudice from the
amended charging period.9
Kenny argues he was prejudiced because defense counsel had closely
investigated the original charging period and did not have time to investigate his
whereabouts for the amended charging period. He explains that because he
raised a “partial alibi defense,”10 “[t]he late amendment forced Kenny to choose
between proceeding with a trial that had already started or delaying in order to
have adequately prepared counsel.”11
Although Kenny now asserts he raised an alibi defense, his stated defense
before trial was general denial. His arguments at trial also reflected a general
denial. Kenny’s defense theory was that Gloria’s house was too crowded, too
7 Brooks, 195 Wn.2d at 97 (citing U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22). 8 See RCW 9A.44.073(1) (“A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.”); see also State v. Goss, 186 Wn.2d 372, 379, 378 P.3d 154 (2016) (essential elements are “necessary to establish the very illegality of the behavior charged”) (internal quotation marks omitted) (quoting State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013)). 9 See Brooks, 195 Wn.2d at 98 (concluding the defendant had the burden of proving prejudice because the amended charging period in an information did not change the essential elements of the charged crime). 10 Reply Br. at 5. 11 Appellant’s Br. at 28-29.
5 No. 80590-8-I/6
busy, and he was too infrequently present to have had the opportunity to rape
M.M.12 For example, he called three friends, a friend’s father, and a former
manager as witnesses to testify about how often he was busy outside his home.
Kenny also introduced more than one dozen photos of his house to show its layout
and explain how crowded it was. During closing argument, defense counsel
argued “Kenny is simply not really home. . . . [H]e is frequently at work, he is out
with friends, he is spending the night elsewhere.”13 This is a general denial
defense based upon lack of opportunity, not an alibi. We also note that Kenny’s
strategy of accounting for every moment of the original charging period was
impractical when his own testimony demonstrated he was home “like once a
month” when M.M. and his cousins visited.14 M.M. testified at least one rape
occurred in May of 2018 when she was visiting Kenny’s house with her cousins,
and Francis testified that Kenny, M.M., and her grandchildren were at Gloria’s
house during a May 2018 birthday party. Kenny fails to explain how expanding the
charging period impacted his defense.15
12See RP (Aug. 19, 2019) at 584-85 (explaining that Kenny was “not home” and “does not want to be home” and that “[t]he evidence is going to show that when you look at the photos of this house, the sketch of this house, and you hear the evidence and number of kids running in and out of rooms, . . . the number of grownups who are around on the regular, you will conclude that Kenny did not commit this crime.”). 13 RP (Aug. 26, 2019) at 1157-58. 14 RP (Aug. 22, 2019) at 1086. 15We also note that even after the State had disclosed its intent to expand the charging period, Kenny opposed the State’s motion to continue the trial from July 22 to August 12. Such opposition to the continuance is inconsistent with a claim that the expanded charging period prejudiced Kenny. See State v. Gehrke,
6 No. 80590-8-I/7
Because Kenny fails to prove prejudice from the amended charging period
in the information, the court did not abuse its discretion.16
II. Not Admitting Evidence of Exposure to Prostitution
In his opening brief and statement of additional grounds, Kenny argues the
court harmed his right to present a defense by refusing to admit evidence.17 He
sought to advance a theory that M.M. gained precocious sexual knowledge before
entering foster care because her grandmother was a prostitute operating out of her
home. He moved to admit evidence of this theory, and the court denied the
motion as unduly prejudicial or confusing to the jury.
We review a court’s evidentiary decisions for abuse of discretion and review
de novo whether the defendant’s right to present a defense was violated.18
Relevant evidence can be excluded under ER 403 when “its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.”19
193 Wn.2d 1, 18, 434 P.3d 522 (2019) (“Failure to seek a continuance indicates a lack of surprise and prejudice only when the amendment is made at the beginning of trial.”). 16See CrR 2.1(d) (court may allow amendment of an information before a verdict unless the defendant’s substantial rights are prejudiced). 17Kenny also contends his Sixth Amendment confrontation clause rights were harmed, but he does not identify any witnesses who he was prevented from cross-examining after they testified against him. Thus, we decline to address this alleged violation. 18 State v. Bedada, 13 Wn. App. 2d 185, 194, 463 P.3d 125 (2020). 19 ER 403.
7 No. 80590-8-I/8
A court considers the whole case when weighing the risk of unfair prejudice,
including
“the importance of the fact of consequence for which the evidence is offered in the context of the litigation, the strength and length of the chain of inferences necessary to establish the fact of consequence, the availability of alternative means of proof, whether the fact of consequence for which the evidence is offered is being disputed, and, where appropriate, the potential effectiveness of a limiting instruction.”[20]
“A court does not violate a defendant’s constitutional rights when the materiality of
an absent witness’s testimony is merely speculative or overwhelmed by
uncontroverted evidence.”21 A defendant has no right to introduce inadmissible
evidence.22 Only when the evidence is of high probative value, “‘it appears no
state interest can be compelling enough to preclude its introduction’” without
violating the state and federal constitutions.23
Kenny compares this case to State v. Carver, where the court held the trial
court erred by excluding evidence of past sexual abuse that the defendant
stepfather sought to introduce to explain the victims’ precocious sexual
knowledge.24 On cross-examination, the stepfather wanted to ask one victim
about a statement she had made to the authorities that only her grandfather had
20 Bedada, 13 Wn. App. 2d at 193-94 (quoting State v. Kendrick, 47 Wn. App. 620, 628, 736 P.2d 1079 (1987)). 21 State v. Cayetano-Jaimes, 190 Wn. App. 286, 296, 359 P.3d 919 (2015). 22 State v. Darden, 145 Wn.2d 612, 624, 41 P.3d 1189 (2002). 23 State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983)). 24 37 Wn. App. 122, 123-24, 678 P.2d 842 (1984).
8 No. 80590-8-I/9
sexually abused her.25 The trial court relied upon the rape shield statute to
exclude the evidence, and the appellate court reversed because the statute did not
apply and the highly relevant and exculpatory nature of the evidence outweighed
any prejudice from the testimony.26
Unlike Carver, the proffered evidence here was highly speculative and
required making, as the trial court explained, “a pretty big leap.”27 Kenny admitted
he did not have any direct evidence M.M.’s grandmother was a prostitute or that
M.M. witnessed acts of prostitution. He explained that “[n]o one is going to say
that her grandmother was a prostitute because I don’t have that specific
evidence.”28 And he admitted the relevant evidence was an inference based upon
other inferences. Also unlike Carver, the proffered prostitution evidence was not
directly exculpatory and required inferring that M.M.’s precocious sexual
knowledge likely came only from witnessing acts of prostitution and not from
having been raped. Because the proffered evidence was highly speculative and
only inferentially exculpatory, the trial court did not abuse its discretion by
concluding the evidence was unduly prejudicial or substantially more confusing
25 Id. at 125. 26 Id. at 124-25. 27 RP (Aug. 8, 2019) at 241. 28 Id. at 237.
9 No. 80590-8-I/10
than probative and excluding it under ER 403.29 And because the evidence was
inadmissible, Kenny’s right to present a defense was not implicated.30
III. Child Hearsay
RCW 9A.44.120 allows admission of child hearsay when a child under 10
described a sexual act performed on the child by another and when the trial court
finds the child’s statements are reliable.31 We review a trial court’s decision to
admit child hearsay for abuse of discretion.32 We review the trial court’s findings of
fact for substantial evidence.33 Unchallenged findings of fact are verities on
appeal.34
Kenny contends the court abused its discretion by admitting M.M.’s hearsay
statements through Miller, Hatter, and Layne. He does not challenge the trial
29To the extent that Kenny’s statement of additional grounds alleges M.M. gained sexual knowledge because her biological relatives let her be molested, this is a new argument unsupported by any evidence in the record, and we decline to consider it. 30 Darden, 145 Wn.2d at 624; see Cayetano-Jaimes, 190 Wn. App. at 296 (“A court does not violate a defendant’s constitutional rights when the materiality of an absent witness’s testimony is merely speculative or overwhelmed by uncontroverted evidence.”). 31The statute also allows admission of child hearsay under other conditions not present here. 32 State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1176 (2005). 33 State v. A.X.K., 12 Wn. App. 2d 287, 298, 457 P.3d 1222 (2020). 34 Id.
10 No. 80590-8-I/11
court’s findings of fact, making them verities on appeal.35 Thus, the question is
whether the court’s findings of fact supported its conclusions of law.36
Courts use nine factors from State v. Ryan37 to gauge the reliability of child
hearsay:
“(1) whether there is an apparent motive to lie, (2) the general character of the declarant, (3) whether more than one person heard the statement, (4) the spontaneity of the statements, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) whether the statement contained express assertions of past fact, (7) whether the declarant’s lack of knowledge could be established through cross-examination, (8) the remoteness of the possibility of the declarant’s recollection being faulty, and (9) whether the surrounding circumstances suggested the declarant misrepresented the defendant’s involvement.”[38]
No single factor is determinative, but a statement is not considered reliable until
the factors are substantially met.39
In the court’s oral and written ruling, it concluded all nine factors indicated
M.M.’s hearsay statements were reliable. Kenny challenges the court’s
conclusions about the first, second, fourth, fifth, and ninth Ryan factors.
He argues the court erred about the first factor because M.M. said she “told
a lie on Kenny” and therefore had a motive to lie.40 But he overlooks M.M.’s
35 Id. 36 Id. 37 103 Wn.2d 165, 691 P.2d 197 (1984). 38 A.X.K., 12 Wn. App. 2d at 299 (quoting State v. Kennealy, 151 Wn. App. 861, 880, 214 P.3d 200 (2009)). 39 Kennealy, 151 Wn. App. at 881. 40 Appellant’s Br. at 21.
11 No. 80590-8-I/12
motive for lying. The court found that after M.M. first disclosed Kenny’s attacks,
M.M. asked Miller “[D]id you tell my mom [Francis]?” and was then afraid she
would “get into trouble.”41 According to the court’s findings, M.M. said she “told a
lie” after Francis learned of M.M.’s disclosure and then told M.M. that she “told
[Miller] a lie” and that “you won’t see your grandma ‘till you’re 18-years-old.”42 The
court also found M.M. felt sad during her interview with Hatter because she was
afraid of having to go live with “a stranger.”43 Because the evidence did not show
M.M. had a motive to tell harmful lies about Kenny, the court did not err by
concluding the first Ryan factor indicated reliability.
Kenny argues the court erred on the second factor by concluding M.M. was
a truthful child when no evidence showed she had a reputation for truthfulness.
But the court explained M.M. “consistently talked about the same sort of details”
regarding Kenny’s attacks, and “the continued statements [were] consistent to
most degree[s] with what was originally told” in school to Miller.44 The only
evidence of dishonesty was M.M.’s lie about lying, which she told after Francis
suggested she had lied. Because the evidence does not demonstrate M.M. had a
dishonest character and other evidence allowed an inference of an honest
character, the court did not err by concluding M.M. was truthful.
41 CP at 96. 42 CP at 98. 43 Id. 44 RP (Aug. 13, 2019) at 382.
12 No. 80590-8-I/13
For the fourth factor, Kenny contends M.M.’s claims were not spontaneous,
but the record does not support him. The court found M.M.’s first disclosure
occurred when she “unexpectedly blurted out” in class what Kenny made her do 45
and found the disclosure “was so spontaneous and really startled the person that
was hearing it.”46 Similarly, M.M.’s responses to Hatter and Layne were also
spontaneous, although they were responses to interview questions. For
evaluating child hearsay, statements are spontaneous when the entire context of
the statement shows the question was not leading or suggestive.47 For example,
M.M. began telling Hatter about Kenny’s attacks after Hatter asked, “Do you
remember saying something last week at school? . . . Can you tell me about
that?”48 M.M. responded, “I was saying that Kenny would sometimes show[ ] me
his private parts.”49 Hatter then asked “And when was the last time that Kenny
showed you his private part?” and M.M. volunteered new information by answering
“Like, five times.”50 Hatter’s questions did not suggest the answers M.M. gave.
Layne’s questions were necessarily more pointed because M.M. initially
said she had lied about Kenny, so Layne had to explore M.M.’s past explanations
to Miller and Hatter. Thus, Layne’s questions, while superficially leading because
45 CP at 95. 46 RP (Aug. 13, 2019) at 381. 47 State v. Young, 62 Wn. App. 895, 901, 802 P.2d 829 (1991). 48 RP (Aug. 7, 2019) at 113. 49 Id. 50 Id.
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they asked directly about Kenny revealing his genitals to M.M., were contextually
appropriate and did not steer M.M. toward confirming one version of events over
the other. Because the record shows M.M.’s disclosures were spontaneous, the
court did not err.
For the fifth factor, Kenny contends M.M’s non-neutral relationship with
Miller made her initial disclosure and all that followed unreliable. But the law does
not discount child hearsay statements only because they were made to someone
familiar. Indeed, the court in State v. Kennealy explained a child’s hearsay
statement is more likely reliable “[w]hen the witness is in a position of trust with a
child,” such as a nurse with “an authoritative position in the community.”51 Miller
was M.M.’s school guidance counselor who had helped her with emotional
difficulties several times during the year.52 Because Miller was a trusted authority
figure akin to a familiar medical provider, the court did not err by concluding this
relationship demonstrated reliability.
For the ninth factor, Kenny argues, without authority, that the circumstances
of M.M.’s initial disclosure weigh against her statements’ reliability. The court
found M.M.’s initial disclosure was unexpected and appeared “very organic.”53
The court explained that the initial details of M.M.’s disclosure remained consistent
51 151 Wn. App. 861, 884, 214 P.3d 200 (2009). 52 See RP (Aug. 7, 2019) at 69 (guidance counselor Miller explaining she helped M.M. around five times during the year when she was struggling emotionally). 53 CP at 95.
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over the next week even as she revealed additional details in other settings.
Kenny fails to show how the court erred by concluding these circumstances
favored reliability.
The trial court concluded all nine Ryan factors favored admitting M.M.’s
hearsay statements. Kenny fails to show the court erred by doing so. Because
the Ryan factors support concluding M.M.’s hearsay statements were reliable, the
court did not abuse its discretion by admitting them.
Because Kenny fails to establish any basis for reversal, we affirm.
WE CONCUR: