1` 1 L. ED COURT OF APPEAL. aMIC1110N Ti
2013 OCT 29 A' 9: 47 IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
STATE OF WASHINGTON, No. 428E
Respondent,
V.
T.T., UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Following an earlier direct appeal and remand for further proceedings, TT1 again appeals his first degree child rape juvenile court adjudication. He primarily argues
that the juvenile court erred by conducting a supplemental hearing on remand instead of holding
a new trial. Because our 2010 decision reversed TT' s adjudication due to a confrontation clause
violation and we declined to reach TT' s remaining claims, a new trial was required when we
remand[ ed] for further proceedings." Accordingly, we reverse and again remand for a new
trial.
FACTS
In 2008, the juvenile court adjudicated TT guilty of first degree child rape. State v. T.T.,
noted at 157 Wn. App. 1011, 2010 WL 2927453, at * 1. On appeal, TT argued that the juvenile
court had violated his confrontation clause rights by admitting child hearsay testimony when the
State failed to ask the victim at trial about his ( the victim' s) out -of court statements. In 2010, we -
held that the juvenile court violated RCW 9A.44. 120 and TT' s rights under the federal and state
1 We use initials to protect minors' privacy. No. 42861 -0 -II -
confrontational clauses. T.T., 2010 WL 2927453, at * 3. Although TT requested that his charges
be dismissed with prejudice, we disagreed. T.T., 2010 WL 2927453, at * 3. Because the
evidence at trial, including the erroneously admitted hearsay was sufficient to support proof of
the elements of first degree child rape beyond a reasonable doubt, we reversed TT' s adjudication
based solely on the confrontation violation, declined to reach TT' s other arguments, and
remanded for further proceedings. T.T., 2010 WL 2927453, at * 3.
At a hearing on remand, the juvenile court noted that .it had reviewed the State' s trial
memorandum and our 2010 opinion, and had spoken with the State and with defense counsel the
day before. Both parties interpreted our 2010 decision ( 1) to direct the juvenile court to engage
in " further proceedings" which " would be most appropriately handled by the State presenting
additional testimony regarding the child hearsay statements" and ( 2) to not direct the juvenile
court to conduct a new trial. Verbatim Report Proceedings ( Nov. 22, 2011) at 18. The State then
called the child victim to the stand and asked him several questions about the alleged incident
and his out - - ourt statements. Defense counsel was afforded cross- examination. of c
After the State rested, TT moved to dismiss arguing that the victim' s lack of memory
could not support introduction of the child hearsay statements. The juvenile court denied TT' s
motion, ruling that the confrontation clause. and the Clary test were satisfied because the child
victim took the stand and was asked questions about his prior of - ourt out - c statements.. The
juvenile court again adjudicated TT guilty of first degree child rape. TT again appeals his
adjudication.
2 T.T., 2010 WL 2927453, at * 2 ( citing State v. Clark, 139 Wn.2d 152, 159, 985 P. 2d 377 1999)).
2 No. 42861 -0 -I1
ANALYSIS
TT argues that he was entitled to a new trial on remand and that the juvenile court erred
3 by conducting only a supplemental hearing. We agree. A new trial on remand was necessary
because our prior decision reversed based solely on confrontation clause grounds and, thus,
neither reached nor resolved TT' s other arguments on appeal.
RAP 12. 2 provides, in part, " The appellate court may reverse, affirm, or modify the
decision being reviewed and take any other action as the merits of the case and the interest of
justice may require." When an appellate court reverses a judgment and makes no final ruling on
all the issues in a case, the usual procedure contemplated is a new trial. "` This is true when it is
fairly apparent from the court' s discussion of the case that the cause is remanded with that object
in view. "' State v. Jones, 148 Wn.2d 719, 722, 62 P. 3d 887 ( 2003) ( quoting Elliot v. Peterson,
92 Wn.2d 586, 588, 599 P. 2d 1282 ( 1979)). Division One of this court has held that when we
remand " for further proceedings" or instruct a trial court to enter judgment " in any lawful
manner" consistent with our opinion, " we expect the court to exercise its authority to decide any
issue necessary to resolve the case on remand." State v. Schwab, 134 Wn. App. 635, 645, 141
P. 3d 658 ( 2006), aff'd, 163 Wn.2d 664, 185 P. 3d 1151 ( 2008). But such language does not give
the trial court the authority to decide that a new trial is not necessary when our decision has
signaled that the remand is for a new trial. See Jones, 148 Wn.2d at 722.
3 Because we reverse his adjudication and remand for a new trial, we do not reach his ineffective assistance of counsel claim. We also do not reach the insufficiency of the evidence argument because we addressed this issue in our 2010 decision and concluded there was sufficient evidence.
3 No. 42861 -0 -II
This case has important similarities to Jones. In Jones, the Supreme Court reversed the
trial court' s refusal to grant Jones a new trial after Division One of this court had reversed for a
discovery violation and remanded to the trial court. Jones, 148 Wn.2d at 720. Before trial, Jones
had sought discovery of an internal police investigation but the trial court denied his request.
Jones, 148 Wn.2d at 721. After a jury found him guilty, Jones appealed arguing that the police
investigation files were discoverable. Jones, 148 Wn.2d at 721. And Division One agreed,
explaining that the trial court should have at least performed an in- camera examination, and
remanded - or proceedings " consistent with f its opinion." Jones, 148 Wn.2d at 721. Division One
also noted that it need not reach Jones' s remaining arguments because it was reversing on the
discovery violation. Jones, 148 Wn.2d at 722.
On remand, the trial court held an in- camera hearing and decided the investigation files
were discoverable; but it ruled that the information would not have changed the trial' s outcome,
refused to conduct a new trial over Jones' s objection, and left the earlier convictions intact.
Jones, 148 Wn.2d at 721 -22. Jones appealed again and our Supreme Court reversed, holding
that on remand the trial court' s failure to hold a new trial was error. Jones, 148 Wn.2d at 722.
The Supreme Court explained that in the first appeal Division One was dealing with an appeal as
of right under both our court rules and article I, section 22 of the state constitution, and,
therefore, its declining to reach all of Jones' s arguments " plainly signaled the court' s intent that
the remand be for a new trial." Jones, 148 Wn.2d at 722. Otherwise, Division One would have
decided the remaining issues or explained why it was not obligated to do so. Jones, 148 Wn.2d
at 722. " Furthermore, [ Division One] gave specific instructions to the trial court on remand to
determine whether the information was privileged and to what extent, if any, discovery
0 No. 42861 -0 -II
limitations would be necessary.
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1` 1 L. ED COURT OF APPEAL. aMIC1110N Ti
2013 OCT 29 A' 9: 47 IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
STATE OF WASHINGTON, No. 428E
Respondent,
V.
T.T., UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Following an earlier direct appeal and remand for further proceedings, TT1 again appeals his first degree child rape juvenile court adjudication. He primarily argues
that the juvenile court erred by conducting a supplemental hearing on remand instead of holding
a new trial. Because our 2010 decision reversed TT' s adjudication due to a confrontation clause
violation and we declined to reach TT' s remaining claims, a new trial was required when we
remand[ ed] for further proceedings." Accordingly, we reverse and again remand for a new
trial.
FACTS
In 2008, the juvenile court adjudicated TT guilty of first degree child rape. State v. T.T.,
noted at 157 Wn. App. 1011, 2010 WL 2927453, at * 1. On appeal, TT argued that the juvenile
court had violated his confrontation clause rights by admitting child hearsay testimony when the
State failed to ask the victim at trial about his ( the victim' s) out -of court statements. In 2010, we -
held that the juvenile court violated RCW 9A.44. 120 and TT' s rights under the federal and state
1 We use initials to protect minors' privacy. No. 42861 -0 -II -
confrontational clauses. T.T., 2010 WL 2927453, at * 3. Although TT requested that his charges
be dismissed with prejudice, we disagreed. T.T., 2010 WL 2927453, at * 3. Because the
evidence at trial, including the erroneously admitted hearsay was sufficient to support proof of
the elements of first degree child rape beyond a reasonable doubt, we reversed TT' s adjudication
based solely on the confrontation violation, declined to reach TT' s other arguments, and
remanded for further proceedings. T.T., 2010 WL 2927453, at * 3.
At a hearing on remand, the juvenile court noted that .it had reviewed the State' s trial
memorandum and our 2010 opinion, and had spoken with the State and with defense counsel the
day before. Both parties interpreted our 2010 decision ( 1) to direct the juvenile court to engage
in " further proceedings" which " would be most appropriately handled by the State presenting
additional testimony regarding the child hearsay statements" and ( 2) to not direct the juvenile
court to conduct a new trial. Verbatim Report Proceedings ( Nov. 22, 2011) at 18. The State then
called the child victim to the stand and asked him several questions about the alleged incident
and his out - - ourt statements. Defense counsel was afforded cross- examination. of c
After the State rested, TT moved to dismiss arguing that the victim' s lack of memory
could not support introduction of the child hearsay statements. The juvenile court denied TT' s
motion, ruling that the confrontation clause. and the Clary test were satisfied because the child
victim took the stand and was asked questions about his prior of - ourt out - c statements.. The
juvenile court again adjudicated TT guilty of first degree child rape. TT again appeals his
adjudication.
2 T.T., 2010 WL 2927453, at * 2 ( citing State v. Clark, 139 Wn.2d 152, 159, 985 P. 2d 377 1999)).
2 No. 42861 -0 -I1
ANALYSIS
TT argues that he was entitled to a new trial on remand and that the juvenile court erred
3 by conducting only a supplemental hearing. We agree. A new trial on remand was necessary
because our prior decision reversed based solely on confrontation clause grounds and, thus,
neither reached nor resolved TT' s other arguments on appeal.
RAP 12. 2 provides, in part, " The appellate court may reverse, affirm, or modify the
decision being reviewed and take any other action as the merits of the case and the interest of
justice may require." When an appellate court reverses a judgment and makes no final ruling on
all the issues in a case, the usual procedure contemplated is a new trial. "` This is true when it is
fairly apparent from the court' s discussion of the case that the cause is remanded with that object
in view. "' State v. Jones, 148 Wn.2d 719, 722, 62 P. 3d 887 ( 2003) ( quoting Elliot v. Peterson,
92 Wn.2d 586, 588, 599 P. 2d 1282 ( 1979)). Division One of this court has held that when we
remand " for further proceedings" or instruct a trial court to enter judgment " in any lawful
manner" consistent with our opinion, " we expect the court to exercise its authority to decide any
issue necessary to resolve the case on remand." State v. Schwab, 134 Wn. App. 635, 645, 141
P. 3d 658 ( 2006), aff'd, 163 Wn.2d 664, 185 P. 3d 1151 ( 2008). But such language does not give
the trial court the authority to decide that a new trial is not necessary when our decision has
signaled that the remand is for a new trial. See Jones, 148 Wn.2d at 722.
3 Because we reverse his adjudication and remand for a new trial, we do not reach his ineffective assistance of counsel claim. We also do not reach the insufficiency of the evidence argument because we addressed this issue in our 2010 decision and concluded there was sufficient evidence.
3 No. 42861 -0 -II
This case has important similarities to Jones. In Jones, the Supreme Court reversed the
trial court' s refusal to grant Jones a new trial after Division One of this court had reversed for a
discovery violation and remanded to the trial court. Jones, 148 Wn.2d at 720. Before trial, Jones
had sought discovery of an internal police investigation but the trial court denied his request.
Jones, 148 Wn.2d at 721. After a jury found him guilty, Jones appealed arguing that the police
investigation files were discoverable. Jones, 148 Wn.2d at 721. And Division One agreed,
explaining that the trial court should have at least performed an in- camera examination, and
remanded - or proceedings " consistent with f its opinion." Jones, 148 Wn.2d at 721. Division One
also noted that it need not reach Jones' s remaining arguments because it was reversing on the
discovery violation. Jones, 148 Wn.2d at 722.
On remand, the trial court held an in- camera hearing and decided the investigation files
were discoverable; but it ruled that the information would not have changed the trial' s outcome,
refused to conduct a new trial over Jones' s objection, and left the earlier convictions intact.
Jones, 148 Wn.2d at 721 -22. Jones appealed again and our Supreme Court reversed, holding
that on remand the trial court' s failure to hold a new trial was error. Jones, 148 Wn.2d at 722.
The Supreme Court explained that in the first appeal Division One was dealing with an appeal as
of right under both our court rules and article I, section 22 of the state constitution, and,
therefore, its declining to reach all of Jones' s arguments " plainly signaled the court' s intent that
the remand be for a new trial." Jones, 148 Wn.2d at 722. Otherwise, Division One would have
decided the remaining issues or explained why it was not obligated to do so. Jones, 148 Wn.2d
at 722. " Furthermore, [ Division One] gave specific instructions to the trial court on remand to
determine whether the information was privileged and to what extent, if any, discovery
0 No. 42861 -0 -II
limitations would be necessary. Those instructions were meaningless unless the court was
contemplating a new trial, at which a jury would determine the weight, if any, to give to the new
evidence." Jones, 148 Wn.2d at 722.
Like in Jones, our prior opinion ( 1) dealt with an appeal as of right, ( 2) addressed only
one of TT' s several arguments, ( 3) indicated that we need not address TT' s remaining arguments
because we reversed on confrontation clause grounds, ( 4) gave specific instructions to address
the confrontation clause violation, and ( 5) remanded " for further proceedings." T.T., 2010 WL
2927453, * 3. In similar circumstances, the Supreme Court held that under the court rules and the
state constitution, not addressing all of Jones' s arguments was a plain signal that the court
intended a remand for a new trial rather than just a hearing to address the discovery issue. Jones,
148 Wn.2d at 722.4
The State argues here that a new trial was not necessary because our prior decision did
not clearly direct the juvenile court on remand to conduct a new trial. 5 The State is correct that
we did not directly say that a new trial was necessary, but we did say we " reverse[ d] and
remanded] for further- proceedings." T.T., 2010 WL 2927453, at * 3. Division One in Jones
remanded for " proceedings consistent with its opinion." Jones, 148 Wn.2d at 721. After noting
that the usual procedure contemplated is a new trial, the Supreme Court determined that Division
4 But TT' s case also differs from Jones because ( 1) TT is a juvenile and therefore not entitled to a jury trial on remand and ( 2) TT agreed to the supplemental proceedings. These distinctions, however, do not alter our application of Jones' s rationale here.
5 The State also argues that because both parties agreed with the juvenile court' s reading of our prior opinion, we should agree that a new trial was not required. The State fails to cite any supporting authority for this argument so we consider it no further. RAP 10. 3( a)( 6), ( b); see also
State v. Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004).
5 No. 42861 -0 -II
One had " plainly" signaled its intention for a new trial. Jones, 148 Wn.2d at 722. We see no
meaningful distinction between the language we used and the language used in Jones. We reject
the State' s argument.
Because our prior opinion on direct review did not address all of TT' s arguments and
because we " reverse[ d] and remand[ ed] for further proceedings," T.T., 2010 WL 2927453, at * 3,
we signaled our intent that a new trial was required on remand. Accordingly, we reverse and
again remand for a new trial.
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.
il
Johanson, J We coner:
Worswick, C
rel