State of Washington v. Viater Twiringiyimana

CourtCourt of Appeals of Washington
DecidedFebruary 21, 2019
Docket35458-0
StatusUnpublished

This text of State of Washington v. Viater Twiringiyimana (State of Washington v. Viater Twiringiyimana) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Washington v. Viater Twiringiyimana, (Wash. Ct. App. 2019).

Opinion

FILED FEBRUARY 21, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 35458-0-III Respondent, ) ) v. ) ) VIATER TWIRINGIYIMANA, ) UNPUBLISHED OPINION ) Appellant. )

SIDDOWAY, J. — Viater Twiringiyimana appeals his conviction of one count of

first degree child molestation, challenging (1) the trial court’s ruling that out-of-court

statements by the child victim were reliable and admissible, (2) an asserted “comment on

the evidence” by the trial court in admitting evidence of the child victim’s out-of-court

statements, and (3) the sufficiency of the evidence. We find no error or abuse of

discretion and that sufficient evidence supported the jury’s verdict. We affirm.

OVERVIEW OF FACTS AND PROCEDURE

In March 2013, Arwa Al-Naqash and her then 7-year-old-daughter D.A.M.

immigrated to the United States from Jordan as refugees. They arrived in Spokane,

where Ms. Al-Naqash obtained work as a housekeeper at the Davenport Hotel. There she

met the defendant, Viater Twiringiyimana, who was also an employee of the hotel. They No. 35458-0-III State v. Twiringiyimana

struck up a relationship and Ms. Al-Naqash and D.A.M. moved in with Mr.

Twiringiyimana in mid-June 2013. She and D.A.M. remained living with Mr.

Twiringiyimana for two months, until their relationship deteriorated. During the two

months they lived together, Ms. Al-Naqash and Mr. Twiringiyimana worked different

hours, and Mr. Twiringiyimana would watch D.A.M. on the five days a week that Ms.

Al-Naqash worked at the hotel from roughly 3:00 p.m. to 11:00 p.m.

By November 2013, Ms. Al-Naqash and D.A.M. had lived away from Mr.

Twiringiyimana for several months and had recently moved in with William Burke, who

Ms. Al-Naqash would later marry. One morning in November 2013, D.A.M. approached

her mother and, according to Ms. Al-Naqash, said she wanted to tell her mother

something but first asked if they were in a safe place living with Mr. Burke. After being

assured that they were, D.A.M. told her mother that Mr. Twiringiyimana had kissed her,

told her to take off her pantie, and had asked her to touch his penis. The mother reported

this to law enforcement, and D.A.M. repeated the allegations of molestation to a forensic

interviewer, Karen Winston, in a videotaped interview.

When Mr. Twiringiyimana was interviewed by police, he strongly denied

D.A.M.’s allegations. The State nonetheless charged him in November 2014 with three

counts of first degree child molestation.

2 No. 35458-0-III State v. Twiringiyimana

A pretrial hearing was conducted on whether the trial court would admit D.A.M.’s

out-of-court statements to her mother and Ms. Winston. Three witnesses were called:

D.A.M.’s mother, who by then went by her married name, Burke; D.A.M., who was

almost 11 years old at the time of the hearing; and Ms. Winston. Ms. Winston’s

videotaped interview of D.A.M. was also admitted in evidence. Following the hearing,

the court announced in a letter ruling that the statements would be admitted. It later

entering formal findings and conclusions.

Following a jury trial, Mr. Twiringiyimana was found guilty of one count of first

degree child molestation and was acquitted of the other two counts. The court imposed a

low-end sentence of 51 months.

Most of Mr. Twiringiyimana’s assignments of error are to the pretrial decision to

admit D.A.M.’s out-of-court statements to her mother and Ms. Winston. Because those

assignments of error are based on a different record than the errors assigned to the

outcome of trial, we provide a two-part analysis, providing further factual detail as

needed.

ANALYSIS

Pretrial ruling on the admissibility of D.A.M.’s out-of-court statements

3 No. 35458-0-III State v. Twiringiyimana

RCW 9A.44.120 provides, as relevant here, that an otherwise-inadmissible

statement by a child under the age of 10 that describes an act of sexual contact performed

with or on the child is admissible as evidence in a criminal proceeding if:

(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and (2) The child either: (a) Testifies at the proceedings; or (b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

This child hearsay statute, which was adopted in 1982, was reviewed by the

Washington Supreme Court in State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). At

the time, the reliability that the statute required was a matter of constitutional concern

under the confrontation clause of the Sixth Amendment to the United States Constitution.

Id. at 170 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597

(1980)). Drawing from State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982) and

Dutton v. Evans, 400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), the Ryan

court identified nine factors that applied in determining the reliability of out-of-court

statements. Ryan, 103 Wn.2d at 175-76. As restated by this court in State v. Kennealy,

the nine factors considered are:

(1) [W]hether there is an apparent motive to lie, (2) the general character of the declarant, (3) whether more than one person heard the statements, (4) the spontaneity of the statements, (5) the timing of the declaration and the relationship between the declarant and the witness, (6) whether the 4 No. 35458-0-III State v. Twiringiyimana

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.

151 Wn. App. 861, 880, 214 P.2d 200 (2009) (footnote omitted) (citing Ryan, 103 Wn.2d

at 175-76). Reliability is determined based on an overall evaluation of these factors. Id.

at 881. Accordingly, it is not the case that “each factor must be ‘substantially me[t]

before a statement is demonstrated to be reliable’” as argued by Mr. Twiringiyimana.1 It

is only required that the factors, collectively, must be substantially met.2 Id., cf. State v.

Griffith, 45 Wn. App. 728, 738-39, 727 P.2d 247 (1986) (holding that the first five

factors, based on Parris, must be collectively met, as must the remaining set of four

factors, based on Dutton).

The United States Supreme Court’s 2004 decision in Crawford v. Washington

altered the confrontation clause analysis, holding that the reliability of a statement is

immaterial. 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (“Where

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Related

Dutton v. Evans
400 U.S. 74 (Supreme Court, 1970)
Ohio v. Roberts
448 U.S. 56 (Supreme Court, 1980)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
State v. Madison
770 P.2d 662 (Court of Appeals of Washington, 1989)
In Re the Personal Restraint of Bugai
669 P.2d 903 (Court of Appeals of Washington, 1983)
State v. Griffith
727 P.2d 247 (Court of Appeals of Washington, 1986)
State v. Gentry
888 P.2d 1105 (Washington Supreme Court, 1995)
State v. Hill
870 P.2d 313 (Washington Supreme Court, 1994)
State v. Bailey
757 P.2d 541 (Court of Appeals of Washington, 1988)
State v. Parris
654 P.2d 77 (Washington Supreme Court, 1982)
State v. Ryan
691 P.2d 197 (Washington Supreme Court, 1984)
State v. Karpenski
971 P.2d 553 (Court of Appeals of Washington, 1999)
State v. Salinas
829 P.2d 1068 (Washington Supreme Court, 1992)
State v. Swan
790 P.2d 610 (Washington Supreme Court, 1990)
State v. Bailey
787 P.2d 1378 (Washington Supreme Court, 1990)
State v. Emery
253 P.3d 413 (Court of Appeals of Washington, 2011)
State v. Brown
173 P.3d 245 (Washington Supreme Court, 2007)
State v. Levy
132 P.3d 1076 (Washington Supreme Court, 2006)
State v. Borboa
135 P.3d 469 (Washington Supreme Court, 2006)
State v. C.J.
63 P.3d 765 (Washington Supreme Court, 2003)

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