State v. Price

127 Wash. App. 193
Court of Appeals of Washington·Decided April 26, 2005·No. No. 29881-3-II·Published·Cited by 20 cases

Opinions

¶1 Charles J. Price appeals his convictions for four counts of first degree child molestation involving two different victims, R.I.T. and T.D.J. He argues that the admission of R.I.T.’s out-of-court statements regarding the sexual contact violated his right to confrontation and Crawford v. Washington,1 Additionally, he argues that the evidence was insufficient to support a finding that he touched R.I.T. for purposes of sexual gratification and that he received ineffective assistance of counsel. We affirm.

Bridgewater, J. —

FACTS

¶2 In August 2001, Marianne Mann placed her four-year-old daughter, R.I.T., in a day care operated by Price and his wife. One evening in early October after Mann had picked R.I.T. up from day care, R.I.T. began pinching herself at the front of her diaper, saying “I have an owie.” 2 Report of Proceedings (RP) (Dec. 10, 2002) at 23. Upon inspection, Mann observed that R.I.T.’s vaginal area was bright red and swollen. R.I.T. began making pinching motions with her fingers and stated that “Chucky had rubbed her there.” 2 RP at 24. When Mann asked R.I.T. if there was another child named Chucky at her day care, R.I.T. said “Big Chucky.” 2 RP at 24.

¶3 Two days later Detective Susan Bergt of the Thurston County Sheriff’s Office interviewed R.I.T at the Providence [197]*197St. Peter Hospital sexual assault clinic. During the taped interview, R.I.T. told Detective Bergt that she called Price “Chucky.” 2 RP at 99. She stated that Chucky had touched her “[r]ight here,” pointing to her vaginal area. 2 RP at 99. Detective Bergt asked R.I.T. how Chucky had touched her, and R.I.T. lifted up her skirt, pinched her vagina over her clothing, and stated, “[t]hat’s what he did.” 2 RP at 99.

¶4 After the interview, Nancy Young, an advanced registered nurse practitioner, examined R.I.T. Young testified that R.I.T. had a normal genital exam and that there was no redness in her genital area. However, Young further testified that two days after the incident, she would expect any redness or inflammation to be gone. She concluded that her findings were consistent with R.I.T.’s account of what had happened.

¶5 Detective Bergt also interviewed Price. Price told Detective Bergt that R.I.T. was “more like an adult than a child” and that she preferred the company of adults. 2 RP at 104. Additionally, he stated that R.I.T. was a “needy” child who “liked to hug him a lot.” 2 RP at 104-05. Price denied sexually touching R.I.T., stating that if he had touched her, it was accidental.

¶6 On March 14, 2002, Price was charged with five counts of first degree child molestation under RCW 9A.44.083. Count I charged first degree molestation of R.I.T., and the remaining four counts (counts II-V) charged first degree molestation of another child, T.D.J., for incidents that had occurred between April and July 1992.

¶7 Price twice moved to sever count I from the remaining counts before trial and again following trial, in motions to arrest judgment and for a new trial. Each time, the trial court declined to sever the counts. Price did not renew his motion for severance before or at the close of the evidence.

¶8 Prior to trial, the court also held a child hearsay hearing to determine whether R.I.T.’s out-of-court statements to her mother and Detective Bergt were admissible [198]*198at trial under RCW 9A.44.120.2 At the hearing, Price stipulated that R.I.T. was competent to testify. R.I.T. testified that she did not like Chucky, stating “he rubbed me right here.” RP (Nov. 25, 2002) at 10. The trial court held that that R.I.T.’s hearsay statements were admissible, finding that the statements were reliable and that R.I.T. was available as a witness for trial.

¶9 Trial before a jury commenced on December 9, 2002. R.I.T. took the stand, and the prosecutor asked her what Chucky would “do with [her] at the day care.” 2 RP at 39. R.I.T. answered, “[m]e [sic] forgot.” 2 RP at 39. And when asked whether Chucky had touched her anywhere, R.I.T. nodded her head but then stated “[m]e [sic] forgot again.” 2 RP at 41. R.I.T. also testified that she recalled speaking with her mother and Detective Bergt about Chucky but did not remember what she had told them about him. Price did not cross-examine R.I.T.

¶10 In addition, Detective Bergt and Mann each testified regarding what R.I.T. had told them about Chucky sexually touching her, and Detective Bergt’s taped interview with R.I.T. was played for the jury. Price did not object to this testimony or to the admission of the taped interview. The jury found Price guilty as charged on counts I-IV and not guilty on count V. He appeals.

ANALYSIS

I. Right of Confrontation

¶11 Price first contends that, because R.I.T. testified that she could not remember the alleged sexual acts or what [199]*199she had told her mother and Detective Bergt, she did not “testify” so as to satisfy the confrontation clause, and the trial court improperly admitted her hearsay statements under RCW 9A.44.120. Br. of Appellant at 11. Additionally, he asserts that the admission of R.I.T.’s statements violated Crawford3 because he had no prior opportunity to cross-examine her about these statements. In response, the State argues that, pursuant to In re Personal Restraint of Grasso, 151 Wn.2d 1, 84 P.3d 859 (2004) (plurality opinion), R.I.T. did “testif[y]” for confrontation clause purposes. Suppl. Br. of Resp’t at 2.

¶12 First, Price did not raise this issue below. Nevertheless, the right to confront adverse witnesses is an issue of constitutional magnitude,4 which we may consider for the first time on appeal. RAP 2.5(a); State v. Clark, 139 Wn.2d 152, 156, 985 P.2d 377 (1999).

¶13 Second, Price’s arguments are contrary to recent case law. Price argues that under State v. Rohrich, 132 Wn.2d 472, 481, 939 P.2d 697 (1997), a child must “take[ ] the stand and describe [ ] the acts of sexual contact alleged in the hearsay” in order to properly “testif[y]” under RCW 9A.44.120(2)(a) and the confrontation clause. Br. of Appellant at 11. But in Clark, the court “clarified the limits” of Rohrich and held that the admission of hearsay statements does not violate the confrontation clause if: (1) the hearsay declarant is a witness at trial, (2) the declarant is asked about the event and the hearsay statements, and (3) the defendant is provided an opportunity for full cross-examination. In re Pers. Restraint of Grasso, 151 Wn.2d at 14-16; Clark, 139 Wn.2d at 159. See also State v. Kilgore, 107 Wn. [200]*200App. 160, 174, 26 P.3d 308 (2001), aff’d, 147 Wn.2d 288, 53 P.3d 974 (2002).

¶14 In re Pers. Restraint of Grasso is instructive.5

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State v. Price, 127 Wash. App. 193 (Wash. Ct. App. 2005).

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