Washington v. Swan

EN BANC: The two defendants in this child abuse case were convicted at a jury trial in the Superior Court of the State of Washington for King County. The Court of Appeals reversed in an unpublished opinion. We reverse the Court of Appeals and reinstate the judgments and sentences imposed by the trial court.

At issue here is whether there was sufficient corroborating evidence to justify the trial court allowing into evidence the hearsay statements of one of the two child victims in this statutory rape case. There is unfortunately no way at all to resolve this issue other than by going into the sad details of the abuse which the jury by its verdict found that the two defendants, husband and wife, had inflicted on their own 3-year-old daughter and her 3-year-old playmate.

The defendants herein, William and Kathleen Swan, were each charged with two counts of statutory rape in November of 1985. The charges stemmed from statements made by their 3-year-old daughter, B.A., and her 3-year-old friend, R.T., to their day-care teachers and to a Child Protective Services (CPS) worker.

Before trial, the State gave notice of its intent to rely upon the child sexual abuse hearsay exception set forth in RCW 9A.44.120, Washington's child victim hearsay statute. This statute, set forth in full in the margin,(1)1 creates an addition to the hearsay rule not included in the Rules of Evidence (ER) adopted by this court. The trial court conducted pretrial hearings to determine B.A.'s and R.T.'s competency to testify at trial, found both girls incompetent to testify and admitted their earlier hearsay statements into evidence at the trial.

At trial, whenever one of the girl's hearsay statements was about to be solicited from a witness, questioning was stopped by the trial court, the jury was excused and voir dire examination was conducted to determine the reliability of the statements. In each instance involved in this appeal, the trial court found the children's hearsay statements to be reliable and admitted them into evidence.

The jury found each defendant guilty of two counts of statutory rape, one count as to each victim. A defense motion for a new trial was denied, and each defendant was sentenced to 50 months in jail.

The defendants appealed, and the Court of Appeals reversed the convictions and remanded for a new trial because of the admission into evidence of R.T.'s hearsay statements. The Court of Appeals agreed that the girls' hearsay statements were reliable, but observed that the trial court had failed to consider whether the alleged abuse was corroborated by other evidence of sexual abuse as required by the child victim hearsay statute (RCW 9A.44.120). After reviewing the record, the Court of Appeals found sufficient corroboration of B.A.'s abuse but insufficient corroboration of R.T.'s abuse. That court held that a new trial was necessary on both counts for each defendant.

After the State's motion for reconsideration was denied, the State sought discretionary review in this court. Review was deferred pending our opinion in State v. Jones, 112 Wn. 2d 488, 772 P.2d 496 (1989). After the Jones opinion was filed, this court granted review of this case.

Although the principal issue before us is whether R.T.'s alleged abuse was sufficiently corroborated to render her hearsay statements admissible as evidence, additional issues are also presented.

ISSUES

Issue One. Did the Court of Appeals err in finding insufficient corroboration of the alleged sexual abuse of R.T.?

Issue Two. Did the trial court err in declining to grant a new trial on the basis of evidence claimed to be newly discovered?

Issue Three. Did the trial court err in finding the child R.T. incompetent to testify? ...

ISSUE ONE

Conclusion. After a careful consideration of the categories of allegedly corroborative evidence in this case, we conclude that there was indeed sufficient evidence before the trial court to support its determination that R.T.'s statements were admissible under Washington law. Accordingly, the Court of Appeals ruling to the contrary must be reversed.

Under Washington's child victim hearsay statute, RCW 9A.44.120, a child's description of an "act of sexual contact performed with or on the child by another" is admissible as hearsay evidence in a criminal proceeding if the statement provides "sufficient indicia of reliability" and, if the child is unavailable as a witness, "there is corroborative evidence of the act." The Court of Appeals has defined corroborative evidence of the act as " 'evidence of sufficient circumstances which would support a logical and reasonable inference' " that the act of abuse described in the hearsay statement occurred. The child victim hearsay statute requires separate determinations of reliability and corroboration when the child is unavailable to testify.

The determination of whether there is corroborative evidence of the act involves balancing the goal of making child victim hearsay more readily available as evidence against the concern that the use of such hearsay should not create too great a risk of an erroneous conviction. As we recently explained, "[t]he Legislature has offered no specific guidance on how this balance is to be struck. Similarly, we feel it unwise to suggest any hard and fast rules. The determination must proceed case by case...."

The most effective types of corroboration in such cases, of course, are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse. In most cases of child sexual abuse, however, there is no direct physical or testimonial evidence.

The child victim is often the only eyewitness to the crime, and physical corroboration is rare because the sex offenses committed against children tend to be nonviolent offenses such as petting, exhibitionism, fondling and oral copulation. Physical corroboration may also be unavailable because most children do not resist, either out of ignorance or out of respect for authority.

Consequently, in order to give any real effect to the child victim hearsay statute, the corroboration requirement must reasonably be held to include indirect evidence of abuse. Such evidence has included a child victim's precocious knowledge of sexual activity, a semen stain on a child's blanket, a child's nightmares and psychological evidence.

There is no disagreement as to the fact that the trial court in this case did not separately determine that corroborative evidence of abuse existed before ruling that the hearsay statements were admissible. The State does, however, dispute the Court of Appeals conclusion that a search of the entire record revealed insufficient corroboration of R.T.'s abuse to render her hearsay statements admissible. The State argues that several categories of evidence provided sufficient corroboration of R.T.'s abuse. These categories, along with a description of the relevant testimony, are analyzed separately in the pages of this opinion that follow.

PARALLEL DISCLOSURES BY THE CHILDREN

On October 2, 1985, 3-year-old B.A. walked out of a day-care center bathroom with her dress tucked in her tights. The center's teacher, Lisa Conradi, untucked the dress and told B.A. to keep her private parts covered. When B.A. appeared confused, Conradi explained that "private parts" means the areas covered by her bathing suit. B.A. pointed to her chest and crotch area. Conradi then added that no one should look at or touch B.A.'s private parts, whereupon B.A. said, "Uh-huh, Mommy and Daddy do." When asked "What do Mommy and Daddy do?," B.A. replied, "Mommy spits on me." Conradi asked where, and B.A. pointed to her crotch. At this point, Conradi gave B.A. a book and took the rest of the children downstairs. When Conradi returned, she asked B.A. if her parents did anything else to her private parts. B.A. said she spits on Mommy in her private parts and that Daddy "puts his potty in me and it hurts real bad." Conradi explained that a man's potty was a penis. The two then walked around the room. B.A. played peekaboo from behind a door with Conradi several times, and said, "My daddy plays peekaboo with me." She also said, "My daddy puts his penis in my mouth and icky milk comes out." When asked who else played this game, B.A. said Josh does. B.A. also said they played the games in the bedroom with their clothes off.

When Cindy Bratvold, the day-care owner, returned to the center a short while later, Conradi told her about B.A.'s statements. Bratvold then called Child Protective Services (CPS). After calling CPS, Bratvold asked B.A. whether her close friend R.T., who attended the same day-care center, played games with B.A.'s parents. B.A. said "yes."

Two CPS caseworkers interviewed B.A. that day. B.A. would not answer questions they posed, but when Conradi asked in their presence if her mother spit on her or put her mouth on B.A.'s private parts, the child nodded and said "yes." The interview ended when the defendant Kathleen Swan came to take her daughter B.A. home. The CPS caseworkers then decided to interview R.T. and B.A. on October 4, when both girls were scheduled to be at the day-care center.

R.T. came to the center the following day, October 3, but B.A. did not. Bratvold took R.T. upstairs and began to talk to her. Bratvold started by asking R.T. if she liked certain people, including "B.A.'s mommy." R.T. liked the people listed and "kind of" liked Kathy Swan. When asked what she meant, R.T. said "she makes us play funny games." These games included exercise games and ring around the rosy in the nude and falling on the bed. "Then we kiss Kathy's boobies and we lick her potty, and she does that to us, too." R.T. also said that "Kathy puts--one time Kathy put something in my potty and made me bleed, and she cleaned it up and told me not to say anything."

R.T. then said she played games with "Uncle Bill" (the defendant William Swan). She said that Uncle Bill's favorite game was the happy birthday game. "And that's where he puts his peepee in my mouth and shakes it around, and then he says, 'Here is your happy birthday present,' and something icky gets in my mouth." R.T. also said that the Swans put candles and marbles in her "peepee." She added that another man, John or Josh, played the games.

The next day, a CPS caseworker came to the Bratvold day-care center to talk to the two girls. An initial attempt to interview them together proved unsuccessful, so the caseworker talked to the girls separately in Bratvold's presence. R.T. told the caseworker that she played "with a game of marbles" at the Swans' home. She then added, "Bill plays without his clothes on. Bill touches my potty with his fingers." When asked what a "potty" was, R.T. said it was a "peepee hole." R.T. then said, "Kathy put some marbles in my bottom." When asked where her bottom was she said "peepee hole" and pointed to the vaginal area of an anatomically correct doll that the caseworker had brought. R.T. then added, "I am afraid ... Kathy touches my potty. Blood was on my bottom. Kathy put something in my peepee hole. It hurt." She said there was blood "down there" and pointed to her crotch. She also said that she touched Kathy's "potty and boobies" and put her mouth on them. R.T. then said that B.A. was present, and added, "I am too afraid for it. I just hurt, she poked a marble in it, she just put a marble in it, in my potty." What happened? "Kathy fixed it."

Bratvold then asked R.T. about the happy birthday games. R.T. said, "Bill and Kathy put a candle in my potty and played happy birthday. Bill put marbles in my potty to make it better. Stuff comes out of his peepee." When asked if the "stuff" was like milk, water, or blood, R.T. replied, "Like milk." She added that "Bill gives me a happy birthday present, gives me one in my bottom." When asked if she liked Bill, R.T. said, "He is mean, I don't like him, he hurts me, he puts his peepee--." R.T. pointed to the vagina on the doll when asked where Bill puts his peepee on her. "It hurt." R.T. added that B.A. played the marble and happy birthday games with the defendants.

The CPS caseworker then interviewed B.A. When asked if Mommy spits on her potty, B.A. replied, "Yes." When asked where Daddy puts his peepee, she said, "On my potty." When asked how it felt, she answered, "It hurts." B.A. said R.T. was present when these things happened, and she said that she played happy birthday and marble games with her mother and father, but she would not describe the games.

After the interviews, the police were called and the children were taken into protective custody. B.A. was placed in a foster home while R.T. was returned to her parents and continued to attend Bratvold's day-care center. Two months later, R.T. told Bratvold she wanted to tell her something. "See my finger? I have a burn. I had a burn.... When Bill and Kathy lit the candle in my potty and I tried to grab it out, my finger got burned, and then I bumped my head on the counter when they made me lay on the counter." On October 17, 1985, after the alleged abuse came to light, R.T. spontaneously told her father that "Bill and Kathy are bad" because they put marbles in her bottom.

B.A.'s foster mother testified that while drying B.A. off after a bath, B.A. told her that her mommy and daddy put marbles in her potty. The foster mother asked her son for some toy marbles and asked B.A. if they were the type of marbles Daddy put in her potty. B.A. laughed and said no. When asked what kind of marbles Daddy used, B.A. pointed to her crotch. The foster mother then asked if the marbles were on Daddy's potty, and B.A. pointed to her crotch and said, "Yes, and a snake full of marbles." The foster mother also testified that B.A. had mentioned marbles on other occasions, and once had said that her daddy put marbles and other things inside her potty and then started to cry as she said this. The foster mother testified further that B.A. once brought up the subject of birthday candles in her potty.

Having outlined the parallel disclosures made by the children, we now turn to an analysis thereof to determine whether, as the State argues, these disclosures are corroborative evidence of the alleged abuse.

B.A. and R.T. did not have contact with each other on October 2 or 3, the days that they talked to the day-care workers. On October 4 they sat together but briefly before their separate interviews by the CPS caseworker.

Summarizing the similarities between the statements of these two 3-year-old children, we find the following. B.A. said that her daddy put "his potty in me," and R.T. said that he put his "peepee" in her. B.A. said that Daddy put his penis in her mouth and icky milk came out; R.T. said Uncle Bill put his potty in her mouth and something icky, like milk, came out. B.A. said that she and her parents played games in the bedroom without clothes on; R.T. said that they played ring around the rosy in the nude, that Uncle Bill played without his clothes on, and that they fell on the bed after their games. B.A. said Josh also played the games, while R.T. said John or Josh played. B.A. said that her parents put marbles and birthday candles in her potty; R.T. said that the Swans put candles and marbles in her peepee and her bottom.

The Court of Appeals did not discuss these statements in detail before dismissing their corroborative value. The Court of Appeals held, "Certainly, to some degree, R.T.'s statements corroborate those of B.A. and to some degree B.A.'s statements corroborate those of R.T. However, under the circumstances of this case we do not believe that this corroborative evidence is, standing alone, sufficient to lead to the requisite 'logical and reasonable inference.' "

PRECOCIOUS SEXUAL KNOWLEDGE

Related to the girls' disclosures is the State's claim that their statements indicate precocious sexual knowledge that the girls could have learned only as the result of being abused.

Such knowledge was demonstrated when a child victim described the act of urolagnia which she claimed that the defendant made her perform in State v. Jones, 112 Wn. 2d 488, 491, 772 P.2d 496 (1989). There we found such "precocious knowledge" corroborative of the child's claim of abuse. We there said that the victim "has described and demonstrated with particularity acts of sexual gratification that even the most imaginative adult might not conceive in a vacuum of personal experience." Since the record revealed no other way in which the victim could have learned of such acts, her knowledge was held in Jones to be corroborative evidence of abuse.

The defense argues here that day-care workers Conradi and Bratvold were predisposed to find child abuse and tainted the girls' memories by asking them questions about what B.A. had said before the CPS interviews began. It is true that Conradi did ask a few such questions which the girls did not answer. The key allegations by both girls, however, were made separately, spontaneously and repeatedly. While B.A. answered only leading questions posed by the CPS caseworker, she spoke freely to Conradi as well as to her foster mother. It is our view that this record does not support defendants' contention that witnesses Conradi and Bratvold supplied the children with the sexual knowledge they revealed.

... In the present case, both victims described episodes of fellatio and ejaculation, as well as intercourse and possibly cunnilingus. While these acts are not as unusual as those described by the child victim in Jones, their accurate description by 3-year-old children indicates such precocious sexual knowledge that we consider it corroborative of abuse.

B.A.'S MASTURBATORY BEHAVIOR

Witness Bratvold testified that B.A. masturbated constantly during her last 4 to 5 months at the day-care center, and one of Bratvold's employees testified that she had to repeatedly tell B.A. to keep her hands out of her pants. This behavior was not referred to by the Court of Appeals as corroborative evidence of abuse.

While the State argues here that such masturbation by this 3-year-old child demonstrates precocious sexual knowledge, the State deliberately did not offer testimony of its significance at trial. In making her offer of proof regarding a doctor's testimony about B.A.'s emotional reactions to two medical examinations, the deputy prosecuting attorney advised the trial court as follows:

Your honor, at this point, the State, and it hopes to alleviate a lot of argument, is not asking Dr. Jenny to testify regarding masturbatory behavior, whether it's excessive on the part of a three-year-old or the sexual acting-out, the State is leaving that alone. What we are asking her to testify at this point is the significance, if any, of this behavior during the exam.

The defense urges this court to consider expert commentary and cites a pediatric guide stating that " '[o]ccasional masturbation is a normal behavior of many infants and preschoolers.' " We note that another expert sees frequent masturbation as a common reaction to sexual victimization.

Even if such masturbatory behavior were to be viewed as partially corroborative of B.A.'s abuse, we fail to see how it might corroborate R.T.'s abuse. Arguably, it could perhaps be reasoned that if B.A. masturbated because she was abused, and if R.T. was present when B.A. was abused, then R.T. probably was abused too. It is most questionable, however, that this could reasonably be considered as corroborative evidence of R.T.'s abuse....

PHYSICAL AND EMOTIONAL CORROBORATION OF B.A.'S ABUSE

This category of evidence includes testimony regarding B.A.'s two medical examinations and the views of an expert witness regarding those examinations.

Thomas Ritter, a nurse practitioner, examined B.A. on October 7, 1985. He was asked to check out her coughing and also to examine her for signs of sexual abuse. B.A. became very distraught when Ritter told her he wanted to do a genital examination. She clung to her foster mother and said repeatedly, "Please don't hurt me." When she finally agreed to be examined, she wouldn't let Ritter completely remove her underpants. She then assumed a position that Ritter said he had never seen in his 4 years of practice with children. She lay on her back, drew her knees up to her chest, and put her arms around her knees, thus leaving her genitalia and buttocks exposed. She was crying at the time and intermittently attempted to guard her genitalia by putting her hand between her legs. Ritter also found that the inside of the labia contained blood vessels that were more dilated than usual, and saw that the area around the introitus (the opening of the vagina) was reddened. He estimated the size of the introitus to be 1 to 1.2 centimeters. During the examination, Ritter did not check on whether a hymen was present, but he was able to see into B.A.'s vagina. After the examination, B.A. asked Ritter two or three times not to take any pictures of her, and was overall very distraught.

On October 9, 1985, the Swans' family physician, Dr. Lawrence Parris, examined B.A. at the request of CPS. Dr. Parris testified that B.A. was very fearful and didn't want her underpants pulled down. Dr. Parris observed that the vaginal introitus was slightly red, and noticed a slight discharge. He did not note whether the hymen was intact. He found no definite evidence of physical injury, but recommended that B.A. be evaluated at a sexual assault center because of her fearfulness.

Dr. Carol Jenny, Medical Director of the Sexual Assault Center at Harborview Medical Center, was accepted by the court as an expert on sexual abuse of children, and testified about her observations regarding the Ritter and Parris findings. Dr. Jenny testified that an introitus of 1 to 1.2 centimeters is abnormally large for a 3-year-old (the normal size is .4 cm). She noted that Ritter's ability to see the tissue inside the vagina indicated that he could see through the hymenal opening, even though neither Ritter nor Dr. Parris specifically recorded the presence or absence of a hymen. She also observed that it is unusual to find a vaginal discharge in a child, and such a discharge might result from infection caused by sexually transmitted disease. In assessing her testimony, the Court of Appeals considered Dr. Jenny's opinion, which had been ruled inadmissible by the trial court, that B.A.'s fearfulness during the examination was probably a sign of sexual abuse. There was no medical evidence to document R.T.'s claims of abuse. A physician examined her on October 5, 1985 and found no signs of physical trauma.

Medical evidence similar to that regarding B.A. was considered corroborative of abuse in State v. Gitchel, 41 Wn. App. 820, 706 P.2d 1091, review denied, 105 Wn. 2d 1003 (1985). Such evidence in Gitchel included a doctor's finding of partial vaginal penetration and the child's inappropriate behavior during the medical examination. The New York Supreme Court also concluded that redness in a child's genital area partially corroborated her allegations of abuse in [In the Matter of the Duchess County Dept. of Social Services on Behalf of Kerri K., 135 A.D.2d 631, 633]. We thus observe in this case, as did the Court of Appeals, that the medical evidence regarding B.A. is sufficient to permit a logical and reasonable inference that she was abused. Whether that evidence corroborates R.T.'s abuse is another matter. Strictly speaking, B.A.'s physical and emotional status during the examinations does not establish that R.T. was assaulted. B.A.'s physical and emotional conditions do lend at least some measure of support, however, to R.T.'s statements that B.A. played the games with her parents and, accordingly, that R.T. was present and was abused as well.

IN CONCLUSION AS TO THE CORROBORATION ISSUE

...It is more than merely arguable that the contemporaneous circumstances of this case--the girls' parallel disclosures, sexual knowledge and greeting, R.T.'s complaints of pain and play with the doll, B.A.'s masturbation and the medical and emotional evidence of her abuse--lead to a reasonable inference that both girls were sexually abused. As we also made clear in Jones, the essential purposes of the child victim hearsay statute "should not be defeated by a stubborn insistence on corroboration that is impossible to obtain." While there is no direct evidence of abuse in this case, the various items of indirect evidence stemming from the words and behavior of these two 3-year-old children together constitute sufficient corroboration of abuse to render each child's hearsay statements admissible in evidence.

ISSUE TWO

Conclusion. The well-established criteria for granting a new trial on the basis of newly discovered evidence were not met in this case; the trial court did not abuse its discretion by denying the defendants' motion for a new trial on that basis.

A new trial will not be granted on the ground of newly discovered evidence unless the moving party demonstrates that the evidence (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. The absence of any one of these five factors justifies denial of a new trial. Furthermore, the granting of a new trial for newly discovered evidence rests within the sound discretion of the trial court, and a denial will not be reversed except for an abuse of that discretion. After the defendants in this case were found guilty by a jury, they filed a motion for a new trial. This motion was based on three categories of newly discovered evidence, two of which dealt with defendants' claim that Lisa Conradi was "obsessed" with child abuse. One evidentiary category consisted of statements made by Conradi, the teacher at R.T.'s and B.A.'s day-care center, to a reporter who was also, apparently unbeknownst to Conradi, an investigator for the defendants. These statements described Conradi's own sexual abuse as a child and her previous problems with drugs and alcohol. The second category consisted of prior false reports of child abuse allegedly made by Conradi to CPS. The third category was defense counsel's discovery that a boy named Josh attended the same day-care center as R.T. and B.A., the girls having each testified that a "John" or "Josh" played he statement that differed from those to which Conradi testified at trial. The trial court observed further that "there is no new evidence in the statement with respect to her interest or concerns which Defense now characterizes as obsession [with] child abuse." The witness Conradi's problems were not properly characterized as newly discovered evidence. "Conradi was investigated and investigated before trial. There is no showing before the Court that this information was not available." The trial court also found no evidence to support the claim that Conradi previously made false reports of child abuse to CPS.

In its ruling, the trial court reminded counsel of the requirements for granting a new trial:

The Court is mindful that the proffered evidence should be such that results would probably change. It is not correct that the statements of Conradi were the State's case. The State had overwhelming evidence, her medical evidence, behavior evidence, and statements not only to Conradi but consistent statements to others--CPS workers, [the foster mother], I believe to Bratvold. I believe due diligence would have discovered the evidence which is characterised [sic] here as new evidence. Most of it is merely impeaching. The requirements, therefore, for the granting of a new trial are not met.

We agree with the trial court that the new evidence regarding Conradi was merely impeaching. At trial Conradi testified directly and on cross examination about classes in child abuse that she took and about the abuse of her two sons. On cross, she was asked about a prior statement that child abuse was everywhere, and she replied that "[i]t's just about in every state, every city, every public school." During closing argument, the defense referred to the abuse of Conradi's children as well as her expectations of child abuse allegedly fostered in part by Cindy Bratvold, the day-care owner. Defense counsel argued that Conradi brought her educational and personal experiences with her as well as "her idea that sexual abuse is everywhere, and it's as prevalent as behavior problems with children." Thus, the claim that Conradi was "obsessed" with child abuse, to use defendants' argumentative phraseology, was clearly before the jury at trial, and any new evidence in that regard was at most cumulative impeaching evidence.

We also agree with the trial court's conclusion that the claimed "new evidence" was discoverable before trial. No contention has been made that the names of the children at the day-care center could not have been discovered before trial had anyone sought to check. The defense contends on appeal that the State knew of witness Conradi's prior sexual abuse before trial, but there is no evidence in the record to support this contention. No showing was made before the trial court that the information about Conradi's own abuse was not available before trial.

Moreover, the trial court's statement that this newly discovered evidence would not have changed the outcome of the trial is also sustainable. The identity of Josh as a playmate would have challenged only one relatively minor detail in the girls' statements describing their abuse, and while the evidence regarding Conradi arguably could have added some weight to the defense efforts to impeach her credibility, it would not have affected the rest of the State's case, which included several other witnesses and several repetitions of the same type of statements by the two children disclosed in Conradi's testimony.

Since the "newly discovered" evidence would probably not have changed the outcome of the trial, could have been discovered before trial, and was both cumulative and impeaching, the trial court did not abuse its discretion in denying the motion for a new trial. In sum, we conclude here, as this court has previously concluded, that each new trial inevitably leaves new avenues for investigating the facts anew. Hardly a case can be supposed but what, by diligent search, some additional evidence will be found that would, if offered at trial, have been admissible on one theory or another. The mere existence of such evidence does not alone justify the granting of a new trial. State v. Williams, 96 Wn. 2d 215, 224, 634 P.2d 868 (1981).

ISSUE THREE

Conclusion. The trial court did not abuse its discretion by finding that R.T. was incompetent to be a witness in this case.

Under the child victim hearsay statute, RCW 9A.44.120, a child's description of sexual abuse is admissible as evidence if the statements are reliable and if the child either testifies or is unavailable as a witness. In the case before us, both B.A. and R.T. were unavailable because the trial court found them both incompetent to testify. The defense challenges only the conclusion that one of the children, R.T., was incompetent.

This court has declared that 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 concerning which he or she is to testify, 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 or her memory of the occurrence; and (5) the capacity to understand simple questions about it. The determination of competency rests primarily with the trial judge who sees the witness, notices his manner, and considers his capacity and intelligence. These are matters that are not reflected in the written record for appellate review. Their determination lies within the sound discretion of the trial judge and will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion.

At the competency hearing, defense counsel asked R.T. no questions and made no argument regarding her competency despite being invited to do so. Nor did the defense object to her being found incompetent to testify. The defense now contends, however, that the questioning by the court and the prosecutor was insufficient to make the necessary determination of whether the child was competent to testify. Arguably, the competency issue can be raised for the first time on appeal on the basis that the showing of unavailability is constitutionally mandated when the declarant witness, whose testimony is to be used against the defendant, is not produced.

The Court of Appeals reviewed the competency issue and upheld the trial court's findings of incompetency:

Turning to the competency hearing, R.T. said that her birthday was in "higher June." She also said she had been in the courtroom 40 times (she had never been there before) and that it was Saturday, although it was not. When asked if she recognized anyone, she pointed to defense counsel and said she had seen him 4 days ago, which she had not. She did not say that she recognized her father or the defendants, who also were in the courtroom. When the court asked R.T. if she knew the difference between the truth and a lie, R.T. said "not telling the truth" is telling a lie. The court then asked R.T. if it would be the truth or a lie if she said she was wearing a pink dress. Though her dress was pink, R.T. said it would be a lie because her dress was long. R.T. then said her dress was "blue, sort of, but it's pink." The court excused R.T. and found her incompetent to testify on the basis she did not understand the obligation to tell the truth on the witness stand and because she did not have a sufficient memory to speak truly about past events. The court added that there were "several problems" with R.T.'s answers: I don't know whether it was the question asked, her understanding or her memory, but it was quite clear that she was not able to answer the questions put to her. On that basis, she is not a competent witness and the court will find her unavailable for the purposes of the statute.

B.A. refused to answer any questions and was properly determined to be incompetent to testify. While R.T. was responsive to questions, the court found R.T. incompetent on two grounds: (1) R.T.'s inability to understand the obligation to tell the truth, and (2) her ability to remember accurately and express past events. The record demonstrates that there was no abuse of discretion on the part of the trial court in finding R.T. incompetent to testify.

The defense now contends that the trial court should have asked R.T. questions about her alleged sexual abuse in determining her competency to testify. Since at the time the child was put on the witness stand she did not know the day of the week, the color of her dress, or recognize her father and the defendants, questions about her alleged abuse were unnecessary to determine her competence to testify....

The Court of Appeals is reversed and the convictions of the two defendants in the trial court are affirmed.

Is Conradi's credibility relevant in any way to the constitutional confrontation issue?

Can the statements of a child (e.g., R.T.) who has been found to be incompetent because she does not remember accurately or appreciate the obligation to tell the truth ever be considered reliable enough to be admitted as nontraditional hearsay? Should such statements be admitted even if they fall within a traditional hearsay exception?

1. 1. At all times pertinent herein, the child victim hearsay statute read as follows:

A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings in the courts of the state of Washington 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.

A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.

RCW 9A.44.120.