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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       NO. 66617-7-I
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )
                                            )
JHONNY GODINEZ BASTIDA,                     )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: June 4, 2012
________________________________)

       Becker, J.  --  In this appeal of his convictions and sentence for child 

molestation in the first degree, Jhonny Godinez Bastida contends the child was

incompetent to testify and the court's admission of her out-of-court statements 

describing the alleged abuse violated the child hearsay statute.  We affirm.

                                        FACTS

       Bastida was living with VO and her mother.  On January 16, 2010, VO

was six years old.  According to her mother's trial testimony, she came home 

from work and VO told her that Bastida had touched her "butt" and "put his butt 

on my butt."  VO generally referred to a male's genitals as a "butt."  She "pointed 

to the front" of her body below her waistline to show her mother what she meant  

No. 66617-7-I/2

by Bastida's "butt" and pointed to "her back" to indicate what she meant by her 

"butt."

       VO's mother contacted police. The same day, VO told a nurse at the 

emergency room that Bastida had tried to put his butt "in" her butt.  A week later, 

she told a child interview specialist during a videotaped forensic interview that 

Bastida had tried to touch her "on the inside" of her butt and had tried to take her 

pants and underwear off.  She described two incidents, one occurring on her 

mother's bed and the other on the couch.

       Bastida was charged with two counts of child molestation in the first 

degree. Bastida moved pretrial to prevent VO's mother, the nurse, and the child 

interview specialist from testifying about VO's hearsay descriptions of the 

alleged abuse.  He also argued VO was incompetent to testify because 

irregularities and inconsistencies in her statements during two forensic 

interviews showed she was unable to distinguish truth from lies and unable to 

accurately recall events.  A competency hearing was held on December 13, 

2010. The court heard testimony by VO, her mother, the nurse, and the child 

interview specialist.  Bastida cross-examined each witness.  The court ruled that 

VO was competent to testify under the factors set forth in State v. Allen, 70 

Wn.2d 690, 424 P.2d 1021 (1967), and that the three hearsay statements were 

sufficiently reliable to gain admission at trial under the child hearsay statute, 

according to the factors set forth in State v. Ryan, 103 Wn.2d 165, 175-76, 691 

P.2d 197 (1984).

       A jury trial lasting six days was
                                              2 

No. 66617-7-I/3

held.  VO testified, as did her mother, the nurse, and the child interview 

specialist.  The videotaped recording of the January 22, 2010, forensic interview 

of VO was played for the jury.  VO testified that when her mother was at work, 

Bastida had been "sticking his body to my body" using his "front butt," that he 

had taken her pants off, and that his hands had been "all covered . . . with pee or 

water."  She testified that this had happened on more than one day, but that the 

day she told her mother was "the very last time" it happened.  Bastida also took 

the stand and denied ever touching VO in a sexual manner.  He was convicted 

as charged. He now appeals.

                             WITNESS COMPETENCY

       Bastida contends the trial court erred in concluding VO was competent to 

testify and that the jury's exposure to her unreliable testimony deprived him of 

his due process right to a fair trial. 

       An appellate court affords significant deference to the trial judge's 

competency determination and may disturb such a ruling only upon a finding of 

manifest abuse of discretion.  State v. Brousseau, 172 Wn.2d 331, 340, 259 

P.3d 209 (2011).  

       There is probably no area of the law where it is more necessary to 
       place great reliance on the trial court's judgment than in assessing 
       the competency of a child witness.  The trial judge is in a position 
       to assess the body language, the hesitation or lack thereof, the 
       manner of speaking, and all the intangibles that are significant in 
       evaluation but are not reflected in the written record.  

State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810, review denied, 114 Wn.2d 

1026 (1990), disapproved on other 
                                              3 

No. 66617-7-I/4

grounds by State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997).  

       RCW 5.60.020 provides in pertinent part:  "Every person of sound mind 

and discretion . . . may be a witness in any action, or proceeding."  All witnesses, 

regardless of their age, are presumed competent to testify until proved otherwise 

by a preponderance of the evidence.  Brousseau, 172 Wn.2d at 341, citing State 

v. S.J.W., 170 Wn.2d 92, 100, 239 P.3d 568 (2010).  A person is not competent 

to testify if he or she is of unsound mind, intoxicated at the time of the 

examination, or if he or she appears "incapable of receiving just impressions of 

the facts, respecting which they are examined, or of relating them truly."  RCW 

5.60.050.  The party challenging the competency of a child witness bears the 

burden of rebutting the presumption of competency with evidence showing that 

the child falls short of the statutory definition.  S.J.W., 170 Wn.2d at 102.

       A former version of the witness competency statute, RCW 5.60.050, 

created a special rule for determining the competency of children under 10 years 

of age. Under the former statute, the court had outlined the following test: 

              The true 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 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 memory of the occurrence; 
       and (5) the capacity to understand simple questions about it.

Allen, 70 Wn.2d at 692.  These factors "continue to be a guide when 

competency is challenged."  S.J.W., 170 Wn.2d at 102.

                                              4 

No. 66617-7-I/5

       The trial court fully considered the Allen factors in determining that VO 

was competent to testify:

              [T]here is no question in my mind that the child is 
       competent.  She presented today as an intelligent, bright, articulate 
       six, soon to be seven-year-old child.  It was apparent to the court 
       that she appreciated the difference between a lie and the truth by 
       various questions that were being asked.  It was apparent to the 
       court that she appreciated the need to tell the truth on the witness 
       stand.  
              She was also able to express in her own words what she 
       testifies about that occurred.  She was able to follow the 
       conversation in terms of the questions that were put to her and 
       answer those in an articulate fashion for a seven year old.
              . . . .
       And it is true that she has to these various people, either her 
       mother, the nurse, or the interview specialist, made somewhat 
       inconsistent or other vague responses.  But at least in this court's 
       experience that is not unlike a child of this age, or for that matter, 
       almost any victim of a sexual assault.  That certainly should be 
       something that the trier of fact can consider.  But in terms of the 
       competency of this witness, it is abundantly clear to this court that 
       she is presently competent to testify.

       At both the competency hearing and at trial, VO answered correctly every 

question designed to distinguish between truth and lies. Her descriptions of her 

school work, social activities, and the layout of her home all demonstrated her 

ability to understand questions, express ideas, and describe her memories of 

situations and events.  She testified accurately as to her age, date of birth, full 

name, the name of her school, her friends' and teacher's names, and was able to 

specifically identify Bastida in the courtroom.  Her descriptions of Bastida's 

actions were articulate and coherent.

       Bastida challenges the court's determination that VO understood her 

obligation to speak the truth on the 
                                              5 

No. 66617-7-I/6

witness stand, the first Allen factor. He argues VO's incorrect answers to two

standardized test questions during her pretrial interview by the child interview 

specialist prove she was unable to distinguish truth from falsehood.  Near the 

beginning of the interview, VO was asked four questions similar to the following:

"This girl looks at the apple and says it's an apple.  This girl looks at the apple 

and says it's a banana.  Which girl told the truth?"  She answered only two of the 

four correctly.  These wrong answers given approximately 11 months before trial 

are not dispositive. At the competency hearing and at trial, VO was posed eight 

additional questions of this nature, and she answered each of them correctly. 

"Even where the court is reviewing a pretrial competency determination, the 

inquiry is always whether the child is competent to testify at trial. Thus, it is 

always appropriate to examine the child's trial testimony in making this 

determination."  Brousseau, 172 Wn.2d at 341 n.5 (emphasis omitted).  The 

interview specialist testified that the questions VO struggled with are no longer 

used because many children found them ambiguous and confusing.  A child's 

incorrect responses to ambiguous questioning do not demonstrate testimonial 

incompetence.  State v. Stange, 53 Wn. App. 638, 642, 769 P.2d 873, review

denied, 113 Wn.2d 1007 (1989).

       Bastida contends VO also showed her incompetence to testify by 

responding "Mm, don't know" to a January 2010 interview question asking 

whether it is better to tell the truth or a lie.  However VO was asked the same 

question at the competency hearing and at trial, and confidently replied both 

times that she understood it was better to 
                                              6 

No. 66617-7-I/7

tell the truth.  VO made promises to both the prosecutor and the trial judge that 

she would only tell the truth on the stand. 

       Bastida contends the following exchange on cross-examination at the 

competency hearing showed that VO did not understand her obligation to tell the 

truth:

       Q.  . . . When [the prosecutor] asked you questions, do you think 
           that there is a right answer and a wrong answer, or do you think 
           you're just supposed to answer them?
       A. Answer them.
       . . . .
       Q. . . . Why did you change your answer after [the prosecutor] 
           asked you several times?
       A. I don't know.
       Q. You don't know?  Okay.  Was it because you were giving  --  you 
           thought you were giving the wrong answer?
       . . . . 
              THE WITNESS:  Yeah.

VO's answers do not clearly undermine the court's competency determination.  

She was not asked to explain her understanding of what it meant to give a "right 

answer" or a "wrong answer." The terms "right" and "wrong" are not 

unequivocal; a "wrong" answer could just as easily refer to an untrue or 

inaccurate answer as to an answer the questioner did not wish to hear.  Indeed, 
Bastida himself employs both meanings of the concept in his brief on appeal.1

       1 Bastida contends VO's agreement that she was "just supposed to answer" the 
questions showed that she "did not understand the difference between 'right answers' 
and 'wrong answers,' i.e., truth and falsehood."  Apparently without appreciating any 
conflict, he then contends VO's statement that she changed an answer because she 
thought she was "giving the wrong answer" meant that VO was acknowledging giving
"answers that she thought that the people questioning her wanted to hear."  In the first 
usage, Bastida assumes "wrong" equates with "false"; in the second usage, he 
assumes "wrong" refers to "undesirable."  

                                              7 

No. 66617-7-I/8

       Bastida contends VO is like the child witness in State v. Karpenski, 94 

Wn. App. 80, 106, 971 P.2d 553 (1999), abrogated on other grounds by, State v. 

C.J., 148 Wn.2d 672, 63 P.3d 765 (2003), where the Court of Appeals reversed 

a trial court's competency determination.  She is not.  The child witness in that 

case swore to tell only the truth on the stand, and then described "in vivid detail" 

how he and his brother five years younger than him "had been born at the same 

time." Karpenski, 94 Wn. App. at 106.  Evidence before the court showed that 

the witness had a "long-standing, often-observed inability to distinguish what 

was true from what was not," and the trial court explicitly found the child was 

"confused regarding dream versus reality."  Karpenski, 94 Wn. App. at 106 

(internal quotation marks omitted). No such evidence exists in this case.  None 

of VO's statements evince fantasy or confusion regarding the boundaries of 

reality. 

       Bastida contends inconsistencies in VO's various statements show she

did not retain a memory sufficient to provide an independent recollection of the 

occurrence (Allen factor 3) and that her poor memory of events was corrupted by 

improper questioning by the State. 

       Many of the purported inconsistencies are illusory.  For example, VO said 

at different times that Bastida's pants and her pants were both "on" and "off."  

These statements are not inherently in conflict; she explained at trial that her 

pants had been on, but that Bastida had taken them off, and that although 

Bastida's pants remained on, she had felt him taking them off "just a little."  

Bastida also contends VO was 
                                              8 

No. 66617-7-I/9

inconsistent about the number of times the touching occurred, where the 

touching took place, and how many times VO spoke to her mother about it.  But

the existence of inconsistencies and contradictions in a witness's testimony do 

not render the witness incompetent.  Stange, 53 Wn. App. at 642.  Such 

contradictions go to the weight of a witness's testimony, not to its admissibility.  

Stange, 53 Wn. App. at 642.

                                  CHILD HEARSAY

       Bastida next argues that the court's admission of VO's out-of-court 

declarations to her mother, the nurse, and the child interview specialist violated 

the child hearsay statute, RCW 9A.44.120.  The statute provides that a hearsay 

statement by a child "describing any act of sexual contact performed with or on 

the child by another" is admissible at trial if the child testifies at trial and if the 

court finds, after conducting an evidentiary hearing, "that the time, content, and 

circumstances of the statement provide sufficient indicia of reliability."  RCW 

9A.44.120.

       As a threshold matter, we reject the State's invitation to ignore Bastida's 

child hearsay arguments on appeal under RAP 2.5(a).  Although Bastida did not 

argue the child hearsay issues with crystal clarity to the trial court, his trial memo 

and cross-examination of witnesses at the child hearsay hearing were adequate 

to preserve his right to appellate review on this issue.

       We nevertheless reject Bastida's challenge.  He first contends the 

hearsay statements were improperly admitted given the constitutional 

requirements set forth in Crawford v.         9 

No. 66617-7-I/10

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because 

VO's incompetence to testify made her an "unavailable" witness and rendered 

his cross-examination of her a "nullity."  This argument rests on a theory we 

have already rejected. VO was competent to testify and was therefore

"available" at trial.  Bastida's cross-examination of VO satisfied his right to 

confrontation. 

       Bastida next contends the hearsay statements did not meet the statutory 

requirement of reliability. In determining whether this requirement is satisfied, 

the court should consider nine factors: 

       1.  Whether the declarant, at the time of making the statement, had 
           an apparent motive to lie; 
       2.  Whether the declarant's general character suggests 
           trustworthiness; 
       3.  Whether more than one person heard the statement; 
       4.  The spontaneity of the statement; 
       5.  Whether trustworthiness is suggested from the timing of the 
           statement and the relationship between the declarant and the 
           witness; 
       6.  Whether the statement contains express assertions of past fact; 
       7.  Whether the declarant's lack of knowledge could be established 
           by cross-examination; 
       8.  The remoteness of the possibility that the declarant's 
           recollection is faulty; and 
       9.  Whether the surrounding circumstances suggest that the 
           declarant misrepresented the defendant's involvement.

State v. C.J., 148 Wn.2d 672, 683-84, 63 P.3d 765 (2003), citing State v. Ryan, 

103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).  No single factor is decisive; 

rather, reliability is based on an overall evaluation of the factors.  State v. 

Young, 62 Wn. App. 895, 902, 802 P.2d 829 (1991).  If the factors are 

substantially met, the statement is sufficiently reliable.  Borland, 57 Wn. App. at 

                                              10 

No. 66617-7-I/11

20.  

       In issuing its oral ruling, the trial court considered each of the nine Ryan

factors and concluded each factor favored admission of the three witnesses' 

testimony.

       Bastida contends, under Ryan factor 1, that VO had a motive to fabricate 

the accusations as a way of deflecting her mother's anger about Bastida's and 

VO's failure to clean the house while she was away at work.  This theory is 

purely speculative and has no support in the record.  And it is contradicted by 

VO's testimony that she disclosed the abuse by Bastida despite believing that 

her mother would be angry with her when she found out: "I thought my mom was 

going to be mad at me that I told him to do it, but I didn't tell him to do it.  He just 

wanted to do it. . . . but she wasn't.  She was mad at Jhonny."

       Bastida contends under Ryan factor 4 that VO's statements to the nurse 

and child interview specialist were not spontaneous.  The trial court reasoned 

that although these statements by VO "were not spontaneous in the sense of 

someone simply blurting them out, there is nothing to show that any of those 

statements were rehearsed or programmed in any fashion whatsoever."  The 

record supports the court's reasoning.  

       Bastida contends under Ryan factors 8 and 9 that the inconsistencies in 

VO's statements provide proof of her suggestibility and flawed memory.  The trial 

court perceived her statements as "essentially the same" despite minor 

inconsistencies:

       [A]lthough the statements differ from maybe person to person, they 
       nevertheless retain the same           11 

No. 66617-7-I/12

       central core . . . . Certainly the general description of the language 
       in terms of her referring to her body part as "butt" and referring to 
       his genitalia as "butt" is consistent throughout all of these 
       interviews. Again, there may be some vagueness and 
       inconsistencies even within those statements, but the core remains 
       essentially the same throughout. 

                                              12 

No. 66617-7-I/13

       Determining the admissibility of child hearsay lies within the discretion of 

the trial court.  State v. Pham, 75 Wn. App. 626, 631, 879 P.2d 321 (1994), 

review denied, 126 Wn.2d 1002 (1995).  We find no abuse of discretion.

       Affirmed.

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