IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 57099-8-II

Respondent,

v. UNPUBLISHED OPINION

E.A.

Appellant.

MAXA, P. J. – EA appeals his juvenile court adjudication of guilty of first degree child 

rape. Eight-year-old DE told several adults that his 14-year-old cousin EA had sexually 

assaulted him multiple times. However, at the child hearsay hearing DE denied that EA had 

sexually assaulted him. After considering the Ryan1factors, the trial court ruled that DE’s child 

hearsay statements to the adults were admissible under RCW 9A.44.120(1). Following a trial in 

which several witnesses testified about DE’s hearsay statements, the trial court adjudicated EA 

as guilty.

EA argues that the trial court erred in applying the Ryan factors and in admitting DE’s 

child hearsay statements. We hold that the trial court did not abuse its discretion in admitting the 

child hearsay statements. Accordingly, we affirm EA’s adjudication of guilt.

 

1

State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984).

Filed

Washington State

Court of Appeals

Division Two

February 6, 2024
No. 57099-8-II

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FACTS

Background

On September 22, 2021, Jack Chilla was supervising his second grade class as they lined 

up for lunch when DE attempted to cut in front of some of the other children. When Chilla told 

DE that he needed to return to his place in line, DE told Chilla that he had something to tell him 

and then disclosed that EA, DE’s cousin, had been sexually abusing him.

DE subsequently made additional statements regarding sexual abuse by EA to the 

school’s counselor Danielle Rosetta, sexual assault nurse examiner Heather McLeod, and 

forensic interviewer Deanna Moomjian-Gjovik.

Based on these statements, the State charged 14-year-old EA with first degree child rape 

in the juvenile court. The State moved to admit DE’s hearsay statements under RCW 9A.44.120, 

and the case proceeded to a child hearsay hearing.

DE’s Hearing Testimony

DE was still eight years old at the time of the June 2022 child hearsay hearing. The 

prosecutor initially questioned DE about his ability to tell the truth. She asked DE if he 

remembered from a prior visit to the courtroom what the most important chair in the room was. 

DE responded that it was “[t]he truth chair” and that it was called that “because that’s where you

tell the truth.” Rep. of Proc. (RP) at 47. DE then correctly identified two statements by the 

prosecutor that were lies. And DE testified that it was good to tell the truth and bad to lie.

The prosecutor then asked DE if he remembered talking to anyone about EA. DE 

responded that EA had lived with his family but that EA had to move out “because of the lie I 

made up.” RP at 52. DE testified that what he told Chilla was a lie and that EA had not touched 
No. 57099-8-II

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him inappropriately or asked him to keep anything secret. DE also testified that he got “in big 

trouble, because I lied about this.” RP at 55.

Chilla’s Hearing Testimony

Chilla testified that he was employed as a substitute teacher. He stated that he also had 

been a substitute teacher in DE’s first grade class. Chilla stated that he liked DE and that DE 

was bright, nice, funny, and very shy.

On September 22, 2021, Chilla was the substitute teacher for DE’s second grade class. 

As the children were lining up for lunch, DE suddenly jumped to the front of the line. The other 

children complained about DE cutting in line, so Chilla told DE that he needed to return to his 

place. DE responded by telling Chilla to bend down because he had something to tell him. 

When Chilla bent down, DE said, “My cousin makes me suck his penis.” RP at 60. Chilla 

testified that when DE said this, his demeanor was “matter of fact.” RP at 60.

Chilla stated that DE would not have been in trouble for cutting in line. The only 

consequence was that DE would have been sent back to his original place.

Chilla stated that he immediately reported DE’s disclosure to the school counselor 

Rosetta. Chilla escorted DE to Rosetta’s office. When Chilla told DE to repeat what he had said 

to Rosetta, DE repeated it.

Rosetta’s Hearing Testimony

Rosetta testified that Chilla brought DE to her and told her that she needed to talk to DE 

because he had told Chilla something serious. At that point, DE stated “that his cousin makes 

him suck his penis.” RP at 67. Because Rosetta was in the midst of something else, she sent DE 

back to class with Chilla. But she met with DE one-on-one about 20 minutes later. DE did not 

act as if he thought he was in trouble.
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During Rosetta’s meeting with DE, he told her that EA made him suck his penis, that DE 

did not like it, that it was really gross, and that he hoped his cousin would get in trouble. DE also 

told Rosetta that his cousin lived in the same house as he did and that his cousin had also 

attempted “to put his penis in [my] butt.” RP at 69. DE told Rosetta that he had not disclosed 

this to anyone else and that EA had said it was a secret. Rosetta testified that she was concerned 

about how anxious DE appeared to be and the intensity with which he was reporting this 

information.

Rosetta ended her conversation with DE and contacted Child Protective Services (CPS). 

Officer Britany Stigall then came to the school and met with DE.

Rosetta testified that this was her first one-on-one contact with DE and that she did not 

know him well. But she had never had any experience with DE in which he disclosed something 

that was not true. Rosetta denied coaching DE or asking him leading questions during their 

conversation.

Rosetta also testified that after DE’s disclosures but before the hearing, she was in a 

parent teacher conference for DE’s brother and DE’s mother would not give her permission to 

interact with her children. Rosetta further testified that a short time before the hearing, DE’s 

younger brother saw her in the school hallway and he stopped, pointed at her, and said, “I’m not 

allowed to talk to you.” RP at 71. Rosetta also testified that at the end of the school year she had 

been conducting a lesson in DE’s second grade class and that DE appeared to be upset. At the 

end of the lesson, DE raised his hand and said that he was not returning to the school because his 

parents did not trust the school.
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Officer Stigall’s Hearing Testimony

Stigall testified that when she arrived at the school, Rosetta told her about DE’s 

allegations. Stigall then talked with DE and asked him about his family and if he felt safe being 

at home. DE told her that he had had nightmares about monsters, but he felt safe at home 

because he had not had them lately. Stigall did not discuss DE’s disclosures with him. Stigall 

had never had any contact with DE before this.

Stigall testified that she then contacted DE’s mother, told her what was going on, and 

asked to speak to her. At DE’s mother’s request, Stigall took DE to his mother’s workplace.

By the time Stigall and DE got to his mother’s workplace, DE’s little brother already had 

arrived on the school bus. Stigall sent the two boys inside so she could speak to their mother 

alone.

Stigall then told DE’s mother about the allegations and explained the investigation 

process. Stigall wanted to ensure that DE’s mother had this information so she could keep EA 

and DE separate.

DE’s mother was upset and did not appear to believe DE’s allegations. She told Stigall 

that she had been a sexual assault victim, that she knew “what that looks like,” and that she did 

not see any signs of abuse in her son. RP at 85. DE’s mother also commented that DE was 

never alone with EA, so she was not sure how this could have happened.

Stigall explained to DE’s mother that children respond to trauma in a variety of ways, so 

the fact she did not recognize it did not mean it did not happen. DE’s mother then expressed 

concern that DE would be expelled from or be in trouble at school. Stigall reassured her that DE 

was not in trouble and told her that all they wanted to do was to find out what had happened and 

to keep DE safe.
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When Stigall advised DE’s mother that CPS would be notified, she became upset. DE’s 

mother commented that “where she was from, people don’t take kindly to CPS because they take 

people’s children away.” RP at 86. Stigall reassured DE’s mother that it was not their intention 

to take DE.

Initially, DE’s mother also did not want DE to undergo a forensic interview. But Stigall 

explained the process and emphasized that this was the best way to figure out what had 

happened. Stigall then called the social worker, Colleena Will, and set up the sexual assault 

evaluation.

Stigall also testified about EA’s arrest and EA’s father’s reaction to the arrest. When the 

officers arrived to arrest EA, his father, Ron Lindsay, was hostile and told the officers that they 

were not taking his child. After they talked with Lindsay for a while and gave him more 

information, he delivered EA to Stigall. Stigall testified that Lindsay was present when EA was 

interviewed before the arrest and that Lindsay had been very upset with her.

Will’s Hearing Testimony

Will, the social worker involved in the case, testified that after she received the report of 

the abuse allegations, she arrived at DE’s mother’s workplace unannounced. Will had a short 

meeting with DE’s mother. Will said that she needed to meet with the children. When DE’s 

mother brought DE and his brother out from the back room, they were crying so hard they were 

difficult to understand.

Will testified that she interviewed each child separately. She first talked with DE’s 

brother and reassured him that he was not in trouble and that she was not trying to take him from 

his mother. After he calmed down, they talked about safety and who he felt safe with. When she 
No. 57099-8-II

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asked about EA, DE’s brother told Will that EA made DE and himself do inappropriate things 

and said that EA made them suck EA’s penis.

Will then met with DE, whom she did not know before this contact. They discussed his 

safety and whether he felt safe at home. They did not discuss the allegations.

DE told Will that he normally lived with his parents, but his father had just been 

deployed. He also stated that he lived with EA, EA’s father Lindsay, and a grandmother.

Will then spoke with DE’s mother, and they were joined by EA’s mother after a few 

minutes. They did not discuss what the boys had told Will, but DE’s mother was adamant that 

nothing had happened. DE’s mother stated that she would only believe something had happened 

if the boys told her so.

Will attempted to explain to DE’s mother that there are reasons that victims sometimes 

first disclose abuse to people who are not their parents and emphasized that it was important for 

a child’s parents to believe them. Will also instructed the mothers not to discuss the case with or 

around the children so the interviews would be “clean.” RP at 101.

During this meeting, the mothers warned Will to be careful because Lindsay would be 

upset. Sometime later, Lindsay called Will. He was upset, and he yelled, screamed, and swore 

at Will. He accused her of lying about EA. And he threatened to have his children make up lies 

about Will and her conduct during the investigation.

When Will attended the forensic interviews, the families were present and they were 

loud, upset, and yelling. To avoid creating more conflict, Will remained in the back. The 

families were so upset that Will feared for her safety.
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McLeod’s Hearing Testimony

McLeod is a sexual assault nurse examiner. She saw DE as a patient in September 2021 

shortly after he had disclosed the sexual abuse.

McLeod testified that when she conducted her examinations, she would ask non-leading 

questions and that she avoided coaching children for answers. She also testified that children 

often delay disclosure or do not disclose sexual abuse for many reasons, including shame, 

embarrassment, concern that they will not be believed, concern that they will be blamed for what 

happened, fear related to family dynamics, and pressure to protect an offender or others.

McLeod testified that DE had Attention Deficit and Hyperactivity Disorder (ADHD) and 

that he took medication for this condition. During her examination of DE, he reported that EA 

had made him suck his penis and had put his penis “up his butt.” RP at 156. DE reported this 

had happened multiple times in multiple places inside the home and that he did not like it. DE 

also reported that EA told him to keep it a secret and that EA would give him Kool-Aid or 

snacks if he would comply with EA’s requests. DE described how it felt when EA put his penis 

in his butt. DE also told McLeod that EA had asked him to suck on his scrotum.

DE stated that he initially did not want to engage in these activities and that he did not 

like it. But DE eventually thought that he and EA were friends, and EA told him that friends do 

this when someone asks them to.

Well into the examination, DE told McLeod that he was telling the truth but nobody 

believed him. McLeod told DE that she believed him. McLeod testified that if someone came to 

her for medical care, she would “start from a place of believing them” until she saw something 

inconsistent that raised a concern,” and she did not see any reason to be concerned about DE’s 

veracity during this visit. RP at 164.
No. 57099-8-II

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McLeod also asked DE if he was aware of EA abusing anyone else, and DE said that EA 

had forced DE’s brother to suck on EA’s penis. DE stated that when this happened, his brother 

wanted to tell, but EA told him that if he told he would not get Kool-Aid and would not be able 

to be in the room they were in. DE also told McLeod that his mother had said that EA also had 

molested his own sister. McLeod did not interview EA’s sister.

McLeod also examined DE’s brother. DE’s brother did not disclose sexual abuse by EA. 

But DE’s brother told McLeod that DE “was in trouble with their uncle” and that DE had “gotten 

him into this mess.” RP at 163. DE’s brother stated that EA had said this was a secret, but DE 

had told.

Moomjian-Gjovik’s Hearing Testimony

Moomjian-Gjovik testified about her forensic interview of DE, which occurred on 

September 28. The video of the interview was entered into evidence for purposes of the hearing, 

and the trial court reviewed portions of the tape.

During this interview, DE stated that he was in second grade but that he could not “go to 

school anymore, because of something [indiscernible] at school.” RP at 123 (alteration in 

original). When Moomjian-Gjovik asked for clarification, DE responded, “Somebody is fishy 

and stuff.” RP at 123. Moomjian-Gjovik replied, “Stuff is getting fishy, is that what you said?” 

And DE responded, “Yes. That means something mysterious.” RP at 123.

Moomjian-Gjovik then asked DE what was mysterious about what was happening at 

school. DE responded that it was about what he had said and that he would be attending a 

different school. Moomjian-Gjovik asked DE what he had said, and DE stated that he had said 

that EA had put his penis in DE’s butt and mouth.
No. 57099-8-II

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Moomjian-Gjovik then asked DE where the sexual contact had happened. DE responded 

that it had occurred in the room EA and Lindsay shared. Moomjian-Gjovik then asked DE to tell 

her about the first time EA put his penis in DE’s mouth. DE could not remember when the first 

incident occurred, but he stated that it happened in an upstairs bathroom when he, his brother, 

and EA were playing hide and seek. DE also stated that it usually happened in EA’s and 

Lindsay’s room.

Moomjian-Gjovik asked DE when EA stopped asking him to suck on his penis, and DE 

responded that it did not stop. DE stated that he did not want to do it, but EA said he would give 

DE Kool-Aid. DE said that he wanted the Kool-Aid and that EA would also let him have a 

snack.

EA told DE that it was a secret. DE also described how it felt and said that it happened 

“like a 100 or a lot of times.” RP at 140.

Moomjian-Gjovik also asked DE to tell her more about when EA put his penis in his butt 

and what it felt like. DE responded that EA did not do that often and that he did not remember 

the first time, but it happened in Lindsay’s room. DE also described what it felt like and said 

that he had asked EA to stop but he did not listen.

When Moomjian-Gjovik asked DE about who lived in his house, DE responded that his 

mother and father did and then stated that his father was in the Army but was returning “because 

I stopped him from [his] work.” RP at 130. Moomjian-Gjovik asked DE to clarify how he 

stopped his father’s work and who told him this. DE responded that his mother had told him and 

that his father was returning because of the case.
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DE’s Father’s Hearing Testimony

DE’s father testified that he had witnessed DE making up stories. But he further testified 

that DE was eight years old and that he did not know any child that age who did not make up 

stories.

DE’s father also testified that DE responded differently to getting into trouble depending 

on the situation. But he stated that DE “tend[ed] to redirect his statements towards something 

else.” RP at 170. DE would also attempt “to lie his way out of things to not get into trouble, but 

he [wasn’t] very good at it.” RP at 170. If DE was caught lying, they would impose more 

punishment.

DE’s father also testified that EA had been living in the same house with DE since 2018. 

Before this event, DE’s father had not seen any indication of abuse between EA and DE. He 

stated that the two children were very different. DE was interested in playing and was extremely 

active, but EA liked video games and rarely left his room.

DE’s father denied telling DE what to say or what not to say regarding his allegations and 

stated that they had only asked DE “to hold himself accountable and to be truthful.” RP at 172. 

DE’s father had no concern about letting DE and EA be together in the future.

DE’s father also testified that DE had never disclosed any abuse to him and that he would 

have reported it if DE had done so. He stated that there was zero tolerance for sexual violence in 

their home. And he testified that sexual abuse had occurred in his wife’s family, that his wife 

was a victim, and that they did not want it to happen to their children.

DE’s Mother’s Hearing Testimony

DE’s mother described DE as hyper. She testified that they had problems with him 

“try[ing] to lie to [them] a lot of the times, but [they] have been working on that.” RP at 179. 
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She stated that DE was just hyper and very imaginative and that he sometimes overused his 

imagination.

DE’s mother also stated that DE frequently got in trouble and that if he got caught, he 

would “usually tr[y] to lie his way out of it.” RP at 181. But she stated that if he got caught 

lying “he takes his discipline, whether it be grounding or losing one of his favorite toys, with 

grace.” RP at 181.

DE’s mother testified that when she learned about DE’s disclosures, she was shocked and 

could not understand how it happened because EA and DE were never alone together. She also 

testified that DE told his father that he had lied about his accusations. But DE had never told her 

why he had lied. DE’s mother denied coaching DE.

DE’s mother also testified that Lindsay was her brother. She stated that Lindsay had to 

quit his job to support EA after DE made his accusations. She also testified that after DE made 

his disclosures, EA had to live with his mother. When EA moved, his sister moved into DE’s 

residence.

DE’s mother denied telling DE that he had stopped his father from working. She stated 

that although she had told DE that his father was coming home, she did not tell him why. But 

she commented that DE probably could have figured out the reason by himself.

DE’s mother also denied telling her boys that CPS was going to take them away as a 

result of DE’s disclosures, that “something fishy” was going on at the school, that she mistrusted 

school staff, or that they could not talk to school staff or to CPS. RP at 190. But she admitted 

that she was concerned that CPS would remove her children as a result of the allegations. And 

she further admitted that she would “break a rule” to keep her children from being taken away 

because she believed that she would be protecting them. RP at 193.
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Trial Court’s Ruling

After hearing argument, the trial court stated that the court “in [t]his proceeding is, 

according to the statute, trying to decide whether or not there was sufficient [indicia] of 

reliability for a child under the age of 10 describing a sex act that was performed.” RP at 202-

03. It then addressed the Ryan factors, which are intended to assist the courts in determining the 

admissibility of child hearsay statements.

Based on Ryan factors 1 through 5, the trial court concluded that DE’s hearsay statements 

were admissible. The court made no findings related to factors 6 through 9.

The trial court then issued written findings of fact and conclusions of law regarding the 

child hearsay statements. As it did in its oral ruling, the court found that Ryan factors 1 through 

5 weighed in favor of admitting the hearsay statement. And it did not address factors 6 through 9 

other than to acknowledge in factor 7 that DE was available for cross-examination.

The trial court concluded that DE’s statements to Chilla, Rosetta, Will, McLeod, and 

Moomjian-Gjovik were admissible. The court also concluded that the admitted portions of the 

forensic interview also were admissible at trial under RCW 9A.44.120.

Bench Trial

During the bench trial, DE again denied that EA had sexually abused him. DE also 

testified that he had gotten in trouble because his allegations were a lie. He further testified that 

he had lied about EA because his uncle and grandmother had been fighting because his 

grandmother was stealing things and accusing the other family members of doing so.

Chilla, Rosetta, Stigall, Will, McLeod, and Moomjian-Gjovik testified consistently with 

their testimonies at the child hearsay hearing. The trial court also admitted the video of 

Moomjian-Gjovik’s forensic interview, which it had watched during the child hearsay hearing.
No. 57099-8-II

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EA’s only witness was EA. EA denied sexually assaulting DE. But he admitted that he 

would occasionally be left alone with DE and DE’s brother when their parents ran short errands.

The juvenile court adjudicated EA guilty of first degree child rape. EA appeals the 

adjudication of guilt.

ANALYSIS

EA argues that the trial court erred when it ruled that DE’s hearsay statements were 

admissible under RCW 9A.44.120(1). We disagree.

A. LEGAL PRINCIPLES

RCW 9A.44.120(1) states that the otherwise inadmissible hearsay statements of a child 

witness under the age of 10 are admissible in a criminal case when (1) the statements describe 

sexual or physical abuse of the child; (2) the court finds that the time, content, and circumstances 

of the statements provide sufficient indicia of reliability; and (3) either the child testifies at the 

proceedings or the child’s statements are supported with corroborative evidence of the act. State 

v. Kennealy, 151 Wn. App. 861, 880, 214 P.3d 200 (2009).

In determining whether the child witness’s statements are reliable, the trial court 

considers nine factors known as the Ryan factors. Kennealy, 151 Wn. App. at 880. These 

factors are

(1) whether there is an apparent motive to lie, (2) the general character of the 

declarant, (3) whether more than one person heard the statement, (4) the spontaneity 

of the statements, (5) the timing of the declaration and the relationship between the 

declarant and the witness, (6) whether the 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.

Id. (footnote omitted). For the child hearsay statements to be admissible, the trial court must find 

that these factors are substantially met, but all nine factors need not be satisfied. Id. at 881. And 
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“[n]o single Ryan factor is decisive and the reliability assessment is based on an overall 

evaluation of the factors.” Id. at 881.

Because the trial court has the opportunity to see and to evaluate the child and the other 

witnesses, it is in the best position to determine the reliability of child hearsay statements. State 

v. Pham, 75 Wn. App. 626, 631, 879 P.2d 321 (1994). As a result, “[t]he trial court is 

necessarily vested with considerable discretion in evaluating the indicia of reliability.” State v. 

C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003).

Accordingly, we review a trial court’s decision to admit child hearsay statements for an 

abuse of discretion. Kennealy, 151 Wn. App. at 879. “A trial court abuses its discretion when its 

evidentiary ruling is manifestly unreasonable or is based on untenable grounds or reasons.” Id. 

However, “[w]e may uphold a trial court’s evidentiary ruling on the grounds the trial court used 

or on other proper grounds that the record supports.” Id. When the trial court errs by 

misapplying the Ryan factors, the appellate court may affirm the admissibility of child hearsay 

statements “when the reliability of the statements at issue is apparent from the record.” State v. 

Stevens, 58 Wn. App. 478, 487, 794 P.2d 38 (1990).

We review a challenge to a trial court’s findings of fact to determine if substantial 

evidence supports them. State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014). 

Substantial evidence is evidence that is sufficient to persuade a fair-minded person of the truth of 

the premise stated. Id. at 106. The party challenging the finding of fact bears the burden of 

demonstrating that the finding is not supported by substantial evidence. State v. Smith, 185 Wn. 

App. 945, 957, 344 P.3d 1244 (2015). We review challenges to the court’s conclusions of law de 

novo. Homan, 181 Wn.2d at 106.
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B. FINDING OF FACT 5

EA argues that the trial court’s finding of fact 5 shows that the court erroneously believed 

that the child’s credibility is part of the Ryan analysis. We disagree.

Finding of fact 5 stated, “The Court considered whether there was a sufficient indicium 

of reliability to determine whether a child under the age of 10 describing a sex act that was 

performed.” Clerk’s Papers (CP) at 38.

RCW 9A.44.120(1) provides that under certain circumstances hearsay statements made 

by a child under 10 years old that describe acts of sexual contact performed on or with the child 

by another are admissible if the court finds “that the time, content, and circumstances of the 

statement provide sufficient indicia of reliability.” Finding of fact 5 appears to be an attempt to 

reflect the trial court’s opening statement during its oral ruling in which it acknowledged RCW 

9A.44.120(1). In its oral ruling, the court stated, “So the Court, in [t]his proceeding is, according 

to the statute, trying to decide whether or not there was sufficient [indicia] of reliability for a 

child under the age of 10 describing a sex act that was performed.” RP 202-03.

Although the written finding may have been poorly drafted, we conclude that finding of 

fact 5 demonstrates only that the trial court was considering the requirements of RCW 

9A.44.120(1), not that the court misunderstood the Ryan analysis.

C. APPLICATION OF RYAN FACTORS

EA argues that the trial court erred in applying the Ryan factors, and that a proper 

application leads to the conclusion that DE’s hearsay statements were not admissible under RCW 

9A.44.120(1). We disagree.
No. 57099-8-II

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1. Factor 1: Apparent Motive to Lie

The trial court addressed the first Ryan factor, whether EA had an apparent motive to lie, 

in finding of fact 6.a. Finding 6.a stated,

i. There is not a strong motive to lie by D.E.

ii. Avoiding a punishment for cutting in line and making up an allegation of a 

sex offense is disproportionate, even in a child’s mind, for trying to escape 

whatever punishment might come from cutting in line.

iii. Therefore, the Court does not find a strong motive to lie.

iv. This factor weighs in favor of admission of D.E.’s statements.

CP at 38.

EA argues that finding of fact 6.a shows that the trial court applied the wrong legal 

standard because factor 1 does not (1) require a strong motive to lie before the court can find that 

this factor weighs against admission of the child hearsay statements, or (2) require the court to 

assess whether the statement is a proportionate reaction.

EA is correct that factor 1 does not require a “strong” motive to lie. This factor requires 

that the trial court consider only whether the declarant had an apparent motive to lie. Keneally, 

151 Wn. App. at 880. But the remainder of finding 6.a shows that this error was irrelevant to the 

court’s determination that factor 1 weighed in favor of the admission of DE’s hearsay statements.

In finding 6.a.ii the trial court concluded that the accusation of abuse was so 

disproportionate to the potential punishment for attempting to cut in line – DE having to return to 

his place in line – that it was not reasonable to conclude that DE made the statement for the 

purpose of avoiding punishment. The trial court can consider the reasonableness of the potential 

motive when examining this factor and whether a response is proportionate or disproportionate is 

relevant to reasonableness. See State v. Leavitt, 111 Wn.2d 66, 74, 758 P.2d 982 (1988) 

(although testimony suggested the child had a motive to lie, this potential motive was not 

persuasive because it was not reasonable).
No. 57099-8-II

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The avoidance of punishment certainly can provide a motive to lie. See Ryan, 103 Wn.2d 

at 168, 176 (the desire to avoid punishment for having candy was a motive to lie). But the trial 

court’s determination that under the facts of this case lying about sexual abuse would be an 

unreasonable response to being chastised for cutting in line was within the court’s discretion.

We conclude that the trial court did not abuse its discretion in applying factor 1 despite 

misstating the factor.

2. Factor 2: General Character of the Declarant

The trial court addressed the second Ryan factor, DE’s general character, in finding of 

fact 6.b. Finding 6.b stated,

i. D.E. testified in front of the court, was very hard to understand, and was 

difficult to follow.

ii. D.E. suffers from ADHD for which he is medicated. Despite that 

medication D.E. was still very difficult to follow at times.

iii. However, he was able to explain through questioning to the Court that it 

was wrong to tell lie[s], what the difference was between a falsehood, or a 

non-falsehood, or a lie or a truth, and understood that it was wrong to tell a 

lie.

iv. D.E. was able to recall simple matters with some detail, not good at times, 

which is not surprising based on his age which makes it difficult to discern 

time.

v. D.E. was able to discern certain events that were important to him, certain 

toys that were important, and when approximately he received those toys.

vi. The Court does find that the declarant’s general character was one that was 

of a competent nature to testify and no inherent deceitful nature that was 

testified to other than normal behavior by someone of D.E.’s age[.]

vii. D.E.’s character was not one that causes concern that his disclosures were 

inherently unreliable.

vii[i]. This factor weighs in favor of admission of D.E.’s statements.

CP at 38-39 (emphasis added).

EA argues that findings 6.b.vi and 6.b.vii demonstrate that the trial court applied an 

incorrect standard because this factor did not require the court to find that the child had an 

inherently deceitful nature or that the child’s character was one that causes concern that the 
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disclosures were inherently unreliable. And he asserts that these standards required levels of 

untrustworthiness that were too high. He argues that the court should have assessed only DE’s 

general reputation and character for truthfulness.

The second Ryan factor is the declarant’s general character. Kennealy, 151 Wn. App. at 

880. “When assessing a child’s general character, [the courts] look to whether the child has a 

reputation for truthfulness.” Id. at 881. A reputation is “the estimation in which one is generally 

held: the character commonly imputed to one as distinct from real or inherent character.” 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1929 (2002). Because one’s reputation 

can be distinct from one’s inherent nature, the trial court’s reference to DE’s “inherent” nature in 

finding 6.b.vi and “inherently” unreliable in finding 6.b.vii was incorrect.

But the record shows that DE did not have a reputation for untruthfulness at school. And

it also shows that although DE may have told some lies at home, his father testified that his 

behavior at home was similar to that of other children of the same age. These facts are sufficient 

to support the conclusion that DE’s reputation for truthfulness was not such that it made his 

disclosures unreliable.

EA also argues that it was error for the trial court to evaluate DE’s testimonial 

competence in finding 6.b.vi. EA contends that a child witness’s testimonial competency is a 

separate determination that is not relevant to any of the Ryan factors.

In C.J., the Supreme Court held that testimonial competency is not a prerequisite to 

admissibility of child hearsay under RCW 9A.44.120. 148 Wn.2d at 683-84. The trial court’s 

discussion of DE’s testimonial competence is irrelevant to factor 2. But the inclusion of this 

extraneous analysis is irrelevant.
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Although the trial court erred in one aspect of its analysis of factor 2, we conclude that 

this factor either weighs in favor of admissibility or is neutral. But as noted above, no one factor 

is determinative. Kennealy, 151 Wn. App. at 880.

3. Factor 3: Whether More Than One Person Heard the Statement

The trial court addressed the third Ryan factor, whether more than one person heard the 

statement, in finding of fact 6.c. CP 39. Finding 6.c stated:

i. No one person at one time heard the statements that were testified to. However, 

there were a number of individuals that heard the same disclosure that were 

very similar in nature, [i]f not somewhat identical. These statements were 

testified to by the original substitute teacher, the school counselor, the sexual 

assault evaluation nurse, and during the forensic interview.

ii. Multiple individuals heard very similar, even though not the exact same 

disclosure, that were only different in time, being made.

iii. This factor weighs in favor of admitting D.E.’s statements.

CP at 39.

EA argues that DE’s statements to Rosetta and the later adults do not denote reliability 

because they were the result of DE being told to repeat what he told Chilla. But DE did more 

than repeat what he said to Chilla. Each time DE talked about the abuse he provided the same 

information and he elaborated on this information and provide additional information. This 

demonstrates that DE was not just telling the later adult what he had originally said to Chilla. 

And when a child tells similar stories to several individuals over time, “the hearsay statement is 

more reliable.” Kennealy, 151 Wn. App. at 883.

We conclude that the trial court did not abuse its discretion in applying factor 3.

4. Factor 4: Spontaneity

The trial court addressed Ryan factor 4, whether the statements were spontaneous, in 

finding of fact 6.d. Finding 6.d stated:

i. The original disclosures by D.E. appear to have been made spontaneously,

jarringly so.
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ii. The Court finds it difficult to connect how the instruction to get in line, or get 

back in line, would result in a disclosure of this nature. However, that is what 

D.E. testified to and the Court finds that is what the facts reflect show, that the 

disclosure was spontaneous in nature.

iii. Additionally, the video of forensic interview, and the discussion of going to 

school, and the testimony from D.E. that he would not be going to that school 

anymore, because of his disclosures, was spontaneous. There was no coaching, 

or leading questions, which broached the subject of the disclosures until the 

child broached those disclosures. This finding was focused only on the 

disclosures that were made by D.E.

iv. This factor weighs in favor of admitting the statements that D.E. made.

CP at 39-40.

EA argues that DE’s original statement to Chilla was not spontaneous because, 

considered in context, it is clear that DE was making the statement as a way of deflecting 

attention away from himself and not, as the court found, as a spontaneous disclosure. But as the 

trial court found when addressing factors 1 and 4, DE’s disclosure of sexual abuse was so 

entirely unrelated to his behavior or the potential consequences of his behavior, that the 

argument that DE made the allegations to deflect attention away from his transgression is not 

reasonable.

EA also argues that DE’s responses to Moomjian-Gjovik’s questions were not 

spontaneous because her questions were leading. “[S]tatements made in response to questioning 

are spontaneous so long as the questions are not leading or suggestive.” Kennealy, 151 Wn. App. 

at 883. Moomjian-Gjovik’s questions when she interviewed DE were open ended and did not 

suggest that DE should respond with a statement about sexual conduct.

We conclude that the trial court did not abuse its discretion in applying factor 4.

5. Factor 5: Timing of Statements and Relationship Between Declarant and Witness

The trial court addressed Ryan factor 5, the timing of the statements and the relationship 

between the declarant and the witness, in finding of fact 6.e. Finding 6.e stated:
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i. D.E. was unable to put any type of book-end on the timing that was involved. 

However, D.E. did testify that all of the related parties were living together at 

the time.

ii. D.E. was subject to cross-examination and did not affirm, and did disavow, the 

statements that were made, and there are likely reasons for that. However, this 

Court does find that the trier of fact should have that information when it is 

making its determination regarding whether or not these incidents did occur, 

beyond a reasonable doubt.

CP at 40.

EA argues that the trial court erred as a matter of law because it addressed whether the 

accusations matched the charging period rather than whether DE’s relationship to those he 

disclosed to and found that the circumstances established trustworthiness.

The trial court’s finding regarding timing is vague and does not really address when the 

disclosure was made in relation to when the sexual abuse occurred. Factor 5 also requires the 

trial court to “consider when the child’s statement was made to a hearsay witness and what the 

witness’s relationship is to the child.” Kennealy, 151 Wn. App. at 884. The trial court’s findings 

on this factor did not address DE’s relationship with those he made the disclosures too. And 

finding 6.e.ii has nothing to do with this factor. Accordingly, EA is correct that this finding is 

erroneous in that is does not really analyze factor 5.

But we can determine, based on this record, that this factor weighs in favor of 

admissibility of the child hearsay statements. Kennealy, 151 Wn. App. at 879; Stevens, 58 Wn. 

App. at 487. DE’s disclosures to Chilla and Rosetta were stated in the present tense, suggesting 

that the abuse was ongoing at the time of the disclosures. And when Moomjian-Gjovik asked 

DE when EA stopped asking him to suck on his penis, DE responded that it did not stop. 

Therefore, the timing of the disclosures weighs in favor of admissibility.

Regarding the relationship between DE and the witnesses, the record shows that DE 

made three of the disclosures to school officials and a nurse. Even though Chilla, Rosetta, and 
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McLeod did not know DE well, they still were authority figures in positions of trust in relation to 

DE. And when the witness to whom the child made his or her disclosures is in a position of trust 

with the child, “this factor is likely to enhance the reliability of the child’s statement.” Kennealy, 

151 Wn. App. at 884.

Accordingly, although the trial court’s findings on this factor were not correct, the 

evidence demonstrates that factor 5 weighs in favor of admissibility.

6. Factors 8 and 9: Possibility of Faulty Recollection and Surrounding Circumstances

Other than a finding that DE was available for cross-examination, the trial court made no 

findings regarding factors 6 through 9.2 EA challenges the lack of findings for factor 8, whether 

the possibility of DE’s recollection being faulty is remote, and factor 9, whether the 

circumstances surrounding the statements give no reason to suppose that the declarant 

misrepresented the defendant’s involvement. EA argues that the trial court’s failure to address 

factors 8 and 9 was error because these factors were crucial in this case and they clearly were 

unmet.

Factors 8 and 9 are already addressed in factors 4 and 5 and “are not very helpful in 

assessing the reliability of child hearsay statements in most sexual abuse cases.” State v. 

Henderson, 48 Wn. App. 543, 551 n. 5, 740 P.2d 329 (1987). Also, it is not necessary that every 

factor be satisfied; a court properly exercises its discretion if the factors are “substantially met.”

State v. Swan, 114 Wn.2d 613, 652, 790 P.2d 610 (1990).

 

2 EA does not argue that the trial court erred in making no findings regarding factor 6, whether 

the statements contained express assertion of past facts, or factor 7, whether the crossexamination could not help to show the declarant’s lack of knowledge.
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Factors 1 through 5 support the trial court’s conclusion that DE’s hearsay statements 

were admissible. Accordingly, we conclude that the trial court did not err in declining to make 

findings regarding factors 8 and 9.

7. Effect of DE’s Recantation

EA argues that the fact DE recanted demonstrates that his statements were unreliable and 

therefore inadmissible. He emphasizes that DE’s hearsay statements were untrustworthy when 

he could state that he was sexually abused and then turn around and deny that abuse occurred. 

We disagree.

A recantation does not automatically render child hearsay evidence inadmissible. See 

State v. Clark, 139 Wn.2d 152, 153, 985 P.2d 377 (1999); State v. Young, 62 Wn. App. 895, 900, 

802 P.2d 829, 817 P.2d 412 (1991); State v. Madison, 53 Wn. App. 754, 759, 770 P.2d 662 

(1989). Instead, as with any recantation, the trial court can “weigh the credibility of a 

recantation against the evidence that a statement is reliable.” State v. Young, 160 Wn.2d 799, 

808, 161 P.3d 967 (2012).

Here, DE’s recantation came nine months after his original disclosures. And it is 

reasonable, given DE’s family’s strong, emotional reactions to the disclosures, that DE was 

under considerable pressure to recant. Accordingly, the trial court did not abuse its discretion 

when it admitted the hearsay evidence despite DE’s recantation. See Madison, 53 Wn. App. at

759.

8. Summary

We acknowledge that some of the trial court’s findings were erroneous or could have 

been stated differently. But for the child hearsay statements to be admissible, the trial court must 

find only that the Ryan factors are substantially met. Kennealy, 151 Wn. App. at 881. And the 
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standard of review is abuse of discretion. Id. at 879. We hold that an analysis of the Ryan

factors establishes that the trial court did not abuse its discretion in ruling that DE’s hearsay 

statements were admissible.

CONCLUSION

We affirm EA’s adjudication of guilt.

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.

MAXA, P.J.

We concur:

LEE, J.

VELJACIC, J.