### FILED MAY 24, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

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



### v. VALENTIN I. MENDOZA, Appellant. ) ) ) ) ) ) ) ) ) No. 32902-0-111

UNPUBLISHED OPINION

FEARING, C.J.

- Valentin Mendoza appeals his conviction ofone count ofchild rape. On appeal, Mendoza challenges the introduction ofhearsay statements ofthe victim, the sufficiency ofthe evidence to convict, and the sufficiency ofthe findings of fact. We affirm the conviction. FACTS Adalia Gonzalez, born onNovember 15, 2005 in Sunnyside, is the crime victim. Her olderbrother is Marcos Rivera, born August 8, 2001. The children's mother is AngelicaRivera-Benitez and her maternal grandmother is DelfinaBenitez. Adalia's mother has six younger brothers, including defendant ValentinMendoza, bornMay 28,No. 32902-0-III State v. Mendoza

1998. Thus, Marcos and Adalia have uncles near in age. Adalia Gonzalez and Marcos Rivera are fictitious names. The residences ofAngelica Rivera-Benitez and her childrenhold relevance. Rivera-Benitez and her children, including Marcos and Adalia, moved to California in January 2006, months after Adalia's birth. In October 2007, the family returned to Washington State and resided with Angelica's mother, DelfinaBenitez. The family moved backto California in February 2008. In February 2009, Angelica Rivera-Benitez and her children moved to Grandview and lived with Angelica's cousin. In May 2009, they moved into an apartment on Cemetery Road in Sunnyside. Defendant ValentinMendoza lived with Rivera-Benitez, Adalia, and Marcos for two months during the fall of2012. In November 2012, Marcos Rivera told his mother, AngelicaRivera-Benitez, of Valentin Mendozaharming Adalia. Adaliawas then six or seven years ofage. Adalia cried while Marcos told his mother, and, when Rivera-Benitez asked Adalia ifMarcos' comments were accurate, Adaliaresponded affirmatively. Rivera-Benitez accompanied Adalia to a physician and told the doctor that she believed Adalia had been molested. In February 2013, Amy Gallardo, Yakima County Prosecuting Attorney's Office investigator, conducted a child forensic interview ofAdalia. During the interview, Adaliatold Gallardo that Valentin Mendoza made her lick "his thing." 2 Tr. of Proceedings (TP) at 229. According to Adalia, at least one ofthese occurrences 2No. 32902-0-III State v. Mendoza happened after the family returned from California, when she was four years ofage, and when she stayed with her grandmother. She affirmed later that the first time that Valentin Mendoza made her lick his privates was at her grandmother's home. Adaliareported that she told Valentin Mendoza "no," and he respondedthathe would inform Adalia's mother that Adalia "made me do it." 2 TP at 230. Adalia did notreport Mendozato her mother, because Adalia thought her mother only believed older childrentold the truth. Adalia Gonzalez also reported to Amy Gallardo during the interviewthat, after or during one occurrence, she was in herbig brother's room, and that other occurrences happened when the family got an apartment. The last time she licked Valentin Mendoza's "thingy" was on herbrother's bed. 2 TP at 232. Adalia also reported that Mendoza's conduct "finished" when, in January, she told her mother and the mother spoke to a doctor. 2 TP at 230. When describing the particulars ofthe occurrences to Amy Gallardo, Adalia Gonzalez told Gallardo that "[h]e [Mendoza] took down his pants a little bit." 2 TP at 239. She explained his "thing"tasted nasty, it tasted like "chocolate milk mixed with

cow poo," it smelled like "dogs when they're dirty," and looked like something big and hairy, "like a grizzly bear." 2 TP at 244. She compared it to milking a cow. Adalia drew

apicture ofMendoza's "thing" and told Gallardo that "alittle bit ofslobber" or "alittle bit ofwet stuff' came out ofhis private. 2 TP at 245-47. Adalia said she stopped doing "it"because she did not like "it," and he would "putit away." 2 TP at 245-47. 3No. 32902-0-111 State v. Mendoza

PROCEDURE The State ofWashington charged Valentin Mendoza, injuvenile court, with two counts ofchild rape andtwo counts ofchild molestation, with each count alleged to have occurredbetween October 1and November 12, 2012. The information did not identify the specific date ofany encounter. The State later amended the informationto allege that all four crimes occurredbetween January 1, 2010 andNovember 12, 2012, without specifying discrete dates for any ofthe four crimes. The information omitted any reference to the place ofthe crime otherthan withinthe State ofWashington. Duringtrial, the State identified count one ofrape occurring at DelfinaBenitez's home. Benitez is Adalia's grandmother and Valentin Mendoza's mother. Counttwo allegedly happened at Adalia's home. Atthe beginning oftrial, the court conducted a hearing on the capacity ofAdalia Gonzalez to testify. The trial courtruled that Adaliapossessed capacity. The trial court also ruled that she would listen to the interview ofAdalia conductedby the prosecuting attorney's investigator. Attrial, Adalia was eight years old. Adalia Gonzaleztestified at the trial. She declaredher date ofbirth, identified Valentin Mendoza, and stated they were not married. She testified thatMendoza made her lick his penis when he was at her own house and ather grandmother's house. Although Adalia averred thatMendoza made her lick his penis, she couldnotprovide many details about the encounter. The State showed her a picture she drew during her 4No. 32902-0-111 State v. Mendoza

interview withAmy Gallardo butAdalia did notremember it. Adalia saidthat Mendoza'spenis tasted nasty and felt weird but did notprovide more description. Amy Gallardotestified attrial and the courtplayed the recording ofherinterview ofAdalia. Duringtrial, AngelicaRiver-Beniteztestified in response to the State's questioning: Q. Okay. In 2010 where did Delfina [Adalia's grandmother] live? A. She lived

- Q. Doyouremember? A. I don'tremember where she lived. It's been a longtime. Q. Okay. A. 1-1-1believe she still lived in Granger, I don'tknow. Q. Butyou did not live with her? A. No, we did not live together, no. Q. Andthe kids did not live there withher? A. No. Butthey would go visit. They would spend nights. Q. Your mother, Delfina, had both-Valentin, as well as Juan living with her correct? A. Yes. 1TP at 189. Atthe close oftrial, the trial court, at the concession ofthe State, dismissed the two counts ofchild molestation. The trial court adjudged Valentin Mendoza guilty of count one and not guilty ofcounttwo ofrape. Count one allegedly occurred at Adalia's grandmother's residence. The trial court considered the child hearsay only as to count

one.

5No. 32902-0-111 State v. Mendoza

The trial court filed written findings offact and conclusions oflaw. Because Valentin Mendoza assigns error to the sufficiency ofthe findings, we quote most ofthe important findings verbatim. The entire findings offact are found in an appendix

.

. . . [T]he court now enters the following: I. FINDINGS OF FACT 1.2 During January 1, 2010 and November 12, 2012, [Adalia] would have been betweenthe ages of4 and 6 years old. 1.6 [Adalia] testified that this happened when she was four and had moved back from California. [Adalia] told the Courtthat this happened at Grandma Delfina'shouse in Granger, Washington when she lived there. 1.7 [ Adalia] also indicatedthat Respondent Mendozahad made her lick his penis in Grandma'sroom and that it stopped when Grandma was commg. 1.12 [ Adalia] testified that she did notrecognize the drawing, State's 1, but then stated that she "drewweird when I was little." From her statement, the Court concludedthat [ Adalia] did recognize the drawingbut that she wasn'tvery happy with it now that she is older. That she did remember drawing a picture for Ms. Gallardo but didn'tknow what it was. 1.13 [ Adalia] testified that she did not know how many times she licked it. 1.15 [ Adalia] stated the last time it happened was when she was six years oldbut gave no other details. She stated she remembers, but doesn't know how to explain,justknows. 1.22 Angelica Benitez-Riveraprovidedthe Courtwith a general time frame ofevents. She testified that [ Adalia] was born in Sunnyside, Washington but then moved to California in January of2006. They returned to Washington State for a while and then later movedbackto California in February in 2008. The family moved back from California in February of2009 and moved in with a cousin. They later moved into an apartment in Sunnyside in May of2009. 6No. 32902-0-111 State v. Mendoza

1.23 Benitez-Rivera confirmedthat GrandmaDelfinaBenitez lived in Granger during this time and that [ Adalia] would frequently stay overnight at her grandmother's. Respondent Mendoza was living with Delfina at this time. 1.24 Angelica Benitez-Rivera explainedthat Respondent Mendoza would frequently visit her home; and that he lived there during August/September of2012. 1.31 [ Adalia] told Ms. Gallardo that the first time it happened was at Grandma Delfina's house in Granger and the last time was at her home in Sunnyside. 1.36 [Adalia] drew a picture for Ms. Gallardo (State's 1) demonstrating whathappened. Clerk's Papers (CP) at 144-49. The conclusions oflaw stated: 2.1 The Court concludes beyond a reasonable doubt that the respondent had sexual intercourse with [ Adalia]; 2.2 The Court concludes that the sexual intercourse occurred between January 10, 2010 and November 12, 2010; 2.3 The Court concludes that [ Adalia] was less than twelve years old at the time ofthe sexual intercourse; 2.4 The Court concludes thatthe respondent and [Adalia] were not married or in a State registered domestic partnership at the time ofthe sexual intercourse; 2.5 The Court concludes that [Adalia] was at least twenty-four months younger than respondent Mendoza; and 2.6 This took place in Yakima County, Washington. CP at 150. LAWANDANALYSIS Confrontation Clause Valentin Mendoza contends thatthe trial court violated the constitution's confrontation clause by admitting into evidence statements by Adalia Gonzalezto the 7No. 32902-0-111 State v. Mendoza

forensic interviewer without an opportunity for him to cross-examine Adaliaregarding those statements. The State responds that Adalia's hearsay statements were admissible since she testified attrial, at least regarding the one count onwhich the trial court convicted Mendoza. RCW 9A.44.120, the child rape hearsay statute, allows admission ofa child'sprior statements, under limited circumstances. The statute declares, in pertinentpart: A statement made by a child when under the age often describing any act ofsexual contactperformed with or onthe child by another [or] describing any attempted act ofsexual contact with or on the child by another

... that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or courtrule, is admissible in evidence in

... criminal proceedings, includingjuvenile offense adjudications, in the courts ofthe state ofWashington if: (1) The court finds, in a hearing conducted outside the presence of thejury, that the time, content, and circumstances ofthe statementprovide sufficient indicia ofreliability; and (2) The child either: (a) Testifies at the proceedings; or (b) Is unavailable as a witness: PROVIDED, That whenthe child is unavailable as a witness, such statement may be admitted only ifthere is corroborative evidence ofthe act. Despite the applicability ofthe childhearsay statute, this courtmust assess the constitutionality ofthe use at trial ofAdalia's out ofcourt statements. Under the Sixth Amendment's confrontation clause, "[i]n all criminal prosecutions, the accused shall enjoy the right

...to be confronted withthe witnesses against him." U.S. CONST. amend. VI. Underthe confrontation clause, testimonial hearsay is inadmissible unless either (1) the declaranttestifies at trial or (2) the declarant 8No. 32902-0-III State v. Mendoza

is unavailable and the defendant had aprior opportunity for cross-examination. Crawfordv. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Testimonial statements include those made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a latertrial. State v. Fisher, 130 Wn. App. 1, 13, 108 P. 3d 1262 (2005). A child's statements in the course ofa forensic interview are testimonial. State v. Beadle, 173 Wn.2d 97, 110, 265 P.3d 863 (2011). The right to confrontation is notviolated by admitting a declarant's hearsay statements as long as the declarant testifies as a witness and is subject to full and effective cross-examination. State v. Clark, 139 Wn.2d 152, 159, 985 P.2d 377 (1999); State v. Price, 158 Wn.2d 630,640, 146 P.3d 1183 (2006). The confrontation clause guarantees only an opportunity for effective cross-examination, not cross-examinationthat is effective in whatever way, and to whatever extent, the defense might wish. State v. Price, 158 Wn.2d at 642. State v. Price, 158 Wn.2d 630 (2006) controls this appeal. Charles Price molested R.T. at a daycare run by Price's wife. At age six, R.T. reported the abuse to her mother and incriminated Price during a recorded interview at a sexual assault clinic. The State charged Price with first degree child molestation, and the trial courtheld a pretrial child hearsay hearing regarding R.T.'s statements to her mother and the interviewer. The court found R.T. competent and ruled that the child hearsay exception applied. When the State 9 

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'No. 32902-0-III State v. Mendoza questioned R.T. about the abuse at trial, she testified that she forgot. R.T.'s mother and the clinic interviewertestified to statements made bythe child, and thejuryheardthe audio recording ofthe interview. Ajury convicted Price ofmolesting R.T. On appeal, Charles Price complainedthat R.T.'s failed memoryprevented an opportunity to confront her. Our Supreme Court disagreed and heldthatR.T.'s out of court statements did notviolate the confrontation clause. The courtreasoned: R.T. was physicallypresent in the courtroom and she confronted Price face to face; she was competentto testify andtestifiedunder oath; the defense retained the full opportunity to cross-examine her and in fact called attention to her lack ofmemory in closing; andthejudge,jury, and defendant were able to viewR.T.'s demeanor and body language while she was onthe stand suchthatthey could evaluate for themselves whetherR.T. was being truthful abouther lack ofmemory. State v. Price, 158 Wn.2d at 650. Underthe reasoning ofState v. Price, the trial court correctly admittedthe remarks ofAdalia Gonzalez during her interviewwith Amy Gallardo. Duringtrial, Adaliawas physically present in the courtroom and confronted Valentin Mendoza face to face. Even though Adalia's trial testimony did not closely correlate with herremarks during her interview with Gallardo, the State questioned her abouther conversation with Gallardo and about the actual abuse. Mendozahadthe opportunity to call attention to the differences betweenher in-court testimony and her out-of-court interview. Thetrial court viewed Adalia's demeanor andbody language while she testified and could evaluate her testimony for veracity. 10No. 32902-0-111 State v. Mendoza Sufficiency ofEvidence Valentin Mendoza contends the evidence was insufficientto support his conviction. Inparticular, Mendoza challenges the trial court's finding offact 1.23 that, during the time ofthe crime, grandmother Delfina Benitez lived in Granger, Adalia frequently stayed overnight at the home, and Mendoza livedwithBenitez at this time. The State responds that Angelica Rivera-Benitez provided testimony to supportthe finding and the testimony suffices to supportthe conviction. We agree with the State. Evidence is sufficient ifa rational trier offact could find each element ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Both direct and indirect evidence may supportthejury'sverdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor ofthe State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier offact weighs the evidence andjudgesthe credibility ofwitnesses. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). In focusing on finding 1.23, Valentin Mendoza argues that Angelica RiveraBenitez did not testify that Adalia "frequently" stayed overnight at her grandmother's home. Nevertheless, Angelica Riveratestified that Adalia and her other children spent the night at Benitez's home. The State did not need to prove frequent stays at the grandmother's residence. Valentin Mendozahad ample opportunity to rape Adalia at the grandmother's home. 11No. 32902-0-III State v. Mendoza During trial Adalia Gonzalez testified that, when she was four years old, her uncle Valentin Mendoza first made her "lickhis penis" at her grandmother's home. 1TP at 80. She testified that she was born on November 15, 2005, making her four years old from November 15, 2009 to November 15, 2010. Mendoza was born May 28, 1998, more than 24 months before Adaliawas born. Adaliatestified that she was not married to Mendoza. On this evidence alone, a rational trier offact couldhave found each element ofthe crime beyond a reasonable doubt. SufficientFindings Valentin Mendoza contends the trial court failed to enter findings sufficient for appellate review becausethe trial court did notresolve conflicts in the evidence. We disagree that the findings lack sufficiency. We also disagree that the trial court must resolve conflicts in the evidence through its findings offact. UnderJuCR 7.11 

### (c) Decision on the Record. Thejuvenile shall be found guilty or not guilty. The court shall state its findings offact and enter its decision on the record. The findings shall include the evidence relied upon by the court in reaching its decision. 

### (d) Written Findings and Conclusions on Appeal. The court shall enter written findings and conclusions in a case that is appealed. The findings shall state the ultimatefacts as to each element ofthe crime and the evidence upon which the court relied in reaching its decision

.... (Emphasis added.) Contraryto Valentin Mendoza's contention, the rule states nothing about resolving conflicts in the testimony.

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JuCR7.11 requires the courtto declare the ultimate facts as to each element ofthe crime and evidence onwhich the trial court relies. Ultimate facts are facts necessary to determine issues in the case, as distinguished from evidentiary facts supporting them. Ultimate facts include logical conclusions deduced from primary evidentiary facts. State

v. Alvarez, 128 Wn.2d 1, 15, n.15, 904 P.2d 754 (1995); State v. Roggenkamp, 115 Wn. App. 927, 948-49, 64 P.3d 92 (2003) affd, 153 Wn.2d 614, 106 P.3d 196 (2005). The trial court entered conclusions oflaw that declared all elements ofrape ofa child to be established beyond a reasonable doubt. A finding offact erroneously described as a conclusion oflaw is reviewed as a finding offact. Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986). JuCR 7.11 demands thatthe court, in its findings, include the evidence relied on by the court in reaching its decision. ValentinMendoza argues thatthe trial court failed to provide a sufficient record for appellate review because each finding merely recites the evidence presented by various witnesses without adopting certain facts. We read the findings to the contrary. The openingparagraph and closingparagraph ofthe findings declare the testimony listed in the exhaustive findings offact sectionto be the court's findings. Each ofthe trial court's findings offact is apiece ofevidence the trial court considered. Valentin Mendoza may claimthe trial court erroneously concludedthatAdalia Gonzalez lived with her grandmother during 2010, whenthe evidence shows Adalia lived 13No. 32902-0-111 State v. Mendoza

with her grandmother only between October 2007 and February 2008. Nevertheless, the trial court made no such finding. The trial court found that Adalia sometimes stayed overnight with her grandmother in 2010, when a rape occurred. CONCLUSION We affirm Valentin Mendoza's conviction for one count ofchildrape. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, butitwill be filed for public recordpursuantto RCW 2.06.040. 

# :;p,, 5 Fe~\ WE CONCUR:

Lawrence-Berrey, J.

14No. 32902-0-111 State v. Mendoza

APPENDIX

... [T]he court now enters the following: I. FINDINGS OF FACT 1.1 [Adalia] testified thatherbirthday was November 15, 2005. 1.2 During January 1, 2010 and November 12, 2012, [Adalia] would have beenbetweenthe ages of4 and 6 years old. 1.3 [ Adalia] identified the respondent [Valentin Mendoza] as her uncle. 1.4. [Adalia] indicated in her interview with Ms. Gallardo that the respondent was 13 and almost in college. 1.5 [Adalia] told the Court she was not married to the Respondent Mendoza. 1.6 [ Adalia] testified thatthis happened when she was four and had moved back from California. [ Adalia] told the Courtthat this happened at Grandma Delfina's house in Granger, Washington when she lived there. 1.7 [ Adalia] also indicatedthatRespondent Mendozahad made her lick his penis in Grandma's room and that it stopped when Grandmawas coming. 1.8 [ Adalia] testified that Respondent Mendoza made her do it even though she did notwant to do it. Respondent had convinced her that he would tell her mom that it was her idea and [ Adalia] was afraid she would be the one to get into trouble. 1.9 [Adalia] testified that she told [Marcos] and J.P.M. in the kitchen at her mom's house but [Adalia] is not sure when this happened. 1.10 [ Adalia] testified that [Marcos] told hermom what happened when they were at school and then she told her mom what happened. 1.11 [Adalia] testified thatwhen she licked the respondent's penis it tasted nasty, gross and felt weird. 1.12 [ Adalia] testified that she did notrecognize the drawing, State's 1, but then stated that she "drewweird when I was little." From her statement, the Court concluded that [Adalia] did recognize the drawing but that she wasn'tvery happy with it now that she is older. That she did remember drawing a picture for Ms. Gallardo but didn'tknow what it was. 1.13 [Adalia] testified that she did notknow how many times she licked it.

15No. 32902-0-111 State v. Mendoza

1.14 When cross-examined, [ Adalia] testified again that "it"was oval, felt gross, nasty and weird. 1.15 [ Adalia] stated the last time it happened was when she was six years oldbut gave no other details. She stated she remembers, but doesn't know how to explain,justknows. 1.16 [Marcos] testified that he was angry with Respondent Mendoza but that his anger was an excuse, that he was really disappointed in himself for notwatching overhis sister. 1.17 [Marcos] testified that he was mad at the respondent for leaving without an apology. 1.18 [Marcos] recalled a day when [ Adalia] was acting differently, that she didn'twant to eat or go outside. 1.19 [Marcos] recalled atime when [ Adalia] was sitting onthe respondent's lap at his home in Sunnyside, not at grandma's house. He thought this was suspicious because [Adalia] did not sit in anyone's lap but her dad's. 1.20 The Court found [Marcos] to be an honest witness because he was very careful to testify to things only he had direct knowledge/evidence of, even when pushed on cross-examination. 1.21 [Marcos] testified that he had confronted Respondent Mendoza twice about his suspicions. The first time he said Respondent Mendoza denied anything had happened between himselfand [Adalia]. The second time, he said the respondent said, "I'mnot going to lie anymore. I'm moving to my dad's because I can'ttrust myselfanymore." 1.22 Angelica Benitez-Riveraprovidedthe Court with a general time frame ofevents. She testified that [Adalia] was born in Sunnyside, Washington butthen moved to California in January of2006. They returned to Washington State for a while and then later movedbackto California in February in 2008. The family movedback from California in February of2009 and moved in with a cousin. They later moved into an apartment in Sunnyside in May of2009. 1.23 Benitez-Rivera confirmed that GrandmaDelfina Benitez lived in Granger during this time and that [ Adalia] would frequently stay overnight at her grandmother's. Respondent Mendozawas living with Delfina at this time. 1.24 Angelica Benitez-Rivera explainedthat Respondent Mendoza would frequently visit herhome; and thathe lived there during August/September of2012.

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1.25 Angelic Benitez-Rivera stated that she was atparent/teacher conferences in November of2012 when she heard [Marcos] and [Adalia] whispering and she asked them whatthey were talking about. When [Marcos] told his mother whathappened, [Adalia] looked scared and started to cry, tears were running down her face. When Angelica BenitezRivera asked her ifit was true, what [Marcos] had said, [Adalia] had said yes. AngelicaBenitez-Rivera stated she gave [Adalia] a shirt to wipe down the carbecause she was crying so much. 1.26 AngelicaBenitez-Rivera called the Grandview Farm Worker's Clinic and made an appointment. During the exam, [ Adalia] was scared and sad. 1.27 Afterthe doctor's appointment, Angelic Benitez-Rivera asked [Adalia] questions for about 20 minutes. The clinic had said both CPS and Law Enforcementwould be notified. Angelica Benitez-Riverawanted to be sure, did it happen orwas [Adalia] confused. [Adalia] told her mother that respondent Mendoza had made her lick his_ (and then [ Adalia] pointedto her groin area). [Adalia] told her motherthat Mendoza had rubbed on her, grabbed her and made her suck his wee wee. [Adalia] indicated thatthere was no vaginal or anal penetration. 1.28 Ms. Gallardo testified that she conducted a child forensic interview with [Adalia] at the courthouse onFebruary 28, 2013. 1.29 [ Adalia] told Ms. Gallardo that she was there because ofthe bad dreams she was having because ofwhat "Isma" did. Itwas determined that "Isma" is the nickname that [ Adalia] calledthe respondent. 1.30 Ms. Gallardo described [Adalia's] demeanor during that interview as age appropriate. She also indicatedthat there was a noticeable change in [ Adalia] when she was talking about the abuse versus during the rapport building stages. She noted that [Adalia's] voice would get quiet, sometimes cracked and sometimes reverted to baby talk. 1.31 [Adalia] told Ms. Gallardo thatthe first time ithappened was at GrandmaDelfina's house in Granger and the last time was at herhome in Sunnyside. 1.32 [Adalia] told Ms. Gallardo that she didn'ttell because she was afraid mom would "believe big kids over little kids." 1.33 The interview withMs. Gallardo elicited the following sensory details: (a) Thatthe respondenttold [Adalia] to think ofher favorite milkshake flavor and lick it; (b) That it tasted like chocolate milk mixed with cowpoo; (c) that it smelled like a dog when it was dirty; and (d) felt nasty like milking a cow. (Additionally, the court found that, although 17No. 32902-0-111 State v. Mendoza

there was no evidence in the record that [Adalia] had evermilked a cow, she gave a very convincing demonstration in the video.) 1.34 That when [ Adalia] was licking "it"the respondent would say "come on, come on, it's alright." And he would put it away when someone was coming. 1.35 [Adalia] told Ms. Gallardo that it looked like chocol<1:te, was big and hairy like a grizzly bear and that slobber orwet stuffwould come out. [ Adalia] would stop doing it when that happened, when waterwas coming from his privates. 1.36 [Adalia] drew apicture for Ms. Gallardo (State's 1) demonstrating what happened. 1.37 [Adalia] said that Respondent Mendoza only touched her and no one else. That [Adalia] felt really sad. That "Isma" was her uncle and she expressed concern that he was going tojailbutthat she wished it would stop. 1.38 Detective Layman testified that he interviewed the respondent on June 28, 2013 in Ephrata, Washington. 1.39 Present at the interview was respondent, respondent's father, Detective Layman and Detective Prieto. 1.40 Detective Layman described Respondent Mendoza body language during that interview as Mendozahaving his arms crossed, laughing at times and using air quotes when using the word "supposedly." 1.41 Respondent Mendozatold Detective Laymanthat the reason [ Adalia] knew about sucking/licking and her details ofevents came from the fact that her family talked about having babies all the time. 1.42 J.P.M. confirmed that Respondent Mendoza lived with Angelica Benitez-Rivera, [Marcos] and [Adalia] for a period oftwo months in the fall of2012. 1.43 The Court finds that "it/that" refers to sexual acts. The Court makes this finding that when eachperson was testifying, based on the context ofthe events they were describing and the surrounding circumstances, it was clearto the Courtthat those pronouns referto sexual acts. 1.44 That it is not contestedthat the licking or sucking ofMendoza's "thingy" constitutes sexual intercourse. 1.45 All the above took place in Yakima County Washington. CP at 144-50.

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