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

v. FIDEL BAUTISTA-GONZALEZ, Appellant. No. 71928-9- DIVISION ONE

UNPUBLISHED FILED: September 21, 2015 

### Cox, J. - A jury found Fidel Bautista-Gonzalez guilty of four counts ofrape 

### of a child inthe firstdegree. On appeal, he fails to demonstrate thatthe trial court abused its discretion in finding that one ofthe child victims was competent 

### to testify. He also fails to establish any reversible evidentiary error. We affirm. Andrea C. began a relationship withBautista-Gonzalez in 2009. For 

### several years, Andrea and her two young daughters, L.C. and W.C., lived intermittently withBautista-Gonzalez. Bautista-Gonzalezwould watch the girls while Andrea attended her regular evening AAmeetings. 

### In late November 2011, Andrea noticed thatfour-year-old L.C. had painful 

### blisters around her vagina and anus. L.C.'s physician diagnosed her withherpes simplex type 2. A follow-upexamination at Seattle Children's Hospital indicated that L.C. was experiencing a primary outbreak and had been exposed to the virus in recent weeks or months through anal contact. 

### Andrea and a hospital social worker contacted the police and Child Protective Services (CPS). Andrea also arranged a herpes testfor all ofthe menNo. 71928-9-1/2



### in herfamily. Andrea did not suspectthat Bautista-Gonzalez might have been involved. But Bautista-Gonzalez was the only man who tested positive for herpes. Andrea also learned that she had herpes. 

### As part ofthe CPS investigation, child interview specialist Carolyn Webster interviewed L.C. and W.C. in December 2011. Neither child disclosed any sexual abuse, but Webster and witnesses to the interview noted that L.C. refused to talk about Bautista-Gonzalez. At CPS's insistence, Andrea moved out of Bautista-Gonzalez's home and moved into her mother's home. At that point, CPS closed the case. In 2012, Andrea purchased her own home. At some point, Andrea 

### resumed her relationship with Bautista-Gonzalez. Bautista-Gonzalez regularly spentthe night atAndrea's house and cared for the two children while Andrea attended herAAmeetings. InNovember 2012, the couple broke up forthe last time, although Bautista-Gonzalez continued to visit Andrea to help out and 

### babysitthe children. Inearly 2013, Andrea asked Bautista-Gonzalezto coverthe windows with insulating plastic. Bautista-Gonzalez also watched the children at the same time. Andrea had no contact with Bautista-Gonzalez after January 19, 2013. 

### Inearly February 2013, Andrea was lying inbed and reading to the girls. L.C. was five years old and W.C. was eight. W.C. asked Andrea, "mama, do you 

### have what boys have?"1 Inresponse to Andrea's question, W.C. said, "boys

1Report ofProceedings (March 3, 2014) at 6.

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### have the bananas and girls have the flowers."2 L.C. added, "just like Fidel has."3 Andrea asked L.C. ifshe had seen Bautista-Gonzalez's penis. L.C. replied, "when he used to do uh-uh-uh to us," a term that L.C. and W.C. used for having sex.4 L.C. explained that "it only hurt when he did it on my butt, not when he did 

### it on my flower."5 W.C. indicated that Bautista-Gonzalez had also done "uh-uhuh" to her and that it only hurt "when he would do it in my butt."6 On the following day, Andrea reported the conversation to the police. Child interview specialist Carolyn Webster scheduled interviews with L.C. for two 

### days later. But before the interview, Andrea became concerned thatthe children 

### might not reportthe abuse, as had happened during the 2011 interview. Ignoring the police requestthat she not question L.C. and W.C. further before the interviews, Andrea borrowed a video camera. Andrea then filmed the girls after 

### asking them to repeatwhat they had told her about Bautista-Gonzalez. During the interview, L.C. added that one ofthe incidents of abuse occurred on the day 

### that Bautista-Gonzalez had put plastic on the windows. Andrea gave the video recording to the police. Invideotaped interviews, both L.C. and W.C. told Websterthat Bautista-Gonzalez had sexually abused them on several occasions.

2ld 3]d 4 Id at 8. 5 Id at 12. 6 Id.No. 71928-9-1/4

The State charged Bautista-Gonzalez with four counts of rape of a child in 

### the firstdegree, two counts involving L.C. and two counts involving W.C. Following a hearing, the trial courtfound both L.C. and W.C. competentto testify. L.C. and W.C. testified at trial. The trial court also admitted the video recordings ofWebster's interviews with the children and Andrea's video recording of her interview. Bautista-Gonzalez testified that he was surprised when he tested positive for herpes and believed thatAndrea had infected him. He denied sexually assaulting L.C. and W.C. or having any inappropriate contact with them. Thejury found Bautista-Gonzalez guilty as charged. The court imposed concurrent standard range indeterminate sentences of318 months to life. Bautista-Gonzalez appeals.Competency Bautista-Gonzalez contends that the trial court violated his due process right to a fair trial when itfound W.C. competentto testify. He argues thatthe State failed to establish thatW.C. could distinguish truth from falsity. InWashington, all persons are presumed competentto testify regardless oftheir age.7 The party challenging the competency of a child witness bears the burden ofrebutting this presumption with evidence establishing one ofthe statutory grounds for incompetency set forth in RCW 5.60.050, including an inability "ofreceivingjust impressions ofthe facts, respecting which they are

7State v. S.J.W., 170Wn.2d 92, 102, 239 P.3d 568 (2010).No. 71928-9-1/5
examined, or ofrelating them truly."8 The factors setforth in State v. Allen continue to guide the trial court's determination of a child witness's competency: (1) an understanding ofthe obligation to speak the truth on the witness stand; (2) the mental capacity at the time ofthe occurrence concerning which he is to testify, to receive an accurate impression 

### ofit; (3) a memory sufficientto retain an independent recollection of the occurrence; (4) the capacityto express inwords his memory of the occurrence; and (5) the capacity to understand simple 

### questions about it.[9] "The competency of a youthful witness is not easily reflected in a written record, and we must rely on the trialjudge who sees the witness, notices the witness's manner, and considers his or her capacity and intelligence."10 

### Consequently, an appellate court reviews the trial court's determination of competency for a manifest abuse of discretion.11 

### On appeal, Bautista-Gonzalez challenges only the first Allenfactor

- W.C.'s understanding ofthe obligation to tell the truth. Inparticular, he points to testimony atthe competency hearing, during which W.C. said that she would not get introuble ifshe told a lie to her mother and responded that the deputy prosecutorwould be telling the truth ifshe said thatthe blue pen she was holding in her hand was pink. Bautista-Gonzalez also relies on W.C.'s apparent confusion during the two 

### pre-trial interviews with Caroline Webster. During the February 2013 interview

8RCW 5.60.050(2); see also S.J.W., 170Wn.2d at 102. 9In re Dependency ofA.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998) (quoting, State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967)). 10 State v. Woods. 154 Wn.2d 613, 617, 114 P.3d 1174 (2005). 11 Id.No. 71928-9-1/6



### withWebster, W.C. responded "yes" when asked if it is good to tell a lie and then said, "I forgot," when asked to explain further. During the December 2011 

### interview, W.C. repeatedly referred to a story and an "accident" in which she apparently "died years ago."12 Bautista-Gonzalez contends that the record established W.C.'s long standing inability to understand the difference between telling the truth and telling a lie and that the trial courttherefore erred in finding her competentto testify. 

### As the trial court recognized, W.C.'s testimony during the pre-trial interviews and competency hearing must be considered incontext. During the competency hearing, the court heard extensive testimony aboutthe results of W.C.'s evaluation inAugust 2013 for fetal alcohol syndrome. Dr. Julia Bledsoe, a 

### pediatrician atthe University ofWashington, diagnosed W.C. with static encephalopathy and alcohol exposed, a condition involving significant central
nervous system damage and dysfunction. W.C. also has Attention Deficit Hyperactive Disorder. Although W.C. has a normal I.Q., her condition has resulted in a significant language learning disability. 

### Dr. John Thome, a speech language pathologist, explained thatW.C.'s language disabilities could cause her some difficulties when attempting to correct miscommunications. He also noted that such impairment causes difficulties with words that involve finer distinctions, such as the distinction between "often" and "frequently." Thome commented that although W.C. was more likely to have

12 Report ofProceedings (March 6, 2014) at 42.No. 71928-9-1/7

difficulties with expressing her memory of any event in words than other children, "even children with very severe language impairments communicate their message most ofthe time."13 

### During hertestimony atthe competency hearing, W.C. testified indetail about her school and her teacher. She described how she had celebrated Christmas and described the presents she received. W.C. was not responsive to all questions and could not explain precisely why itwas bad to tell a lie. But she repeatedly acknowledged that itwas important to tell the truth: Q. Now, [W.C], do you understand that it's importantthat you tell the truth today? Do you?
A. Yes. 

### Q. Okay. And can you tell me why that's important? A. Because we gotto tell the truth. 

### Q. Okay. And do you understand thatwhen you - [W.C], can you put your beardown, please? Do you understand when you come to court that it's important to tell the truth? A. Yes. 

### Q. How often have you talked to your mom about why you're in court today? A. Because we're here to tell the truth.
A. [Andrea] doesn't make stories about Fidel. Q. Okay. Did she tell you to make up a story? A. No.
13 Report ofProceedings (January 9, 2014) at 290.

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### Q. Okay. And are you making up the story about Fidel?
A. No. 

### Q. Now, do you know what a lie is? Do you knowthatword?
A. Yes. 

### Q. Okay. Can you tell me what itmeans? A. Itmeans when you lie, it's not even nice to lie. Q. Okay. It's not nice to lie? A. (Pause.) 

### Q. Okay. Now, did your mom tell you to lie in courttoday?
A. No. Q. No? What did she tell you? A. She tell me to tell the truth. 

### Q. Okay. And are you tellingthe truth today? A. Yes.TM 

### After considering the testimony at the competency hearing and viewing 

### W.C.'spre-trial interviews, the trial courtfound thatshewas competent totestify. The court acknowledged thatthere were problematic aspects to her testimony, butconcluded that based on her testimony at the competency hearing, she was 

### able to recallpastevents and experiences. The courtexpressly noted the 

### progress in W.C.'s abilityto respond toquestions that occurred between herfirst interview in2011 and her testimony in early 2014 at the competency hearing.

14 Report ofProceedings (January 8, 2014) at 110-22.

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### Despite aspects that merited cross examination, the courtfound thatW.C. was able to understand the obligation to tellthe truth incourt.15 The evidence supports that determination. Bautista-Gonzalez's reliance on State v. Karpenski16 is misplaced. In 

### Karpenski, the court reversed the childrape and childmolestation convictions after concluding thatthe childvictim was incapable ofdistinguishing truth from falsity. Butthe seven-year-old childvictim inthat case had taken an oath and promised to tellthe truth and not make up any stories. Hethen described in "vivid detail" how he and his two-year-old brother had been born atthe same 

### time. The testimony at the competency hearing "merely manifested] his long standing, often-observed inabilityto distinguish what was true from what was not."17 

### Here, when asked insimple terms, W.C. usually described pastevents 

### and circumstances accurately. Andrea acknowledged thatwhen W.C. was 

### younger, her language disability sometimes made itdifficultto determine whether she was tellingthe truth or lying. But Andrea explained thatthis usually involved "little lies"and that W.C. was generallytruthful in more serious situations. W.C. 

### had no history of fabrication remotelycomparable to the childvictim in Karpenski. The trialcourt did not abuse its discretion in finding W.C. competentto testify.

15 See State v. Carlson, 61 Wn. App. 865, 874, 812 P.2d 536 (1991) (inconsistencies in a child's testimony go to weight and credibility, not competency). 16 94 Wn. App. 80, 971 P.2d 553 (1999), overruled on othergrounds inState v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003). 17Id. at 106,No. 71928-9-1/10

Child Hearsay Bautista-Gonzalez contends thatthe trial court erred in admitting the video 

### recording that Andrea made ofher interview of L.C. and W.C. shortly afterthey initially disclosed the abuse. He argues that the girls' hearsay statements were 

### not spontaneous and therefore not admissible as child hearsay under RCW 9A.44.120. 

### Hearsay statements of a child underthe age of 10 are admissible in a criminal case when the statements describe sexual or physical abuse ofthe child, the courtfinds thatthe time, content, and circumstances ofthe statements 

### provide sufficient indicia ofreliability, and the childtestifies at the proceedings.18 When determining the reliability of childhearsay, the trial court considers the nine Ryan19factors: 

### (1) whetherthere is an apparent motive to lie, (2) the general characterofthe declarant, (3) whethermore than one person heard the statement, (4) the spontaneity ofthe statements, (5) the timing ofthe declaration and the relationship between the declarant and 

### the witness, (6) whetherthe statement contained express assertions ofpastfact, (7) whetherthe declarant's lack of knowledge could be established through cross-examination, (8) the 

### remoteness ofthe possibility ofthe declarant's recollection being faulty, and (9) whetherthe surrounding circumstances suggested 

### the declarant misrepresented the defendant's involvement.[20]

18 RCW 9A.44.120: see State v. Kennealv, 151 Wn. App. 861, 880, 214 P.3d 200 (2009). 19 See State v. Ryan, 103Wn.2d 165,691 P.2d 197(1984). 20 Kennealv, 151 Wn. App. at 880 (footnote omitted).

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We review the admission ofevidence under RCW 9A.44.120(1) for abuse of discretion.21 

### Bautista-Gonzalez's arguments rest on a briefstatement in Ryan for the proposition thatthe girls' statements inthe interview were not spontaneous 

### because they were "in response toquestioning."22 Bautista-Gonzalez maintains that "the questioning negated a finding thatthe statements were spontaneous 

### and/ortrustworthy"23 and that allstatements "afterthese initial statements were also the result ofquestioning and were not spontaneous."24 It is well established, however, that the Ryan spontaneity factor is not 

### undermined merely because the hearsay statement is inresponse to 

### questioning. "Forpurposes of a child hearsay analysis, spontaneous statements
are statements the child volunteered inresponse to questions thatwere not 

### leading and did not in any way suggest an answer.25 Bautista-Gonzalez's 

### arguments provide no meaningful analysis ofAndrea's questioning or any supportfor his conclusory assertion that the children's hearsay statements were notspontaneous forpurposes of RCW9A.44.120. We therefore decline to address further the alleged error.26

21 State v, Swan, 114 Wn.2d 613, 665, 790 P.2d 610 (1990). 22 Ryan, 103 Wn.2d at 176. 23 Brief ofAppellant at 17. 24 id at 19-20. 25 Carlson, 61 Wn. App. at 872; see also Swan. 114 Wn.2d at 649. 26 See State v. Tinker, 155 Wn.2d 219, 224, 118 P.3d 885 (2005) (appellate court will decline to review an issue that is unsupported by cogent argument and briefing).

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Bautista-Gonzalez also contends that the trial court erred in admitting portions of L.C.'s second interview with Webster, inwhich L.C. referred to his sexual contactwith W.C. He asserts thatthe child hearsay describing sexual abuse of another is not admissible under RCW 9A.44.120.27 But the record fails to support Bautista-Gonzalez's assertion that Webster's second interview with L.C. was "admitted
... in its entirety."28 Rather, the trial court granted defense counsel's requestthat the video recording be redacted to delete references to sexual abuse ofW.C. Consequently, the majority ofthe statements that Bautista-Gonzalez challenges on appeal were not 

### admitted at trial. The only challenged statements admitted attrial were L.C.'s statements that Bautista-Gonzalez "did privates" to L.C. and W.C. and that Bautista-Gonzalez "was also doing our butt and ourflower, but ithurted when he did our butt. But it didn't hurt when he did our flower."29 Even ifthe trial court erred in admitting these comments, the errorwas clearly harmless. L.C.'s two briefcomments regarding sexual contactwith W.C.


### were essentially identical to other evidence admitted without objection at trial, including W.C.'s trial testimony. Underthe circumstances, there is no reasonable

27 See State v. Harris. 48 Wn. App. 279, 284, 738 P.2d 1059 (1987) (RCW 9A.44.120 "does not by its terms apply to a statement by a child describing an act of sexual contact performed on a differentchild"). 28 Brief ofAppellant at 21. 29 Report ofProceedings (February 26, 2014) at 18.

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likelihood that the outcome ofthe trial would have been different had the error not occurred.30 We affirm thejudgment and sentence. 

# 4p*. -JWE CONCUR:

CO rn • •

30 State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981) (evidentiary error is not prejudicial "unless, withinreasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred").

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