FILED 

NOVEMBER 22, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

V. 

WILLIAM MARK JULIAN, 

Appellant. 

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No. 33549-6-111 

UNPUBLISHED OPINION 

PENNELL, J. - William Julian appeals his convictions for two counts of first 

degree child molestation and one count of felony communication with a minor for 

immoral purposes. We affirm. 

FACTS 

The facts are familiar to the parties and need not be recounted in detail. Mr. Julian 

was charged with sexually assaulting an eight-year-old child1 who had been left in his 

care. After a contested hearing, the child in question was deemed competent to testify. In 

1 In his opening brief, Mr. Julian refers to the victim by her full name. Counsel is 

reminded that "in all pleadings, motions, and briefs filed with this Court all parties shall 

use initials or pseudonyms in place of the names of all child witnesses or any victims 

known to have been under the age of 18 at the time of any event in the case." Gen. Order 

of Division III, In re the Use of Initials or Pseudonyms for Child Victims or Child· 

Witnesses (Wash. Ct. App. June 18, 2012). 
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State v. Julian 

addition to admitting the child's testimony, the trial court also allowed the State to 

introduce child hearsay statements. 

Mr. Julian's criminal information had initially alleged three counts of first degree 

child molestation, one count of unlawful imprisonment with sexual motivation, and one 

count of misdemeanor communication with a minor for immoral purposes. However, 

prior to trial, the last count was amended to a felony based on the existence of a prior 

conviction for first degree child molestation. At trial, the parties stipulated to Mr. Julian's 

predicate offense, not naming the offense or the statute involved. 

A jury found Mr. Julian guilty of two counts of first degree child molestation and 

felony communication with a minor for immoral purposes. Because Mr. Julian had 

previously been convicted of first degree child molestation, he was sentenced to life in 

prison as a persistent offender under RCW 9.94A.570 for the two counts of first degree 

child molestation and to 60 months for felony communication with a minor for immoral 

purposes. Mr. Julian appeals. 

ANALYSIS 

Amendment of Information 

Mr. Julian challenges the trial court's decision allowing the State to amend the 

information. He alleges the amendment prejudiced him because the enhanced charge 

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meant he potentially faced a life sentence without the possibility of release, the sentence 

he in fact received. 

Mr. Julian's argument misapprehends the applicable law. While it is true an 

amendment to an information can be challenged based on prejudice, the type of prejudice 

contemplated pertains to a defendant's ability to present his or her case. State v. Purdom, 

106 Wn.2d 745, 749, 725 P.2d 622 (1986). Typically, this form of prejudice can be 

addressed by a continuance. State v. Murbach, 68 Wn. App. 509, 512, 843 P.2d 551 

(1993 ). "[T]he possibility of a harsher penalty, standing alone, does not constitute 

specific prejudice." State v. James, 108 Wn.2d 483, 489-90, 739 P.2d 699 (1987). The 

trial court acted within its discretion in permitting the State's amendment. 

Stipulation to Predicate Offense 

Mr. Julian next argues it was unfair for the trial court to advise the jury he had a 

predicate sexual offense, as admitted in his stipulation.2 Mr. Julian cites to no authority 

for this argument nor does he provide much in the way of reasoned analysis. We perceive 

no error. 

2 Mr. Julian also summarily argues the jury should not have been provided with a 

special verdict form relating to this count. Because he provides no citations to cases nor 

analysis for this claim and because it is concluded the stipulation was proper, this 

argument is not addressed. See RAP 10.3(a)(6); State v. Dennison, 115 Wn.2d 609, 629, 

801 P.2d 193 (1990). 

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State v. Julian 

The manner in which the trial court handled Mr. Julian's stipulation was consistent 

with Old Chief v. United States, 519 U.S. 172, 190-91, 117 S. Ct. 644, 136 L. Ed. 2d 574 

(1997). The jury was shielded from details of Mr. Julian's prior offense. Nothing further 

was required. State v. Gladden, 116 Wn. App. 561, 566, 66 P.3d 1095 (2003); State v. 

Roswell, 165 Wn.2d 186, 198, 196 P.3d 705 (2008). 

Challenges to the Victim's Statements 

Mr. Julian's next three arguments concern the child victim's testimony and 

statements. He first argues the child was not competent to testify as she lacked the ability 

to truthfully relate her impressions of the events giving rise to his charges. Second, he 

contends the trial court erroneously admitted prior statements under the child hearsay 

rule. Finally, he argues the court's decision to admit the child hearsay evidence was more 

prejudicial than probative, in violation of ER 403. 

Competence 

This court reviews a trial court's competency determination for manifest abuse of 

discretion. State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990). This is an 

extremely deferential standard. State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1174 

(2005) (because "[t]he competency of a youthful witness is not easily reflected in a 

written record, and [ an appellate court] must rely on the trial judge who sees the witness, 

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notices the witness's manner, and considers his or her capacity and intelligence"). 

In his challenge to the child witness's competence, Mr. Julian argues the child 

lacked sufficient memory of the alleged assaults and appeared to have been coached. 3 

The record does not reflect Mr. Julian met his burden4 of substantiating these claims. The 

child victim was able to remember details about her life from the time period of the 

offense conduct, including a description of the interior of Mr. Julian's apartment. She 

testified coherently, did not engage in fantastical thinking, and was able to differentiate 

truth from a lie. Contrary to Mr. Julian's assertions, ample evidence suggests the child's 

testimony came from her own memory, not coaching. The child's mother denied 

discussing events in detail with her daughter, and the child testified prosecutors did not 

tell her what to say. Testimony from the defense expert that law enforcement used 

suggestive interviewing techniques went to the weight of the child's credibility, not the 

admissibility. 

3 Five factors govern a court's analysis of child witness competence: (1) the child's 

understanding the obligation to tell the truth, (2) the child's mental capacity to receive 

accurate information at the time of the event in question, (3) a sufficient memory to retain 

an independent recollection, (4) the capacity to express memory in words, and (5) the 

capacity to understand simple questions. State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 

1021 (1967). Any inconsistencies in a child witness's testimony go to credibility, not 

admissibility. State v. Przybylski, 48 Wn. App. 661, 665, 739 P.2d 1203 (1987). 

4 State v. S.J W, 170 Wn.2d 92, 100-02, 239 P.3d 568 (2010). 

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State v. Julian 

Child Hearsay 

Mr. Julian's second challenge pertains to the admission of child hearsay statements 

under RCW 9A.44.120. Because the child was properly deemed competent and made 

available for cross-examination, Mr. Julian's only possible remaining claim is the child 

hearsay statements were insufficiently reliable.5 The trial court's reliability decision is 

reviewed for abuse of discretion. Swan, 114 Wn.2d at 665-66. 

We find the trial court had sufficient reasons for rejecting Mr. Julian's various 

claims regarding reliability: 

• Motive to lie: The child denied she was motivated to lie about abuse in 

order to gain her mother's attention. In addition, the evidence did not 

suggest anything specific about Mr. Julian that would prompt the victim to 

lie about him. 

• Character of the victim: School records and testimony from the child's 

5 Reliability turns on the totality of nine nonexclusive factors: "( 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." 

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

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State v. Julian 

mother did not indicate the child had any significant problems with 

dishonesty. Behavior problems that arose during the time frame of the 

abuse could be understood as a responses to the abuse. 

• Lack of spontaneity: The hearsay statements were not made in response to 

overly leading questions nor did the statements in the video appear 

rehearsed. They were thus sufficiently spontaneous. 

• Timing and relationship with witness: All the out-of-court statements 

occurred over a relatively short period of time. The people to whom 

statements were made were reasonable, given the child's circumstances. 

• Faulty recollection: Consistencies between the child's statements and 

physical evidence such as bruising indicated a sufficient memory. 6 

ER403 

Mr. Julian's final challenge to the child's hearsay statements is, even if reliable, 

they should not have been admitted because they are cumulative and unduly prejudicial. 

He also contends the trial court essentially commented on the child's credibility by 

6 Mr. Julian also argues, for the first time on appeal, the child's out-of-court 

statements were not reliable because the child misrepresented the defendant's 

involvement. To the extent this argument has not been waived, it is not sufficiently 

strong to offset the other factors favoring reliability. 

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State v. Julian 

admitting multiple child hearsay statements. 

Mr. Julian's first argument fails because he did not object on ER 403 grounds in 

the trial court. He thus waived this argument. RAP 2.5(a); State v. Chase, 59 Wn. App. 

501, 508, 799 P .2d 272 ( 1990) (any violation of ER 403 is not of constitutional magnitude 

and cannot be raised for the first time on appeal). 

Mr. Julian's second contention fails on the merits. The admission of child hearsay 

statements was not a comment on the evidence. The statements were the evidence. 

Standing alone, admission of evidence cannot be considered an unconstitutional comment 

on the evidence. State v. Gentry, 125 Wn.2d 570, 638-39, 888 P.2d 1105 (1995). 

Sufficiency of Evidence 

Lastly, Mr. Julian argues that because the child victim was not credible, the State 

presented insufficient evidence to justify his conviction. This is not a viable challenge. 

The jury was entitled to believe the child witness.7 

STATEMENT OF ADDITIONAL GROUNDS 

Mr. Julian contends the trial court improperly admitted the child's statements to 

the forensic interviewer. Because this concern has already been adequately addressed in 

7 The question submitted by the jury prior to the verdict does not undermine the 

verdict and cannot be used to impeach the verdict. State v. Ng, 110 Wn.2d 32, 43, 750 

P.2d 632 (1988). 

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No. 33549-6-III 

State v. Julian 

the briefing, it does not merit further review. RAP 10.lO(a). 

CONCLUSION 

The judgment and sentence of the trial court is affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Pennell, J. I) 

WE CONCUR: 

Fearing, C. 

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