IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

No. 47661-4-II

In Re the Detention of:

JOSEPH M. PETERSON,

Appellant. PUBLISHED IN PART OPINION

SUTTON, J. — Joseph M. Peterson appeals from the trial court’s order concluding that his 

second degree assault conviction is a sexually violent offense for the purpose of civil commitment 

for sexually violent predators (SVP) under chapter 71.09 RCW. Peterson argues that the trial court 

erred by admitting the victim’s statements as recorded recollections under ER 803(a)(5). We hold 

that the trial court did not err by admitting the victim’s recorded recollections under ER 803(a)(5). 

Accordingly, we affirm the trial court. 

FACTS

On March 29, 2013, the State filed a petition seeking Peterson’s involuntary commitment 

as a SVP. The petition alleged that, on July 2, 2007, Peterson was convicted of second degree 

assault and that the assault was sexually motivated because the charges originated from a rape 

complaint. Therefore, Peterson’s second degree assault conviction met the criteria for a sexually 

violent offense under RCW 71.09.020(17)(c). The petition also alleged that Peterson met the other 

criteria for an SVP. 

Filed

Washington State

Court of Appeals

Division Two

January 31, 2017
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2

Peterson and the State stipulated that Peterson’s SVP trial would be bifurcated. First, a 

bench trial would be held to allow the trial court to determine whether Peterson’s second degree 

assault conviction was a sexually violent offense. Second, if the trial court determined that 

Peterson’s second degree assault conviction was a sexually violent offense, the remaining issues 

in the SVP petition would be tried to a jury. 

The State moved to admit two of H.L.’s1statements as recorded recollections under

ER 803(a)(5) to establish that the second degree assault was sexually motivated. Specifically, the 

State moved to admit H.L.’s handwritten statement given to detectives on the date of the incident 

and H.L.’s taped recorded statement given to detectives six days after the incident. 

At the hearing, H.L. testified that she had experienced memory loss and could not recall 

the events surrounding the 2007 assault. When asked to review her handwritten statement, H.L. 

testified that she recognized her handwriting but that she did not remember writing the statement. 

She also testified that she believed that what she wrote was true because “my memory was there 

at that time, and I would have been able to recall exactly what had happened.” 1 Verbatim Report 

of Proceedings (VRP) at 79. H.L. also testified that she remembered going to give a recorded 

statement to the police, but she could not remember the conversation itself. H.L. testified that she 

believed her recorded statement was also true and accurate. She also testified, “I have nothing to 

gain from making up a story. To me, it doesn’t seem like it would be smart.” 1 VRP at 81. Finally, 

H.L. testified that she had not ever recanted or denied her statements. 

 

1 H.L. is the victim in the assault and we use initials to protect the victim’s privacy.
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The State also presented the testimony of Detective Kim Holmes of the Lakewood Police 

Department, who was the detective assigned to investigate H.L.’s rape complaint. Holmes also 

testified that the recording accurately reflected her memory of the interview. 

Peterson objected to the admission of H.L.’s statements arguing that they did not meet the 

requirements of ER 803(a)(5) for recorded recollections. Peterson presented testimony from 

Detective Holmes that showed several inconsistencies between H.L.’s handwritten statement and 

her recorded statement. Peterson also called two former residents of H.L.’s apartment complex to 

testify that, at the time of the incident, H.L. had a reputation for dishonesty. And, H.L.’s exhusband, who H.L. lived with at the time of the incident, also testified that he did not believe her 

statement that she had been raped. 

The trial court then entered the following findings of fact:

A. Both records pertain to a matter about which [H.L.] once had personal 

knowledge.

B. [H.L.] now has an insufficient recollection about the matter to testify fully and 

accurately.

C. The records were made or adopted by [H.L.] when the matter was fresh in her 

mind.

D. The records reflect [H.L.]’s prior knowledge accurately because:

1. [H.L.] did not disavow the accuracy of her statements.

2. [H.L.] averred accuracy at the time of making the statements.

3. The recording process was reliable for both statements.

4. The totality of the circumstances establish the trustworthiness of the

statements.

Clerk’s Papers (CP) at 312. Based on its findings, the trial court concluded that H.L.’s prior 

statements were admissible as recorded recollections under ER 803(a)(5). 

After the bench trial, the trial court entered findings of fact and conclusions of law on 

whether Peterson’s second degree assault conviction was a sexually violent offense. The trial court 
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found that Peterson was originally charged with first degree rape, but that he had entered a guilty 

plea to an amended charge of second degree assault. The trial court found that H.L.’s statements 

regarding the incident were credible and that Peterson’s statements were not credible. And, the 

trial court found that Peterson’s actions were committed for his sexual gratification. Based on its 

findings, the trial court concluded that the State proved, beyond a reasonable doubt, that Peterson 

has a valid conviction for second degree assault that was committed with sexual motivation. 

Therefore, the trial court concluded that Peterson had a conviction for a sexually violent offense

under RCW 71.09.020(17)(c). 

Peterson’s SVP petition then proceeded to a jury trial. The jury found that the State did 

not meet its burden to prove beyond a reasonable doubt that Peterson was a sexually violent 

predator. Based on the jury’s verdict, Peterson was released from confinement. Peterson appeals 

the trial court’s order concluding that his second degree assault conviction is a sexually violent 

offense. 

ANALYSIS

Peterson argues that the trial court erred by admitting H.L.’s prior statements as recorded 

recollections under ER 803(a)(5). The State argues that Peterson’s appeal is not appropriately 

before us because Peterson is not an aggrieved party under RAP 3.1. For the reasons set forth in 

the unpublished portion of this opinion, we have determined that Peterson is an aggrieved party. 

Therefore, we consider the merits of his argument that the trial court erred by admitting the 

victim’s statements under ER 803(a)(5).

Peterson argues that the trial court abused its discretion by admitting H.L.’s statements 

because H.L.’s prior statements lack other indicia of reliability. The trial court did not abuse its 
No. 47661-4-II

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discretion in finding that H.L.’s statements were admissible as recorded recollections. 

Accordingly, we affirm.

We review a trial court’s ruling admitting evidence under ER 803(a)(5) for an abuse of 

discretion. State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831 (1998). ER 803(a)(5) states,

Recorded Recollection. A memorandum or record concerning a matter about which 

a witness once had knowledge but now has insufficient recollection to enable the 

witness to testify fully and accurately, shown to have been made or adopted by the 

witness when the matter was fresh in the witness’ memory and to reflect that 

knowledge correctly. If admitted, the memorandum or record may be read into 

evidence but may not itself be received as an exhibit unless offered by an adverse 

party.

Evidence is admissible under ER 803(a)(5) when:

(1) the record pertains to a matter about which the witness once had knowledge; (2) 

the witness has an insufficient recollection of the matter to provide truthful and 

accurate trial testimony; (3) the record was made or adopted by the witness when 

the matter was fresh in the witness’ memory; and (4) the record reflects the witness’ 

prior knowledge accurately. 

Alvarado, 89 Wn. App. at 548 (citing State v. Mathes, 47 Wn. App. 863, 867-68, 737 P.2d 700 

(1987); ER 803(a)(5)). Peterson does not challenge the first three factors. The only issue is 

whether the recorded recollection reflects H.L.’s prior knowledge accurately.

When determining whether the record reflects the witness’s prior knowledge accurately, 

the trial court must examine the totality of the circumstances. Alvarado, 89 Wn. App. at 551-52. 

The totality of the circumstances includes:

(1) whether the witness disavows accuracy; (2) whether the witness averred 

accuracy at the time of making the statement; (3) whether the recording process is 

reliable; and (4) whether other indicia of reliability establish the trustworthiness of 

the statement.
No. 47661-4-II

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Alvarado, 89 Wn. App. at 552. Peterson argues that the facts surrounding H.L.’s statements do 

not establish other indicia of reliability to support the admission of the statements. Specifically, 

Peterson relies on inconsistencies in H.L.’s statements, H.L.’s motive to fabricate the allegation of 

rape, and H.L.’s reputation for dishonesty. However, Peterson’s argument actually challenges the 

credibility of H.L.’s statements, not the accuracy of the recorded recollection which is required for 

admission under ER 803(a)(5).

Washington cases addressing the admissibility of recorded recollections imply a distinction 

between the accuracy of the recorded recollection itself and the credibility of the witness’s 

statement. See Alvarado, 89 Wn. App. at 552; State v. Derouin, 116 Wn. App. 38, 44-47, 64 P.3d 

35 (2003). The accuracy of the record means that the recorded recollection itself accurately states 

the witness’s perceptions of the event. In contrast, credibility refers to whether the content of the 

witness’s statement is truthful. For the purposes of ER 803(a)(5), accuracy applies to the record, 

credibility applies to the content–these are distinctions between form and substance. 

Division I of this court’s analysis in Alvarado is instructive. There, the court determined 

that the records admitted by the trial court under ER 803(a)(5) satisfied the accuracy prong even 

though the witness had demonstrated he was capable of lying and he had made other statements 

about the incident that he admitted were false. 89 Wn. App. at 552-53. The court also noted that 

admission of the witness’s conflicting statements “provided a context from which defense counsel 

could assail [the witness’s] credibility.” Alvarado, 89 Wn. App. at 553. The court’s analysis in 

Alvarado demonstrates that a record can be considered accurate for the purposes under ER 

803(a)(5) even when a witness’s credibility is clearly questionable. 
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The appellate court’s analysis in Derouin, provides additional support for the distinction 

between form and substance under ER 803(a)(5). 116 Wn. App. at 44-47. The court in Derouin

evaluated the totality of the circumstances, considered whether the recording process was reliable, 

and noted that the recording process was not ideal because the detective wrote the statement which 

the witness then signed under the penalty of perjury. Derouin, 116 Wn. App. at 46. The court

noted, “Such a recording process makes it more likely that the statement contained inaccuracies or 

statements flavored by the officer’s perception of the events and not the actual witness’s 

perceptions.” Derouin, 116 Wn. App. at 46. The court examined whether the record itself 

accurately reflected the witness’s perceptions, not whether the perceptions themselves were 

accurate. Derouin, 116 Wn. App. at 46. The court observed, “Any inaccuracies within the 

statement due to the recording process can be argued at trial and should go to the weight, not the 

admissibility of the evidence.” Derouin, 116 Wn. App. at 46. The court’s analysis in Derouin

further supports the distinction between the accuracy of the record itself and the credibility of the 

witness. 

Here, the trial court properly distinguished between the accuracy of the record itself and 

the credibility of the witness to determine whether H.L.’s statements were admissible as recorded 

recollections under ER 803(a)(5). The trial court found that the recording processes were reliable, 

that H.L. had handwritten her first statement, and that H.L. testified that she recognized her 

handwriting and signature on the statement. H.L’s second statements were recorded and the 

detective, who was involved in the interview, testified that the recording and transcript accurately 

reflected the detective’s recollection of the interview. The trial court also noted that H.L. never 

disavowed the statements. And, at the time she made the statements, H.L. averred that the
No. 47661-4-II

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statements were accurate. Given the totality of the circumstances, the trial court did not abuse its 

discretion in determining that the records accurately reflected H.L.’s statements regarding the 

incident. Peterson’s argument against admission relatesto H.L.’s credibility and goesto the weight 

of the evidence, not to its admissibility. Accordingly, the trial court did not abuse its discretion by 

admitting H.L.’s prior statements as recorded recollections under ER 803(a)(5). 

A majority of the panel having determined that only the foregoing portion of this opinion 

will be published in the Washington Appellate Reports and that the remainder shall be filed for 

public record pursuant to RCW 2.06.040, it is so ordered.

ORDER ON SEXUALLY VIOLENT OFFENSE

Peterson assigns error to the trial court’s order concluding that his second degree assault 

conviction is a sexually violent offense under RCW 71.09.020(17)(c). Peterson’s argument

challenging H.L.’s statements relates to H.L.’s credibility. Because credibility determinations are 

reserved solely for the trier of fact, Peterson’s challenge to the trial court’s order fails. 

When reviewing a trial court’s decision following a bench trial, our review is limited to 

whether substantial evidence supports any challenged findings of fact and whether the findings 

support the conclusions of law. State v. Hovig, 149 Wn. App. 1, 8, 202 P.3d 318 (2009). 

Unchallenged findings of fact are verities on appeal. State v. Madarash, 116 Wn. App. 500, 509, 

66 P.3d 682 (2003). We do not review credibility determinations. State v. Kaiser, 161 Wn. App. 

705, 724, 254 P.3d 850 (2011). Here, the trial court made a specific finding of fact that H.L. was 

credible, which finding Peterson challenges. But Peterson’s challenge fails because we do not 

review credibility determinations. 
No. 47661-4-II

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H.L.’s statements regarding the incident establish that Peterson had sexual intercourse with 

her. The fact that sexual intercourse occurred supports the trial court’s conclusion that the assault 

was committed for Peterson’s sexual gratification, making the crime sexually motivated under 

former RCW 9.94A.030(47).2 Because the second degree assault was sexually motivated, the trial 

court properly concluded that Peterson’s second degree assault conviction was a sexually violent 

offense under RCW 71.09.020(17)(c). Accordingly, we affirm the trial court’s order concluding 

that Peterson’s second degree assault conviction is a sexually violent offense.

AGGRIEVED PARTY

The State argues that we should decline to address Peterson’s appeal because he is not an 

aggrieved party as required by RAP 3.1. Specifically, the State argues that Peterson is not 

aggrieved because a jury decided the ultimate issue in this case–whether Peterson is an SVP–in 

Peterson’s favor and Peterson has been released from confinement. Because the trial court’s order 

legally establishes that the State has proven a predicate sexually violent offense, the trial court’s 

order has continuing legal consequences for Peterson. Accordingly, Peterson is an aggrieved 

party.

Under RAP 3.1, “[O]nly an aggrieved party may seek review by the appellate court.” An 

aggrieved party is “one whose personal right or pecuniary interests have been affected.” State v. 

Taylor, 150 Wn.2d 599, 603, 80 P.3d 605 (2003) (citing State ex rel. Simeon v. Superior Court for 

King County, 20 Wn.2d 88, 90, 145 P.2d 1017 (1944)). An aggrieved party’s interest must be 

 

2 Former RCW 9.94A.030(47) (2012), recodified as RCW 9.94A.030(48) states,

“Sexual motivation” means that one of the purposes for which the defendant 

committed the crime was for the purpose of his or her sexual gratification.
No. 47661-4-II

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present and substantial rather than contingent. Tinker v. Kent Gypsum Supply, Inc., 95 Wn. App. 

761, 764-65, 977 P.2d 627 (1999). “An aggrieved party is not one whose feelings have been hurt 

or one who is disappointed over a certain result.” Taylor, 150 Wn.2d at 603. A party may not 

seek appellate review of an issue on which the party prevailed simply because the party does not 

agree with the trial court’s reasoning. State v. Alexander, 125 Wn.2d 717, 721 n.6, 888 P.2d 1169 

(1995). 

The State argues that Peterson prevailed on the ultimate issue at the trial court–whether he 

is an SVP–therefore, he is not an aggrieved party entitled to appeal under RAP 3.1. The State 

relies on Taylor to argue that, because the trial court’s order has no effect unless the State files a 

new SVP petition, Peterson is not under any burden or obligation from the trial court’s order. We 

disagree.

In Taylor, our Supreme Court held that the defendant was not an aggrieved party entitled 

to seek discretionary review of the trial court’s order dismissing his criminal charges without 

prejudice. 150 Wn.2d at 603. Specifically, our Supreme Court stated, “Until the State refiles 

charges against [the defendant], if indeed it does, he is under no restriction, and he has the benefit 

of a running statute of limitations. We cannot conclude, therefore, that he has been injured in any 

legal sense.” Taylor, 150 Wn.2d at 603. However, under the SVP statute, the trial court’s order 

has continuing legal consequences for Peterson. Therefore, the facts of this case are sufficiently 

distinguishable from those in Taylor. 

Under chapter 71.09 RCW, the State may involuntary commit a person who is found to be 

an SVP. A conviction for a crime of sexual violence is a predicate to a finding that a person is an 

SVP. RCW 71.09.020(18). In many cases, the conviction for a crime of sexual violence itself is 
No. 47661-4-II

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sufficient to establish this predicate finding. RCW 71.09.020(17)(a). However, in some cases, 

such as in Peterson’s, a trial court must make a finding of sexual motivation at a commitment 

hearing before a conviction can be a predicate sexually violent offense. RCW 71.09.020(17)(c). 

Once the State establishes a predicate sexually violent offense by a person, the State can rely on 

the trial court’s order as a basis to file a new SVP petition. Under RCW 71.09.040, once the State 

establishes probable cause for an SVP petition, a trial court must hold the person in total 

confinement pending a trial on the SVP petition.3 

Here, the trial court’s finding, that Peterson’s second degree assault conviction is a sexually 

violent offense, has legal consequences to Peterson. Based on the trial court’s order, the State has 

established a predicate sexually violent offense for the purposes of a SVP petition. RCW 

71.09.030(1)(e). Therefore, in this case, the trial court’s order provides a basis for the State to file

a new SVP petition. 

Because the trial court’s order has legal consequences, the trial court’s order is more 

analogous to an order in an involuntary commitment proceeding. See In re Det. of M.K., 168 Wn. 

App. 621, 279 P.3d 897 (2012). In M.K., we addressed whether an appeal was moot after an 

involuntary commitment period had expired. We held that “it is clear that MK’s appeal of his 

involuntary commitment order is not moot, despite the treatment period in the challenged order 

having expired, because a trial court presiding over future involuntary commitment hearings may 

consider MK’s prior involuntary commitment orders when making its commitment 

 

3 RCW 71.09.040(4) provides, “If the probable cause determination is made, the judge shall direct 

that the person be transferred to the custody of the department of social and health services for 

placement in a total confinement facility operated by the department. In no event shall the person 

be released from confinement prior to trial.”
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determination.” 168 Wn. App. at 629. Although M.K. addressed an issue of mootness, rather than 

whether the appellant was an aggrieved party, the reasoning is similar. Like an involuntary 

commitment order, the trial court’s order here has a continuing, future effect because the order 

subjects Peterson to the SVP statute.

Because the trial court’s order subjects Peterson to the SVP statute, the order affects his 

personal right to be free from potential total confinement pending an SVP trial. Although this 

effect is still contingent on the State filing a new SVP petition, the threat of total confinement 

pending another SVP trial is substantial. Accordingly, Peterson is an aggrieved party under

RAP 3.1.

CONCLUSION

Peterson is an aggrieved party under RAP 3.1, therefore, we consider the merits of his 

argument on appeal. The trial court did not abuse its discretion in admitting H.L.’s statements 

under ER 803(a)(5), and we do not review credibility determinations. Accordingly, we affirm the 

trial court’s order concluding that Peterson’s second degree assault conviction is a sexually violent 

offense.

SUTTON, J.

We concur:

WORSWICK, P.J.

LEE, J.