Message-Id: 
Date: Sun, 13 Nov 94 04:05 EST
From: aaron@m-net.arbornet.org (Aaron Larson)
To: harris@MIT.EDU
Subject: << VERY LONG -- 3291 LINES >> Swan Cases

The State of Washington, Petitioner, v. William Orr Swan, et al,
Respondents

State v. Swan
No. 55393-9
Supreme Court of Washington
114 Wash. 2d 613; 790 P.2d 610
May 3, 1990

Subsequent History:

As Amended by Order of the Supreme Court June 22, 1990.
Reconsideration Denied June 22, 1990.

Prior History:

Superior Court: The Superior Court for King County, No. 85-1-03828-9,
Anne L.  Ellington, J., on June 23, 1986, entered a judgment on a
verdict finding both defendants guilty.

Court of Appeals: The court reversed the judgment in an unpublished
opinion noted at 51 Wn. App. 1036.

Disposition: Holding that the trial court had not erred in finding
that the sexual abuse of one of the victims was sufficiently
corroborated to render her hearsay statements admissible and that
the same victim was not competent to testify, that newly discovered
evidence did not necessitate a new trial, that the victims' hearsay
statements were reliable, that the trial court did not abuse its
discretion in making various evidentiary and testimonial rulings
and had not commented on the evidence, that the prosecutor's closing
argument did not constitute reversible error, that rulings under
the child victim hearsay statute are reviewed for an abuse of
discretion, that the statute is valid, and that the State did not
violate due process by not disclosing a witness's history of sexual
abuse, the court reverses the decision of the Court of Appeals and
reinstates the judgment.

Headnotes:

[1] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- What Constitutes. For purposes of
RCW 9A.44.120(2)(b), which requires corroboration of an act of
sexual abuse before a hearsay statement of a child sexual abuse
victim who is not available as a witness can be admitted, the
corroboration requirement is satisfied by evidence sufficient to
support a logical and reasonable inference that the act of abuse
described in the hearsay statement occurred.

[2] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- Determination. The determination
of whether certain evidence corroborates an act of sexual abuse
for purposes of RCW 9A.44.120(2)(b) depends on all the facts of
each case. The court must balance the statutory goal of making the
child victim hearsay more readily available as evidence against
the likelihood that the use of the hearsay could lead to an erroneous
conviction.

[3] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- Parallel Disclosures of Victims --
Age. Children's consistent and independent descriptions in varying
degrees of detail of similar sexual acts that occurred in each
other's presence can provide sufficient corroboration of the acts
of sexual abuse to render their hearsay statements admissible under
RCW 9A.44.120(2)(b). The age of the victims is relevant to determining
whether the descriptions are sufficient to support a logical and
reasonable inference that the acts of abuse described in the hearsay
statements occurred.

[4] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- Precocious Sexual Knowledge. A
child's hearsay statements indicating precocious sexual knowledge
that only could have been learned as the result of being abused
can provide sufficient corroboration of the acts of sexual abuse
to render the statements admissible under RCW 9A.44.120(2)(b).

[5] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- Sexually Oriented Behavior. For
purposes of RCW 9A.44.120(2)(b), a child's sexually oriented behavior
that is not strikingly abnormal is not strongly corroborative of
acts of sexual abuse absent expert testimony interpreting the
behavior.

[6] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- Behavior With Anatomically Correct
Doll. For purposes of RCW 9A.44.120(2)(b), a child's play with
anatomically correct dolls can provide some corroboration of acts
of sexual abuse, even without expert testimony relating the behavior
to sexual abuse.

[7] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- Complaints of Pain. For purposes
of RCW 9A.44.120(2)(b), a child's complaints about pain in the
genitals or buttocks can provide some corroboration of acts of
sexual abuse, even in the absence of medical testimony substantiating
the complaints.

[8] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Corroboration -- Medical Examinations. A medical
professional's testimony regarding an examination of a child and
the views of an expert witness regarding the examination may be
corroborative of an act of sexual abuse for purposes of RCW
9A.44.120(2)(b), which requires corroboration of an act of sexual
abuse to render admissible a hearsay statement of a child sexual
abuse victim who is not available as a witness.

[9] New Trial -- Newly Discovered Evidence -- Test. Newly discovered
evidence does not warrant a new trial unless the party seeking the
new trial demonstrates that the evidence will probably change the
result of the trial, was discovered since the trial, could not have
been discovered before trial by the exercise of due diligence, is
material, and is not merely cumulative or impeaching.

[10] New Trial -- Newly Discovered Evidence -- Discretion of Court.
A trial court's denial of a motion for a new trial based on newly
discovered evidence is reviewed under the abuse of discretion
standard.

[11] Juveniles -- Witnesses -- Competency -- Juveniles -- Test. A
child is competent to testify if the child understands the obligation
to speak the truth; had the mental capacity, at the time of the
event which is the subject of the testimony, to receive an accurate
impression of it; has a memory sufficient to retain an independent
recollection of the event; has the capacity to express in words
the memory of the event; and has the capacity to understand simple
questions about the event.

[12] Juveniles -- Witnesses -- Competency -- Juveniles -- Review
-- Discretion of Court. A trial court's determination of the
testimonial competency of a child is reviewed only for a manifest
abuse of discretion.

[13] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Determination -- Factors. In determining the
reliability of a hearsay statement of a child victim of sexual
abuse under RCW 9A.44.120, the trial court must consider (1) whether
the child had an apparent motive to lie, (2) the child's general
character, (3) the number of persons who heard the statement, (4)
the spontaneity of the statement, (5) the timing of the statement
and the relationship between the child and the witness, (6) whether
the statement contains an express assertion about past fact, (7)
whether cross examination could show the child's lack of knowledge,
(8) whether the possibility of the child's recollection being faulty
is remote, and (9) whether the circumstances surrounding the
statement imply that the child may have misrepresented the defendant's
involvement.

[14] Sexual Offenses -- Evidence -- Statement of Child Victim --
Reliability -- Determination -- Discretion of Court. A trial court
has considerable discretion in determining whether a hearsay
statement of a child victim of sexual abuse is reliable under RCW
9A.44.120.

[15] Evidence -- Rebuttal Evidence -- Scope -- Repetition. Rebuttal
evidence is not inadmissible merely because it overlaps to some
degree with the evidence presented in the party's case in chief.

[16] Evidence -- Rebuttal Evidence -- Discretion of Court. The
admissibility of evidence offered in rebuttal is a decision within
the trial court's discretion.

[17] Criminal Law -- Evidence -- Character Evidence -- Good Character
-- Impeachment -- In General. The State may introduce evidence to
impeach a criminal defendant's assertion of past good behavior or
denial of previous misconduct.

[18] Sexual Offenses -- Evidence -- Statement of Child Victim --
Notice -- Deficiency -- Waiver. The right to challenge the admission
of a hearsay statement of a child victim of sexual abuse on the
basis of the State's failure to provide sufficient notice of its
intent to introduce the statement under RCW 9A.44.120 is waived
when the defense fails to request a continuance or to reopen its
case.

[19] Evidence -- Opinion Evidence -- Expert Testimony -- Test.
Expert testimony is admissible under ER 702 if the witness qualifies
as an expert, the opinion is based on an explanatory theory generally
accepted in the scientific community, and the testimony would be
helpful to the trier of fact.

[20] Evidence -- Opinion Evidence -- Expert Testimony -- Review --
Abuse of Discretion. A trial court's decision as to the admissibility
of expert testimony under ER 702 is reviewed only for an abuse of
discretion.

[21] Trial -- Comment on Evidence -- What Constitutes -- Test. A
statement by a trial judge does not constitute a comment on the
evidence prohibited by Const.  art. 4, @ 16 unless it conveys to
the jury the judge's personal attitudes toward the merits of the
case or allows the jury to infer the judge's personal beliefs
regarding evidence submitted.

[22] Evidence -- Relevance -- Discretion of Court -- In General.
The admission or exclusion of relevant evidence is a matter within
the sound discretion of the trial court.

[23] Appeal -- Review -- Issues Not Raised in Trial Court --
Objection to Evidence -- General Objection. A trial court's
sustainment of a general objection to testimony given will be upheld
on appeal if there was any valid basis for excluding the evidence.

[24] Evidence -- Objection -- Sustained Objection -- Failure To
Strike Testimony -- Effect. A trial court's sustainment of an
objection to testimony does not remove the testimony from the jury's
consideration if the court neither strikes the testimony nor
instructs the jury to disregard it.

[25] Criminal Law -- Misconduct of Prosecutor -- Argument -- Waiver
-- Failure To Object. A criminal defendant waives a challenge to
an improper statement by the prosecutor by not making an adequate
timely objection and moving for a mistrial or requesting a curative
instruction unless the misconduct is so flagrant and ill intentioned,
and the prejudice resulting therefrom so marked and enduring, that
no instructions or admonitions could neutralize its effect.

[26] Criminal Law -- Misconduct of Prosecutor -- Argument -- Harmless
Error -- Effect of Instructions. A jury is presumed to follow an
instruction to disregard an improper remark of the prosecutor.

[27] Criminal Law -- Misconduct of Prosecutor -- Argument -- Personal
Opinion -- Evidentiary Implications. A prosecutor may draw reasonable
inferences from the evidence regarding a witness's truthfulness so
long as no personal opinion is expressed.

[28] Sexual Offenses -- Evidence -- Statement of Child Victim --
Review -- Discretion of Court -- Validity. The abuse of discretion
standard for reviewing hearsay statements admitted under the child
abuse hearsay exception (RCW 9A.44.120) is constitutional. This
standard does not prevent an appellate court from carefully reviewing
the evidence and testimony presented.

[29] Sexual Offenses -- Evidence -- Statement of Child Victim --
Validity -- In General. RCW 9A.44.120, which permits the admission
under specified conditions of a hearsay statement of a child sexual
abuse victim who is not available as a witness, is constitutional.

[30] Criminal Law -- Discovery -- Failure To Disclose -- Materiality
-- Determination. The State's failure to disclose a matter during
discovery is not reversible error unless the matter is exculpatory
and, when evaluated in the context of the entire record, creates
a reasonable doubt that did not otherwise exist as to the defendant's
guilt.

Syllabus:

Nature of Action: Parents were charged with the statutory rape of
their 3-year-old daughter and their daughter's 3-year-old friend.

Counsel:

Norm Maleng, Prosecuting Attorney, Cynthia S.C. Gannett, Senior
Appellate Attorney, and Timothy Michael Blood, Susan Roe, and Donald
J.  Raz, Deputies, for petitioner.

Allen & Hansen, P.S., and David Allen, Richard Hansen, and Donald
Roistacher, for respondents.

Judges: En Banc. Andersen, J. Callow, C.J., Utter, Brachtenbach,
Dolliver, Dore, Durham, and Smith, JJ., and Pearson, J. Pro Tem.,
concur. Guy, J., did not participate in the disposition of this
case.

Opinion by Judge Andersen:

Facts of Case

The two defendants in this child abuse case were convicted at a
jury trial in the Superior Court of the State of Washington for
King County. The Court of Appeals reversed in an unpublished opinion.
n1 We reverse the Court of Appeals and reinstate the judgments and
sentences imposed by the trial court.

====    Footnotes    ===>

n1 State v. Swan, 51 Wn. App. 1036 (1988). Defendants' attorneys
at the trial court were not the same attorneys as represented them
at the appellate court level.

<=== End of Footnotes ====

At issue here is whether there was sufficient corroborating evidence
to justify the trial court allowing into evidence the hearsay
statements of one of the two child victims in this statutory rape
case. There is unfortunately no way at all to resolve this issue
other than by going into the sad details of the abuse which the
jury by its verdict found that the two defendants, husband and
wife, had inflicted on their own 3-year-old daughter and her
3-year-old playmate.

The defendants herein, William and Kathleen Swan, were each charged
with two counts of statutory rape in November of 1985. The charges
stemmed from statements made by their 3-year-old daughter, B.A.,
and her 3-year-old friend, R.T., to their day-care teachers and to
a Child Protective Services (CPS) worker.

Before trial, the State gave notice of its intent to rely upon the
child sexual abuse hearsay exception set forth in RCW 9A.44.120,
Washington's child victim hearsay statute. n2 This statute, set
forth in full in the margin, n3 creates an addition to the hearsay
rule not included in the Rules of Evidence (ER) adopted by this
court. n4 The trial court conducted pretrial hearings to determine
B.A.'s and R.T.'s competency to testify at trial, found both girls
incompetent to testify and admitted their earlier hearsay statements
into evidence at the trial.

====    Footnotes    ===>

n2 As to what is and is not "hearsay" in the context of a child
abuse case, see In re Penelope B., 104 Wn.2d 643, 709 P.2d 1185
(1985).

n3 At all times pertinent herein, the child victim hearsay statute
read as follows:

  "A statement made by a child when under the age of ten describing
  any act of sexual contact performed with or on the child by another,
  not otherwise admissible by statute or court rule, is admissible
  in evidence in dependency proceedings under Title 13 RCW and criminal
  proceedings in the courts of the state of Washington if:

  "(1) The court finds, in a hearing conducted outside the presence
  of the jury, that the time, content, and circumstances of the
  statement provide sufficient indicia of reliability; and

  "(2) The child either:

  "(a) Testifies at the proceedings; or

  "(b) Is unavailable as a witness: Provided, That when the child
  is unavailable as a witness, such statement may be admitted only
  if there is corroborative evidence of the act.

  "A statement may not be admitted under this section unless the
  proponent of the statement makes known to the adverse party his
  intention to offer the statement and the particulars of the statement
  sufficiently in advance of the proceedings to provide the adverse
  party with a fair opportunity to prepare to meet the statement."
  RCW 9A.44.120.

n4 Penelope B., 104 Wn.2d at 650.

<=== End of Footnotes ====

At trial, whenever one of the girl's hearsay statements was about
to be solicited from a witness, questioning was stopped by the
trial court, the jury was excused and voir dire examination was
conducted to determine the reliability of the statements. In each
instance involved in this appeal, the trial court found the children's
hearsay statements to be reliable and admitted them into evidence.

The jury found each defendant guilty of two counts of statutory
rape, one count as to each victim. A defense motion for a new trial
was denied, and each defendant was sentenced to 50 months in jail.

The defendants appealed, and the Court of Appeals reversed the
convictions and remanded for a new trial because of the admission
into evidence of R.T.'s hearsay statements. The Court of Appeals
agreed that the girls' hearsay statements were reliable, but observed
that the trial court had failed to consider whether the alleged
abuse was corroborated by other evidence of sexual abuse as required
by the child victim hearsay statute (RCW 9A.44.120). After reviewing
the record, the Court of Appeals found sufficient corroboration of
B.A.'s abuse but insufficient corroboration of R.T.'s abuse.  That
court held that a new trial was necessary on both counts for each
defendant.

After the State's motion for reconsideration was denied, the State
sought discretionary review in this court. Review was deferred
pending our opinion in State v. Jones, 112 Wn.2d 488, 772 P.2d 496
(1989). After the Jones opinion was filed, this court granted review
of this case.

Although the principal issue before us is whether R.T.'s alleged
abuse was sufficiently corroborated to render her hearsay statements
admissible as evidence, 11 additional issues are also presented.

Issues

Issue One. Did the Court of Appeals err in finding insufficient
corroboration of the alleged sexual abuse of R.T.?

Issue Two. Did the trial court err in declining to grant a new
trial on the basis of evidence claimed to be newly discovered?

Issue Three. Did the trial court err in finding the child R.T.
incompetent to testify?

Issue Four. Did the trial court err in finding the children's
hearsay statements reliable under the child victim hearsay statute
(RCW 9A.44.120)?

Issue Five. Did the trial court err in permitting the State to call
rebuttal witnesses?

Issue Six. Did the trial court err in not allowing a psychologist
to testify for the defense as an expert?

Issue Seven. Did the trial court make a constitutionally prohibited
comment on the evidence?

Issue Eight. Did the trial court err in its ruling regarding
defendant William Swan's explanation of his daughter's use of the
word "potty"?

Issue Nine. Did the deputy prosecuting attorney commit reversible
error during the course of the State's closing argument?

Issue Ten. Is this court's "manifest abuse of discretion" review
standard unconstitutional?

Issue Eleven. Is RCW 9A.44.120, the child victim hearsay statute,
unconstitutional?

Issue Twelve. Did the State's alleged failure to disclose that one
of the State's witnesses had been sexually molested violate due
process?

Decision

Issue One.

Conclusion. After a careful consideration of the categories of
allegedly corroborative evidence in this case, we conclude that
there was indeed sufficient evidence before the trial court to
support its determination that R.T.'s statements were admissible
under Washington law. Accordingly, the Court of Appeals ruling to
the contrary must be reversed.

[1] Under Washington's child victim hearsay statute, RCW 9A.44.120,
a child's description of an "act of sexual contact performed with
or on the child by another" is admissible as hearsay evidence in
a criminal proceeding if the statement provides "sufficient indicia
of reliability" and, if the child is unavailable as a witness,
"there is corroborative evidence of the act." n5 The Court of
Appeals has defined corroborative evidence of the act as "'evidence
of sufficient circumstances which would support a logical and
reasonable inference'" that the act of abuse described in the
hearsay statement occurred. n6 The child victim hearsay statute
requires separate determinations of reliability and corroboration
when the child is unavailable to testify. n7

====    Footnotes    ===>

n5 State v. Jones, 112 Wn.2d 488, 489-90, 772 P.2d 496 (1989)
(citing RCW 9A.44.120).

n6 State v. Hunt, 48 Wn. App. 840, 849, 741 P.2d 566, review denied,
109 Wn.2d 1014 (1987) (citing Bremerton v. Corbett, 106 Wn.2d 569,
578-79, 723 P.2d 1135 (1986)).

n7 State v. Ryan, 103 Wn.2d 165, 174, 691 P.2d 197 (1984); State
v.  Edmondson, 43 Wn. App. 443, 453, 717 P.2d 784, review denied,
106 Wn.2d 1016 (1986).

<=== End of Footnotes ====

[2] The determination of whether there is corroborative evidence
of the act involves balancing the goal of making child victim
hearsay more readily available as evidence against the concern that
the use of such hearsay should not create too great a risk of an
erroneous conviction. n8 As we recently explained, "[t]he Legislature
has offered no specific guidance on how this balance is to be
struck. Similarly, we feel it unwise to suggest any hard and fast
rules. The determination must proceed case by case, . . .". n9

====    Footnotes    ===>

n8 Jones, 112 Wn.2d at 495.

n9 Jones, 112 Wn.2d at 495.

<=== End of Footnotes ====

The most effective types of corroboration in such cases, of course,
are eyewitness testimony, a confession or admissions by the accused,
and medical or scientific testimony documenting abuse. n10 In most
cases of child sexual abuse, however, there is no direct physical
or testimonial evidence. n11 The child victim is often the only
eyewitness to the crime, and physical corroboration is rare because
the sex offenses committed against children tend to be nonviolent
offenses such as petting, exhibitionism, fondling and oral copulation.
n12 Physical corroboration may also be unavailable because most
children do not resist, either out of ignorance or out of respect
for authority. n13 Consequently, in order to give any real effect
to the child victim hearsay statute, the corroboration requirement
must reasonably be held to include indirect evidence of abuse. n14
Such evidence has included a child victim's precocious knowledge
of sexual activity, a semen stain on a child's blanket, a child's
nightmares and psychological evidence. n15

====    Footnotes    ===>

n10 See American Bar Ass'n, The Corroboration of Sexual Victimization
of Children, Child Sexual Abuse and the Law, 103, 107 (5th ed.
1984); Jones, 112 Wn.2d at 495.

n11 Penelope B., 104 Wn.2d at 647; Jones, 112 Wn.2d at 495; Hunt,
48 Wn. App.  at 848.

n12 Penelope B., 104 Wn.2d at 646-47; Miller v. State, 517 N.E.2d
64, 69 (Ind. 1987); State v. Petry, 524 N.E.2d 1293, 1300 (Ind.
Ct. App. 1988).

n13 Penelope B., 104 Wn.2d at 647; Miller, 517 N.E.2d at 69; Petry,
524 N.E.2d at 1300.

n14 Jones, 112 Wn.2d at 495; Hunt, 48 Wn. App. at 848; State v.
John Doe, 105 Wn.2d 889, 897, 719 P.2d 554 (1986) (Utter, J.,
concurring).

n15 See Jones, 112 Wn.2d at 495-96; see also State v. Allen, 157
Ariz. 165, 177, 755 P.2d 1153 (1988).

<=== End of Footnotes ====

There is no disagreement as to the fact that the trial court in
this case did not separately determine that corroborative evidence
of abuse existed before ruling that the hearsay statements were
admissible. The State does, however, dispute the Court of Appeals
conclusion that a search of the entire record revealed insufficient
corroboration of R.T.'s abuse to render her hearsay statements
admissible. The State argues that several categories of evidence
provided sufficient corroboration of R.T.'s abuse. These categories,
along with a description of the relevant testimony, n16 are analyzed
separately in the pages of this opinion that follow.

====    Footnotes    ===>

n16 These descriptions include some testimony offered only during
evidentiary hearings conducted in the jury's absence, as well as
evidence ruled inadmissible, since we may consider all evidence in
the record in assessing corroboration of claimed abuse. See Jones,
at 493; ER 104(a).

<=== End of Footnotes ====

Parallel Disclosures by the Children

On October 2, 1985, 3-year-old B.A. walked out of a day-care center
bathroom with her dress tucked in her tights. The center's teacher,
Lisa Conradi, untucked the dress and told B.A. to keep her private
parts covered.  When B.A. appeared confused, Conradi explained that
"private parts" means the areas covered by her bathing suit. B.A.
pointed to her chest and crotch area.  Conradi then added that no
one should look at or touch B.A.'s private parts, whereupon B.A.
said, "Uh-huh, Mommy and Daddy do." When asked "What do Mommy and
Daddy do?", B.A. replied, "Mommy spits on me." Conradi asked where,
and B.A.  pointed to her crotch. At this point, Conradi gave B.A.
a book and took the rest of the children downstairs. When Conradi
returned, she asked B.A. if her parents did anything else to her
private parts. B.A. said she spits on Mommy in her private parts
and that Daddy "puts his potty in me and it hurts real bad." Conradi
explained that a man's potty was a penis. The two then walked around
the room. B.A. played peekaboo from behind a door with Conradi
several times, and said, "My daddy plays peekaboo with me." She
also said, "My daddy puts his penis in my mouth and icky milk comes
out." When asked who else played this game, B.A. said Josh does.
B.A. also said they played the games in the bedroom with their
clothes off.

When Cindy Bratvold, the day-care owner, returned to the center a
short while later, Conradi told her about B.A.'s statements. Bratvold
then called Child Protective Services (CPS). After calling CPS,
Bratvold asked B.A. whether her close friend R.T., who attended
the same day-care center, played games with B.A.'s parents. B.A.
said "yes".

Two CPS caseworkers interviewed B.A. that day. B.A. would not answer
questions they posed, but when Conradi asked in their presence if
her mother spit on her or put her mouth on B.A.'s private parts,
the child nodded and said "yes". The interview ended when the
defendant Kathleen Swan came to take her daughter B.A. home. The
CPS caseworkers then decided to interview R.T. and B.A.  on October
4, when both girls were scheduled to be at the day-care center.

R.T. came to the center the following day, October 3, but B.A. did
not.  Bratvold took R.T. upstairs and began to talk to her. Bratvold
started by asking R.T. if she liked certain people, including
"B.A.'s mommy". R.T. liked the people listed and "kind of" liked
Kathy Swan. When asked what she meant, R.T. said "she makes us play
funny games." These games included exercise games and ring around
the rosy in the nude and falling on the bed. "Then we kiss Kathy's
boobies and we lick her potty, and she does that to us, too." R.T.
also said that "Kathy puts -- one time Kathy put something in my
potty and made me bleed, and she cleaned it up and told me not to
say anything."

R.T. then said she played games with "Uncle Bill" (the defendant
William Swan). She said that Uncle Bill's favorite game was the
happy birthday game. "And that's where he puts his peepee in my
mouth and shakes it around, and then he says, 'Here is your happy
birthday present,' and something icky gets in my mouth." R.T. also
said that the Swans put candles and marbles in her "peepee". She
added that another man, John or Josh, played the games.

The next day, a CPS caseworker came to the Bratvold day-care center
to talk to the two girls. An initial attempt to interview them
together proved unsuccessful, so the caseworker talked to the girls
separately in Bratvold's presence. R.T. told the caseworker that
she played "with a game of marbles" at the Swans' home. She then
added, "Bill plays without his clothes on.  Bill touches my potty
with his fingers." When asked what a "potty" was, R.T.  said it
was a "peepee hole". R.T. then said, "Kathy put some marbles in my
bottom." When asked where her bottom was she said "peepee hole"
and pointed to the vaginal area of an anatomically correct doll
that the caseworker had brought. R.T. then added, "I am afraid .
. . Kathy touches my potty. Blood was on my bottom. Kathy put
something in my peepee hole. It hurt." She said there was blood
"down there" and pointed to her crotch. She also said that she
touched Kathy's "potty and boobies" and put her mouth on them. R.T.
then said that B.A. was present, and added, "I am too afraid for
it. I just hurt, she poked a marble in it, she just put a marble
in it, in my potty." What happened? "Kathy fixed it."

Bratvold then asked R.T. about the happy birthday games. R.T. said,
"Bill and Kathy put a candle in my potty and played happy birthday.
Bill put marbles in my potty to make it better. Stuff comes out of
his peepee." When asked if the "stuff" was like milk, water, or
blood, R.T. replied, "Like milk." She added that "Bill gives me a
happy birthday present, gives me one in my bottom." When asked if
she liked Bill, R.T. said, "He is mean, I don't like him, he hurts
me, he puts his peepee - -." R.T. pointed to the vagina on the doll
when asked where Bill puts his peepee on her. "It hurt." R.T. added
that B.A. played the marble and happy birthday games with the
defendants.

The CPS caseworker then interviewed B.A. When asked if Mommy spits
on her potty, B.A. replied, "Yes". When asked where Daddy puts his
peepee, she said, "On my potty." When asked how it felt, she
answered, "It hurts". B.A. said R.T.  was present when these things
happened, and she said that she played happy birthday and marble
games with her mother and father, but she would not describe the
games.

After the interviews, the police were called and the children were
taken into protective custody. B.A. was placed in a foster home
while R.T. was returned to her parents and continued to attend
Bratvold's day-care center. Two months later, R.T. told Bratvold
she wanted to tell her something. "See my finger? I have a burn.
I had a burn. . . . When Bill and Kathy lit the candle in my potty
and I tried to grab it out, my finger got burned, and then I bumped
my head on the counter when they made me lay on the counter." On
October 17, 1985, after the alleged abuse came to light, R.T.
spontaneously told her father that "Bill and Kathy are bad" because
they put marbles in her bottom.

B.A.'s foster mother testified that while drying B.A. off after a
bath, B.A.  told her that her mommy and daddy put marbles in her
potty. The foster mother asked her son for some toy marbles and
asked B.A. if they were the type of marbles Daddy put in her potty.
B.A. laughed and said no. When asked what kind of marbles Daddy
used, B.A. pointed to her crotch. The foster mother then asked if
the marbles were on Daddy's potty, and B.A. pointed to her crotch
and said, "Yes, and a snake full of marbles." The foster mother
also testified that B.A.  had mentioned marbles on other occasions,
and once had said that her daddy put marbles and other things inside
her potty and then started to cry as she said this. The foster
mother testified further that B.A. once brought up the subject of
birthday candles in her potty.

Having outlined the parallel disclosures made by the children, we
now turn to an analysis thereof to determine whether, as the State
argues, these disclosures are corroborative evidence of the alleged
abuse.

B.A. and R.T. did not have contact with each other on October 2 or
3, the days that they talked to the day-care workers. On October
4 they sat together but briefly before their separate interviews
by the CPS caseworker.

Summarizing the similarities between the statements of these two
3-year-old children, we find the following. B.A. said that her
daddy put "his potty in me", and R.T. said that he put his "peepee"
in her. B.A. said that Daddy put his penis in her mouth and icky
milk came out; R.T. said Uncle Bill put his potty in her mouth and
something icky, like milk, came out. B.A. said that she and her
parents played games in the bedroom without clothes on; R.T.  said
that they played ring around the rosy in the nude, that Uncle Bill
played without his clothes on, and that they fell on the bed after
their games. B.A.  said Josh also played the games, while R.T. said
John or Josh played. B.A. said that her parents put marbles and
birthday candles in her potty; R.T. said that the Swans put candles
and marbles in her peepee and her bottom.

The Court of Appeals did not discuss these statements in detail
before dismissing their corroborative value. The Court of Appeals
held, "Certainly, to some degree, R.T.'s statements corroborate
those of B.A. and to some degree B.A.'s statements corroborate
those of R.T. However, under the circumstances of this case we do
not believe that this corroborative evidence is, standing alone,
sufficient to lead to the requisite 'logical and reasonable
inference.'"

Recent cases from other jurisdictions have discussed "cross-corroboration"
in greater detail and have used it to support the admission into
evidence of child victims' hearsay statements. The statutory
guidelines in those other jurisdictions, however, are not precisely
the same as those set forth in Washington's child victim hearsay
statute, RCW 9A.44.120.

The New York Court of Appeals found that three brothers' hearsay
statements of abuse cross-corroborated each other in the second of
two child protective proceedings reported in In re Nicole V., 71
N.Y.2d 112, 518 N.E.2d 914, 524 N.Y.S.2d 19 (1987). The action
underlying the second proceeding was governed by a civil statute
providing that out-of-court statements may be corroborated by
"'[a]ny other evidence tending to support'" their reliability. n17
Applying what it referred to as this "broad flexible rule", the
court concluded that the statements of each brother tended to
support the other's statements and, viewed together, gave sufficient
indicia of reliability to each victim's out-of-court statements.
n18 As the court there declared:

  Specifically, both Francis and David described an incident in
  which respondent had David put a "stick" into respondent's vagina
  while Francis looked on.  Additionally, both Samuel and Francis
  described separate incidents where respondent came into each child's
  bedroom in the middle of the night and had sexual relations, hand
  to penis contact and mouth to penis contact, with each child after
  which she threatened each child not to tell anyone about the
  incidents. Because each child had consistently and independently
  described these particularly detailed sexual acts, the reliability
  of the victim's out-of-court statements could be weighed by comparing
  them.

In re Nicole V., 71 N.Y.2d at 124. Thus, in this New York case the
courts below properly found each victim's hearsay statements were
sufficiently corroborated by the statements of the other victims
to establish a prima facie case of sexual abuse. n19

====    Footnotes    ===>

n17 In re Nicole V., 71 N.Y.2d 112, 118, 518 N.E.2d 914, 524 N.Y.S.2d
19 (1987) (citing Family Court Act @ 1046(a)(vi)).

n18 Nicole V., 71 N.Y.2d at 124.

n19 Nicole V., 71 N.Y.2d at 124.

<=== End of Footnotes ====

[3] As noted earlier, our statute (RCW 9A.44.120) requires
corroboration of the act of sexual abuse, and thus is less "broad
and flexible" than the New York statute applied above. B.A. and
R.T. did, however, consistently and independently describe similar
sexual acts in varying degrees of detail. Using the logic and
reasoning implicit in In re Nicole V., the many parallels between
the 3-year-old girls' statements in this case supply a reasonable
inference that the abuse described by these young children did
occur.

The Alaska Court of Appeals also used cross corroboration to allow
admission of two child victims' hearsay statements into evidence
in Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989) and Clifton
v. State, 758 P.2d 1279 (Alaska Ct.  App. 1988). The Alaska statute
applicable to both cases required additional evidence to corroborate
a child victim's hearsay statements before they could be admitted
into evidence before a grand jury. n20 In Murray, a 5-year-old and
her 9-year-old neighbor told their parents and a police officer
that a family friend had sexually abused them. They described in
detail sexual acts that they were subjected to and which they had
witnessed being performed on each other. Despite lack of a confession
or any medical or physical evidence, the court found the girls'
charges corroborated in large part by each other's claims. The
court cited Clifton in observing that "one child's claims of sexual
abuse may corroborate another child's claim against the same
individual." n21

====    Footnotes    ===>

n20 Alaska Stat. @ 12.40.110.

n21 Murray v. State, 770 P.2d 1131, 1138 (Alaska Ct. App. 1989).

<=== End of Footnotes ====

In the other Alaska case, Clifton, an 11-year-old boy and his
13-year-old sister told a social worker that their stepfather had
sexually abused them, and then recanted their statements. In their
original statements, the boy had described in detail ongoing acts
of oral sex, while his sister said that the defendant had touched
her sexually four or five times. At trial, the youngsters again
denied their earlier charges, but admitted making earlier accusations
of sexual abuse. The court concluded there that the original
statements corroborated each other and were admissible as evidence.
n22

====    Footnotes    ===>

n22 Clifton v. State, 758 P.2d 1279, 1282 (Alaska Ct. App. 1988).

<=== End of Footnotes ====

In the case before us, as in Murray, the girls described in some
detail (R.T.  more than B.A.) similar sexual acts and said that
the other was present. The fact that the children in this case
reported each other's presence, coupled with their parallel references
to certain sexual practices, lends support to their claims of abuse.
In Clifton, the children recanted their claims, while in Murray
and the case at bar the children repeated the same basic stories
of abuse. Indeed, weeks and even months after their allegations
first came to light, both R.T. and B.A. independently indicated
that the defendants had inserted marbles and birthday candles into
their vaginas.  Moreover, these consistent claims came from
3-year-olds, as opposed to the 5- to 13-year-olds involved in
Clifton and Murray. We agree with the State that the likelihood
that 3-year-old girls would fabricate this same story simultaneously,
or that the girls would conspire to tell a continuing tale of sexual
abuse about the parents of one of them, is remote. While Clifton
and Murray required only corroboration of the statements, their
acceptance of two victims' hearsay as mutually corroborative
strengthens the State's contention in this case that the statements
of R.T. and B.A. are corroborative of each other's abuse.

Tied to these parallel disclosures is the State's argument that
the girls' eyewitness accounts of each other's abuse corroborates
their abuse. Each girl simply said, however, that the other was
present; neither described in detail what was seen to happen to
the other. This is in contrast with Murray, where the 9-year-old
said that she saw the defendant licking her 5-year-old friend's
vaginal and breast areas and is also in contrast with Nicole V.,
where the two boys described a specific act of abuse in which one
participated. n23 Here, the bare statement that the other girl also
played the games provides little corroboration of the alleged abuse.

====    Footnotes    ===>

n23 See Murray, 770 P.2d at 1133; Nicole V., 71 N.Y.2d at 124.

<=== End of Footnotes ====

Precocious Sexual Knowledge

Related to the girls' disclosures is the State's claim that their
statements indicate precocious sexual knowledge that the girls
could have learned only as the result of being abused.

[4] Such knowledge was demonstrated when a child victim described
the act of urolagnia which she claimed that the defendant made her
perform in State v.  Jones, 112 Wn.2d 488, 491, 772 P.2d 496 (1989).
There we found such "precocious knowledge" corroborative of the
child's claim of abuse. We there said that the victim "has described
and demonstrated with particularity acts of sexual gratification
that even the most imaginative adult might not conceive in a vacuum
of personal experience." n24 Since the record revealed no other
way in which the victim could have learned of such acts, her
knowledge was held in Jones to be corroborative evidence of abuse.
n25

====    Footnotes    ===>

n24 State v. Jones, 112 Wn.2d 488, 497, 772 P.2d 496 (1989).

n25 Jones, 112 Wn.2d at 497.

<=== End of Footnotes ====

The defense argues here that day-care workers Conradi and Bratvold
were predisposed to find child abuse and tainted the girls' memories
by asking them questions about what B.A. had said before the CPS
interviews began. It is true that Conradi did ask a few such
questions which the girls did not answer. The key allegations by
both girls, however, were made separately, spontaneously and
repeatedly. While B.A. answered only leading questions posed by
the CPS caseworker, she spoke freely to Conradi as well as to her
foster mother. It is our view that this record does not support
defendants' contention that witnesses Conradi and Bratvold supplied
the children with the sexual knowledge they revealed.

A 5-year-old child's precocious sexual knowledge was held corroborative
of her statements of abuse in the Murray case discussed above. In
Murray, the child gave a detailed description of episodes of vaginal
and anal penetration and fellatio, and spoke of a "milky substance"
coming out of the defendant's penis. n26 The court placed "great
emphasis" on the child's ability to describe the sexual contact
with specificity:

  Given the child's age (five years at the time of the assault), we
  concluded that the maturity and accuracy of the detail in her
  description of the offense provided intrinsic assurance of the
  reliability of her statement.

Murray, 770 P.2d at 1138.

====    Footnotes    ===>

n26 Murray, 770 P.2d at 1133-34.

<=== End of Footnotes ====

Another child's description of ejaculation was also held to have
corroborated her hearsay statements in the first proceeding reported
in In re Nicole V., 71 N.Y.2d 112, 518 N.E.2d 914, 524 N.Y.S.2d 19
(1987). In this proceeding, an expert testified that the victim's
knowledge of sexual activity far beyond the norm for 3 1/2-year-olds
was a classic symptom of child abuse. The court observed that there
was no other basis in reality for Nicole's statement of "white
glue" or "paste" coming from her father's genital area or the
placing of his penis in her vagina. n27

====    Footnotes    ===>

n27 In re Nicole V., 71 N.Y.2d 112, 121-22, 518 N.E.2d 914, 524
N.Y.S.2d 19 (1987).

<=== End of Footnotes ====

In the present case, both victims described episodes of fellatio
and ejaculation, as well as intercourse and possibly cunnilingus.
While these acts are not as unusual as those described by the child
victim in Jones, their accurate description by 3-year-old children
indicates such precocious sexual knowledge that we consider it
corroborative of abuse.

B.A.'s Masturbatory Behavior

Witness Bratvold testified that B.A. masturbated constantly during
her last 4 to 5 months at the day-care center, and one of Bratvold's
employees testified that she had to repeatedly tell B.A. to keep
her hands out of her pants. This behavior was not referred to by
the Court of Appeals as corroborative evidence of abuse.

While the State argues here that such masturbation by this 3-year-old
child demonstrates precocious sexual knowledge, the State deliberately
did not offer testimony of its significance at trial. In making
her offer of proof regarding a doctor's testimony about B.A.'s
emotional reactions to two medical examinations, the deputy
prosecuting attorney advised the trial court as follows:

Your honor, at this point, the State, and it hopes to alleviate a
lot of argument, is not asking Dr. Jenny to testify regarding
masturbatory behavior, whether it's excessive on the part of a
three-year-old or the sexual acting-out, the State is leaving that
alone. What we are asking her to testify at this point is the
significance, if any, of this behavior during the exam.

The defense urges this court to consider expert commentary and
cites a pediatric guide stating that "'[o]ccasional masturbation
is a normal behavior of many infants and preschoolers.'" n28 We
note that another expert sees frequent masturbation as a common
reaction to sexual victimization. n29

====    Footnotes    ===>

n28 Response to Petition for Review, at 14.

n29 American Bar Ass'n, The Corroboration of Sexual Victimization
of Children, Child Sexual Abuse and the Law, 103, 109 (5th ed.
1984), cited in Note, The Testimony of Child Victims in Sex Abuse
Prosecutions: Two Legislative Innovations, 98 Harv. L. Rev. 806,
821 n.99 (1985).

<=== End of Footnotes ====

Even if such masturbatory behavior were to be viewed as partially
corroborative of B.A.'s abuse, we fail to see how it might corroborate
R.T.'s abuse. Arguably, it could perhaps be reasoned that if B.A.
masturbated because she was abused, and if R.T. was present when
B.A. was abused, then R.T.  probably was abused too. It is most
questionable, however, that this could reasonably be considered as
corroborative evidence of R.T.'s abuse.

The Unusual "Greeting" of B.A. and R.T.

This "greeting", performed more than once at the day-care center,
consisted of the girls running up to each other, grabbing their
crotches, and giggling.  As stated above, the State intentionally
did not offer expert testimony on the meaning of this "sexual acting
out", presumably to avoid protracted argument. The Court of Appeals
held that without such expert testimony, evidence of the "greeting"
was useless as corroboration.

A child's sexualized behavior at her day-care facility was seen as
corroborative by the court despite an expert's uncertainty in State
v. Hunt, 48 Wn. App. 840, 741 P.2d 566, review denied, 109 Wn.2d
1014 (1987). Day-care employees testified in that case that the
child took naps with two blankets bunched under her crotch and
thighs to elevate her bottom, and then tucked her blankets between
her legs and rocked herself to sleep. Employees also observed the
child lying face down with her underpants down and a little boy
rubbing her buttocks. n30 A psychologist testified that such conduct
could indicate that the child had been exposed to adult sexuality
and sexual abuse.  n31 The trial court found the expert's testimony
"very indefinite" but in its own judgment concluded that the child's
behavior at the day-care facility met the corroboration requirement
of RCW 9A.44.120. n32 The Court of Appeals also found the expert's
assessment somewhat equivocal, but proceeded to find ample
corroboration based on the child's behavior and other evidence in
the case. n33

====    Footnotes    ===>

n30 State v. Hunt, 48 Wn. App. 840, 841, 741 P.2d 566, review
denied, 109 Wn.2d 1014 (1987).

n31 Hunt, 48 Wn. App. at 842.

n32 Hunt, 48 Wn. App. at 842-43.

n33 Hunt, 48 Wn. App. at 850.

<=== End of Footnotes ====

Two recent Minnesota cases similarly considered abnormal and
sexualized behavior as corroborative of children's hearsay statements
regarding abuse. In M.N.D. v. B.M.D., 356 N.W.2d 813, 816 (Minn.
Ct. App. 1984), a psychologist testified that a child's behavior
in inserting objects into her rectum was consistent with sexual
abuse. In D.A.H. v. G.A.H., 371 N.W.2d 1, 4 (Minn. Ct. App. 1985),
the court found corroborative the child's fear of men as well as
her behavior in grabbing at men's genital areas and having nightmares.
In this Minnesota case, there was no mention of expert interpretation
of such behavior.

[5] While experts may not be needed to label certain behavior as
symptomatic of abuse, it would seem that the less obviously sexual
the behavior, the more experts might be able to assist in interpreting
that behavior. The "greeting" employed by B.A. and R.T. would not
appear to be strikingly abnormal, sexualized behavior. Without
expert interpretation, it may be viewed as sexually oriented, but
not as strongly corroborative of either girl's abuse.

R.T.'s Behavior With an Anatomically Correct Doll

When the CPS caseworker interviewed R.T., she brought along an
anatomically correct female doll. R.T.'s behavior with the doll
consisted of pointing to the vagina of the doll when she said
"peepee hole", and again pointing to the vagina of the doll when
the caseworker asked her where Bill put his "peepee" on her.  The
Court of Appeals held that since there was no expert testimony in
this case regarding behavioral characteristics that evince sexual
abuse, there was nothing in the record to support the conclusion
that R.T.'s behavior with the doll demonstrated unusual sexual
awareness or constituted corroboration of abuse.

Here again, the question of whether expert testimony was necessary
is raised.  In Hunt, our Court of Appeals observed that much of
the child victim's play with anatomically correct dolls was a
combination of "'nonassertive verbal and nonverbal conduct'". n34
Testimony regarding such play was thus not hearsay and provided
additional corroboration that the child had been abused. n35 In
Hunt, the testimony regarding the child's play was unaccompanied
by expert testimony.  The play consisted of the child undressing
a male doll and grabbing its penis, undressing a female doll, and
placing the penis of the male doll between the female doll's legs.
n36 Testimony regarding play with anatomically correct dolls also
was viewed as corroborative without the benefit of expert testimony
in State v. Jones, 112 Wn.2d 488, 772 P.2d 496 (1989). In Jones,
the play demonstrated the abusive act of urolagnia. n37

====    Footnotes    ===>

n34 Hunt, 48 Wn. App. at 850 (citing In re Penelope B., 104 Wn.2d
643, 655, 709 P.2d 1185 (1985)).

n35 Hunt, 48 Wn. App. at 850; Penelope B., 104 Wn.2d at 654-55.

n36 Hunt, 48 Wn. App. at 842.

n37 State v. Jones, 112 Wn.2d 488, 491, 772 P.2d 496 (1989).

<=== End of Footnotes ====

In two cases from other jurisdictions, a child victim's play with
anatomically correct dolls also was seen as corroborative without
the aid of expert testimony. In Murray, the child put the penis of
a male doll between the legs of a female doll, in its mouth, and
in its rectal area. n38 Another child demonstrated with dolls that
her father had touched her genital area in In re Dutchess Cy. Dep't
of Social Servs. ex rel. Kerri K., 135 A.D.2d 631, 633, 522 N.Y.S.2d
210 (1987).

====    Footnotes    ===>

n38 Murray v. State, 770 P.2d 1131, 1134 (Alaska Ct. App. 1989).

<=== End of Footnotes ====

[6] It thus appears to us that R.T.'s play may be considered on
its own merits, without the benefit of expert interpretation. Her
play with the female doll was not nearly as explicit as the 2-doll
play described in Jones, Hunt, and Murray, but is equivalent to
that described in Kerri K. As such, it serves as at least some
corroboration of R.T.'s abuse.

R.T.'s Complaints of Pain

R.T.'s father testified that during the summer of 1985, and up to
the beginning of September 1985, R.T. occasionally complained that
her bottom was very sore while doubling over and putting her hands
on her crotch.  The Court of Appeals rejected this evidence as
having any significance on the basis that it was medically
unsubstantiated and because the complaints "occurred months after
the abuse allegedly occurred and ceased 1 month before the allegations
came to light."

We agree that it is clear that R.T.'s complaints ceased 1 month
before the allegations came to light in early October. Less clear,
however, is the timing of the alleged abuse. R.T.'s father testified
that the defendants baby-sat R.T.  a couple of times a month during
1985. The only time he could recall the defendant William Swan
being there was when R.T. spent the night with the defendants in
January 1985. The defendant Kathy Swan testified that she baby-sat
R.T. only five or six times between January and October 1985. Both
defendants testified that the only time R.T. was with William Swan
in her parents' absence was on the January night she spent with
the defendants.

[7] If the defendants' testimony is believed, R.T. could have been
sexually assaulted by William Swan only on that January night, well
before her complaints of pain began. She had more chances at a
later time to be assaulted by Kathy Swan, however, according to
both her father and Kathy Swan. The information which was filed in
this case charged the defendants with raping the girls between
January and October 1985. Thus, the timing of the alleged abuse
does not appear to us to be as certain as the Court of Appeals
seemed to indicate.  It is true that the complaints were not
medically substantiated, but according to at least one authority,
psychosomatic complaints about pain in the genitals or buttocks
may be a symptom of sexual victimization. n39 We thus conclude that
R.T.'s complaints did provide some degree of corroboration of sexual
abuse.

====    Footnotes    ===>

n39 American Bar Ass'n, The Corroboration of Sexual Victimization
of Children, Child Sexual Abuse and the Law, 103, 109 (5th ed.
1984).

<=== End of Footnotes ====

Physical and Emotional Corroboration of B.A.'s Abuse

This category of evidence includes testimony regarding B.A.'s two
medical examinations and the views of an expert witness regarding
those examinations.

Thomas Ritter, a nurse practitioner, examined B.A. on October 7,
1985. He was asked to check out her coughing and also to examine
her for signs of sexual abuse. B.A. became very distraught when
Ritter told her he wanted to do a genital examination. She clung
to her foster mother and said repeatedly, "Please don't hurt me."
When she finally agreed to be examined, she wouldn't let Ritter
completely remove her underpants. She then assumed a position that
Ritter said he had never seen in his 4 years of practice with
children. She lay on her back, drew her knees up to her chest, and
put her arms around her knees, thus leaving her genitalia and
buttocks exposed. She was crying at the time and intermittently
attempted to guard her genitalia by putting her hand between her
legs. Ritter also found that the inside of the labia contained
blood vessels that were more dilated than usual, and saw that the
area around the introitus (the opening of the vagina) was reddened.
He estimated the size of the introitus to be 1 to 1.2 centimeters.
During the examination, Ritter did not check on whether a hymen
was present, but he was able to see into B.A.'s vagina. After the
examination, B.A. asked Ritter two or three times not to take any
pictures of her, and was overall very distraught.

On October 9, 1985, the Swans' family physician, Dr. Lawrence
Parris, examined B.A. at the request of CPS. Dr. Parris testified
that B.A. was very fearful and didn't want her underpants pulled
down. Dr. Parris observed that the vaginal introitus was slightly
red, and noticed a slight discharge. He did not note whether the
hymen was intact. He found no definite evidence of physical injury,
but recommended that B.A. be evaluated at a sexual assault center
because of her fearfulness.

Dr. Carol Jenny, Medical Director of the Sexual Assault Center at
Harborview Medical Center, was accepted by the court as an expert
on sexual abuse of children, and testified about her observations
regarding the Ritter and Parris findings. Dr. Jenny testified that
an introitus of 1 to 1.2 centimeters is abnormally large for a
3-year-old (the normal size is .4 cm). She noted that Ritter's
ability to see the tissue inside the vagina indicated that he could
see through the hymenal opening, even though neither Ritter nor
Dr.  Parris specifically recorded the presence or absence of a
hymen. She also observed that it is unusual to find a vaginal
discharge in a child, and such a discharge might result from
infection caused by sexually transmitted disease.  In assessing
her testimony, the Court of Appeals considered Dr. Jenny's opinion,
which had been ruled inadmissible by the trial court, n40 that
B.A.'s fearfulness during the examination was probably a sign of
sexual abuse.

====    Footnotes    ===>

n40 See Jones, 112 Wn.2d at 493; ER 104(a).

<=== End of Footnotes ====

There was no medical evidence to document R.T.'s claims of abuse.
A physician examined her on October 5, 1985 and found no signs of
physical trauma.

[8] Medical evidence similar to that regarding B.A. was considered
corroborative of abuse in State v. Gitchel, 41 Wn. App. 820, 706
P.2d 1091, review denied, 105 Wn.2d 1003 (1985). Such evidence in
Gitchel included a doctor's finding of partial vaginal penetration
and the child's inappropriate behavior during the medical examination.
n41 The New York Supreme Court also concluded that redness in a
child's genital area partially corroborated her allegations of
abuse in Kerri K., 135 A.D.2d at 633.

====    Footnotes    ===>

n41 State v. Gitchel, 41 Wn. App. 820, 828, 706 P.2d 1091, review
denied, 105 Wn.2d 1003 (1985).

<=== End of Footnotes ====

We thus observe in this case, as did the Court of Appeals, that
the medical evidence regarding B.A. is sufficient to permit a
logical and reasonable inference that she was abused. Whether that
evidence corroborates R.T.'s abuse is another matter. Strictly
speaking, B.A.'s physical and emotional status during the examinations
does not establish that R.T. was assaulted. B.A.'s physical and
emotional conditions do lend at least some measure of support,
however, to R.T.'s statements that B.A. played the games with her
parents and, accordingly, that R.T. was present and was abused as
well.

In Conclusion as to the Corroboration Issue

The strongest corroboration of R.T.'s abuse lies in the parallel
disclosures of abuse that she and B.A. made, and in the precocious
sexual knowledge that the disclosures reveal. Somewhat corroborative
is her play with the anatomically correct doll and her complaints
of pain. While the girls unusual greeting demonstrates some
appreciation of sexuality, we do not perceive it as strongly
corroborative of the claimed abuse. Even less corroborative of
R.T.'s abuse, standing alone, is B.A.'s masturbatory conduct and
the physical and emotional evidence of her abuse. Viewed together,
however, the corroborative value of these pieces of evidence is
strengthened. As we declared in State v.  Jones, 112 Wn.2d 488,
772 P.2d 496 (1989), "the determination of corroboration under RCW
9A.44.120 [the child victim hearsay statute] requires an evaluation
of the particular circumstances that obtain in each case." n42 It
is more than merely arguable that the contemporaneous circumstances
of this case -- the girls' parallel disclosures, sexual knowledge
and greeting, R.T.'s complaints of pain and play with the doll,
B.A.'s masturbation and the medical and emotional evidence of her
abuse -- lead to a reasonable inference that both girls were sexually
abused. As we also made clear in Jones, the essential purposes of
the child victim hearsay statute "should not be defeated by a
stubborn insistence on corroboration that is impossible to obtain."
n43 While there is no direct evidence of abuse in this case, the
various items of indirect evidence stemming from the words and
behavior of these two 3-year-old children together constitute
sufficient corroboration of abuse to render each child's hearsay
statements admissible in evidence.

====    Footnotes    ===>

n42 Jones, 112 Wn.2d at 498.

n43 Jones, 112 Wn.2d at 496.

<=== End of Footnotes ====

Issue Two.

Conclusion. The well-established criteria for granting a new trial
on the basis of newly discovered evidence were not met in this
case; the trial court did not abuse its discretion by denying the
defendants' motion for a new trial on that basis.

[9, 10] A new trial will not be granted on the ground of newly
discovered evidence unless the moving party demonstrates that the
evidence (1) will probably change the result of the trial; (2) was
discovered since the trial; (3) could not have been discovered
before trial by the exercise of due diligence; (4) is material;
and (5) is not merely cumulative or impeaching. n44 The absence of
any one of these five factors justifies denial of a new trial.
n45 Furthermore, the granting of a new trial for newly discovered
evidence rests within the sound discretion of the trial court, and
a denial will not be reversed except for an abuse of that discretion.
n46

====    Footnotes    ===>

n44 State v. Williams, 96 Wn.2d 215, 222-23, 634 P.2d 868 (1981);
State v.  Franks, 74 Wn.2d 413, 418, 445 P.2d 200 (1968).

n45 Williams, 96 Wn.2d at 223; see also Franks, 74 Wn.2d at 418.

n46 State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221 (1967); State
v. Hobbs, 13 Wn. App. 866, 869, 538 P.2d 838, review denied, 85
Wn.2d 1019 (1975); see also State v. Barry, 25 Wn. App. 751, 757,
611 P.2d 1262 (1980).

<=== End of Footnotes ====

After the defendants in this case were found guilty by a jury, they
filed a motion for a new trial. This motion was based on three
categories of newly discovered evidence, two of which dealt with
defendants' claim that Lisa Conradi was "obsessed" with child abuse.
One evidentiary category consisted of statements made by Conradi,
the teacher at R.T.'s and B.A.'s day-care center, to a reporter
who was also, apparently unbeknownst to Conradi, an investigator
for the defendants. These statements described Conradi's own sexual
abuse as a child and her previous problems with drugs and alcohol.
The second category consisted of prior false reports of child abuse
allegedly made by Conradi to CPS. The third category was defense
counsel's discovery that a boy named Josh attended the same day-care
center as R.T. and B.A., the girls having each testified that a
"John" or "Josh" played sexual games with them and B.A.'s parents.

The trial court denied the motion for a new trial, concluding that
the presence of a Josh in the day-care center was something that
was clearly discoverable in advance of trial. With regard to Conradi,
the court described her statement to the reporter as "typical
puffery". More importantly, the court found no facts in the statement
that differed from those to which Conradi testified at trial. The
trial court observed further that "there is no new evidence in the
statement with respect to her interest or concerns which Defense
now characterizes as obsession [with] child abuse." The witness
Conradi's problems were not properly characterized as newly discovered
evidence. "Conradi was investigated and investigated before trial.
There is no showing before the Court that this information was not
available." The trial court also found no evidence to support the
claim that Conradi previously made false reports of child abuse to
CPS.

In its ruling, the trial court reminded counsel of the requirements
for granting a new trial:

  The Court is mindful that the proffered evidence should be such
  that results would probably change. It is not correct that the
  statements of Conradi were the State's case. The State had overwhelming
  evidence, her medical evidence, behavior evidence, and statements
  not only to Conradi but consistent statements to others -- CPS
  workers, [the foster mother], I believe to Bratvold. I believe due
  diligence would have discovered the evidence which is characterised
  [sic] here as new evidence. Most of it is merely impeaching. The
  requirements, therefore, for the granting of a new trial are not
  met.

We agree with the trial court that the new evidence regarding
Conradi was merely impeaching. At trial Conradi testified directly
and on cross examination about classes in child abuse that she took
and about the abuse of her two sons.  On cross, she was asked about
a prior statement that child abuse was everywhere, and she replied
that "[i]t's just about in every state, every city, every public
school." During closing argument, the defense referred to the abuse
of Conradi's children as well as her expectations of child abuse
allegedly fostered in part by Cindy Bratvold, the day-care owner.
Defense counsel argued that Conradi brought her educational and
personal experiences with her as well as "her idea that sexual
abuse is everywhere, and it's as prevalent as behavior problems
with children." Thus, the claim that Conradi was "obsessed" with
child abuse, to use defendants' argumentative phraseology, was
clearly before the jury at trial, and any new evidence in that
regard was at most cumulative impeaching evidence.

We also agree with the trial court's conclusion that the claimed
"new evidence" was discoverable before trial. No contention has
been made that the names of the children at the day-care center
could not have been discovered before trial had anyone sought to
check. The defense contends on appeal that the State knew of witness
Conradi's prior sexual abuse before trial, but there is no evidence
in the record to support this contention. (This same contention is
again raised in connection with Issue Twelve.) No showing was made
before the trial court that the information about Conradi's own
abuse was not available before trial.

Moreover, the trial court's statement that this newly discovered
evidence would not have changed the outcome of the trial is also
sustainable. The identity of Josh as a playmate would have challenged
only one relatively minor detail in the girls' statements describing
their abuse, and while the evidence regarding Conradi arguably
could have added some weight to the defense efforts to impeach her
credibility, it would not have affected the rest of the State's
case, which included several other witnesses and several repetitions
of the same type of statements by the two children disclosed in
Conradi's testimony.

Since the "newly discovered" evidence would probably not have
changed the outcome of the trial, could have been discovered before
trial, and was both cumulative and impeaching, the trial court did
not abuse its discretion in denying the motion for a new trial. In
sum, we conclude here, as this court has previously concluded, that

  each new trial inevitably leaves new avenues for investigating
  the facts anew.  Hardly a case can be supposed but what, by diligent
  search, some additional evidence will be found that would, if
  offered at trial, have been admissible on one theory or another.
  The mere existence of such evidence does not alone justify the
  granting of a new trial.

State v. Williams, 96 Wn.2d 215, 224, 634 P.2d 868 (1981).

Issue Three.

Conclusion. The trial court did not abuse its discretion by finding
that R.T. was incompetent to be a witness in this case.

Under the child victim hearsay statute, RCW 9A.44.120, a child's
description of sexual abuse is admissible as evidence if the
statements are reliable and if the child either testifies or is
unavailable as a witness. In the case before us, both B.A. and R.T.
were unavailable because the trial court found them both incompetent
to testify. The defense challenges only the conclusion that one of
the children, R.T., was incompetent.

[11, 12] This court has declared that the test of the competency
of a young child as a witness consists of the following: (1) an
understanding of the obligation to speak the truth on the witness
stand; (2) the mental capacity at the time of the occurrence
concerning which he or she is to testify, to receive an accurate
impression of it; (3) a memory sufficient to retain an independent
recollection of the occurrence; (4) the capacity to express in
words his or her memory of the occurrence; and (5) the capacity to
understand simple questions about it. n47 The determination of
competency rests

  primarily with the trial judge who sees the witness, notices his
  manner, and considers his capacity and intelligence. These are
  matters that are not reflected in the written record for appellate
  review. Their determination lies within the sound discretion of
  the trial judge and will not be disturbed on appeal in the absence
  of proof of a manifest abuse of discretion.

State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967); see also
State v.  Griffith, 45 Wn. App. 728, 733, 727 P.2d 247 (1986).

====    Footnotes    ===>

n47 State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967); State
v.  Tuffree, 35 Wn. App. 243, 248, 666 P.2d 912, review denied,
100 Wn.2d 1015 (1983).

<=== End of Footnotes ====

At the competency hearing, defense counsel asked R.T. no questions
and made no argument regarding her competency despite being invited
to do so. Nor did the defense object to her being found incompetent
to testify. The defense now contends, however, that the questioning
by the court and the prosecutor was insufficient to make the
necessary determination of whether the child was competent to
testify. Arguably, the competency issue can be raised for the first
time on appeal on the basis that the showing of unavailability is
constitutionally mandated when the declarant witness, whose testimony
is to be used against the defendant, is not produced. n48

====    Footnotes    ===>

n48 See State v. Griffith, 45 Wn. App. 728, 732 n.1, 727 P.2d 247
(1986) (citing Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88
S. Ct. 1318 (1968)).

<=== End of Footnotes ====

Turning to the competency hearing, R.T. said that her birthday was
in "higher June". She also said she had been in the courtroom 40
times (she had never been there before) and that it was Saturday,
although it was not. When asked if she recognized anyone, she
pointed to defense counsel and said she had seen him 4 days ago,
which she had not. She did not say that she recognized her father
or the defendants, who also were in the courtroom. When the court
asked R.T. if she knew the difference between the truth and a lie,
R.T. said "not telling the truth" is telling a lie. The court then
asked R.T. if it would be the truth or a lie if she said she was
wearing a pink dress. Though her dress was pink, R.T.  said it
would be a lie because her dress was long. R.T. then said her dress
was "blue, sort of, but it's pink." The court excused R.T. and
found her incompetent to testify on the basis she did not understand
the obligation to tell the truth on the witness stand and because
she did not have a sufficient memory to speak truly about past
events. The court added that there were "several problems" with
R.T.'s answers:

  I don't know whether it was the question asked, her understanding
  or her memory, but it was quite clear that she was not able to
  answer the questions put to her.  On that basis, she is not a
  competent witness and the court will find her unavailable for the
  purposes of the statute.

The Court of Appeals reviewed the competency issue and upheld the
trial court's findings of incompetency:

  B.A. refused to answer any questions and was properly determined
  to be incompetent to testify. While R.T. was responsive to questions,
  the court found R.T. incompetent on two grounds: (1) R.T.'s inability
  to understand the obligation to tell the truth, and (2) her ability
  to remember accurately and express past events. The record demonstrates
  that there was no abuse of discretion on the part of the trial
  court in finding R.T. incompetent to testify.

The defense now contends that the trial court should have asked
R.T.  questions about her alleged sexual abuse in determining her
competency to testify. Since at the time the child was put on the
witness stand she did not know the day of the week, the color of
her dress, or recognize her father and the defendants, questions
about her alleged abuse were unnecessary to determine her competence
to testify.

Issue Four.

Conclusion. The trial court did not abuse its discretion in finding
both girls' hearsay statements reliable.

Before a child's hearsay statements are admissible under the child
victim hearsay statute, RCW 9A.44.120, the court must find "that
the time, content, and circumstances of the statement provide
sufficient indicia of reliability". n49

====    Footnotes    ===>

n49 RCW 9A.44.120(1); State v. John Doe, 105 Wn.2d 889, 896, 719
P.2d 554 (1986).

<=== End of Footnotes ====

[13] This court listed nine factors to be applied in determining
whether a child's out-of-court statements are reliable in State v.
Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). The first five,
derived from State v.  Parris, 98 Wn.2d 140, 146, 654 P.2d 77
(1982), include "'(1) whether there is an apparent motive to lie;
(2) the general character of the declarant; (3) whether more than
one person heard the statements; (4) whether the statements were
made spontaneously; and (5) the timing of the declaration and the
relationship between the declarant and the witness.'" n50 The next
four factors to be considered, derived from Dutton v. Evans, 400
U.S. 74, 88-89, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970), are (1)
the statement contains no express assertions about past fact; (2)
cross examination could not show the declarant's lack of knowledge;
(3) the possibility of the declarant's faulty recollection is
remote; and (4) the circumstances surrounding the statement are
such that there is no reason to suppose the declarant misrepresented
defendant's involvement. n51

====    Footnotes    ===>

n50 State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984)
(quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982)).

n51 Ryan, 103 Wn.2d at 176.

<=== End of Footnotes ====

[14] In short, reliability does not depend on whether the child is
competent to take the witness stand, but on whether the comments
and circumstances surrounding the statement indicate it to be
reliable. n52 The trial court is necessarily vested with considerable
discretion in evaluating the indicia of reliability. n53

====    Footnotes    ===>

n52 John Doe, 105 Wn.2d at 896; Griffith, 45 Wn. App. at 733.

n53 State v. Madison, 53 Wn. App. 754, 759, 770 P.2d 662, review
denied, 113 Wn.2d 1002 (1989); see also State v. Frey, 43 Wn. App.
605, 611, 718 P.2d 846 (1986).

<=== End of Footnotes ====

The Court of Appeals concluded that the trial court's findings of
reliability in this case did not constitute an abuse of discretion.
As that court observed, the trial court's rulings regarding the
hearsay statements demonstrated careful consideration of the Ryan
factors.

With regard to the five Parris factors listed in Ryan, the trial
court observed that neither child had a motive to lie. There was
testimony that B.A.  had a good relationship with her parents and
that R.T. enjoyed playing with B.A.  at the defendants' home. With
regard to the girls' general character, the testimony revealed that
both children had a reputation for truthfulness. In two other child
abuse cases, the courts found that the child victim's explicit
descriptions of abuse made the possibility of fabrication unlikely.
"'A young child is unlikely to fabricate a graphic account of sexual
activity because such activity is beyond the realm of [her]
experience.'" n54 In this case, both B.A. and R.T. described in
specific terms various sexual acts. The trial court also found
reliability in their use of age-appropriate language and responses
when describing those acts.

====    Footnotes    ===>

n54 See Comment, The Sexually Abused Infant Hearsay Exception: A
Constitutional Analysis, 8 J. Juv. L. 59, 67 (1984), cited in Frey,
43 Wn. App.  at 610; State v. Gitchel, 41 Wn. App. 820, 827, 706
P.2d 1091, review denied, 105 Wn.2d 1003 (1985).

<=== End of Footnotes ====

The trial court discussed in some detail whether the girls' statements
were made spontaneously. The trial court did not accept the defense
argument that Conradi's expectation of child abuse created B.A.'s
claims of abuse. The trial court correctly observed that Conradi's
method of questioning B.A. was open-ended and that most of B.A.'s
statements were spontaneous and not even responses to questions.
In another case, questioning similar to that by the witness Conradi
led to the charge that the child's responses were not spontaneous.
n55 This was in State v. Madison, 53 Wn. App. 754, 770 P.2d 662,
review denied, 113 Wn.2d 1002 (1989), wherein a foster mother who
suspected that her ward had been abused read to the child from a
book on human reproduction and asked if anyone had touched her.
The child then described acts of intercourse and oral sex to which
she had been subjected. The Court of Appeals agreed that while the
setting was not spontaneous,

  the details of the event and the identity of the defendant were
  not suggested and were "spontaneously" volunteered. Indeed, the
  foster mother testified that she was "a little stunned" by the
  child's accusation.

Madison, 53 Wn. App. at 759. Here, too, the witness Conradi's
statement that B.A. should cover her private parts in no way
suggested the details and identities that B.A. subsequently
volunteered. R.T.'s statements to witness Bratvold were made
spontaneously, as were most of her comments to the CPS caseworker.
The court also accepted the reliability of her answers to direct
questions from the CPS caseworker, observing,

I don't believe it's the purpose of the indicia of reliability to
eliminate from evidence all statements of children which are offered
in response to questions of children. That would be, it seems to
me, eliminating all possibility of an interview of a child resulting
in admissible evidence.

====    Footnotes    ===>

n55 Madison, 53 Wn. App. at 759.

<=== End of Footnotes ====

The trial court expanded on this thought in discussing the reliability
of B.A.'s responses to the caseworker, which were largely answers
to leading questions:

With respect to B.A., it seems to me the issue comes down to whether
or not leading questions of a difficult child witness render the
ultimate statements of the child unreliable. In this circumstance
where there is other corroboration, where the same statements or
similar statements were made by the child in response to open-ended
questions and in a much more spontaneous context, it seems to me
it does not. Quite clearly it does not.

With regard to the remaining Parris factors indicating reliability,
the trial court observed that more than one person heard similar
stories of abuse from the girls. The court also found that the
timing of the girls' declarations indicated reliability, since they
were volunteered as soon as the topic was broached and since the
girls made the similar statements on two consecutive days without
discussing the matter between themselves. With regard to the
relationship of the declarant and the witness, the court observed
that witnesses Conradi and Bratvold had a relationship of trust
with the girls since they taught at and operated the girls' day-care
center. Both were present when the CPS caseworker interviewed the
girls, indicating that people were present who were trusted by the
child in each case. B.A.'s foster mother and R.T.'s father also
were undoubtedly trusted by the children.

Turning to the four Dutton factors cited in Ryan, the girls'
statements contained express assertions about past fact, but as we
recently noted, child hearsay statements about sexual abuse will
usually contain statements about past fact. n56 That factor weighed
neither in favor of reliability nor unreliability in State v.
Leavitt, 111 Wn.2d 66, 75, 758 P.2d 982 (1988).  However, R.T.'s
complaints of pain in her bottom describe a present state. With
regard to the second Dutton factor, it is doubtful whether cross
examination could have shown either child's lack of knowledge.
During the competency hearing, B.A. was unable to speak, while R.T.
could not respond appropriately to questions in a courtroom setting.
This is similar to the situation before the Court of Appeals when
it assessed the reliability of a 3-year-old's hearsay statements
in State v. Gitchel, 41 Wn. App. 820, 828, 706 P.2d 1091, review
denied, 105 Wn.2d 1003 (1985): "cross examination would not have
shown R's lack of knowledge under these circumstances, as R
demonstrated that she did not respond to questions in a courtroom
setting." As the Court of Appeals explained in Gitchel, even if R
were capable of being cross-examined, the number of times she
described her abuse tended to establish that R's description of
what occurred was credible. n57 The same could be said here. The
girls' repetition of similar and unusual details of abuse tends to
establish that their descriptions were credible even absent cross
examination.

====    Footnotes    ===>

n56 State v. Leavitt, 111 Wn.2d 66, 75, 758 P.2d 982 (1988).

n57 Gitchel, 41 Wn. App. at 828.

<=== End of Footnotes ====

The trial court did not directly address the Dutton factor of
whether the possibility of the declarant's faulty recollection is
remote. In Leavitt, we observed that because the child's statements
to a social worker were made soon after the event and were consistent
with statements made to her aunt and mother, the possibility that
she was speaking from faulty recollection was remote. n58 Here,
the specific timing of any acts of abuse is unknown, but the girls
did make consistent statements of abuse to five people.  n59

====    Footnotes    ===>

n58 Leavitt, 111 Wn.2d at 75.

n59 We are not unaware that R.T. at one point evidently also told
the police that "Jerry" -- her father -- put marbles in her bottom.

<=== End of Footnotes ====

The final Dutton factor is whether circumstances suggest that the
declarant misrepresented the defendant's involvement. Such
circumstances are not apparent here.

It is clear that not every factor listed in Ryan needs to be
satisfied before a court will find a child's hearsay statements
reliable under the child victim hearsay statute, RCW 9A.44.120.
n60 Moreover, it is also clear that a child's incompetency as a
witness is not determinative of the reliability of his or her
hearsay statements. n61 The Court of Appeals in this case found no
abuse of discretion on the part of the trial court in finding the
statements reliable. We uphold this finding because the reliability
factors described in Ryan are substantially met.

====    Footnotes    ===>

n60 See Leavitt, 111 Wn.2d at 75; Frey, 43 Wn. App. at 611; John
Doe, 105 Wn.2d at 896; Gitchel, 41 Wn. App. at 827-28.

n61 State v. John Doe, 105 Wn.2d 889, 896, 719 P.2d 554 (1986);
State v.  Ryan, 103 Wn.2d 165, 174, 691 P.2d 197 (1984); Frey, 43
Wn. App. at 611 n.9; State v. Griffith, 45 Wn. App. 728, 733, 727
P.2d 247 (1986).

<=== End of Footnotes ====

Issue Five.

Conclusion. Though the State's rebuttal evidence did overlap the
evidence in the State's case in chief to a degree, the trial court
did not abuse its discretion by permitting the State to call the
rebuttal witnesses that it did.

[15, 16] State v. White, 74 Wn.2d 386, 394-95, 444 P.2d 661 (1968)
contains the classic statement of the scope and purpose of rebuttal
evidence:

  Rebuttal evidence is admitted to enable the plaintiff to answer
  new matter presented by the defense. Genuine rebuttal evidence is
  not simply a reiteration of evidence in chief but consists of
  evidence offered in reply to new matters.  The plaintiff, therefore,
  is not allowed to withhold substantial evidence supporting any of
  the issues which it has the burden of proving in its case in chief
  merely in order to present this evidence cumulatively at the end
  of defendant's case. Ascertaining whether the rebuttal evidence is
  in reply to new matters established by the defense, however, is a
  difficult matter at times. Frequently true rebuttal evidence will,
  in some degree, overlap or coalesce with the evidence in chief.
  Therefore, the question of admissibility of evidence on rebuttal
  rests largely on the trial court's discretion, and error in denying
  or allowing it can be predicated only upon a manifest abuse of that
  discretion.

(Citations omitted.) See also 5A K. Tegland, Wash. Prac., Evidence
@ 249, at 278-79 (3d ed. 1989).

Defendants assign error to the admission of hearsay testimony
offered by two rebuttal witnesses. After the defendants William
and Kathleen Swan testified that they had never put anything but
a suppository into the vaginal or anal regions of B.A. or R.T.,
B.A.'s foster mother testified that B.A. told her that her parents
put marbles and other things in her bottom.  After a detective
testified that R.T. said that Jerry put marbles in her bottom, her
father (named Gerald) testified that R.T. complained to him later
that "Bill and Kathy are bad" and that they put marbles in her
bottom.

The defense argues that these hearsay statements were cumulative
evidence that was improperly withheld from the State's case in
chief so that it could be offered when it would have the most
dramatic and prejudicial effect. It is true that this rebuttal
evidence did repeat some of the hearsay statements admitted in the
State's case in chief. However, as the court in White declared,
rebuttal evidence will frequently overlap with the evidence in
chief. n62

====    Footnotes    ===>

n62 State v. White, 74 Wn.2d 386, 395, 444 P.2d 661 (1968); see
also State v.  Hightower, 36 Wn. App. 536, 548, 676 P.2d 1016,
review denied, 101 Wn.2d 1013 (1984) (some degree of overlapping
with previous state expert testimony occurred, "but even at that
the trial court's ruling as to what was proper rebuttal was a
discretionary ruling, and we conclude there was no manifest abuse
thereof").

<=== End of Footnotes ====

[17] Moreover, we recently held that once a defendant has "opened
the door" by testifying to his or her own past good behavior and
denying prior acts of misconduct, the State may legitimately impeach
such assertions. n63 The trial court in this case ruled that the
proposed rebuttal testimony impeached assertions made by defense
witnesses and was admissible. The foster mother's testimony followed
William Swan's assertion that he had not had sexual contact with
B.A., and R.T.'s father responded to the detective's recollection
of R.T.'s statement potentially implicating "Jerry". Neither piece
of rebuttal evidence was substantial, and both replied to new
matters raised by the defense.  Accordingly, we do not consider
the two witnesses' testimony inappropriate under the rules set
forth in White.

====    Footnotes    ===>

n63 State v. Ciskie, 110 Wn.2d 263, 281, 751 P.2d 1165 (1988);
Kremer v.  Audette, 35 Wn. App. 643, 648, 668 P.2d 1315 (1983).

<=== End of Footnotes ====

Defendants make the related argument that the foster mother's
rebuttal testimony was improper because the defense did not have
advance notice of the hearsay statements she would be offering into
evidence. The child victim hearsay statute, RCW 9A.44.120, provides
that

  A statement may not be admitted under this section unless the
  proponent of the statement makes known to the adverse party his
  intention to offer the statement and the particulars of the statement
  sufficiently in advance of the proceedings to provide the adverse
  party with a fair opportunity to prepare to meet the statement.

This requirement, in the context of rebuttal testimony, must be
considered with another holding in White that it is not error to
admit rebuttal testimony even though the witness' name has not been
endorsed upon the information or furnished to the defendant in
advance of trial because genuine rebuttal witnesses need not be so
listed. n64

====    Footnotes    ===>

n64 White, 74 Wn.2d at 395.

<=== End of Footnotes ====

[18] The State responds that it did disclose its intention to have
B.A.'s foster mother testify at the close of the defendants' case.
Moreover, she did not testify until a full day after the defense
was told about the hearsay to which she would testify. The State
argues that the content of the hearsay was no surprise and that
the defense had the "fair opportunity to prepare to meet the
statement" required by the statute, RCW 9A.44.120. Since the defense
at no time requested a continuance or a chance to reopen its case,
it cannot now argue that ample preparation time was lacking. In
any event, the trial court considered this objection and rejected
it, and did not commit a manifest abuse of discretion in so doing.

Issue Six.

Conclusion. The trial court did not abuse its discretion in declining
to allow a psychologist to testify as an expert witness.

[19, 20] ER 702, which governs the admissibility of expert testimony,
provides:

  If scientific, technical, or other specialized knowledge will
  assist the trier of fact to understand the evidence or to determine
  a fact in issue, a witness qualified as an expert by knowledge,
  skill, experience, training, or education, may testify thereto in
  the form of an opinion or otherwise.

This court has stated that the admissibility of expert testimony
under ER 702 depends upon whether "(1) the witness qualifies as an
expert, (2) the opinion is based upon an explanatory theory generally
accepted in the scientific community, and (3) the expert testimony
would be helpful to the trier of fact." n65 The decision whether
or not to admit expert opinion evidence is within the discretion
of the trial court and will not be disturbed absent a showing of
an abuse of that discretion. n66

====    Footnotes    ===>

n65 State v. Allery, 101 Wn.2d 591, 596, 682 P.2d 312 (1984); see
also State v. Canaday, 90 Wn.2d 808, 812-14, 585 P.2d 1185 (1978).

n66 State v. Mak, 105 Wn.2d 692, 715, 718 P.2d 407, cert. denied,
479 U.S.  995 (1986); Keegan v. Grant Cy. PUD 2, 34 Wn. App. 274,
282, 661 P.2d 146 (1983).

<=== End of Footnotes ====

At the trial of this case, the defense sought to qualify Dr. Ralph
Underwager, a licensed psychologist, as an expert witness. He would
have testified about how a child's memory capacity is affected by
age and about the factors that create suggestion when an adult
interviews a child, such as the adult's expectations.

The trial court ruled that the psychologist's proposed testimony
was not proper because there was no indication that the results of
the doctor's work had been accepted in the scientific community
and because the testimony went directly to the credibility of the
victims and invaded the province of the jury. The trial court also
ruled that the idea that interviews of children may be suggestive
was within the general experience of the average person. The trial
court reiterated its position in denying the motion for a new trial:

  [T]he Court remains convinced [the psychologist] did not have the
  qualifications to testify as a doctor, and that the offered testimony,
  in any event, was within the common experience of the jury. . . .
  the dangers of interviews of children .. . was [sic] within common
  experience of all of us. That was fully explored on cross-examination with
  other witnesses. [The psychologist] [w]as a researcher who did not have
  bona fide qualifications in the view of the Court.  He was not involved in
  an independent research undertaking, but rather was approached to
  undertake research by an interested party with an interest [in] the
  outcome of the research. It is the Court's memory [the psychologist's]
  research was undertaken at the behest of the insurance industry relative
  to civil claims for child sexual abuse. The fact that three-and-a-half-
  year-old children are suggestible, I think, is within the common
  experience of any juror. 

The Court of Appeals devoted attention to this issue because it
felt that the offer of such evidence was likely to occur at the
retrial it ordered. It concluded that the trial court did not abuse
its discretion in excluding the psychologist's testimony. "We have
reviewed the record and find that it does not sufficiently establish
the reliability of the expert's methodology, factors, or the
principles which he proposed to use in his testimony."

We agree. It was not shown at trial that the psychologist's position
on child interviewing was accepted by the scientific community.
Moreover, the argument that child interviews could be suggestive
was amply aired during the cross examination of the State's witnesses
and, as the trial court declared, was well within the understanding
of the jury. The psychologist's proposed testimony did not satisfy
the test for admissibility set forth in ER 702 and was properly
refused.

Issue Seven.

Conclusion. The trial court's statement here at issue revealed no
personal attitudes toward the case or the evidence and did not
constitute a prohibited comment on the evidence.

[21] Article 4, section 16 of the Washington State Constitution
prohibits a trial court from commenting on the evidence. The purpose
of this provision is to prevent a jury from being influenced by
knowledge conveyed to it by the trial judge as to the trial judge's
opinion of the evidence submitted. n67 An impermissible comment is
one which conveys to the jury a judge's personal attitudes toward
the merits of the case or allows the jury to infer from what the
judge said or did not say that the judge personally believed the
testimony in question. n68

====    Footnotes    ===>

n67 State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970).

n68 Hamilton v. Department of Labor & Indus., 111 Wn.2d 569, 571,
761 P.2d 618 (1988); State v. Ciskie, 110 Wn.2d 263, 283, 751 P.2d
1165 (1988).

<=== End of Footnotes ====

The defendants claim that the trial court impermissibly commented
on the evidence in accepting Dr. Carol Jenny as an expert witness.
The trial court's words are as follows, with the alleged comment
emphasized:

  Well, I think the evidence establishes her qualifications in the
  general subject of sexual abuse of children. The court will accept
  her as an expert on that subject.

The Court of Appeals examined this issue and concluded that the
trial court's statement was not a comment on the evidence. It held
that "[t]he court's ruling merely indicates that the threshold
query provided in ER 702 was satisfied. The court offered no opinion
as to the credibility, sufficiency, or weight of Dr.  Jenny's
testimony."

We agree. A court must be allowed to rule as to the qualifications
of expert witnesses and inform counsel of its decision. The trial
court did just that in its ruling regarding Dr. Jenny and did not
offer a personal opinion about the doctor's testimony. There was
no comment on the evidence in accepting the doctor as an expert
witness.

Issue Eight.

Conclusion. There was no error in the trial court's evidentiary
ruling in question since the court did not strike the defendant's
explanation from the record.

The ruling here challenged occurred when the defendant William Swan
was testifying on direct:

  Q. Was there a situation where your daughter made reference to
  the bathroom and described or used a word to describe the bathroom?

  A. Yes.

  Q. Okay. I'll ask you to recall for the jury, recount to the jury
  what that situation was.

  A. Okay. I was in the process of using the bathroom in question,
  which happens to be across the hall from her room, with the door
  locked, as is my habit. She came up, turned the door knob and, of
  course, the door didn't open, and then she tried it again, and so
  I told her, "Just a minute, [B.A.]," and then she started banging
  on the door a bit. I said, "Just a minute, [B.A.], I'll be out in
  just a minute," and then she started crying and carrying on and
  saying, "Daddy, Daddy is in my potty."

  Q. Was that her phrase for the bathroom, "My potty?"

  A. Yes.

  [Prosecutor]: I would object as -- I am sorry, I do object to that
  question and answer on the basis of lack of foundation at this
  point, ask it be stricken.

  THE COURT: Sustained.

Defense counsel did not pursue this line of questioning but went
on to ask the defendant about medication he gave to his daughter.
The defendants contend on appeal, however, that the objection as
to lack of foundation was insufficient and improper.

[22] The admission and exclusion of relevant evidence is within
the sound discretion of the trial court. This is yet another place
in the trial of a case where the trial court's decision will not
be reversed absent a manifest abuse of discretion. n69

====    Footnotes    ===>

n69 Maehren v. Seattle, 92 Wn.2d 480, 488, 599 P.2d 1255 (1979),
cert.  denied, 452 U.S. 938 (1981); Chhuth v. George, 43 Wn. App.
640, 648, 719 P.2d 562, review denied, 106 Wn.2d 1007 (1986).

<=== End of Footnotes ====

[23] While the lack of foundation objection may be considered a
general objection, general objections are not prohibited. n70
According to one Washington practice text:

  The court may sustain or overrule a general objection in light of
  its own understanding of the merits of the objection or the evidence
  offered. . . .

If the trial court sustains a general objection, the ruling will
be affirmed if there was any valid basis for excluding the evidence.

(Footnotes omitted.) 5 K. Tegland, Wash. Prac., Evidence @ 10, at
32, 35 (3d ed.  1989).

====    Footnotes    ===>

n70 5 K. Tegland, Wash. Prac., Evidence @ 10, at 32 (3d ed. 1989).

<=== End of Footnotes ====

[24] A valid basis for sustaining the objection to the "potty"
question was that it was a leading question improperly used on
direct examination. n71 Thus, we could affirm the court's ruling
on that ground. More to the point, however, is the wording used to
sustain the objection. The trial court merely ruled "sustained".
It did not strike the testimony, as the deputy prosecuting attorney
requested, nor did it instruct the jury to disregard it. The
defendant's testimony thus remained in the record for the jury's
consideration and defendants' position on this issue is without
merit.

====    Footnotes    ===>

n71 5A K. Tegland, Wash. Prac., Evidence @ 250, at 281 (3d ed.
1989); ER 611(c).

<=== End of Footnotes ====

Issue Nine.

Conclusion. No reversible error was committed in the deputy
prosecuting attorney's closing argument since the jury was instructed
to disregard the only statement objected to and since none of the
other statements now claimed to have been erroneous was so flagrant,
ill intentioned, or prejudicial as to require reversal.

Defendants argue that each of four statements made by the deputy
prosecuting attorney during closing argument constitutes reversible
error. Two of the statements (emphasized immediately below) described
some of the testimony given by Dr. Parris, the Swans' family
physician, and were part of the State's rebuttal argument:

  (By the deputy prosecuting attorney): Dr. Parris said, "I'm not
  an expert. I don't do this. If you want to prove your innocence,
  take the child to Harborview immediately." What did the Swans do?
  They asked C.P.S. to take the child to Dr. Parris.

  (Defense counsel): Objection, Your Honor. The last two statements
  are not in evidence and are not reflecting the truth. I would
  request they be stricken.

  (Deputy prosecuting attorney): I'm speaking with reference to [the
  CPS caseworker].

  (Defense counsel): [The CPS caseworker] is not a party to the
  conversation.

  THE COURT: Sustained. I don't recall that. The jury will disregard
  that remark.

  (Deputy prosecuting attorney): There's no evidence of any request
  that this child be rushed to Harborview so they could prove their
  innocence. Instead, the child was taken to someone who said, "I
  don't know about this. I'm not an expert."

(Italics ours.)

The third allegedly prejudicial argument (emphasized below), also
made during the State's rebuttal argument, described the medical
evidence given by Thomas Ritter, the nurse practitioner who examined
B.A.:

  The other thing is all this talk about hymens. I thought it was
  quite clear, Dr. Jenny, Dr. Ciliberti, all the people say the
  presence or the nonpresence of a hymen doesn't mean a thing. Mr.
  Ritter said in his notes he did not note a hymen. And, thinking
  back, he thinks it means there was not there -- one there. That
  was his recollection. Dr. Parris said he did not note one in his
  report, but he sort of assumes he saw one. So whether it was there
  or not or present is sort of up in the air.

(Italics ours.)

The final challenged remark (emphasized below) was part of the
deputy prosecuting attorney's descriptions of B.A. and R.T.:

  Between the two of them -- We know that [B.A.] had no sex education
  from her parents. That was pretty clear. And we also know that
  neither child had trouble with lying. That wasn't something that
  came out, that there were problems with these children lying or
  that these were children you had to watch carefully. These were
  little girls who could talk, you could trust, they told the truth.

(Italics ours.)

At trial, the defense objected to only the first of the foregoing
statements, the one regarding Dr. Parris.

[25] We have consistently held that unless prosecutorial conduct
is flagrant and ill-intentioned, and the prejudice resulting
therefrom so marked and enduring that corrective instructions or
admonitions could not neutralize its effect, any objection to such
conduct is waived by failure to make an adequate timely objection
and request a curative instruction. n72 Thus, in order for an
appellate court to consider an alleged error in the State's closing
argument, the defendant must ordinarily move for a mistrial or
request a curative instruction. n73 The absence of a motion for
mistrial at the time of the argument strongly suggests to a court
that the argument or event in question did not appear critically
prejudicial to an appellant in the context of the trial. n74
Moreover, "[c]ounsel may not remain silent, speculating upon a
favorable verdict, and then, when it is adverse, use the claimed
misconduct as a life preserver on a motion for new trial or on
appeal." n75

====    Footnotes    ===>

n72 State v. Charlton, 90 Wn.2d 657, 661, 585 P.2d 142 (1978);
State v.  Brown, 29 Wn. App. 770, 774, 630 P.2d 1378, review denied,
96 Wn.2d 1013 (1981).

n73 13 R. Ferguson, Wash. Prac., Criminal Practice and Procedure
@ 4006, at 404 (1984).

n74 State v. Miller, 66 Wn.2d 535, 537, 403 P.2d 884 (1965); State
v. Walton, 5 Wn. App. 150, 152, 486 P.2d 1118 (1971).

n75 Jones v. Hogan, 56 Wn.2d 23, 27, 351 P.2d 153 (1960); State v.
Atkinson, 19 Wn. App. 107, 111, 575 P.2d 240, review denied, 90
Wn.2d 1013 (1978).

<=== End of Footnotes ====

[26] Defense counsel did object to the statement regarding Dr.
Parris. The objection was sustained, and the jury was instructed
to disregard the prosecutor's remark. While this statement was not
supported by the evidence, it was not prejudicial error that denied
the defendants a fair trial since the jury is presumed to follow
the court's instructions to disregard it.  n76

====    Footnotes    ===>

n76 State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976); State
v. Fondren, 41 Wn. App. 17, 25, 701 P.2d 810, review denied, 104
Wn.2d 1015 (1985).

<=== End of Footnotes ====

Defense counsel voiced no objection to the prosecutor's second
reference to Dr. Parris' testimony, i.e., "There's no evidence of
any request that this child be rushed to Harborview so they could
prove their innocence. Instead, the child was taken to someone who
said, 'I don't know about this. I'm not an expert.'"

It is true that B.A. never was taken to the Sexual Assault Center
at Harborview Medical Center. At trial, Dr. Parris testified that
before he examined B.A., he recommended to the defendants that she
be examined at a sexual assault center to see if the alleged abuse
had occurred. CPS originally took B.A. to nurse practitioner Thomas
Ritter for a physical examination. No one took the child to
Harborview.

The context of the deputy prosecuting attorney's arguments here
objected to is as follows. In the defendants' closing argument, it
was defense counsel who argued that the failure to take B.A. to
Harborview was the fault of CPS, and that this failure meant that
the prosecution lacked the medical evidence needed to prove its
case. The deputy prosecuting attorney's subsequent effort, in
rebuttal argument, to blame the defendants for that omission was
both a response to the defense argument and an inference that could
be drawn from the evidence presented at trial. While Dr. Parris
did not testify in the exact words the deputy prosecuting attorney
quoted, his testimony could reasonably lead to the inference that
the defendants never took B.A. to someone who was an expert on
sexual abuse.

Counsel must be accorded a reasonable latitude in argument to draw
and express inferences and deductions from the evidence. n77
Moreover, remarks of the deputy prosecuting attorney that would
otherwise be improper are not grounds for reversal where they are
in reply to defense counsel's statements unless the remarks are so
prejudicial that an instruction would not cure them. n78 While not
absolutely accurate, the statement attributed to Dr. Parris in
argument was made in response to defense counsel's argument and
under the circumstances was not so flagrant and ill-intentioned as
to result in prejudice that could not have been cured by a timely
objection and a curative instruction.

====    Footnotes    ===>

n77 State v. Johnson, 40 Wn. App. 371, 381, 699 P.2d 221 (1985);
State v.  Hunter, 35 Wn. App. 708, 715, 669 P.2d 489, review denied,
100 Wn.2d 1030 (1983).

n78 State v. Davenport, 100 Wn.2d 757, 761, 675 P.2d 1213 (1984)
(citing State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961)).

<=== End of Footnotes ====

The statement regarding Thomas Ritter's medical findings also is
technically incorrect, since Ritter testified that he did not note
whether B.A. had a hymen.  However, as the deputy prosecuting
attorney's argument shows, the evidence about the presence or
absence of a hymen was fairly murky. Ritter found an enlarged
vaginal opening but did not note whether the hymen was missing.
Dr. Parris did not note the presence or absence of the hymen, but
apparently saw the hymenal ring. Dr. Jenny noted the lack of a
specific finding regarding the hymen but concluded that Ritter's
ability to see inside the vagina meant that he could see through
the hymenal opening.

In closing argument, the defense attempted to discredit Ritter's
findings, stating that "he obviously did not do a close examination."
The defense also referred to Dr. Parris' observation of a hymenal
ring. Then on rebuttal, the State stated somewhat less than artfully
that Ritter thought his failure to note a hymen meant that one was
absent, and that Dr. Parris assumed he saw one.  Neither statement
is completely accurate. Closer to the mark is the State's last
reference to the subject: "So whether it was there or not or present
is sort of up in the air."

Here again, we do not perceive the error made in argument about
the Ritter statement to be prejudicial. The deputy prosecuting
attorney's references to the medical evidence were equivocal, as
was the medical testimony itself. An objection and a request for
a curative instruction could have remedied any misstatement or
potential for prejudice. The failure to object to this reference
waived the objection.

[27] The final remark the defendants object to is the State's
reference to the girls' truthfulness. It is, of course, improper
for a prosecutor to express a personal opinion about the credibility
of a witness during closing argument.  n79 However, prejudicial
error does not occur until it is clear that the prosecutor is not
arguing an inference from the evidence, but is expressing a personal
opinion. n80 The credibility of two State witnesses was "strenuously
attacked" by defense counsel in State v. Papadopoulos, 34 Wn. App.
397, 399, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983). In
closing argument, the prosecutor stated that

  "[the witnesses] have testified honestly before you", and, . . .
  that "[T]he gist of what they have said has been the truth."

Papadopoulos, 34 Wn. App. at 399.

====    Footnotes    ===>

n79 State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984); State
v.  Robinson, 44 Wn. App. 611, 624, 722 P.2d 1379, review denied,
107 Wn.2d 1009 (1986).

n80 Robinson, 44 Wn. App. at 624; State v. Papadopoulos, 34 Wn.
App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983).

<=== End of Footnotes ====

The Court of Appeals did not see those statements as an expression
of personal belief on the prosecutor's part, holding that the
argument viewed in context revealed that the prosecutor merely
called the jury's attention to the facts and circumstances in
evidence tending to support the witnesses' credibility. n81

====    Footnotes    ===>

n81 Papadopoulos, 34 Wn. App. at 400.

<=== End of Footnotes ====

In this case, evidence was introduced showing that both B.A. and
R.T. were well-behaved, normal children who did not have a problem
with lying.  There was no objection to this testimony. Nor was
there any objection when the deputy prosecuting attorney recalled
this testimony in closing argument and then went on to describe
the facts and circumstances that supported the girls' credibility.
Thus, it is clear to us that the deputy prosecuting attorney was
simply drawing a reasonable inference from the evidence -- indeed,
simply repeating the evidence -- and was properly recounting the
testimony concerning the girls' truthfulness. Even were we to view
the arguments as error, however, it was not of such an egregious
sort that a curative instruction could not have removed any resulting
prejudice. The deputy prosecuting attorney's arguments here complained
of were apparently not viewed as prejudicial at trial, nor do they
so appear on appeal. The State did not commit reversible error
during closing argument.

Issue Ten.

Conclusion. The abuse of discretion standard is the appropriate
standard of review under RCW 9A.44.120.

[28] The determination of whether statements are admissible under
the statutory child abuse hearsay exception is within the sound
discretion of the trial court. n82 This is the standard of review
generally applied to rulings on the admissibility of evidence. n83

====    Footnotes    ===>

n82 State v. Justiniano, 48 Wn. App. 572, 579, 740 P.2d 872 (1987);
State v.  Frey, 43 Wn. App. 605, 611, 718 P.2d 846 (1986).

n83 State v. Jones, 112 Wn.2d 488, 496 n.7, 772 P.2d 496 (1989);
Caruso v.  Local Union 690, Int'l Bhd. of Teamsters, 107 Wn.2d 524,
535, 730 P.2d 1299, cert. denied, 484 U.S. 815 (1987).

<=== End of Footnotes ====

Defendants contend that this standard of review is erroneous because
any ruling on the admissibility of child hearsay involves fundamental
constitutional issues. Where constitutional rights are involved,
an appellate court will independently evaluate the evidence to see
if such rights have been violated. n84

====    Footnotes    ===>

n84 See State v. Daugherty, 94 Wn.2d 263, 269, 616 P.2d 649 (1980),
cert.  denied, 450 U.S. 958 (1981); State v. Agee, 89 Wn.2d 416,
419, 573 P.2d 355 (1977).

<=== End of Footnotes ====

It is clear, however, that even when such an independent review is
undertaken, the trial court's findings are entitled to great weight.
n85 This is because the trial court is "in a prime position to
observe and evaluate the demeanor of witnesses." n86 As the Court
of Appeals has explained, the appellate court

  will independently examine the record to determine if fundamental
  constitutional rights have been denied. In considering credibility,
  however, deference will be made to the trial court, which had the
  opportunity to evaluate the witnesses' demeanor below. We will
  review the trial court's inferences and conclusions, but not its
  findings as to credibility or the weight to be given evidence.

(Citations omitted.) In re Bugai, 35 Wn. App. 761, 765, 669 P.2d
903 (1983).

====    Footnotes    ===>

n85 Daugherty, 94 Wn.2d at 269; Agee, 89 Wn.2d at 419.

n86 State v. Miller, 22 Wn. App. 960, 963, 593 P.2d 177, review
denied, 92 Wn.2d 1031 (1979).

<=== End of Footnotes ====

The admissibility of child hearsay statements does touch upon
constitutional rights such as the right of confrontation guaranteed
by the Sixth Amendment.  However, the admissibility of child hearsay
depends upon a series of decisions made only after evaluating the
competency and credibility of witnesses. The trial court must
conduct a hearing during which it determines (a) that the time,
content, and circumstances of the statement provide sufficient
indicia of reliability and (b) that the child either may testify
or is incompetent as a witness. If the child is incompetent, the
court must determine whether there is corroborative evidence of
the act before admitting the hearsay statements. n87 Appellate
courts will carefully review the evidence and testimony presented
in evaluating the exclusion and admission of child hearsay statements
even under the abuse of discretion standard. n88 Appellate courts
also recognize, however, that the trial court is in the best position
to make the decisions as to competency and credibility. The abuse
of discretion standard, as applied in child hearsay cases, does
not ignore the constitutional issues at stake, but acknowledges
the obvious, that the trial court is the only court that sees the
children and listens to them and to the other witnesses in such a
case.

====    Footnotes    ===>

n87 RCW 9A.44.120.

n88 See, e.g., State v. Jones, 112 Wn.2d 488, 722 P.2d 496 (1989);
State v.  Justiniano, 48 Wn. App. 572, 740 P.2d 872 (1987).

<=== End of Footnotes ====

Issue Eleven.

Conclusion. We adhere to our previous decisions upholding the
constitutionality of the child victim hearsay statute, RCW 9A.44.120.

This court decided this issue in State v. Ryan, 103 Wn.2d 165, 691
P.2d 197 (1984). Defendants recognize this, but contend that the
court in Ryan improperly relied on factually distinguishable cases
in holding that RCW 9A.44.120 is constitutional. The cases relied
on in Ryan that the defendant questions are Ohio v. Roberts, 448
U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980) and Dutton v.
Evans, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970).  Both
cases involved the admission of hearsay testimony, which is clearly
relevant to any discussion of RCW 9A.44.120, and both are recognized
as key cases on the admissibility of out-of-court statements. n89

====    Footnotes    ===>

n89 See Coy v. Iowa, 487 U.S. 1012, 101 L. Ed. 2d 857, 108 S. Ct.
2798, 2800 (1988).

<=== End of Footnotes ====

Defendants urge this court to rely instead on Coy v. Iowa, 487 U.S.
1012, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988) in assessing the
admissibility of child hearsay. At issue in Coy was the constitutionality
of a screen placed between the defendant and two child victims
while they testified in court. Coy does not contain the factual
parallels to this case that are allegedly absent from Roberts and
Dutton. Nor does the legal analysis in Coy seem directly relevant
here. The United States Supreme Court in Coy held that the screen
violated the confrontation clause and was unconstitutional. n90
The confrontation clause guarantees the defendant a face-to-face
meeting with witnesses appearing before the trier of fact. n91 The
Court in Coy expressly left open the question of whether any
exceptions to the right to face-to-face confrontation exist. n92
The Court cited Roberts after stating that "[w]hatever they may
be, they would surely be allowed only when necessary to further an
important public policy." n93

====    Footnotes    ===>

n90 Coy, at 1022.

n91 Coy, at 1016.

n92 Coy, at 1021.

n93 Coy, at 1021.

<=== End of Footnotes ====

[29] Thus, the United States Supreme Court has not held that the
admission of child hearsay statements violates any provision of
the federal constitution. We adhere to our holding in Ryan that
RCW 9A.44.120 is constitutional.

Issue Twelve.

Conclusion. The State did not knowingly withhold exculpatory evidence
from the defense in violation of due process.

This contention was raised earlier in connection with Issue Two.
The defendants argue that the prosecution suppressed evidence
regarding Lisa Conradi's sexual abuse and thus violated their right
to due process.  Defendants maintain that Conradi's predisposition
to discover sexual abuse should have been a central issue at trial.

[30] The prosecutor has a constitutional duty to disclose exculpatory
matter to the defense. n94 "This duty is breached where the omitted
evidence, evaluated in the context of the entire record, creates
a reasonable doubt as to defendant's guilt that did not otherwise
exist." n95

====    Footnotes    ===>

n94 State v. Bebb, 108 Wn.2d 515, 522, 740 P.2d 829 (1987); see
also State v.  Campbell, 103 Wn.2d 1, 17, 691 P.2d 929 (1984),
cert. denied, 471 U.S. 1094 (1985).

n95 Bebb, 108 Wn.2d at 522; see also Campbell, 103 Wn.2d at 17.

<=== End of Footnotes ====

The evidence allegedly showing that the State possessed information
about Conradi's abuse is the following statement made by the State
when Conradi was being deposed:

  When asked if she had ever been abused or about the individual
  who had abused her two sons, the prosecutor advised Conradi not to
  answer unless relevancy could be shown.

Supplemental Brief of Petitioner, at 10.

Apart from the fact that no attempt to require the witness to answer
this question or establish relevancy was ever made, it does not
follow that the State suppressed information about Conradi's abuse.
Even if the State had suppressed such information, however, we fail
to see that it was exculpatory evidence that could have created a
reasonable doubt as to the defendants' guilt that did not otherwise
exist. Witness Conradi's credibility was strenuously challenged at
trial, and her alleged predisposition to discover sexual abuse was
also argued.  Moreover, Conradi was not the only witness to reveal
the girls' hearsay statements. Other witnesses repeated equally
damaging hearsay. Nothing suggests that further evidence of witness
Conradi's alleged predisposition to discover abuse would have
exculpated the defendants. We perceive no error in this regard and
no due process violation.

The Court of Appeals is reversed and the convictions of the two
defendants in the trial court are affirmed.

----------------------------

William Orr Swan; Kathleen Roland Swan, Petitioners-Appellants, v.
Kurt S. Peterson, Warden of Washington Correctional Center; Eldon
Vail, Warden of Washington Correctional Center for Women; Chase
Riveland, Secretary of Department of Corrections, Respondents-Appellees.

Swan V. Peterson
No. 92-35493
United States Court Of Appeals For The Ninth Circuit
6 F.3d 1373; 93 Cal. Daily Op. Service 7465; 93 Daily Journal DAR
12722
August 2, 1993, Argued, Submitted, Seattle, Washington
October 6, 1993, Filed

Prior History: Appeal from the United States District Court for
the Western District of Washington. D.C. No. CV-90-965-WTM. Walter
T. McGovern, Senior District Judge, Presiding.

Counsel:

David Allen, Allen & Hansen, Seattle, Washington, for the
petitioners-appellants.

Charles R. Nesson, Cambridge, Massachusetts, Amicus Curiae, in
support of the petitioners-appellants.

Paul D. Weisser, Assistant Attorney General, Olympia, Washington,
for the respondents-appellees.

Judges: Before: Eugene A. Wright, Robert R. Beezer and Cynthia
Holcomb Hall, Circuit Judges.

Opinion by Judge Wright:

Wright, Circuit Judge:

When the crime is child sexual abuse, one of the more difficult to
detect and prosecute, a conviction hinges often on the words of
children. What makes this case troubling is that the children did
not testify at trial. On the basis of hearsay statements, supported
by minimal corroborating evidence at best, a state jury convicted
William and Kathleen Swan of sexually abusing their three-year-old
daughter and her friend. The Swans have exhausted their state court
remedies and appeal the district court's denial of their habeas
corpus petition.

Our main issue is whether admission of the children's hearsay
statements violated the Swan's Sixth Amendment Confrontation Clause
rights. The Swans also argue that the state withheld information
that a key reporting witness had once been sexually abused, that
newly discovered medical evidence indicated that their daughter
was not molested and that they received ineffective assistance of
counsel. We affirm the dismissal of the habeas petition.

I. Background

The sexual abuse charges stemmed from statements made by the Swans'
daughter, B.A., and her three-year-old friend, R.T., to day-care
center workers. The two children attended a day-care facility
managed by Cindy Bratvold. She had hired Lisa Conradi as the center's
new part-time assistant. The disturbing allegations arose on
Conradi's second day of work. She told B.A. to keep her dress
covered over her tights, reminding her that no one should look at
or touch her "private parts." Conradi said that B.A. responded
"Uh-huh, Mommy and Daddy do." After further questioning, the child
allegedly told Conradi about games with her parents involving sexual
acts.

Conradi alerted Bratvold, who called Child Protective Services, a
state agency. Bratvold then spoke with B.A., who allegedly told
her that the games sometimes included her friend, R.T. Two CPS
caseworkers arrived and talked with B.A., but the interview was
inconclusive. They ended it when Kathleen Swan arrived to take her
daughter home.

R.T. came to the center the next day, but B.A. did not. Bratvold
asked R.T.  about the Swans and what types of games they played
together. R.T. allegedly described activities similar to what B.A.
had disclosed, including genital touching and oral sex.

These initial statements to the day-care workers were the most
damaging. The Washington Supreme Court reviewed in detail the trial
testimony about these events. State v. Swan, 114 Wash. 2d 613, 790
P.2d 610, 616-618 (Wash. 1990), cert. denied, 498 U.S. 1046, 112
L. Ed. 2d 772, 111 S. Ct. 752 (1991). We need not repeat those
findings, except to say that the implications are grave and alarming.
The children demonstrated precocious sexual knowledge, describing
multiple episodes of abuse by the Swans, which, if believed by a
jury, would warrant conviction.

After interviews with a CPS caseworker, the police were called and
the children placed in protective custody. The state charged both
Swans with two counts of statutory rape. Superior Court Judge
Ellington conducted pretrial hearings to determine whether the
young girls were competent to testify. After observing them, the
judge concluded that, because of their youth and inability to answer
questions in court, they could not satisfy the competency requirements.
The Swans do not contest this ruling.

The state introduced the children's statements to the day-care
workers under Washington's statutory child sexual abuse hearsay
exception, RCW @ 9A.44.120. n1 Under the same exception, the state
introduced other disputed hearsay evidence, including the children's
disclosures to the caseworker, B.A.'s statements to her foster
mother and R.T.'s statements to her father and a police detective.

====    Footnotes    ===>

n1 At the time, RCW @ 9A.44.120 read:

A statement made by a child when under the age of ten describing
any act of sexual contact performed with or on the child by another,
not otherwise admissible by statute or court rule, is admissible
in evidence in . . . criminal proceedings . . . if:

  (1) The court finds, in a hearing conducted outside the presence
  of the jury, that the time, content, and circumstances of the
  statement provide sufficient indicia of reliability; and

  (2) The child either:

  (a) Testifies at the proceeding; or

  (b) Is unavailable as a witness: Provided,

That when the child is unavailable as a witness, such statement
may be admitted only if there is corroborative evidence of the act.

<=== End of Footnotes ====

Before the admission of each statement, Judge Ellington, assisted
by counsel, conducted extensive preliminary examinations of the
reporting witnesses outside the presence of the jury. Once satisfied
that a statement met the reliability and corroboration requirements
of the statutory exception, the court allowed it into evidence.
The jury returned guilty verdicts.

The Washington Court of Appeals reversed, holding that the statements
lacked sufficient corroboration as required by the hearsay statute.
The State Supreme Court disagreed and reinstated the convictions.

The Swans petitioned the district court for a writ of habeas corpus,
arguing that: (1) the admission of the hearsay statements violated
the Confrontation Clause; (2) the state withheld favorable Brady
evidence; namely, that day-care worker Conradi had been sexually
abused; (3) newly discovered evidence showed that their daughter's
hymen is intact; and (4) they received ineffective assistance by
retained counsel. The court adopted the Report and Recommendation
of the magistrate judge and denied the petition on summary judgment.

II. Analysis

Confrontation Clause

A. Standard of Review and the Presumption of Correctness

We begin our analysis mindful that this is a habeas corpus proceeding,
not direct review of a criminal conviction. The Swans have already
had the opportunity to litigate their claims in the state courts.
Washington's highest court upheld their convictions. Different
principles apply on collateral review, constraining the role of a
federal appellate court. As the Supreme Court recently reminded
us, we may not second-guess the state courts:

  Direct review is the principal avenue for challenging a conviction.
  "When the process of direct review . . . comes to an end, a
  presumption of finality and legality attaches to the conviction
  and sentence. The role of federal habeas proceedings, while important
  in assuring that constitutional rights are observed, is secondary
  and limited. Federal courts are not forums in which to relitigate
  state trials."

Brecht v. Abrahamson, 123 L. Ed. 2d 353, 113 S. Ct. 1710, 1719
(1993) (quoting Barefoot v. Estelle, 463 U.S. 880, 887, 77 L. Ed.
2d 1090, 103 S. Ct. 3383 (1983)).

We review de novo the decision to deny the habeas petition and, to
the extent we need to review the district court's factual findings,
the clearly erroneous standard applies. Hendricks v. Zenon, 993
F.2d 664, 668 (9th Cir. 1993).

Under 28 U.S.C. @ 2254(d), we accord a presumption of correctness
to the state courts' factual findings. But this presumption does
not apply to the state courts' resolution of mixed questions of
law and fact. Acosta-Huerta v. Estelle, 954 F.2d 581, 585 (9th Cir.
1992). Whether the hearsay statements were sufficiently reliable
to be admitted without violating the Confrontation Clause is a
mixed question. See United States v. Owens, 789 F.2d 750, 757-58
(9th Cir.  1986) (admission of hearsay statement by assault victim
who later suffered memory loss), rev'd on other grounds, 484 U.S.
554, 98 L. Ed. 2d 951, 108 S. Ct.  838 (1988); see also Myatt v.
Hannigan, 910 F.2d 680, 685 (10th Cir. 1990) (hearsay declarations
of child sexual abuse victim).

Consequently, we accord deference to the state courts' factual
findings regarding the timing, manner and circumstances of the
hearsay statements. We review de novo the ultimate determination
that the Swans' Confrontation Clause rights were not violated.

B. Sufficient Indicia of Reliability

The Confrontation Clause and the hearsay rule are not coextensive.
Although both protect similar values, each sets independent
prohibitions on admissibility. See Ohio v. Roberts, 448 U.S. 56,
62-65, 65 L. Ed. 2d 597, 100 S.  Ct. 2531 (1980). The Clause does
not necessarily bar the admission of hearsay statements. Most
evidence that falls under a recognized hearsay exception may be
admitted without confrontation because of its presumed trustworthiness.
But the Clause may prohibit introducing some evidence that otherwise
would be admissible under a hearsay exception. Idaho v. Wright,
497 U.S. 805, 813-14, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990).

A statement falling under an exception will also be admissible
under the Clause if the prosecution demonstrates the unavailability
of the declarant and that the statement bears adequate "indicia of
reliability." Roberts, 448 U.S. at 66.

The Swans do not contest the trial court's determination that the
children were incompetent to testify and "unavailable" for hearsay
purposes. n2 The crux of this appeal is whether the incriminating
statements bore sufficient "indicia of reliability" to withstand
scrutiny under the Clause.

====    Footnotes    ===>

n2 We have no reason to decide whether White v. Illinois, 116 L.
Ed. 2d 848, 112 S. Ct. 736, 741 (1992), limits the unavailability
requirement to cases involving the admission of prior testimony.

<=== End of Footnotes ====

The reliability requirement is satisfied if a statement falls within
a "firmly rooted hearsay exception" or if it is supported by "a
showing of particularized guarantees of trustworthiness." Wright,
497 U.S. at 818. The trial court admitted the statements under
Washington's child sexual abuse hearsay exception. Enacted in 1982,
this exception is relatively new and not firmly rooted.

As the statements were admitted under a nontraditional exception,
the state, as proponent of the evidence, had the burden to demonstrate
reliability by showing "particularized guarantees of trustworthiness."
The proof is based on consideration of the totality of the
circumstances but "the relevant circumstances include only those
that surround the making of the statement and that render the
declarant particularly worthy of belief." Id. at 819.

The Supreme Court, in Wright, identified several factors bearing
on the reliability of a child's hearsay statements: (1) spontaneity
and consistent repetition; (2) mental state of the declarant; (3)
use of terminology unexpected of a child of similar age; and (4)
lack of motive to fabricate. Id. at 821-22 (citing cases). But no
mechanical test prevails and "courts have considerable leeway in
their consideration of appropriate factors." Id. at 822.  n3

====    Footnotes    ===>

n3 The Washington Supreme Court has identified a similar list of
factors bearing on the reliability of a child sexual abuse victim's
hearsay statements.  State v. Ryan, 103 Wash. 2d 165, 691 P.2d 197,
205 (Wash. 1984); State v.  Parris, 98 Wash. 2d 140, 654 P.2d 77,
80 (Wash. 1982).

<=== End of Footnotes ====

Despite this latitude, other corroborating evidence may not be
considered in assessing the hearsay's reliability. This would permit
"admission of a presumptively unreliable statement by bootstrapping
on the trustworthiness of other evidence at trial." Id. at 823. It
also presents dangers because of the problem of selective reliability.
n4

====    Footnotes    ===>

n4 For example, corroboration of a child's allegations of sexual
abuse by medical evidence may tend to show that abuse occurred but
it sheds no light on the allegations of the identity of the abuser.
A jury might rely on the partial corroboration to mistakenly infer
the trustworthiness of the entire statement.  Wright, 497 U.S. at
824.

<=== End of Footnotes ====

C. Initial Statements About Abuse

1. Relevant factors and impermissible bootstrapping

We consider first the girls' initial statements to the day-care
workers. In evaluating the admissibility of these remarks, the
trial court made three reliability findings of the type explicitly
approved by the Court in Wright: (1) neither girl had a motive to
lie; (2) both girls described sexual acts in specific terms, using
age-appropriate language; and (3) most of the statements were
spontaneous responses to open-ended questions or to no questions
at all. The court also found that the girls had a reputation for
truthfulness and that the disclosures were made to adults who had
relationships of trust with the girls. These latter factors do not
seem inappropriate, given Wright's emphasis that trial courts have
considerable leeway in making reliability determinations.

But the court relied improperly upon one additional factor. It
observed that the girls "made the statements on two consecutive
days without the children having discussed the matter and giving
basically the same content to the statements, I think is a strong
indicator of reliability." This is impermissible bootstrapping as
the court referenced other evidence in finding cross-corroboration
of each child's statements. n5 "To be admissible under the
Confrontation Clause, hearsay evidence used to convict a defendant
must possess indicia of reliability by virtue of its inherent
trustworthiness, not by reference to other evidence at trial." Id.
at 822 (emphasis added).

====    Footnotes    ===>

n5 The court probably emphasized other corroborating evidence
because of the requirements of the Washington child sexual abuse
hearsay statute. It requires a trial court to make separate
determinations of reliability and corroboration before admitting
a hearsay statement when the child is unavailable to testify.
Swan, 790 P.2d at 615. The trial court did not make separate
determinations but instead apparently blended the inquiries. Id.
at 616.

<=== End of Footnotes ====

We do not analyze separately the findings of the Washington Supreme
Court as it agreed generally with the trial court's determinations.
See Swan, 790 P.2d at 628-630. The district court conducted an
independent review of the transcripts.  It agreed with the state
courts that (1) the statements were spontaneous; (2) neither girl
had a motive to lie; (3) they did not have a tendency to lie; and
(4) most significant to the district court, the statements included
"a description of oral intercourse which was so specific, and showed
such inappropriate and precocious knowledge, that it would be
difficult to see this knowledge as anything other than the result
of personal experience."

But the court also made the same bootstrapping mistake as did the
state courts. It found relevant that "the allegations made by the
girls were consistent, both with one another's reports and with
each girl's later reports of the same activities." (emphasis added).

Nevertheless, we do not conclude that the bootstrapping errors of
the state courts and the district court tainted their reliability
determinations. Neither the state courts nor the district court
indicated that cross-corroboration was a primary reason for finding
the statements reliable; indeed, the district court found most
significant the knowledge of sexual acts unexpected of children of
that age.

2. Spontaneity

We turn next to the other reliability findings. In particular, the
Swans dispute that the statements were spontaneous. They say that
the day-care workers prompted the girls' initial remarks. According
to her preliminary testimony, Conradi told B.A. that no one should
touch her private parts and the girl responded "Mommy and Daddy
do." Although this statement did not come out of the blue, it was
not made in response to any question posed by Conradi.  Other
statements made by B.A. at that time seemed impulsive, such as
when, while playing a game of peekaboo, the girl said that "My
daddy puts his penis in my mouth and icky milk comes out."

Similarly, R.T.'s statements were made in response to Bratvold's
open-ended questions, such as "What kinds of games do you play with
Bill [Swan]?" This contrasts with the leading questions the Supreme
Court criticized in Wright. See 497 U.S. at 810 ("Do you play with
daddy? Does daddy play with you? Does daddy touch you with his
pee-pee? Do you touch his pee-pee?"). n6 We find no clear error in
the state and district courts' spontaneity determinations.

====    Footnotes    ===>

n6 Somewhat troubling is Bratvold's admission that she began to
cry upon hearing R.T.'s allegations about Kathy Swan, but continued
interviewing the girl. This at least raises the question whether
the day-care worker's change in demeanor may have, in a subtle way,
prompted R.T.'s additional statements. Cf.  Wright, 497 U.S. at
826-827 (if there "is evidence of prior interrogation, prompting,
or manipulation by adults, spontaneity may be an inaccurate indicator
of trustworthiness"). Bratvold was not trained professionally to
interview child sexual abuse victims. But we decline to speculate
endlessly from a cold reading of the record. We defer to the trial
court's conclusions that Bratvold did not direct the girl's answers.

<=== End of Footnotes ====

3. No motive or tendency to lie

We also find no clear error in the finding that the girls had no
motive to lie. The Swans do not suggest any motive. They contend
instead that the day-care workers, and particularly Conradi, were
biased. That, however, does not suggest that the girls themselves
had a reason to lie.

Next, the Swans argue that the courts erred in finding that the
girls were generally not prone to lie. They note that R.T.'s father
testified that she occasionally had make-believe companions and
pretended to have gone somewhere the day before when she had not.
And she told the police that "Jerry," possibly a reference to her
father Gerald, put "marbles" in her genital area. She said that
she had related the same information to Bratvold, who denied that
R.T. had made such a statement to her.

The testimony of R.T.'s father is not dispositive. Children pretend.
This does not reveal a tendency to prevaricate. R.T.'s later
statement about "Jerry" suggests a possible problem with lying.
Whether the Swans may rely on a later statement to undermine the
reliability of R.T.'s earlier statements, however, is unclear.
Wright forbids using other corroborating evidence at trial to show
that an initial hearsay statement is reliable. The issue here is
subtly different: can arguably noncorroborating evidence be used
to demonstrate the unreliability of a hearsay statement? Wright's
caution against reference to other evidence at trial suggests not.
n7

====    Footnotes    ===>

n7 Because Wright holds that the consistency of a child witness's
allegations bears on the reliability of an initial hearsay statement,
arguably a later inconsistent statement should also be evaluated
in making the reliability determination. This does not mean, however,
that R.T.'s later allegation undermines the reliability of her
earlier statements. The statement about "Jerry" was not necessarily
inconsistent because it may have referred to entirely different
events than those involving the Swans.

<=== End of Footnotes ====

Regardless, the district court considered this later statement but
discounted it. The court reasoned that the accusation was ambiguous
and that, by that time, several adults had questioned R.T. and the
spontaneity surrounding her answers had faded. This determination
was not clearly erroneous.

4. Effect of child declarant's incompetence

The Swans say that R.T.'s faulty performance at the competency
hearing precludes a finding that her hearsay statements had sufficient
guarantees of trustworthiness. n8

====    Footnotes    ===>

n8 Among other remarks, R.T. said that she had been in the courtroom
40 times (she had never been there before), she had seen defense
counsel four days earlier (she had not) and her dress was "blue,
sort of, but it's pink" (it was blue).

<=== End of Footnotes ====

The Supreme Court rejected a similar argument in Wright. Id. at
825 ("the Confrontation Clause does not erect a per se rule barring
admission of prior statements of a declarant who is unable to
communicate to the jury at the time of trial"). The Swans would
distinguish Wright, arguing that there the trial court found the
child incapable only of communicating to the jury but here the
incompetency problems were broader and more damaging.

The trial court recognized the distinction between R.T.'s ability
to testify in a courtroom setting and to tell the truth at the time
of the declarations. It clearly considered her incompetent only as
to the former. We defer to its finding.

5. Credibility of the reporting witness

The Swans say that the statements were unreliable because the
day-care workers, especially Conradi, were predisposed to find
child abuse. Amicus supports this position. Amicus essentially
makes a policy argument that in cases involving nontraditional
hearsay exceptions, the trial court should be vigilant in assessing
reliability by making a preliminary evaluation of the reporting
witness' credibility. Whatever the merits of this view, a federal
habeas court may not prescribe evidentiary rules for the states.
We may grant relief only if there is serious constitutional error.

We do not read the Confrontation Clause as mandating a threshold
assessment of the reporting witness's credibility before the
admission of hearsay evidence.  The Supreme Court has limited the
reliability inquiry required by the Clause to whether the circumstances
surrounding the making of the statement "render the declarant
particularly worthy of belief." Id. at 820 (emphasis added).  Unlike
the declarant, the reporting witness is subjected to cross-examination
and the requirements of an oath. See United States v. Hinkson, 632
F.2d 382, 385 (4th Cir. 1980) (discussing trustworthiness requirement
included in the analogous residual hearsay exception, Fed. R. Evid.
803(24)). See also John E.B.  Myers, Evidence in Child Abuse and
Neglect, @ 7.45, at 249, 262, 264 (2d ed.  1992) (reporting witness'
credibility not a reliability factor that surrounds the making of
the statement). The jury, not the trial judge, must weigh the
reporting witness's credibility.

Obviously the trial court must make some inquiries, such as deciding
whether a witness is competent to testify. But the Confrontation
Clause does not require the court to take basic credibility
determinations from the jury.

D. Later Hearsay Statements

1. Statements to CPS caseworker

In admitting the girls' statements to the CPS caseworker, the trial
court found indicia of reliability because (1) more than one person
was present when the statements were made; (2) some responses were
spontaneous; (3) neither girl had a motive to lie and they had
relationships of trust with the adults. It noted that leading
questions had been asked of B.A. but concluded that direct questions
are sometimes appropriate for difficult child witnesses and that
the girl's answers were consistent with her other spontaneous
statements. The district court agreed with these findings.

Although we are troubled by the use of leading questions, n9 this
does not necessarily render B.A.'s responses untrustworthy. See
United States v. George, 960 F.2d 97, 100 n.2 (9th Cir. 1992);
Myers, supra, @ 4.5 at 229-239. The consistency of the girl's
statements with her earlier statements is the critical reliability
factor here. We conclude that it provided a particularized guarantee
of trustworthiness.

====    Footnotes    ===>

n9 See, e.g., Wright, 497 U.S. at 826; Stephen Ceci & Maggie Bruck,
Suggestibility of the Child Witness: A Historical Review and
Synthesis, 113 Psychol. Bull. 403 (1993); Daniel Goleman, Studies
Reveal Suggestibility of Very Young as Witnesses, N.Y. Times, June
11, 1993, at A1, A9.

<=== End of Footnotes ====

2. Statements to R.T.'s father and to police detective

These statements had a low level of reliability because, when
allegedly made, several adults had already questioned the girls.
But we agree with the district court that any error in admitting
the statements was harmless because the evidence was "insignificant
in impact when compared to the initial disclosures of the girls,
and did not add anything new."

3. Statements to B.A.'s foster mother

In admitting this hearsay evidence, the trial court found indicia
of reliability because (1) B.A. had no motive to lie; (2) she had
the character for truthfulness; and (3) the statements were "basically
spontaneous." The district court made similar findings.

The spontaneity of the statements is questionable. They occurred
some five months after B.A.'s initial disclosure and after many
interviews. We are not persuaded by the district court's reasoning
that attention surrounding the earlier allegations had faded. Among
other things, B.A. had been seeing a therapist and doubtless was
asked about the earlier events, even if indirectly.

But again the critical factor is the consistency of the statements
with B.A.'s earlier allegations. Under the totality of the
circumstances, we find that it provided an adequate sign of
reliability.

Sufficiency Of The Evidence

Amicus argues that "a criminal defendant cannot be convicted on
the basis of hearsay alone." Even if hearsay can pass the admissibility
threshold, says Professor Nesson, it is inherently deficient,
without other corroborating evidence, for reaching a conclusion of
guilt beyond a reasonable doubt.

We decline to address this argument because it is raised for the
first time on appeal and not by the Swans. Although they challenged
properly the sufficiency of the evidence in the trial court by a
motion to dismiss at the close of the evidence, they did not raise
this issue in their habeas petition.

Generally, we do not consider on appeal an issue raised only by an
amicus.  Sanchez-Trujillo v. INS, 801 F.2d 1571, 1581 n.9 (9th Cir.
1986) (amicus may not frame the issues for appeal); Preservation
Coalition, Inc. v. Pierce, 667 F.2d 851, 862 (9th Cir. 1982) (same).
Discretionary exceptions exist where a party attempts to raise the
issue by reference to the amicus brief. See United States v. Van
Winrow, 951 F.2d 1069, 1072 (9th Cir. 1991); Toussaint v.  McCarthy.
801 F.2d 1080, 1106 n.27 (9th Cir. 1986), cert. denied, 481 U.S.
1069, 95 L. Ed. 2d 871, 107 S. Ct. 2462 (1987). And we have reached
the issue where it involves a jurisdictional question or touches
upon an issue of federalism or comity that could be considered sua
sponte. See Stone v. City and County of San Francisco, 968 F.2d
850, 855-56 (9th Cir. 1992) (federalism and comity), cert. denied,
122 L. Ed. 2d 358, 113 S. Ct. 1050 (1993); Miller-Wohl Co. v.
Commissioner of Labor and Industry, 694 F.2d 203, 204 (9th Cir.
1982) (jurisdiction); Chadha v. INS, 634 F.2d 408, 411-12 (9th Cir.
1980) (same), aff'd, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct.
2764 (1983). n10

====    Footnotes    ===>

n10 In United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988),
an anomalous case, we addressed an issue raised on appeal only by
an amicus. We did so because the issue was purely legal and involved
interpretation of a new statute.  Id. at 1001 n.8. But the authority
Sherbondy relied upon concerned only when a party, as opposed to
an amicus, may raise an issue for the first time on appeal.  See
Abex Corp. v. Ski's Enters., Inc., 748 F.2d 513, 516 (9th Cir.
1984).

<=== End of Footnotes ====

The Swans did not adopt amicus' argument by reference in their
brief and none of the other exceptions apply. The issue has been
waived. n11

====    Footnotes    ===>

n11 We also note that whether the Swans' convictions rested on
hearsay alone is unclear. The Washington Supreme Court found the
medical evidence regarding B.A. and also, to a lesser extent, R.T.'s
play with an anatomically correct doll, somewhat corroborative.
See Swan, 790 P.2d at 624.

<=== End of Footnotes ====

Brady Violation

The Swans contend that the state violated their due process rights
when it suppressed evidence that Conradi, the day-care worker who
was the key reporting witness, had been sexually abused. The district
court rejected this contention without a hearing. It found no
evidence that the state knew Conradi had been sexually abused, and
concluded that this was not a material fact of exculpatory value.

During a pretrial deposition, defense counsel asked Conradi whether
she had ever been abused. The prosecutor advised her not to answer
unless relevancy could be shown. No attempt was made either to show
relevancy or to require an answer to the question. The Swans argue
that the prosecutor's advice demonstrates that the state knew of
Conradi's past victimization or, at least, that the court should
have granted an evidentiary hearing to determine whether the
prosecutor knew, but did not disclose, that she had been abused.

The Swans were entitled to an evidentiary hearing only if they
alleged facts that, if proved, would entitle them to relief and if
they did not receive a full and fair evidentiary hearing in the
state court. See Greyson v. Kellam, 937 F.2d 1409, 1412 (9th Cir.
1991). We review for an abuse of discretion the decision to deny
an evidentiary hearing. Id.

The government must disclose evidence favorable to a defendant and
material to either guilt or punishment. United States v. Streit,
962 F.2d 894, 900 (9th Cir.) (citing United States v. Bagley, 473
U.S. 667, 674, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) and Brady
v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194
(1963)), cert. denied, 113 S. Ct. 431 (1992). Evidence is "material"
only if a reasonable probability exists that, had it been disclosed,
the result would have been different. United States v. Kennedy,
890 F.2d 1056, 1058 (9th Cir. 1989), cert. denied, 494 U.S. 1008,
108 L. Ed. 2d 484, 110 S. Ct.  1308 (1990). Evidence undermining
the credibility of a government witness must be disclosed when the
reliability of the witness may be determinative of the defendant's
guilt or innocence. United States v. Brumel-Alvarez, 991 F.2d 1452,
1458 (9th Cir. 1993).

The defense learned of the abuse from a post-trial interview of
Conradi conducted by a defense investigator posing as a journalist.
In the interview, Conradi said that she saw abuse everywhere in
her neighborhood. She also claimed to have called Child Protective
Services and "turned in at least 20 kids," who were abusing other
children.

Although information about Conradi's abuse was not before the jury,
it heard similar evidence undermining her credibility. She testified
that her own children had been sexually abused and that she took
a seminar to learn more about the subject, in part, because of
their experience. During cross-examination, she admitted that she
saw evidence of abuse "everywhere." On redirect, she clarified the
statement by saying that she meant that child sexual abuse can be
found in all social strata. Both defense attorneys argued in closing
that she was predisposed to find sexual abuse because of her personal
experience with it.

The jury knew that Conradi's children were sexually abused and
heard argument that she was biased as a result. But apparently it
credited her testimony. There is no reasonable likelihood that
additional evidence of Conradi's own abuse would have altered the
verdict.

Newly Discovered Evidence

Almost five years after the trial, Dr. Richard Soderstrom conducted
a routine gynecological examination of B.A. The Swans argue that
his findings, that she had a normal, intact hymen and that her
introital opening (the opening into the vagina) could not previously
have been 1 to 1.2 centimeters, constitutes newly discovered evidence
justifying a new trial. They add that the evidence presented at
trial regarding this issue was false and they were denied due
process.

Newly discovered evidence is a ground for federal habeas corpus
relief only when it bears on the constitutionality of an applicant's
conviction, Herrera v. Collins, 122 L. Ed. 2d 203, 113 S. Ct. 853,
860 (1993), and would "'probably produce an acquittal,'" Harris v.
Vasquez, 949 F.2d 1497, 1523 (9th Cir. 1990) (inner quotation
omitted), cert. denied, 117 L. Ed. 2d 501, 112 S.  Ct. 1275 (1992).

We agree with the state that this new evidence is insignificant.
The Swans were convicted of the statutory rape of R.T. even though
physical evidence of sexual abuse as to her was nonexistent. The
convictions were based upon the evidence of oral sex, n12 which
was substantially the same for B.A. as for R.T.

====    Footnotes    ===>

n12 The statute under which the Swans were convicted, former RCW
@ 9A.44.070, defined sexual intercourse to include oral sex.

<=== End of Footnotes ====

True, the jury may have convicted the Swans of raping B.A. based
upon the physical evidence, but convicted them of raping R.T.
because her out-of-court statements paralleled those of B.A. But
even under this unlikely scenario, evidence about the intact hymen
probably would not have produced an acquittal.

Nurse Practitioner Theodore Ritter said that when he examined B.A.
he did not notice the presence or absence of the hymen. He said,
however, that ordinarily an examiner cannot see into the vagina
due to the presence of the hymen, but that he was able to see into
B.A.'s vagina. He estimated that her introital opening was 1 to
1.2 centimeters, though he did not measure it. Another state witness,
Dr. Carol Jenny, testified that Ritter's observations meant only
that Ritter could see through the hymenal opening, and that an
accurate measurement of the vaginal introitus is obtainable only
with a measuring device, which Ritter did not use.

Dr. Lawrence Parris also testified for the state. He said that he
examined B.A. and found no evidence of physical injury to her
genitalia. He also said that he did not notice the presence or
absence of a hymen.

Contrary to the Swans' contentions, the newly discovered evidence
does not contradict materially the evidence presented at trial. At
most, it could have been used to impeach Ritter's testimony concerning
the size of the introital opening. It does not demonstrate that
the state's evidence was false. It was merely equivocal.

Ineffective Assistance Of Counsel

The Swans argue that their trial attorneys' failure to discover
that the state's medical evidence regarding B.A. was false constitutes
ineffective assistance of counsel.

They must show deficient performance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687-90, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984). In light of our conclusion that the new medical evidence
would not with reasonable likelihood have altered the result, the
Swans cannot show prejudice. Their ineffective assistance claim
fails.

Affirmed.
Source: geocities.com/jgharris7/witchhunt

( geocities.com/jgharris7)