The State of Washington, Respondent, v. Stoney Daye Shafer, Appellant, 156 Wash. 2d 381

¶1 Stoney Shafer was convicted of rape of a child in the first degree. At trial, certain statements that the alleged child victim made to her mother and another person were admitted pursuant to RCW 9A.44.120, notwithstanding the fact that the victim did not testify at the trial and Shafer had no prior opportunity to cross-examine the child. Shafer appeals, claiming that RCW 9A-.44.120, facially or as applied, runs afoul of the constitutions of the United States and the state of Washington. We hold that the statements were properly admitted and affirm the trial court. Alexander, C.J.

I ¶2 On September 20, 2003, three-year-old T.C. spent a few hours at the home of her aunt, Dionne Alston. Stoney Shafer, Alston’s boyfriend, was present at Alston’s home during T.C.’s visit to her aunt’s home. At approximately 11:35 pm that night, T.C.’s mother retrieved T.C. from Alston’s house and returned home with the child. T.C. was asleep when her mother collected her, and she slept until the next morning. ¶3 Shortly after T.C. awoke, she told her mother that “Uncle touched my privates.” Verbatim Report of Proceedings (May 5, 2004) at 312.

T.C.’s mother then telephoned Dionne Alston and attempted to determine whether Shafer had spent any time alone with T.C. After this conversation, T.C.’s mother asked T.C. if she wanted to talk further. T.C. responded by telling her mother “that Uncle had touched her privates like this (gesturing)[] and that Uncle licked her privates like this (indicating).” Id. at 317. She also indicated that “Uncle had told her to kiss his privates like a sucker and that he made a mess on the bed with his pee-pee.” Id.

T.C.’s mother went on to describe their conversation: After [T.C.] had got done telling me that, I just asked her “Uncle who?” to make sure that she was talking about who I thought she was talking about, and she said “Junior’s dad.”[] And then I asked her where my sister was at. “Where was Auntie Dionne at?” She said “Auntie Dionne was in the yard,” I believe, I think she said. Id. T.C.’s mother indicated that T.C. had no previous exposure to sexually explicit material. ¶4 Following her conversation with T.C., T.C.’s mother took the child to a hospital for an examination.

Washington State Patrol lab technicians later examined the swabs taken from T.C.’s vagina and mouth during the examination. They also examined clothing that the child was wearing at the time of the alleged sexual contact. Although the oral and vaginal swabs did not, according to the technicians, turn up any relevant evidence, semen was detected on the cuff of T.C.’s sleeve. Shafer was then arrested. ¶5 Approximately a week after Shafer’s arrest, T.C. was at the home of Victoria Doroshenko, a family friend. Doroshenko had a history of acting as a confidential informant for law enforcement agencies.

She was also aware that Shafer had been arrested for allegedly raping T.C. While there, T.C. talked to Doroshenko’s daughter, Haley, about her encounter with Shafer. Haley relayed the information that she obtained from T.C. to Doroshenko. Doroshenko described the events that then took place: After Haley told me this, I brought [T.C.] over and asked what they were talking about, and [T.C.] told me boys have pee-pees and girls have privates. And I said, “Well, what about them?” and she made a comment to it being “like a sucker,” and, you know, making the gesture with her little cheek. . . .

And she said, “But it tasted bad,” or - - she said “But it tasted bad.” “Yuck.” Like that. And I said “Oh really?” and she said - - she said ‘Yeah, and then stuff shooted [sic] out of it.” And I said, “Really? Well, then what happened?” and she said “Then it fall down.” Id. at 390. ¶6 Doroshenko then videotaped another interview with T.C.

The record reveals that although Doroshenko had acted as a confidential informant for law enforcement organizations, she was not, at this time, acting for any law enforcement agency. ¶7 The Pierce County prosecuting attorney charged Shafer with one count of rape of a child in the first degree. Prior to trial, the trial court conducted a competency hearing and concluded, based on the stipulation of the parties, that T.C. was not competent to testify.

The trial court also concluded that because of her incompetence, T.C. was unavailable to testify. |8 Shafer moved to exclude T.C.’s hearsay statements, claiming that RCW 9A.44.120, the child hearsay statute, was unconstitutional in light of the United States Supreme Court’s ruling in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The trial court denied the motion, ruling that the holding in Crawford applied to testimonial statements only and that to the extent that the statute permits the introduction of nontestimonial statements, it remained constitutional.

It held that T.C.’s statements to her mother and Doroshenko were nontestimonial. ¶9 The trial court thereafter applied the so called “Ryan factors” to determine if T.C.’s statements were reliable for purposes of RCW 9A.44.120. See State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). Specifically, it found that: There is no apparent motive for T.C. to lie; T.C. appears to be a “normal” child, one who does not have a negative character or any tendency to lie; T.C. made statements about this incident to [her mother] and Ms.

Doroshenko at different times, with similar content; T.C.’s statements were spontaneous as defined by case law, in that she made the statements in her own words even when she was responding to a question; T.C.’s statements to [her mother] were made the morning after the incident, and her statements to M[s].

Doroshenko were made within a week or so of the incident, so T.C. was still able to accurately recall what happened; n/a; n/a; the possibility of T.C.’s recollection being faulty is remote because of the timing of those statements in relation to the incident; and the overall circumstances surrounding the statements T.C. made to [her mother] and Ms. Doroshenko demonstrate reliability, especially considered in conjunction with the hand and mouth movements T.C. made and accepting the State’s offer of proof that a semen stain was found on her shirt sleeve. Clerk’s Papers at 63.

The trial court also found that T.C.’s hand and mouth gestures and the semen found on her shirt were “sufficient corroboration for the admission of T.C.’s statements” to her mother and Doroshenko. Id. Therefore, it concluded that T.C.’s statements to her mother and Doroshenko, with the exception of the videotaped questioning, were admissible. ¶10 At trial, Shafer stipulated that sperm was present on T.C.’s shirt and that it was his sperm. A jury found Shafer guilty. Shafer then petitioned this court for direct review and we granted his petition. Shafer has not assailed any of the trial court’s findings of fact.

II ¶11 1. Whether RCW 9A.44.120, as applied in this case, is violative of the United States Constitution as interpreted by the United States Supreme Court in Crawford v. Washington. ¶12 2. Whether

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section 22 of the Washington Constitution provides a greater right of confrontation than the sixth amendment to the United States Constitution and, if so, whether RCW 9A.44.120 violates that constitutional provision. Ill ¶13 A statute is presumed to be constitutional. State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994) (citing Diversified Inv. P’ship v. Dep’t of Soc. & Health Servs., 113 Wn.2d 19, 23, 775 P.2d 947 (1989); State v. Brayman, 110 Wn.2d 183, 193, 751 P.2d 294 (1988)). The party challenging it, therefore, has the burden to prove it is unconstitutional beyond a reasonable doubt. Id.

A f 14 Shafer contends that RCW 9A.44.120, as applied to him, is unconstitutional because it permitted the admission of T.C.’s hearsay statements by utilizing the “indicia of reliability” standard set forth in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), a standard, he argues, that was rejected in Crawford. ¶15 The confrontation clause of the Sixth Amendment provides that: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Const, amend. VI.

In 1980, the United States Supreme Court ruled that the admission of hearsay statements would not violate the confrontation right of the accused so long as the witness is unavailable and his or her statements bear adequate indicia of reliability. Roberts, 448 U.S. at 66. The Washington State Legislature enacted RCW 9A.44.120 in response to Roberts.

See Laws of 1982, ch. 129, § 2. ¶16 In 2004, the United States Supreme Court reexamined its decision in Roberts and departed from it, holding that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68 (emphasis added)..

It indicated further, however, that where nontestimonial statements are at issue, “it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id. Thus, it follows that not all hearsay implicates the confrontation clause. Indeed, we so concluded in State v. Davis, 154 Wn.2d 291, 111 P.3d 844 (2005), a case in which we examined statements made during a 911 call in which a victim identified the defendant as her assailant.

We said there that those statements were nontestimonial and, consequently, did not implicate Crawford. Id. at 305, ¶ 38. ¶17 We must, therefore, determine here if T.C.’s statements to her mother and Doroshenko were “testimonial.” As we observed in Davis, the United States Supreme Court did not pronounce a comprehensive definition of “testimonial” in Crawford. Id. at 299, ¶ 18. It did indicate, however, that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” Crawford, 541 U.S. at 68. Of the testimonial statements identified as such in Crawford, the common thread binding them together was some degree of involvement by a government official, whether that person was acting as a police officer, as a justice of the peace, or as an instrument of the court. Accord id. at 53.

The Court in Crawford went on to say that casual remarks made to family, friends, and nongovernment agents are generally not testimonial statements because they were not made in contemplation of bearing formal witness against the accused. Id. at 51; accord Davis, 154 Wn.2d at 304. ¶18 In light of the Supreme Court’s formulations of what is or is not “testimonial,” we first examine the statements T.C. made to her mother. These statements were not solicited by T.C.’s mother. Without prompting, T.C. told her mother about her encounter with Shafer, and she did so upon awaking from sleep.

T.C.’s mother then responded in a manner that one would expect of a concerned parent under the circumstances — she inquired further. While T.C.’s statements in response to her mother’s questioning were not entirely spontaneous, they were not the result of leading questions or a structured interrogation. Furthermore, the police were not involved, and T.C. had no reason to expect that her statements would be used at a trial.

For these reasons, we conclude that T.C.’s statements to her mother were nontestimonial and, thus, do not run afoul of Crawford. f 19 It is a closer question whether the statements T.C. made to Doroshenko were testimonial. On the one hand, Doroshenko had prior experience as an informant for law enforcement agencies, and her contact with T.C. occurred approximately a week after Shafer was arrested. On the other hand, Doroshenko was not acting for any law enforcement agency at the time she talked to T.C., and, again, T.C. had no reason to expect that her statements would later be used in court.

Furthermore, the most questionable aspect of Doroshenko’s contact with T.C., the videotaped interview of the child, was excluded from evidence by the trial court. On balance, we are of the view that T.C.’s nonvideotaped statements to Doroshenko were not testimonial. ¶20 In light of the foregoing, we conclude that, where nontestimonial hearsay statements of a child are at issue, the statements are admissible if there is compliance with RCW 9A.44.120 and the Ryan reliability factors.

Because Shafer has not challenged any of the trial court’s findings of fact in support of its conclusion that T.C. was unavailable and that her statements were reliable, the findings are considered verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Therefore, the admission of these nontestimonial statements does not violate the United States Constitution. B f21 Shafer contends, additionally, that the confrontation clause contained in

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section 22 of the Washington Constitution is to be interpreted more broadly than its federal counterpart in the Sixth Amendment and that RCW 9A.44.120 violates this broad

interpretation. f 22

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section 22 of the Washington Constitution provides, in pertinent part: “In criminal prosecutions the accused shall have the right... to meet the witnesses against him face to face.” In State v. Foster, 135 Wn.2d 441, 957 P.2d 712 (1998), we addressed the issue of whether a statute that allowed a child witness to testify via one-way closed circuit television ran afoul of the “ ‘face to face’ ” language in

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section 22. Id. at 444. Although our court was divided in Foster, a majority of the court concluded that

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section 22 required an independent analysis and that the statute did not violate our state’s constitutional provision. Id. at 470 (Guy, J., lead opinion); id. at 474 (Alexander, J., concurring and dissenting); id. at 481 (C. Johnson, J., dissenting). ¶23 While Shafer correctly observes that an independent analysis of

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section 22 is required, we need not engage in such analysis here. We say this because we have previously concluded that RCW 9A.44.120 complies with

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section 22. Ryan, 103 Wn.2d at 169-70. In Ryan, we were asked to determine whether RCW 9A.44.120 violated the Sixth Amendment and

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section 22. We held there that “[t]he requirements for admission under RCW 9A.44.120 comport with the general approach utilized to test hearsay against confrontation guaranties.” Id. at 170. We adhere to that view now and hold that RCW 9A-.44.120 is constitutional under

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section 22. IV ¶24 We conclude that RCW 9A.44.120 is constitutional to the extent it permits the admission of a child’s non-testimonial statements. We also conclude that RCW 9A-.44.120 was applied constitutionally in this case because the child’s statements were nontestimonial. We, therefore, affirm the trial court. C. Johnson, Madsen, Bridge, Owens, and Fairhurst, JJ., concur. According to T.C.’s mother, T.C. used the term “Uncle” to refer to Shafer and the term “privates” in reference to her vaginal area.

T.C.’s mother testified that the child’s gesture was to “put her index finger up and made ... kind of a circular motion with her finger.” Id. at 318. T.C.’s mother described the child’s indication as “sticking her tongue in and out of her mouth.” Id. Shafer and Alston are the parents of Stoney Daye Shafer, Jr., also known as “Junior.” RCW 9A.44.120 conditions the admission of hearsay statements made by children under the age of 10 describing any act of sexual contact performed with or on them by another on the following:

(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. The concurring opinion correctly observes that what is or is not testimonial in light of Crawford will present a challenging determination for this State’s trial court judges. This is due in part to the United States Supreme Court’s decision to not provide a precise definition of testimonial statements. The Supreme Court did, however, articulate three formulations of the core class of testimonial statements.

These are: “ ‘[(1)] ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ [(2)] ‘extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [and (3)] ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Crawford, 541 U.S. at 51-52 (citations omitted).

We find ourselves agreeing with the late Chief Justice William H. Rehnquist that what constitutes a testimonial statement is presently somewhat amorphous. Id. at 75-76 (Rehnquist, C.J., concurring). We are satisfied, however, that T.C.’s statements do not fall within any one of the Supreme Court’s three core class formulations.

In Crawford, the Supreme Court identified several types of statements it considered nontestimonial, such as: (1) offhand, overheard remarks; (2) casual remarks made to an acquaintance; (3) business records or statements in furtherance of a conspiracy; (4) dying declarations; and (5) statements made unwittingly to a government informant. Crawford, 541 U.S. at 51, 56, 57. The dissenting opinion states that we are using a subjective person, rather than an objective person, test to determine whether the declarant, T.C., reasonably believed the challenged statements would be used later to prosecute. Dissent at 398-99.

The proper test to be applied in determining whether the declarant intended to bear testimony against the accused is whether a reasonable person in the declarant’s position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime. The inquiry focuses on the declarant’s intent by evaluating the specific circumstances in which the out-of-court statement was made. See Commonwealth v.

Gonsalves, 445 Mass. 1, 833 N.E.2d 549, 562 (2005) (“We see no reason why a reasonable person in the [20-year-old] complainant’s position would anticipate that her statement, made in her own bedroom, to her mother .. . would be used [in] prosecuting the alleged assault.”). Applying this standard, it defies logic to think that T.C., as a three-year-old child, or any reasonable three-year-old child, would have an expectation that her statements about alleged sexual abuse could be used for prosecutorial purposes.

Thus, whether one looks to T.C.’s subjective appreciation of the legal ramifications of her statements, as the dissent incorrectly asserts we do, or whether one objectively looks to what a reasonable, competent person in T.C.’s position would understand to be the import of the statements, which is the proper determination, the outcome of this case would not change.

A three-year-old child, whether T.C. or a fictional reasonable one, who tells her mother and a family friend in a private setting about sexual abuse is not making the statements in anticipation that the statements will later be used to prosecute the alleged sexual abuse perpetrator.