State Of Washington, Respondent V Adrian Joseph Maupin, Appellant (Majority)

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E nTtl01- DI' vil, I A f. p111 r j S 1014 JAS+28 P1 q: tzo IN THE COURT OF APPEALS OF THE STATE OF W DIVISION II No. 431 STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION ADRIAN JOSEPH MAUPIN, M Penoyar, ,J. Adrian Maupin appeals his conviction for first degree child molestation. He contends the trial court violated his right to due process and his right to remain silent under the Fifth and Fourteenth Amendments and the Washington State Constitution when it admitted statements he made to Kelso Police Detective Dave Voelker that he alleges were coerced and thus involuntary. In his statement of additional grounds ( SAG), Maupin also argues the trial court violated his time for trial right, improperly found two witnesses' inconsistent statements reliable and admissible, and improperly treated a second Ryan' hearing as a continuation of the first Ryan hearing, instead of a new hearing. We hold substantial evidence supports the trial court' s finding that Maupin' s statements were not coerced, but were voluntary and the product of his own rational balancing of the competing circumstances. We also hold Maupin' s time for trial right was not violated, the trial court properly exercised its discretion when admitting the witnesses' statements from the Ryan hearing, and the second Ryan hearing was a continuation of the first. We affirm Maupin' s conviction. 1 State v. Ryan, 103 Wn.2d 165, 691 P. 2d 197 ( 1984). 43191 -2 -II FACTS BACKGROUND I. In 2011, Samantha West and Maupin had been close friends for over ten years and considered each other family. Maupin frequently babysat West' s two children, J. W. and M.W., either at his house or at West' s house. West' s children referred to Maupin as their uncle. While West touching him 51. and was changing J. W.' s2 diaper in May or June. 2011, J. W. told West to stop that Maupin had " touched his wee wee." lA Report of Proceedings ( RP) at West testified that J. W. seemed serious and kind of scared when he made this statement. Again in 2011, July that [ Maupin] said while his put West was wee wee watching her friends' in my mouth." lA RP children, at 59. J. W. " out of the blue After the other children left, West asked J. W. about what he had said and J.W. again told West that Maupin " put his wee wee in my friend' my mouth." s children, pee pee." lA RP at 61. Also, while West was babysitting in July 2011, one of West' s J. C., who was eight at the time, heard J. W. twice state that Maupin " touched lA RP at West did not immediately report J. W.' s statements to the police. 30. Instead, after she talked with her counselor about it, her counselor reported J. W.' s statements. Detective Voelker Justice and mentioned received the case for investigation. Advocacy Center ( CJAC) forensic interview Maupin' name s to J. W., on July West took J. W. to a Children' s 26, 2011. When the interviewer J. W. became upset and hid in an alcove in the room. Attempting to make J. W. feel more comfortable, the interviewer brought West into the room. However, when the interviewer brought up Maupin again, J. W. became angry and started pinching second 2 and hitting West, so CJAC interview, J. W. the interviewer again ended the interview. told West that Maupin " put J. W. was two and a half years old at the time. 2 his A couple weeks after J. W.' s wee wee in my mouth." lA 43191 -2 -II RP 72. at She 2011. asked West also testified that she saw behavioral changes in J. W. beginning in September J. W. " pe[ ed]" in places other than the toilet, and pulled down his pants and stated his brother, M.W., to kiss his " wee wee." 4 RP at 538. After J.W. attended the Ryan hearing in December 2011, West noted that J.W. seemed When she asked him what was wrong, J.W. said he did not want to go back to court. distant. When West wee in my asked mouth. J. W. if he I don' t saw want to Maupin in go court, back there." J. W. replied, " Yeah, [ Maupin] put his wee 4 RP at 535. MAUPIN' S INTERACTION WITH DETECTIVE VOELKER II. Beginning on July 27, 2011, Detective Voelker made several attempts to contact Maupin to schedule an interview. Maupin failed to attend the first scheduled interview on August 4, Maupin again failed to attend the rescheduled interview the morning of August 10, 2011. 2011. Maupin, however, showed up at the police station unannounced around 1: 30 P. M. on August 10, 2011. Detective Voelker told Maupin that because he was in a police station, everything was being recorded. room. 1B RP and chairs. closest at Detective Voelker took 108. Maupin to what is referred to as a " soft" interview The room was approximately 12 feet by 12 feet and contained two tables Detective Voelker and Maupin sat at the center table together, with. Maupin seated to the door, which remained unlocked throughout the interview. Detective Voelker was dressed in civilian clothes, but he wore a firearm holstered at his side. Before he began questioning Maupin, Detective Voelker read Maupin his Miranda3 rights. Maupin never asked any questions about his rights or expressed any confusion about his rights. Maupin agreed to talk to Detective Voelker and signed the form waiving his Miranda 3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 3 43191 -2 -II rights. At the time of the interview Maupin was 22 years old and had an 11th grade education. The interview. lasted just under 30 minutes. In preparation 1B RP document. legislature defense to the of Copy of the title to RCW 9A. 44. 030). state, " RCW 9A.44. 030). altered printout of occurred of, Maupin, Detective Voelker with created a " ruse" Detective Voelker printed a copy of RCW 9A.44.030 from the state 104. website and altered Ex. 5 ( Altered touching at for his interview body the Sexual contact with a minor, when permissible." Detective Voelker statute: " also added a " no penetration" FURTHER, That it is a defense that only exterior parts, without penetration however so slight." Ex. 5 ( Altered Copy Detective Voelker explained that he decided to use the document because Maupin had prior experience with the police and he was educated on the interview techniques and might be leery of talking to the police, especially considering that Maupin had already failed to attend two scheduled appointments. Detective Voelker expressed his opinion that Maupin appeared to be an intelligent, articulate man who comprehended everything discussed in the interview. At the beginning of the interview, Detective Voelker told Maupin that he could either be his friend or his enemy and that Maupin could trust him, which he reiterated throughout the interview. touched Detective Voelker also suggested to .Maupin that he had evidence that Maupin J. W. from J. W.' forensic interview " s applies CJAC forensic interview CJAC forensic interview. scientific principles was as sure as " to everything" gravity." 0 Detective Voelker told Maupin that the and that the evidence from the Ex. 5 ( Interview Transcript), at 11. 43191 -2 -II Early in the interview, .Detective Voelker also told Maupin that the law had " changed a little bit" since his 2004 conviction,4 and he showed Maupin a copy of the ruse document. Ex. 5, at 3. Detective Voelker reiterated throughout the interview that no penetration was a defense and that if Maupin would confess to no penetration sexual contact, then he could close out the case. Ex. 5, at 7 ( " Now you understand if you told me, yeah, I touched his his wiener, that I can close this out. And I' m not doing anything about that because it' s a defense. No penetration. "); Ex. 5, now that' 14 ( " Now at too. I' m out. That s not penetration either. saying do it. But I' m saying if not would be helpful. "); Ex. 5, at you wanna 17 ( " I' m And so, technically that' s permissible say that, we can we can just knock this just thinking there' s no penetration and that' s okay."). Maupin questioned the no penetration defense and what Detective Voelker meant by closing the case out. Although Detective Voelker showed Maupin the ruse document, Maupin never actually read it, nor did he really look at it. Maupin stated that the no penetration defense was " so Ex. 5, ridiculous." the he case closing out Voelker responded, " Maupin asked, " So if Detective Voelker asked, " Pretty you When Maupin first questioned Detective Voelker about 15. at That but I much ... just responded, " would close the Yeah, it['] need case, s like what end this - end it to be the truth." Ex. 5, what done does that mean? and over with." It' Ex. 5, it all ?" and Detective at s at 15. The second time done and over," 22 -23. and Maupin told Detective Voelker that he did not understand, but then immediately thereafter confessed. Maupin said he interpreted closing the case out to mean that " it would be done with and I would 4 Maupin was investigated in 2004 for allegations of sexual contact with his five- year -old female cousin. Sergeant Kimber Yund interviewed Maupin in the same interview room where Detective Voelker interviewed him in 2011. police department. Maupin denied the allegations and was allowed to leave the He was later charged and pled guilty to second degree attempted child molestation. 5 43191 -2 -II be That if I to leave. able he said what wanted me to say I could leave." 1B RP at 170. But Maupin stated that he also thought he was going to jail after his interview anyway because he had a warrant for his arrest on a prior DUI charge. Even though Detective Voelker used the no penetration defense ruse and told Maupin he just wanted to close the case out, Detective Voelker testified that he never made any threats to get Maupin to speak with him, nor did he make any promises about what would or would not happen in the case. Detective Voelker explained that closing the case was his goal in every case, which required going forward with the interview and working to the conclusion of the case. Maupin initially denied all allegations and explained that he possibly touched J.W. with a wipe while Maupin then confessed to touching J. W. but shortly he . changed J. W.' s diaper. thereafter retracted his confession by stating he confessed only because it was what Detective Voelker wanted saying, " I did it," 2) Did you three of and then answering " touch J. W.' s Thus, Maupin' s Toward the end of the 30- minute interview Maupin confessed by to hear. penis ?; and ( 3) Did confession consisted of Detective Welker' to three yes" his s six questions. you questions: ( touch J. W.' s penis with your general statement, " Ex. 5, at 23. 1) Did you touch J. W.' s butt?; I did it," lips? Ex. 5, at 23. and answering " yes" to Maupin did not confess to any form of penetration. After Maupin confessed, Detective Voelker told Maupin he was under arrest for the warrant and III. for child molestation, to which Maupin replied, " I figured." 1B RP at 118. PROCEDURAL HISTORY The State charged Maupin with first degree child rape and first degree child molestation. Maupin was arraigned and November 28, 2011 upon trial was the set State' s for October 17, 2011. motion. n The trial date was continued to The State then filed a second motion for 43191 -2 -II continuance because there was not adequate time for the Ryan hearing before trial. The trial court found good cause for the continuance and set a new trial date for January 3, 2012. On December 5, 16, and 21, 2011, the trial court conducted a Ryan hearing to determine the admissibility of J. W.' s child hearsay statements under RCW 9A.44. 120, and a CrR 3. 5 hearings to determine the admissibility of Maupin' s statements to Detective Voelker. After determining that J. W. was incompetent and thus unavailable to testify, the trial court heard testimony from West and J. C. regarding statements J. W. made to them about Maupin touching The trial court also heard testimony from Detective Voelker, Sergeant Kimber Yund, who him. interviewed Maupin regarding the 2004 sexual contact with a minor investigation, and Maupin. The day before trial on January 2, 2012, the State learned of new statements J. W. made to West after the December 5, 2011 Ryan hearing. The trial court pushed the trial date to January 26, 2012, to allow time for a continuation of the Ryan hearing to determine the admissibility of J.W.' s new statements. Maupin objected to this continuance, but the trial court found good cause and determined Maupin would not be prejudiced. At the continued Ryan hearing, the trial court heard testimony from West and West' s neighbor, to whom J.W. also allegedly made statements after the December 5, 2011 Ryan hearing. Regarding the Ryan hearing, the trial court determined that J.W.' s alleged statements to West and J. C. were reliable and were corroborated by additional evidence. The trial court found s CrR 3. 5( a) provides in relevant part, " When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible." 6 This included West' s testimony regarding J.W.' s statement to her in May or June 2011 while she was changing his diaper, the statement J.W. made in July 2011 while West was babysitting, the statement J. W. made a couple weeks after his second CJAC forensic interview, and the statement J. W. made after the December 5, 2011 hearing. 7 43191 -2 -II J. W.' s alleged statements to West' s neighbor unreliable and thus inadmissible. Regarding the CrR 3. 5 hearing, the trial court found that Detective Voelker did not use any threats or coercion to obtain Maupin' s statement, that Maupin' s testimony was not credible, that Maupin was not convinced of the no penetration defense, that Detective Voelker' s statement that he wanted to o close the case out did not overbear Maupin' s will and cause him to make an irrational choice, and that Maupin' defense was " s choice sufficiently to The trial court also stated the no penetration confess was rational. vague and unclear that it didn' t really mislead Mr. Maupin." 2 RP at The trial court concluded that Maupin' s statements to Detective Voelker were made 281. knowingly, intelligently, and voluntarily and were admissible at trial. Maupin waived his right to a jury trial and the trial court found him not guilty of first degree child rape, but guilty of first degree child molestation. The trial court sentenced Maupin to 119 months to life. Maupin timely appeals. ANALYSIS STANDARD OF REVIEW I. Our Supreme Court rejected the principle of an independent appellate review of the record in a confession case: " We hold that the rule to be applied in confession cases is that findings of fact entered following a CrR 3. 5 hearing will be verities on appeal if unchallenged; and, if challenged, Broadaway, they are verities if supported by substantial. evidence 133 Wn.2d 118, 131, 942 P. 2d 363 ( 1997). " in the record." State v. Consequently, when reviewing a trial court's conclusion of voluntariness, an appellate court determines ` whether there is substantial evidence in the record from which the trial court could have found that the confession was voluntary by a preponderance of P. 3d 83 ( 2012) ( quoting the Broadaway, evidence. "' 133 Wn.2d State v. Rafay, 168 Wn. App. 734, 757 -58, 285 at 129). 43191 -2 -II VOLUNTARY CONFESSION H. Maupin argues the trial court improperly admitted his involuntary statements in violation of his right to due process and his right to remain silent under the Fifth and Fourteenth Amendments and the Washington State Constitution. Specifically, Maupin contends Detective Voelker misrepresented the law, made false promises of immunity, gave Maupin incorrect legal advice, lied about the facts of the case, and presented himself as a trustworthy friend; which he argues . all together resulted in his involuntary statement that the trial court should have Because Maupin made the rational and voluntary decision to confess and his will suppressed. was not overborne by coercive police tactics, we affirm. The Fifth Amendment to the United States Constitution be in any compelled Article I, compelled in any 9 section the criminal of case is a witness against the Washington State Constitution criminal case state provision to be to give evidence against coextensive with that provided by states that "[ himself." states himself." n] o person ... shall U.S. CONST. amend. V. that "[ n] o person shall be The protection provided by the Fifth Amendment. State v. Unga, 165 Wn.2d 95, 100, 196 P. 3d 645 ( 2008). We examine the totality of the circumstances to determine if statements made during a custodial interrogation were coerced, meaning that the defendant' s will was overborne by the circumstances surrounding the giving 133 Wn.2d 132. at of the confession. Unga, 165 Wn.2d at 100; Broadaway, Circumstances relevant to the totality of the circumstances analysis include the location, length, and continuity of the interrogation; the defendant' s maturity, education, physical condition, and mental health; and whether the police advised the defendant of his Fifth Amendment Was a "` rights. product Unga, 165 Wn.2d of [ his] own . at So long as the defendant' s decision to confess 101. balancing of E competing considerations, the confession is 43191 -2 -II Unga, 165 Wn.2d voluntary. "' at 102 ( quoting Miller Fenton, 796 F. 2d 598, 605 ( 3d Cir. v. 1986)). The totality of the circumstances test specifically applies to determine whether a confession was coerced by any express or implied promise or by the exertion of any improper Unga, 165 Wn.2d influence. investigation do Wn.2d at 101; not at 101. automatically Broadaway, Police lies, promises, or misrepresentations during an render 133 Wn.2d at any resulting statements inadmissible. Unga, 165 132. But if the police tactics manipulated or prevented a defendant from making a rational, independent decision about giving a statement, the statement Unga, 165 Wn.2d is inadmissible. Wn.2d at 132. at 102 ( quoting Miller, 796 F.2d at 605); Broadaway, 133 Thus, the misstatement or promise must be sufficiently compelling to overbear the suspect' s will in light of all the attendant circumstances. A detective' s misstatement or misrepresentation of the law also does not automatically result in a subsequent confession being involuntary. See, e.g., Conner v. McBride, 375 F.3d 643, 654 ( 7th Cir. 2004) ( trial court was not unreasonable in determining defendant' s confession was voluntary, even though police officer' s may have misrepresented state criminal law after the defendant' s voluntary Miranda 2003) ( citing Soffar v. waiver); Jackson v. Frank, 348 F. 3d 658, 663, 665 ( 7th Cir. Cockrell,. 300 F. 3d 588, 591 ( 5th Cir. 2002)) ( state trial court was not unreasonable in concluding that defendant' s Miranda waiver was voluntary despite the detective' s misstatement of state law regarding the availability of a public defender for the defendant while 496 ( 2011) ( he was being questioned); State v. Curtiss, 161 Wn. App. 673, 690, 250 P. 3d defendant' s statements were not involuntary when detective correctly told defendant that the statute of limitations for rendering criminal assistance expired and then defendant' s statements were used to charge and convict her with 10 first degree murder). Our Supreme Court 43191 -2 -II has stated w]hile we do not condone deception, that alone does not make a confession that "[ inadmissible as a matter of law." State v. Braun, 82 Wn.2d 157, 161, 509 P. 2d 742 ( 1973). Instead, to be involuntary, the detective' s deception must overbear the defendant' s " will to resist and bring quoting Rogers v. about confessions not Braun, 82 Wn.2d at 162 determined." self - freely Richmond, 365 U. S. 534, 544, 81 S. Ct. 735, 5 L. Ed. 2d 760 ( 1961)). "` The question [ is] whether [ the interrogating officer's] statements were so manipulative or coercive that they deprived [ the suspect] of his ability to make an unconstrained, autonomous decision to confess. "' Unga, 165 Wn. 2d at 102 ( quoting Miller, 796 F. 2d at 605) ( alterations in original). In Curtiss, we held that a police officer' s accurate statement to Renee Curtiss that the statute of limitations had run decision making convicted of the for rendering process first degree or coerce murder. possible consequences of assistance criminal her into giving 161 Wn. giving the App. at statement did not " override Curtiss' s independent a statement," 690. did which resulted in her being We held Curtiss' s failure to realize all not change its voluntary nature. Curtiss, 161 Wn. App. at 691 ( citing State v. Heggins, 55 Wn. App. 591, 598 -99, 779 P. 2d 285 ( 1989) stating that the United States Supreme Court has " never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness" when assessing the voluntariness of custodial statements) ( internal quotation marks omitted) ( quoting Connecticut v. Barrett, 479 U.S. 523, 530, 107 S. Ct. 828, 93 L. Ed. 2d 920 ( 1987))). Additionally, "[ a] police officer' s psychological ploys, such as playing on the suspect' s sympathies, saying that honesty is the best policy for a person hoping for leniency, or telling the suspect that he could help himself by cooperating may play a part in a suspect's decision to confess." Unga, 165 Wn. 2d at 102; see also Miller, 796 F. 2d at 605 ( "[ I]t is generally recognized that the police may use some psychological tactics in, eliciting a statement from a 11 43191 -2 -II So long as the statements are a product of the defendant' s own balancing of suspect. "). competing the considerations, 605).. statements are Unga, 165 Wn.2d voluntary. at 102. ( quoting The question we must answer, then, is not whether Detective Voelker' s Miller, 796 F. 2d at statements were the cause of Maupin' s confession indeed, we assume that to be the case but whether those statements were so manipulative or coercive that they deprived Maupin of his ability to make an unconstrained, autonomous decision to confess. Here, Detective Voelker stated early in the interview that he could either be Maupin' s friend or his enemy, and Detective Voelker reiterated throughout the interview that he could be Maupin' s friend and that Maupin trust could him. Detective Voelker told Maupin that he had conclusive evidence from the CJAC forensic interview with J. W. that Maupin had touched J.W. and that Maupin had put his lips on J. W. Detective Voelker also told Maupin the law " is conviction and now " no penetration" a defense to changed a little bit" since his 2004 sexual contact with a minor. Ex. 5, at 3. Detective Voelker showed Maupin a copy of the relevant statute, which he had altered, to reinforce the no penetration defense, and then read a portion of the altered statute to Maupin: I]t is a defense that only exterior touching occurred of, body parts, without penetration however so slight." Maupin he just Ex. 5 ( Altered wanted to close Copy the case of RCW 9A.44. 030). out. Detective Voelker also told Throughout Maupin' s 30- minute interview, Detective Voelker reiterated the no penetration defense and that he wanted to close the case out multiple times. Maupin twice Ex. 5, at 15. questioned the no penetration defense and stated, "[ I] t' s so ridiculous." Maupin stated that he never actually read the document with the altered statute, nor did he really look at it. Maupin also twice asked Detective Voelker what closing the case out 12 43191 -2 -II The first time Maupin meant. Voelker responded, " Maupin asked, " Pretty So if Detective Voelker you asked, " responded " close would like what end end it this all ?" and Detective need it to be the truth." Ex. 5, at 15. The second time case, what but I much ... just That the Yeah, it['] s done does that mean? and over with." It' s done Ex. 5, at and over," 22 23. and Maupin then stated he did not.understand and immediately thereafter confessed. When asked what he thought closing the case meant at the CrR 3. 5 hearing, Maupin said he interpreted it to mean if he told Detective Voelker what he wanted to hear, then Maupin could leave. Maupin also stated he believed he was going to jail after his interview with Detective Voelker anyway because he had a warrant for his arrest. The trial court found that Detective Voelker did not use any threats or coercion to obtain Maupin' s statement, that Maupin' s testimony was not credible, that Maupin was not convinced of the no penetration defense, that Detective Voelker' s statement that he wanted to close the case out did not Maupin' was " overbear s choice sufficiently to Maupin' s will and confess was rational. vague and unclear him to cause make an irrational choice, and that The trial court also stated the no penetration defense that it didn' t really mislead Mr. Maupin." 2 RP at 281. We agree. Maupin was given Miranda warnings and knew his rights. He acknowledged and waived these There is no evidence that he lacked the capacity to understand his rights or the rights. consequences of waiving his He rights. was 22 years old. The questioning was of short duration, lasting only 30 minutes. Maupin was questioned in a small room containing a table and two chairs, where the door was left unlocked. The interviewing officer was not in uniform. There is no evidence that Detective Voelker used a threatening tone, raised his voice, badgered Maupin, attempted to intimidate him, or engaged 13 in other similar tactics. Maupin was not 43191 -2 -II subjected lengthy, to prolonged questioning, nor with repeated rounds of questioning. There is no evidence that he was deprived of any necessities such as food, sleep, or bathroom facilities. In United States confession was v. LeBrun, 363 F.3d 715, 726 ( 8th Cir. 2004), the Court found the defendant' s voluntary, noting among fact that [ the defendant] things that other confessed after a mere it three thirty - placed " minutes" substantial weight on the and the situation was not one where officers wore down the defendant's will with persistent questioning over a considerable length of time. Maupin also had prior experience with police interviews. In his 2004 interview with Detective Yund in the same interview room, Maupin denied the allegations of sexual contact with a child offense, to and which left the he police pleaded station. guilty. Maupin was later arrested and charged with a sex He acknowledged at the CrR 3. 5 hearing that merely walking out of the police station did not mean that the investigation was over. Thus, Maupin did not reasonably rely on Detective Welker' s statements regarding the no penetration defense and closing the case because Maupin understood that confessing and leaving an interview room did not end the investigation or close the case. Although Maupin certainly felt pressure to confess, there is sufficient evidence that his statements were voluntary and the product of his own rational choice. As discussed above, even if an officer' s psychological ploys played a part in a defendant' s decision to confess, as long as the decision is "` confession a product of is voluntary. the suspect' s Unga, 165 Wn.2d own at balancing of competing considerations, "' 102 ( quoting Miller, 796 F. 2d at 605). the Any promise by the police must be sufficiently compelling to overbear the suspect' s will in light of all attendant circumstances. F. 2d 1363, 1366 ( 1988)). Unga, 165 Wn.2d at 108 ( quoting United States v. Leon Guerrero, 847 Maupin' s potential failure to realize the possible consequences of 14 43191 -2 -II giving his statements does not change its voluntary nature. See Curtiss, 161 Wn. App. at 691. Because the interview was of a short duration, Maupin was 22 years old and had experience with a sexual conduct with a child investigation, and Maupin does not appear to have believed or have reasonably relied on Detective Voelker' s no penetration defense, the trial court did not err when it concluded that Maupin' s statements were voluntary and admissible. Thus, Detective Voelker' s no penetration defense and statements regarding closing out the case did not overbear Maupin' s will and cause him to irrational an make choice. Under the totality of the circumstances Maupin' s confession was voluntary. Accordingly, we affirm the trial court. III. SAG ARGUMENTS CRR 3. 3 TIME FOR TRIAL A. Maupin maintains the trial court misread CrR 3. 3, which resulted in a violation of his time for trial right. Although CrR 3. 3( b)( 1)( i) requires trial within 60 days when the defendant is in custody, this requirement "` is 805, 821, 912 P. 2d 1016 ( 1996) ( a constitutional mandate. "' State v. Carson, 128 Wn.2d quoting State v. Terrovona, 105 Wn.2d 632, 651, 716 P. 2d 295 the trial court must dismiss charges when the applicable time for Under CrR 3. 3( h), 1986)). not trial period has expired without a trial, but CrR 3. 3( e) excludes the time allowed based on valid continuances and other delays from the time for trial period. When any time for trial 3. 3( b)( 5). period of period extends Excluded section ( f)." time CrR 3. 3( parties, which must to is at periods under e)( be 3). excluded from the time for trial least " 30 days CrR 3. 3( e) after the end include delays " of period under that CrR 3. 3( excluded period." e), the CrR granted by the court pursuant to A court may grant a continuance based on " written agreement of the signed by the defendant" or "[ o] n motion of the court or a party" where a continuance " is required in the administration of justice and the defendant will not be prejudiced 15 43191 -2 -II in the presentation his of or her defense." CrR 3. 3( f)(1), ( 2). Furthermore, moving for a continuance " by or on behalf of any party waives that party's objection to the requested delay." CrR 3. 3( f)(2). Here, Maupin October 17, 2011. which the Maupin' s was arraigned on August 24, 2011, and the first trial setting was for After Maupin made a discovery motion, the State moved for a continuance, to counsel, matter and set a new but not Maupin, trial date of agreed. The trial court found good cause to continue November 28, 2011. The State filed a second motion to continue on November 18, 2011 because it would not have time to do the Ryan hearing before trial, to new which Maupin trial date of objected. January 3, 2012. The trial court again found good cause to continue and set a Due to the State receiving new evidence the day before trial on January 2, 2012, the trial date was pushed back to January 26, 2012, so that the trial court could hold a continuation of the Ryan hearing to determine the admissibility of the new evidence. Maupin objected to this continuation, but the trial court found good cause and determined Maupin would not be prejudiced. Because the trial court found good cause to continue the trial to January 3, 2012, under 2), CrR 3. 3( f)( the time from November 28, 2011, through January 3, 2012, was considered an excluded period under CrR 3. 3( e) and the time for trial period extended 30 days after the new trial date of January 3, 2012 to February 2, 2012. The trial court held Maupin' s trial on January 26 -27, 2012, and the trial court gave its verdict on January 30, 2012. Thus, the trial court did not violate Maupin' s time for trial right under CrR 3. 3. WGI 43191 -2 -II RELIABILITY OF TESTIMONY AT RYAN HEARING . B. Maupin argues the trial court improperly admitted J. W.' s hearsay statements from J. C.' s and West' s testimony in the Ryan hearing. Maupin maintains their testimony was inconsistent and thus unreliable. We review a trial court's admission of child hearsay statements to determine if its decision is manifestly unreasonable or based 157 Wn. 2d 108, 121, 135 P. 3d 469 ( 2006). grounds. on untenable reasons or . State v. Borboa, After finding J. W. incompetent to testify, the trial court assessed the reliability of J. W.' s statements to J. C. and West using the nine elements required by State v. Ryan, 103 Wn.2d 165, 691 P. 2d 197 ( 1984), and found the statements Because the trial court properly weighed the elements of reliability of the witnesses' reliable. testimony as required by Ryan, we do not disturb its decision on appeal. RYAN HEARING C. Maupin argues the trial court improperly treated the Ryan hearing on January, 17, 2012, as a continuation of the Ryan hearing held on December 5, 16, and 21, 2011. Specifically, because J.W. only testified in December. 2011, Maupin contends the trial court cannot take its best to re- guess of what the determine J. W.' s child[' s] development has been," and instead the trial court was required competency to testify in January 2012. SAG at 4. We review a trial court' s decision to admit child hearsay statements to determine if its decision was manifestly unreasonable or based on untenable grounds or reasons. State v. Woods, 154 Wn.2d 613, 623, 114 P. 3d 1176 ( 2005); 200 ( 2009). State v. Kennealy, 151 Wn. App. 861, 879, 214 P. 3d Child hearsay statements are admissible under RCW 9A.44. 120, which provides: A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the attempted act of sexual contact with or on 17 the by another, describing ; any is admissible in child by another ... child 43191 -2 -II evidence in ... in the courts of the state of Washington 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 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 State must make an effort to produce the child for the court to make a decision on the child' s availability. Ryan, 103 Wn.2d incompetent to testify. the trial court within Ryan, 103 Wn.2d the framework of 172. at at A child may be unavailable because he is 172. Competency is a matter to be determined by RCW 5. 60. 050. 7 Ryan, 103 Wn.2d at 172. Guidelines for the trial court in reaching its determination presume that the court has examined the child, and observed his manner, intelligence, and memory. Ryan, 103 Wn.2d at 172. Here, the trial court made a determination of J.W.' s incompetency on the first day of the Ryan trial hearing court on held December 5, 2011. a continuation of After new evidence came to light on January 2, 2012, the the Ryan hearing on January 17, 2012. The trial court did not re- evaluate J. W. at the continuation hearing on January 17, 2012, and instead stated that its initial examination of J. W. was sufficient and that J. W. was unavailable: I talked about developmental issues developmental issues. of children. I do his testimony from December 5th, he' child. s a Obviously, I' m not an expert on though, when very young child. recall, I watched [ J. W.] on He' s a very young And even if he made tremendous gains, to say that there' s a pink elephant z RCW 5. 60. 050( 2) provides in relevant part that persons " who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly" are not competent to testify. 18 43191 -2 -II in the room, or to say that his house is pink, it' s just m not going to revisit that. I' I think, you know, six weeks, five weeks from the time that I determined that he was unavailable or incompetent and therefore unavailable, I think that ruling still holds today. And so, I' ll make that finding that he' s unavailable. 3 RP at 423 -24. Nothing in RCW 9A.44. 120 requires that the trial court make a determination of the child' s unavailability at a second Ryan hearing for the same trial, let alone a continuation of a Ryan is hearing. Instead, the statute requires only that the trial court make a finding that the child unavailable for the child hearsay statements to be admissible. See RCW 9A.44. 120. The trial court here examined J.W., observed his manner, intelligence, and memory on December 5, 2011 and found him to be unavailable. Accordingly, the trial court' s decision to treat the January 2012 Ryan hearing as a continuation and to find its December 5, 2011 determination of J. W.' s unavailability sufficient was not manifestly unreasonable. We affirm Maupin' s conviction. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. Worswick, C. J. M

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