State Appeals Court Decision

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON,

No. 38229-6-II Appellant,

v. MICHAEL JOSEPH GAFFNEY,

UNPUBLISHED OPINION

Respondent. Houghton, J. — The State appeals the trial court’s grant of Michael Gaffney’s Knapstad1 motion dismissing the charges of first degree child molestation and attempted first degree child molestation of M.A. After Gaffney prevailed in a child hearsay hearing, he successfully moved to dismiss both charges. The State argues the trial court erred in granting his Knapstad motion after finding that no evidence corroborated M.A.’s statement. We affirm the trial court on the first degree child molestation charge but reverse it on the attempted first degree child molestation charge and remand for further proceedings. FACTS On March 26, 2008, V.A. took her children, including her four-year-old daughter M.A.,2 to the Bainbridge Island Aquatic Center for swimming lessons. When V.A. approached the front desk to register M.A. for lessons, her daughter told her she needed to use the restroom so V.A. 1

State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).

2

M.A.’s birth date is February 22, 2004.

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sent her to use the one down the hallway from the lobby. Without V.A. noticing, Gaffney followed M.A. down the hallway and into the women’s restroom. After two or three minutes, V.A. became concerned that her daughter was taking an unusually long time in the restroom and went to investigate. When she walked into the restroom, she saw Gaffney standing over a partially dressed M.A. next to the sink and paper towel dispensers.3 V.A. shouted at Gaffney and told him to leave the women’s restroom, and he backed away from M.A. and ran out the door. V.A. asked M.A. if the man had hurt her or touched her, and she pointed at her thigh near her knee and said, “He touched me here.” Report of Proceedings (June 23, 2008) (RP) at 11. She took this to mean that Gaffney had touched M.A on the leg. V.A. reported the incident to the Aquatic Center, and the next day a police officer called and informed her of their investigation.4 Allen Nash, Gaffney’s acquaintance, called police to report a conversation he had with Gaffney regarding his interaction with a 3- or 4-year-old girl at the Aquatic Center. Nash told police that Gaffney said he followed the girl into the bathroom and molested her but ran out when her mother entered. Nash provided police with Gaffney’s current address. The police then went to the Aquatic Center and reviewed the security footage before taking Gaffney to the police

3

M.A. wore a pink, one-piece bathing suit that day and V.A. testified that when she walked into the restroom, her daughter’s shoulder straps were down. V.A. testified that the position of the straps was “kind of typical of that particular swimsuit.” Report of Proceedings (June 23, 2008) at 10. 4

V.A. did not call the police at the time of the incident because, at the time, she did not believe that Gaffney had sexually molested M.A. 2

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station for an interview. During the interview, Gaffney initially denied any wrongdoing. When police confronted him with the statements of others, Gaffney admitted he followed M.A. into the women’s restroom and removed her bathing suit but denied touching her inappropriately or offering her assistance in using the restroom.5 During the interview and directly afterward, police held Gaffney in custody for suspected child molestation. William Blaine Whitehead, an inmate confined in the same area of the jail as Gaffney, reported a conversation they had to police.6 Whitehead told police that Gaffney said he followed M.A. into the restroom, helped her out of her bathing suit, held her on the toilet to keep her from falling off, and wiped her with his exposed middle finger although she had not defecated or urinated. Whitehead expressed concern that Gaffney was a danger to the community and offered to testify against him. At the child hearsay hearing, the parties stipulated, and the trial court agreed, that M.A. was incompetent to testify. The State moved to admit the statement M.A. made to her mother regarding the touching and argued that the statement was reliable and corroborated. The trial court found the statement reliable and uncorroborated and found M.A.’s statements inadmissible. After prevailing at the child hearsay hearing, Gaffney moved to dismiss under Knapstad

5

The police report includes details of Gaffney’s professed coprophilia, which Webster’s Dictionary defines as “marked interest in excrement; esp: use of feces or filth for sexual excitement.” Webster’s Third New International Dictionary 503 (2002). 6

Whitehead contacted his attorney, who contacted police and arranged for Whitehead to share the information he learned from Gaffney. 3

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and the corpus delicti rule. The trial court granted Gaffney’s motion to dismiss both charges based on lack of independent proof of corpus delicti. The State appeals.

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ANALYSIS Child Hearsay The State first contends that corroborating evidence supported M.A.’s hearsay statement. It argues that numerous facts, including Gaffney’s statements to others, corroborated M.A.’s statement. Gaffney counters that use of his statements to corroborate a hearsay statement7 is not admissible to prove the corpus delicti of a crime. We review the trial court’s evidentiary rulings for abuse of discretion. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). Under ER 807, RCW 9A.44.120 governs the admissibility of child hearsay statements and provides: 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, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, 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. 7

Hearsay is an out of court statement offered to prove the truth of the matter asserted. ER 801. 5

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A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her 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. In State v. C.J., our Supreme Court held that a statement’s reliability and evidence of corroboration of that statement are separate determinations; a finding of one does not necessarily lead to a finding of the other. 148 Wn.2d 672, 687, 63 P.3d 765 (2003). Here, RCW 9A.44.120(2)(b) is the crux of the argument because M.A. was not available as a witness, and the trial court determined that although her statement was reliable under State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984), no evidence corroborated her statement to V.A. In C.J., the court held that “[i]n the context of RCW 9A.44.120(2)(b) corroborative evidence is that which would support a logical and reasonable inference that the act of abuse described in the hearsay statement occurred.” 148 Wn.2d at 687. When determining the existence of corroborative evidence, formal evidentiary rules do not bind the trial court. C.J., 148 Wn.2d at 687. In child sex abuse cases, eyewitnesses and physical evidence can be elusive, thus corroborating evidence may be either direct or indirect. C.J., 148 Wn.2d at 687. In State v. Swan, the court explained that “[t]he most effective types of corroboration in [child sex abuse] cases, of course, are eyewitness testimony, a confession or admissions by the accused, and medical or scientific testimony documenting abuse.” 114 Wn.2d 613, 622-23, 790 P.2d 610 (1990). Thus, under Swan, Gaffney’s confessions to Nash, the police, and Whitehead all serve as corroborating evidence.8 114 Wn.2d at 622-23. The trial court erred in refusing to

8

Gaffney argues the trial court erred in finding M.A.’s statement reliable. But he failed to file a timely cross-appeal under RAP 5.1(d) and therefore waived the issue on appeal. 6

No. 38229-6-II consider them.9 Knapstad Motion The State next contends that the trial court erred in granting Gaffney’s Knapstad motion. It argues that the trial court should have admitted Gaffney’s confessions and denied the motion. Under Knapstad, Gaffney is entitled to a judgment in his favor as a matter of law if the evidence seen in the light most favorable to the State is insufficient to prove every element of the crime.10 His confessions to Nash, the police, and Whitehead serve as independent evidence and corroborate M.A.’s statement that he touched her thigh. Reviewing RCW 9A.44.083(1), we agree with the trial court that the evidence is insufficient to prove every element of first degree child molestation because under the circumstances, evidence of Gaffney’s inappropriate touch of M.A.’s thigh amounted to a substantial step toward sexual contact, rather than the completed act. RCW 9A.28.020(1) (“A person is guilty of an attempt to commit a crime if, with the intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.”). Thus, considering Gaffney’s confessions and M.A.’s statement in the light most favorable to the State, he is not entitled to a judgment in his favor as a matter of law for the charge of attempted child molestation.

9

The trial court’s ruling relied in part on State v. Dow, 142 Wn. App. 971, 176 P.3d 597, review granted, 164 Wn.2d 1007 (2008). Dow does not apply to Gaffney’s case because he presents no conflict between the requirements of RCW 10.58.035 and the corpus delecti rule. 142 Wn. App. at 984. 10

Under RCW 9A.44.083(1), “A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” 7

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We affirm the trial court on the first degree child molestation charge but reverse it on the attempted first degree child molestation charge and remand for further proceedings. 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 pursuant to RCW 2.06.040, it is so ordered.

______________________________ Houghton, J. We concur:

_____________________________ Bridgewater, J.

_____________________________ Van Deren, C.J.

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