This Division Two case is important because its centered on two issues often encountered in child sexual assault cases: (1) the competency of the alleged child victim; and (2) hearsay statements of the child heard by others, such as the child’s mother. A pretrial hearing was conducted to address these issues, with testimony from the child, her mother, mother’s boyfriend, forensic interviewer, and pediatric nurse practitioner. The Court took this evidence, then held a hearing focused on whether the child’s vague and inconsistent memory was sufficient for her to be competent, as the trial court expressed strong concern about her lack of memory.
The State correctly argued the evidentiary burden was on Mr. Houser and the Defense to rebut the statutory presumption that the child was competent. The trial court’s competency concern is best expressed by this quote “she doesn’t remember anything. She said she was asleep. She doesn’t remember being touched. She doesn’t remember her clothes being shifted. She doesn’t remember any of that. “Anything” was not entirely an accurate summary. The trial court dialed this expression back by also stating “the point is she remembers going to the garage and sleeping in the bed with Mr. Houser, and then she said she went to sleep, so the question then becomes how much memory is enough memory [for competency].” The trial court decided the child was competent because she had some recollection of the environment. Memory gaps could be “explored during cross examination,” i.e. the defense could explore that the child had no memory of being touched after she went to sleep. The trial court then allowed the child’s hearsay statements to come in through four different witnesses: her mother, mother’s boyfriend, interviewer, and the pediatric nurse. Mr. Houser was convicted of two counts of Child Molestation in the First Degree and one count of Incest in the Second Degree.
Division Two upheld the convictions, holding the trial court did not abuse its discretion when it determined the child was competent to testify and then admitting her hearsay statements through others.
Mr. Houser appealed Division Two’s holding on May 15, 2024 to the Washington Supreme Court, arguing the competency ruling and the hearsay admissions. Mr. Houser, wisely, argues that the child, age 8 at the time of trial, did not recollect critical details that occurred at least two years beforehand. He argues that competency depends on the time period for the alleged abuse, and the time period is so broad that the evidence at trial indicated the child had no memories of “contemporaneous events”. Similarly, admission of the child’s hearsay statements was critical error, particularly expansive testimony of what the mother and her boyfriend supposedly heard. Mr. Houser argues they are unreliable witnesses.
Why this case should be monitored is the “low bar” for finding of competency, as it is described by Division Two. It is evident from the trial record that the trial judge greatly struggled with the competency determinations, stating, “this is a very important question. As a matter of fact, unlike most of the questions that I deal with every day, this one has plagued my mind over the last couple of days.” This statement suggests the trial court could have decided against competency, and Mr. Houser argues that the Division Two opinion conflicts with Washington Supreme Court precedent. Mr. Houser also argues that the competency determination conflicts with Supreme Court authority to admit the hearsay statements.
I will follow this case, and update the blog with developments.