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MICHAEL JOSEPH GAFFNEY, UNPUBLISHED OPINION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.
No. 38229-6-II

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.

4
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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
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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.