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State Appeals Court Decision

State Appeals Court Decision

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Published by: bainbridgereview on Oct 23, 2009
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State v. Knapstad 
, 107 Wn.2d 346, 729 P.2d 48 (1986).
M.A.’s birth date is February 22, 2004.
STATE OF WASHINGTON,No. 38229-6-IIAppellant,v.MICHAEL JOSEPH GAFFNEY,UNPUBLISHED OPINIONRespondent.Houghton, J. —The State appeals the trial court’s grant of Michael Gaffney’s
motion dismissing the charges of first degree child molestation and attempted first degree childmolestation of M.A. After Gaffney prevailed in a child hearsay hearing, he successfully moved todismiss bothcharges. The State argues the trial court erred in granting his
motion after finding that no evidence corroborated M.A.’s statement. We affirm the trial court on the firstdegree child molestation charge but reverse it on the attempted first degree child molestationcharge and remand for further proceedings.FACTSOn March 26, 2008, V.A.took her children, including her four-year-old daughter M.A.,
to the Bainbridge Island Aquatic Center for swimming lessons. When V.A.approached the frontdesk to register M.A. for lessons, her daughter told her she needed to use the restroom so V.A.
 No. 38229-6-II2
M.A. wore a pink, one-piece bathing suit that day and V.A.testified that when she walked intothe restroom, her daughter’s shoulder straps were down. V.A.testified that the position of thestraps was “kind of typical of that particular swimsuit.”Report ofProceedings (June 23, 2008) at10.
V.A.did not call the police at the time of the incident because, at the time, she did not believethat Gaffney had sexually molested M.A.sent her to use the one down the hallway from the lobby. Without V.A.noticing, Gaffneyfollowed 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 anunusually 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 toweldispensers.
V.A.shouted at Gaffney and told him to leave the women’s restroom, and he backedaway 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 ofProceedings (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 tothe Aquatic Center, and the next day a police officer called and informed her of their investigation.
 Allen Nash, Gaffney’s acquaintance, called police to report a conversation he had withGaffney 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 whenher mother entered. Nash provided police with Gaffney’s current address. The police then wentto the Aquatic Center and reviewed the security footage before taking Gaffney to the police
 No. 38229-6-II3
The police report includes details of Gaffney’s professed coprophilia, which Webster’sDictionary defines as “marked interest in excrement;
: use of feces or filth for sexualexcitement.” Webster’s Third New International Dictionary503 (2002).
Whitehead contacted his attorney, who contacted police and arranged for Whitehead to sharethe information he learned from Gaffney.station for an interview.During the interview, Gaffney initially denied any wrongdoing. When police confrontedhim with the statements of others, Gaffney admitted he followed M.A. into the women’s restroomand removed her bathing suit but denied touching her inappropriately or offering her assistance inusing the restroom.
During the interview and directly afterward, police heldGaffney in custodyfor 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.
Whitehead told police that Gaffney said he followedM.A. into the restroom, helped her out of her bathing suit, held her on the toilet to keep her fromfalling off,and wiped her with hisexposedmiddle finger although she had not defecated or urinated. Whitehead expressed concern that Gaffney was a danger to the community and offeredto testify againsthim.Atthe 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 trialcourt 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 

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