In re the Personal Restraint of Grasso , 151 Wash. 2d 1 ( 2004 )

Owens, J.

Vincent Grasso was convicted of first degree child rape and first degree child molestation in 1994. The victim, Grasso’s five year old daughter, R.G., took the stand at his trial. In his personal restraint petition, Grasso argues that because the prosecutor gave R.G. permission to answer some questions with “I don’t want to talk about it,” R.G. did not “testify” within the meaning of the child hearsay statute, and admission of her hearsay statements violated his right of confrontation. We hold that Grasso’s petition is not procedurally barred and the prosecutor’s instruction was indeed improper. Yet, setting aside the interchanges where R.G. answered, “I don’t want to talk about it,” the remainder of her testimony was sufficient to support admission of most of her hearsay statements. The remaining hearsay statements were admissible on alternative grounds. Thus, we hold that the improper instruction did not result in actual or substantial prejudice and we deny the petition.

FACTS

In April 1993, R.G. was living with her aunt, Tucker Copple. Copple and a friend found R.G. and their other young children engaging in sexualized play. As a result, Copple asked R.G. if she had ever been touched on her “private parts.” 4 Verbatim Report of Proceedings (VRP) at 543. Initially, R.G. answered, “No.” Id. After Copple reassured R.G. that she was not in trouble, R.G. began crying and answered, “Yes.” Id. When Copple asked who touched her, R.G. answered, “My dad.” Id.

On May 4,1993, Elaine Metz, a child interview specialist, interviewed R.G. Metz knew only R.G.’s name, her age, and the type of charge involved. On a drawing of a child, R.G. marked the places where her dad had touched her, and told Metz that her father had touched her on six occasions under her clothes. She indicated that her dad had touched her chest and rubbed her vaginal area, and that he had inserted his hand inside her vagina and rectum. R.G. stated that she was three when her dad first touched her in this way.

On June 3, 1993, Jean Bourget, a pediatric nurse practitioner, examined R.G. R.G. told Bourget that her dad had touched her front private part once with his hands and it hurt. Bourget’s colposcopic exam revealed that R.G. had an unusually large hymenal opening and a notch in her hymenal tissue, symptoms that are diagnostic of sexual abuse.

The State charged Grasso with one count of first degree rape of a child and one count of first degree child molestation. Before trial, the court conducted a child hearsay hearing pursuant to RCW 9A.44.120, under which a statement made by a child when under the age of 10, describing any act of sexual contact performed on the child by another, is admissible if the court finds (1) sufficient indicia of reliability and (2) the child either (a) testifies or (b) is unavailable, but there is other corroborative evidence of the abuse. Judge Gerald L. Knight admitted the statements R.G. made to Metz and Bourget pursuant to the statute. Although he initially excluded the disclosure to Copple, Judge Knight eventually ruled that the defense had opened the door to admission of those statements. Despite difficulty getting her to take the stand, R.G. testified at trial but denied her dad had abused her. The trial ended with a hung jury.

Before Grasso’s second trial, R.G. made additional statements about the abuse in the course of therapy with Kathy Keating-Harvey. On January 20, 1994, when asked about bad touches, R.G. responded, “like when . . . dad touched my privates.” 5 VRP at 691.¹ Again on February 10, when asked to name a bad part about someone she loves, R.G. responded, “My dad touching my privates, but I still love him.” 5 VRP at 696. Finally, on April 14, in a “Book about me” R.G. wrote that “Vincent” was someone she did not like to have touch her. 5 VRP at 697-99. When talking about the book, R.G. stated that she did not remember exactly how her dad had touched her but that he had touched her privates. She also explained that her dad said it did not happen, but it really did, and she remembered telling her aunt about it.

Before the second trial, the new trial judge (Judge Anita L. Farris) also held a child hearsay hearing. Judge Farris found that R.G. was available to testify, and R.G.’s statements to Keating-Harvey were sufficiently reliable to satisfy RCW 9A.44.120(1). See State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984). Following the law of the case, she also admitted R.G.’s statements to Metz and Bourget under RCW 9A.44.120. Even though Judge Knight had initially ruled that R.G.’s statements to Copple were inadmissible, Grasso stipulated to their admission, presumably for the purpose of arguing that Copple was suggestive in her questioning of R.G. Thus, R.G.’s statements to Copple were admitted as stipulated, and the statements to Metz, Bourget, and Keating-Harvey were admissible pursuant to RCW 9A.44.120, so long as R.G. testified. Finally, Judge Farris found that if R.G. were to become unavailable, the hearsay statements would still be admissible because the physical evidence of abuse provided corroboration sufficient to meet the requirements of RCW 9A.44.120(2)(b). However, R.G. was never found to be unavailable.

R.G. took the stand at the second trial and the prosecutor instructed R.G. that if she did not know the answer to a question, she should answer, “I don’t know,” if she could not remember, she should answer, “I don’t remember,” and if she did not want to talk about it, she could answer, “I don’t want to talk about it.” 5 VRP at 630. During direct examination, R.G. answered, “I don’t want to talk about it,” when asked if she knew why she did not live with her dad anymore, 5 VRP at 633, if she knew where her private parts were, 5 VRP at 635, and who it was that touched her in a bad way, 5 VRP at 639. R.G. also replied, “I don’t want to talk about it,” when asked, “Do you remember telling the doctor that your dad touched you in a bad way?”² 5 VRP at 636, and “does Kathy ever ask any questions about your dad?” 5 VRP at 633-34.

However, when the prosecutor asked whether anyone had ever touched her privates in a way she did not like, R.G. answered, “I can’t remember.” 5 VRP at 636. The prosecutor inquired further, You can’t remember or you don’t want to talk about it?” and R.G. answered, “I can’t remember.” 5 VRP at 636. When asked whether she was telling the truth when she told the doctor about her dad, R.G. answered, Yeah.” 5 VRP at 636. R.G. stated that she did not remember the meeting with Elaine Metz. Finally, the prosecutor asked general questions about what activities R.G. did with Kathy Keating-Harvey, to which R.G. answered, “I can’t remember.” 5 VRP at 631.

On cross-examination, R.G. affirmed that she did not know why she could no longer see her father. She also admitted that she had previously recanted, once in an interview with defense counsel and once in court, and she stated that those recantations were truthful. Finally, defense counsel asked, Your daddy didn’t touch you in the private parts, did he?” and R.G. stated that she could not remember. 5 VRP at 645. Notably, R.G. never answered, “I don’t want to talk about it” to any questions asked on cross-examination.

All of the hearsay statements discussed above were admitted, and R.G.’s testimony and her hearsay statements were the only evidence connecting Grasso to the abuse. The jury convicted Grasso and the Court of Appeals affirmed. This court denied review and the Court of Appeals issued a mandate on October 23, 1997.

Grasso filed his first personal restraint petition alleging confrontation clause violations on November 6, 1998, a few days after the statutory one-year time limit. See RCW 10.73.090(1). That petition was dismissed. Grasso filed his third personal restraint petition in this court in December 2001, claiming again that the admission of R.G.’s hearsay statements violated his right of confrontation and RCW 9A.44.120. The commissioner transferred the petition to the Court of Appeals where the acting chief judge dismissed the petition as both untimely and successive. Grasso filed a motion for discretionary review, which this court granted.

ISSUES

A. Is Grasso’s personal restraint petition procedurally barred?

B. Did admission of R.G.’s child hearsay statements violate Grasso’s right of confrontation?

C. If so, did actual and substantial prejudice result?

ANALYSIS

A personal restraint petition is not a substitute for direct appeal and availability of collateral relief is limited. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-29, 823 P.2d 492 (1992). In order to obtain relief, Grasso must first overcome statutory and rule based procedural bars. See, e.g., RCW 10.73.090, .140; RAP 16.4(d). Then, in order to successfully argue a claim not previously raised, Grasso must demonstrate by a preponderance of the evidence either a constitutional error that worked to his actual and substantial prejudice, or a nonconstitutional error that constitutes a fundamental defect inherently resulting in a complete miscarriage of justice. St. Pierre, 118 Wn.2d at 328; In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990).

A. Procedural Issues

Grasso concedes that his petition was filed more than one year after the mandate ended his direct appeal. See RCW 10.73.090(1). However, the one-year time limit for collateral attack does not apply to a petition that is based solely on the grounds that there has been a significant change in the law, which is material to the conviction, so long as sufficient reasons exist to retroactively apply the changed legal standard. RCW 10.73.100(6); see also In re Pers. Restraint of Benn, 134 Wn.2d 868, 940, 952 P.2d 116 (1998) (requiring a decisional change in the law to be retroactive in order to overcome the time bar).

“[WJhere an intervening opinion has effectively overturned a prior appellate decision that was originally determinative of a material issue, the intervening opinion constitutes a ‘significant change in the law.’ ” In re Pers. Restraint of Greening, 141 Wn.2d 687, 697, 9 P.3d 206 (2000). Prior to State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997), State v. Borland, 57 Wn. App. 7, 786 P.2d 810 (1990), was the only decision addressing the RCW 9A.44.120(2)(a) “testifies” requirement. The Borland court held that the requirement is satisfied when the child is “both competent and physically available,” regardless of whether she actually testifies. Borland, 57 Wn. App. at 13.

The Rohrich court “disapproved” Borland and redefined the word “testifies” as used in RCW 9A.44.120(2)(a). Rohrich, 132 Wn.2d at 481-82 & n.16. Because “[t]he Legislature intended the child hearsay statute to be constitutional and ‘carefully drafted [it] to avoid any confrontation clause problems,’ ” the Rohrich court interpreted the statutory language “in light of the requirements of the Confrontation Clause.” Id. at 476 (quoting Judy Yun, Note, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum. L. Rev. 1745, 1766 (1983)). In doing so, the Rohrich court concluded that “ ‘testifies,’ as used in RCW 9A.44.120(2)(a), means the child takes the stand and describes the acts of sexual contact alleged in the hearsay.” Id. at 480-81. This change in the law is material to Grasso’s conviction because under Borland R.G. testified, but under Rohrich she did not.³ Thus, a significant, material change in the law occurred.

The State argues that, even so, the new rule announced in Rohrich should not be applied retroactively to Grasso’s case. Yet, “where a statute has been construed by the highest court of the state, the court’s construction is deemed to be what the statute has meant since its enactment. In other words, there is no question of retroactivity.” State v. Moen, 129 Wn.2d 535, 538, 919 P.2d 69 (1996). Moreover, to the extent that Rohrich is based on constitutional principles, “[a] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” St. Pierre, 118 Wn.2d at 326 (emphasis added). On direct appeal, this court denied Grasso’s petition for review on May 6, 1997. State v. Grasso, 131 Wn.2d 1021, 937 P.2d 1102 (1997). The Rohrich decision was filed on July 3, 1997. Division One of the Court of Appeals issued the mandate in Grasso’s case on October 23, 1997.⁴ Because we consider the date of the mandate to be the date of finality in this case, the Rohrich decision occurred before Grasso’s direct review was final. See RCW 10.73.090(3)(b); RAP 12.7(b). Thus, Rohrich is a significant, material, retroactive change in the law, the RCW 10.73.100(6) exemption applies, and Grasso’s petition is not time barred.

The State raises two additional procedural arguments that merit comment. First, because the State concedes that the merits of Grasso’s confrontation clause argument have never been addressed, this petition is not successive under RAP 16.4(d). Greening, 141 Wn.2d at 698-99 (requiring RAP 16.4(d) dismissal where an issue has been “ ‘previously heard and determined’ on the merits” (quoting In re Pers. Restraint of Jeffries, 114 Wn.2d 485, 488, 789 P.2d 731 (1990))). Second, the State contends that the petitioner cannot mount a challenge based on statutory interpretation because defense counsel did not object at trial on statutory grounds. However, the Cook court noted that when the right at issue is protected by statute, but is closely akin to a fundamental constitutional right, the court may review a newly raised statute based claim of error. Cook, 114 Wn. 2d at 812-13. The right protected by the “testifies” requirement is fundamentally constitutional in nature. Because the confrontation clause provides a baseline measure of protection, if the confrontation clause was violated in this case, then the statute was necessarily violated also. The statutory language cannot be properly interpreted without looking to the confrontation clause.⁵ See Rohrich, 132 Wn.2d at 476. Thus, collateral review of the issue is proper, even if it involves reference to the statute. See Cook, 114 Wn.2d at 812.

B. Confrontation Clause

“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The central issue here is whether a defendant’s right of confrontation is violated where a child victim’s hearsay descriptions of sexual abuse are admitted, but the child does not describe the alleged acts or acknowledge some of the hearsay statements on the stand. In California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), the United States Supreme Court recognized, “there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” Id. at 158. Thus, we must determine whether R.G. testified at trial such that Grasso had an opportunity for full and effective cross-examination.

In Rohrich, this court concluded that “a child does not ‘testify⁵... when she does not give testimony describing the acts of sexual contact alleged in the hearsay.” Rohrich, 132 Wn.2d at 474. In that case, the nine year old victim had disclosed the alleged abuse to her mother, a police officer, a counselor, and a psychologist. Id. The child was found competent to testify, yet when the child took the stand at trial, the prosecutor asked her only innocuous questions and the child was not cross-examined. Id. The child’s hearsay statements were admitted and the defendant was convicted solely on the basis of those hearsay statements. Id. at 474-75.

The Rohrich court recognized that the opportunity to cross-examine means more than simply the opportunity to hail the witness into court; “the State [must] elicit the damaging testimony from the witness.” Id. at 478. A failure to do so “puts the defendant in ‘a constitutionally [unacceptable] Catch-22’ ” of eliciting the damaging testimony himself or waiving his confrontation rights. Id. (quoting Lowery v. Collins, 996 F.2d 770, 771-72 (5th Cir. 1993)).

In State v. Clark, 139 Wn.2d 152, 985 P.2d 377 (1999), this court clarified the limits of the Rohrich rule. In Clark, the victim testified about the alleged abuse at the hearsay hearing, and the trial judge admitted statements that the child had made to a school interventionist and a child interviewer. Id. at 154-55. But during direct-examination at trial, the victim recanted. Id. at 155. On cross-examination, she explained that she had accused Clark because he had left her family without a phone or a car. Id. Even so, the defendant’s confession and the child’s hearsay statements convinced the jury that Clark was guilty beyond a reasonable doubt. Id. at 153.

The Clark court discussed United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988), and Green, 399 U.S. 149. Clark, 139 Wn.2d at 158-59. In Owens, an assault victim had identified the defendant as his attacker in an interview. Id. at 158. Yet, as a result of the injuries he sustained, at trial the victim remembered identifying his attacker, but he could not remember seeing the defendant at the time of the assault. Id. The Court held that admission of the victim’s interview statement did not violate the confrontation clause because the victim testified in court that he could not remember the basis for that statement, and the defense had full opportunity to emphasize his memory loss on cross-examination. Owens, 484 U.S. at 559-60 (“ ‘[T]he Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” ’ ” (quoting Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987))). Therefore, the “ ‘traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witnesses] demeanor’ ” were all still effective. Clark, 139 Wn.2d at 158 (quoting Owens, 484 U.S. at 560). Similarly, in Green, the Court evaluated the admission of a witness’s prior hearsay statement, which was inconsistent with his testimony at trial. Id. The Court held that the confrontation clause was not violated because the defendant had a full opportunity to cross-examine the witness. Id. The Clark court concluded that “[U]nder Owens and Green the admission of hearsay statements will not violate the confrontation clause if the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination.” Id. at 159 (emphasis added).

Clark argued that Rohrich required the child witness to describe the acts alleged in the hearsay statements at trial, but the Clark court distinguished Rohrich on the facts. Id. at 159-61. In Rohrich, the confrontation clause’s “preference for live testimony [was] thwarted” because the child was not asked about the hearsay statement or the abuse. Id. at 161. In Clark, the State asked the witness about the alleged abuse and she denied that it had occurred; the State asked about the hearsay statements and the witness acknowledged making them, but claimed she had lied. Id. “The state did not seek to shield [her] from difficult questions nor was she evasive in her answers.” Id. The defense had full opportunity to cross-examine; in fact, the child was “the best witness for the defense.” Id. at 159. Thus, the Clark court limited the Rohrich holding to circumstances where the State shielded the child from testifying and held that Clark’s right of confrontation was not violated. Id. at 159, 161.

This case falls somewhere between Rohrich and Clark. Although R.G. was questioned about the alleged abuse, the prosecutor provided her with a means to avoid the most difficult questions when he told her she could answer, “I don’t want to talk about it.” 5 VRP at 630. The Rohrich and Clark courts agreed that shielding the child from difficult questions does not provide for adequate testimony under the confrontation clause. Clark, 139 Wn.2d at 161.⁶ Therefore, any exchanges in which R.G. answered, “I don’t want to talk about it” cannot be relied upon to support admission of her prior statements.

Grasso contends that R.G.’s entire testimony was tainted by the prosecutor’s instruction. However, the prosecutor told R.G. to distinguish between questions to which she did not know the answer and questions she wanted to avoid, and he was careful to clarify which response R.G. intended. Most importantly, R.G. did not answer, “I don’t want to talk about it” to any of the questions posed on cross-examination. Thus, only those interchanges in which R.G. responded, “I don’t want to talk about it” must be excluded from consideration.

R.G.’s remaining direct testimony falls squarely within the parameters of Clark. “Under Owens and Green the admission of hearsay statements will not violate the confrontation clause if the hearsay declarant is a witness at trial, is asked about the event and the hearsay statement, and the defendant is provided an opportunity for full cross-examination.” Id. at 159.⁷ R.G. was asked on both direct and cross-examination about the charged events, and she answered, “I can’t remember,” 5 VRP at 636, 645, a constitutionally acceptable response.⁸ Owens, 484 U.S. at 559. R.G. affirmed that she was telling the truth when she talked to Bourget about her dad,⁹ and she could not remember the interview with Metz.¹⁰ In contrast, when R.G. was asked specifically about her disclosures to Keating-Harvey, R.G. answered only “I don’t want to talk about it.” 5 VRP at 633-34. Thus, R.G.’s testimony supported the admission of her statements to Metz and Bourget,¹¹ but not her statements to Keating-Harvey.

Grasso also enjoyed the opportunity for full cross-examination about the alleged events and about R.G.’s statements to Metz and Bourget. R.G. admitted that she had recanted on two prior occasions, and when asked if she was telling the truth in each instance, R.G. responded, ‘Yeah.” 5 VRP at 644-45. Furthermore, direct examination made the jury sufficiently aware of R.G.’s hearsay statements to Metz and Bourget such that nothing prevented defense counsel from cross-examining R.G. about the truth of these statements or her lack of memory of the details. Therefore, Grasso enjoyed the traditional protections of the confrontation clause: (1) R.G was under oath, (2) defense counsel effectively cross-examined R.G about the charged events and nothing prevented him from cross-examining her about the hearsay statements to Metz and Bourget, and (3) the jury witnessed R.G.’s demeanor throughout. See Owens, 484 U.S. at 560.

We recognize that the State properly asked R.G. about the alleged events and her statements to Metz and Bourget. Grasso had the opportunity to fully cross-examine her about the statements and the underlying events. Therefore, those statements were properly admitted pursuant to RCW 9A.44.120. Only the statements that R.G. made to KeatingHarvey were improperly admitted as child hearsay.¹²

C. Actual and Substantial Prejudice

To prevail, Grasso must show that the prosecutor’s improper instruction to R.G. more likely than not resulted in actual or substantial prejudice. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 409, 972 P.2d 1250 (1999). If the improperly admitted hearsay statements made to KeatingHarvey were admissible on alternative grounds, then no actual and substantial prejudice resulted. See State v. Butler, 53 Wn. App. 214, 217, 766 P.2d 505 (1989) (admission of evidence on incorrect basis does not constitute error if a proper basis existed for admission). The State argues that Keating-Harvey’s testimony was alternatively admissible under the medical treatment exception to the hearsay rule, a firmly rooted hearsay exception. ER 803(a)(4); White v. Illinois, 502 U.S. 346, 355 n.8, 357, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992).

Although the confrontation clause and hearsay rules protect similar values, a violation of the confrontation clause may occur, and result in prejudice, even if a hearsay statement is admissible under a hearsay exception. Green, 399 U.S. at 155-56. However, the United States Supreme Court has held that the confrontation clause is not violated “where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule.” White, 502 U.S. at 356. A statement admitted under a firmly rooted hearsay exception satisfies the confrontation clause because it “is so trustworthy that adversarial testing can be expected to add little to its reliability.” Id. at 357. The hearsay exception for medical treatment is a firmly rooted hearsay exception and hearsay statements admitted under it do not violate the confrontation clause. Therefore, the medical treatment exception is a valid alternative grounds for admitting Keating-Harvey’s testimony.

Statements to therapists can be admitted pursuant to ER 803(a)(4). See, e.g., State v. Ackerman, 90 Wn. App. 477, 482, 953 P.2d 816 (1998). The medical treatment exception applies to statements only insofar as they were “reasonably pertinent to diagnosis or treatment.” ER 803(a)(4); State v. Woods, 143 Wn.2d 561, 602, 23 P.3d 1046, cert. denied, 534 U.S. 964 (2001).

Generally, to establish reasonable pertinence (1) the declarant’s motive in making the statement must be to promote treatment, and (2) the medical professional must have reasonably relied on the statement for purposes of treatment. Butler, 53 Wn. App. at 220 (adopting the Renville test, United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985)). Yet, Washington courts have recognized that “it is not per se a requirement that the child victim understand that his or her statement was needed for treatment if the statement has other indicia of reliability.” State v. Ashcraft, 71 Wn. App. 444, 457, 859 P.2d 60 (1993) (distinguishing Renville); see also State v. Kilgore, 107 Wn. App. 160, 183, 26 P.3d 308 (2001), aff’d, 147 Wn.2d 288, 53 P.3d 974 (2002); State v. Florczak, 76 Wn. App. 55, 65, 882 P.2d 199 (1994). If corroborating evidence supports the hearsay statement of a very young child, and it appears unlikely that the child would have fabricated the cause of the injury, then the statement can be admitted under the medical treatment exception, even without evidence that the child understood the purpose of her statements. Florczak, 76 Wn. App. at 64-65; see also Kilgore, 107 Wn. App. at 183. But see State v. Carol M.D., 89 Wn. App. 77, 87, 948 P.2d 837 (1997) (holding that the nine year old victim was not too young to understand the importance of being truthful with her therapist), withdrawn in part, 97 Wn. App. 355, 983 P.2d 1165 (1999). Here, Judge Farris found that R.G.’s statements to Keating-Harvey were both reliable and corroborated. Thus, R.G. need not have understood that her statements to Keating-Harvey were made for the purposes of furthering her treatment.

Because a medical professional or therapist must be attentive to treating both the physical and the emotional injuries that result from child abuse, a child’s statements as to the identity of a closely related abuser are also of the type relied upon in determining proper treatment. Butler, 53 Wn. App. at 221 (satisfying Renville's second prong). Keating-Harvey’s purpose in counseling R.G. was to help her “work through and express feelings about the touching,” 1 VRP at 17, and Keating-Harvey certainly relied on R.G.’s descriptions of the touching in determining the best course for treatment. Thus, R.G.’s statements to KeatingHarvey were independently admissible under ER 803(a)(4).

In sum, R.G.’s statements to Copple were properly admitted by stipulation, and R.G.’s statements to Metz and Bourget were properly admitted under the child hearsay statute. R.G.’s statements to Keating-Harvey were alternatively admissible under ER 803(a)(4). Therefore, all of R.G.’s hearsay statements were properly in evidence and no actual and substantial prejudice resulted from the prosecutor’s improper instruction to R.G. on direct examination.

CONCLUSION

Grasso’s petition is not procedurally barred. The prosecutor’s instruction, allowing R.G. to answer, “I don’t want to talk about it,” amounted to shielding the witness as prohibited by Rohrich and Clark. Excluding the interchanges in which R.G. replied, “I don’t want to talk about it,” the remaining testimony fell squarely within the Clark rule. The only hearsay statements tainted by the prosecutor’s instruction were those made to Keating-Harvey. Because those statements were independently admissible under the medical hearsay exception, no actual and substantial prejudice resulted. Therefore, we deny the petition.

Ireland and Bridge, JJ., concur.

1 Because the prosecutor opened the door by questioning Keating-Harvey’s methods, the trial court also admitted into evidence a videotape of the January 20 session.

2 Although Jean Bourget is a nurse practitioner, R.G. referred to her as a doctor.

3 The dissent believes that this statement means we concede R.G. did not testify. Dissent at 26-27, 35. However, Rohrich is limited by State v. Clark, 139 Wn.2d 152, 985 P.2d 377 (1999). Therefore, R.G. may have testified under the Clark standard, even if she did not testify under the Rohrich standard. See infra at 14, 16.

4 The mandate was delayed because the Court of Appeals on remand ordered Grasso to pay costs. In June 1997, there was a motion to modify that ruling, which the Court of Appeals granted in July 1997.

5 This is not to say that ROW 9A.44.120 may not be interpreted to offer more protection than the confrontation clause. See, e.g., State v. C.J., 148 Wn.2d 672, 686-87, 63 P.3d 765 (2003) (noting the statutory corroboration requirement, imposed where a child is unavailable, offers more protection than the confrontation clause requires). Grasso offers no sound reason for interpreting the statutory “testifies” requirement to be more protective than the confrontation clause. Moreover, this court has never recognized that the legislative history requires a more protective reading of the “testifies” requirement. See id. at 680-81; see also State v. Jones, 112 Wn.2d 488, 494-95, 772 P.2d 496 (1989). Finally, a search of legislative history revealed no intent to make the statutory “testifies” requirement more protective.

6 Alternatives exist for a child who is reluctant to testify against an alleged abuser. The child may testify via closed-circuit television. ROW 9A.44.150; see also State v. Smith, 148 Wn.2d 122, 136, 59 P.3d 74 (2002) (requiring consideration of alternative means for taking a witness’s testimony before resorting to unavailability). The child may also be found to be unavailable, thereby allowing admission of hearsay statements that are supported by both sufficient indicia of reliability and corroboration. ROW 9A.44.120.

7 The witnesses in Owens and Clark acknowledged their prior hearsay statements. Owens, 484 U.S. at 556; Clark, 139 Wn.2d at 155. Yet, Clark requires that the witness only be asked about the hearsay statement. Id. at 159.

8 The dissent argues that R.G. fails the second element of the Clark test because she was asked about the events, but R.G.’s answers lacked content. Whether “asked about” involves a content element need not be addressed here because R.G.’s answer, “I don’t remember,” is a constitutionally valid response. Further, if R.G. does not remember the event, it may be inferred that she does not remember the content of the event. Therefore, the second element of the Clark test is satisfied.

9 Although R.G. replied that she did not want to talk about her visit to the doctor, she also stated that she was telling the truth when she talked to Bourget about her dad.

10 The dissent argues that R.G. fails the second element of the Clark test because she was asked about the hearsay statements to Bourget and Metz, but R.G.’s answers lacked content. Whether “asked about” involves a content element need not be addressed here because R.G.’s answers do involve the content of the hearsay statements. R.G. testified that she was telling the truth when she spoke to Bourget about her dad, and truthfulness of a statement goes to the content of the statement. R.G. also testified that she could not remember the interview with Metz. It may be inferred that this means she did not remember the content of the interview, so R.G.’s answer does involve the content of the hearsay statement.

11 Each hearsay statement was found to be supported by sufficient indicia of reliability, a finding not at issue here.

12 Grasso also claims violations under the state constitution. Although five members of this court have agreed that Washington’s confrontation clause offers higher protection than its federal counterpart with respect to face-to-face testimony, Smith, 148 Wn.2d at 131, the petitioner offers no Gunwall analysis discussing whether the state confrontation clause offers higher protection in this context. See id.: State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).