MADSEN, C.J.
¶ 1 Steven Beadle appeals his convictions for child molestation in the first degree. At a pretrial child hearsay hearing, the alleged victim, four-year-old B.A.,
¶ 2 Beadle appealed, arguing that the trial court committed reversible error in finding B.A. unavailable and in admitting the child hearsay statements. He also argued that the trial court erred in admitting irrelevant and unduly prejudicial evidence of B.A.'s emotional breakdown. The Court of Appeals affirmed Beadle's convictions. We also affirm.
¶ 3 In January 2006, three-year-old daughter, B.A., announced to her mother, Lisa Burgess (Burgess) that her "potty" hurt.
¶ 4 Around April 2006, Burgess noticed that B.A. had begun drawing pictures depicting "tails." According to Burgess, "she would say it or draw it and then she would instantly throw it away or crumple it up or scribble over it. And she would always say, `I don't want to get in trouble.'" Id. at 37.
¶ 5 In February 2007, B.A. made another drawing of a "tail" and told Damon Burgess (Damon),
¶ 6 Detective Carl Buster, a detective at the Centralia Police Department and Ronnie Jensen, a Child Protective Services (CPS) worker, interviewed B.A. the next day. Jensen was present to assist the police department with the interview. Id. at 104. Initially, Jensen found B.A. happy and outgoing. However, when Detective Buster asked B.A. if she knew why she was there, she "immediately shut down." Id. at 106. When Jensen used a sheet of paper to shield Detective Buster from B.A.'s view, B.A. told Jensen that she had touched Beadle's tail and that it felt "squishy" and had gotten wet. Id. at 108. She pointed to the crotch of a stuffed bear to show Jensen where Beadle's "tail" was located.
¶ 7 Burgess sought counseling for B.A. at Cascade Mental Health Care. During the initial assessment, B.A. told Cary McAdams, a licensed mental health clinician, that she had touched Beadle's "tail" on three occasions and that she sometimes sat on his lap with a towel, with his "tail" between them. She also described her "potty" hurting. In one therapy session, B.A. picked up a male doll and a baby doll and, without prompting, offered to show her therapist, Margaret Heriot, what Beadle had done. She performed the demonstration under the table, explaining that she was "embarrassed." Id. at 49.
¶ 8 B.A. was diagnosed with posttraumatic stress disorder (PTSD) and sexual abuse of a child.
Id. at 96. Heriot also indicated that children who are sexually abused by a family member often feel conflicted toward their abuser, harboring negative feelings about the abuse but at the same time, feeling close to the abuser and enjoying the attention. Heriot opined that B.A. displayed such conflicting feelings and had developed a "trauma bond" with Beadle. I VRP (Suppression Hr'g, Nov. 16, 2007) at 19.
¶ 9 Beadle was charged by third amended information with three identical counts of
¶ 10 A three-day pretrial child hearsay hearing was held in the Lewis County Superior Court. According to Heriot, as the date of the hearing approached, B.A. grew increasingly reticent in therapy, refusing to discuss the abuse and insisting that she was finished discussing the topic. Heriot indicated that this behavior was typical of children who have been abused and that talking about abuse after the fact is "a very scary thing for them to do." Id. at 23.
¶ 11 On the first day of the hearing, B.A. refused to enter the courtroom. Instead, according to Jensen, "when it came to actually walking to the door, [B.A.] just crumbled, ran to a corner, stayed in that corner for about an hour crying and just refused to talk." I VRP (Jan. 30, 2008) at 55. Several adults tried to coax B.A. out of the corner, but she remained "balled up in a fetal position in the corner of one of the seats out in the hallway with her head buried between the seat and the wall," refused to make eye contact with anyone, and hid her face under her hair. Id. at 112. Eventually, Jensen was able to calm B.A., but she remained steadfast in her refusal to testify.
¶ 12 Later in the day, the State again attempted to convince B.A. to testify, but B.A. refused. The State proposed a procedure by which B.A. would testify via a victim advocate, should she agree to testify later in the proceedings.
¶ 13 On the second day of the hearing, the State attempted again to persuade B.A. to "come in the courtroom." II VRP (Suppression Hr'g, Nov. 20, 2007) at 45. The prosecutor asked the court if Burgess could be present in the courtroom when and if B.A. took the stand. The court assented. However, after a break in proceedings, the State reported that B.A. remained unwilling to enter the courtroom.
¶ 14 At the conclusion of the hearing, the trial court found that B.A. was unavailable to testify, citing the "substantial amount of crying and screaming coming from the public portion of the hallway outside the courtroom door" on the first day of the hearing and noting that B.A. had resisted "any and all attempts to bring her into the courtroom." III VRP (Suppression Hr'g, Dec. 19, 2007) at 24. In a subsequent written order, the trial court also noted that B.A. had been diagnosed with PTSD and sexual abuse of a child. In its written order, the trial court held that "the evidence does not suggest that [B.A.] may be able to testify by the use of closedcircuit television pursuant to RCW 9A.44.150." Clerk's Papers (CP) at 42.
¶ 15 In addition, the trial court held that under State v. Shafer, 156 Wn.2d 381, 128 P.3d 87 (2006), B.A.'s disclosures to Jensen and Detective Buster, like her other out-of-court statements, were nontestimonial. Finally, the court held that B.A.'s out-of-court statements were admissible under RCW 9A.44.120 because the surrounding circumstances provided sufficient indicia of reliability,
¶ 16 On the first day of trial, the State brought a motion in limine to introduce evidence as to B.A.'s "complete breakdown" on the first day of the child hearsay hearing. I VRP (Jan. 30, 2008) at 13. Over Beadle's objection, the court allowed the State to introduce limited testimony regarding B.A.'s resistance to testifying.
¶ 17 The jury convicted Beadle of two counts of first degree child molestation and acquitted him of the third count. In addition, the jury returned special verdicts finding that Beadle had used his position of trust or confidence in committing both counts of child molestation and that both counts were part of an ongoing pattern of sexual abuse. The court imposed an exceptional sentence.
¶ 18 On appeal, Beadle challenged the trial court's finding that B.A. was unavailable to testify. Br. of Appellant at 1. Beadle also contended that the trial court had erred in admitting "irrelevant and unfairly prejudicial" evidence of B.A.'s behavior at the courthouse and that the admission of testimonial hearsay statements violated his right to confrontation. Id.
¶ 19 After oral argument, the Court of Appeals requested supplemental briefing on the application of State v. Smith to the instant case. Suppl. Br. of Appellant at 1; State v. Smith, 148 Wn.2d 122, 139, 59 P.3d 74 (2002) (before finding a child unavailable under RCW 9A.44.120, court "must consider the use of closed-circuit television pursuant to RCW 9A.44.150 if there is evidence that the child victim may be able to testify in an alternative setting").
¶ 20 In a split, unpublished opinion, the Court of Appeals affirmed Beadle's convictions. State v. Beadle, noted at 154 Wn.App. 1021, 2010 WL 282405. The majority distinguished State v. Smith and held that the trial court did not abuse its discretion in finding B.A. unavailable to testify. Beadle, 154 Wn.App. 1021, 2010 WL 282405, at *6.
¶ 21 Beadle claims that B.A.'s hearsay statements to Ms. Jensen and Detective Buster were testimonial, and the trial court erred in admitting these statements.
¶ 22 In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that admission of testimonial hearsay statements of a witness who does not appear at a criminal trial violates the confrontation clause of the Sixth Amendment unless (1) the witness is unavailable to testify and (2) the defendant had a prior opportunity for cross examination. The Crawford Court left "for another day any effort to spell out a comprehensive definition of `testimonial,'" 541 U.S. at 68, 124 S.Ct. 1354. However, it noted that "an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at 51, 124 S.Ct. 1354.
¶ 23 In dicta, the Court listed three "formulations of this core class of `testimonial' statements," including "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52, 124 S.Ct. 1354 (quoting Br. for Nat'l Ass'n of Criminal Defense Lawyers et al. as Amici Curiae at 3).
¶ 24 Following Crawford, in Shafer, this court announced a declarant-centric standard for determining whether an out-of-court statement made to a nongovernmental witness is testimonial.
Shafer, 156 Wash.2d at 390 n. 8, 128 P.3d 87 (citation omitted). Applying this standard, the trial court in this case held that B.A.'s statements to Jensen and Detective Buster were nontestimonial in light of B.A.'s tender age. CP at 43.
¶ 25 Months after this court issued the Shafer opinion, the United States Supreme Court again discussed testimonial hearsay, explaining that, within the context of police interrogations, whether statements are "testimonial" is determined by the primary purpose of the interrogation.
Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The Court noted that the primary purpose test was specific to the police interrogation context. Id. at 823 n. 2.
¶ 26 In State v. Ohlson, 162 Wn.2d 1, 168 P.3d 1273 (2007), we adopted the "primary purpose" test announced in Davis and identified four factors to determine whether an out-of-court statement is testimonial under Davis: "(1) the timing relative to the events discussed, (2) the threat of harm posed by the situation, (3) the need for information to resolve a present emergency, and (4) the formality of the interrogation." Id. at 12, 168 P.3d 1273.
¶ 27 In so holding, we declined to import the declarant-centric standard announced in Shafer to the police interrogation context, noting that "[t]he Davis primary purpose test is not focused on the reasonable belief of an objective declarant, as was one definition of `testimonial' endorsed in Crawford." Id. at 11, 168 P.3d 1273; see Shafer, 156 Wash.2d at 390 n. 8, 128 P.3d 87; see also State v. Koslowski, 166 Wn.2d 409, 430 n. 13, 209 P.3d 479 (2009) ("The four-factor inquiry as well as the rest of the analysis in Davis does not turn on the purpose and understanding of the victim/witness whose statements are at issue, and whatever else might be said of Crawford, the formulations of possible approaches to what constitute 'testimonial statements' appearing in it do not take precedence over Davis.").
¶ 28 In Michigan v. Bryant, ___ U.S.___, 131 S.Ct. 1143, 1156, 179 L.Ed.2d 93 (2011), decided shortly after oral argument in this case, the United States Supreme Court further clarified that in deciding whether the primary purpose of the interrogation is to meet an ongoing emergency, the court objectively evaluates the circumstances of the encounter and the statements and actions of the parties to the encounter. As part of this inquiry, the court also considers the level of formality surrounding the statement. Id. at 1160.
¶ 29 Based on the evolution of the law since Shafer, we conclude that the Shafer standard does not apply to statements made to law enforcement.
¶ 31 At the time of these disclosures, the immediate danger to B.A. had passed; B.A.'s interview with Jensen and Detective Buster took place in February 2007, whereas Beadle had no access to B.A. after January 2006. See Ohlson, 162 Wash.2d at 12, 168 P.3d 1273. Although the interview was tailored to a child, it had a degree of formality and was unlike a conversation with a casual acquaintance. Id. Unlike the interrogation in Bryant, the interview in this case took place in a neutral location—not in the field at the scene of a potential crime. See Bryant, 131 S.Ct. at 1150.
¶ 32 On these facts, we conclude that the primary purpose of this interview was to "establish or prove past events potentially relevant to later criminal prosecution," rather than to respond to an "ongoing emergency." Davis, 547 U.S. at 822, 126 S.Ct. 2266; see Bryant, 131 S.Ct. at 1156. Thus, we hold the trial court erred in concluding that B.A.'s disclosures to Jensen and Detective Buster were nontestimonial. Cf. State v. Justus, 205 S.W.3d 872 (Miss.2006) (holding that child victim's statements during forensic interview were testimonial under primary purpose test); State v. Arnold, 126 Ohio St.3d 290, 933 N.E.2d 775 (2010) (same).
¶ 33 As noted, testimonial statements may not be introduced against a criminal defendant unless the declarant is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. Beadle did not have the opportunity to cross-examine B.A. Accordingly, we hold that the admission of B.A.'s statements to Jensen and Detective Buster was error.
¶ 34 We engage in a different analysis to determine whether the trial court properly admitted B.A.'s nontestimonial hearsay statements. Beadle does not challenge the trial court's conclusion that B.A.'s statements to Burgess, Damon, Heriot, and McAdams were nontestimonial. Nontestimonial statements do not implicate the Confrontation Clause. Id. at 68, 124 S.Ct. 1354. Instead, the admissibility of these statements turns solely on whether B.A. was available to testify under RCW 9A.44.120.
¶ 35 Citing both RCW 9A.44.120 and the confrontation clauses of the state and federal constitutions, Beadle contends that the trial court erred in finding B.A. unavailable to testify. Specifically, he claims that the trial court erred in concluding that B.A. would be unable to testify via closed-circuit television or another alternative means. Suppl. Br. of Pet'r at 2.
¶ 36 RCW 9A.44.120 governs the admissibility of child hearsay.
¶ 37 We review a trial court's admission of child hearsay statements for abuse of discretion. State v. Borboa, 157 Wn.2d 108, 121, 135 P.3d 469 (2006). "A trial court abuses its discretion `only when its decision is manifestly unreasonable or is based on untenable reasons or grounds.'" Id. (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)).
¶ 38 As Beadle recognizes, RCW 9A.44.120 does not define the term "unavailable." Instead, Beadle argues that cases discussing the test for "unavailability" under the statute require that courts apply the constitutional "unavailability" test to all child hearsay statements.
¶ 39 Prior to the Supreme Court's decision in Crawford, determining whether a child witness was unavailable did not require courts to distinguish between testimonial and nontestimonial hearsay. Instead, under the test outlined in Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled by Crawford, 541 U.S. 36, 124 S.Ct. 1354, all hearsay statements admitted under RCW 9A.44.120 were evaluated under the confrontation clause to determine whether the statements were reliable. After Crawford, however, only testimonial statements implicate the constitutional protections of the confrontation clause.
¶ 40 The burden of proving unavailability for constitutional purposes lies with the proponent of the child hearsay statement. Smith, 148 Wash.2d at 132, 59 P.3d 74 (citing Roberts, 448 U.S. at 66, 100 S.Ct. 2531). Under the constitutional standard, unavailability requires a "good faith effort" to secure the presence of the witness at trial. Suppl. Br. of Resp't at 10 (recognizing constitutional standard for unavailability); Ryan, 103 Wash.2d at 171, 691 P.2d 197 (citing Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled on other grounds by Crawford, 541 U.S. 36, 124 S.Ct. 1354).
¶ 41 Without distinguishing between B.A.'s testimonial and nontestimonial hearsay statements, Beadle argues that the State has failed to prove that it made a "good faith effort" to secure B.A.'s testimony via closed circuit television or otherwise. Suppl. Br. of Pet'r at 4-6. He contends that the trial court erred in concluding that B.A. would be unable to testify via closed circuit television and in finding B.A. unavailable without fully exploring this alternative.
¶ 42 In support of his contention, Beadle relies heavily on Smith, a decision predating Crawford. Smith involved a constitutional challenge to a trial court's finding of unavailability. 148 Wash.2d at 126, 59 P.3d 74. There, a child witness took the stand at a pretrial hearing to determine the admissibility of her hearsay statements, but when she saw the defendant in the courtroom, she "became scared, began to cry and immediately `clammed up.'" Id. at 126, 59 P.3d 74 (quoting report of proceedings). The defendant argued that if the child did not testify in open court, he was entitled to confront the witness via closed-circuit television. Id. at 126-27, 59 P.3d 74.
¶ 43 The child's social worker opined that the child would be able to testify, but that "`this testimony would be best obtained'" via alternative means. Id. at 127, 59 P.3d 74 (quoting report of proceedings). She testified that possibilities for taking the child's testimony in an alternative setting "`might be worth exploring further.'" Id. The child's therapist testified in turn that the child would be unable to testify in the defendant's presence and probably unable to testify via closed-circuit television. Id. at 128, 59 P.3d 74. The court found the child witness unavailable, citing the child's behavior in the courtroom and noting that the courtroom lacked the equipment for closed-circuit television. Id.
¶ 44 On appeal, Smith argued that the confrontation clauses of the state and federal constitutions required the court to find the child unavailable to testify via closed-circuit television before finding her unavailable as a witness. Id. at 129, 59 P.3d 74. This court agreed, confining the holding to the narrow circumstances at issue.
Id. at 136, 59 P.3d 74 (emphasis added).
¶ 45 Initially, Beadle's reliance on Smith is misplaced because Smith is concerned only with the "good faith" standard—the standard for unavailability under the confrontation clause. However, we are concerned only with B.A.'s nontestimonial statements, which do not implicate the confrontation clause.
¶ 46 As the State correctly points out, there is a critical distinction between unavailability for confrontation clause purposes and unavailability for evidentiary purposes. Suppl. Br. of Resp't at 9-10 ("`Unavailability for purposes of [this] hearsay statute is defined under ER 804(a)'.... Unavailability in the constitutional sense additionally requires the prosecutor to make a good faith effort to obtain the witness's presence at trial." (quoting State v. Hirschfield, 99 Wn.App. 1, 4, 987 P.2d 99 (1999); (citing State v. Ryan, 103 Wn.2d 165, 171, 691 P.2d 197 (1984)))). See State v. Hacheney, 160 Wn.2d 503, 522 n. 8, 158 P.3d 1152 (2007) (noting distinction between unavailability for confrontation clause purposes and unavailability for evidentiary purposes); State v. Price, 158 Wn.2d 630, 639 n. 5, 146 P.3d 1183 (2006) ("Both the United States Supreme Court and this court have drawn a distinction between unavailability for confrontation clause purposes, and unavailability for hearsay purposes.").
¶ 47 Whereas all hearsay statements admitted under RCW 9A.44.120 are subject to the evidentiary standard for unavailability, only testimonial statements are subject to the constitutional requirements for unavailability. Thus, cases such as Smith, which apply the constitutional standard for "unavailability" under the Roberts standard are
¶ 48 However, even if Beadle is correct that all of B.A.'s hearsay statements, both testimonial and nontestimonial statements, are subject to the constitutional standard of "unavailability," the record here demonstrates that the State made "reasonable" efforts to produce B.A. under the reasoning in Smith. Specifically, the State proposed alternative means for B.A. to testify; it requested that B.A. be allowed to testify with her mother present or, alternatively, to whisper her responses to a victim advocate who would relay them to the court.
¶ 49 Despite its efforts, the State was unable to coax B.A. into the courtroom or to agree to testify through either of these alternative means. It is difficult to imagine what more the State could have done to produce B.A. as a witness, short of dragging her, kicking and screaming, into the courtroom. B.A.'s dramatic meltdown on the first day of the child hearsay hearing, coupled with her psychiatric diagnoses of PTSD, provides ample evidence from which a court reasonably could infer that B.A. would remain unwilling and unable to testify in open court or even via alternative means, such as closed-circuit television. The law requires only "reasonable," efforts—not "futile acts." See Roberts, 448 U.S. at 74, 100 S.Ct. 2531; Ryan, 103 Wash.2d at 172, 691 P.2d 197.
¶ 50 By its terms, Smith, 148 Wash.2d at 137, 59 P.3d 74, is limited to circumstances in which affirmative evidence suggests that a child may be able to testify via alternative means. There, a social worker explicitly stated that the child may have been able to testify under different circumstances. Id. at 127, 59 P.3d 74. Here, B.A.'s behavior suggests an unwillingness to testify under any circumstances. No affirmative evidence indicated otherwise. Notably, at the time of trial, even Beadle did not take issue with the trial court's conclusion that B.A. was unavailable. It is true, as Beadle notes, that B.A. was apparently willing to come into the courtroom on one occasion, a willingness to enter a courtroom is a far cry from a willingness to testify at trial, in open court or otherwise. Moreover, the State attempted to call B.A. on the second day of the child hearsay hearings, after she had expressed this willingness to come into the courtroom, and again, B.A. refused to enter the courtroom or to testify.
¶ 51 As the Court of Appeals noted, the trial court in Smith dismissed out-of-hand the possibility of using closed-circuit television, citing inadequate facilities for such an arrangement. Beadle, 154 Wn.App. 1021, 2010 WL 282405, at *6; see Smith, 148 Wash.2d at 128, 59 P.3d 74. Here, the court explicitly considered the use of closed-circuit television and rejected this possibility based on B.A.'s behavior. CP at 42 ("The evidence does not suggest that [B.A.] may be able to testify by the use of closed-circuit television pursuant to RCW 9A.44.150.").
¶ 52 On this record we hold that the State met its burden to show B.A. was "unavailable" under the constitutional good faith standard.
¶ 53 Turning to the evidentiary standard for unavailability, we also conclude that B.A. was unavailable under ER 804(a).
¶ 54 Unavailability is defined under ER 804(a). Hirschfield, 99 Wash.App. at 4, 987 P.2d 99 (citing Ryan, 103 Wash.2d at 171, 691 P.2d 197); Suppl. Br. of Resp't at 9 (recognizing statutory standard for unavailability). Under ER 804(a), a witness is unavailable if she:
In addition, under ER 804(a)(6),
¶ 55 Applying the evidentiary standard under ER 804, we hold that the trial court did not abuse its discretion in finding B.A. unavailable to testify under the statutory standard for unavailability. B.A. was diagnosed with sexual abuse of a child and PTSD and thus fell squarely within the purview of ER 804(a)(4), under which a witness is unavailable for hearsay purposes if she "[i]s unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity."
¶ 56 In ruling on the admissibility of B.A.'s hearsay statements, the court relied in part on B.A.'s diagnoses of PTSD and sexual abuse of a child. CP at 42, ¶ 1.8 (listing B.A.'s psychiatric diagnoses as a finding of fact); see also 2 John E.B. Myers, Evidence in Child Abuse and Neglect Cases § 7.55 (3d ed.1997) (trauma associated with testifying in court may be grounds for finding a child witness unavailable to testify); In re Tayler F., 296 Conn. 524, 544, 995 A.2d 611 (2010) ("a trial court properly may conclude that a child is unavailable if there is competent evidence that the child will suffer psychological harm from testifying"); Rangel v. State, 199 S.W.3d 523, 531 (Tex.App.2006) (upholding trial court's finding that child was unavailable where various witnesses opined that testifying would traumatize child); In re T.T., 384 Ill.App.3d 147, 156, 892 N.E.2d 1163, 323 Ill.Dec. 171 (2008) ("Child sexual abuse cases present special problems where the child victim may be unable to testify adequately due to fear, guilt, or intimidation. Child witnesses are considered unavailable if it is demonstrated to the trial court that the children were unwilling or unable to testify because of fear.").
¶ 57 We hold that the trial court's admission of B.A.'s disclosures to her family members and therapists was proper.
¶ 58 As noted, the trial court erred in admitting B.A.'s testimonial statements
¶ 59 We hold that admission of B.A.'s testimonial hearsay statements to Jensen and Detective Buster was harmless in light of B.A.'s nontestimonial statements to Burgess, Damon, Heriot, and McAdams. In particular, B.A.'s disclosures to Jensen and Detective Buster were nearly identical to those introduced through the testimony of other witnesses, suggesting that the former had little, if any, independent value. Beadle's contention that B.A.'s statements to Jensen and Detective Buster were more incriminating than her other hearsay statements is not supported by the record.
¶ 60 Furthermore, the State's case did not rest solely on B.A.'s out-of-court accusations; the additional evidence of Beadle's guilt— from B.A.'s precocious sexual knowledge, to her hypersexual behavior, to her psychiatric diagnoses, to Beadle's extreme reaction at being confronted by B.A. and her mother— was overwhelming. Thus, we hold that the admission of B.A.'s testimonial hearsay statements to Jensen and Detective Buster was harmless error.
¶ 61 Beadle also argues that the trial court abused its discretion in admitting "unfairly prejudicial" evidence of B.A.'s emotional breakdown in the corner of the courthouse. Suppl. Br. of Pet'r at 16.
¶ 62 Only relevant evidence is admissible at trial. ER 402. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Even relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403. "When evidence is likely to stimulate an emotional response rather than a rational decision, a danger of unfair prejudice exists." State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995); accord City of Auburn v. Hedlund, 165 Wn.2d 645, 654, 201 P.3d 315 (2009). "Nonconstitutional error requires reversal only if, within reasonable probabilities, it materially affected the outcome of the trial." State v. Russell, 125 Wn.2d 24, 94, 882 P.2d 747 (1994).
¶ 63 Cunningham v. State, 801 So.2d 244 (Fla.App.2001), a case on which Beadle heavily relies, presents a similar fact pattern to the one here. There, a child victim took the stand at a pretrial child hearsay hearing, but when asked about the defendant, who was on trial for sexually abusing her, she had an emotional breakdown and was unable to continue testifying. Id. at 245. At trial, the State called a psychologist to testify to the child's breakdown at the pretrial hearing in order to explain to the jury why the child was unavailable as a witness. Id. at 246. The psychologist described the child's breakdown in vivid detail. She further testified that while children who fabricate often "shut down" in court, the child victim's behavior was unlike that of a child who is fabricating. Id. On appeal, the defendant argued that the admission of this testimony was irrelevant and extremely prejudicial. Id. The court agreed. Id. In particular, it held that the emotional trauma that rendered the child unavailable was irrelevant to the determination of the defendant's guilt, except insofar as it went to credibility and thus amounted to improper bolstering. Id. at 246-47. The court further held that the challenged testimony was unduly prejudicial in that it allowed the jury to infer that "her emotional `unavailability' was the result of being required to testify about events that were traumatic in her life in front of a person whom she is still extremely fearful [sic] and who
¶ 64 Here, the prosecution's stated purpose in introducing this evidence was to explain to the jury why B.A. was unavailable. However, the unavailability of a witness is a preliminary fact reserved for the court and has no bearing on a defendant's culpability. To the extent that B.A.'s meltdown gave credence to the State's allegations, this testimony amounted to impermissible bolstering. Cf. Cunningham, 801 So.2d at 246-47. In sum, this evidence was more prejudicial than probative, if probative at all. See ER 403, 401. The trial court erred in admitting this evidence.
¶ 65 The final question is whether this error was harmless. We believe it was in light of the remaining properly admitted evidence that was similar, including testimony as to B.A.'s psychiatric diagnoses and her behavior in therapy, her reluctance to discuss the alleged abuse, and her apparent fear of repercussions, due in part to Beadle's tirade and scare tactics. In sum, the challenged testimony only confirmed what the jury already knew about B.A.'s mental state. This error is unlikely to have affected the outcome of Beadle's trial and was, therefore, harmless. See Russell, 125 Wash.2d at 94, 882 P.2d 747.
¶ 66 We conclude that B.A.'s statements to Jensen and Detective Buster were testimonial but that the introduction of these statements was harmless in light of B.A.'s disclosures to other individuals. We further hold that the admission of B.A.'s nontestimonial statements was proper because B.A. was unavailable within the meaning of RCW 9A.44.120. Finally, we conclude that the trial court erred in admitting evidence of B.A.'s meltdown at the courthouse but that this error was harmless in light of other evidence of B.A.'s psychological state. We affirm the Court of Appeals.
WE CONCUR: CHARLES W. JOHNSON, GERRY L. ALEXANDER, TOM CHAMBERS, SUSAN OWENS,
MARY E. FAIRHURST, JAMES M. JOHNSON, DEBRA L. STEPHENS, and CHARLES K. WIGGINS, Justices.
