WA Legal Roundup: Division II
Kennealy appeals his many convictions of child rape, child molestation, and assault with sexual motivations. The charges concerned three children ages 5, 6, and 7. Kennealy argues on appeal that the trial court erred in admitting several child hearsay statements, finding that one of three children were competent to testify, and argues that the prosecutor committed misconduct when he referred to Kennealy’s past misconduct with children as part of a common scheme or plan in closing arguments.
Preceding trial, the court held competency hearings for the children involved as well as a hearing relating to the admissibility of several child hearsay statements. The court found all three children competent despite that one of them suffered ADD and there was some confusion in his testimony about “promises.” On appeal, this court held that the trial court did not error and affirmed all the convictions.
The appeals court ruled that the trial court did not error in finding that S.J was competent to testify. The court reasoned that while S.J was interviewed he listened very carefully to all the questions, had an adequate memory of what happened to him, and the mental capacity to relay that information to the court. Despite the fact S.J suffered from ADD, he could listen to each question and provide accurate information.
In determining the child hearsay statements admissibly the trial court considers the 9 Ryan elements, though the factors are considered on an overall evaluation. The appeals court found, after reasoning that the children did not have a reason to lie, they had been trustworthy and had reputations for truthfulness, that each child told the same accusations to more than one person over time, the statements were spontaneous when recanted back, and that the statements were made soon after the events occurred preserving the memory of the incident, that the trial court did not error in determining that the child hearsay statements were admissible.
In regards to the prosecutorial misconduct, the court reasoned that the common features between his prior misconduct and the misconduct charged at trial showed a plan to “gain access to children in order to repeatedly sexually abuse young children.” The court did not find the statements to be too prejudice that it outweighed their probative value. Moreover, the court argued that the trial court gave limiting instructions to the jury regarding the defendants prior misconducts were heard by the jury.