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    IN THE COURT OF APPEALS OF THE STATE OF WASHY

                                              DIVISION II

 STATE OF WASHINGTON,                                                        No. 45944 -2 -II


                                      Respondent,


           V.



 RICHARD R. SCOTT,                                                   UNPUBLISHED OPINION




         WORSWICK, P. J. —      Richard Scott pleaded guilty in 2001 to one count of third degree

rape. Scott later moved to vacate his guilty plea based on witness recantations, which motion the

superior court denied. We reversed the superior court' s order denying Scott' s motion to vacate

his guilty plea and remanded to the superior court to conduct an evidentiary hearing. Pursuant to

our remand orders in State v. Scott, 150 Wn. App. 281, 207 P. 3d 495 ( 2009) and State v. Scott,

noted at   170 Wn.    App.   1002 ( 2012) ( unpublished), the superior court conducted an evidentiary


hearing to determine ( 1) the credibility of witness recantations and ( 2) whether those recantations

justified granting Scott' s CrR 7. 8( b)( 2) motion to vacate his guilty plea conviction of third

degree child rape. Following the evidentiary hearing, the superior court found that the witness

recantations were not credible, and it denied Scott' s motion to vacate his guilty plea conviction.

Scott   appeals,   arguing that the   superior court erred   by denying   his CrR 7. 8   motion.    Scott has
No. 45944 -2 -II



also filed a statement of additional grounds ( SAG) for review, but his SAG does not argue any

basisfor reversing the superior court' s order. Because substantial evidence supports the superior

court' s findings on remand that the victim and witness recantations were not credible, we affirm.


                                                       FACTS


       In 2001, Scott entered an Alford' plea to one count of third degree child rape. In 2006,


Scott moved to vacate his conviction based on newly discovered evidence in the form of witness

recantations. The superior court denied Scott' s 2006 motion to vacate without conducting an

evidentiary hearing, concluding that Scott' s motion was time-barred. On appeal, we held that the

superior court erred in concluding that Scott' s motion was time-barred because the recantation

by the victim, DH,2 constituted newly discovered evidence under RCW 10. 73. 100( 1) and, if true,
DH' s recantation met the criteria to vacate Scott' s conviction and grant him a new trial.3 We,

thus, remanded to the superior court with the following directions:

        We ...     remand to the superior court to hold an evidentiary hearing to determine
        whether [   Scott'   s]   new evidence   is   credible.   If the superior court determines that
        the new evidence is credible, then the court shall reconsider Scott' s motion to
        withdraw his Alford plea. If the superior court determines that the new evidence is
        not credible, then Scott' s Alford p
                                           - lea based conviction stands.


Scott, 150 Wn. App. at 299- 300; Clerk' s Papers ( CP) at 61- 62. .


 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970).


2 To protect the juvenile' s victim' s privacy, we use the juvenile victim' s initials and the initials
of witnesses sharing a last name with the victim. See General Order 2011- 1 of Division II, In re
The Use ofInitials ofPseudonyms or Child Witnesses in Sex Crime Cases ( Wash. Ct. App.).

3 We noted, however, that post -conviction statements by witness Connie DuFour, alone, would
not meet the criteria for granting Scott a new trial because those statements did not recant her
earlier statements and, thus, were merely impeaching.




                                                           2
No. 45944 -2 -II



       After we issued our opinion in Scott, 150 Wn. App. 281, Scott moved to withdraw his

motion to vacate his conviction. The superior court granted Scott' s motion and struck the

evidentiary hearing. Scott filed a new motion to vacate his conviction, which motion the

superior court denied because the new motion alleged the same grounds as his previous motion


to vacate his conviction. We reversed the superior court, holding that CrR 7. 8( b) and RCW

10. 73. 1404 did not bar the superior court' s consideration of Scott' s new motion to vacate because


his previous motion had not been decided on its merits. And we again remanded to the superior


court to " hold an evidentiary hearing to determine the weight and credibility of Scott' s new

evidence to determine whether to grant Scott' s motion to vacate his conviction based on newly

discovered   evidence."   CP at 80.


        On remand, counsel for Scott told the superior court that he could not locate witnesses to


testify at the evidentiary hearing, and he requested that the superior court rule on Scott' s motion

based on documentary evidence, including the witnesses' written statements and transcribed

interviews. The State agreed that the superior court could rule on Scott' s motion based on


documentary evidence.




4 RCW 10. 73. 140 is applicable to a trial court' s consideration of a CrR 7. 8( b) motion and
provides in relevant part:

        Upon receipt of a personal restraint petition, the court of appeals shall review the
        petition and determine whether the person has previously filed a petition or
        petitions and if so, compare them. If upon review, the court of appeals finds that
        the petitioner has previously raised the same grounds for review, or that the
        petitioner has failed to show good cause why the ground was not raised earlier, the
        court of appeals shall   dismiss the   petition....
No. 45944 -2 -II



         At the November 20, 2013 evidentiary hearing, Scott presented declarations from DH,

DH' s acquaintance, Ralph Landeros, and DH' s brothers, SH, MH, and DKH. Scott also


presented a 2001 police report regarding his arrest, a 2001 statement from Dufour, and a 2007

transcribed interview of Dufour. The State also presented several documents at the evidentiary

hearing, including a 2006 declaration by DH, transcripts from a 2006 and a 2007 interview of

DH, and a 2001 presentence report of Scott.


         Scott testified by telephone at the evidentiary hearing. Scott testified that DH had rented

a room   in the   attic of   his home in 2001. Scott admitted that he had sexual contact with DH on


two occasions, but he stated that the first sexual contact with DH had occurred sometime

between April 15, 2001 and April 20, 2001, after DH had reached the age of consent. Scott


stated that the second sexual contact with DH occurred at the beginning of May 2001 and that

DuFour witnessed this contact after walking into his room.

         Following the evidentiary hearing, the superior court entered a memorandum decision on

February 11, 2014 finding that Scott' s newly discovered evidence was not credible and denying

his motion to vacate his conviction. On April 4, 2014, the superior court entered written findings

of fact and conclusions of law that state in relevant part:

                                                 FINDINGS OF FACT


          9]. The defendant argued that he did not commit the crime of Rape of a Child in
              the Third Degree because he had sexual relations with [DH] after [ DH] turned
              age    16.      Therefore, according to the defendant,          no   crime   occurred.   The

              defendant asserted that the statements made by [ DH] in 2001, 2006, and 2007,
              were     inconsistent        and   patently   unreliable.   In 2001, [ DH] told a Child
              Protective Service ( CPS) worker and the Long Beach Police that he had sexual
              relations with Mr. Scott on an ongoing basis during 2000 and the first part of
              2001, i. e.,    while   he   was still age    15. [ DH] also indicated that he was coerced
              into having      sex with     Mr. Scott. In 2006, [ DH] stated that he was never forced
              to have sex with Mr. Scott, that nothing happened between him and Mr. Scott,


                                                               19
No. 45944 -2 -II



              and   that Mr. Scott    never made           any    sexual moves        toward him.          Likewise, in
              2007 [ DH] asserted that he did not have a sexual relationship with Mr. Scott.
              While the later statements of [DH] are not consistent with the information that
              he relayed to the CPS worker and the Long Beach Police in 2001, these later
              statements also are not consistent with the statements made by Mr. Scott. In

              particular, Mr. Scott admitted to a Community Corrections Officer in 2001 that
              he    engaged   in   sexual    relations      with [      DH].       Mr. Scott also admitted in a
              disposition [ sic] in 2005 to having sex with. [DH].

              The court finds that the later statements of [DH] are not credible because they
              do not contain the level of detail that is present in the statements that he
              provided   to the CPS     worker and          the       Long   Beach Police in 2001.           Moreover,
              DH' s] later    statements         do   not assert      that he told   falsehoods in 2001.         On the

              contrary, [ DH]      essentially claims that the police did not accurately record his
              statements.     Due to the passage of time, the Court finds that the statements
              DH] made to the CPS worker and the Long Beach Police in 2001 are credible,
              whereas    the later   statements          are not      believable.     This factual assessment is
              buttressed by the fact the CPS worker and Long Beach Police had no reason
              to make up allegations or falsify their reports. The later statements of [DH]

              also are suspect and not credible because they do not comport with the
              assertions of Mr. Scott that he had sexual relations with [ DH].


        10.   The gravamen of this reference hearing thus turns on whether the assertion of
              Mr. Scott is credible, the sexual relations that occurred between Mr. Scott and
               DH] took    place after [ DH]          turned   age     16   on   April 16, 2001.     Besides his own
              testimony at the reference hearing which supported this assertion, Mr. Scott
              pointed   to the declarations            of [ SH],   [ MH], [ DKH], and Ralph Landeros in
              arguing that [DH] was not on the Long Beach Peninsula during the time period
              listed in the information, viz., February and March of 2001. A close inspection
              of those declarations shows that they only assert that [DH] returned to the Long
              Beach Peninsula around the time he turned age 16. They do not specifically
              indicate where [ DH] was residing during the months of February and March
              2001. Further, the statement by Ralph Landeros which indicated that he did
              not see   Mr. Scott     act   in   a    sexually inappropriate          manner   is    not   helpful.   Mr.
              Landeros was not in a position to observe Mr. Scott at all times..


              More importantly, all of these declarations, which were written years after the
              events in question, are inherently unreliable. These declarations do not contain
              sufficient " background" information to make them credible. Specifically, the

              Court has no way to assess the reliability of these statements, since the Court
              has little information about the declarants, and the declarants were not subject
              to .cross examination. In short, stating something in a declaration does not in
              itself make the declaration credible. Moreover, the contention of Mr. Scott is
              inconsistent    with    the    statements        provided          to the   police    by [   DH], Connie




                                                                  5
No. 45944 -2 -II



                 Dufour,   and   Johan Fernlund in 2001. The initial statements of these witnesses
                 confirm that Mr. Scott had sexual relations with [ DH]' when he was age 15.
                 While Ms. Dufour changed her statement in 2007, there is no reason to believe
                 that a statement provided approximately six years after the event in question is
                 more trustworthy than the original statement. Since the memory of individuals
                 tends to fade over time, Ms. Dufour' s statement should be given little credence.
                 Similarly, while the 2001 statement of Johan Fernlund is not dispositive, it
                 constitutes one more piece of evidence that the sexual relationship between
                 Mr. Scott and [ DH] had been going on for a good deal of time.

         11.     Taking all the evidence together, the defense has not presented sufficient
                 factual predicates to override the information that has previously been gathered
                 by the State. The defendant' s post -conviction evidence is not credible by any
                 evidentiary standard.




                                          CONCLUSIONS OF LAW


          4].    Based on the Findings of Fact listed above, Mr. Scott definitely has not met
                 his burden of proof.


         5.      Therefore, Mr. Scott' s motion to vacate his conviction should be denied.

CP at 317- 25.


                                                    ANALYSIS


         Scott argues that the superior court erred by denying his CrR 7. 8( b)( 2) motion to vacate

his guilty plea conviction of third degree child rape. We disagree and affirm the superior court' s

order denying Scott' s motion to vacate his conviction.

                                            I. STANDARD OF REVIEW


         As an initial matter, the parties disagree about the appropriate standard for reviewing the

superior court' s findings of fact. In general, our review of a superior court' s " findings of fact is


limited to determining whether they are supported by substantial evidence, and, if so, whether

the   findings   support   the   conclusions of   law   and   judgment." State v. Macon, 128 Wn.2d 784,




                                                              G
No. 45944 -2 -II



799, 911 P. 2d 1004 ( 1996). In contrast, our review of legal issues is de novo. Macon, 128


Wn.2d at 799. And we review a trial court' s denial of a CrR 7. 8 motion to vacate a conviction


for an abuse of discretion. Scott, 150 Wn. App. at 290 ( citing State v. leng, 87 Wn. App. 873,

877, 942 P. 2d 1091 ( 1997)).              A trial court abuses its discretion when its decision is based on


untenable grounds or reasons. State v. Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169 ( 2004).

         Scott acknowledges that we generally review a trial court' s factual findings for

substantial evidence in the record, but argues that we should review the findings de novo here


because the superior court considered documentary evidence in finding that the recanting

witnesses' statements were not credible. We disagree.


         In support of his argument that we should review the superior court' s factual findings de


novo,   Scott   cites   to Smith     v.   Skagit   County,   75 Wn.2d 715, 453 P. 2d 832 ( 1969). There our


Supreme Court stated:


          W]here the record both at trial and on appeal consists entirely of written .. .
         material ...and the trial court has not seen nor heard testimony requiring it to
         assess   the credibility or competency               of witnesses ...         then on appeal a court of

         review stands in the same position as the trial court in looking at the facts of the
         case and should review the record de novo.


Smith, 75 Wn.2d         at   718 (   emphasis added).        But Smith is distinguishable because here, unlike in


Smith, the superior court did not rely solely on documentary evidence in making its credibility

determination. Instead, the superior court also relied on Scott' s telephonic testimony in finding

DH' s   recantation     testimony         not credible,   stating in   finding   of   fact 9, " The later statements of


 DH] also are suspect and not credible because they do not comport with the assertions of Mr.

Scott that he had       sexual relations with [ DH]."           CP at 322. The superior court properly relied on

Scott' s admissions of sexual contact with DH in finding DH' s recantation not credible. See



                                                                 7
No. 45944 -2 -II



Macon, 128 Wn.2d at 802 ( in assessing whether a witness' s recantation is reliable, a trial court

may    consider   the   totality   of circumstances   surrounding the   case).    Because the superior court was


in the best position to evaluate the credibility of Scott' s testimony, we defer to its credibility

findings and will not overturn those findings unless they lack substantial supporting evidence in

the record. Accordingly, we reject Scott' s argument that we should review the superior court' s

factual findings de novo.


          H. SUBSTANTIAL EVIDENCE SUPPORTS THE SUPERIOR COURT' S FINDINGS OF FACT


          Scott assigns error to the superior court' s findings of fact 3, 5, 9, 10, and 11, asserting

that record lacks substantial evidence to support those findings. We disagree.

A.        Findings ofFact Numbers 3 and S

          We decline to address Scott' s contentions with findings of fact 3 and 55 because Scott


admits that those findings were not material to the superior court' s ruling on his CrR 7. 8 motion.


5
    Finding of fact 3 states:

          Since 2009, the court has appointed five different lawyers to represent Mr. Scott in
          Superior Court..         After the last directive from the Court of Appeals in 2012, the
          timing of the reference hearing has been delayed because Mr. Scott has been
          unhappy with his court-appointed counsel and has sought to discharge them. Also,
          Mr. Scott' s latest defense counsel experienced difficulty in locating purported key
          witnesses.




Finding of fact 5 states:

          Mr. Scott, through his attorney, David Arcuri, indicated to the Court that he wanted
          thereference hearing to occur based solely on existing written materials.      At the
          hearing on November 20, 2013, the defense stated that it was not seeking to
          introduce any live         testimony   other   than the   testimony    of   Mr. Scott.   The State

          agreed to allow documentary materials to be admitted into evidence even though
          these   materials could      be   excluded under   the Rules of Evidence.        The State agreed
          to allow Mr. Scott to introduce documentary materials into evidence at the reference



                                                             N.
No. 45944 -2 -II



Therefore, even assuming that the record lacks substantial evidence to support findings of fact 3

and 5, there is no effective relief we can provide Scott from the erroneous entry of those

findings. Accordingly, Scott' s contentions with findings of fact 3 and 5 are moot, and we do not

address them further. See, e. g., State v. Burdette, 178 Wn. App. 183, 203, 313 P. 3d 1235 ( 2013)

An issue is moot if court cannot provide effective relief.).


B.          Finding ofFact Number 9

            Scott contends that substantial evidence does not support the following portions of the

superior court' s    finding   of   fact 9: (   1) that DH' s recantations are not credible because " they do

not contain the level of detail that is present in the statements that he provided to the CPS worker


and   the   Long   Beach Police in 2001"; and ( 2) that DH' s recantations are not credible because " the


CPS worker and the Long Beach Police had no reason to make up allegations or falsify their

reports"     in 2001.   CP at 321- 22. But even assuming that substantial evidence does not support

these portions of the superior court' s finding of fact 9, these portions of the finding state only

two of the three reasons for the superior court' s ultimate finding that DH' s recantations were not

credible.6 The superior court also found DH' s recantations were not credible because the




            hearing, because the State did not want to further delay the reference hearing which
            had been    placed on    hold for far too     long. The Court finds that the State was not
            responsible for the delay is [ sic] scheduling the reference hearing.

CP at 317- 18.


6 Moreover, in reviewing the record, we have determined that substantial evidence supports all
three of the trial court' s reasons for finding DH' s recantations not credible. We need not discuss
the evidence supporting the trial court' s first two reasons for finding DH' s recantations not
credible, as Scott' s admissions contradicting DH' s recantations independently provide
substantial support for the trial court' s credibility finding.



                                                             66
No. 45944- 2- I1



recantations denied any sexual contact by Scott and, thus, contradicted Scott' s admissions that he

had engaged in sexual contact with DH. Accordingly, even if substantial evidence did not

support two of the superior court' s three stated reasons for finding that DH' s recantations were

not credible, substantial evidence in the record clearly supports the finding that DH' s

recantations were not credible based on the DH' s denial of sexual contact with Scott, which


denials were contrary to Scott' s own admissions at the evidentiary hearing.

C.         Finding ofFact Number 10

           Scott also contends that substantial evidence does not support the portions of finding of

fact 10 finding that ( 1) SH, MH, and DKH' s 2010 declarations " do not specifically indicate

where [ DH] was         residing   during   the   months of    February    and    March 2001,"       which months




constituted the relevant charging period; and ( 2) the declarations lacked sufficient information

from   which     the   superior court could ascertain         the declarations' credibility.          CP at 322. Again,


we disagree.


           Regarding DH' s location during the charging period of February 1, 2001 to March 31,

2001, SH' s declaration.merely stated that he was incarcerated at a juvenile facility during the

first two or three days of April, 2001 and that he " clearly remember[ ed] at that point in time [ his]

older brother [ DH] was residing in Ontario, Oregon" with a relative. CP at 98. And MH and

DKH' s declarations similarly state that MH and DKH were each living in Long Beach,


7
    Although Scott does         not appear   to   challenge   the    portion of   finding   of   fact 10 that "[ DH] turned
age   16   on   April 16, 2001," we note that substantial evidence does not support it. CP at 322.
DH' s birth certificate, which was included in the superior court' s record, shows that he turned 16
on   April 12, 2001,      not   April 16, 2001.      However, because the superior court' s error in finding
DH turned 16 on April 16, 2001, rather than on April 12, 2001, did not affect its conclusion that
Scott had failed to prove the newly discovered evidence would likely change the result of the
trial, we need not address this error further.


                                                                10
No. 45944 -2 -II



Washington during the first two or three days of April, 2001 and that each " clearly remember[ ed]

at that point in time [ their] brother [ DH] was residing in Ontario, Oregon" with a relative. CP at

100, 103.        But none of these declarations state where DH was specifically residing during the

charging    period of     February    1, 2001 to March 31, 2001.              Accordingly, substantial evidence in the

record supports the superior court' s finding that the declarations " do not specifically indicate

where [    DH]     was   residing   during   the   months of    February      and   March 2001."   CP at 322.


           Additionally, the declarations plainly lack sufficient information from which any trier of

fact could ascertain their credibility. None of the declarations, which were made over 9 years

after the charging period, provided a basis for the declarants' personal knowledge that DH was

residing in Ontario, Oregon           around       the   beginning   of   April 2001.   Accordingly, substantial

evidence in the record supports the superior court' s finding that it could not ascertain the

credibility of these declarations.

D.         Finding ofFact Number 11

           Finally, Scott contends that substantial evidence does not support the portion of finding

of fact 11 finding that his " post -conviction evidence is not credible by any evidentiary standard."

CP   at   323.    Specifically, Scott contends that substantial evidence does not support this finding

based on the lack of substantial evidence in support of findings of fact 9 and 10. Based on our

determination above that substantial evidence in the record supports findings of fact 9 and 10, we


reject this contention and hold that substantial evidence supports the finding that Scott' s post-

conviction evidence was not credible.




                                                                11
No. 45944 -2 -II



                   III. THE SUPERIOR COURT PROPERLY DENIED SCOTT' S CrR 7. 8 MOTION


           To be entitled to a new trial based on newly discovered evidence, Scott had to prove by a
preponderance         that   his newly discovered            evidence: "(   1) will probably change the result of the

trial; (2)   was     discovered     after   the trial; (3)    could not have been discovered before trial by the

exercise of     due diligence; ( 4)         is material; and ( 5) is not merely cumulative or impeaching."

Macon, 128 Wn.2d             at   800., "   A new trial may be denied if any one of these factors is absent."

Macon, 128 Wn.2d at 800. Additionally, where the newly discovered evidence in support of

CrR 7. 8 motion is based on witness recantations, the superior court must make an initial finding

regarding the recantations' credibility. Macon, 128 Wn.2d at 801- 802. If the trial court finds the

witness recantations are not credible, it does not have a basis to grant a new trial because it "is

not   likely   the   recantation[ s]    would     have   changed     the    outcome of   the trial." Macon, 128 Wn.2d at


803. Because substantial evidence supports the superior court' s findings that the witness


recantations were not credible, it properly denied Scott' s CrR 7. 8 motion to vacate his

conviction.



                                                               III. SAG


           To warrant judicial consideration, a SAG need not contain citations to the record or to


legal authority, but the SAG must " inform the court of the nature and occurrence of alleged

errors."     RAP 10. 10( c).         Scott' s SAG consists entirely of factual assertions and does not explain

how those assertions, if true, demonstrate that the superior court erred in denying his CrR 7. 8




                                                                    12
No. 45944 -2 -II


           8
motion.        Accordingly, we do not further address his SAG. Accordingly, we affirm the superior

court' s denial of Scott' s motion to vacate his conviction.


           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 in accordance with RCW


2. 06. 040, it is so ordered.

                                                                                                      4




                                                                                       Worswick, P. J.
    We concur:




 Maxa, T




8
    For   example,     Scott'   s   SAG   asserts: "[   DH] was not interviewed by the PSI man. That is fact
raised at      the    sentencing hearing,"
                     July                               and "[   t]he first person to get a recorded statement and
sworn      declaration by [ DH] was Scott'              s   legal investigator Alwin Farr   May   11th 2006," but Scott
does not explain how these factual assertions relate to the trial court' s denial of his motion to
vacate his guilty plea. SAG at 3.


                                                                    13
