In State v. Stevens, 58 Wn. App. 478, 794 P.2d 38 (1990), the defendant was convicted of two counts of first-degree statutory rape.
The respective foster mothers of the six-year-old and three-year-old victims testified that both girls had nightmares in which they would cry out such statements as, "Arne, stop. Arne, don't."
In affirming the convictions, the Washington Court of Appeals held that "the trial judge was correct in analyzing the testimony as nonhearsay." (794 P.2d at 44.)
Although the nightmare utterances unquestionably gave rise to the inference that "Arnie did it," the Court of Appeals ruled that the utterances, because they were non-assertive, were not hearsay.
The utterances made by C and D during their sleep are not conscious, intentional assertions of fact or opinion. The nightmare statements are involuntary verbal reactions, and, as such, are nonassertive utterances and not hearsay. Rather, the utterances are circumstantial evidence that proves a fact indirectly that both children had nightmares involving Stevens (794 P.2d at 44.)