Opinion
No. 55458-1-I.
October 9, 2006.
Appeal from a judgment of the Superior Court for Skagit County, No. 03-1-00560-5, Michael E. Rickert, J., entered December 10, 2004.
Counsel for Appellant(s), Lenell Rae Nussbaum, Attorney at Law, Market Pl Two Ste 200, 2001 Western Ave, Seattle, WA, 98121-2163.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA, 98273-3867.
A.O. Denny, Skagit County Prosecutor's Office, 605 S 3rd St, Mount Vernon, WA, 98273-3867.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Cox, J., concurred in by Baker, J.; Coleman, J., concurring separately.
"Sexual contact" is defined in the criminal code as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." Such contact is an element of the crime of first degree child molestation. Here, there was sufficient evidence for a jury to find Armando Perez guilty of two of the three counts of first degree child molestation with which he was charged. But the evidence was insufficient for a jury to find that he touched an "intimate part? of a person" for purposes of Count III of the charges. We also hold that the mitigated exceptional sentence imposed by the trial court in this case is not properly supported by the multiple offense policy of the SRA. Accordingly, we affirm the convictions of first degree child molestation for Counts I and II, reverse both the conviction on Count III and the exceptional sentence, and remand for further proceedings.
RCW 9A.44.010(2).
In 1992, Armando Perez's wife, Maria Perez, opened a daycare in their home. Maria Perez ran the daycare with the help of her daughter, Cece Perez. Armando Perez assisted at the daycare, but worked full-time as a pastor. The ages of the children at the daycare ranged from newborns to eleven. In 2000, the daycare moved to Mr. and Mrs. Perez's new home.
Y.B. and E.R. claimed that while each was attending daycare Armando Perez had touched them inappropriately. Following these disclosures and investigations, the State charged Perez with three counts of first degree child molestation. A jury convicted him as charged. The court sentenced him to a mitigated exceptional sentence on the basis of the multiple offense policy.
Perez appeals, and the State cross-appeals the exceptional sentence.
SUFFICIENCY OF THE EVIDENCE
Perez argues there was insufficient evidence to support his convictions. We hold there was sufficient evidence for the jury to have found beyond a reasonable doubt that he is guilty of the charges stated in Counts I and II. However, the evidence is insufficient to convict on all of the multiple acts on which Count III was based. Accordingly, the conviction on Count III cannot stand.
When reviewing a challenge to the sufficiency of the evidence, we must determine, considering the evidence in the light most favorable to the prosecution, whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." We draw all reasonable inferences from the evidence in the prosecution's favor, and interpret the evidence most strongly against the defendant. We assume the truth of the prosecution's evidence and all inferences that the trier of fact could reasonably draw from it. We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses.
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Wilson, 71 Wn. App. 880, 891, 863 P.2d 116 (1993), rev'd on other grounds, 125 Wn.2d 212, 883 P.2d 320 (1994).
State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964, review denied, 135 Wn.2d 1015 (1998).
To convict Perez, the State was required to prove he violated RCW 9A.44.083, which provides:
(1) A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.
(Emphasis added.)
Sexual contact is defined as:
any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.
RCW 9A.44.010(2) (emphasis added).
Counts I and II
At trial, E.R. testified that when Perez would tickle her, he would touch her breasts and bottom. She further testified that Perez touched her breasts more than five times and also touched her bottom on multiple occasions. Direct contact with breasts is "sexual contact" as a matter for law. Here, the contact with E.R.'s breasts was through clothing. But the jury could have found that the touching under the circumstances here was of a sexual part of E.R., fulfilling the requirements of the statute. Moreover, the buttocks are considered an "other intimate part" that falls within the definition of sexual contact. For these reasons, the evidence was sufficient with respect to the claims of E.R.
In re Welfare of Adams, 24 Wn. App. 517, 519, 601 P.2d 995 (1979).
Id.
Perez relies on State v. Powell to argue there was insufficient evidence that he touched E.R. for the purpose of gratifying sexual desire because there was an innocent explanation for the touching?it was the result of playing and tickling the children. That case is distinguishable.
62 Wn. App. 914, 816 P.2d 86 (1991).
There, Harry Norman Powell was convicted of one count of first degree child molestation based on two incidents. The first incident occurred while Windy was seated on Powell's lap. He hugged her around the chest, and when he helped her off of his lap he placed his hand on her "front" and bottom on her underpanties under her skirt. The other occasion occurred while Windy was alone with Powell in his truck. He touched both of her thighs outside of her clothing. Powell appealed his conviction alleging that the evidence was insufficient to support the conviction.
Id. at 916.
Id.
The court of appeals reversed finding both touchings equivocal. The court noted that Windy did not remember how Powell touched her, and both incidents were susceptible to an innocent explanation. According to Windy's testimony, Powell touched her bottom while lifting her off his lap, and the only evidence he touched her genital area consisted solely of her testimony that he touched her underpanties "in the front part." The court also noted that Windy was clothed on each occasion, the touching was outside of her clothing and no threats, bribes, or requests not to tell were made.
Id. at 917-18.
Id.
Unlike Powell, E.R. testified in detail how Perez touched her. She stated that he would sometimes touch her breasts and bottom at the same time or only touch her breasts or her bottom. E.R. also explained that Perez used the flat part of his hand while he touched her. This evidence is sufficient for a jury to find that Perez engaged in sexual contact with E.R.
Next, Perez argues that there was insufficient evidence for Count II because there was no evidence that any of the allegations occurred in June of 2003.
The court instructed the jury that to convict Perez of child molestation in the first degree as charged in Count II, the following elements must be proved beyond a reasonable doubt:
(1) That on or about June 2003, the defendant had sexual contact with [E.R.]. . . .
Clerk's Papers at 18 (emphasis added).
E.R. told her mother about the touching on June 20, 2003. E.R. had difficulty remembering the dates of the abuse, but testified that it happened somewhat close in time to when she told her mother. "[W]here time is not a material element of the charged crime, the language `on or about' is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi." Perez did not raise an alibi defense and time is not a material element of child molestation in the first degree. E.R.'s testimony that the abuse occurred somewhat close in time to June 20, 2003, is sufficient.
State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996).
In sum, we conclude that there was sufficient evidence to support Perez's convictions for Counts I and II, dealing with acts involving E.R.
Count III
Perez next claims that the evidence is insufficient to support his conviction on Count III, which is based on multiple acts of "sexual contact" with Y.B. We agree in part.
As we have previously stated in this opinion, the State was required to prove that "sexual contact" occurred between Perez and Y.B.:
any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.
RCW 9A.44.010(2) (emphasis added).
At trial, Y.B. testified that on two occasions, while Perez was chasing her and the other children, he grabbed her from behind, held her tight, and she felt his private part in the middle of her butt. Y.B. further testified that Perez always carries a brush in his pocket, but what she felt was "curved in." Y.B. expressed some doubt during cross examination about whether it was Perez's penis or his hair brush that she felt. Perez denied the allegations.
Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found that Perez engaged in sexual contact with Y.B. when he grabbed her from behind and held her tightly under these circumstances. Contact between Y.B.'s butt, which is properly characterized by case law as an "other intimate part," and Perez's private part is sufficient. Although Y.B. testified that she expressed some doubt as to whether the hard object she felt was Perez's private part, absolute certainty or proof that overcomes every possible doubt is not required to convict.
Adams, 24 Wn. App. at 519.
Powell, on which Perez relies, is not applicable to this case. Here, Y.B. described in detail how she felt Perez's private part in her butt as he grabbed her from behind. This is sufficient evidence to establish two of the multiple acts on which Count III was based.
However, the State also relied on Y.B.'s testimony that Perez kissed her on the neck and cheek in the bathroom for another of the multiple acts. Y.B. testified that when she was eight she used the bathroom inside the house at the daycare. When she opened the door, Perez was waiting there for her. He pushed her in and closed the door behind him, locking them in. He sat Y.B. on his leg, put one hand on her waist, used his other hand to pull her hair back, and began kissing her. Y.B. testified that Perez kissed her on the cheek twice and on her neck once. After she told him she wanted to leave, he kissed her again. Y.B. told Perez twice she wanted to leave, and he said, "a little longer." She told him a third time she wanted to leave, and he let her go. As she was leaving Perez told her "not to say anything." Y.B. further testified that Perez opened the door to let her out and before he shut it she saw him "tr[y] to fix up his pants."
Perez relies heavily on State v. R.P. to argue that the evidence of kissing Y.B. on the cheek and the neck was insufficient as a matter of law to prove sexual contact. In that case, R.P. picked up, hugged, and kissed his classmate after track practice, placing a "hickey" on her neck. R.P. was charged and convicted of two counts of indecent liberties for two separate occasions. For the incident that occurred after track practice, he argued that there was insufficient evidence that he engaged in sexual contact. The supreme court agreed and reversed his conviction. However, it is unclear why it did so. Specifically, the court fails to explain whether it considered the evidence insufficient because the neck is not an "other intimate part" or for some other reason. Thus, the case is of little or no help here.
122 Wn.2d 735, 862 P.2d 127 (1993) (per curiam).
Id. at 736.
The narrow question here is whether kissing on the neck and cheek under these circumstances is sufficient to prove a touching of an "other intimate part" of Y.B.
As Division Two observed in answering a similar question, "The statute is directed to protecting the parts of the body in close proximity to the primary erogenous areas which a reasonable person could deem private with respect to salacious touching by another." To determine whether contact is intimate within the meaning of the statute, we ask whether the conduct is of such a nature "that a person of common intelligence could fairly be expected to know that under the circumstances the parts touched were intimate and therefore, the touching was improper."
Id.
Adams, 24 Wn. App. at 521.
Here, the evidence shows that Perez kissed Y.B. on the cheek twice and on the neck once. The first proof problem is that if we assume the jury was unanimous that the kissing on the cheek was the relevant act, there is an insufficient showing here that the cheek is an "other intimate part" within the meaning of the statute and the reported cases on "sexual contact." If the cheek is an "intimate part" within the meaning of the statute before us, there is likely a great deal of criminal activity that occurs daily in the normal course of events among members of the society in which we live. On the other hand, if we assume that the jury was unanimous that the kissing on the neck was the relevant act, there is still an insufficient showing that the neck is an "other intimate part" within the meaning of the statute and reported case law.
Although the kissing on the neck and cheek here was highly inappropriate under these circumstances, there is insufficient evidence to show that these acts violated the charged crime, first degree child molestation. We express no opinion whether these acts may have violated some other crime. We conclude that the evidence of sexual contact for this one of several multiple acts on which Count III was based is insufficient.
Perez argues that if there was insufficient evidence as to any one of the multiple acts on which this count was based, the conviction on that count must be reversed. He relies on an underlying principle articulated in State v. Kitchen. We agree that the principle applies here.
110 Wn.2d 403, 756 P.2d 105 (1988).
According to Kitchen:
In Washington, a defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed. [(citation omitted)] When the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.
Kitchen, 110 Wn.2d at 409 (citing State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984); State v. Workman, 66 Wash. 292, 294-95, 119 P. 751 (1911)).
Here, the trial court instructed the jury that it must unanimously agree on a specified criminal act in order to convict. Although the jury was given a unanimity instruction, there is insufficient evidence to support one of the multiple acts in Count III. Because we do not know on which act the jury relied to convict, and one of the acts is not supported by sufficient evidence, the instruction did not serve to fully protect Perez's constitutional guarantee to unanimity.
We need only point to the State's closing argument to illustrate the problem. There, the State relied on the kissing incident in the bathroom as "the first incident" to argue Perez sexually molested Y.B. The jury could have relied on this act to convict, an act for which there is insufficient evidence. Even if the State had not specifically pointed to the bathroom incident as one of the multiple acts on which it relied for this count, the problem remains. Because the jury could have relied for purposes of the unanimity instruction on the kissing on the cheek or on the neck that occurred during the bathroom incident, we must reverse Count III in its entirety.
We need not address all of the remaining arguments presented by the parties. However, we address the following points to ensure they do not recur on remand.
PROSECUTORIAL MISCONDUCT
First, Perez argues that the prosecutor's comments during closing argument reduced the burden of proof when she argued:
I'll tell you something it's the perfect crime if someone can do this to children. And we don't believe children every time. We want more. But there isn't more in a type of fondling case. There never will be more. So I urge you to follow your duty in this case, as Mr. Howson does with the understanding that there is no real possibility of innocence.
(Emphasis added.)
This argument introduces matters that were not in evidence. It is not proper.
State v. Stover, 67 Wn. App. 228, 230-31, 834 P.2d 671 (1992).
Perez also argues that he was denied a fair trial because the prosecutor tainted Y.B.'s testimony. Perez asserts that the "hugging" and "feeling something hard" only became sexual when the prosecutor described to Y.B. what a penis feels like.
The record does not support this assertion. Rather, the record shows that Y.B., not the prosecutor, first mentioned she felt Perez's "private" when he was squeezing her from behind. During direct examination, the prosecutor asked Y.B.:
Q. Could you feel his body —
A. Yes, I could.
Q. What part of his body —
A. I could feel his private, very hard —
Q. What part of your body could feel that —
A. My butt.
Q. By "private," do you know what the word "penis" means —
A. Yes.
Q. Is that what you mean by "private" —
A. (No response.)
Q. Is that "yes" —
A. Yes.
Report of Proceedings (September 29, 2004) at 63-64.
On re-cross examination, Y.B. testified that "[the prosecutor] just told me that when it feels hard that that means they are excited. That's all she told me." Y.B. denied that the prosecutor told her what a hard penis is like and stated "All that [the prosecutor] told me was that when it feels hard they are excited. But that's all." Y.B.'s testimony was not tainted.
EXCEPTIONAL SENTENCE
The State argues that the trial court's findings do not support an exceptional sentence below the standard range. We agree.
A court may impose a mitigated exceptional sentence if it finds there are substantial and compelling reasons justifying an exceptional sentence. "A court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence." One mitigating factor to impose an exceptional sentence is the multiple offense policy:
?
(g) The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.
Id.
To reverse an exceptional sentence, the reviewing court must find:
(a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.
State v. Fisher, 108 Wn.2d 419, 422, 739 P.2d 683 (1987) (quoting RCW 9.94A.210(4) recodified to RCW 9.94A.585(4)).
Because the State does not challenge the trial court's findings, they are verities on appeal. The issue is whether the trial court's reasons support an exceptional sentence. That is a question of law that we review de novo.
State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).
State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).
A trial court may depart from the standard range sentence where there are multiple offenses, if the effects of the first criminal act and the cumulative effects of subsequent criminal acts are nonexistent, trivial or trifling. In State v. Hortman, the defendant was charged and convicted of two counts of delivery of cocaine. The trial court imposed an exceptional sentence below the standard range, concluding that the difference between the first and second delivery was "so minimal as to be trivial." Each delivery involved the sale of a small amount of drugs, at the same location, an undercover officer initiated the sale, and the sales were 13 days apart. This court affirmed and stated that whether a given presumptive sentence is clearly excessive is determined by an objective inquiry, not the subjective determination of a given judge.
State v. Hortman, 76 Wn. App. 454, 461, 886 P.2d 234 (1994), review denied, 126 Wn.2d 1025 (1995) (citing State v. Sanchez, 69 Wn. App. 255, 261, 848 P.2d 208, review denied, 122 Wn.2d 1007 (1993)).
Hortman, 76 Wn. App. at 456.
Id. at 458.
Id. at 463.
Here, the standard range sentence for Perez was 98-130 months of confinement. The trial court imposed a sentence of 51 months to life on Counts I and II and 51 months on Count III. We have reversed the conviction and the sentence for Count III. So our focus now is on the remaining sentences for the other two counts.
The trial court's findings of fact included the fact that the molestation occurred "during, or very near to, the activity of `tickling,'" the touching was outside of the clothing, and very brief in nature. The court also found that "there was no touching of any private portion of the child's body other than the kissing on the neck, and there was no touching whatsoever beneath clothing." The trial court decided:
The court finds that the operation of the multiple offence policy would result in a presumptive sentence that is excessive in light of the purposes of RCW 9.94A. particularly, [sic] although not exclusively, the purposes of "just punishment" and that sentencing "be commensurate with punishment imposed on others committing similar crimes". [sic] The court finds that balancing is necessary in light of sentences given to others committing similar offenses whom have been sentenced in this court over the course of many years.
Clerk's Papers at 74 (emphasis added).
These findings do not justify a mitigated exceptional sentence on the basis of the multiple offense policy. Nothing in this case shows that the effects of the first count of first degree child molestation and the cumulative effects of the subsequent count of first degree child molestation are "nonexistent, trivial or trifling." The sexual abuse against E.R. occurred multiple times over a period of a year and a half. The record shows the negative impact on the child. The fact that the abuse took place during "tickling" does not lessen the seriousness of the offenses. In short, the mitigated exceptional sentence based on the multiple offense policy is unwarranted.
We affirm the convictions on Counts I and II, reverse both the conviction on Count III and the mitigated exceptional sentence, and remand for further proceedings.
BAKER and COLEMAN, JJ., Concur.
I agree with the majority that there is insufficient evidence of sexual contact as to one act on which count III was based?Perez's kissing of Y.B.'s cheek and neck?solely because this result is compelled by State v. R.P., 122 Wn.2d 735, 862 P.2d 127 (1993) (per curiam) (reversing State v. R.P., 67 Wn. App. 663, 838 P.2d 701 (1992)). In that case, the Supreme Court reversed the Court of Appeals' conclusion that sufficient evidence of sexual contact existed where the alleged sexual contact was kissing on the neck.
The majority disregards R.P. as unhelpful because the Supreme Court did not explain why it reversed the Court of Appeals' conclusion, and then the majority proceeds to independently analyze whether the neck is an intimate part of the body protected by the statute. Were it not for R.P., this is not the conclusion I would reach. While the Supreme Court did not set forth its rationale, it necessarily rejected outright the Court of Appeals' contextualized approach to determining whether sexual contact had occurred. The Supreme Court's rejection of a contextualized approach is particularly clear because the dissenters, like the Court of Appeals, concluded that the evidence was sufficient to establish sexual contact. Thus, while I find the Court of Appeals' approach persuasive and would apply it here if possible, I am constrained by the holding of R.P. to agree with the majority that there is insufficient evidence of sexual contact as to this one act.
In all other respects, I agree with the majority's reasoning.