Opinion
No. 36965-6-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-03290-1, Frederick W. Fleming, J., entered November 2, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
The State charged John Smalancke with five counts of first degree child molestation. A jury ultimately convicted him of two counts of attempted first degree child molestation. Smalancke now appeals, arguing that (1) the trial court erred by instructing the jury on the lesser offense of attempted first degree child molestation; (2) he was denied effective assistance of counsel; and (3) insufficient evidence supports his convictions. His arguments are unpersuasive and we affirm.
FACTS
On July 18, 2006, the State charged Smalancke with five counts of first degree child molestation after two of his granddaughter's friends, AC and KD, alleged that he touched them inappropriately. The first four counts named KD as the alleged victim and the fifth count named AC as the alleged victim. In July 2007, the trial court held a child hearsay and competency hearing and found that AC and KD were competent to testify and that their statements were admissible under the child hearsay statute. At trial, the jury heard the following testimony.
We refer to the minors and parents involved in this case by their initials.
A person is guilty of first degree child molestation 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. RCW 9A.44.083. The term "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).
RCW 9A.44.120 allows a statement made by a child under the age of ten describing sexual contact to be admissible in dependency and criminal proceedings under certain circumstances.
I. AC
AC was born on February 20, 1999, and was seven years old at the time the following incident took place. AC testified that Smalancke touched her with his hand on her front "private spot" when she was alone with him one evening at her friend MD's home. 3 Report of Proceedings (RP) at 144. She explained that Smalancke touched her through her clothes when she sat with him on the living room couch. AC also testified that Smalancke called her a "sexy mama." 3 RP at 145.
The next day, AC told her mother, RC, that she wanted to visit MD's grandfather. When RC asked why, AC responded that "he was nice and he was funny and called her funny names or nice names." 3 RP at 176. RC testified that AC told her that Smalancke had called her a "sexy mama" and told her she was pretty. 3 RP at 177. When RC asked whether Smalancke had touched her, AC pointed to her "private area." 3 RP at 177. AC then told RC that Smalancke had said that "it was okay for him to do this to her but not to [MD] because [MD] was his granddaughter." 3 RP at 177. AC also told RC that Smalancke had tried to kiss her, but that she had tightened her lips and told him to stop about five times. RC testified that, after her conversation with AC, she contacted MD's mother, DD. RC told DD what AC said, after which DD returned home and asked her father to leave. Smalancke left DD's home shortly thereafter. RC then contacted the authorities and reported the incident.
Jamie Serat, a friend of RC's who was at the house that day, testified that RC told her that Smalancke had touched and kissed AC. Because RC was so upset, it was Serat who asked DD to come to the house.
RC subsequently took AC to the Child Advocacy Center for a forensic interview with Kimberly Brune. During the interview, AC told Brune that Smalancke said "bad words," like "sexy mama," to her and that it "was [kind of] hurting [her] inside." Ex. 2 (digital recording of AC at 8 min., 49 sec.-8 min., 52 sec.). She then told Brune that Smalancke had touched the front "private" area of her pants with his hands and that it hurt when he touched her. Ex. 2 (digital recording of AC at 9 min., 25 sec.). AC told Brune that she moved her legs around and told Smalancke to stop because she did not like him touching her, but he continued to touch her. She said that Smalancke stopped when MD's mother came home. AC told Brune that she knew that Smalancke had also touched MD and KD.
Brune filmed her interview with AC; the trial court subsequently admitted the DVD as Exhibit (Ex.) 2 at trial.
Smalancke testified that, on the day in question, AC had come over to play with MD, who was not home. He testified that he gave AC a bowl of strawberries and whipped cream and sat down with her on the living room couch as she watched television. Smalancke claimed that he put his hands on the top of her thighs and slid AC back when he believed that she had dropped a strawberry on the couch. He said that he had AC squat over the couch and looked between her legs as he searched for the strawberry. Smalancke also testified that he told AC that he would take her and MD to the store to buy her shoes for her birthday. Finally, Smalancke admitted that he had called AC "cute," but he denied calling her a "sexy mama." 6 RP at 556.
II. KD
KD was born on March 18, 1996, and was nine years old when the following incidents occurred. KD was MD's best friend at the time and was often at MD's house when Smalancke was babysitting. KD testified that Smalancke used to take her, MD, and MD's brother to the pool. KD testified that, while in the pool, Smalancke would touch her private parts. KD testified that this happened on several occasions and that it made her feel uncomfortable. She also testified that Smalancke put his hands down her pants "a lot" when she visited MD's home. 4 RP at 253.
Dominique Dennis, an assistant principal at KD's school, testified that she spoke with KD after her mother, KV, expressed concern that someone may have touched her inappropriately. She asked KD if she remembered her school counselor coming into the classroom to talk about "good touch, bad touch." 4 RP at 279. When KD responded affirmatively, Dennis asked whether she had anything she wanted to tell her. Dennis testified that KD's eyes welled up with tears and her face became pale. KD told Dennis that MD's grandfather had been touching her on her bottom, inside her clothing. She also told Dennis that Smalancke had touched her and MD on the "butt," put his hands down their pants, touched their chests, and "rub[bed] [them] for a few minutes" at MD's house. 4 RP at 281.
KV testified that she called the school after talking to DD.
During a subsequent interview with Brune, KD disclosed that, on more than one occasion, Smalancke would touch her and MD's bottoms with his hands when he took them swimming. KD also said that Smalancke touched her chest through her bathing suit. KD demonstrated how Smalancke would touch her by making grabbing motions with her hands. KD told Brune that Smalancke touched her on the bottom when she was on the couch and again in MD's bedroom, and that MD had witnessed him touch her in the living room. KD said that Smalancke told them they would be in big trouble if they told anyone.
Brune also filmed her interview with KD; the trial court subsequently admitted the DVD as Exhibit (Ex.) 1 at trial.
Smalancke testified that, on one occasion, KD jumped off some pillows and toward a glass coffee table in the living room. To prevent her from falling, Smalancke said, he reached out and grabbed KD; his hand went underneath the waistband of her pants. Smalancke testified that MD saw this happen. When KD went up the stairs with MD, she said, "Your grandpa touched my butt," to which MD responded, "Yeah, I saw it." 6 RP at 546. Smalancke also testified that he had played games with KD in the pool and that "[w]ith all the activity and [the children] jumping all over me, I'm sure I touched them in the chest or the butt. . . ." 6 RP at 539. However, he denied touching any of the children in an inappropriate manner.
During closing argument, the prosecutor explained that counts I and II involved the incidents during which Smalancke touched KD in the pool, count III involved the incident during which Smalancke put his hand underneath KD's waistband, count IV involved the incident during which Smalancke touched KD in MD's room, and count V involved the incident during which Smalancke touched AC.
In addition to jury instructions regarding first degree child molestation, the trial court submitted the following instruction:
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of Child Molestation in the First Degree, the defendant may be found guilty of any lesser crime, the commission of which is necessarily included in the crime charged, if the evidence is sufficient to establish the defendant's guilt of such lesser crime beyond a reasonable doubt.
The crime of Child Molestation in the First Degree necessarily includes the lesser crime of Attempted Child Molestation in the First Degree.
When a crime has been proven against a person and there exists a reasonable doubt as to which of two or more crimes that person is guilty, he or she shall be convicted only of the lowest crime.
Clerk's Papers (CP) at 101. The trial court also instructed the jury as to the elements of each offense. Defense counsel did not object to these instructions.
Additionally, the trial court instructed the jury:
There are allegations that the defendant committed acts of Child Molestation in the First Degree or Attempted Child Molestation in the First Degree on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.
CP at 92.
On August 8, 2007, the jury convicted Smalancke of two counts (counts III and V) of attempted first degree child molestation. It was unable to reach verdicts on the remaining counts. The trial court sentenced Smalancke to an indeterminate life sentence with a minimum term of 66.75 months of custody and the balance of his life in community custody. On the State's motion, the trial court dismissed without prejudice counts I, II, and IV. Smalancke now appeals.
ANALYSIS
I. Lesser Included Offenses
Smalancke first argues that the trial court erred by instructing the jury on attempted first degree child molestation. He contends that, because attempted first degree child molestation is not a lesser included offense of first degree child molestation, he was convicted of an uncharged crime. The State responds that the trial court properly instructed the jury because "an attempt to commit a crime is included in the crime itself." Resp't's Br. at 11. We agree with the State.
Every crime includes an attempt to commit that crime as a lesser offense. See RCW 10.61.003, .006, .010; State v. Mannering, 150 Wn.2d 277, 284, 75 P.3d 961 (2003) ("This court previously held that an attempt to commit a crime is included in the crime itself.") (citing State v. Rowe, 60 Wn.2d 797, 798, 376 P.2d 446 (1962)). Furthermore, CrR 6.15(g) provides:
The verdict forms for an offense charged or necessarily included in the offense charged or an attempt to commit either the offense charged or any offense necessarily included therein may be submitted to the jury.
Smalancke devotes a substantial portion of his brief to State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978). He argues that Workman sets forth a two-prong test for determining whether an offense is a lesser included offense of the crime charged, and that the second prong requires that the evidence support an inference that only the lesser offense was committed when the defendant asks the court to give the jury a lesser included offense instruction. The Workman analysis simply does not apply to this case. Therefore, we hold that the trial court did not err by instructing the jury on attempted first degree child molestation.
II. Ineffective Assistance of Counsel
Smalancke next argues that he was denied effective assistance of counsel because his counsel failed to object to the aforementioned jury instructions. Because the jury instructions were proper, Smalancke was not denied effective assistance of counsel in this case.
III. Sufficiency of the Evidence
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in the State's favor and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
In this case, the trial court instructed the jury that a person commits the crime of attempted first degree child molestation when, with intent to commit that crime, he or she does any act which is a substantial step toward the commission of that crime. A substantial step is conduct which strongly indicates a criminal purpose and which is more than mere preparation. Without citation to authority, Smalancke argues that the State's evidence, "if believed, could only have proved completed sexual contact, not attempted." Appellant's Br. at 39. The State responds that an attempt to commit a crime is included in the completed crime. Because sufficient evidence establishes that Smalancke had sexual contact with both AC and KD, it contends, it also proves that he took a substantial step toward having sexual contact with them.
A. Attempted First Degree Child Molestation of AC
Smalancke argues that insufficient evidence supports his conviction for the attempted first degree child molestation of AC. His argument is unpersuasive. In this case, AC testified that Smalancke touched her through her clothing on her front "private spot." 3 RP at 144. She also testified that he called her a "sexy mama." 3 RP at 145. She repeated this again during her interview with Brune. AC's mother testified that AC pointed to her vagina when asked whether Smalancke had touched her. She testified that AC told her that Smalancke said it was okay for him to touch her but not his granddaughter, MD. Furthermore, AC told her mother that she told Smalancke to stop when he tried to kiss her.
Smalancke testified that he pushed AC backwards and up with his hands on her thighs when he believed she had dropped a strawberry on the couch. He said that he had AC squat over the couch while he was looking for the strawberry and looked between her legs as he was doing this. Smalancke admitted that he had called AC "cute." 6 RP at 556. It is clear that the jury found the State's witnesses more credible than Smalancke. Credibility determinations are for the trier of fact and are not subject to review on appeal. Thomas, 150 Wn.2d at 874 (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). Viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that, with intent to commit first degree child molestation, Smalancke made a substantial step toward the commission of that crime.
B. Attempted First Degree Child Molestation of KD
Finally, Smalancke argues that insufficient evidence supports his conviction for the attempted first degree child molestation of KD. Additionally, he contends, "[l]ack of specificity in the verdict" (1) violates his constitutional right to appeal; (2) violates his constitutional right to a unanimous jury verdict; and (3) does not adequately protect him from the risk of double jeopardy. Appellant's Br. at 39. The State responds that sufficient evidence supports his conviction. Furthermore, it argues, the prosecutor's election during closing argument, combined with the trial court's unanimity instruction, ensured that Smalancke's conviction was based on a unanimous verdict. We agree.
1. Evidence
In this case, KD testified that Smalancke put his hands down her pants when she visited MD's house. Brune's interview with KD also reflected this. Dennis testified that, when questioned about "good touch, bad touch" and asked if there was anything she wanted to tell her, KD's eyes welled up with tears and her face became pale. 4 RP at 279. KD told Dennis that Smalancke had been touching KD on her bottom, inside her clothes. KD told Brune that Smalancke touched her on the bottom when she was on the couch, and that MD had witnessed him touch her in the living room. KD also told her that Smalancke told them they would be in big trouble if they told anyone.
Smalancke testified that, to prevent her from falling onto the coffee table, he reached out and grabbed KD; his hand went underneath the waistband of her pants. Smalancke testified that MD saw this happen. When KD went up the stairs with MD, she said, "Your grandpa touched my butt," to which MD responded, "Yeah, I saw it." 6 RP at 546. The jury clearly did not find Smalancke's testimony credible. Viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that, with intent to commit first degree child molestation, Smalancke made a substantial step toward the commission of that crime.
2. Lack of Specificity in the Verdict
Criminal defendants have a right to a unanimous jury verdict. Wash. Const. art. I, § 21. A defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed. State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980). 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. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984). If the State fails to employ one of these options, error has occurred. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1998). The failure to either elect or give a unanimity instruction is subject to harmless error analysis under a constitutional standard. Kitchen, 110 Wn.2d at 411.
At the beginning of closing argument, the prosecutor ran through each count for the jury:
There are five charges, and I want to go through those a little bit each with you. Charges I through IV, involve [KD]. The first two involve [KD] at the pool. Not exactly — I mean, who they are is clear in the instructions, but the two incidents [KD] talked about happens two times in the pool, I and II. Counts III and IV are [in] the living room in [MD's] house and the bedroom in [MD's] house . . . So those are the two other place she talked about specifically being molested by the defendant.
7 RP at 603. He reiterated this again at the end of closing argument. The trial court then instructed the jury that, although it need not unanimously agree that the State proved all acts beyond a reasonable doubt, it must unanimously agree as to which act or acts the State proved beyond a reasonable doubt.
Smalancke cites State v. Heaven, 127 Wn. App. 156, 110 P.3d 835 (2005), in support of his contention that lack of specificity in the verdict violated his constitutional right to appeal and double jeopardy. The State responds that Heaven is distinguishable.
In Heaven, the State charged Heaven with three counts of third degree child molestation. Heaven, 127 Wn. App. at 158. In each count, the State alleged that between January 1, 2001, and January 7, 2002, Heaven had sexual contact with a minor. The information did not identify specific acts or segregate charging periods among the three counts. Heaven, 127 Wn. App. at 158-59. At trial, the State chose not to elect which alleged acts of molestation to rely on for conviction on the three counts. Heaven, 127 Wn. App. at 159. The trial court instructed the jury that it must agree unanimously on one or more alleged acts to convict. The trial court did not employ special verdict forms, and none was requested. Heaven, 127 Wn. App. at 159.
The jury found Heaven not guilty on the first two counts, but it could not agree on the third count. The trial court declared a mistrial on the third count and set a date for a new trial. Heaven successfully moved for a dismissal on the ground that the new trial would constitute double jeopardy. Heaven, 127 Wn. App. at 160. Division One of this court affirmed, noting that: (1) the record did not indicate the specific offenses for which the jury acquitted Heaven; (2) the charging document did not refer to specific acts and it did not segregate charging periods among the three counts; and (3) the State ultimately chose not to elect particular acts relied upon for each conviction on each count. Heaven, 127 Wn. App. at 161-62. It stated:
In the absence of a special verdict and because of the State's decision not to elect, we do not know what allegations the jury based its acquittals on in two of the counts . . . [N]othing would preclude a new jury from convicting Heaven for alleged incidents for which he already has been acquitted in the first two counts . . . [T]his possibility is sufficient to constitute double jeopardy.
Heaven, 127 Wn. App. at 162.
Heaven is distinguishable from the present case. Here, the prosecutor did not forego election. In fact, he twice explained to the jury which count encompassed which factual situation. Furthermore, the trial court did not acquit Smalancke on the counts for which the jury could not reach a verdict. Rather, it dismissed counts I, II, and IV without prejudice. Unlike Heaven, Smalancke has not been retried on these counts. Even if the State chose to retry Smalancke, it is clear that the jury convicted him based on the one incident involving AC (count V) and the other incident in which he put his hand underneath KD's waistband (count III). Therefore, there is no risk that the State will retry him for the incidents on which these counts are based. Smalancke's claim that it is impossible for him to challenge on appeal the sufficiency of the evidence supporting these convictions is unpersuasive.
Finally, the trial court properly instructed the jury that, although it need not unanimously agree that the State proved all acts beyond a reasonable doubt, it must unanimously agree as to which act or acts the State proved beyond a reasonable doubt. Jurors are presumed to follow instructions. State v. Hopson, 113 Wn.2d 273, 287, 778 P.2d 1014 (1989). The State linked each count to a factually specific incident and the trial court gave this instruction; therefore, Smalancke's argument that his constitutional rights were violated is without merit.
Notably, Smalancke argues that "if this Court disregards the prosecutor's election in closing argument [in this case], the record does not otherwise show which allegations the jury relied upon in convicting [him]." Appellant's Br. at 40.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and QUINN-BRINTNALL, J., concur.