Opinion
No. 64848-9-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-03101-7, Bruce E. Heller, J., entered January 26, 2010.
Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, C.J., and Ellington, J.
Clyde Davis challenges the sufficiency of the evidence supporting his convictions for voyeurism and second and third degree child molestation. We affirm.
Davis has a granddaughter who was born on May 1, 1994. When she was about six months old, her parents divorced. After that, she lived with Davis.
According to the testimony at trial, the girl began to sleep with Davis in his bed when she was nine years old and also to shower with him in the bathroom of the master bedroom. When she was twelve years old, the girl told Davis that she wanted to stop sleeping and showering with him. She returned to her old room to sleep and started to use the hallway bathroom. Davis got angry and did not speak to her for several months.
Davis made a house rule that his granddaughter could not close the bathroom door while she showered or used the toilet. She was also required to leave her bedroom door open when she was dressing. Davis regularly stood in the doorway of the bathroom and silently stared at the girl while she showered. He would continue to watch her quietly as she dried off, walked to her room, and dressed. As soon as her clothes were on, he would leave. From time to time, Davis bought lingerie or short shorts as presents and would ask the girl to model them for him.
The girl testified that when she was 13 years old, she had an allergic reaction to a medication and developed a body rash. Davis ordered her to get completely undressed and show it to him. Her grandmother was present. Davis touched the girl's breasts, buttocks, and the outside of her vagina during the inspection. Afterward, they all watched television in the family room. Davis moved to sit on the couch with his granddaughter. He put his hand on her thigh, moved it to her stomach under her shirt, and then slid his hand down beneath her pants and underwear to rest on the outside of her vagina. He left his hand there for over an hour. She asked him to remove his hand, but he refused. In another incident, Davis gave the girl a back rub when she was 14 years old, during which he rubbed her buttocks, stomach, breasts, and vagina. When she asked him to stop, he said, "`No, because you need to get to sleep.'" The massage lasted over half an hour.
A few months later, the girl made a disclosure to a friend. This led to a police investigation. Davis was charged and convicted on one count of voyeurism and one count each of second and third degree child molestation. He appeals, challenging the sufficiency of the evidence on each count.
On an insufficiency challenge, this court will affirm a conviction if after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. State v. Diaz-Flores, 148 Wn. App. 911, 918, 201 P.3d 1073, review denied, 166 Wn.2d 1017 (2009).
The relevant part of the voyeurism statute states that:
A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films:
(a) Another person without that person's knowledge and consent while the person being viewed, photographed, or filmed is in a place where he or she would have a reasonable expectation of privacy.
Davis argues that due to the fact the bathroom door had to remain open, his granddaughter did not have a reasonable expectation of privacy while showering. But the statute does not require proof that the victim had a subjective expectation of privacy if the victim was in a place where she would have a reasonable expectation of privacy. See State v. Glas, 147 Wn.2d 410, 415, 54 P.3d 147 (2002) (It is "the physical location of the person" that is ultimately at issue in determining whether a person is in a place where she would have a reasonable expectation of privacy.). The bathroom is a place where a reasonable person would expect privacy. Glas, 147 Wn.2d at 416; State v. Stevenson, 128 Wn. App. 179, 190, 114 P.3d 699 (2005). Testimony that the girl was in the bathroom when Davis watched her is sufficient to support this element of the offense.
Davis also argues that there was not sufficient evidence to show he watched his granddaughter without her knowledge and consent. The girl testified that "just about every time" she showered, Davis was watching. But she also testified she did not want him to watch her while she showered and dressed; she liked to do those things in private. And she testified that there were "times that I would look up and he was just there." A reasonable jury could infer that at such times, Davis watched her shower without her knowledge and consent. By challenging the sufficiency of the evidence, Davis admits the truth of that inference. See Diaz-Flores, 148 Wn. App. at 918. We conclude the evidence was sufficient to support the conviction for voyeurism.
In a statement of additional grounds under RAP 10.10, Davis argues that the evidence was insufficient to support the convictions for second and third degree sexual molestation because it did not directly show his conduct was done for the purpose of sexual gratification. We disagree. The jury instructions required evidence of sexual contact in accordance with the statute. RCW 9A.44.086(1), .089(1). The instruction defined "Sexual contact" as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party or a third party." The girl testified that Davis touched her sexual and intimate parts. Davis testified he could not think of any legitimate reason for such touching. The testimony supported a reasonable inference that Davis touched his granddaughter's breasts and vagina for the purpose of gratifying his sexual desires.
Affirmed.