Opinion
No. 26943-4-III.
March 18, 2010.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 07-8-00241-6, Donald W. Schacht, J., entered February 7, 2008.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J., and Brown, J.
This appeal follows the conviction of a 10-year-old girl for making a bomb theat. In Washington, a child between the ages of 8 and 11 is presumed to be incapable of committing a crime. But that presumption is rebuttable. Here, the trial court considered the required factors, concluded that the State rebutted the presumption of incapacity, and convicted the child of threatening to bomb or injure property. We conclude that the court's conclusions are supported by the findings and those findings are supported by this record. We therefore affirm the conviction.
FACTS
Ten-year-old Esmeralda Guevara wrote a note on a stall in the girls' bathroom at a school in College Place, Washington, on the afternoon of Monday, November 5, 2007. The note read, "[B]omb set 20 mins were [sic] going to die." Ex. 2. School administrators evacuated and closed the school to allow a bomb squad to search. The squad was unable to locate a bomb.
Late that evening, Esmeralda either woke up shortly after going to sleep or was restless before going to bed. She started crying and said, "I did it. I did it." Report of Proceedings (RP) at 29, 41. Esmeralda's mother, Zenaida Guevara, asked Esmeralda what she did. Esmeralda said she wrote the note on the bathroom stall. She told her mother she had been teased about her teeth and about being fat. Zenaida explained to Esmeralda that the matter was "really serious" and that they must call the police. RP at 42.
We use first names for Esmeralda and her mother for clarity.
Police Officer Carol Ferraro went to the Guevara home. She arrived shortly after midnight. Both Zenaida and Esmeralda were crying when the officer arrived. Esmeralda explained to Officer Ferraro that she had written the note about the bomb. She said that she had written the message with a pink marker and then had thrown the marker in a bathroom wastebasket. She also shared that she had been feeling sad because of problems at home. Officer Ferraro requested that Officer Al Schneidmiller respond because he had more information about that day's bomb threat. Officer Schneidmiller arrived and confirmed the wording of the message. He also confirmed that it was written in pink and that a pink marker was found in the restroom's first stall.
Officer Ferraro arrested Esmeralda. The officer informed her of her Miranda rights and asked her whether she understood those rights. Esmeralda responded, "No, not really." RP at 17. Officer Ferraro again read the rights and added, "What it basically means is you do not have to speak to me or answer any questions unless you have an attorney present." RP at 18. Esmeralda then said she understood.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Officer Ferraro took Esmeralda to juvenile detention, where the officer took a written statement from Esmeralda. The statement read:
On Monday I was feeling very sad because there is problems at my house. Like my Dad is in Jail and my sister is at College and my grandpa is sick so I wrote Bomb threat in a pink Sharpie at 2:35 p.m. and the school was evacuated and saved. At 11:50 My mom called the police and told them I had information about the bomb threat a [sic] I told them I did it. So the police took me to J.J.C.
This is the messege [sic] that I wrote[,]
bomb
set for 20 mins
were [sic] all going to die.
Ex. 1; see also RP at 20.
The State charged Esmeralda with one count of threat to bomb or injure property.
After a contested capacity hearing, the juvenile court ruled that Esmeralda had the capacity to understand the wrongfulness of her actions and could be prosecuted for the crime. Esmeralda then pleaded guilty to the crime charged. At sentencing, the court entered an order of deferred disposition and sentenced Esmeralda to a 12-month term of community supervision. Esmeralda complied with all the terms of the order, so the juvenile court dismissed the deferred disposition and term of community supervision with prejudice and vacated the conviction.
Meanwhile, Esmeralda pursued discretionary review of the juvenile court's determination of her capacity. A commissioner of this court ruled that the matter was not appealable and denied discretionary review. Esmeralda then moved the Washington Supreme Court for discretionary review. The Supreme Court granted review and then directed us to reinstate Esmeralda's appeal. The State then moved this court to dismiss the appeal on the ground that it was moot. A commissioner denied the motion and transferred the appeal to a panel of judges.
DISCUSSION
Appeal Moot
The State contends that we can provide no effective relief here and that the appeal is therefore moot. The State argues that since Esmeralda "has now received what she was asking for, there is nothing more that this Court can give her." Motion to Dismiss as Moot, at 3, No. 26943-4-III (Wash. Ct. App. Aug. 18, 2009).
Esmeralda argues that the appeal is not moot because she continues to suffer consequences from her juvenile adjudication. She says a juvenile is ineligible for a deferred disposition if she "[h]as a prior deferred disposition or deferred adjudication." RCW 13.40.127(1)(c). And she maintains case law interpreting this language does not support the State's argument that a juvenile is ineligible only if the prior deferred disposition is ongoing or unsuccessful. See State v. Watson, 146 Wn.2d 947, 956-57, 51 P.3d 66 (2002). Whether this appeal is moot is a question of law that we will review de novo. Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wn.2d 22, 29, 891 P.2d 29 (1995).
A matter is moot when the court cannot grant relief. State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983); State v. Veazie, 123 Wn. App. 392, 397, 98 P.3d 100 (2004). We dismiss appeals "where only moot questions or abstract propositions are involved." Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972).
This appeal is not moot. Esmeralda faces the possibility of future ramifications from the juvenile court's ruling on her capacity and subsequent deferred disposition order. A child may receive only one deferred disposition. RCW 13.40.127(1)(c); Watson, 146 Wn.2d at 957-58. The Washington Supreme Court has previously determined that the "prior deferred disposition" language in RCW 13.40.127(1) is unambiguous. Watson, 146 Wn.2d at 956.
The word "prior," then, must be given its plain and ordinary meaning of "earlier in time or order," "before," or "previously." Id. Esmeralda received a deferred disposition here. Clerk's Papers (CP) at 41. A plain application of the statutory language makes that deferred disposition a "prior deferred disposition" whether or not the deferred disposition is still in effect. RCW 13.40.127(1)(c). We find no authority to support the proposition that the subsequent dismissal of the deferred disposition, after Esmeralda complied with the terms of the order, removes the deferred disposition from the realm of "prior" under RCW 13.40.127(1)(c). We will, therefore, consider the merits of her appeal. Determination of Child's Capacity
Esmeralda contends that the court impermissibly relied exclusively on Esmeralda's after-the-fact statements to police to conclude that she had the capacity to understand the seriousness of this crime. She notes that she made the statements after her mother had told her that her actions were "really serious" and after the police came to her house close to midnight, arrested her because of the "seriousness" of her actions, and booked her into a juvenile detention facility.
The State responds that the court properly considered and relied on Esmeralda's statements to police because her after-the-fact acknowledgements of wrongdoing were not the only evidence rebutting the presumption of incapacity. The State says other evidence supports that Esmeralda understood the wrongfulness of her actions. Esmeralda hid evidence of her crime by acting in secret in the stall of a restroom, by disposing of the pink Sharpie marker she used to write the note, and by keeping the information to herself until her conscience got the better of her. Esmeralda further acknowledged her wrongful behavior when she cried to her mother, when Officer Ferraro arrived at the house, and when she demonstrated remorse in "her demeanor and her actions" at the detention center. RP at 15, 29, 31, 41. She also contemplated that the school would send everyone home once they discovered the note. CP at 37.
A statutory presumption that children between 8 and 11 years old lack capacity to commit a crime applies in juvenile proceedings. RCW 9A.04.050. To rebut this presumption, the State must convince the trial judge that the child had sufficient capacity to understand the act and to know that it was wrong. Id.; State v. J.P.S., 135 Wn.2d 34, 38, 954 P.2d 894 (1998); State v. Erika D.W., 85 Wn. App. 601, 605, 934 P.2d 704 (1997).
The court decides whether the State has rebutted the incapacity presumption by considering the following factors:
(1) the nature of the crime, (2) the child's age and maturity, (3) whether the child evidenced a desire for secrecy, (4) whether the child told the victim (if any) not to tell, (5) prior conduct similar to that charged, (6) any consequences that attached to that prior conduct, and (7) whether the child had made an acknowledgment that the behavior is wrong and could lead to detention.
State v. Ramer, 151 Wn.2d 106, 114-15, 86 P.3d 132 (2004).
"Also relevant is testimony from those acquainted with the child and the testimony of experts." J.P.S., 135 Wn.2d at 39.
Capacity requires the actor to understand the nature or illegality of his acts. 43 C.J.S. Infants § 197 (1978). In other words, he must be able to entertain criminal intent. Id. A "sense of moral guilt alone, in the absence of knowledge of legal responsibility, is not sufficient," although actual knowledge of the legal consequences is not necessary. Id.
Ramer, 151 Wn.2d at 115.
The State, then, need not show, and the court need not find, that Esmeralda understood that her act would be punishable under the law. J.P.S., 135 Wn.2d at 38. "The focus is on 'whether the child appreciated the quality of his or her acts at the time the act was committed,' rather than whether the child understood the legal consequences of the act." Ramer, 151 Wn.2d at 114 (quoting State v. T.E.H., 91 Wn. App. 908, 913, 960 P.2d 441 (1998)).
We review this juvenile court's determination that Esmeralda had capacity to commit the crime here by examining the record to determine whether the State produced substantial evidence to rebut the presumption of incapacity. Ramer, 151 Wn.2d at 112-13. Significantly, our inquiry is whether the State produced sufficient evidence to meet its burden of proof and, necessarily then, we do not pass on whether the State's showing was persuasive. State v. Huff, 64 Wn. App. 641, 655, 826 P.2d 698 (1992). The burden of persuasion is a matter for the trier of fact (here the juvenile court judge) to resolve. Id.
The juvenile court judge here considered and made appropriate findings on the seven factors outlined in Ramer:
Factor 1: The alleged crime is a Class B Felony and a serious offense. The language used threatens that people will die in a short passage of time. Considering the violent nature of our society, the recent history of violence in schools and the worldwide use by terrorists of bombs, school officials and law enforcement officers are supersensitive to threats of this nature.
Factor 2: The child, at the time of the incident, was approximately 10.5 years old. The child's appearance in court, her mother's testimony about the child and her activities and Officer Schneidmiller's testimony about his involvement with the child leads the Court to conclude Esmeralda is of at least average or above average maturity for a 10 year old. Officer Ferraro's testimony that she communicated well and talked to her directly support a maturity finding.
Factor 3: The child did not tell anyone about her behavior that afternoon, or even early evening, when she was picked up by her mother after school was cancelled and when they returned to find the parent-teacher conferences were cancelled. She was secretive at that time.
Factor 4: There was no individual victim.
Factor 5: There is no history of prior similar conduct.
Factor 6: There were no prior consequences.
Factor 7: The child, when she told her mother later that evening, after awakening from nightmares, that she had written the threat, was at a minimum indirectly acknowledging the wrongfulness of her behavior. She also cried during the police interview.
CP at 26.
Esmeralda argues that the record does not support the court's finding that she acknowledged the wrongfulness of her behavior. She also argues that even if supported by substantial evidence, the court's finding itself is insufficient to support the court's conclusion that she had the capacity to commit the crime. Esmeralda argues that she acknowledged the wrongfulness of her act only after she had been told by her mother and the police in the middle of the night that the act was very serious and warranted arrest. And she contends this is insufficient.
The recognition of wrongful conduct made by a child after the child has been taught that his or her conduct was wrong is not particularly probative of whether the child understood conduct was wrong at the time it occurred. A child's after-the-fact acknowledgment that he or she understood the conduct was wrong is insufficient, standing alone, to overcome the presumption of incapacity by clear and convincing evidence.
J.P.S., 135 Wn.2d at 44.
Whether and to what extent a child may have been influenced by the statements or actions of others is a question of fact best left to the trier of fact, here the juvenile court judge. Huff, 64 Wn. App. at 655. We have only a written record. The trial judge saw Esmeralda, heard from her mother and other witnesses, and is in a much better position to decide these fact questions. State v. Karpenski, 94 Wn. App. 80, 104-05, 971 P.2d 553 (1999), abrogated on other grounds by State v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003).
Moreover, we find no legal authority for Esmeralda's position that the court cannot consider statements she made after talking to others. Indeed, finders of fact may consider subsequent statements by a defendant when passing on whether he or she had a particular state of mind at the time the crime under consideration was committed. See, e.g., State v. Matthews, 132 Wn. App. 936, 942, 135 P.3d 495 (2006).
Here, Esmeralda asked her mother to help her tell her principal the following morning about her actions. And she prepared a class presentation on a bomb threat at a different school shortly before writing her note. We conclude that this evidence supports the juvenile court judge's finding and that finding supports the conclusion that Esmeralda had the capacity to understand the wrongfulness of her actions. Court Precludes Esmeralda from Testifying
Esmeralda next argues that the trial court actively interfered with her attempt to testify and by doing so violated her right to due process of law. When Esmeralda's defense counsel attempted to call Esmeralda to testify, but later agreed not to call her, the juvenile court explained that it would not have allowed her to testify in any event because no case law allowed such testimony and because her testimony would have been selfserving and self-incriminatory.
Waiver of a fundamental constitutional right must be made knowingly, voluntarily, and intelligently. State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). A trial court "may assume a knowing waiver of the right from the defendant's conduct." Id. at 559. Here, Esmeralda, through her attorney, withdrew her request to testify. RP at 51. She, therefore, waived her right to testify. The judge's later gratuitous comments do not vitiate that waiver.
Court's Finding that the Note was Necessarily Harmful
Esmeralda also argues that the court erred in its letter ruling by stating, "One does not, even in jest, write a bomb threat on a wall in a school." CP at 27. She argues that this statement undermines the presumption of incapacity by presuming that no one would fail to appreciate the wrongful quality of such an act. She continues that it impermissibly ignores that even a child who commits intuitively obvious offenses is presumed to lack capacity. State v. Linares, 75 Wn. App. 404, 415, 880 P.2d 550 (1994).
The court's comment is taken out of context. The final sentence, when read in the context of the court's entire four-page ruling with findings on each of the seven Ramer factors, does not ignore the presumption of incapacity. The court properly considered all Ramer factors in its determination that the State rebutted the incapacity presumption. CP at 24-27.
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Esmeralda also raises two additional grounds for review. She maintains that two actions violated her due process and equal protection rights under the United States and Washington constitutions: (1) the prosecutor's failure to hold a capacity hearing within 14 days as required by JuCR 7.6(e), and (2) the juvenile court's failure to dismiss the case against her when the prosecutor failed to pursue a capacity hearing within the requisite 14 days.
JuCR 7.6(e) provides that a capacity hearing must be held "within 14 days from the juvenile's first court appearance" when a capacity determination is required under RCW 9A.04.050. JuCR 7.6(e) does not specify a remedy for its violation. State v. Gilman, 105 Wn. App. 366, 369, 19 P.3d 1116 (2001). "Dismissal is an extraordinary remedy and should be granted only if other lesser sanctions will not remedy any prejudice to the defendant." Id. at 370. In other cases, we have remanded for a determination of whether a juvenile had been prejudiced by the State's violation of JuCR 7.6(e). Id. But the juvenile court here has already determined that Esmeralda was not prejudiced by the delay and so denied her motion to dismiss. Esmeralda does not offer any argument on whether she was, in fact, prejudiced by the delay. So there are inadequate grounds to support these additional assignments of error.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and BROWN, J., concur.