Opinion
No. 60039-7-I.
September 29, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-04124-7, Steven C. Gonzalez, J., entered April 27, 2007.
UNPUBLISHED OPINION
Thomas Holkenbrink appeals his conviction for rape of a child in the second degree. Holkenbrink claims the evidence does not establish beyond a reasonable doubt two essential elements of the crime: (1) that he was at least 36 months older than the child, S.D., and (2) that he and S.D. were not married. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of the crime of rape of a child in the second degree beyond a reasonable doubt. We affirm.
FACTS
In April 2006, S.D. lived in Federal Way with her mother, Misty Daniels, and her mother's boyfriend, Thomas Holkenbrink. Holkenbrink had lived with Misty and S.D. since 2005. Misty and Holkenbrink were planning to get married.
On the weekend of April 1, 2006, Holkenbrink's two children, C.H., 9, and J.H., 7, visited Holkenbrink, Misty, and S.D. at their house in Federal Way, and spent the night. On April 2, Holkenbrink drove his children to their mother's house in Oregon. Holkenbrink returned to the house in Federal Way before Misty left at 5 p.m. to go to Skagit County. S.D. was feeling ill that evening and decided to stay home. Soon after Misty left, Holkenbrink and S.D. watched a movie, and Holkenbrink made S.D. a root beer float. S.D. said that as she drank the root beer float, she noticed that the float had a strange taste, and she also said that she saw what looked like crushed up pills at the bottom of the glass. During the movie, Holkenbrink asked S.D. if she shaved her pubic area and if she was a virgin. S.D. ignored Holkenbrink's questions, but left and went to her room.
Misty returned home around 9 p.m. Misty braided S.D.'s hair. Afterwards, S.D. went to bed. S.D. awoke during the night to someone touching her on the breasts and vagina both inside and outside her clothing. S.D. also felt digital penetration. When S.D. turned over in bed, she saw Holkenbrink lying beside her. S.D. fell asleep, but awoke a second time to the same touching. S.D. confronted Holkenbrink, and Holkenbrink left the room.
On April 3, S.D. told Misty; her father, Mathias Forsman; Forsman's fiance Kori; and her uncle, Matthew Brown about what had happened. Brown called the police. Officer Sant responded to the call. Holkenbrink told Officer Sant that he did not inappropriately touch S.D., but admitted that he was under the influence of ecstasy and he remembered lying in bed with S.D.
The State charged Holkenbrink with rape of a child in the second degree. A number of witnesses testified at trial on behalf of the State, including S.D., Officer Michael Sant, Matthew Brown, and Misty.
Holkenbrink did not testify.
A jury convicted Holkenbrink as charged of rape of a child in the second degree. Before sentencing, Holkenbrink moved for arrest of judgment and dismissal, arguing the State did not introduce evidence of Holkenbrink's age at trial. The court denied the motion:
I think it hangs on the testimony about the age of his children. There are other things like he is employed, he is not in high school. He has been dating for years. He is getting a marriage license, he drives, he owns his own car. He is the one on the lease for an apartment. All of those are possible factors.
The court imposed a sentence in the standard range. Holkenbrink appeals.
ANALYSIS
Holkenbrink contends the State did not present evidence that allowed the jury to find beyond a reasonable doubt two of the elements of rape of a child in the second degree: (1) that Holkenbrink was at least 36 months older than S.D. and (2) that Holkenbrink and S.D. were not married.
In reviewing a challenge to the sufficiency of the evidence, the appellate court considers the evidence in the light most favorable to the State, affords all reasonable inferences, and asks whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency of evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. Smith, 155 Wn.2d at 501; Salinas, 119 Wn.2d at 201. In determining whether the necessary quantum of proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt; we need only be satisfied that substantial evidence supported the conviction. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992). We defer to the trier of fact for purposes of determining credibility, resolving conflicting testimony, and evaluating the persuasiveness of the evidence. State v. Jackson, 129 Wn. App. 95, 109, 117 P.3d 1182 (2005) rev. denied, 156 Wn.2d 1029, 133 P.3d 474 (2006); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
To convict Holkenbrink of rape of a child in the second degree, the jury was required to find that Holkenbrink had sexual intercourse with S.D. when she was at least 12 years old but less than 14 years old, that Holkenbrink was at least 36 months older than S.D., and that Holkenbrink and S.D. were not married at the time. See RCW 9A.44.076.
Although there was no direct evidence presented regarding Holkenbrink's age or that he was not married to S.D., there was sufficient circumstantial evidence from which the jury could have found that Holkenbrink was at least 36 months older than S.D. and that they were not married. The elements of a crime may be established by either direct or circumstantial evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). A trier of fact may rely exclusively upon circumstantial evidence to support its decision. State v. Kovac, 50 Wn. App. 117, 119, 747 P.2d 484 (1987).
In State v. Allen S., 98 Wn. App. 452, 989 P.2d 1222 (1999), evidence was sufficient to establish that the defendant, who was prosecuted for first and second degree child rape, was at least 24 months older than one of the children where the record showed that the defendant was the child's father, the child was 10 years old, and the defendant was held in an adult jail and prosecuted in an adult court. Allen S., 98 Wn. App. at 470. And in State v. Rhoads, 101 Wn.2d 529, 681 P.2d 841 (1984), a prosecution for first degree rape, the prosecuting attorney did not directly ask the victim whether she was married to the defendant, but the evidence was sufficient to prove the defendant was not married to the victim because the testimony of several witnesses established that the victim did not know the defendant when he raped her. Rhoads, 101 Wn.2d at 532.
Here, as in Allen S. and Rhodes, the testimony of the witnesses supports the conclusion that Holkenbrink was at least 36 months older than S.D. and that he and S.D. were not married. Officer Sant testified that when he responded to Brown's call, he "was told that a person living in the house had sexually molested a young 13-year-old girl. . . ." Officer Sant also said that when he spoke to Holkenbrink, Holkenbrink referred to himself as a "child molester." The testimony established that Holkenbrink is the father of two children, ages 9 and 7, which means Holkenbrink had to be at least 21 when he raped S.D. And Misty testified that on February 28, 2007, S.D. was 14 years old and S.D.'s birthday is January 26, which established that S.D. was 13 years old on April 2, 2006. Misty also testified that she and Holkenbrink had been dating since August 2004. Both Misty and Matthew Brown testified that Misty and Holkenbrink obtained their marriage license on April 3, 2006. Misty told the jury that she and Holkenbrink married on April 14, less than two weeks after the rape. In addition, there was testimony that Holkenbrink had a job, was the signatory on a lease, and owned a car.
There was sufficient evidence for a rational trier of fact to find the essential elements of rape of a child in the second degree beyond a reasonable doubt.
We affirm.