From Casetext: Smarter Legal Research

State v. January

The Court of Appeals of Washington, Division Two
Oct 20, 2009
152 Wn. App. 1046 (Wash. Ct. App. 2009)

Opinion

No. 38069-2-II.

October 20, 2009.

Appeal from the Superior Court, Pierce County, No. 07-1-01188-1, Rosanne Buckner, J., entered July 9, 2008.


Affirmed by unpublished opinion per Houghton, J., concurred in by Hunt and Quinn-Brintnall, JJ.


Robert January appeals his conviction for first degree child molestation, challenging the jury's special verdict finding that the offense was predatory. In a statement of additional grounds for review (SAG), January also asserts that the trial court violated his right to a speedy trial and his right to confront witnesses. We affirm.

A commissioner of this court initially reviewed the matter under RAP 18.14 and transferred it to a panel of judges.

FACTS

On March 3, 2007, after attending an event at Fort Lewis, Samantha Guajardo's 5-year-old daughter, J.F., wanted to go to the library. They were new to the area and went the library often so that J.F. could play in the children's room. They also would check out books and movies. While there, and not having a computer at home, Guajardo would use a computer to check for e-mails from her husband, and she would send e-mails to him. After Guajardo finished on the computer, she went to the children's room to get J.F. She found her daughter standing next to an older man wearing a red hat. The man was holding J.F.'s hand and J.F. was crying.

Guajardo told J.F. to come to her and the child ran to her. The man did not say anything and Guajardo asked J.F. what was wrong. J.F. answered that nothing was wrong but asked to go home. When Guajardo persisted, J.F. said, "Mommy, that man touched me." Report of Proceedings at 293. She pointed between her legs and said that he had touched her there.

Guajardo told a library staff member about J.F.'s complaint and then called 911. While she was doing so, the man took his hat off and left the library. Lakewood Police Officer Jon Waller saw January walking along the sidewalk near the library. Because he matched the description Guajardo and the library staff had provided, Waller detained him. Another officer drove Guajardo and the staff member across the street from the scene, and they positively identified him. J.F. was with her mother and started to cry when she saw the same man again.

Two days later, a child interviewer from the prosecutor's office, Keri Arnold-Harms, talked to J.F. The child told her the same things she had told her mother.

The State charged January with first degree child molestation. A jury convicted him as charged and he appeals.

ANALYSIS Sufficiency of the Evidence

January first challenges the special verdict, contending that the evidence was insufficient to prove that he was a stranger to J.F. Evidence is sufficient to support a jury's verdict if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An insufficiency claim admits the truth of the evidence and reasonable inferences. Salinas, 119 Wn.2d at 201. We consider circumstantial and direct evidence equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). In determining whether the necessary quantum of proof exists, we need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case. State v. Jones, 93 Wn. App. 166, 176, 968 P.2d 888 (1998). Substantial evidence is evidence that "'would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed.'" State v. Unga, 165 Wn.2d 95, 120 n. 12, 196 P.3d 645 (2008) (Sanders, J., concurring) (quoting State v. Davis, 73 Wn.2d 271, 283, 438 P.2d 185 (1968)).

RCW 9.94A.030(39) lists the circumstances under which conduct is considered predatory. The trial court instructed the jury on only one of those circumstances: "[T]he perpetrator of the crime was a stranger to the victim." Clerk's Papers (CP) at 24. The trial court further advised the jury that "stranger" meant "that the victim did not know the offender twenty four hours before the offense." CP at 24.

RCW 9.94A.030 has been amended. The relevant subsection is currently (39) with no change to its language.

January acknowledges that Guajardo testified that she had never seen him before. But he asserts that is not enough to prove that J.F. did not know him, arguing that children often know people whom their parents do not. That might certainly be true of an older child. It is much less likely that a five-year-old child would know an adult whom her mother had not met. In any case, there was additional evidence here. Guajardo said they had not been in the area long, and J.F. had not really made any friends yet. Most importantly, J.F. consistently referred to January as "the man" or "that man," indicating that she did not know his name and had not met him previously. The jury could reasonably infer from this evidence that J.F. did not know January. Sufficient evidence supports his conviction.

We also note that the videotape of Arnold-Harms's interview with J.F. was entered into evidence as exhibit 20 without objection and played for the jury. January has not provided that exhibit. But he does not dispute the State's assertion that J.F. told the interviewer that she had never seen "that man" before. Resp't's Br. at 6.

Statement of Additional Grounds

The issues that January raises in his SAG are generally too vague to identify specific error or permit fair review. He asserts violation of his right to a speedy trial but does not explain why trial was delayed. Although there were continuances, we do not know the reasons for them or whether defense counsel agreed to them. Likewise, January claims that he was denied the opportunity to "confront the two witnesses," but he does not identify them. SAG at 1. The record shows that his attorney cross-examined every witness, including J.F. We decline to address these claims further. RAP 10.10(c) (court need not consider a statement of additional grounds "if it does not inform the court of the nature and occurrence of alleged errors").

Finally, January asserts that the victim never identified him. That appears to be true, but it gains him nothing. Her mother saw her standing with him. She told her mother that he touched her. Her mother positively identified him at the scene of his arrest and in court. Again, sufficient evidence supports his conviction.

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.

HUNT, J. and QUINN-BRINTNALL, J., concur.


Summaries of

State v. January

The Court of Appeals of Washington, Division Two
Oct 20, 2009
152 Wn. App. 1046 (Wash. Ct. App. 2009)
Case details for

State v. January

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. ROBERT ALTON JANUARY, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Oct 20, 2009

Citations

152 Wn. App. 1046 (Wash. Ct. App. 2009)
152 Wash. App. 1046