Opinion
No. 37123-5-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-00426-6, Gary Tabor, J., entered December 11, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, J., concurred in by Bridgewater and Armstrong, JJ.
James Jones appeals his conviction of first degree child molestation, arguing that the trial court erred in admitting evidence. He also appeals his conviction of second degree child molestation, claiming the State presented insufficient evidence as to the victim's age.
We affirm the first degree child molestation convictions. We reverse the second degree child molestation conviction and remand with instructions to dismiss with prejudice.
FACTS
We derive the facts from the trial evidence.
The State charged Jones with two counts of first degree child molestation of his daughter, S., and one count of second degree or, in the alternative, third degree child molestation of his step-daughter, N.
As to counts I and II, S. testified about her father touching her genitalia for a minute or two as he was tucking her in to bed, telling her that he was allowed to do this. She also testified about another time when he lay on top of her and touched her genitalia under her pajamas but over her underwear. She testified that she was 9 or 10 years old at the time. She further testified about Jones kissing her on the lips, slapping her bottom regularly, having her sit on his lap positioned to be in contact with his genital area while he wore only shorts, and making her model her underwear and bras and feeling around the edges to "check the fit." Report of Proceedings (RP) at 47.
As to count III, N. testified that on one occasion she fell asleep in her mother and Jones's bed and awoke to find Jones touching her breast under her pajamas. She further testified that this could not have been an accident because Jones's eyes were partially open and he was looking at her. She and her mother recall that this happened when she was 13 or 14 years old. N. testified that Jones made her model her underwear and bras to assure that they fit. She also said that Jones kissed her, smacked her bottom regularly, and had her sit on his lap such that she "could feel his penis because his shorts were thin." RP at 83.
Jones moved, in limine, to exclude any evidence regarding the numerous occasions of sexual misconduct not amounting to molestation charges as unfairly prejudicial. After balancing the prejudicial and probative values, the trial court denied the motion. It reasoned that the evidence showed the existence of a sexual pattern, lustful disposition and the absence of mistake or accident.
At the close of the State's case, Jones moved to dismiss count III, charging Jones with either second or third degree child molestation. Defense counsel argued that the State had not proven second degree molestation because N and her mother said she was between 12 and 14 years old when the incident occurred. The trial court denied the motion, reasoning that the jury could decide between second and third degree child molestation.
To prove second degree child molestation, the State had to show that Jones knowingly had sexual contact with N., who was not his wife, who was at least 12 years old but less than 14 years old at the time and that Jones was at least 36 months older than the victim. To prove third degree child molestation, the State had to prove these elements, but that N was no less than 14 years old and no older than 16 years old. RCW 9A.44.086.
The trial court instructed the jury on both second and third degree child molestation.
The jury convicted Jones of two counts of first degree child molestation and one count of second degree child molestation. He appeals.
ANALYSIS
Jones first contends that the trial court erred in admitting evidence of non-molestation conduct, some of which occurred outside the relevant charging periods. He asserts that the trial court should not have allowed the evidence to be admitted because it violates ER 404(b).
We review admission of evidence under ER 404(b) for an abuse of discretion. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Under ER 404(b) we consider evidence of other crimes, wrongs, or acts presumptively inadmissible to prove character or conforming character. Powell, 126 Wn.2d at 258. But ER 404(b) allows admission of such evidence as proof of intent, plan, or absence of mistake or accident. A defendant's prior sexual contacts with the same victim may be admitted to show the defendant's lustful disposition. State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991). When determining the admissibility of evidence under ER 404(b), the trial court engages in a four-step analysis; it must (1) determine, by a preponderance of the evidence, whether the prior bad act occurred; (2) determine the purpose for which the evidence is offered; (3) determine whether the evidence is relevant prove an element of the crime charged or to rebut a defense; and (4) balance, on the record, the probative value of the evidence and its prejudicial effect. State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995).
Here, the trial court engaged in the proper analysis before deciding to allow it into evidence. First, neither party contested that the sexual misconduct occurred. Second, it determined that the purpose of the evidence of Jones kissing on the lips, slapping bottoms, lap sitting, and underwear fittings were evidence reflecting a pattern, a lustful disposition, and absence of mistake. Third, it determined that the evidence was relevant to the charged crimes and that the jurors would determine credibility. Finally, it weighed the probative value versus the potential prejudicial effect and found on balance the probative value sufficient. It determined that the evidence of Jones's sexual misconduct not amounting to molestation charges was admissible. The trial court did not abuse its broad discretion in doing so.
Nor does it matter that some of the uncharged sexual acts occurred outside the charging periods. The exceptions set forth in ER 404(b) apply to prior and later acts. State v. Bradford, 56 Wn. App. 464, 467, 783 P.2d 1133 (1989). The proper inquiry, as the trial court engaged in, was rather to determine whether a pattern existed. State v. Sexsmith, 138 Wn. App. 497, 504-06, 157 P.3d 901 (2007), review denied, 163 Wn.2d 1014 (2008). Again, the trial court did not abuse its discretion.
Jones next contends that insufficient evidence supports his conviction of second degree child molestation of N. Specifically, he claims that the evidence was insufficient to show that she was at least 12 years old but less than 14 at the time of the crime.
Sufficient evidence supports a conviction if, after viewing the evidence in the light most favorable to the State, any rational fact finder could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of evidence in a criminal case, we draw all reasonable inferences from the evidence in the State's favor and interpret all reasonable inferences from the evidence strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). An insufficiency claim admits the truth of the State's evidence and all inferences that the court reasonably can draw from it. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980). Finally, we defer to the fact finder 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). Where insufficient supports the conviction, the case must be dismissed with prejudice. State v. B.J.S., 140 Wn. App. 91, 97 n. 2, 169 P.3d 34 (2007).
Based on this record, we cannot say that sufficient evidence supported the conviction of second degree child molestation. Both N. and her mother testified that the incidents occurred when she was 13 or 14. If she was 14, Jones did not commit second degree child molestation. Hence, insufficient evidence supported this conviction.
We affirm the two counts of first degree child molestation. We reverse with instructions to dismiss with prejudice the one count of second degree child molestation.
The State contends that the remedy should be remand for a new trial on this count. We disagree based on B.J.S., 140 Wn. App. at 97 n. 2.
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.
Bridgewater, J. Armstrong, J., concur.