He next claims the kitchen and church incidents, when he grabbed N.B. by her waist, pulled her toward him, and tried to kiss her, were not sexual contact. He relies on State v. R.P., 67 Wn. App. 663, 838 P.2d 701 (1992), aff'd in part, rev'd in part, 122 Wn.2d 735, 862 P.2d 127 (1993), and State v. Marcum, 61 Wn. App. 611, 811 P.2d 963 (1991), to support his position.
¶14 In In re Welfare of Adams, 24 Wn. App. 517, 521, 601 P.2d 995 (1979), we said, "The statute is directed to protecting the parts of the body in close proximity to the primary erogenous areas which a reasonable person could deem private with respect to salacious touching by another." In addition, in State v. Marcum, 61 Wn. App. 611, 612 n. 1, 811 P.2d 963 (1991), we noted that evidence of kissing a minor's cheeks and touching his face was insufficient to support a first degree child molestation conviction. ¶15 In contrast, in California, touching of any body part appears to satisfy the statutory requirements, so long as it was done with the requisite "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child."
Although the State presented testimony regarding Watzon-Pozo's statements that he did not digitally penetrate L.H., penetration is not an element of first degree child molestation or fourth degree assault and the absence of penetration does not preclude a finding that Watzon-Pozo touched L.H. for the purpose of sexual gratification. See State v. Marcum, 61 Wn. App. 611, 612 n. 1, 811 P.2d 963 (1991) (defendant's act of putting his hand down the front of a child's trousers was enough to create an inference that he did so for sexual gratification). Moreover, both Breland and L.H.'s testimony support a finding that Watzon-Pozo touched L.H. without permission.
This evidence permitted an inference that the touching was for sexual gratification. See State v. Whisenhunt, 96 Wn. App. 18, 23-24, 980 P.2d 232 (1999); State v. Marcum, 61 Wn. App. 611, 612 n. 1, 811 P.2d 963 (1991). Calderon next argues in conclusory fashion that the court abused its discretion in admitting cumulative evidence.
Abuse of a position of "authority" has yet to be recognized as a valid reason for imposing an exceptional sentence. State v. Marcum, 61 Wn. App. 611, 614, 811 P.2d 963 (1991). Appellant makes no claim that an abuse of trust is subsumed as an element of the crime or was already considered by the Legislature in establishing the standard sentence range.
See Tenn. Code Ann. § 40-35-114(16) (2003) (listing an abuse of a position of public or private trust as one of several enhancement factors that a trial court may apply in criminal sentencing).See, e.g., Ark. Code Ann. § 5-14-124(a)(2) (2003) (person commits first degree sexual assault if the victim is a child and the person is in a position of trust or authority over the victim); Miss. Code Ann. § 97-3-95 (1998) (defendant holds a position of trust or authority over a child); State v. Marcum, 61 Wash.App. 611, 811 P.2d 963, 965 (1991) (holding in a child molestation case that a position of trust and a position of authority are not the same thing). Accordingly, we hold that Tennessee Code Annotated section 39-13-527 (2003) was not intended to apply to the physician/patient relationship.
We are also satisfied that the phrase " position of trust or confidence" is sufficiently self-defining that reasonable jurors would not need an additional definition. State v. Marcum, 61 Wash.App. 611, 614, 811 P.2d 963 (1991) (defining " trust" from Webster's Third New International Dictionary). Although there is some case law describing the application of abuse of trust to various factual scenarios, there is no case law defining it as a technical legal standard as exists for the terms " deliberate cruelty" and " particular vulnerability" implicated in Gordon.
(Italics ours.) See also State v. Marcum, 61 Wn. App. 611, 612, 811 P.2d 963 (1991). The Supreme Court's holding in Grewe supports the trial court's imposition of an exceptional sentence in the instant case.