Opinion
No. 25606-5-III.
December 27, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-00044-1, Craig J. Matheson, J., entered October 18, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kulik, J.
Kam Mills appeals his convictions for first and second degree child molestation, contending no evidence supports his convictions, error in failing to appoint new counsel before sentencing, and error in calculating his offender score. Mr. Mills, pro se, adds several additional grounds for review. We agree that a foreign conviction was not comparable to third degree rape in Washington, reverse the sentence, and remand for resentencing. We reject all other contentions, and affirm Mr. Mills' convictions.
FACTS
In July 2005, Mr. Mills drove his nieces 11-year-old S.K. and 12-year-old K.D. from Nevada to Washington to visit their grandmother at the grandmother's home where Mr. Mills also resided. S.K. and K.D. live with their mothers, Karen Breed (S.K.'s mother) and Susan Braunworth (K.D.'s mother), in Nevada. Separate incidents are at issue.
According to S.K., while at her grandmother's house, Mr. Mills asked her if she would like a massage. He took her to his bedroom, closed the door, and told her to lie face down on his bed. She testified he gave her a massage and "touched [her] everywhere from the neck down, except for the front of — [her] lower body." Report of Proceedings (RP) at 28. She testified he pulled her shorts and underwear down around her knees and massaged her "rear." RP at 31. He massaged her shoulders, arms, lower back, the front and back of her thighs, her toes, her stomach and midriff area, and touched her breasts. He used lotion the entire time, and partly used a mechanical massager. She testified the massage lasted between 15 minutes and a half an hour.
According to K.D., while at her grandmother's house, Mr. Mills asked her if she wanted a massage. They went to his bedroom, she took her shirt off at his request, and she laid down on his bed. She testified he rubbed her "whole body except [her] crotch because [she] wiggled because [she's] ticklish." RP at 52. He rubbed her breast area, the back of her body, "'the back and front of [her] legs and the back area of [her] bottom,'" using lotion the entire time. RP at 62.
Following the incident, S.K. immediately called her mother from a friend's home. Ms. Breed and Ms. Braunworth drove to Washington to pick up the girls.
The State charged Mr. Mills with first and second degree child molestation based on the children's ages. The information listed Mr. Mills' date of birth as "09/03/1958." Clerk's Papers (CP) at 60. A jury found Mr. Mills guilty on both counts.
More than one month after the jury verdict, Mr. Mills moved, pro se, for appointment of a new counsel at sentencing based on ineffectiveness. Mr. Mills argued his motion on the day of sentencing and orally moved for an acquittal, alleging the failure to show a prima facie case. The court denied Mr. Mills' motions, partly stating: "it appears to me that the State is making a minimum recommendation. . . . And so I'm not going to remove counsel. . . . You can make your own statement at sentencing if you wish, but I'm not going [to] delay sentencing further." RP at 108.
Then, Mr. Mills requested continued assistance from his trial counsel. The court's presentence investigation report showed Mr. Mills had a prior Michigan conviction for first degree criminal sexual conduct. The presentence report noted a Michigan conviction for first degree criminal sexual conduct: "Mr. Mills climbed through a window at his mother-in-law's residence to confront his wife[,]" they discussed their marital problems, and "Mr. Mills then forced his wife into the bedroom where he raped her. The victim did not resist out of fear of being beaten." CP at 71.
The State successfully urged that Mr. Mills' Michigan conviction be comparable to third degree rape in Washington. Defense counsel did not object. Calculating Mr. Mills' score at six, the court sentenced him to 98 months to life for first degree child molestation and 57 months for second degree child molestation. Mr. Mills appealed.
ANALYSIS A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Mills' convictions. Mr. Mills contends the State failed to prove elements of the crime, specifically that he was not married to either S.K. or K.D. or that he was at least 36 months older than both girls.
We review evidence sufficiency challenges in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We accept the State's evidence as true and view all reasonable inferences in favor of the State. Id. Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact in matters of witness credibility and evidence weight. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). We will affirm if the trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201.
A person is guilty of first degree child molestation if the person has "sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." RCW 9A.44.083(1). A person is guilty of second degree child molestation if the person has "sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." RCW 9A.44.086(1). "'Sexual contact' means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party." RCW 9A.44.010(2).
Circumstantial evidence "consists of proof of facts or circumstances which, according to common experience permit a reasonable inference that other facts existed or did not exist." CP at 41. Circumstantial evidence supports Mr. Mills' convictions.
First, circumstantially, neither S.K. nor K.D. were married to Mr. Mills. S.K. was 11 and K.D. was 12 years old; they were Mr. Mills' nieces by blood relationship; they resided with their mothers in a separate state; and neither girl used Mr. Mills' last name. See State v. May, 59 Wash. 414, 415, 109 P. 1026 (1910) (circumstantial evidence is sufficient to determine marital status).
Second, circumstantially, Mr. Mills was at least 36 months older than both girls. The testimony shows Mr. Mills drove S.K. and K.D. from Nevada to Washington, showing he was at least 15 or 16 years old. Although Mr. Mills did not testify, he was seen by the jury, allowing them to observe his physical appearance. Because of the wide age difference, Mr. Mills cannot reasonably argue jury confusion about his being at least 36 months older than both girls. See State v. Roth, 131 Wn. App. 536, 562, 128 P.3d 114 (2006) (circumstantial evidence is sufficient to determine age).
B. New Attorney Request
The issue is whether the trial court abused its discretion in denying Mr. Mills' post-verdict, pro se, motion for new counsel at sentencing.
We review a trial court's denial of a motion for new counsel for abuse of discretion. State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004). "When reviewing a trial court's refusal to appoint new counsel, [this court] consider[s] '(1) the extent of the conflict, (2) the adequacy of the [trial court's] inquiry, and (3) the timeliness of the motion.'" State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80, cert. denied, 127 S. Ct. 559, 166 L. Ed. 2d 415 (2006) (quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001)). Generally, "'where the request for change of counsel comes during the trial, or on the eve of trial, the Court may, in the exercise of its sound discretion, refuse to delay the trial to obtain new counsel and therefore may reject the request.'" Stenson, 142 Wn.2d at 732 (quoting United States v. Williams, 594 F.2d 1258, 1260-61 (9th Cir. 1979)). But, the timeliness rule does not apply to a timely filed post-verdict motion for a new trial based on ineffective assistance of counsel and appointment of new counsel to argue the motion. See Id.; State v. Young, 62 Wn. App. 895, 907-08, 802 P.2d 829, 817 P.2d 412 (1991); State v. Rosborough, 62 Wn. App. 341, 345-48, 814 P.2d 679 (1991).
Mr. Mills moved for appointment of new counsel for sentencing, arguing his current counsel was ineffective. "Kam Mills, . . . moves this Honorable Court to disqualify the present Court appointed defense counsel, . . . for ineffective assistance of counsel . . . and to appoint new defense counsel to represent defendant on sentencing, which is a critical stage of proceedings." CP at 33. Mr. Mills filed this motion more than one month after the jury verdict and just prior to sentencing, and argued his motion on the sentencing date. Mr. Mills partly argued his attorney should have objected that the State failed to prove a prima facie case, but we need not address this specific argument because his evidence sufficiency concerns have been decided unfavorably to him.
Here, the record shows the court denied Mr. Mills' motion based on untimeliness and not wanting to delay sentencing, especially in light of the fact that the State was recommending a minimum sentence. Stenson, 142 Wn.2d at 732 (citing Williams, 594 F.2d at 1260-61). Considering his failed evidence sufficiency challenge and his request to continue with his assigned counsel, we find no abuse of discretion.
C. Offender Score Calculation
The issue is whether, considering the comparability of the Michigan crime, the trial court correctly calculated Mr. Mills' offender score.
We review de novo a trial court's offender score calculation. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003).
The State argues the matter is not reviewable under RAP 2.5(a). But a defendant may challenge his offender score as contrary to law for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999); State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).
Foreign convictions may be included in a defendant's current offender score if they are legally comparable to a Washington crime. Ford, 137 Wn.2d at 479. Where a foreign statute is broader than the comparable Washington statute, the court may look at the conduct of the prior crime, as evidenced by documents including the judgment, information, or transcripts, to determine if it constitutes a Washington offense. Id. at 479-80. The State bears the burden of proving a defendant's criminal history by a preponderance of the evidence. RCW 9.94A.500, .530(2); Ford, 137 Wn.2d at 479-80.
A defendant may waive a challenge to the underlying facts of a prior foreign offense by acknowledgement. Ford, 137 Wn.2d at 482-83; Roche, 75 Wn. App. at 513 n. 9. "Acknowledgement includes not objecting to information stated in the presentence reports." RCW 9.94A.530(2). However, a defendant does not waive a challenge to the State's classification of a foreign offense as comparable to a Washington offense "absent an affirmative agreement beyond merely failing to object." Ford, 137 Wn.2d at 483; State v. Hunter, 116 Wn. App. 300, 301-02, 65 P.3d 371 (2003).
In Michigan, first degree criminal sexual conduct requires sexual penetration under specified circumstances, none of which exclude the victim from being married to the perpetrator. MCL 750.520b. Contrarily, Washington's offense for third degree rape requires "sexual intercourse with another person, not married to the perpetrator." RCW 9A.44.060(1). Thus, the facts do not satisfy the elements for third degree rape in Washington. The presentence investigation report shows Mr. Mills raped his "wife," and RCW 9A.44.060(1) requires the victim not be married to the perpetrator. CP at 71. Because the offender score improperly scores the Michigan conviction, remand for resentencing is required. Since we must reverse the sentencing and remand, we need not discuss Mr. Mills' ineffective assistance arguments at sentencing.
We note it appears that the State presented no evidence of the foreign offense, other than the statements in the presentence report, to prove Mr. Mills' foreign criminal history. The presentence investigation report states: "Mr. Mills then forced his wife into the bedroom where he raped her. The victim did not resist out of fear of being beaten." CP at 71. Nothing shows that the sexual acts were forceful or that Mr. Mills ever threatened to injure the victim.
D. Additional Grounds
1. Evidence Sufficiency: Mr. Mills contends no evidence shows he touched either S.K. or K.D. for the purpose of sexual gratification. This is a jury question. The record, however, supports that he not only touched the girls, he "massaged" them, for a purpose other than a caretaking function. State v. Ramirez, 46 Wn. App. 223, 226, 730 P.2d 98 (1986).
2. Ineffective Assistance of Counsel: Mr. Mills contends defense counsel was ineffective for several reasons, including failing to: sever the charges, bar the testimony of Ms. Braunworth, have S.K. declared incompetent, object to a sleeping juror, and object to improper prosecutor comments. Mr. Mills has not, however, shown defense counsel's actions were anything other than tactical in support of the trial strategy. No severance grounds are shown. Ms. Braunworth's testimony appears relevant. Nothing suggests S.K.'s incompetency. The record does not show any juror was sleeping, or that the prosecutor provided prejudicial comments. Finally, the evidence sufficiency challenges underlying Mr. Mills'"directed verdict" have been resolved unfavorably to him.
3. Restitution: Mr. Mills contends the court erred in ordering him to pay restitution without first considering his ability to pay. Under RCW 10.01.160(3), a sentencing court is required to consider the defendant's ability to pay costs. Here, the presentence investigation report shows Mr. Mills was receiving $1,289 from his United States Army pension. And, no actual collection effort is currently before us.
Convictions affirmed. Remanded for offender score correction and sentencing.
A majority of the panel has determined 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.
SCHULTHEIS, A.C.J. and KULIK, J., concur.