Opinion
42167-4-II
02-20-2013
STATE OF WASHINGTON, Respondent, v. SPENSER JAMES PLUEARD, Appellant
UNPUBLISHED OPINION
Hunt, P.J.
Spenser James Plueard appeals two stipulated facts bench trial convictions for first degree child molestation of his two half sisters, MKM and CLM. Plueard argues that the trial court erred (1) in finding that he had capacity to commit these crimes when he was younger than 12 years old; and (2) in concluding that, even if he lacked the capacity to commit these crimes, evidence of his sexual contact with MKM before he was 12 was admissible under ER 404(b) to show his lustful disposition toward both victims. Holding that the evidence supports the trial court's determination that Plueard had capacity to commit these crimes, we affirm. Accordingly, we do not reach the ER 404(b) lustful disposition issue.
To protect their privacy, we use the juvenile victims' initials.
FACTS
I. Child Molestation
Spenser James Plueard was born in November 1988. He lived with his grandparents and in foster care while his mother was in prison. In approximately 1998 or 1999, when Plueard was around 10 years old, his mother regained custody of him, and he moved in with her, his stepfather, and his two half sisters, MKM and CLM.
Shortly after moving in with his half sisters, Plueard developed a "sexual attraction" for MKM, which he thought she also shared. Clerk's Papers (CP) at 56. When he was 10 years old and MKM was 5, he started going into her bedroom at night, touching her body, and telling her that it was "normal." CP at 54.
Plueard also touched his other half sister, CLM, beginning in 2000 or 2001 on multiple occasions, when he was around 11 ½ or 12 ½ years old and CLM was 8 or 9. Plueard also touched her vagina on two occasions when they were driving in a car. This sexual contact occurred two or three times a week for a year. CLM eventually told Plueard that she would tell on him, and he stopped touching her.
Later that year, in 2001, when Plueard was 13 years old, his mother called Child Protective Services (CPS) and reported that he had touched MKM's "privates." CP at 54. CPS dismissed the charges against Plueard as a "you show me yours, I'll show you mine" situation. CP at 54. Plueard attended counseling after this incident. Despite this counseling, Plueard continued to touch MKM in a sexual manner, which grew more intense over time.
On a weekly basis between 2001 and 2007, when Plueard was 13 to 19 years old, he touched MKM's bare vagina with his hand and with his penis, and he began having sexual intercourse with her when they were alone in her bedroom. Plueard repeatedly threatened MKM not to tell anyone about their sexual contact because "CPS would take her away" and "no one would believe her." CP at 52. He once became so angry at MKM for threatening to tell on him that he hit her in the face. Plueard last had sexual contact with MKM in 2007, when he was around 19 years old.
In 2010, when MKM went to the doctor for a yeast infection, she became very upset and did not want to the doctor to examine her vagina. When her mother asked what was wrong, MKM disclosed that Plueard's sexual contact had continued after 2001 and the counseling. When MKM's mother confronted Plueard about the sexual contact, he denied it.
II. Investigation
Law enforcement and CPS were again contacted, and MKM and CLM underwent child forensic interviews. After viewing a video recording of MKM's forensic interview, the police determined that they had probable cause to arrest Plueard, drove to his home, handcuffed him, and placed him under arrest for child rape. The police read Plueard his Miranda rights, which he acknowledged he understood; he signed a written waiver and agreed to speak with the police. Plueard admitted several incidents of "touching" or "fondling" MKM before he was 12 years old; but he denied having sexual intercourse with her, and he denied touching CLM at all. CP at 56.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 694 (1966).
Plueard initially told the police that he had touched MKM "one time" when he was 10 years old and she was 5. CP at 56. He explained that (1) he had never had a "birds and the bees talk" before he went to live with his mother at age 10; (2) he had developed a "sexual attraction" for MKM that he thought was mutual; (3) he had fondled MKM's genitals and she had fondled his, but the sexual contact did not progress any further; (4) he had gone to counseling after this first touching incident; and (5) he knew his conduct was wrong but he thought that he had "put it behind him." CP at 56.
Plueard eventually admitted that there may have been "more than one" touching incident. CP at 56. He specifically recalled one incident during which he had gone into MKM's bedroom at night when he had believed no one else was present. According to Plueard, he and MKM had talked for a while; eventually, MKM had pulled down her pants and they had started fondling each other. Plueard had unzipped his zipper, pulled out his penis, and touched the outside of her vagina with his hand; but he denied having stuck his finger or his penis inside her vagina. When the police asked why he had stopped before penetration, Plueard replied that he remembered thinking at the time that their sexual contact was "wrong" but that it was like the song lyrics, "[T]his is so wrong, but it feels so right." CP at 56 (emphasis added). Plueard also explained that he had shown MKM "sexual positions" when they were fully clothed and admitted that he might have rubbed his penis against her vagina "once or twice." CP at 57.
Plueard continued to deny having had sexual intercourse with MKM because he had a "mental block," which prevented him from going that far. CP at 57. He estimated that he had fondled MKM "once a week" for "six months" when he was around 10 years old and she was 5. CP at 57. He was adamant, however, that none of their sexual contact continued after he was 11 years old because he was "very afraid of his stepfather" after the "first incident came to light." CP at 56. Although Plueard did not specifically recall admonishing MKM not to tell their parents about their sexual contact, he stated that "it wouldn't surprise him" if he had told her this because he knew their parents would "get mad." CP at 56. He denied threatening MKM that CPS would take her away if she told anyone about their sexual contact.
Plueard stated that, if he had told MKM not to tell their parents about their sexual contact, it would have been more akin to "don't tell Mom or Dad because they will get mad," not "don't tell them or I am going to hurt you" admonishment. CP at 56.
A couple weeks after his arrest, Plueard's jail cell mate notified police that Plueard had bragged about having touched or penetrated MKM's "monkey" (vagina) since 2003 or 2004, when he was around 15 or 16 years old. CP at 62. According to his cellmate, Plueard admitted having fondled MKM's breasts, sticking his finger in her vagina, and having sexual intercourse with her "three times." CP at 62.
III. Procedure
On September 13, 2010, the State charged Pleuard with two counts of ongoing sexual misconduct involving his two half sisters: (1) second degree rape of a child, committed between January 1, 2006, and December 31, 2007, based on his sexual contact with MKM, Count I; and (2) first degree child molestation, committed between May 21, 2000, and May 21, 2002, based on his sexual contact with CLM, Count II.
The State also charged Plueard with one count of conspiracy to commit witness intimidation based on conduct after he turned 18. This charge was based on Plueard's adult conduct and is not at issue in this appeal.
Before trial, Plueard moved (1) to exclude any charges against him that had occurred before November 14, 2000, when he turned 12 years old, on grounds that he had lacked capacity to commit such crimes; and (2) to suppress the statements he had made to the police about sexual acts committed before age 12 because these statements related to conduct that had occurred before he had capacity to commit a crime and, thus, were irrelevant.
Based on a police interview summary of portions of MKM's forensic interview and Plueard's videotaped police interrogation, the trial court (1) found that Plueard had capacity to commit the crimes charged before age 12, based largely on Plueard's own admissions during his police interrogation that he had understood the nature of his sexual urges and that he had known his sexual contact with MKM was wrong at the time that he committed it; and (2) concluded that even if Plueard lacked capacity to commit a crime before he was 12 years old, the evidence of his sexual contact with MKM before age 12 was admissible under ER 404(b) to show his "lustful disposition" toward both MKM and CLM. CP at 37. The trial court issued a memorandum opinion denying Plueard's motion to exclude his statements.
The State amended its information, dropping Plueard's second degree child rape charge and charging him instead with two counts of first degree child molestation committed against CLM and MKM, respectively. Both counts included a charging period when Plueard was under 12 years old: Count I was based on Plueard's sexual contact with CLM between May 21, 2000, and May 20, 2002, when Plueard was between 11 ½ and 13 ½ years old. Count II was based on Plueard's sexual contact with MKM between December 6, 1999, and December 5, 2005, when Plueard was between 11 and 17 years old.
The State's second amended information also charged Plueard with one count of conspiracy to commit witness intimidation. This charge was based on Plueard's adult conduct and is not at issue in this appeal.
The case proceeded to a bench trial based on stipulated facts. The trial court found Plueard guilty of both counts. Plueard appeals.
ANALYSIS
Plueard argues that the trial court erred in finding that he had capacity to commit the charged crimes because the State failed to overcome the presumption that he was incapable of committing these crimes during the charged period before he turned 12 years old. We hold that the evidence was sufficient to support the trial court's capacity finding.
Accordingly, we do not reach Plueard's second argument, contingent on our holding that he lacked the capacity to commit the charged crimes-evidence of his sexual contact with MKM before he was 12 was inadmissible under ER 404(b) to show his lustful disposition toward both victims.
I. Standard of Review
When the superior court finds capacity under RCW 9A.04.050, we review the record to determine whether there is substantial evidence establishing that the State met its burden of overcoming the statutory presumption that children under 12 years of age are incapable of committing a crime. State v. Ramer, 151 Wn.2d 106, 112-13, 86 P.3d 132 (2004). In order to overcome the presumption of incapacity, the State must provide clear and convincing evidence that the child had sufficient capacity both to understand the act and to know that it was wrong. Ramer, 151 Wn.2d at 114.
RCW 9A.04.050 provides, in part:
A capacity determination is fact-specific, and the trial court must make the determination in reference to the specific act charged. Ramer, 151 Wn.2d at 114. Washington courts have held that the State carries a greater burden of proving capacity when a juvenile is charged with a sex crime and that it must present a higher level of proof that the child understood the illegality of his act. Ramer, 151 Wn.2d at 115. Nevertheless, the State need not prove that the child understood the act's legal consequences-that the act would be punishable under the law. Ramer, 151 Wn.2d at 114. Instead, the focus is on "'whether the child appreciated the quality of his . . . acts at the time the act was committed.'" Ramer, 151 Wn.2d at 114 (quoting State v. T.E.H., 91 Wn.App. 908, 913, 960 P.2d 441 (1998)).
The Washington Supreme Court has identified seven factors a trial court may consider in determining whether a child knew his act was wrong: (1) the nature of the crime, (2) the child's age and maturity, (3) whether the child showed a desire for secrecy, (4) whether the child admonished his victim not to tell, (5) prior conduct similar to that charged, (6) any consequences that attached to the conduct, and (7) acknowledgment that the behavior was wrong. Ramer, 151 Wn.2d at 114 (citing State v. J.P.S., 135 Wn.2d 34, 38-39, 954 P.2d 894 (1998)). Expert testimony and testimony from adults acquainted with the child are relevant to this inquiry. J.P.S., 135 Wn.2d at 39. But a child's acknowledgement that he understood his act was wrong after-the-fact is insufficient, by itself, to overcome his presumed incapacity by clear and convincing evidence. J.P.S., 135 Wn.2d at 44.
II. Trial Court's Capacity Finding
The trial court did not hold a typical capacity hearing with sworn witnesses. Rather, it relied on a police interview summary prepared ten years after the charged acts first occurred; this summary discussed portions of MKM's forensic interview and Plueard's police interrogation. Attached to this summary was a DVD recording of Plueard's interview. This police interview summary supports the trial court's findings that Plueard understood his sexual acts and that they were wrong at the time he committed them, including during the charged period's beginning before he turned 12.
The State needed to prove by clear and convincing evidence that before age 12 Plueard understood that the specific acts underlying the child molestation charges constituted "'sexual contact,'" which is statutorily defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." RCW 9A.44.010(2) (emphasis added); State v. Erika D.W., 85 Wn.App. 601, 606, 934 P.2d 704 (1997). During his police interrogation, Plueard admitted that, before he was 12 years old, he had engaged in extensive conversations about sex with MKM, he had shown her "sexual positions," and he had believed that they had shared a "sexual attraction" for each other. CP at 27-28. Unlike the juvenile charged in Erika D.W., Plueard's admissions demonstrated that before age 12 he understood that he could touch another child to gratify his or the other child's sexual desire. Erika D.W., 85 Wn.App. at 606. Based on these admissions, we hold that substantial evidence supports the trial court's finding that Plueard understood his sexual acts.
Although the legislature has amended this statute since the date of Plueard's crimes, the amendments do not affect this statutory provision.
Similarly, substantial evidence supports the trial court's determination that Plueard understood his acts were wrong before age 12. Plueard began living with his mother when he was 10 years old, shortly before he started fondling MKM. His admissions during the police interview summary provided evidence of his knowledge that this sexual contact was wrong and support the following Ramer factors: (1) Plueard fondled MKM when he was around 10 or 11 years old, close to the age of 12, when capacity is presumed; (2) he admitted fondling MKM late one evening when he believed no one else was around, suggesting his desire for secrecy; (3) he stated that although he could not remember whether he had threatened MKM not to tell their parents, it "wouldn't surprise him" if he had because he knew his parents would "get mad"; and (4) he spontaneously described having thought while fondling MKM several years earlier that his sexual contact with her was like the song lyrics, "[T]his is so wrong, but it feels so right." CP at 27 (emphasis added).
Plueard's thinking "this is so wrong, but it feels so right" differs from the "after-the-fact" acknowledgement that the Washington Supreme Court held insufficient to show that a child knew his act was wrong in J.P.S., 135 Wn.2d at 44. JPS, a child with cognitive disabilities, admitted, "'I know it was bad and I feel really guilty about it,'" only after he was interrogated by the police three times over a month-long period and was shunned by his neighbors and classmates. J.P.S., 135 Wn.2d at 39-40, 44. The Supreme Court held that this admission alone was insufficient to overcome the presumption of incapacity by clear and convincing evidence because it was not particularly probative of what JPS knew at the time of his conduct. J.P.S., 135 Wn.2d at 44. In contrast, Plueard's statement provided insight into what he was thinking as he was engaging in sexual contact with MKM, namely that it was "wrong" but it felt "right" to him.
We hold, therefore, that substantial evidence supports (1) the trial court's finding that Plueard knew his sexual contact was wrong when he committed his sexual acts before age 12, and (2) its conclusion that Plueard had capacity to commit the charged child molestation crimes before he turned 12 years old. We affirm.
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 in accordance with RCW 2.06.040, it is so ordered.
I concur: Van Deren, J., I concur in result only: Quinn-Brintnall, J.
Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.
The legislature amended this statute in 2011 to add gender neutral language. These amendments do not affect our resolution of the issues in this case.