Opinion
Nos. 22909-2-III; 23230-1-III.
September 27, 2007.
Appeal from a judgment of the Superior Court for Okanogan County, No. 03-1-00140-4, Jack Burchard, J., entered March 22, 2004, together with a petition for relief from personal restraint.
Judgment reversed and petition granted by unpublished opinion per Kulik, J., concurred in by Schultheis, A.C.J., and Stephens, J.
A jury convicted Elmer Van Tachell, Jr. of first degree rape of a child. J.H. is Mr. Tachell's niece. J.H. testified that when she was nine years old, she was watching a movie at her uncle's house and she went to the bathroom. When she came back, she forgot to zip up her pants. She was not wearing underwear that day and, when she sat on her uncle's lap, he "touched [her] crotch." Mr. Tachell challenges the sufficiency of the evidence on appeal. At least slight penetration is a required element of first degree rape. Because the testimony contains no evidence of penetration, we reverse.
Report of Proceedings (RP) (Dec. 12, 2003) at 30.
FACTS
J.H. testified that she was born on October 17, 1991. In late spring or summer of 2000, she walked alone to her uncle's — Mr. Tachell's — house. J.H. and Mr. Tachell were watching a movie together when J.H. got up to go to the bathroom. When she came back, she forgot to zip up her zipper. J.H. said she was not wearing underwear because she had not done her laundry. J.H. sat on Mr. Tachell's lap and started watching the movie again when Mr. Tachell "touched [her] crotch." RP (Dec. 12, 2003) at 30.
J.H. tried to get up, but was pushed back down on the couch by Mr. Tachell. She got up and, as she was leaving, Mr. Tachell said something threatening that made J.H. feel very scared. J.H. ran to a friend's house immediately after the incident, but did not tell her mother until two years later when she learned about good touches and bad touches in school. After the incident, J.H. did not visit Mr. Tachell's house anymore. J.H. also testified she knew of her sister's prior sexual abuse.
Detective William Evans interviewed J.H. about the incident. J.H. was able to distinguish between a truth and a lie, as well as between fantasy and reality. When Detective Evans asked J.H. to indicate on a diagram where Mr. Tachell had touched her, she marked the area of the vagina. Detective Evans reported that J.H. cried while disclosing the incident to him.
Mr. Tachell testified that he did not touch his niece. Mr. Tachell said that J.H. stopped coming to his house because he was angry with her when he caught her trying to steal money from him. A few weeks later, Mr. Tachell said J.H. came over and asked him to fix her bike, but he refused. After that, she did not come back.
Sandra Ramirez, J.H.'s mother, and J.H. denied that J.H. took any money from Mr. Tachell.
A jury convicted Mr. Tachell of first degree rape of a child.
ANALYSIS
Mr. Tachell contends there was insufficient evidence to support his conviction. When evaluating the sufficiency of the evidence, the court must determine whether, when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. The reviewing court determines whether the evidence presented at trial established guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). "Credibility determinations are for the trier of fact and cannot be reviewed on appeal." State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Rape of a child in the first degree requires that the perpetrator have sexual intercourse with a person who is less than 12 years old, is not married to the perpetrator, and who is at least 24 months younger than the perpetrator. RCW 9A.44.073. "Sexual intercourse" means "any penetration of the vagina or anus however slight, by an object" when one person penetrates another. RCW 9A.44.010(1)(b). The term "vagina" encompasses all the components of the female sexual organ; penetration into a female's labia is considered sexual intercourse for the purposes of the rape statute. State v. Montgomery, 95 Wn. App. 192, 200, 974 P.2d 904, review denied, 139 Wn.2d 1006 (1999).
The only issue here is whether there was sufficient evidence that sexual intercourse occurred. There were no allegations of oral-genital or oral-anal contact, so the inquiry is whether there was penetration. J.H. said Mr. Tachell "touched [her] crotch." RP (Dec 12, 2003) at 30. J.H. did not testify that Mr. Tachell penetrated her, even slightly.
The definition of sexual intercourse requires only slight penetration. RCW 9A.44.010(1). All inferences that can be drawn from the evidence must be drawn in favor of the State. See Green, 94 Wn.2d at 221. Even so, the State must prove each and every element of the alleged crime beyond a reasonable doubt. And here, there were no lesser-included offenses charged nor was the jury instructed on any lesser-included offense. Because there was no evidence of penetration to support the conviction of first degree rape of a child, we reverse and the personal restraint petition is granted.
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., Stephens, J., Concur