Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 94-8-00201-1. Date filed in Superior Court: 9/9/94. Superior Court Judge signing: ROBERT AUSTIN.
Author: John A. Schultheis, Concurring: Dennis J. Sweeney & Philip J. Thompson
SCHULTHEIS, J. --In February 1994 Christopher Parker was charged by information with fourth degree assault
with a special allegation of sexual motivation for touching the breast of a female classmate. A juvenile court commissioner found him guilty as charged, and he appeals. He challenges the sufficiency of the evidence that the contact was intentional and/or for sexual gratification and the legal adequacy of the court's findings of fact. We affirm in part, reverse in part and remand for a new disposition hearing.
At the September 1994 adjudication hearing, Mr. Parker's classmate S.H. gave her version of the incident. Both students were in their ninth grade pre-algebra class on December 3, 1993. She was sitting at her desk with her arms resting on the desk; he was sitting at his desk to her left. The class was noisy, and she was not paying attention to what he was doing. She suddenly felt him touch the underside of her left breast: "it wasn't a grab -- it was just like a push on my left breast." S.H. turned and punched Mr. Parker in the arm. She was caught in the act by the teacher, who told her "that was uncalled for" and to get down to the office. She stood up to confront the teacher, and felt Mr. Parker touch her left arm, which was at her side. Thinking he was trying to touch her breast again, she slapped him in the face. Addressing the teacher, S.H. demanded, "Did you see what he did?" The teacher responded "No, I don't care, he's your friend. Get down to the office right now."
Vice principal Jeffrey Miller testified S.H. was upset when she came to his office. She told him she had been kicked out of class for slugging Mr. Parker. When asked to explain, she said "he had reached over and put his hand on my left breast in class, and so I stood up and slugged him."
Mr. Parker testified. He agreed the class was noisy. He was sitting to the left of S.H. She had her arms resting on her desk, "like she was kind of leaning forward but kind of not, but they was on her desk. . . ." He explained he had pushed his chair back from his desk, and was leaning
backwards with the front chair legs off the floor and his feet up on the desk edge at the book slot, when he lost his balance. He reached his arms out to catch himself on something and evidently caught himself on her breast. He said he did not know where he had touched her, but he thought he had grabbed her shoulder. Stopped from falling, he pushed himself forward and the chair came down on all four legs. Then she slapped him, and was yelling at the teacher and leaving the classroom, and there was nothing for him to do. He did not think he touched her arm after she stood up, but rather that she brushed against him. When Mr. Miller asked him the following week what happened, Mr. Parker said he told him he did not know he had grabbed her breast, he was just catching himself to keep from falling.
Recalled for rebuttal, Mr. Miller remembered discussing the matter with Mr. Parker. He testified the youth sort of scoffed at the whole thing initially, but eventually explained that he touched S.H.'s breast by mistake for some reason, either reaching or stretching or something, but he did not remember specifically. Mr. Miller did not recall anything about a chair leaning back or about grabbing her to keep from falling. He said Mr. Parker seemed surprised anyone was even questioning him, "it was kind of like, you know, what's the big deal? You know, it was a mistake, I didn't mean to, or I don't understand why she's so upset about this -- . . . ."
Following closing argument, the commissioner took a short recess. In her oral ruling, the commissioner stated she found Mr. Parker's story unbelievable. During the recess she had arranged chairs and tried to recreate the scenario he depicted, but concluded it was highly unlikely that he would have contacted only the underside of S.H.'s breast in a reach to keep himself from falling--he would have hit an arm or a shoulder--and that under the circumstances the contact could only have been intentional. She found his ...