Appeal from Superior Court of King County. Docket No: 95-8-01607-5. Date filed: 07/21/95. Judge signing: Hon. Janice B. Niemi.
PER CURIAM. R.S. filed a motion for accelerated review from the judgment and order of Disposition entered following his juvenile court convictions of child molestation in the first degree and assault in the fourth degree with sexual motivation. We reverse and dismiss the sexual motivation finding and remand for resentencing.
On March 16, 1995, R.S. was charged with two counts of child molestation in the first degree. The alleged victims were his two step-sisters, R. (count 1) and L. (count 2). Shawn Smith Addeson is the victims' mother. She testified that she was married to R.S.'s father, but they had been separated for two years and are now divorced. Prior to the allegations of molestation, the two girls would spend weekends with their father and R.S. in Kent.
Eight-year-old R. testified that while she was visiting her father, R.S. touched her on her crotch and buttocks through her clothes. She stated that the touching occurred more than ten times. She also stated that R.S. had her touch his exposed penis as well. During an interview at the prosecutor's office, R. disclosed that R.S. had laid on top of her and moved up and down on approximately ten occasions, that he exposed himself twice, had her touch his penis and that it was hard. R.S. warned R. to not tell about the incidents. In an interview with a defense investigator, R. stated that R.S. did "nasty stuff" when he was on top of her and that she told him to stop. She also told the investigator that R.S. said he would kill her and her sister.
L. testified that R.S. touched her on her chest and buttocks over her underwear while she was changing into her pajamas. In an interview at the prosecutor's office she stated that R.S. had gotten on top of her and that he had felt her "bottom and private" over her clothes when she was seven. L. made similar disclosures to her school principal in October 1994.
R.S. was found guilty of molesting R. as charged in count 1. The court acquitted R.S. of molesting L. as charged in count 2 on the ground that the State had failed to prove beyond a reasonable doubt that the touching was for sexual gratification. Instead, the court convicted R.S. of the "lesser included" offense of assault in the fourth degree with sexual motivation. At the Disposition hearing, the court found manifest inJustice and imposed 50 weeks confinement on each count for a total of 100 weeks. R.S. filed a motion for accelerated review. A commissioner granted the motion and referred the case for accelerated Disposition pursuant to RAP 18.12.
Issue 1. Conviction of the Lesser Included Offense. RCW 10.61.003 and .006 provide that a defendant can only be convicted of the offense charged, a crime of an inferior degree, or a lesser included offense. R.S. was charged in count 2 with child molestation in the first degree, but was ultimately convicted of assault in the fourth degree with sexual motivation. R.S. argues that assault in the fourth degree is neither an offense of inferior degree nor a lesser included offense of child molestation. Therefore, R.S. contends that the trial court committed reversible error in finding him guilty of the uncharged offense of assault in the fourth degree. This contention fails.
Although child molestation is an offense that consists of different degrees, assault in the fourth degree is undisputedly not an inferior degree offense of child molestation in the first degree. RCW 10.61.003. Rather, the question is whether assault in the fourth degree is a lesser included offense of child molestation in the first degree. We need not reach the issue.
It is well established that counsel may not set up an error at trial and then complain of it on appeal. In re K.R., 128 Wash. 2d 129, 147, 904 P.2d 1132 (1995). Courts will deem an error waived "if the party asserting such error materially contributed thereto." In re K.R., at 147. In closing, R.S.'s counsel argued for acquittal on the child molestation charges. He added that:
There are lesser included offenses which I think probably better fit, if the Court is even [sic] to find these girls credible, I
believe better fit exactly what happened here. I think Assault in the Fourth Degree with Sexual Motivation certainly is one of them.
R.S.'s counsel expressly suggested that the court find R.S. guilty of assault with sexual motivation as a lesser included offense. If the trial court had misperceived the meaning of the suggestion, counsel made no attempt to correct the misperception when the court rendered its oral decision. Because R.S.'s counsel materially contributed to the alleged error, the error was invited and, therefore, waived. In re K.R., at 47; State v. Armstrong, 69 Wash. App. 430, 435, 848 P.2d 1322, review denied, 122 Wash. 2d 1005, 859 P.2d 602 (1993).
Issue 2. The Sexual Motivation Allegation. The trial court acquitted R.S. of child molestation in the first degree as alleged in count 2 on the ground that the State had failed to prove beyond a reasonable doubt that R.S. touched L. for purposes of sexual gratification. Nonetheless, the court found R.S. guilty of assault in the fourth degree with sexual motivation. R.S. argues on appeal that the sexual motivation allegation should be dismissed with prejudice because the trial court's determination that the State failed to prove sexual gratification precludes a finding of sexual motivation. In its apparent concession of error, the State responds simply that "without ...