Appeal from Superior Court of King County. Docket No: 93-1-08047-2. Date filed: 06/27/94. Judge signing: Hon. Leroy McCullough.
Petition for Review Denied February 6, 1997,
Authored by C. Kenneth Grosse. Concurring: Faye C. Kennedy, Ronald E. Cox. WE Concur
The opinion of the court was delivered by: Grosse
Grosse, J. -- LaRue appeals his conviction of one count of second degree child molestation and one count of sexual exploitation of a minor.
He claims the police lacked probable cause to arrest him and the trial court erred by failing to suppress his post-arrest statements. We agree and reverse the child molestation conviction, remanding for a new trial.
LaRue also claims the trial court erred by not instructing the jury that it is a defense to sexual exploitation of a minor that the defendant made a bona fide attempt to ascertain the minor's age. We disagree and affirm the sexual exploitation of a minor conviction.
For incidents involving 13-year-old D.F., the State charged LaRue by information with two counts of second degree child rape and one count of second degree child molestation. For incidents involving another minor, 15-year-old J.M., the State charged LaRue with third degree child rape and sexual exploitation of a minor. In April 1994, the jury convicted LaRue for the second degree child molestation of D.F., RCW 9A.44.086, and for the sexual exploitation of J.M., RCW 9.68A.040(1)(a), (b). The jury acquitted him on the charges of child rape. The trial court sentenced him to a standard range sentence on both counts, along with an order for 24 months of community placement. LaRue appeals.
On November 30, 1993, Seattle police officer Michael Thomas received a radio report of a possible rape in progress and responded rapidly. The caller, Michael E. Honey, was waiting for the police by the door to his residence. At trial, Officer Thomas testified regarding what Honey told him when he arrived: "He [Honey] stated that there was a possible rape in progress upstairs. There is a thirteen year old who has been staying up there about four or five days. There was screaming up there and it sounded like she might be being raped." Honey told the police officers that he lived there and directed them up the stairs to his roommate's bedroom.
Officer Thomas ran up the stairs to the room, his gun drawn. As he approached the room, Officer Thomas did not hear any screams or other noises.
The door was partly open and from the hallway, Officer Thomas could see D.F. and LaRue. He entered the room and saw "a young lady laying on the bed, and another individual that later was our suspect was laying on the bed also. She kind of had her head on his lap."
Both LaRue and D.F. jumped up when the officer entered the room.
Officer Thomas immediately asked them what was happening and they replied that they were tickling and wrestling each other.
Officer Thomas estimated that D.F. was between 14 and 15 years of age and that LaRue was in his late twenties. Both LaRue and D.F. were fully dressed and there were no ...