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State v. Waller

September 30, 1996


Appeal from Superior Court of King County. Docket No: 95-1-00199-4. Date filed: 06/05/95. Judge signing: Hon. Linda Lau.

Petition for Review Denied February 6, 1997,

Authored by Ronald E. Cox. Concurring: C. Kenneth Grosse, Walter E. Webster

The opinion of the court was delivered by: Cox

COX, J. -- Brent Waller appeals his conviction for three counts of indecent liberties. Because the trial court's jury instructions commented on the evidence in violation of the state constitution, we reverse and remand for a new trial.

During December 1994, C baby-sat over a dozen times for Shannon Addis' nine-month-old girl, Jessica. Waller had just moved into Addis' apartment as a tenant.

At their very first meeting, Waller made C uncomfortable by "coming on to" her while she baby-sat. He told her she was beautiful and complimented her on her accent.

The second time C baby-sat, Waller asked her to bring him a beer while he was outside having a cigarette. When she came close to the doorway, he grabbed her waist and pulled her outside. He then rubbed her buttocks. She escaped his grasp and went inside. But he followed her, rubbed her back, and placed his hands under her shirt. She broke away from him, but he reached down the back of her shirt and under her arms, and touched her on what C testified was her "chest." C told him to leave her alone. But Waller knelt in front of her, reached under her shirt, and unsnapped her bra. She again moved away from him. C testified at trial that she did nothing to encourage his advances.

During the next incident, C was wearing a skirt and blouse. While C was feeding Jessica, Waller sat in a chair next to her and slid his hand underneath her skirt, touching her thigh. She pushed his hand away and told him to leave her alone. She also told him that she was too young for him and threatened to tell her parents or the authorities about his actions.

Waller replied by threatening her. He said that if she told anyone or stopped baby-sitting for Addis, C's parents would never see her again.

When C finished feeding the baby, Waller pinned her against the dining room wall, lifted up her skirt, and asked her if he could "finger" her. She refused and again told him to leave her alone. But he followed her back into the dining room and continued to slide his hand under her skirt. She continued to push him away. When she went into the kitchen, he again pinned her against the wall and forced her legs apart. Waller stopped these activities and released C only when Addis' boyfriend entered the apartment.

At their next encounter at the apartment, Waller was wearing only boxer shorts and asked C to take a shower with him. She refused and told him to leave her alone. When she later went to check on the crying baby, he pushed her into his bedroom. She escaped and went to see the baby. Waller followed her and asked her if she wanted to see his penis. She looked away.

Later, he hugged her and asked her to hug him. She did not. She escaped his grasp. When she again went to see the baby, he grabbed her chest from behind and commented on the size of her breasts. She again told him to leave her alone.

The next time Addis asked C to baby-sit, Addis told her that Waller had moved from the apartment and would not be there when C was. C went to baby-sit.

C's sister J had agreed to come to the apartment to discuss with C how they would tell their mother about the incidents with Waller. Before J arrived, Waller appeared with some boxes, apparently to remove his belongings. Waller told C that he had heard that she wanted to go out with him and that he knew she liked him. C denied both assertions. He then grabbed her crotch. When she pulled away, he pinned her to the ground and unbuttoned her jeans. When she escaped, he pinned her to the dining room wall.

At that point, J entered the apartment and asked what was happening. Waller backed away from C, went to his bedroom, picked up some boxes, and went outside toward his van. J followed, repeatedly asking Waller what was going on. After J challenged him further, he grabbed her arm, twisted it behind her back, and threatened that if she and C disclosed his behavior, nobody would see them again.

C and J reported the incidents to the police. The State charged Waller with three counts of indecent liberties (counts I-III) and one count of attempted second degree rape with indecent liberties as an alternative (count IV). These counts related to the incidents with C. The State also charged ...

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