Appeal from Superior Court of King County. Docket No: 95-1-00307-5. Date filed: 05/26/95. Judge signing: Hon. James A. Noe JR.
PER CURIAM. Chester Bryan appeals his conviction of child molestation in the first degree, alleging insufficiency of the evidence. Because there was sufficient evidence presented at his jury trial to support each and every element of the sex offense Bryan was convicted of, we affirm.
On January 14, 1995, a four-year-old girl, E.A., was sitting at a table in the children's section of the downtown Seattle Public Library when Bryan approached her carrying a hand puppet. Bryan placed the puppet in front of E.A. and used one of his hands to reach over her shoulder and grab her in the crotch area of the pants she was wearing. Bryan removed his hand only after he realized he was being watched by someone else in the library. He then moved toward the exit of the library. Bryan was detained by library security shortly thereafter. When questioned by the security guard about what had happened, Bryan made several incriminating statements. He was later arrested and charged with one count of child molestation in the first degree.
At the jury trial, the State called Robert Celebrezze, who testified that he was present at the downtown library on January 14, 1995 when he observed Bryan organizing a number of hand puppets on a table in the children's section of the library. Mr. Celebrezze testified Bryan picked up one of the puppets and moved over to a children's table where E.A. was sitting. According to Mr. Celebrezze, Bryan stood behind E.A. and showed her the puppet. He stated that Bryan, while using his left hand to manipulate the puppet, reached over E.A. with his right hand and grabbed her in the "vagina area". Mr. Celebrezze testified that Bryan had a firm grip of the clothing over E.A.'s vaginal area and that he held his hand on that area for 5 to 10 seconds. Mr. Celebrezze stated he reported the incident to a librarian. A library security officer testified he questioned Bryan about what he was doing in the children's section of the library. The security officer testified that Bryan told him it was "just like last time" and that he had "been run off from a pool in Anacortes, Washington for becoming too familiar with some young girls." E.A.'s mother testified that she did not know Bryan, that her daughter was not married to him, and that he had no caretaker responsibilities regarding E.A. The jury returned a verdict finding Bryan guilty as charged. This appeal followed.
Bryan challenges the sufficiency of the evidence to sustain his conviction of child molestation in the first degree. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Spruell, 57 Wash. App. 383, 385, 788 P.2d 21 (1990). The ultimate test is "whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Grover, 55 Wash. App. 923, 930, 780 P.2d 901 (1989), review denied, 114 Wash. 2d 1008, 790 P.2d 167 (1990).
In order to find Bryan guilty of first degree child molestation, the State was required to prove that Bryan had sexual contact with E.A., that Bryan was not married to E.A., that E.A. was under twelve years of age, and that Bryan was more than 36 months older than E.A. See RCW 9A.44.083(1). Bryan disputes whether the State proved the sexual contact element of child molestation in the first degree. "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party". RCW 9A.44.010(2).
Bryan argues the evidence is insufficient to support an inference that he touched E.A. for sexual gratification. He does not dispute that he grabbed E.A.'s crotch area through her clothing. But because the touching occurred on the outside of her clothing and he did not rub or manipulate the area he touched, Bryan argues the evidence is insufficient to prove beyond a reasonable doubt that he touched E.A. for the purpose of gratifying his sexual desires.
Bryan relies primarily on State v. Powell *fn1, in which the defendant was convicted of first degree child molestation for having hugged a 10-year-old girl about the chest while she was seated on his lap and having touched her bottom while lifting her off his lap. On appeal, the defendant argued there was no evidence that he touched the young girl for purposes of sexual gratification. The appellate court agreed, holding that the defendant's purpose in touching the girl was too equivocal to establish that it was done for sexual gratification. In reaching this Conclusion, the court in Powell noted that the alleged offensive touchings were all susceptible to innocent explanation.
Bryan points out that the Powell court held that some additional evidence of sexual gratification is necessary to establish the sexual character of the contact where the evidence merely shows touching through clothing, or touching of intimate parts of the body other than sexual areas. *fn2 His reliance on this holding in Powell is, however, misplaced. The obvious purpose of the requirement of additional evidence is to ensure that inadvertent or otherwise innocent touchings cannot possibly serve as the sole basis for establishing the sexual contact element of child molestation.
Here, unlike in Powell, the only conceivable reason Bryan touched E.A. was for sexual gratification. While Bryan may not have manipulated his hand during the time he grasped the clothing over E.A.'s genitalia, there is simply no innocent explanation for the deliberate and offensive contact. Circumstantial evidence surrounding the touching may be considered in determining whether the contact was done for the purpose of sexual gratification. *fn3 Because the requirement of sexual contact is defined in terms of whether the touching was done for purposes of sexual gratification, the sexual nature of the contact may ultimately depend upon not only the sexual or intimate area of the body touched but the duration of the contact as well. *fn4 The record here shows that Bryan used a hand puppet to distract E.A. while he reached over her shoulder and put his hand on her vaginal area. The touching was neither inadvertent nor fleeting. The touching lasted for five to ten seconds. The record further shows that Bryan released his grip only after realizing that someone was watching him. When this evidence is viewed together with Bryan's statements to the security officer, the sexual character of the encounter is unmistakable. The type of touching that occurred here is simply not susceptible to innocent explanation. Thus, sufficient evidence was presented to sustain Bryan's conviction of first degree child molestation.