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State v. Messiah

December 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
BASHIR MESSIAH, B.D. 03-06-78, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-8-07866-8. Date filed: 04/01/96.

PER CURIAM. -- Bashir Messiah appeals his juvenile convictions for residential burglary and fourth degree assault with sexual motivation. He contends the trial court exceeded its authority in finding sexual motivation under the adult sexual motivation statute. He also challenges the sufficiency of the evidence supporting the sexual motivation finding and the residential burglary conviction. Finally, he challenges the adequacy of the sexual motivation finding.

Because the court had authority to enter the sexual motivation finding under the juvenile sexual motivation statute, the sexual motivation findings and the residential burglary conviction are supported by sufficient evidence, and the challenge to the adequacy of the sexual motivation finding need not be addressed, we affirm.

FACTS

The State charged Messiah with one count of residential burglary and one count of assault with sexual motivation. During trial, the State moved to amend the information because the assault count recited the wrong date of offense. The court granted the motion "as to simply changing the date to conform with the appropriate date of the allegations...." No mention was made of the fact that the amended information omitted the juvenile sexual motivation statute cited in the original information and instead cited the equivalent adult statute.

The testimony of the State's witnesses established that on September 4, 1994, Som Kong was staying at the residence of her friend Karina Nash. The girls had invited Messiah to pick them up at 8 p.m. for a party. At 2:30 a.m., Nash heard a knock at the door. When she opened it, she saw Messiah and three other boys. Nash told them they could not come in, but the boys pushed the door open and walked past her. Nash continued to ask them to leave.

The boys proceeded to the bedroom where Som Kong was sleeping. Messiah laid down on the bed next to Kong, asked her if could get into bed with her, and attempted to get under the covers.

Kong testified on direct that Messiah and two of his friends began going through the drawers in Nash's bedroom, and that Messiah was looking in the same dresser that $87 was taken from. On cross examination, she testified that she did not see Messiah going through the drawers, but did see him looking in one of them. The other boys were going through drawers on the other side of the bedroom from where the money was located.

Later, Messiah walked up behind Kong, put his arms around her, and grabbed the sides of her breasts as he lifted her off the ground. Kong was startled and screamed. Messiah then said, "You know you like it."

Messiah testified and denied taking any money. He admitted leaning back on Kong's bed but denied trying to get under the covers. He also admitted surprising her with a "playful hug." He did not recall her screaming and denied making any comment like "You know you like it."

The juvenile court found Messiah guilty on both counts as charged in the information. This appeal followed.

DECISION

Messiah first contends his conviction for assault with sexual motivation must be dismissed because the trial court found him guilty "as charged in the information," but the information erroneously charged him under the adult sexual motivation statute, RCW 9.94A.127. This contention fails for several reasons.

First, the original information correctly cited the juvenile sexual motivation statute, RCW 13.40.135. The court approved an amendment to that information only for the purpose of changing the date of the offense. Accordingly, the original citation to the correct statute was never amended. *fn1 Second, even assuming the trial court consciously proceeded under the adult sexual motivation statute, this court can uphold the court's decision under the virtually identical juvenile statute. Contrary to Messiah's assertions, a trial court's mistake as to the source of its authority does not deprive the court of authority to act so long as such authority exists. See State v. Halsen, 111 Wash. 2d 121, 757 P.2d 531 (1988)(upholding restitution order under different statute); State ex rel. Eikenberry v. Frodert, Wash. App., 84 Wash. App. 20, 924 P.2d 933 (1996)(upholding judgment under different statutory subsection; court invoking the rule that appellate courts can affirm on any ground supported by the record). Thus, although the court in this case lacked authority to proceed under the adult statute, it had authority under the juvenile statute.

Messiah next contends there was insufficient evidence to support a finding, beyond a reasonable doubt, that the assault was sexually motivated. He argues that the facts are equally consistent with the Conclusion that he was engaging in ...


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