Appeal from Superior Court of Snohomish County. Docket No: 95-8-01816-5. Date filed: 02/16/96.
PER CURIAM. J.O. appeals his conviction in juvenile court of burglary in the second degree. He contends that we must reverse and dismiss the charge because the State failed to present any evidence that he had the capacity to commit the charged offense.
We conclude that the State erred in failing to rebut the presumption of incapacity and the court erred in failing to resolve the capacity issue based on J.O.'s understanding at the time he committed the offense rather than the time of trial and as distinct from the issue of guilt. Nonetheless, because there is evidence which would support a finding of capacity, we remand.
The burglary charge arose out of an incident that occurred on August 10, 1994, at an elementary school in Snohomish County. J.O. was 11 years 10 months old at the time of the offense. The court did not hold a capacity hearing. At the fact-finding hearing, Gretchen Schaefer, the school's principal, testified that on the date in question she was called to the school by security officers. She observed that a window and numerous items in a portable were broken. School was closed, and no one had permission to enter the portable.
Juanita Craig testified that while at the school for soccer practice, she heard breaking glass. When she looked inside the portable, she saw four children damaging things. She identified J.O. as one of the boys she saw.
Matthew Symons testified that he had walked up to the school. He saw J.O. and another boy in the portable "making off" with stuff. The other boy carried the bag. Both boys ran around the portables and headed toward the woods.
J.O. testified that he was outside the portable while three other boys were inside it. He denied breaking or taking anything and denied acting as a lookout. He testified that when Ms. Craig appeared, he just walked away to the woods.
At the end of the State's case, defense counsel argued that the State had failed to rebut the presumption of incapacity, noting that there had been no capacity hearing. The juvenile court ruled that there was no justification for concluding that J.O. was incapable of committing the charged offense. The State noted that at another hearing 13 days after this crime was committed, an agreed order of "competency" was entered for a separate crime. Defense counsel objected that the order was not part of the record. The court then ruled that based on J.O.'s and the other witnesses' testimony, there was nothing to indicate he was "incompetent." The court found J.O. guilty as charged.
J.O. contends that the trial court erred in concluding he had the capacity to commit the charged offense because the State failed to present any evidence of capacity.
The capacity statute, RCW 9A.04.050, provides in part:
Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong. J.O. was under 12 at the time of the offense. Thus, the State had the burden of rebutting the presumption of incapacity by clear and convincing evidence. State v. Q.D., 102 Wash. 2d 19, 26, 685 P.2d 557 (1984). *fn1
A separate capacity hearing is not required, particularly where the facts of the offense show capacity. State v. Q.D., 102 Wash. 2d at 27. But capacity must be found to exist separate from the specific mental element of the offense, State v. Q.D., 102 Wash. 2d at 24, and must be based on the child's understanding at the time the offense was committed. State v. K.R.L., 67 Wash. App. 721, 725, 840 P.2d 210 (1992). Thus, the State erred in failing to rebut the presumption of incapacity. The trial court erred in failing ...