Appeal from Superior Court of Yakima County. Docket No: 94-8-01845-1. Date filed: 03/15/95. Judge signing: Hon. Robert N. Hackett Jr.
Petition for Review Granted September 3, 1997,
Authored by John A. Schultheis. Concurring: Frank L. Kurtz, Ray E. Munson.
The opinion of the court was delivered by: Schultheis
SCHULTHEIS, A.C.J. Children from the age of 8 and under 12 years of age are presumed incapable of committing a crime. RCW 9A.04.050. James S. was charged by information with first degree rape of a child. The charge was based on an act of sexual intercourse with a 3-year-old girl, M., committed when James was 11. In a pretrial hearing, the trial court found that he had the capacity to understand the act charged and its wrongfulness. We granted review of the capacity determination and reverse, holding that the evidence is insufficient to rebut the statutory presumption of incapacity.
In September 1994, M.'s brother told his father, Kelly B., that M. and James were up at the "cabin," an abandoned shack about 300 yards from the B. home. Mr. B. went to the cabin, opened the door, and found James and M. sitting facing each other on a bench. M.'s bathing suit top was pulled down and James's pants were unfastened. Mr. B. told James to go home and then asked his daughter what had happened. She told him James had asked her to take off her clothes and she indicated he had touched her vagina.
Mr. B. called the police. In the ensuing investigation, officers interviewed James and M.'s brother. According to Sergeant Arnie Belton, James appeared nervous when interviewed soon after the incident. He at first denied seeing M. that day or being with her in the cabin. Eventually, he admitted he was in the cabin with her and her brother. He also said he and the other children were just playing and remained fully clothed. M.'s brother told another officer that he had entered the cabin earlier and found James with his pants down. He said James quickly pulled up his pants and told him to leave. M.'s brother then went home and told his father M. and James were in the cabin.
Sergeant Belton interviewed James a month later and reported the boy again appeared nervous. In another interview a week later, James waived his Miranda *fn1 rights and gave a taped statement after his mother left the room. He admitted M. took off her clothes, he pulled down his pants, he touched M.'s vagina with his finger and he slightly penetrated her vagina with his penis. At the end of his statement, James said, "I'm sorry for what I done, I know it was bad and I feel real guilty about it." James was charged by information in juvenile court with first degree rape of a child, RCW 9A.44.073.
James's statement was admitted at the capacity hearing, held March 1995. Several other witnesses testified, including Sergeant Belton, Mr. B., James's fifth grade teacher, the assistant principal at his school, a county probation officer who had interviewed James after the incident, and James's mother.
The fifth grade teacher testified that James spent almost half of every school day in special education programs. Although she felt James had difficulty understanding things he read, she thought he was capable of learning concepts that were told to him, especially if told repeatedly. She testified that the school offered "good touch/bad touch" courses in the lower elementary grades and offered a human sexuality class in fifth grade. The fifth grade course emphasized the physiology of the sexual organs and their function, without going into "the appropriateness of it." She said the assistant principal taught human sexuality to the boys when James was in fifth grade.
Merl Brothers, the assistant principal, testified he did not remember having James in a class. He found James to be very polite and social, with no discipline problems. Testing showed that James was borderline in cognitive skills and read at a first grade level. Mr. Brothers described the week-long human sexuality class as a lesson on sexual reproduction and AIDS awareness. He taught nothing concerning male/female relationships, such as dating, marriage, etc.
Yakima County Probation Officer Manice Texeira-Zike interviewed James for an underage referral. She felt that James understood the words penis and vagina but did not understand the meaning of rape or that the act was wrong. In her opinion, James did not begin to understand that what he was doing was wrong until M.'s father came into the cabin and told him to leave. Ms. Texeira-Zike had not been told at the time of the interview that James's victim was only three years old. She did not think that fact had a bearing on her determination of whether he knew the act was wrong and that he could be punished for it.
James's mother testified she had taught her son to cover his private parts and that he should not touch people on their intimate parts. She had not discussed other sexual matters with him, however, because he had never shown any interest. She blamed a sixth grade sex education course for confusing her son. (The incident occurred early in James's sixth grade year.)
At the end of testimony, the trial Judge stated the following facts were most important in his decision: (1) James was almost 12 years old at the time of the incident; (2) he is mildly mentally retarded, based on his reading skills, but has at least average verbal language skills; (3) his mother is very attentive and taught him that he could not touch her or his older sister's private parts; (4) he learned good touch/bad touch in school; (5) he first denied having contact with M. or being with her in the cabin; (6) the taped statement showed he understood verbal Discussions; and (7) Ms. Texeira-Zike did not think he knew his sexual contact could lead to legal punishment. On the basis of the tests for capacity found in State v. Q.D., 102 Wash. 2d 19, 685 P.2d 557 (1984) and State v. Linares, 75 Wash. App. 404, 880 P.2d 550 (1994), the court found that James had the capacity to know that his act of intercourse was wrong, both morally and legally, and would be punished.
After the trial court entered findings and Conclusions, James moved for discretionary review to this court. The commissioner found that the trial court's ruling was sufficiently supported by clear and convincing evidence and denied review. James moved to modify the ...