Appeal from Superior Court of Snohomish County. Docket No: 94-1-01109-4. Date filed: 06/08/95. Judge signing: Hon. Anita L. Farris.
Authored by Susan R. Agid. Concurring: Faye C. Kennedy, Mary K. Becker.
The opinion of the court was delivered by: Agid
AGID, J. -- Douglas Walls appeals his conviction for first degree rape of a child and first degree child molestation, as well as his 600-month exceptional sentence. He contends that his conviction for first degree child molestation was not supported by sufficient evidence. He also asserts that the trial court erred when it found that he was deliberately cruel and his victim was particularly vulnerable, and that his sentence is clearly excessive. We disagree and affirm.
P.'s parents were divorced in October 1993. He and one of his brothers lived with their mother and her boyfriend, Walls, in Everett and spent vacations and holidays with their father and step-mother, Penni and Richard West, in Kahlotus. All of the boys are developmentally delayed. While the boys were staying in Kahlotus, the Wests noticed that they were destructive and fighting, so they asked them if they were having problems living in Everett with their mother. The other boys described some fighting between themselves and Walls, and P. told them that Walls "touched him in his privates." Penni and Richard sent P.'s brothers to their bedroom and asked P. more questions about the touching, apparently to determine whether Walls had inappropriately touched him. P. told his father that the touching had occurred in the bedroom and the bathroom and that Walls was not washing him at the time. The Wests then called Child Protective Services (CPS), who sent Deputy John Hunt to speak with P.
Hunt testified that P. was hyperactive during their conversation and that he was not able to speak with him very long. He eventually invited the Wests into the room in order to make P. feel more comfortable and so the interview could progress. P. told Hunt that Walls had first touched him in the bathroom. He said that he had gone into the bathroom to find his puppet and that Walls had broken the puppet and hit him in the nose. P. said that he was bleeding and not able to see very well after being hit and that Walls had then pulled down his shorts and touched "his privates." He then said that Walls left the bathroom but P. was unable to open the door, so he climbed out of the window, over the roof, and back into his bedroom window. He also told Hunt that Walls had touched him in a similar way in the bedroom while he was putting on pants.
After the interview with Hunt, Caryl Rankin, a child interview specialist with the sheriff's office spoke with P. He told her that Walls had touched him while he was asleep in his bedroom, and that he knew it was Walls because he could hear him breathing in his face. At trial, Rankin testified that children commonly claim to be asleep during a sexual assault because they are embarrassed. He also told Rankin that Walls tried to place his finger and his penis in P.'s anus while he was watching a pornographic movie and that he sucked on P.'s penis and made him perform oral sex on Walls. Walls was charged with two counts of first degree rape of a child and one count of first degree child molestation.
At trial, P. also testified that Walls had touched him in the bathroom and in the living room. In addition, he testified that Walls had tied him to the couch in the living room while he was watching a pornographic movie and that he had placed a sock in his mouth. He said that Walls had touched him all over his body, including pulling and sucking on his penis, and that he placed his finger in his anus and tried to put his penis in P.'s anus. He also said that Walls tried to make him suck on his penis, and pushed it in his mouth when he tried to get away and that Walls left him tied to the couch, where he stayed until his mother returned home and untied him.
The jury convicted Walls of one count of first degree rape of a child and one count of first degree child molestation. The trial court imposed an exceptional sentence of 600 months for each count, finding that Walls abused a position of trust, was deliberately cruel to P., and that P. was a particularly vulnerable victim.
Walls first contends that his conviction for first degree child molestation was not supported by sufficient evidence. He argues that, on the testimony given at trial, there are two possible instances of molestation, one in the bathroom and one in the bedroom. The trial court instructed the jury that it had to unanimously agree both that the State proved one count beyond a reasonable doubt and on which it proved. Walls argues that the State could not have proved either incident beyond a reasonable doubt.
In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (citing ( Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). "A claim of insufficiency [of the evidence] admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom." State v. Wilson, 71 Wash. App. 880, 891, 863 P.2d 116 (1993), rev'd on other grounds, 125 Wash. 2d 212, 883 P.2d 320 (1994). To convict Walls of first degree child molestation, the State had to prove that he had sexual contact with P., who was less than 12 years old and at least 36 months younger than he, and that Walls was not married to him. RCW 9A.44.083.
First, Walls argues that the State failed to prove the bathroom incident because it did not offer any evidence indicating the Walls touched P. for sexual gratification. Walls contends that, because he had assumed some caretaking functions, the State is required to prove a negative to convict him; i.e., that he was not engaged in any caretaking functions when he touched P. It is true that when "an unrelated adult with no caretaking function has touched the intimate parts of a child" the mere act supports an inference of sexual gratification. State v. Powell, 62 Wash. App. 914, 917, 816 P.2d 86 (1991), review denied, 118 Wash. 2d 1013, 824 P.2d 491 (1992). However, that does not require the State to prove the converse. There is no defense in the statute that requires the State to prove the absence of caretaking functions when the touching occurs and the defendant has assumed some caretaking functions. The State is only required to prove the statutory elements beyond a reasonable doubt. The presence or absence of caretaking is not an element of the crime. P. told his interviewers and testified that Walls hit him in the bathroom and then forced down his pants and touched his penis. From this testimony, the jury could have inferred that Walls had a sexual motive. The jury may make reasonable inferences from the testimony presented. Wilson, 71 Wash. App. at 891.
Second, Walls argues that the State failed to prove that it was Walls who touched P. in the bedroom. P. testified that he was asleep but that he knew Walls touched him because he heard him breathing and because he had the same skin. Rankin testified that children will often say that they were asleep during an incident such as this because they are embarrassed. Considering the testimony together, the jury could reasonably have inferred either that P. did see Walls and he said he was asleep because he was embarrassed, or that P. awoke during the touching and was able to recognize Walls without seeing his face because he was familiar with his breathing and his skin. ...