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State v. D.V.

May 27, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
D.V., B.D. 10/12/81, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-02853-7. Date filed: 11/16/95. Judge signing: Hon. James W. Bates Jr. This Opinion Substituted for Withdrawn Opinion of January 17, 1997, Previously

PER CURIAM. D.V. appeals his conviction in juvenile court of child molestation in the first degree. He contends that (1) the evidence was insufficient to overcome the presumption that he was incapable of committing the charged offense; (2) there was insufficient evidence that the offense occurred in the state of Washington; and (3) there was insufficient evidence of sexual gratification.

We conclude that the State proved by clear and convincing evidence that D.V. had the capacity to commit the charged offense and that although the written findings erroneously recite that the act occurred in King County instead of Yakima County, the State proved beyond a reasonable doubt that the offense occurred in Washington. We also conclude that viewing the evidence in the light most favorable to the prosecution, there is sufficient evidence for a rational trier of fact to find that D.V. touched E.S. for the purpose of sexual gratification. Accordingly, we affirm.

FACTS

D.V. was charged with first degree child molestation against his cousin E.S. At the time of the offense, D.V. was 11-1/2 years old and E.S. was approximately 5-1/2 years old. Prior to trial the court held a hearing to determine whether D.V. had the capacity to commit the charged offense. D.V.'s mother testified that she had taught him about "right touching" and "wrong touching" and that he appeared to understand. Based on this testimony, D.V.'s age, and the nature of the offense, the court determined that D.V. knew the nature of the act and knew it was wrong.

Following a CrR 3.5 hearing, the court ruled that D.V.'s oral statement to Detective Hoag was admissible. The court also ruled that E.S.'s statements to his mother, a police interviewer, and a social worker had sufficient indicia of reliability to be admitted under RCW 9A.44.120. At the Conclusion of the evidence, the court found D.V. guilty of child molestation in the first degree.

CAPACITY

D.V. contends that the trial court erred in determining that he had the capacity to commit the charged offense.

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. D.V. was under twelve 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).

Capacity determinations are fact specific inquiries that must be determined on a case-by-case basis. State v. Linares, 75 Wash. App. 404, 415, 880 P.2d 550 (1994). The following factors are relevant in determining whether a child knew the act he or she committed was wrong: (1) the nature of the crime; (2) whether the child showed a desire for secrecy; (3) the child's age; (4) prior conduct similar to that charged; (5) any consequences that attached to the conduct; and (6) acknowledgment at the time of the offense that the behavior is wrong and could lead to detention. Linares, at 415. Also relevant is testimony from those acquainted with the child and the testimony of experts. See Linares, at 415; State v. K.R.L., 67 Wash. App. 721, 726, 840 P.2d 210 (1992).

D.V. was 11 1/2 years old at the time of the offense, only six months short of the age at which capacity is presumed. See State v. Q.D., at 27; State v. Linares, 75 Wash. App. at 415-16. D.V.'s mother testified that she had taught D.V. about good and bad touching and that she thought he understood. She testified that he was in some special education classes, but did fine in school. There was no evidence that D.V.'s intellectual or social functioning was limited. See State v. K.R.L., 67 Wash. App. at 726. D.V.'s age, coupled with his knowledge about good and bad touching, is sufficient for a rational trier of fact to find by clear and convincing evidence that D.V. knew the wrongfulness of the act. State v. Linares, 75 Wash. App. at 415.

JURISDICTION

D.V. contends that there is insufficient evidence that the crime occurred in the state of Washington. This contention fails.

Jurisdiction over a crime rests in the courts of the state where the crime occurred. RCW 9 A.04.030. State v. Lane, 112 Wash. 2d 464, 470, 771 P.2d 1150 (1989). The burden is on the state to prove jurisdiction beyond a reasonable doubt. State v. Svenson, 104 Wash. 2d 533, 542, 707 P.2d 120 (1985). The county in which the crime occurred, however, is a matter only of venue. The State need not prove venue beyond a reasonable doubt; it is sufficient if venue reasonably can be inferred from the evidence. State v. Johnson, 45 Wash. ...


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