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State v. K.H.-H.

Court of Appeals of Washington, Division 2

June 16, 2015

The State of Washington, Respondent,
K.H.-H., Appellant

Oral Argument: February 27, 2015.

Appeal from Pierce County Superior Court. Docket No: 13-8-00240-7. Judge signing: Honorable Kitty-ann Van Doorninck. Judgment or order under review. Date filed: 08/28/2013.

Kathryn A. Russell Selk (of Russell Selk Law Office ), for appellant.

Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor, Deputy, for respondent.

Authored by Lisa Worswick. Concurring: Lisa Sutton, Dissenting: Thomas R Bjorgen.


Page 662

Lisa Worswick, J.

[188 Wn.App. 415] [¶1] -- KH-H appeals from his guilty adjudication in juvenile court for fourth degree assault with sexual motivation, based on conduct against CR, a teenaged girl, and from the resulting disposition. KH-H contends that (1) insufficient evidence supports the adjudication of guilt [188 Wn.App. 416] and (2) a condition of the disposition requiring him to write an apology letter violates his rights under the Washington and federal constitutions. We affirm.

Page 663


[¶2] KH-H and CR attended the same high school and had friends in common. On October 1, 2012, KH-H accompanied CR to her house after school; there were no adults at CR's home at that time. KH-H and CR sat on CR's bed and watched videos on CR's phone.

[¶3] KH-H began kissing CR on the face and neck, and CR responded by telling KH-H " to chill it or to back off." Report of Proceedings (RP) at 29. KH-H pushed CR onto her back, leaned over her, and began biting her neck. CR tried to push KH-H away and told him to " stop," to get off her, and that it hurt. RP at 35. KH-H " pushed his weight down more on [her] hands," reached under her shirt and bra to grab her breasts, and reached into and " tr[ied] to undo [her] pants." RP at 32-33. CR then grabbed her cell phone, turned it on, and said she would call her father. KH-H got up and left the house.

[¶4] CR later noticed three " hickies" or bruises on her neck. Clerk's Papers (CP) at 18. CR showed the marks to a friend, JS, and told JS about the incident. JS confronted KH-H, whom she had considered a friend, and KH-H told JS that he had gone to CR's house after school, that they had had a " sexual connection," and that he gave her " love bites." RP at 66. JS told a school official about the incident.

[¶5] The State charged KH-H with two counts of fourth degree assault with sexual motivation, based on the incident involving CR and based on an unrelated incident involving a different teenaged girl. At the juvenile court fact-finding hearing, CR and JS testified to the facts as set forth above. For impeachment purposes, the court admitted a stipulation that stated:

On October 9, 2012, Officer Bryce Clother interviewed C.R. at Lincoln High School. During that interview, Officer Clother [188 Wn.App. 417] asked C.R. if she told [KH-H] to stop, and C.R. said that she had not, but she had tried to push [him] away.

CP at 13-14.

[¶6] The juvenile court adjudicated KH-H guilty on the count involving CR and not guilty on the other count. Based on various observations about her conduct under examination, the trial court expressly found that CR was a " credible witness," describing key portions of her testimony as " compelling." CP at 20.

[¶7] At the disposition hearing, the State asked the court to order KH-H to write CR an apology letter, making clear that it expected " a sincere written letter of apology ... mean[ing] an admission that he did what he was accused of what he's doing [sic] and [is] sorry he put her in that position." RP at 149. Defense counsel objected to this condition, stating:

[KH-H] now understands that the Court has found him guilty, but it doesn't mean that he has to then turn around and say, well, yes, I did something ... . [H]e still has the right to make that decision.

RP at 150-51.

[¶8] The juvenile court sentenced KH-H to three months of community supervision. The disposition order also required KH-H to " write a letter of apology to [CR] that is approved by the Probation Officer and the State." CP at 42. KH-H appeals.


I. Sufficiency of the Evidence

[¶9] KH-H first contends that the State presented insufficient evidence for a reasonable trier of fact to conclude beyond a reasonable doubt that he assaulted CR with sexual motivation. We disagree.

[¶10] When reviewing a challenge to the sufficiency of the evidence supporting an adjudication of guilt in a juvenile [188 Wn.App. 418] proceeding, " we must decide whether substantial evidence supports the trial court's findings of fact and, in turn, whether the findings support the conclusions of law." State v. B.J.S., 140 Wn.App. 91, 97, 169 P.3d 34 (2007). In doing so, we view the evidence in a light most favorable to the State, and we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. B.J.S., 140 Wn.App. at 97; State v. J.P., 130 Wn.App. 887, 891-92, 125 P.3d 215 (2005).

Page 664

Because KH-H has not assigned error to any of the trial court's factual findings, we treat those findings as verities on ...

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