Wilson appeals his convictions for rape of a child in the
first degree and attempted rape of a child in the first
degree. The evidence of attempted rape, including the
child's statements to an interviewer and the reasonable
inferences that can be drawn from those statements, is
sufficient to sustain the conviction. Nevertheless, because
the jury was not properly instructed on the elements of
attempt, and the trial court abused its discretion in
admitting evidence of prior sexual misconduct, we reverse
both convictions and remand.
Wilson has cared for her granddaughter, B.E., since she was
born on January 29, 2006. In 2010, when B.E. was four years
old, Claudine married Leslie Wilson. Wilson moved into
Claudine's home in Auburn, Washington which Claudine
shared with several other family members. Claudine, Wilson,
and B.E. shared a bedroom. Claudine and Wilson slept in a
king size bed. B.E. had her own bed in the same room, but
sometimes slept with Claudine and Wilson.
has limited physical mobility due to a back injury and early
in the marriage, Wilson often assisted Claudine with
household chores and taking care of B.E. In the mornings,
Wilson sometimes let Claudine sleep in and got up to help
B.E. get ready for school. Wilson and B.E. appeared to get
along well. The marriage eventually deteriorated, however, in
part due to Wilson's alcohol use.
left the household in July 2012. About five months later, in
December 2012, just after Claudine spoke to Wilson on the
telephone, B.E. told Claudine that Wilson had touched her.
reported B.E.'s disclosure to Child Protective Services
(CPS) several weeks later. Following that report, a CPS
social worker came to Claudine's home and attempted to
speak to B.E. about the abuse allegation in order to assess
her safety. B.E. was extremely reluctant to discuss the
matter but eventually said that Wilson touched her in her
vaginal area, which she indicated by pointing.
Webster, a child interview specialist, then interviewed B.E.
The interview was recorded. B.E., who was six years old at
the time, again expressed reluctance to talk about what
happened with Wilson, but admitted that "Papa had sex
with [her]." She said it happened "[m]ore than one
time." B.E. said that Wilson was "really
drunk" and she was still in preschool. According to
B.E., she and Wilson were waiting for the school bus and were
the only people awake in the house. B.E. told Webster that
Wilson pulled down her pants and his pants and he touched her
"spot" with his "spot." B.E. described
being in the living room on her back on the sofa while
Wilson's body went up and down. She said it hurt her
spot. When the bus came, Wilson got a paper towel to wipe
her. B.E. said that Wilson needed to wipe her spot because he
"used a thick lotion on his spot."
also said that Wilson touched her spot with his finger, that
his finger went "deep down into [her] spot, " and
it hurt. Wilson told her she could not tell anyone about what
also described a separate incident that took place in
Nana's bedroom, which was also her bedroom. Webster asked
B.E. if Wilson wanted her to "do something to his spot,
" and B.E. replied that Wilson wanted her to "suck
on it." B.E. said Wilson told her to "suck on it
like a sucker." When B.E. said no, Wilson said to
"go ahead." After B.E. still refused, Wilson said
health care providers examined B.E. shortly after she
disclosed the abuse to her grandmother. Dr. Sandra Ritland, a
primary care physician, examined B.E. in January 2013. Dr.
Ritland performed a vaginal exam. She noticed an
"abrasion" on each side of the vagina that had the
appearance of a "rug burn or a scrape." Dr. Ritland
referred B.E. to a hospital for a sexual assault examination.
nurse practitioner at Mary Bridge Hospital, Michelle Breland,
performed the sexual assault examination. Before the exam,
Breland asked B.E. if she had any "owies" on her
body and B.E. said only on her "spot, " pointing to
her genital area. B.E. refused to provide details, but when
Breland asked if someone "did something" to her
"spot, " she responded, "Papa." Breland
said that B.E.'s exam was "essentially normal,
" which she explained did not mean that sexual assault
did not occur because hymenal tissue heals quickly. B.E. also
tested negative for several sexually transmitted diseases,
including chlamydia, gonorrhea, and syphilis.
State charged Wilson with two counts of rape of a child in
the first degree and one count of attempted rape of a child
in the first degree.
testified at trial that B.E. suffered from various
"vaginal issues" between 2010 and 2013. In
particular, Claudine said B.E. had rashes, urinary tract
infections, and at one point, a blister in her vaginal area.
Claudine also said that several months after he left the
household, Wilson reported that he had sores in his genital
Ritland confirmed that she treated B.E. several times for
urinary symptoms and vaginal rashes shortly before and after
the December 2012 disclosure. Dr. Ritland testified that she
was "concerned" about possible sexual abuse because
of B.E.'s frequent and persistent urinary and vaginal
symptoms. Dr. Ritland also testified that B.E. had gained a
substantial amount of weight in the three years following the
disclosure of abuse and said ...