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State v. Wilson

Court of Appeals of Washington, Division 1

October 30, 2017

THE STATE OF WASHINGTON, Respondent,
v.
LESLIE GUY WILSON, Appellant.

          MANN, J.

         Leslie 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.

         FACTS

         Claudine 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.[1] 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.

         Claudine 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.

         Wilson 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.

         Claudine 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.

         Carolyn 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]."[2] 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."

         B.E. 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 happened.

         B.E. 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 "okay."

         Two 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.

         Pediatric 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.

         The 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.

         Claudine 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 area.

         Dr. 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 ...


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