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State v. Yallup

Court of Appeals of Washington, Division 3

May 10, 2018


          Korsmo, J.

         Easton Yallup appeals from his convictions at bench trial on two counts of first degree rape of a child. We affirm the convictions and remand to strike an award of restitution.


         This case revolved around allegations by M.V., 14 years old at trial, that Mr. Yallup had licked her vagina on multiple occasions when she was 10 and 11. After a late decision to waive jury trial, the matter proceeded to a bench trial in the Klickitat County Superior Court before the Honorable Brian Altman on October 5, 2016.

         Investigation revealed that Mr. Yallup lived with M.V. and her mother in three different locations in Goldendale. The child reported that incidents of sexual abuse occurred at all three locations. The prosecutor charged two counts of first degree child rape occurring between January 1, 2010, and December 31, 2013. At trial, M.V. testified that the first incidents of abuse occurred when she was 10 and finishing the fourth grade. The abuse ended shortly before her 12th birthday. Since she was born in August 2002, and her fourth grade year ended in 2013, there was a comparatively narrow window (last 16 months) of the charging period in which the offenses occurred.

         At the conclusion of trial, Judge Altman explained his decision in detail:

[M.V.] who is now fourteen, testified that the Defendant had sexual intercourse with her as it's defined in Washington law at least ten times she said and fewer than fifteen times during an approximate three year period. The incidents of intercourse ended . . . when her mother, [L.J.], finally kicked the Defendant out of the house where he had been staying off and on as her paramour for a period of a couple of years at least. . . . .
[Regarding] issues that reasonably go to doubt, the Court has to analyze those issues in the context of [M.V.]'s testimony. Thus, the three year old timeframe of the charging instrument is not dispositive. Victims this age subjected to multiple assaults rarely remember exact times and dates. Especially when, as in this case, at least initially, she couldn't understand what was actually going on. . . .
My finding was that her entire story from her testimony here today, her interview, the reaction of the troubled alcoholic mother, Ms. [W]'s participation as a friend, all have a heft as a fact finder and determiner of credibility and feel and patina of the truth. I believed [M.V.]
The very graphic details of her narrative had those idiosyncratic details that ring of truth. An invented tail [sic] does not sound like this. She told it consistently without variation, without coercion, with embarrassment and reluctance, but she told it. In my view, she was victimized by the Defendant consistently and repeatedly and the statutory elements of the crime have been proven beyond a reasonable doubt.

Report of Proceedings at 114-15.

         A mandatory presentence investigation (PSI) was completed and sentencing occurred November 21, 2016. Included in the criminal history was a 1996 federal offense of Abusive Sexual Contact. Clerk's Papers at 99. The court and PSI both calculated an offender score of 10 that included 3 points for the federal offense. No comparability analysis was conducted on the record. The court used the offender score of 10 to impose a minimum term of 318 months.

         Mr. Yallup timely appealed to this court. Judge Altman retired the following month. The findings of fact required by CrR 6.1 had not been entered at that time. Counsel for Mr. Yallup filed the brief of appellant in early May 2017. Judge Altman filed findings of fact on August 24, 2017. The brief of respondent was filed the following day. A reply brief was timely filed. A panel of this court considered the matter without hearing argument.


         The appeal raises four substantive issues: (1) whether the evidence supported the conviction for two counts within the charging period, (2) whether the untimely entry of findings prejudiced Mr. Yallup, (3) whether counsel performed ineffectively by failing to urge a comparability analysis of the federal conviction, and (4) whether the court erred in directing that restitution be made as a condition of community custody.[1] We address those contentions in the order listed.

         Sufficiency of the Evidence

         Appellant contends that because his victim could not identify the particular dates on which she was abused, it is unclear if both of the events occurred during the charging period. This issue is governed by longstanding precedent.

         "Following a bench trial, appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law." State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014) (citing State v. Stevenson, 128 Wn.App. 179, 193, 114 P.3d 699 (2005)). "'Substantial evidence' is evidence sufficient to persuade a fair-minded person of the truth of the asserted premise." Id. at 106. In reviewing insufficiency claims, the appellant necessarily admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Finally, this court must defer to the finder of fact in resolving conflicting evidence and credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

         This approach applies the evidentiary sufficiency standard dictated by the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Specifically, Jackson stated the test for evidentiary sufficiency under the federal constitution to be "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. Washington promptly adopted this standard in State v. Green, 94 Wn.2d 216, ...

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