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.
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.
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
conclusion of trial, Judge Altman explained his decision in
[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
Report of Proceedings at 114-15.
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.
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.
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. We address those contentions in the order
of the Evidence
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.
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).
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,