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State v. Pratt

Court of Appeals of Washington, Division 2

December 17, 2019

STATE OF WASHINGTON, Appellant/Cross-Respondent,
CORY PRATT, Respondent/Cross-Appellant.

          MELNICK, J.

         The superior court sentenced Cory Pratt under the special sex offender sentencing alternative (SSOSA). The State appeals the SSOSA sentence. It argues that Pratt did not qualify for this sentencing option because he did not have the required statutory connection with the victim to qualify for a SSOSA sentence.

         Pratt cross-appeals and argues that the court abused its discretion in excluding proposed expert testimony about the phenomena of sexsomnia to support Pratt's defense. He argues that this exclusion violated his Sixth Amendment right to the United States Constitution to present a defense.

         We affirm the conviction and remand for resentencing.


         The State charged Cory Pratt with child molestation in the first degree based on an allegation by MB that Pratt had sexually assaulted her while they were both sleeping in a tent for her cousin's birthday sleepover party.[1] The party occurred at the home of Pratt's aunt and uncle. MB is the daughter of Pratt's aunt's stepsister.

         Before trial, Dr. C. Kirk Johnson, a psychologist, evaluated Pratt to determine if he suffered from a sleep disorder called sexsomnia. Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep. Johnson concluded that a possible explanation for Pratt's actions included sexsomnia, but he could not confirm it happened. Johnson further concluded that no psychological evaluation could determine if a particular behavior did or did not occur. Johnson reported that Pratt completely denied engaging in the alleged conduct and "[r]egarding sexsomnia, Mr. Pratt does not feel that this is the case, saying that this has not been a past problem." Clerk's Papers (CP) at 201.

         At a pretrial evidentiary hearing, Pratt indicated he wanted Johnson to testify as an expert at trial about sexsomnia. Although Johnson could not conclude that Pratt had the disorder, he would testify that sexsomnia exists. Pratt wanted to use this testimony to support his general denial defense. Pratt wanted to argue at trial that if a person is asleep, they cannot be guilty because any touching would not have been done for the purpose of sexual gratification.[2] Pratt viewed being asleep as a general denial.

         The State moved to exclude the testimony on grounds of relevance. The trial court expressed concern that calling an expert to testify about sexsomnia could amount to "a back door diminished capacity." Report of Proceedings (RP) (Sept. 19, 2017) at 65. The trial court granted the State's motion to exclude.

         The case proceeded to trial where the testimony established the following: The young guests at the party slept in a tent set up in the back yard. Pratt attended the party with his daughter, who had requested that Pratt sleep in the tent with her because she was scared. The day after the sleepover, MB told her parents that she had woken up to Pratt touching her.

         MB's parents reported the touching and an investigator from the Children's Justice Center (CJC) conducted a taped interview with her. In that interview, MB told the investigator that she had never met Pratt and had never met his daughter until the party.

         An investigator also conducted a taped interview with Pratt. Pratt stated that he may have met MB's family years ago, because his aunt and uncle have had "get togethers" that included MB's parents, but he could not say with certainty if their children had also attended. RP (Oct. 2, 2017) at 118. When asked if he had any interaction with MB at the party before the guests went to bed, Pratt replied "Not really. About the most I had was ... I handed out the skewers that had the marshmallows on . . . handing that to her was about the most that I had with her." RP (Oct. 2, 2017) at 118. When asked if he had any conversations with MB, Pratt replied "Not really" but on the day after the party, she sat near him and he thinks he asked her name. RP (Oct. 2, 2017) at 118-19.

         Several witnesses also testified to the relationship between MB and Pratt. Pratt's aunt said MB met Pratt but she did not know when. She added that she and her long time husband saw Pratt often because he always received invitations to parties. However, she did not know if Pratt and MB had "really talked to each other ever." RP (Oct. 2, 2017) at 135. Pratt's aunt told the jury that MB's parents may have said "hi and bye" to Pratt but otherwise she didn't think they ever really had a conversation with each other. RP (Oct. 2, 2017) at 136.

         MB's mother did not know Pratt, never interacted with him, never had a conversation with him, and never met him. To her knowledge, they had never been at a gathering at the same time, and Pratt had never met her husband. To her knowledge, MB had never had any interaction with Pratt. To his knowledge, MB's father had never met or spoken to Pratt nor had his daughter.

         Pratt, on the other hand, conclusively remembered meeting MB's parents at a specific party before the alleged incident. He did not, however, remember meeting MB before the sleepover.

         Pratt waived a jury and the court found Pratt guilty of child molestation in the first degree.

         Over the State's and the victim's objections, the court imposed a SSOSA disposition. The court entered findings of fact regarding the SSOSA sentence.[3] The factual findings included that "the Defendant knew of the Victim, and had been acquainted with the Victim's family," and that "the Victim and Defendant had contact during the course of said party other than the actions that constitute the crime herein." CP at 99.

         The State appealed the sentence. Pratt cross-appealed the exclusion of Johnson's testimony.


         I. Imposition of SSOSA

         The State can appeal a sentence that is based on an erroneous legal conclusion or that is imposed contrary to law. State v. Willhoite, 165 Wn.App. 911, 914, 268 P.3d 994 (2012). Aparty may also challenge the underlying facts and legal conclusions relied on by the court in imposing a sentencing option. Willhoite, 165 Wn.App. at 914. Additionally, RAP 2.2(b)(6)(C) allows the state to appeal a criminal sentence that "includes provisions that are unauthorized by law."

         The SSOSA statute states in relevant part:

(2) An offender is eligible for the special sex offender sentencing alternative if:
(a) The offender has been convicted of a sex offense other than a violation of RCW 9A.44.050 or a sex offense that is ...

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