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
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.
affirm the conviction and remand for resentencing.
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. The party
occurred at the home of Pratt's aunt and uncle. MB is the
daughter of Pratt's aunt's stepsister.
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.
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. Pratt viewed being asleep as a general
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.
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.
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.
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.
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.
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.
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.
waived a jury and the court found Pratt guilty of child
molestation in the first degree.
the State's and the victim's objections, the court
imposed a SSOSA disposition. The court entered findings of
fact regarding the SSOSA sentence. 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.
State appealed the sentence. Pratt cross-appealed the
exclusion of Johnson's testimony.
Imposition of SSOSA
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."
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