Opinion
No. 53695-8-I
Filed: January 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-01445-8. Judgment or order under review. Date filed: 12/24/2003. Judge signing: Hon. Ronald Kessler.
Counsel for Appellant(s), Paul Robert Agne (Appearing Pro Se), Doc #864934, Monroe Correctional Complex, 16700 177th Avenue S.E., Monroe, WA 98272-0777.
Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Paul Agne appeals his convictions for first degree child molestation, first degree child rape, and communicating with a minor for immoral purposes. We reverse the communicating with a minor conviction and dismiss the charge because the State has not established that the conduct alleged to constitute that crime was separate from that constituting the molestation. We affirm on all other grounds, and remand for resentencing.
Sufficiency of the Evidence. Agne first contends there was insufficient evidence to convict him of the misdemeanor charge of communicating with a minor for immoral purposes. The test for determining the sufficiency of the evidence is whether, after viewing all evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). `When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The State's theory was that when Agne undressed eight-year-old H.H. and `French' kissed her, he communicated with a minor for immoral purposes in violation of RCW 9.68A.090. That statute `prohibits communication with children for the predatory purpose of promoting their exposure to and involvement in sexual misconduct.' State v. McNallie, 120 Wn.2d 925, 933, 846 P.2d 1358 (1993). An example of prohibited conduct is `[a]n invitation or inducement to engage in behavior constituting indecent liberties.' Id. at 934. Agne contends the evidence was insufficient to convict him under the statute because his conduct in undressing the girl and placing his tongue in her mouth was not an `invitation or inducement' to engage in sexual misconduct; it was misconduct in itself. We agree.
The evidence established that the kissing was not distinct in time or place from the molestation, but would occur both before and after Agne touched H.H. `everywhere' with his hands, all of which happened only after Agne removed the girl's clothes. See, e.g., Report of Proceedings (RP) (October 30, 2003) at 30, 38, 45. The State presented no evidence or argument that Agne's kisses amounted to grooming behavior intended to lower H.H.'s resistance to his advances or to entice her to engage in more serious sexual conduct. Rather, the kisses were part and parcel of the molestation. We do not decide that French kisses can never amount to communication with a minor for immoral purposes. But under the facts in this case, the evidence is insufficient to prove the kisses constituted communication for the purpose of promoting sexual misconduct. Accordingly, we reverse and dismiss the conviction on that charge.
We note, however, that this reversal will not affect Agne's sentence in any practical way. His sentence for this offense was set to run concurrently with his felony convictions, which stand.
Prosecutorial Misconduct. Agne next contends the State committed misconduct by arguing in its closing statement that H.H.'s testimony had a `ring of truth' and that the defense's theory was that H.H. was a liar. We review allegations of prosecutorial misconduct for abuse of discretion. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). We will not reverse a conviction on these grounds unless `there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.' State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991).
We first note that Agne failed to object to the `ring of truth' argument. Failure to object waives the issue unless the remark is so flagrant and ill-intentioned that it causes enduring and resulting prejudice that could have been neutralized with a curative instruction. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). While it is improper for the prosecutor to express an opinion as to the credibility of witnesses, `prejudicial error does not occur until it is clear that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion.' Id. at 664. Here, the prosecutor began her argument by emphasizing that it was solely the jury's duty to determine the credibility of witnesses. The prosecutor then argued that various factors supported the victim's credibility, including H.H.'s lack of motive to fabricate her story, the timing and manner of her report, the details she gave about the context and content of the abuse, her testimony revealing a level of sexual knowledge unusual for children of her age (especially since she had not been exposed to sex through television or films), the marked changes in her behavior during the time Agne lived in her home, and H.H.'s demeanor while testifying before the jury. We are satisfied the prosecutor did not express her personal opinion as to H.H.'s credibility, but properly argued the evidence showed that H.H. was credible.
The defense closing argument focused on H.H.'s credibility, suggestibility, and truthfulness. Agne's counsel referred to H.H.'s testimony as a `story' she had `spun about Paul', RP (November 5, 2003) at 32; speculated that `she doesn't think anybody is going to check up on that point of her story,' id. at 33; and suggested that H.H. had fabricated the story to impress her older cousin, who had had a similar experience, id. at 28. On rebuttal, the prosecutor argued that `the bottom line is the defense in this case is that [H.H.] is lying.' RP (November 5, 2003) at 51. Agne objected, and the court overruled his objection.
Agne contends the State's argument improperly communicated to the jury that in order to acquit him, it must find that H.H. was lying. We have held that type of argument is misconduct because it misrepresents the burden of proof: `The jury would not have had to find that [the witness] was mistaken or lying in order to acquit; instead, it was required to acquit unless it had an abiding conviction in the truth of her testimony.' State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). But pointing out the defense is predicated on disparaging a witness's truthfulness is not the same as telling the jury it may not acquit unless it finds the witness is lying, and does not shift the burden of proof to the defense. Moreover, even remarks that would otherwise be improper are not grounds for reversal `where they are invited or provoked by defense counsel, or in reply to defense counsel's statements, unless the remarks are so prejudicial that an instruction would not cure them.' State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985). Here, the prosecutor properly responded to the defense's argument, which strongly implied that H.H. was untruthful, by pointing out why it was unlikely that H.H. would lie about the abuse. There was no misconduct.
Comment on the Evidence. During deliberations, the jury inquired whether the term `female sex organ' includes the external labia, or was instead limited to the vagina. The court responded, over defense counsel's objection, that ``sex organs' include the external labia.' Clerk's Papers at 34. Agne contends the trial court improperly commented on the evidence by providing this definition and that we must therefore reverse his conviction for first degree child rape.
Article 4, section 16 of the Washington Constitution prohibits a trial court from commenting on the evidence. `An impermissible comment is one which conveys to the jury a judge's personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question.' Swan, 114 Wn.2d at 657. But `[a]n instruction that does no more than accurately state the law pertaining to an issue in the case does not constitute an impermissible comment on the evidence by the trial judge under Const. art. 4, sec. 16.' State v. Ciskie, 110 Wn.2d 263, 282-83, 751 P.2d 1165 (1988). The definition here accurately stated the law. We have previously embraced broad definitions of similar terms. In State v. Bishop, 63 Wn. App. 15, 816 P.2d 738 (1991), the State charged the defendant with first degree child rape and pursued the theory that Bishop penetrated the victim's vagina with his fingers. We noted that under that theory, `the State must prove that the defendant penetrated, at a minimum, the lips of the victim's sexual organs.' Id. at 19 (citing State v. Snyder, 199 Wash. 298, 300, 91 P.2d 570 (1939)). And in State v. Montgomery, 95 Wn. App. 192, 200, 974 P.2d 904 (1999), we rejected a definition of `vagina' that would require proof of penetration into the vaginal canal in order to meet the definition of sexual intercourse. Noting that statutes are to be construed according to their evident intent and purpose, and that words in statutes are to be understood in their ordinary and popular sense, we held that `vagina means all of the components of the female sexual organ and not just the passage leading from the opening of the vulva to the cervix of the uterus.' Id. (citations omitted).
This is not a penetration case, and the jury did not request a definition of `vagina.' The State pursued a rape theory requiring it to prove Agne had sexual contact with H.H. `involving the sex organs of one person and the mouth . . . of another.' RCW 9A.44.010. Nevertheless, we find our prior decisions instructive, and conclude the term `female sex organ' is not limited to the vaginal canal. The court's instruction thus accurately stated the law and was not improper. Moreover, nothing in the definition can reasonably be interpreted to convey the judge's personal opinion on the case. We find no error.
Elements of Child Molestation. Finally, Agne contends that sexual gratification is an essential element of child molestation, and the court therefore erred by omitting this element from the to convict instruction on that charge. Our Supreme Court recently turned back an identical challenge in State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004), holding that ``sexual gratification' is not an essential element to the crime of first degree child molestation but a definitional term that clarifies the meaning of the essential element, `sexual contact.'' We therefore reject Agne's argument.
CONCLUSION
We reverse Agne's communication with a minor for immoral purposes conviction, dismiss the charge, and remand for resentencing. The remaining convictions are affirmed.
ELLINGTON, SCHINDLER and COX, JJ.