Opinion
No. 23898-5-II.
Filed: June 23, 2000. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County, No. 98-1-00091-0, Hon. Kenneth D. Williams, 10/21/1998, Judgment or order under review.
Charles D. Creason, Attorney At Law, for appellant(s).
Loren Oakley, Clallam Co. Deputy Pros. Atty., for respondent(s).
Scott Aynsley was convicted of molesting C.C. and attempting to molest S.C. C.C. and S.C. were sisters whom he was babysitting. He received an exceptional sentence based on future dangerousness and abuse of trust. On appeal, Aynsley argues that the trial court erred by: (1) denying his motion to substitute new counsel; (2) admitting evidence under ER 404(b) that he telephoned a third person and asked if she `liked leather;' (3) denying his motion for dismissal of both counts based on insufficient evidence; (4) failing to give the jury his proposed special verdict form; and (5) imposing an exceptional sentence unsupported by the evidence or law. Finding no error, we affirm.
FACTS
In April 1998, Scott Aynsley was charged with two counts of child molestation in the first degree. Three and a half months later, Aynsley appeared in court and asked that his court appointed attorney withdraw because of a conflict of interest. The trial court denied the motion to substitute counsel.
The information was later amended and count two was changed from first degree child molestation to attempted child molestation in the first degree.
Aynsley stated that a conflict of interest existed because he believed his attorney had a developmentally disabled child who had been a victim and because his attorney allegedly told him that he did not want to go to trial and win the case.
Both victims testified. C.C., who was eleven at the time of trial, testified that two or three years earlier Aynsley touched her wrongly in the crotch while she was sitting next to him in an automobile. C.C. also described an incident in Aynsley's bedroom. Aynsley began watching an adult video and, while standing behind her, rubbed his penis with his hand while he remained fully clothed. C.C. further testified that upon Aynsley's request, she tried on leather clothing over her own clothes.
S.C., who was nine at the time of trial, testified that Aynsley also asked her to try on leather clothing. While babysitting her at her grandmother's house, Aynsley took her to the bathroom, unzipped his pants, and told her to `touch it.' The children's mother testified that both victims told her about the incidents. Michelle Pippin, a fifteen-year-old babysitter of the children, testified that C.C. described the video incident. Pippin also testified about two phone calls she received from Aynsley. One day Pippin answered the phone when `Scott' called. The next day a man called and asked Pippin if she `liked leather.' Although the caller did not identify himself, Pippin recognized `Scott's' voice.
Finally, the State called an eleven-year-old friend of the victims. She testified that C.C. told her that Scott made her put on leather clothing and touched her inappropriately. In addition, S.C. told her that Aynsley `did some stuff to her' and `touched her.' After both sides rested, Aynsley moved to dismiss the child molestation count involving C.C., arguing that the testimony was muddled and contradicted. He also moved to dismiss the attempted child molesting involving S.C., arguing that the State failed to prove a `substantial step' beyond mere preparation. The court denied both motions. Aynsley also requested a special verdict form requiring the jury to specify any incident they unanimously agreed had been proven beyond a reasonable doubt. Rather than giving the jury the special verdict form, the trial court gave the unanimity instruction required by State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
The jury returned guilty verdicts on both counts. At sentencing, the trial court imposed an exceptional sentence of 300 months for each count, to run concurrently, based on the aggravating factors of future dangerousness and abuse of trust.
ANALYSIS A. Motion for New Counsel
Aynsley contends that the trial court erred by denying his motion for new counsel. Aynsley argues that his counsel did not `want to go to trial and win' and the trial court made only a limited inquiry into the basis for the objection. The State asserts that Aynsley made only vague, unsupported, conclusory allegations and, therefore, the trial court did not abuse its discretion. Although arguably the court should have inquired further into Aynsley's complaints, any error was harmless.
We review the trial court's decision on a motion for new counsel for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997). Abuse of discretion occurs when a trial court's decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). To obtain new counsel, the defendant must show good cause, including `conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.' Stenson, 132 Wn.2d at 734 (citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)).
The trial court should consider: `(1) {T}he reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings.' Stenson, 132 Wn.2d at 734 (citing State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987)). The trial court should ask the defendant about the reasons for his dissatisfaction. See State v. Lopez, 79 Wn. App. 755, 765, 904 P.2d 1179 (1995) (denying Lopez's request for new counsel without any inquiry into reasons for Lopez's dissatisfaction), disapproved on other grounds, State v. Adel, 136 Wn.2d 629, 640, 965 P.2d 1072 (1998). The defendant must offer a legitimate reason for the substitution, not merely a `conclusory, unsubstantiated statement.' State v. Staten, 60 Wn. App. 163, 169, 802 P.2d 1384 (1991) (arguing that public defender would not have enough time to devote to his case was not offering a legitimate reason).
Here, Aynsley asked that his court-appointed counsel withdraw because of a conflict of interest. The court inquired about the conflict, to which Aynsley replied: `One thing {my attorney} has apparently a developmentally disabled child that has been a victim and like I said, he clearly indicated through statements in a visit he doesn't want to go to trial and win.' The trial court then stated, `I don't think {your attorney} has any children.' Aynsley reiterated: `He has indicated to me he doesn't want to go to trial and he does not want to see me win at trial and he told me that.' The trial court did not inquire further.
The request for counsel to withdraw occurred on July 16, 1998, when Judge George Wood was presiding.
The trial court specifically addressed Aynsley's mistaken complaint that his attorney had a disabled child and Aynsley did not pursue the matter. But the court did not ask about Aynsley's statement that his attorney said he did not want to go to trial and did not want to see Aynsley win. Aynsley's allegation, if true, may have been reason to substitute counsel. Thus, by failing to ascertain any facts regarding this allegation, the trial court may have abused its discretion. Lopez, 79 Wn. App. at 767. However, the error, if any, was harmless because Aynsley does not argue that counsel's performance was ineffective.
See State v. Lopez, 79 Wn. App. 755 (denying defendant's request for new counsel is harmful only if counsel is unconstitutionally ineffective); but see Bland v. California Dept. of Corrections, 20 F.3d 1469 (9th Cir.) (1994) (holding harmless error analysis is not applicable when a defendant has been denied the right to substitute counsel).
B. Was Evidence of Telephone Call Admissible Under ER 404(b)?
Aynsley argues that the trial court erred in admitting testimony that he telephoned the babysitter and asked if she `liked leather.' The trial court admitted the testimony under ER 404(b) to prove identity. Aynsley contends that the testimony was actually used to prove his character and was highly prejudicial.
Under ER 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Before admitting such evidence, the trial court must decide whether the evidence is relevant to a material issue of the crime charged, such as identity. If it is relevant, the court must then balance its probative value against its prejudicial effect. State v. Russell, 125 Wn.2d 24, 66, 882 P.2d 747 (1994). The trial court is required to do the balancing test on the record. State v. Burgess, 43 Wn. App. 253, 265, 716 P.2d 948 (1986). We review the trial court's evidentiary rulings for abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Abuse of discretion exists if a trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons. Powell, 126 Wn.2d at 244.
Here, Michelle Pippin testified about two telephone calls from `Scott.' In the first call, Scott identified himself and asked to speak to `Dan,' Pippin's mother's boyfriend. In the second call, he asked Pippin if she `liked leather.' He also said that `he had leather skirts and jackets and boots and stuff,' and that `it was like soft.' The trial court found that the testimony was relevant to the issue of identity and balanced the prejudicial value against the probative value of the evidence on the record.
We question whether the evidence was admissible on the issue of identity. Both C.C. and S.C. identified Aynsley as their assailant.
Aynsley did not testify and offered no evidence that put his identity at issue. Further, identity was not argued by either side. Thus, identity was not at issue in the trial.
But the State argues that the evidence was admissible to show Aynsley's lust for C.C. and S.C. Evidence of a defendant's lustful disposition towards a victim has been admitted under ER 404(b). State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991); State v. Camarillo, 115 Wn.2d 60, 70, 794 P.2d 850 (1990); State v. Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 68 (1983). Here, the phone call, if prejudicial at all, demonstrated that Aynsley had a leather fetish. And because he asked C.C. and S.C. to dress in leather, he showed a lustful disposition toward them.
Thus, the evidence tends to show that Aynsley's touching of C.C. and attempted touching of S.C. were done for the purpose of sexual gratification, as required by the statute. We agree with the State that the evidence was admissible to show Aynsley's lust toward the victims. See State v. Bernson, 40 Wn. App. 729, 737-38, 700 P.2d 758 (1985).
In any event, any error in admitting the evidence was harmless. Both victims testified to Aynsley's conduct. Three witnesses testified to reports of the incidents by the victims. We find no substantial likelihood that the outcome of the trial was materially affected by evidence of the phone calls. See State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982); State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).
C. Sufficiency of the Evidence
Aynsley argues that the evidence was insufficient to support either conviction. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Criminal attempt requires `intent to commit a specific crime' and `a substantial step toward the commission of that crime.' RCW 9A.28.020(1). `Whether conduct constitutes a `substantial step' toward the commission of a crime is a question of fact.' State v. Billups, 62 Wn. App. 122, 126, 813 P.2d 149 (1991) (citing State v. Workman, 90 Wn.2d 443, 449, 584 P.2d 382 (1978)).
The Model Penal Code provides the definition of a `substantial step' for purposes of the crime of attempt in Washington. Workman, 90 Wn.2d at 452.
For conduct to be a `substantial step' it must be `strongly corroborative of the actor's criminal purpose.' Workman, 90 Wn.2d at 451 (quoting Model Penal Code sec. 5.01(2)). Conduct that may constitute a substantial step includes `enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission.' Workman, 90 Wn.2d at 451-52 n. 2 (quoting Model Penal Code sec. 5.01(2)(b)).
1. Attempted Child Molestation
Aynsley asserts that stating `touch it' with his pants unbuttoned was not a substantial step toward committing the crime of child molestation.
Under the Model Penal Code, Aynsley's conduct constituted a substantial step.
The elements of attempted child molestation in the first degree are: taking a substantial step with the intent of having sexual contact with one who is less than 12 years of age, at least 36 months younger than the perpetrator, and to whom the perpetrator is not married. RCW 9A.44.083(1); RCW 9A.28.020(1). Here, S.C. was under 12 years old when Aynsley took her into the bathroom at her grandmother's house. There, with his pants unzipped and unbuttoned, and with his penis apparently outside of his pants, he told S.C. to `touch it.' This is sufficient for the jury to find that Aynsley's actions demonstrated a substantial step toward the commission of first degree child molestation.
Aynsley was born on August 28, 1963. So, at the time the crimes occurred Aynsley was approximately 32 years old.
2. Child Molestation
Aynsley appears to argue that the trial court erred by not granting his motion at trial to dismiss count 1, child molestation in the first degree regarding C.C. Aynsley, however, fails to provide any reasoned argument of this issue, and so we need not address it. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992); Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986).
But even if we consider it, the evidence was sufficient to allow the jury to find the essential elements of the crime of child molestation beyond a reasonable doubt. C.C. was less than 12 years old when the incident occurred. The evidence showed that while driving C.C. and her sister to his residence, Aynsley put his hand on C.C.'s upper thigh and moved it to her crotch. After C.C. told him to `stop it,' Aynsley said `something like, I thought you were a big girl. I thought you could handle something like that.' He then touched her again. In jury instruction 10, the trial court defined sexual contact to mean `any touching of the sexual or other intimate parts of a person . . . for the purpose of gratifying sexual desires of either party.' When an unrelated adult with no caretaking function touches the intimate parts of a child, such action supports the inference that the touching was for the purpose of sexual gratification. State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991) (citing State v. Wilson, 56 Wn. App. 63, 68, 782 P.2d 224 (1989); State v. Ramirez, 46 Wn. App. 223, 226, 730 P.2d 98 (1986)). Thus, even on the strength of C.C.'s testimony, the evidence is sufficient to support the conviction of child molestation in the first degree.
Where, however, the touching occurs through clothing, courts often require additional evidence of sexual gratification. State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991). Here, the additional evidence is supplied by Aynsley's comments and the fact that he touched her in the same manner a second time.
D. Special Verdict Form
Aynsley argues that the trial court erred in refusing to give a special verdict form to the jury. Aynsley reasons that without the special verdict form, the jury could have concluded that the video incident constituted the crime of first degree child molestation. We disagree.
A jury must unanimously determine that the defendant committed the crime charged in the information before he can be convicted. State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980). If `the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.' State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988) (citing State v. Petrich, 101 Wn.2d 566, 570, 572, 683 P.2d 173 (1984); State v. Workman, 66 Wn. 292, 294-295, 119 P. 751 (1911)). The trial court has discretion in determining whether to submit a special verdict form to the jury. State v. Havens, 70 Wn. App. 251, 257, 852 P.2d 1120 (1993).
Here, the jury was instructed that to convict Aynsley of child molesting, it had to find, among other things, that he touched C.C. The State presented no evidence that Aynsley touched C.C. during the video episode.
At most, this amounted to an attempted child molesting. But Aynsley was not charged with attempted child molesting of C.C. If the jury followed the instructions, it could not have convicted Aynsley of child molestation for the video incident. We presume that jurors follow the instructions. State v. Grisby, 97 Wn.2d 493, 509, 647 P.2d 6 (1982). This is not a case where multiple acts could have constituted the molestation of C.C.
Further, because the jury convicted Aynsley of molesting C.C., it did not need to consider whether he attempted to molest her in the car incident.
Any confusion between the car incident as an attempt and the video incident as an attempt would arise only if the jury considered both as possible attempts. Finally, Aynsley was protected by the Petrich instruction that allowed the jury to convict only if they unanimously agreed upon the incident.
The trial court gave an instruction stating that the jury had to unanimously agree which act constituted the offenses charged. Hence, even if the jury had reached the lesser included offense on the charge regarding C.C., there would have been no error.
E. Exceptional Sentence
Aynsley contends that the trial court erred in imposing an exceptional sentence based on future dangerousness and abuse of trust. Specifically, Aynsley argues that future dangerousness is not supported by the record and abuse of trust does not justify a departure from the standard range as a matter of law.
Under the Sentencing Reform Act of 1981, a trial court must impose a sentence within the standard range unless it finds substantial and compelling reasons to justify a departure. RCW 9.94A.120(2). `In determining whether an exceptional sentence upward should be upheld, we consider whether (1) the reasons given by the trial court to justify the exceptional sentence are supported by the record; (2) those reasons justify a departure from the standard range as a matter of law; and (3) the sentence imposed is clearly excessive.' State v. Overvold, 64 Wn. App. 440, 444, 825 P.2d 729 (1992); RCW 9.94A.210(4).
`Future dangerousness is a nonstatutory aggravating factor that may justify the imposition of an exceptional sentence for sexual offenses.' State v. Bedker, 74 Wn. App. 87, 96, 871 P.2d 673 (1994) (citing State v. Barnes, 117 Wn.2d 701, 711, 818 P.2d 1088 (1991)). `A future dangerousness aggravating factor applies only to sexual offenses,' and in order to apply, the defendant must have `a history of similar criminal acts' and `not {be} likely to be amenable to treatment.' Bedker, 74 Wn. App. at 96. Here, Aynsley argues that there is no evidence he is not likely to be amenable to treatment. Relying on State v. McNallie, 123 Wn.2d 585, 870 P.2d 295 (1994) (failing to complete three or four sexual deviancy treatment programs supports finding of non-amenability), Aynsley contends that because he does not have a treatment history, a mental health professional's opinion is necessary. The State asserts that the presentence investigation report (PSI) contains evidence that Aynsley was not amenable to treatment. The State is correct.
Aynsley argues that in `determining any sentence, the trial court may rely on no more information than is . . . admitted, acknowledged, or proved in a trial or . . . sentencing.' RCW 9.94A.370(2). But RCW 9.94A.370(2) also states: `Acknowledgement includes not objecting to information stated in the presentence reports.' The record is devoid of evidence that Aynsley objected to the presentence report.
The evidence in the PSI suggests that Aynsley has both components of future dangerousness. Aynsley's prior convictions include lewd conduct and fourth degree assault with sexual motivation. At the time the PSI was written, Aynsley had:
{n}ot complied with any of the treatment providers and at least one certified provider, Brooke Carnahan, concludes today that Aynsley is not amenable to treatment and is not safe to be at large in the community without high risk of reoffending. The lack of amenability to treatment is borne out in his failures and/or refusals to comply with previous treatment programs when given the opportunity.
This evidence is sufficient to support the trial court's findings of fact for an exceptional sentence, which stated:
1. The Defendant was placed in a position of trust as a surrogate parent as a babysitter.
2. The Defendant failed to comply with previous sex offender evaluations.
The February 1998 psychosexual assessment states that the Defendant is at high risk to reoffend even if treated. At least one therapist currently believes Aynsley is not amenable to treatment.
3. The Defendant has a prior extensive uncounted misdemeanor history, many of which cause concern as relating to sexual conduct or his sexual deviancy.
Abuse of a position of trust is also a statutory aggravating factor.
RCW 9.94A.390(2)(d)(iv). `When analyzing abuse of trust, the focus is on the defendant. The inquiry is whether the defendant was in a position of trust, and further whether this position of trust was used to facilitate the commission of the offense.' Bedker, 74 Wn. App. at 95. Here, Aynsley was babysitting C.C. and S.C. when he committed the crimes of child molestation and attempted child molestation. Aynsley was in a position of trust as a surrogate parent, and he abused this trust. The trial court did not err in finding an abuse of trust.
Aynsley also argues that `{b}y definition, child molestation can not occur without some type of abuse of trust.' But the elements of child molestation do not include abuse of trust. See RCW 9A.44.083. And Aynsley cites no authority to support his assertion that the Legislature considered abuse of trust when establishing the standard range for that crime.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, C.J.
We concur: SEINFELD, J., HUNT, J.