Opinion
No. 34046-1-II.
October 16, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-8-01323-8, Rosanne Buckner, J., entered October 21, 2005.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
The Pierce County Juvenile Court found C.C. guilty of molesting five of his young female family members. On appeal, C.C. (born on February 11, 1992) challenges the admission of child hearsay; the trial court's capacity findings; the constitutionality of the child molestation and indecent liberties statutes; and the effectiveness of his counsel for failing to challenge Victim Four's capacity to testify. We affirm.
Because of the nature of this case, some confidentiality is appropriate. Accordingly, we have determined, under RAP 3.4, not to use the name of the juveniles involved in the case caption or the body of this opinion.
The State charged C.C. with three counts of first degree child molestation (Counts I through III); one count of second degree rape (Count IV); two counts of indecent liberties (Counts V and VII); and one count of indecent exposure (Count VI). The trial court acquitted C.C. of Count VII.
FACTS
C.C. and all five victims in this case are related. From December 11, 2002, through February 27, 2005, C.C. resided with his brothers, mother, and her boy friend, at a house on M Street in Tacoma, Washington. Occasionally, C.C.'s mother would leave various young family members in C.C.'s care while she ran errands.
On the evening of February 27, 2005, one five-year-old girl told her ten-year-old cousin that C.C. had molested her. A series of conversations between various family members revealed that C.C. had had inappropriate sexual contact with other young female relatives.
Following these conversations the five-year-old girl's uncle confronted C.C.'s mother and an argument ensued. C.C.'s mother called the police. When the police arrived, the adult relatives reported that C.C. had been molesting five young family members.
After reading C.C. his Miranda warnings, Detective John W. Bair of the Tacoma Police Department interviewed C.C. During the interview, C.C., who was then 13 years old, admitted to having had sexual intercourse with his developmentally disabled cousin, once or twice, a year or two ago. C.C. said that he put his penis into her vagina for about a minute or less and that it did not feel right so he stopped.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
C.C. said he understood his rights.
Although C.C. denied remembering doing anything else, he also told Detective Bair that he tried to take one of the younger girl's clothes off because she had wet herself. When questioned about a different girl, C.C. said, "I never did anything wrong with her," and stated that he had only taken her clothes off to give her a bath. 3 Report of Proceedings (RP) at 291.
C.C. next told Detective Bair that three or four years ago, he had sexual intercourse with another cousin because "[s]he wanted to do it and asked me to do it with her. I had sexual intercourse with her for less than 30 seconds." 3 RP at 291. C.C. denied doing anything to one of the other children other than baby-sitting her.
Following several weeks of trial, the trial court found C.C. guilty as charged on Counts I through VI. The trial court acquitted C.C. of Count VII (charged as an alternative to Count I); entered findings of facts and conclusions of law; and sentenced C.C. to 45 to 108 weeks commitment in juvenile rehabilitation. C.C. appeals.
Analysis
Child Hearsay
C.C. first argues that the trial court abused its discretion when it admitted unreliable hearsay statements of three child victims. C.C. further contends that the trial court failed to base its findings on all the Ryan reliability factors. C.C. does not challenge the trial court's RCW 9A.44.120(2) findings; instead, he only challenges the reliability of the out-of-court statements that the three youngest victims made to several adults.
State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984) (established several factors for trial courts to consider in determining whether a child's out-of-court statements are reliable. These factors include: child's motive to lie; child's general character; number of people who heard the statement; spontaneity of statement; timing of statement and relationship between child and witness; possibility that child's recollection is faulty; and circumstances surrounding statement, i.e., whether there is any reason to suppose that child misrepresented defendant's involvement.). Contrary to C.C.'s assertion, it is not necessary for every factor to be satisfied before the trial court may find a child's hearsay statement reliable. State v. Swan, 114 Wn.2d 613, 652, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
Under RCW 9A.44.120, an out-of-court statement made by a child when under the age of 10 describing any act of sexual contact is admissible if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
Generally, RCW 9A.44.120 governs the admission of a child's out-of-court statements. Reliability does not depend on whether the child is competent to take the witness stand but on whether the comments and circumstances surrounding the statement indicate that it is reliable. State v. Borboa, 157 Wn.2d 108, 120, 135 P.3d 469 (2006); State v. Swan, 114 Wn.2d 613, 648, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
The trial court is necessarily vested with considerable discretion in evaluating a statement's indicia of reliability. State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003) (citing Swan, 114 Wn.2d at 648). A trial court abuses this discretion only when its decision is manifestly unreasonable or is based on untenable reasons or grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). We will affirm the trial court's decision to admit child hearsay if, taking the record in the light most favorable to the State, the trial court reasonably could have found the child's statements more likely true than not true and the evidence shows sufficient indicia of reliability. State v. Karpenski, 94 Wn. App. 80, 105-06, 971 P.2d 553 (1999).
Here, because three of the child victims were under 10 years of age, the trial court made specific findings under the Ryan factors for each of the statements the three child victims made to their adult relatives, the child interviewer, and the nurse practitioner. We examine the allegations against each child victim's out-of-court statements in turn.
A. Victim One's Out-of-Court Statements
The charges under Count I relate to Victim One. Victim One was the only child under the age of 10 found competent to testify at trial.
C.C. asserts that Victim One's (born on February 27, 1996) statements to her mother, aunt, grandmother, and uncle were unreliable because the statements are inconsistent with each other; the witnesses' recollections of her statements are inconsistent; and the statements were the result of suggestions by the family. We disagree.
Here, the trial court admitted the nurse's testimony under both RCW 9A.44.120 and ER 803(a)(4) (statements for purposes of medical diagnosis or treatment). C.C. does not challenge the admission of the statement under ER 803(a)(4). The failure to object to the admission of evidence at trial or to testimony from State witnesses precludes appellate review. State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000). Thus, we assume that the trial court properly admitted the child's statements to the nurse under ER 803(a)(4) and do not address the admissibility of Victim One's statements to the nurse under RCW 9A.44.120. See State v. Grant, 83 Wn. App. 98, 105, 920 P.2d 609 (1996) (held erroneous admission of evidence under ER 609(a) harmless where evidence properly admissible under ER 404(b)).
ER 803(a)(4) provides:
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
In this case, Victim One disclosed abuse to several people including her aunt; grandmother; uncle; mother's friend; nurse practitioner, Cheryl Hanna-Truscott; and the forensic child interviewer, Kim Brune. C.C. does not deny that multiple people heard Victim One's statements but, rather, he contends that the statements, as relayed by the witnesses, were inconsistent with each other. But inconsistencies in testimony are an appropriate subject for cross-examination and relate to its weight, not its admissibility. State v. Stange, 53 Wn. App. 638, 642, 769 P.2d 873, review denied, 113 Wn.2d 1007 (1989). Victim One was subject to cross-examination, as were the testifying adult witnesses.
C.C. next asserts that Victim One's statements were not "spontaneous." We disagree.
For purposes of child hearsay analysis, statements are spontaneous even if made in response to questions as long as the questions are not leading, do not suggest an answer, and do not supply the child with details. Swan, 114 Wn.2d at 649.
In State v. Henderson, 48 Wn. App. 543, 740 P.2d 329, review denied, 109 Wn.2d 1008 (1987), the court held that " Ryan compels a less narrow definition of `spontaneous,' one that considers the entire context in which the child makes the statement." 48 Wn. App. at 550. In Henderson, the child witness:
volunteered the information that her father stuck his fingers in her vagina when Detective Hinds asked [the child] why it hurt her when her father touched her vagina. His question was neither leading nor suggestive. Thus, the statement qualifies as "spontaneous."
48 Wn. App. at 550. Likewise, here, Victim One supplied her own details about the abuse in response to open-ended questions. Victim One disclosed abuse to several adults she trusted and the substance of her statements was consistent. Moreover, C.C. admitted to the investigating detective that C.C. had engaged in sexual intercourse with her "three or four years ago." 8 RP at 947. The trial court did not abuse its discretion by admitting evidence of Victim One's statements.
In 2000, C.C.'s stepfather discovered C.C. and Victim One alone in C.C.'s bedroom engaged in what appeared to be sexual activity. Victim One was four years old at the time of the incident. Both C.C. and Victim One were subsequently punished. C.C. was eight or nine years old.
B. Victim Two's Out-of-Court Statements
The charges under Count II relate to Victim Two. The trial court determined that Victim Two was not competent to testify at trial.
C.C. similarly asserts that Victim Two's (born on October 27, 2001) statements to her grandmother, aunts, father, and her 10-year-old sister were unreliable.
As discussed above, the trial court admitted Victim Two's statements to the nurse practitioner under RCW 9A.44.120 and ER 803(a)(4). C.C. does not challenge the admissibility of the nurse's testimony under ER 803(a)(4) and any error in admitting them under RCW 9A.44.120 is harmless.
In addition, Victim Two's version of events remained substantially consistent throughout her disclosure to the various family members. Victim Two's initial disclosure was to her 10-year-old sister (Victim Five). In response to her sister's inquiry (whether C.C. had ever touched Victim Two), she said: "Yeah, he touched my private, and he told me not to tell, and it hurt." 4 RP at 564. Victim Two, who was three years old at the time of this disclosure, provided her own details of the abuse without any suggestions from her sister or any of the adults. See generally, Swan, 114 Wn.2d at 633 (held accurate description by a three-year-old indicated precocious sexual knowledge that was considered corroborative of abuse). The record supports the trial court's finding that Victim Two's statements were spontaneous and reliable.
C. Victim Three's Out-of-Court Statements
The charges under Count III relate to Victim Three. The trial court determined that Victim Three was not competent to testify at trial.
C.C. repeats his arguments, asserting that Victim Three's (born on December 11, 1999) statements to the nurse practitioner were unreliable and improperly admitted. C.C. also alleges that all of Victim Three's statements were not spontaneous because they were a result of suggestion.
As discussed above, the trial court admitted Victim Three's statements to the nurse practitioner under RCW 9A.44.120 and ER 803(a)(4). C.C. does not challenge the admissibility of the nurse's testimony under ER 803(a)(4) and any error in admitting them under RCW 9A.44.120 would be harmless.
Moreover, Victim Three's statements were spontaneous and admissible hearsay. Although several of Victim Three's statements occurred in the presence of others, there is no evidence showing that anyone suggested that she had been sexually abused or how the abuse occurred. Victim Three's statements were made in response to questions that were neither leading nor suggestive. See State v. Borland, 57 Wn. App. 7, 14, 786 P.2d 810, review denied, 114 Wn.2d 1026 (1990) (statements of four-year-old to her mother and grandmother that her uncle had abused her were reliable where mother and grandmother, although predisposed to believe the child, would also presumably be reluctant to verify false allegations against their son and brother). Sufficiency of the Evidence C.C. next argues that the evidence at trial was insufficient as a matter of law to prove that: (1) he committed "sexual contact" as charged in Counts I and V; (2) Victim Four lacked the capacity to consent to sexual activity with C.C. as charged in Count IV; and (3) C.C. committed indecent exposure or that he revealed his penis to his cousin, Victim Five, knowing that it would cause reasonable affront or alarm.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant committed the elements of the crime charged beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). We defer to the trier of fact on issues involving conflicting testimony, credibility of the witnesses, and the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997). In addition, circumstantial evidence is no less reliable than direct evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).
A. "Sexual Contact"
C.C. asserts that the testimony did not support the convictions on Counts I and V, and, at most, the testimony only supported an attempt to commit the crimes charged. C.C. also argues that touching the buttocks, whether bare or through the clothing, does not amount to "sexual contact." We disagree.
The statute does not restrict "sexual contact" to touching the genitalia or breasts. Direct contact with breasts and genitalia is "sexual contact" as a matter of law. In re Welfare of Adams, 24 Wn. App. 517, 519, 601 P.2d 995 (1979). On the other hand, determining which anatomical areas, other than genitalia and breasts, are intimate is a question for the trier of fact. Adams, 24 Wn. App. at 520 (citing State v. Buller, 31 Or. App. 889, 571 P.2d 1263 (Or.Ct.App. 1977); State v. Turner, 33 Or. App. 157, 575 P.2d 1007 (Or.Ct.App. 1978)). Courts have found hips, abdomen, and buttocks to be intimate parts for purposes of the statute. Adams, 24 Wn. App. at 519-20.
C.C. further claims that modern day social norms do not treat the buttocks as an intimate part and, thus, a reasonable person would not know that touching of the buttocks was prohibited by statute. This argument is without merit. The Adams court considered and rejected a similar argument:
We recognize that the community standards of decency, propriety and morality have degenerated markedly since the time of the decision in State v. Stuhr, 1 Wn.2d 521, 96 P.2d 479 (1939), but we are satisfied that they do not yet countenance the type of conduct testified to in this case [defendant touched victim's hips in an attempt to remove her pants].
24 Wn. App. at 521 n. 2.
1. Count I: First Degree Child Molestation
A person commits the crime of first degree child molestation when he has "sexual contact" with another who is less than 12 years old, not married to the perpetrator, and the perpetrator is at least 36 months older than the victim. RCW 9A.44.083. "Sexual contact" is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." RCW 9A.44.010(2).
C.C. argues that there was insufficient evidence of "sexual contact" with Victim One because her testimony did not include any statements that C.C. actually touched her buttocks. At trial, Victim One provided reluctant testimony, which did not include any testimony that C.C. actually touched her.
As discussed above, Victim One's out-of-court statements to the forensic child interviewer, Brune, and the registered nurse, Hanna-Truscott, were admitted as substantive evidence under RCW 9A.44.120 and ER 803(a)(4). Victim One told Brune that while she was in bed at C.C.'s house, he approached her, pulled her pants down, and touched her buttocks with his hand and moved it around in a rubbing motion.
Victim One also told Hanna-Truscott that C.C. tried to get on top of her, tried to pull her clothes down, but she pulled them back up and left the room; that C.C. told her not to tell anyone; and that she was scared. The trial court found Victim One's accounts credible and we will not substitute our judgment. Stange, 53 Wn. App. at 640.
2. Count V: Indecent Liberties
C.C. also contends that there was insufficient evidence of "sexual contact" with Victim Five (born on March 14, 1994) because she did not testify that C.C. actually touched her buttocks with his hand.
A person commits the crime of indecent liberties when he, by forcible compulsion, knowingly causes another person who is not his spouse to have sexual contact with him. Former RCW 9A.44.100 (2001).
The State limited the charge of indecent liberties against C.C. to committing the crime by forcible compulsion.
Again, C.C. bases his argument solely on Victim Five's testimony; but her testimony was not the only evidence on this charge. Hanna-Truscott testified that Victim Five told her about an incident which occurred when Victim Five was supposed to spend the night at C.C.'s house. She testified that Victim Five told her that C.C. had pulled Victim Five into a room, closed the door, pulled down his pants, and started touching her on her "private" area (9 RP at 1135); C.C. held his "private" with his hand while holding Victim Five's "butt" in his other hand (9 RP at 1136); C.C. told Victim Five not to tell anyone. Immediately thereafter, Victim Five called her mother and lied about not feeling well so that she could return home and would not have to spend the night. Victim Five's mother's testimony also corroborated Victim Five's statement to Hanna-Truscott.
Thus, there was sufficient evidence showing that, at different times, C.C. pulled down Victim One's and Victim Five's pants; touched their bare buttocks (intimate parts); and, thus, committed "sexual contact" with both victims as charged.
Alternatively, C.C. argues that the touching was not "sexual contact" because it was through the victims' clothing. C.C.'s argument fails. Even if C.C. only touched the victims' buttocks through their clothing, "sexual contact" may occur through the clothing and the contact does not have to be by the hand of the aggressor. Adams, 24 Wn. App. at 519.
B. Count IV: Victim Four's Mental Capacity to Consent to Sexual Activity
C.C. next contends that there was insufficient evidence to convict him of the crime of second degree rape against his mentally retarded cousin (born on October 11, 1992). Specifically, C.C. argues that the State failed to prove that Victim Four was incapable of consenting to sexual activity with C.C. by reason of "mental incapacity." C.C. does not dispute the trial court's finding that C.C. had engaged in sexual intercourse with Victim Four.
Victim Four's special education teacher, Marie Martindale, testified that the child's intelligence quotient (I.Q.) was 46 and that Victim Four was cognitively operating at or below a second grade level. The mean I.Q. is 100. Martindale further testified that Victim Four had the mental age of a seven-or eight-year-old and was not street wise. Hanna-Truscott testified that Victim Four was "significantly delayed" and it was "really obvious upon meeting her." 9 RP at 1121.
To commit the crime of second degree rape, a person engages in sexual intercourse with another person when that person is incapable of consent by reason of "being physically helpless or mentally incapacitated." RCW 9A.44.050(1)(b). "Mental capacity" is a condition existing at the time of the offense which "prevents a person from understanding the nature or consequences of the act of sexual intercourse." RCW 9A.44.010(4).
When determining whether a person understands the nature or consequences of sexual intercourse, the trier of fact may consider the alleged victim's I.Q., mental age, ability to understand fundamental, nonsexual concepts, mental faculties generally, and ability to translate information acquired in one situation to a new situation. State v. Ortega-Martinez, 124 Wn.2d 702, 714, 881 P.2d 231 (1994). The trier of fact may also evaluate the alleged victim's testimony and other relevant evidence, including the victim's demeanor, behavior, and clarity on the stand. Ortega-Martinez, 124 Wn.2d at 714.
Here, Victim Four was 12 years old at the time of trial. She testified that when she was 11, C.C. had put his penis in her vagina. As a matter of law, an 11-year-old child cannot consent to sexual intercourse with another. In addition, viewing the evidence in the light most favorable to the State, as we must, a rational trier of fact could have found beyond a reasonable doubt that Victim Four had a condition preventing her from meaningfully understanding the nature or the consequences of sexual intercourse, including possible pregnancy, at the time of the incident and that she was incapable of consenting by reason of mental incapacity. RCW 9A.44.050(1)(b).
C. Count VI: Indecent Exposure
C.C. next argues that the State failed to prove that he exposed himself "knowing that such conduct is likely to cause reasonable affront or alarm" and, thus, his indecent exposure conviction must be reversed. Br. of Appellant at 62 (quoting former RCW 9A.88.010 (2001)). C.C. asserts that when he revealed his penis to his cousin (Victim Five) and asked her to show him "hers," he did not do so knowing that this conduct was likely to cause reasonable affront or alarm to her because when he exposed his penis to her, he did so in the back seat of a car, in the dark, with no adults present, and that "[n]one of these factors tends to show a knowledge that the act would cause reasonable affront or alarm except, perhaps, the darkness and the fact that the adults were gone." Br. of Appellant at 63.
C.C. further contends that the nature of the act itself is "the kind of thing children do when adults are not around"; that C.C. may have desired privacy, but not because he planned to affront or alarm his cousin. Br. of Appellant at 63.
A person is guilty of indecent exposure if he intentionally makes any open and obscene exposure of his person to another under the age of 14, knowing that such conduct is likely to cause reasonable affront or alarm. Former RCW 9A.88.010.
In this case, when C.C. exposed his penis and told Victim Five to look at it, she told him she did not want to see it and that she thought it was "gross" and promptly bolted from the car. 2 RP at 210. C.C. argues that her reaction to C.C. was not "affronted or alarmed in the manner a child would be if an adult or a child who was a stranger pulled out his penis and showed her." Br. of Appellant at 63. We disagree.
C.C.'s testimony provided adequate evidence to support the trial court's finding that C.C. knew his actions would cause reasonable affront or alarm. C.C. admitted that he knew it was wrong to show his penis to Victim Five. The record contains substantial evidence to support the trial court's decision that C.C. exposed himself in secret. Constitutionality of Child Molestation and Indecent Liberties Statutes
C.C. next argues that, even if we find that there was sufficient evidence to convict him of Counts I and V, his convictions should nevertheless be vacated because the statutes under which he was convicted are too vague. Specifically, C.C. asserts that "sexual contact," as required in both RCW 9A.44.083 (child molestation) and former RCW 9A.44.100 (indecent liberties), is "circularly defined" resulting in "[v]irtually the whole body could be subsumed under [other intimate parts]." Br. of Appellant at 51. We disagree.
We review the constitutionality of a statute de novo. State v. Eckblad, 152 Wn.2d 515, 518, 98 P.3d 1184 (2004) (citing Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997), cert. denied, 522 U.S. 1077 (1998)). Unless the First Amendment of the United States Constitution is implicated, challenges for vagueness "are evaluated in light of the particular facts of each case." Eckblad, 152 Wn.2d at 518 (quoting City of Bremerton v. Spears, 134 Wn.2d 141, 159, 949 P.2d 347 (1998)). As the challenger, C.C. has the burden to demonstrate beyond a reasonable doubt that: (1) the statute fails to define the criminal offense with sufficient definiteness that a person of ordinary intelligence can understand it; or (2) the statute does not provide standards sufficiently specific to prevent arbitrary enforcement. Eckblad, 152 Wn.2d at 518 (citing City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
A statute is not unconstitutionally vague "merely because a person cannot predict with complete certainty the exact point at which his actions would be classified as prohibited." City of Seattle v. Eze, 111 Wn.2d 22, 27, 759 P.2d 366 (1988). Thus, "impossible standards of specificity" or "mathematical certainty" are not required because some degree of vagueness is inherent in the use of language. Eze, 111 Wn.2d at 26-27. Appellate courts consider the context of the entire statute to determine a sensible, meaningful, and practical interpretation. Douglass, 115 Wn.2d at 177.
C.C. continues to challenge RCW 9A.44.010(2)'s definition of "sexual contact," asserting that "intimate parts" is not defined with sufficient precision and, thus, both statutes are unconstitutionally vague. We disagree.
As discussed above, "sexual contact" with the victim is an element the State is required to prove under both the child molestation (RCW 9A.44.083) and indecent liberties (former RCW 9A.44.100) statutes.
In this case, the trial court convicted C.C. of touching the buttocks of two victims; a part C.C. insists is not inherently more intimate than the thighs or belly." Br. of Appellant at 52. C.C. further argues that the definition of sexual contact "simply has no end point at all." Br. of Appellant at 52.
The Adams court, discussed above, long ago rejected a similar vagueness challenge to the indecent liberties statute where the juvenile defendant was accused of touching the victim's hips and lower abdomen in an attempt to unbutton her pants. Adams, 24 Wn. App. at 520. The Adams court stated:
In determining what is fair notice to a citizen, it is not necessary that the statute spell out every detail. Some aspects of the prohibited conduct may be left to the commonly accepted community sense of decency, propriety and morality.
24 Wn. App. at 520 (citing Stuhr, 1 Wn.2d at 527).
The Adams court further elaborated:
As with the buttocks, we believe that the hips are a sufficiently intimate part of the anatomy that a person of common intelligence has fair notice that the nonconsensual touching of them is prohibited, particularly if that touching is incidental to other activities which are intended to promote sexual gratification of the actor.24 Wn. App. at 520. See also State v. Johnson, 96 Wn.2d 926, 930, 639 P.2d 1332 (1982) (relying on Adams and State v. Galbreath, 69 Wn.2d 664, 419 P.2d 800 (1966), when rejecting an "as applied" vagueness challenge to the indecent liberties statute where defendant touched the five-year-old victim's buttocks with a washcloth), overruled on other grounds by State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007); State v. Calle, 125 Wn.2d 769, 888 P.2d 155 (1995).
The definition of "sexual contact" under RCW 9A.44.010(2), discussed above, is narrowed to only include touching of "the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party." (Emphasis added.) Washington courts have consistently rejected vagueness challenges to the indecent liberties statute. See State v. Halstien, 122 Wn.2d 109, 118-20, 857 P.2d 270 (1993) (discussing Washington cases where the courts have rejected vagueness challenges to the indecent liberties statute, as well as other statutes containing language similar to the juvenile sexual motivation statute) (citing Johnson, 96 Wn.2d at 929-30; Galbreath, 69 Wn.2d at 664; State v. Bohannon, 62 Wn. App. 462, 468, 814 P.2d 694 (1991); Adams, 24 Wn. App. at 520).
C.C. has not met his burden of proving that the indecent liberties and child molestation statutes are unconstitutionally vague for using the phrase "sexual contact." Further, C.C's conduct as charged was:
of such a nature that a person of common intelligence could fairly be expected to know that under the circumstances the parts touched were intimate and, therefore the touching was improper. The statute is directed to protecting the parts of the body in close proximity to the primary erogenous areas which a reasonable person could deem private with respect to salacious touching by another. A person of common understanding should have no trouble in recognizing that the hips and lower abdomen are such parts.
Adams, 24 Wn. App. at 521 (footnotes omitted). C.C.'s Capacity to Commit Rape and Indecent Exposure
C.C. next argues that the trial court erred in holding him criminally responsible for "the childish act of showing his cousin his penis and asking for a reciprocal peek." Br. of Appellant at 59. Specifically, C.C. challenges the trial court's failure to hold a hearing to determine his capacity to commit the crimes charged in Counts IV and VI because he "could have" been 11 years old at the time. Br. of Appellant at 55, 59. C.C. further argues that the State failed to prove that he was 12 at the time the crimes charged in Counts IV and VI occurred.
RCW 9A.04.050 provides in part:
Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.
In this case, the trial court held a capacity hearing to determine whether C.C. (born on February 11, 1992) had the capacity to commit the crimes alleged in Counts III, IV, and VI. At the hearing, the trial court did not make a specific finding of capacity on Counts IV and VI, but after evidence presented at trial indicated that the acts alleged in Count VI could have occurred before C.C.'s 12th birthday, the trial court made a specific finding of capacity on Counts IV and VI in its oral ruling. It also added Count VI to its written capacity findings. As to both counts, substantial evidence supports the trial court's capacity finding.
Count IV covered the charging period between March 14, 2003 to February 27, 2005. Evidence presented at trial included Victim Five's testimony that the crime occurred in September of 2004. This date was after C.C. turned 12 years old and is outside of the capacity question.
The State has the burden to rebut the presumption of incapacity by clear and convincing evidence. RCW 9A.04.050; State v. Q.D., 102 Wn.2d 19, 26, 685 P.2d 557 (1984). It is not necessary for the State to prove that the child understood the illegality or the legal consequences of an act but to prove that the child had sufficient capacity to understand the act and know that the act was wrong. State v. J.P.S., 135 Wn.2d 34, 37-38, 954 P.2d 894 (1998).
We review whether there was evidence from which a rational trier of fact could find capacity by clear and convincing evidence. J.P.S., 135 Wn.2d at 37 (citing State v. Linares, 75 Wn. App. 404, 410, 880 P.2d 550 (1994); State v. K.R.L., 67 Wn. App. 721, 724, 840 P.2d 210 (1992)). The test for capacity is whether C.C. knew the act was wrong at the time he committed the offense and not that he realized it was wrong after the fact. K.R.L., 67 Wn. App. at 725. Capacity is not an element of the crime; rather, it is a general determination that the child understood the act and its wrongfulness. Q.D., 102 Wn.2d at 24. A capacity determination must be made in reference to the specific act charged. Q.D., 102 Wn.2d at 26.
In addition to the nature of the crime, other elements may be relevant in determining whether the child knew the act was wrong: (1) the child's age and maturity; (2) whether the child exhibited a desire for secrecy; (3) whether the child admonished the victim not to tell; (4) prior conduct similar to that charged; (5) any consequences that attached to the prior conduct; and (6) acknowledgement that the behavior is wrong and could lead to detention. Q.D., 102 Wn.2d at 27. Additionally, the testimony of those acquainted with the child and the testimony of experts is also relevant. K.R.L., 67 Wn. App. at 726.
Here, the charging period for the crime charged in Count VI covered a period of time when C.C. was 11 and 12 years old. Thus, the State had the burden of rebutting the presumption of incapacity by clear and convincing evidence. Q.D., 102 Wn.2d at 26. C.C. turned 11 on February 11, 2003. The State alleged that the offense charged in Count VI occurred between
March 14, 2003 and March 14, 2004. C.C. would have been either 11 or 12 at the time of the incident. If C.C. was 11, he was one year away from the age of presumed capacity.
First, nearly all the incidents the victims testified about occurred after the adults were absent. This evidence supports the trial court's finding that C.C. desired secrecy.
Second, virtually all the victims testified that C.C. told them not to tell or he would beat them up. This evidence supports the trial court's finding that C.C. admonished his victims not to tell.
Third, witnesses testified to two separate prior incidents where C.C. was caught engaged in some type of sexual activity with two separate cousins (both cousins were four years old). At the time of one incident, C.C. was eight or nine. C.C.'s stepfather testified at the capacity hearing that he "whupped" C.C. and told him the behavior was inappropriate and made it very clear that it was not acceptable. 2 RP at 78. The above incidents provided the trial court with substantial evidence to support its finding that there was prior conduct similar to that charged and that there were consequences for the conduct.
Finally, C.C.'s stepfather testified that he told C.C. that it was inappropriate to have sex at the age of 12. In addition, C.C. indicated clearly in his statement to the detective that he knew that certain actions were wrong. C.C. admitted at trial that he knew then that it would be wrong to touch or even think about touching little girls in their private areas. Thus, there was substantial evidence to support the trial court's finding that C.C. had the capacity to commit the crime of indecent exposure. Ineffective Assistance of Counsel
C.C. argues that his trial counsel was ineffective for failing to request that the trial court hold a competency hearing and make a finding as to whether Victim Four (12 at the time of trial) was competent to testify at trial. C.C. asserts that he was prejudiced because, had there been a hearing, Victim Four would likely have been found incompetent to testify. C.C. asks that we reverse his conviction as to second degree rape because Victim Four's testimony resulted in his conviction of that charge (Count IV).
To show ineffective assistance of counsel, an appellant must prove both that (1) his attorney's performance was deficient and (2) this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). To satisfy the prejudice prong of the ineffective assistance of counsel claim, the appellant must show that counsel's performance was so inadequate that there is a reasonable probability that the result would have differed, thereby undermining our confidence in the outcome. Strickland, 466 U.S. at 694.
A. Victim Four's Competency to Testify at Trial
C.C. asserts that Victim Four lacked sufficient mental capacity to testify at trial because (1) Victim Four is mentally retarded with an I.Q. of 46; (2) Victim Four sometimes gave nonsensical responses when interviewed prior to trial; (3) at trial, Victim Four was confused as to events that happened on the disclosure day; and (4) Victim Four gave numerous contradictory answers, first stating that nothing had happened with C.C., but later saying that something had happened. We disagree.
A child is competent to testify at trial if that child has: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence to receive an accurate impression of the matter about which the witness is to testify; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words the witness's memory of the occurrence; and (5) the capacity to understand simple questions about it. C.J., 148 Wn.2d at 682. A child's competency to testify at trial is determined within the framework of RCW 5.60.050. C.J., 148 Wn.2d at 682.
Under RCW 5.60.050, the following persons are incompetent to testify at trial:
(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
We review a trial court's determination of child competency for an abuse of discretion. C.J., 148 Wn.2d at 682. The party opposing the witness has the burden to prove that the witness is incompetent. State v. Watkins, 71 Wn. App. 164, 173, 857 P.2d 300 (1993). A witness with a low I.Q. is not per se incompetent. See State v. Smith, 30 Wn. App. 251, 633 P.2d 137 (1981), aff'd, 97 Wn.2d 801 (1982) (held a 38-year-old witness, while severely retarded, with the mental age of four and I.Q. of 23, was competent to testify because the witness was able to understand the obligation to tell truth and was able to relate basic facts of the incident).
Here, Victim Four testified that she knew she had to tell the truth. Although Victim Four was hesitant to testify about the incidents of abuse because she was "embarrass[ed]" (8 RP at 977), she eventually testified that C.C. touched her breasts and put his penis in her vagina. Her testimony was corroborated by the testimony of other State witnesses. C.C. has failed to meet his burden of showing that he was prejudiced.
Because the evidence was sufficient to support the trial court's guilty verdicts beyond a reasonable doubt, the child molestation and indecent liberties statutes are not unconstitutionally vague, and C.C.'s trial counsel was not ineffective, we affirm.
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.
BRIDGEWATER, J. and VAN DEREN, A.C.J., concur