Opinion
No. 36938-9-II.
April 28, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-02160-0, Chris Wickham, J., entered November 5, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
Daylon Rhoden appeals his conviction and sentence on multiple counts of child rape and molestation of his stepdaughters, arguing insufficiency of the evidence, unconstitutional vagueness of a community custody provision, and the inappropriateness of other community custody conditions. Pro se, he raises additional arguments based on ineffective assistance of counsel. We affirm the convictions, but remand for resentencing.
FACTS
We derive the facts from the trial evidence.
In 2000, Rhoden met Jeanette Larson in an online card game. During their online conversations, Rhoden learned that Larson had two daughters. In October 2000, Rhoden moved in with Larson and her daughters, JMB and GRB. Rhoden and Larson married in December 2001 but separated in May or early June 2003. In 2006, JMB and GRB reported that Rhoden had sexually abused them.
JMB was born February 27, 1988; GRB was born April 9, 1992.
GRB testified that Rhoden sexually abused her when she was between 9 and 11 years old. She remembered him coming up to her in the kitchen, putting his hand in her pants, and moving his hand. She also reported that he touched her "vaginal area" more than 20 times. I Report of Proceedings (RP) at 169.
JMB testified that the first incident occurred when she was 13. Rhoden played card games online while, at the same time, he masturbated and digitally penetrated her. JMB also reported that he performed oral sex on her "two or three times, I guess" when she was 13 years old. I RP at 57. In addition, she testified to at least three other incidents where he touched her private parts when she was 14 years old.
The State charged Rhoden with one count of first degree child rape (count I) and three counts of first degree child molestation (counts II, III, IV) of GRB. The State also charged him with two counts of second degree child rape (counts V, VI), two counts of second degree child molestation (counts VII, VIII), two counts of first degree incest (counts IX, X), and two counts of second degree incest (counts XI, XII) of JMB.
The jury convicted Rhoden on all counts. He appeals.
Rhoden does not assign error on his convictions of second degree child rape of JMB (counts V, VI), the four counts of incest (counts IX — XII), the first degree rape of GRB (count I), or two convictions for second degree child molestation of GRB (counts III, IV).
ANALYSIS Sufficiency of the Evidence
Rhoden first contends that insufficient evidence supported his conviction of count II, first degree child molestation of GRB. He argues that the State failed to provide sufficient evidence that he touched GRB in a sexual way or that he did so for sexual gratification during the kitchen incident.
We review a sufficiency of the evidence claim by asking whether the evidence taken in the light most favorable to the State supports a rational fact finder's determination of guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the fact finder "on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970.
RCW 9A.44.083(1) provides: "A person is guilty of child molestation in the first degree when the person has . . . sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." Direct contact with the genitals, breasts, and buttocks constitutes sexual contact and may be resolved as a matter of law. In re Welfare of Adams, 24 Wn. App. 517, 519-20, 601 P.2d 995 (1979). The fact finder decides whether contact with other areas, such as erogenous zones, constitutes sexual contact. Adams, 24 Wn. App. at 520-21.
GRB testified that Rhoden walked up behind her in the kitchen and put his hand in her pants. She remembered him moving his hand. From this testimony, a reasonable jury could decide that he either directly touched her genitals or touched her near her genitals. In addition, the jury heard evidence that he touched GRB's "vaginal area" more than 20 times. RP at 169. These acts comprise sexual contact. His argument as to count II, first degree child molestation, fails.
Rhoden next contends that insufficient evidence supports his conviction of counts VII and VIII, second degree child molestation of JMB. He asserts that the evidence did not prove that JMB was less than 14 years old at the time of the crimes.
RCW 9A.44.086(1) provides: "A person is guilty of child molestation in the second degree when the person has . . . sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." RCW 9A.44.076(1) provides: "A person is guilty of rape of a child in the second degree when the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim."
At trial, JMB recounted three or four incidents of sexual conduct when she was 13. She testified that Rhoden digitally penetrated her while he sat at the computer desk. She also testified that he performed oral sex on her "two or three times, I guess." RP at 57. The jury therefore heard JMB testify that Rhoden molested her four times when she was 13.
After hearing this testimony, the jury convicted Rhoden of two counts (V, VI) of second degree child rape and two counts (VII, VIII) of second degree child molestation, all of which require proof that JMB was older than 12 but less than 14. RCW 9A.44.076(1); RCW 9A.44.086(1). We trust the jury to make credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). This includes whether to believe JMB's testimony that Rhoden raped and molested her four times and how to weigh her testimony in light of all the evidence presented at trial.
Drawing all reasonable inferences in favor of the State, the evidence supports finding Rhoden guilty of two counts of second degree child rape and two counts of second degree child molestation.
Community Custody Conditions
Rhoden further contends that the custody condition requiring him to "[a]void places where minors are known to congregate" is unconstitutionally vague. Clerk's Papers at 149. He argues that WAC 137-104-050 (hearing procedures) and-080 (appeals), which govern sanctions for community custody violations, violate due process because they do not provide for court review.
In State v. Zimmer, 146 Wn. App. 405, 417, 190 P.3d 121 (2008), we held that trial courts do in fact review Department of Correction's sanctions governed by the WAC. As a result, Rhoden's vagueness challenge fails.
Rhoden next assigns error to three provisions of his community custody. He argues the trial court erred in prohibiting him from (1) possessing computers and computer components, (2) possessing cameras or photographic equipment, and (3) entering bars and drinking establishments.
Crime-related conditions must relate directly "` to the circumstances of the crime,'" and we review them under an abuse of discretion standard. Zimmer, 146 Wn. App. at 413 (alternation in original) (quoting State v. Autrey, 136 Wn. App. 460, 466, 150 P.3d 580 (2006)). A trial court abuses its discretion when it bases its decision on unreasonable or untenable grounds. State v. Partee, 141 Wn. App. 335, 361, 170 P.3d 60 (2007). In reviewing community custody prohibitions, we look to whether the defendant possessed the prohibited item on arrest, whether the defendant used it to facilitate the crime, and whether the trial court made any relevant findings. Zimmer, 146 Wn. App. at 413.
The trial court properly prohibited Rhoden from possessing a computer and computer components. He had access to and used a computer to play card games online at the time he fondled JMB. He met the victims' mother while playing card games online and learned about her daughters through their online conversations. He could use a computer in a similar manner to reoffend in the future.
But the provisions prohibiting Rhoden from possessing photographic equipment and from entering drinking establishments do not relate to the crime. The record does not show that he possessed a camera during his arrest and he did not use one in the commission of his crimes, nor did the trial court so find. Similarly, the record shows no evidence that he went to any drinking establishments or that alcohol contributed to his offenses. The trial court based its decision on untenable grounds. The remedy is to vacate the conditions and remand for resentencing.
The State correctly concedes that the camera provision is not crime-related.
Statement of Additional Grounds
In his statement of additional grounds, RAP 10.10(a), Rhoden raises two arguments based on ineffective assistance of counsel. He asserts that trial counsel failed to submit evidence and call witnesses.
The federal and state constitutions guarantee effective assistance of counsel. U.S. Const. amend. VI ; Wash. Const. art. I, § 22. To establish ineffective assistance of counsel, Rhoden must show that counsel's deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005). Legitimate trial tactics or strategy cannot form the basis for an ineffective assistance of counsel claim. Woods, 154 Wn.2d at 420.
Rhoden contends that he received ineffective assistance of counsel because his attorney failed to submit certain medical records into evidence, show photographic evidence to the jury, raise issues about emails, and call character witnesses. His argument fails because these actions or inactions comprise trial tactics or strategy, or concern matters outside the record. Woods, 154 Wn.2d at 420; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (the court will not review matters outside of the trial record on direct appeal).
We affirm the convictions. We vacate the community custody provisions prohibiting the possession of photographic equipment and from entering drinking establishments and remand for resentencing.
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.
QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.