State v. Goss ( 2016 )

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IN CLERKS OFFICE
This opinion was filed for record
IIJI'm1MF. COURT, BTATE OF WASHINGTON
DATE_AUG 1 8 2016 at)(:.~lle
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--CHI~-EF Jusncer-- SAN`` '
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, )
) No. 92274-8
Respondent, )
)
v. ) EnBanc
)
MICHAEL RAY GOSS, )
)
Petitioner. ) Filed AIJG 1 13 2016
____________________ )
GONZALEZ, J.-Those charged with a crime have the constitutional
right to know "the nature and cause of the accusation" made against them
and the constitutional right to notice of every fact (other than prior
convictions) that increases the penalties they face. WASH. CONST. art. I, §
22; Apprendi v. New Jersey, 530 U.S. 466,476, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000) (quoting_Jones v. United States, 526 U.S. 227, 243 n.6, 119 S.
Ct. 1215, 143 L. Ed. 2d 311 (1999)). Michael Goss argues that the charging
document the State used to accuse him of second degree child molestation
failed to meet this constitutional standard because it failed to allege that the
victim was "at least twelve years old," the lower limit ofthe age range for
that degree of the crime. RCW 9A.44.086(1). We conclude that Goss had
State v. Goss, No. 92274-8
notice of the nature and cause of the accusation against him and notice of
every fact that exposed him to a greater penalty. We affirm.
FACTS
The victim in this case, E. F., is the granddaughter of Goss's former
fiancee. During the years Goss and E.F. 's grandmother were together, E.F.
regularly visited, regularly spent the weekend, and regularly helped out with
yard work and house work. For most ofthose years, Goss and E.F. seemed
to get along well and had a playful relationship.
One summer Saturday in 2013, E.F.'s family held a family reunion on
the Olympic Peninsula at Port Hadlock, a ferry ride away from where E.F.
lived. Despite their earlier friendly relationship, E.F. resisted riding with
Goss and wanted nothing to do with him. When Goss "tr[ied] to talk to her .
. . she would answer him mdely ... , something that wasn't ordinary for
her." 2 Verbatim Tr. of Proceedings (VTP) (July 7, 2014) at 290.
After the reunion, on the way to the ferry dock, E.F. 's mother and
aunt criticized the way E.F. had treated Goss, leaving E.F. angry and in
tears. During the crossing, E.F. stayed in the car while her mother and aunt
walked around the ferry. E.F. 's uncle lingered behind after they left to ask
E.F. what was going on between her and Goss. After initial reluctance, E.F.
told her uncle that Goss had fondled her breasts. Her uncle listened to her
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State v. Goss, No. 92274-8
and persuaded her to tell her mother. For the rest of the ferry ride, E.F.'s
uncle kept himself between E.F. and Goss.
Late that evening, with her uncle at her side, E.F. told her mother
what Goss had done. Within the hour, E.F. 's mother called the police.
Within a day, E.F.'s mother told her own mother, who immediately ended
her relationship with Goss. Goss was initially charged with one count of
second degree child molestation. Later, a charge of attempted third degree
child molestation was added.
E.F. testified at trial. She did not name any specific dates, but
testified that Goss put his hands under her clothes and fondled her breasts
once when she was in the seventh grade. She also described several
incidents where Goss attempted to fondle her. Near the close of evidence,
the State successfully moved to amend the charges to conform to the time
frame E.F. testified to at trial.
Goss generally denied the events and sought, in his words, to
"'impeach[]'" the victim. 1 VTP (July 2, 2014) at 22. His defense focused
on the fact that E.F. had been inconsistent in stating the number of times she
had been molested, when those molestations occurred, why she had not
come forward earlier, and whether she had told anyone about the
molestation before she told her uncle. At no point did Goss suggest that E.F.
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State v. Goss, No. 92274-8
was younger than 12 when the molestation was alleged to have happened.
The jury found Goss guilty of second degree child molestation and not guilty
of attempted third degree child molestation.
The Court of Appeals affirmed. State v. Goss, 189 Wn. App. 571, 358
P.3d 436 (2015). We granted review oftwo ofthe three issues Goss
presented in his petition. 185 Wn.2d 1001, 366 P.3d 1243 (2016).
ANALYSIS
1. ADEQUACY OF THE CHARGING DOCUMENT
We review the constitutional adequacy of charging documents de
novo. State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014) (quoting
State v. Siers, 174 Wn.2d 269,273-74,274 P.3d 358 (2012)). When, as
here, the adequacy of the charging document is challenged for the first time
on appeal and when, as here, no prejudice is alleged, this court will
"examine the document to determine ifthere is any fair construction by
which the elements are all contained in the document." State v. Hopper, 118
Wn.2d 151, 155-56, 822 P.2d 775 (1992) (citing State v. Kjorsvik, 117
Wn.2d 93, 105, 812 P.2d 86 (1991)); Opening Br. of Appellant at 15-19 (not
alleging actual prejudice).
Goss argues that the charging document was fatally defective because
it did not allege the victim was at least 12 years old as required, he contends,
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State v. Goss, No. 92274-8
by the second degree child molestation statute, RCW 9A.44.086; due
process; the Sixth Amendment to the United States Constitution; and Alleyne
v. United States,_ U.S._, 133 S. Ct. 2151, 2161, 186 L. Ed. 2d 314(2013). Suppl. Br. ofPet'r at 1-2. The State argues that the fact the victim
was at least 12 years old is not an element of the crime of child molestation;
rather, it is "a ceiling that separates it from a higher degree" ofthe crime.
Suppl. Br. ofResp't at 1. We agree with the State that the lower limit of the
age range is not an element of child molestation under either Washington
law or the federal constitution.
The original 2013 information charged in relevant part:
Count 1 Child Molestation In The Second Degree
That the defendant MICHAEL RAY GOSS in King County,
Washington, between or about September 25, 2011 and September 24,
2012, being at least 36 months older than [E.F.] (DOB 09/25/1998),
had sexual contact for the purpose of sexual gratification with [E.F.]
(DOB 09/25/1998), who was 13 years old and not married to and not
in a state registered domestic partnership with [E.F.] (DOB
09/25/1998).
Clerk's Papers (CP) at 1. Initially, the State alleged the molestation
occurred when E.F. was 13, but after her testimony, the State amended the
information to allege:
That the defendant MICHAEL RAY GOSS in King County,
Washington, during an intervening period of time between September
25, 2010 and September 25, 2012 being at least 36 months older than
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State v. Goss, No. 92274-8
[E.F.] (DOB 9/25/98), had sexual contact for the purpose of sexual
gratification with [E.F.] (DOB 9/25/98), who was less than 14 years
old and not married to and not in a state registered domestic
partnership with [E.F.] (DOB 9/25/98).
CP at 67.
"[A]ll essential elements of an alleged crime must be included in the
charging document in order to afford the accused notice ofthe nature of the
allegations so that a defense can be properly prepared," along with the
particular facts supporting them. Kjorsvik, 117 Wn.2d at 101-02 (emphasis
omitted) (citing 2 WAYNE LAFAVE & JEROLD ISRAEL, CRIMINAL PROCEDURE
§ 19.2, at 446 (1st ed. 1984)). Those the State accuses are not required "to
search for the rules or regulations they are accused of violating." Id. at 101
(citing State v. Jeske, 87 Wn.2d 760, 765, 558 P.2d 162 (1976)).
While the legislature generally defines the elements of a crime, not
every clause in every statute in Title 9A RCW creates an essential element
of a crime. Instead, "'[a]n essential element is one whose specification is
necessary to establish the very illegality of the behavior charged."' State v.
Zillyette, 178 Wn.2d 153, 158,307 PJd 712 (2013) (internal quotation
marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P .3d 640
(2003)). A fact can also become an element of the crime because of the
consequences of its proof. "[A]ny 'facts that increase the prescribed range
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State v. Goss, No. 92274-8
of penalties to which a criminal defendant is exposed' are elements ofthe
crime" (except prior convictions under some circumstances). Alleyne, 133
S. Ct. at 2160 1 (quoting Apprendi, 530 U.S. at 490); Descamps v. United
States,_ U.S. __, 133 S. Ct. 2276,2288, 186 L. Ed. 2d 438 (2013)
(quoting Apprendi, 530 U.S. at 490). This is not an exhaustive list. See
generally State v. Tinker, 155 Wn.2d 219, 221, 118 P.3d 885 (2005).
The State accused Goss of second degree molestation under RCW
9A.44.086(1). That statute says:
A person is guilty of child molestation in the second degree when the
person has, or knowingly causes another person under the age of
eighteen to have, 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.44.086 is one of three child molestation statutes, each of which
designates a different degree ofthe crime depending on the age of the victim
1
Alleyne does not directly concern charging. In Alleyne, the defendant was convicted of
a federal fireanns offense that carried a five year mandatory minimum if the defendant
carried a firearm and a seven year mandatory minimum if that firearm was brandished.
133 S. Ct. at 2155 (citing 18 U.S.C. § 924(c)(l)(A)). A jury found beyond a reasonable
doubt Alleyne carried a fireann. !d. at 2156. The trial court found by a preponderance of
the evidence that Alleyne brandished that firearm and based his sentence on the higher
mandatory minimum. I d. The United States Supreme Court concluded that a fact that
"increase[ d] [the] sentencing floor ... forms an essential ingredient of the offense" and
"was an element, which had to be found by a jury beyond a reasonable doubt." I d. at
2161, 2163. We acknowledge that we found otherwise in the context of indeterminate
life sentences for sex offenders in State v. Clarke, 156 Wn.2d 880, 893, 134 P.3d 188(2006), but this case does not give us an opportunity to explore whether Clarke remains
good law. Unpreserved Apprendi charging defects have been held harmless. See United
States v. Cotton, 535 U.S. 625, 627, 632-33, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002).
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State v. Goss, No. 92274-8
and the age difference between the victim and the perpetrator. First degree
child molestation requires a victim younger than 12 and a perpetrator who is
at least 36 months older. RCW 9A.44.083. Third degree child molestation
requires a victim younger than 16 and a perpetrator who is at least 48
months older. RCW 9A.44.089. The legislative purpose in dividing the
crime into these three degrees is not hard to discern. The legislature has
reserved the harshest punishments for those who victimize the youngest
children.
Goss contends that the low end of the age range is an essential
element of the crime that must be charged and proved and that the three
degrees of child molestation are analytically separate crimes, not greater or
lesser degrees of each other. The necessary consequence of this position, as
Goss forthrightly acknowledged at oral argument, is that a defendant
charged with second degree child molestation would be necessarily acquitted
if the victim testified at trial she was less than 12. See Wash. Supreme Court
oral argument, State v. Goss, No. 92274-8 (July 7, 2016) at 35 min., 34 sec.
to 36 min., 24 sec., audio recording by TVW, Washington State's Public
Affairs Network, http://www.tvw.org. We find this untenable both as a
matter of statutory construction and constitutional law.
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State v. Goss, No. 92274-8
Not every clause in a criminal statute creates an element of a crime.
Ward, 148 Wn.2d at 813. Again, '"[a]n essential element is one whose
specification is necessary to establish the very illegality of the behavior
charged."' Zillyette, 178 Wn.2d at 158 (internal quotation marks omitted)
(quoting Ward, 148 Wn.2d at 811). Facts that merely divide a lower degree
of a crime from a higher one will rarely meet this standard. Our opinion in
Ward is illustrative. Ward concerned domestic violence statutes that made
violations of a no-contact order a felony under certain circumstances,
including when the violation is accompanied by an assault. Ward, 148
Wn.2d at 805 (citing former RCW 10.99.040(4)(b) and 10.99.050(2)
(1997)). Among other things, those statutes provided that "'[a]ny assault
that is a violation of an order issued under this chapter . . . and that does not
amount to assault in the first or second degree under RCW 9A.36.011 or
9A.36.021 is a class C felony."' Id. at 810 (quoting RCW 26.50.110(4) and
citing former RCW 10.99.040(4)(b) (1997); former RCW 10.99.050(2)
(1997)). While plainly the felony-elevating assault was an element that had
to be charged and proved, we found that the statutory language "'does not
amount to assault in the first or second degree'" did not establish an
essential element of the crime. Id. at 806. We looked at the purpose ofthe
statute: to ensure that violations of no-contact orders accompanied by assault
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State v. Goss, No. 92274-8
were punished as felonies. Id. at 813. "The legislature did not need to
increase the penalty for first or second degree assault, since in their own
right the crimes are class A and B felonies respectively." Id. at 812. The
"does not amount to" clause was not a statutory element because it was not
necessary for establishing the criminality of the act. Id. (citing State v.
Azpitarte, 140 Wn.2d 138, 142,995 P.2d 31 (2000)).
Similarly, in Tinker, we found that statutory language did not create
an essential element of the crime. In Tinker, the defendant was charged with
third degree theft under a former version of the statute that said in relevant
part, "'A person is guilty of theft in the third degree if he or she commits
theft of property or services which (a) does not exceed two hundred and fifty
dollars in value."' 155 Wn.2d at 222 (quoting former RCW 9A.56.050(1)
(1998) ). The charging document did not allege a value for the snowboarding
pants Tinker allegedly stole. Id. at 220-21. Tinker unsuccessfully
challenged the charging document during the trial for omitting the allegedly
essential element of value. Id. at 221. We found that the value of the object
alleged to be stolen was not an essential element of third degree theft; it
simply divided the lowest degree of the crime from the next higher one. Id.
at 222; see also State v. Leyda, 157 Wn.2d 335, 341, 138 P.3d 610 (2006)
("[V]alue is not an essential element of second degree identity theft and need
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State v. Goss, No. 92274-8
not be alleged in the charging document."); State v. Keend, 140 Wn. App.
858, 870-72, 166 P.3d 1268 (2007) (holding that the statutory phrase "not
amounting to assault in the first degree" is not an essential element of second
degree assault).
Based on Ward, Tinker, Leyda, Keend, and the overall statutory
scheme, we conclude that the "who is at least twelve years old" clause in the
second degree child molestation statute does not create an essential element
of the crime. RCW 9A.44.086(1). The lower age limit (unlike the highest) is
not a fact "'whose specification is necessary to establish the very illegality
of the behavior charged."' Zillyette, 178 Wn.2d at 158 (internal quotation
marks omitted) (quoting Ward, 148 Wn.2d at 811)_2
Our conclusion is bolstered by the fact that our Court of Appeals has
repeatedly held that the lower age limit is not an element of analogous
crimes without any corrective legislative response. See, e.g., State v. Smith,
122 Wn. App. 294, 296, 93 P.3d 206 (2004); State v. Dodd, 53 Wn. App.
178, 180-81, 765 P.2d 1337 (1989). The legislature's failure to respond
suggests it does not think the lower age threshold in statutes involving
sexual contact with children functions as an element.
2
The fact that establishes the very illegality of child molestation is that the victim was
under the age of 16; if younger than that, it is a matter of degree. If the State wishes to
seek a higher penalty, it would be wise to allege the younger age.
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State v. Goss, No. 92274-8
While criminal statutes are strictly construed, "it is not true that they
are to be construed so strictly that they would be defeated by a forced and
over-strict construction." State v. Larson, 119 Wash. 123, 125, 204 P. 1041(1922) (citing United States v. Morris, 39 U.S. (14 Pet.) 464, 10 L. Ed. 543(1840)). But see RCW 1.12.010 ("The provisions of this code shall be
liberally construed, and shall not be limited by any rule of strict
construction."). Requiring the State to allege the victim was at least 12 years
old would not further the announced legislative purpose of protecting "the
children of Washington from sexual abuse." LAWS OF 1994, ch. 271, §§ 301-
07.
We also conclude that the lower age limit does not need to be treated
as an element under the Apprendi line of cases. See 540 U.S. at 490.
Second degree child molestation is a class B felony and carries a lower
presumptive sentence than first degree child molestation, a class A felony.
RCW 9A.44.086, .083; RCW 9A.20.021(1)(a), (b). It is not a fact that will
increase the penalty the defendant faces. See Alleyne, 133 S. Ct. at 2160(quoting Apprendi, 530 U.S. at 490).
2. CLOSING ARGUMENr
Next, we must decide whether the trial court violated Goss's right to
present a defense when it excluded argument that the jury could draw a
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State v. Goss, No. 92274-8
negative inference from the fact the State had not offered a recording of a
detective's interview with Goss.
Briefly, the State had in its possession a 50 minute recording of the
investigating detective's initial interview with Goss. Prior to trial, Goss
moved to redact portions of the recording relating to pornography found on a
computer seized from Goss's house and prior allegations of child
molestation made against him. The State indicated that it did not plan to
play the recording in its case in chief, and the trial judge reserved ruling until
and unless the recording was offered. Neither side moved to admit the
recording, and it is not part of the record on appeal. Prior to closing
arguments, the State moved to exclude any argument about the recorded
statement. Goss opposed the motion, arguing that he should be able to point
out that the State had evidence it did not present. The trial court concluded
that the recording was "inadmissible ... hearsay and would only be
admissible if it was an admission offered by a party opponent, and the party
opponent didn't offer it." 3 VTP (July 8, 2014) at 672. However, the trial
court did allow the defense to argue that "'[t]he detective spends 50 minutes
with my client and 10 minutes with so-and-so,' and things like that." !d.
"We review the trial court's decision to limit closing argument for
abuse of discretion." State v. Wooten, 178 Wn.2d 890, 897, 312 P.3d
13State v. Goss, No. 92274-8
41(2013) (citing State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160(2000)). "A court abuses its discretion 'only if no reasonable person would
take the view adopted by the trial court."' !d. (quoting State v. Huelett, 92
Wn.2d 967, 969, 603 P.2d 1258 (1979)). While counsel has considerable
latitude in closing argument, argument "must be restricted to the facts in
evidence and the applicable law, lest the jury be confused or misled." Perez-
Cervantes, 141 Wn.2d at 474.
Goss does not challenge the trial judge's conclusion that the recording
contained hearsay and does not contend that it contained anything helpful to
him. Instead, he contends, since the State could have offered the tape under
ER 801 (d)(2), its failure to do so is analogous to a party not offering a
witness that is peculiarly available to it or to the State commenting on what a
defendant who waives the right to silence does not say. Suppl. Br. ofPet'r
at 17-18 (citing State v. Flora, 160 Wn. App. 549, 556, 249 P.3d 188 (2011);
State v. Clark, 143 Wn.2d 731,765,24 P.3d 1006 (2001)). He argues that
any error was not harmless because the jury must have had doubts or it
would not have acquitted him of attempted third degree child molestation.
!d. at 20.
Goss's analogy to the missing witness doctrine is not persuasive.
Under that doctrine, '"where evidence which would properly be part of a
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State v. Goss, No. 92274-8
case is within the control of the party whose interest it would naturally be to
produce it, and, ... he fails to do so, -the jury may draw an inference that it
would be unfavorable to him."' State v. Blair, 117 Wn.2d 479, 485-86, 816
P.2d 718 (1991) (alteration in original) (quoting State v. Davis, 73 Wn.2d
271, 276, 438 P.2d 185 (1968), overruled on other grounds by State v.
Abdulle, 174 Wn.2d 411, 275 P.3d 1113 (2012)). Among other things, the
doctrine applies '"only where, under all the circumstances of the case, such
unexplained failure to call the witnesses creates a suspicion that there has
been a willful attempt to withhold competent testimony."' !d. at 488
(quoting State v. Baker, 56 Wn.2d 846, 859-60, 355 P.2d 806 (1960)).
Nothing here creates such a suspicion. Goss did not make an offer of proof
regarding the tape and in fact moved to redact portions relating to prior
allegations of child molestation made against Goss by his daughter. The
detective who questioned Goss on the tape testified at trial. The State may
well have concluded it was better to present any relevant evidence through
live testimony rather than a heavily redacted recording or transcript. The
defense was allowed, over objection, to elicit from the detective that the
interview was recorded. Nothing in this record suggests the State's decision
not to play the tape was nefarious. Goss has not shown the trial court abused
its discretion because the tape was analogous to a missing witness.
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Nor are we persuaded that the State's decision not to offer the
recordings is analogous to the State commenting on what a defendant who
has waived the right to remain silent fails to say. Suppl. Br. ofPet'r at 18
(citing Clark, 143 Wn.2d at 765). We find the trial court did not abuse its
discretion.
CONCLUSION
We hold that the fact that the victim was "at least twelve years old" is
not an essential element of second degree child molestation. We hold the
trial court did not abuse its discretion in limiting closing argument.
Accordingly, we affirm.
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WE CONCUR:
\
17