State Of Washington v. John Liam ( 2019 )

FILED
OURT OF APPEALS OW I
STATE OF WASHINGTON
ZOI9JMII’i MiS:31
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 77148-5-I
V.
UNPUBLISHED OPINION
JOHN CANLAS LIAM,
Appellant. FILED: January 14, 2019
DWYER, J. — John Liam was charged with two counts of child molestation
in the first degree. However, following trial, a jury found him guilty of only the
lesser included offense of assault in the fourth degree on both counts. He was
sentenced to 364 days in jail on count one and 364 days in jail on count two.
The sentencing court suspended the sentence for count two on the condition that
Liam obtain a sexual deviancy evaluation and comply with all resulting treatment
recommendations. On appeal, Liam asserts that the court’s decision to condition
the suspended sentence on the completion of a sexual deviancy evaluation
constituted an abuse of discretion. We find no abuse of discretion and affirm.
Liam, then 38 years old, moved in with D.A.G. and her mother when
D.A.G. was just 5 years old.1 For much of the time Liam lived with them,
1 D.A.G.’s parents separated when she was two years o d. It was at that time that
D.A.G.’s mother began to develop a romantc relationship wth Liam eading to his eventual move
into D,A.G.’s home.
No. 77148-5-1/2
D.A.G.’s mother worked the night shift, leaving Liam alone with D.A.G. for long
periods of time.
D.A.G. is a bright student who normally focuses diligently on her school
work. However, on April 20, 2016, one of her teachers noticed that DA.G.
seemed particularly distracted and sad. Upon further inquiry by her teacher,
D.A.G., through tears, disclosed that she was upset due to certain incidents that
had been happening at her home. Subsequently, D.A.G.’s teacher reported what
D.A.G. had told her to Child Protective Services.
Following a police investigation, Liam was charged with two counts of
child molestation in the first degree for molesting D.A.G.2 D.A.G., who was in
fifth grade at the time of the trial, testified that while Liam lived with her and her
mother he would say mean things to her and touch her inappropriately. D.A.G.
explained that Liam pinched her butt and other places on her body, and that he
had done so starting as early as when she was in kindergarten. She further
testified that Liam touched her vagina on two separate occasions.
According to D.A.G., the first incident occurred on a night when she was
alone at home with Liam. She testified that she was sleeping when the feeling of
something against her inner thighs woke her. She felt that her pants and
2 The crime of child molestation in the first degree is set forth in RCW GA.44.083, which
states:
A person is guilty of child molestation in the first degree when the person has, or
knowingly causes another person uhder the age of eighteen to have, 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.
RCW 9A.44.Q83(1).
Sexual contact, as used therein, 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.O1 0(2). Child molestation in the first degree is a felony offense. RCW
9A.44.083(2).
2
No. 77148-5-1/3
underwear were no longer on and, looking down, saw that Liam’s head was
between her legs. D.A.G. felt something touching her vagina. She testified that
Liam asked her if she liked it. Terrified, D.A.G. pretended not to hear him. When
asked why she did not immediately tell her mother about the incident, D.A.G.
explained that she was afraid of Liam and thought that her mother would not
believe her because she liked Liam.
D.A.G. further testified to a second incident that occurred one night when
D.A.G. had climbed into bed with her mother and Liam. Everything was fine until
her mother got up and went into the bathroom, leaving D.A.G. alone with Liam.
Once her mother was gone, Liam pulled D.A.G. close to him, stuck his hand
down her pants, and touched her vagina. Liam stopped touching her when
D.A.G.’s mother came back from the bathroom.
Although Liam did not testify at the trial, the jury was presented with two
audio-visual recordings of interviews Liam voluntarily gave to the police during
their investigation. During the interviews Liam denied ever abusing D.A.G. Liam
claimed D.A.G. was making things up because she was mad at him for fighting
with her mother.
During the interviews, Liam explained that D.A.G. had severe eczema
when she was younger and that he had to give her baths and rub Vaseline all
over her body. Specifically, D.A.G.’s eczema would result in her developing
“scales” between her legs upon which Liam would have to rub Vaseline. When
asked whether this meant her vagina, Liam initially claimed he only ever “wiped
around the edges,” but then later admitted to touching D.A.G.’s vagina.
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No. 77148-5-1/4
According to Liam, this happened by accident, and he failed to immediately
disclose the incident because he “totally forgot about it.”
Additionally, Liam admitted to putting his hands down D.A.G.’s pants a few
times when she was sleeping, although he again asserted that it was solely to
rub Vaseline on her eczema. He also explained during one of the interviews that
he could see images of himself doing the things D.A.G. alleged he did,
specifically that he was thinking about putting his face near D.A.G.’s vagina. He
professed to be “disgusted to myself” at his own thoughts, explaining that he had
them because “it’s like how you supposed to figure these out without having
thoughts, right?”
Following the close of evidence, Liam requested, and the judge agreed to
give, a to-convict instruction for each count not only for the crime of child
molestation, but also for the lesser included crime of assault in the fourth
degree.3 The jury acquitted Liam of the charge of child molestation in the first
degree, instead finding him guilty of assault in the fourth degree, on both counts.
At sentencing, Liam was sentenced to 364 days in the county jail on count one
and 364 days in the county jail on count two. However, the judge suspended the
sentence on count two and ordered that Liam instead be placed on unsupervised
probation for two years with the requirement that he complete a sexual deviancy
~ Assault in the fourth degree is a lesser included offense of the crime of child molestation
in the first degree. See State v. Stevens, 158 Wash. 2d 304, 310-12, 143 P.3d 817 (2006). Assault
in the fourth degree is a gross misdemeanor offense statutorily defined as an assault not
amounting to an assault in the first, second, or third degree. RcW 9A.36.041. Washington uses
the common law definition of assault. Stevens, 158 Wash. 2d at 310-11. Herein, the jury was
provided with the following jury instruction defining assault: “An assault is an intentional touching
of another person that is harmful or offensive. A touching is offensive if the touching would offend
an ordinary person who is not unduly sensitive.”
4
No. 77148-5-1/5
evaluation within 30 days of his release from jail and comply with all resulting
treatment recommendations. Liam assigns error to the imposition of the sexual
deviancy evaluation and treatment requirement as a condition of his suspended
sentence and probation.
Liam’s contention on appeal is that the sentencing court erred by
conditioning the suspension of his sentence on count two upon the completion of
a sexual deviancy evaluation. Specifically, Liam asserts that the sentencing
court abused its discretion because such a condition was not reasonably related
to preventing his future commission of crimes. We disagree.
“Our trial courts have great discretion in imposing sentences within the
statutory limits for misdemeanors and gross misdemeanors.” State v. Anderson,
151 Wash. App. 396, 402, 212 P.3d 591 (2009). We review sentencing conditions
for an abuse of that discretion. State v. Riley, 121 Wash. 2d 22, 37, 846 P.2d 1365
(1993). A court abuses its discretion if its decision is manifestly unreasonable or
exercised on untenable grounds or reasons. Riley, 121 Wash. 2d at 37. Indeed,
“reasonableness is the test of the propriety of a condition of probation.” State v.
Barklind, 12 Wash. App. 818, 823, 532 P.2d 633 (1975) (citing State v. Langford,
12 Wash. App. 228, 529 P.2d 839 (1974)), affd, 87 Wash. 2d 814, 557 P.2d 314
(1976).
The superior court’s authority to grant probation pursuant to a suspended
sentence is codified at RCW 9.95.210, which states:
[l]n granting probation, the superior court may suspend the
imposition or the execution of the sentence and may direct that the
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No. 77148-5-1/6
suspension may continue upon such conditions and for such time
as it shall designate, not exceeding the maximum term of sentence
or two years, whichever is longer.
RCW 9.95.210(1)(a).
For felony crimes, conditions of probation must also comply with the
requirements of the Sentencing Reform Act of 1981 (SRA), codified at chapter
9.94A RCW. Pursuant to the SRA, a sentencing court is limited to imposing
conditions that relate directly to the crime for which the offender was convicted.
~ State v. Parramore, 53 Wash. App. 527, 531, 768 P.2d 530 (1989) (reversing
the sentencing condition of a urinalysis test because such a test was not directly
related to the defendant’s conviction for the delivery of marijuana); see RCW
9.94A.030(10); RCW 9.94A.505(9). However, the SRA does not apply to
individuals who have been convicted solely of misdemeanors or gross
misdemeanors. See RCW 9.94A.010. For misdemeanants,
[pjrobation outside the SRA is not a matter of right but a matter of
grace, privilege, or clemency “granted to the deserving, and
withheld from the undeserving, as sound official discretion may
dictate.” See State v. Farmer, 39 Wash. 2d 675, 679, 237 P.2d 734
(1951). In this older version of probation, which remains applicable
to misdemeanants, a court may impose probationary conditions
that bear a reasonable relation to the defendant’s duty to make
restitution or that tend to prevent the future commission of crimes.
State v. Summers, 60 Wash. 2d 702, 707, 375 P.2d 143 (1962).
State v. Williams, 97 Wash. App. 257, 263, 983 P.2d 687 (1999).
Probation is “motivated by many judicial hopes, among which are that the
offender will mend his ways, make restitution and avoid not only repetition of his
offense but the appearance thereof.” State ex rel. Woodhouse v. Dore, 69
Wash. 2d 64, 70, 416 P.2d 670 (1966). Notably absent from Washington case law
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No. 77148-5-1/7
addressing conditions of probation for misdemeanants is the SRA’s requirement
that all conditions relate to the crime for which the offender was convicted.
Indeed, as we have previously explained in Williams, conditions placed upon the
suspension of a misdemeanant’s sentence need not directly relate to the
misdemeanant’s crimes. 97 Wash. App. at 263.
Liam first asserts that a condition of probation is reasonable only when
“there is some nexus between defendant, crime and preventing the defendant
from committing future offenses.” Such an assertion is contrary to our decision in
Williams. As long as the conditions of probation are reasonably related to either
reparation or rehabilitation, the failure of such conditions to relate directly to the
crime of which a defendant is convicted is inconsequential. Williams, 97 Wn.
App. at 263. See a[so Summers, 60 Wash. 2d at 707. Liam’s first contention—that
a nexus is required between the crime of which he was convicted and the
condition of probation—fails.
Liam next asserts that, on the record before the sentencing judge, no
person could have reasonably believed that requiring Liam to undergo a sexual
deviancy evaluation would reduce the likelihood that he would commit future
crimes. This is so, Liam contends, because the jury did not find Liam guilty of
any sex offenses or of any sexual motivation for non-sex offenses.4 According to
Liam, the jury’s decision to acquit Liam of the sexual molestation charges
Liam places great stock in the fact that the jury did not find that his assaults were
sexually motivated. ~ RCW 9.94A,030(48) (‘Sexual motivation’ means that one of the
purposes for which the defendant committed the crime was for the purpose of his or her sexual
gratification.”). However, the record is clear that the jury was never presented with the option to
find that Liam committed a sexually motivated assault in the fourth degree.
7
No. 77148-5-1/8
necessarily means that it concluded that Liam did not have any sexual contact
with D.A.G. As a result, Liam reasons, the sentencing judge acted unreasonably
by applying a condition that would tend to prevent the future commission of sex
crimes. However, Liam’s argument wrongfully conflates the State’s burden of
proof at trial with the sentencing judge’s obligation to impose only reasonable
conditions of probation upon misdemeanants.
The State was required to prove its charges of first degree child
molestation beyond a reasonable doubt in order to obtain convictions on those
charges. The jury found that the State did not meet its burden. The verdicts,
however, do not necessarily mean that the record lacks evidence sufficient for a
reasonable judge to conclude that requiring a sexual deviancy evaluation would
tend to reduce the likelihood of Liam committing future crimes. Liam asserts that
the jury’s acquittal on the child molestation charges means that the jury
necessarily concluded that he did not have sexual contact with D.A.G. and that it
is therefore unreasonable to condition probation upon the completion of a sexual
deviancy evaluation. However, conditions of probation, as a matter of “grace,
privilege1 or clemency,” are left to the discretion of the judge, not the jury.5
Williams, 97 Wash. App. at 263. The jury had to be convinced of Liam’s guilt
beyond a reasonable doubt to convict him, but the sentencing judge merely
Furthermore1 Liam’s contention that the sentencing judge acted contrary to the jury’s
verdicts misapprehends that an acquittal does not necessarily mean that the jury concluded that
no reasonable person could believe that a defendant committed the crime charged. Rather, it
simply means that the jury concluded that the State failed to meet its burden to prove that the
defendant committed the crime beyond a reasonable doubt. Indeed, the jury herein may well
have believed it likely that Liam committed child molestation in the first degree while at the same
time recognizing that the State had failed to establish such a belief beyond any reasonable doubt.
8
No. 77148-5-1/9
needed to reasonably conclude that the sexual deviancy evaluation would tend to
reduce the likelihood that Liam would commit future crimes. See Summers, 60
Wash. 2d at 707.
The record herein is replete with evidence sufficient to convince a
reasonable judge that conditioning Liam’s probation on the completion of a
sexual deviancy evaluation would tend to reduce the likelihood that he would
commit crimes in the future.6 D.A.G. testified at trial, recalling instances in which
Liam touched her inappropriately, specifically by pinching her butt and touching
her vagina after either taking off her pants or by reaching inside of them.
Although he initially insisted otherwise, Liam admitted to touching D.A.G.’s
vagina during the recorded interviews with the police that were played during
trial. Similarly, although he asserted that he never placed his hands down
D.A.G.’s pants, he later confirmed that he had placed his hands down D.A.G.’s
pants several times. Liam denied that any of this contact with D.A.G. was made
for the purpose of sexual gratification,7 but also admitted that he was having
thoughts about placing his face down near her vagina. Given this evidence, we
cannot say that no reasonable judge could conclude that undergoing a sexual
deviancy evaluation and completing any recommended treatment might tend to
prevent Liam from committing future crimes.
~ The sentencing judge in this matter was also the presiding judge during Liam’s trial and
had the opportunity to observe all witness testimony.
Instead, Liam contends that all contact occurred in the context of bathing or applying
eczema medication or moisturizer to D.A.G.
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No. 77148-5-1/10
Affirmed
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WE CONCUR:
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