State Of Washington v. Tyler Mcvey ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
January 30, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49635-6-II
Respondent,
v.
TYLER JUSTIN MCVEY, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Tyler McVey appeals his convictions for first degree rape of a child and first
degree child molestation. McVey argues that there was insufficient evidence for a trier of fact to
find him guilty of either crime. Specifically, McVey argues that the inconsistencies in E.S.’s
testimony and the lack of medical corroboration of the charged crimes render the evidence
insufficient. However, because there was sufficient testimony that McVey committed each crime,
we disagree. Thus, we affirm his convictions.
FACTS
E.S. is the daughter of Kecia Johnson and Jason Seevers, and was four-and-a-half years old
at the time of these incidents. Johnson and Seevers share custody of E.S. Johnson was dating
McVey at the time that the incidents for which McVey was charged with the crimes of first degree
rape of a child and first degree child molestation occurred. At trial, Johnson testified that while
they were dating, Johnson left E.S. with McVey on three or four occasions when Johnson went to
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No. 49635-6-II
Seevers testified that on April 7, 2015, McVey was watching E.S. when Seevers picked
her up. On the ride home, Seevers noticed that E.S. was acting unusual, and he asked her if
anything was wrong. E.S. replied that “[McVey] touches me, and I don’t like it.” I Verbatim
Report of Proceedings (VRP) at 103. Seevers then called Johnson and had E.S. explain what she
had just told Seevers. At Seevers’s home, E.S. was given a doll and asked where McVey had
touched her. E.S. then pointed to the doll’s groin area. Later, Seevers took E.S. to a sexual assault
clinic. E.S. was born in 2010 and McVey was born in 1989. Seevers and Johnson each testified
that E.S. was not, nor ever had been, married to McVey.
Dr. Gilbert, a pediatrician at the sexual assault center, testified that she conducted a medical
interview with E.S. at the sexual assault clinic. Dr. Gilbert asked E.S. why she was at the clinic.
Dr. Gilbert stated that E.S. answered, “Because [McVey] pinched me.” I VRP at 227. E.S. then
pulled down her leggings and pinched and twisted her thigh, near her groin, in three separate
locations showing Dr. Gilbert where McVey had pinched her. Then, while Dr. Gilbert was about
to inspect E.S.’s genitals, E.S. grabbed her clitoral hood, pulled it out and twisted it, and said that
“[t]his is what [McVey] does.” I VRP at 237. Lastly, during the physical examination, Dr. Gilbert
testified that E.S. showed Dr. Gilbert how McVey had penetrated her by pointing to her genitals
and stating that “[t]his is what [McVey] taught me to do when he puts his fingers in here” and she
pointed to her vagina. I VRP at 238. Dr. Gilbert testified that her medical examination did not
show any signs of penetration. She also explained that the lack of forensic evidence is not
abnormal when children have been sexually penetrated.
Sue Villa, a child forensic interviewer, later interviewed E.S. Villa testified that E.S. told
her that McVey touched the area where E.S. “go[es] potty” and “[h]e ‘screwed’ it and it hurt.” I
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VRP at 177. Villa further testified that E.S. said that McVey had done that on multiple occasions
and once McVey had put his “hand” inside of E.S. I VRP at 178. E.S. also testified at the trial
and stated that she had told Seevers that McVey had touched her “private.” I VRP at 125. She
identified McVey as the defendant who was present in the courtroom.
The jury found McVey guilty of first degree rape of a child and first degree child
molestation. He was sentenced to a standard range of 160 months to life. McVey appeals his
convictions for both crimes.
ANALYSIS
McVey argues that there is insufficient evidence to sustain either of his convictions, we
disagree. Evidence is sufficient to support a conviction if, when viewed in the light most favorable
to the State, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992). “A claim of
insufficiency admits the truth of the State’s evidence.” Salinas, 119 Wash. 2d at 201. All reasonable
inferences must be drawn in favor of the State and interpreted most strongly against the defendant.
Salinas, 119 Wash. 2d at 201. Only the trier of fact weighs the evidence and judges the credibility
of witnesses. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990).
I. FIRST DEGREE RAPE OF A CHILD
In order to convict a person of first degree rape of a child, the State must show beyond a
reasonable doubt that the individual had “. . . sexual intercourse with another who is less than
twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four
months older than the victim.” RCW 9A.44.073(1). “Sexual intercourse” has its ordinary meaning
and also means any penetration of the vagina however slight. RCW 9A.44.010(1).
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Specifically, McVey argues that the “conviction is based on nothing more than speculation
and conjecture.” Br. of Appellant at 10. We disagree because the evidence was neither speculative
nor conjectural because there was testimony from Dr. Gilbert, Seevers, and Villa, who had separate
corroborating conversations and interactions with E.S.
Further, McVey’s comparison of his case to State v. Alexander is misguided. 64 Wash. App.
147, 822 P.2d 1250 (1992). In Alexander, the court held that improper testimony, inadmissible
hearsay, and improper conduct by the prosecution prevented the defendant from obtaining a fair
trial. See Alexander, 64 Wash. App. at 158. Here, the only error McVey claims is that there was no
forensic evidence of the abuse and that E.S’s testimony was inconsistent. Also, because all child
hearsay statements were admitted through a prior hearing, E.S.’s statements were properly brought
forth through Seevers, Villa, and Dr. Gilbert. Thus, all evidence was admissible and was sufficient
to support his conviction.
Seevers and Johnson each testified that E.S. was not, nor ever had been, married to McVey.
E.S. was born in 2010 and McVey was born in 1989, which indicates that E.S. was less than 12
years old, and that McVey was more than 24 months older than E.S. Further, the State produced
testimony from Dr. Gilbert and Villa that McVey penetrated E.S.’s vagina. Because we construe
the facts and all reasonable inferences in favor of the State, a rational trier of fact could have found
each of the essential elements of first degree rape of a child beyond a reasonable doubt. Because
the State presented sufficient evidence that a rational trier of fact could find McVey guilty of first
degree rape of a child beyond a reasonable doubt, we affirm his conviction.
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II. FIRST DEGREE CHILD MOLESTATION
In order to convict a person of first degree child molestation, the State must show beyond
a reasonable doubt that the individual “knowingly causes another person under 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.44.083(1). “Sexual contact” means 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).
In determining whether the sexual contact element has been satisfied, we look to the totality
of the facts and circumstances presented. State v. Harstad, 153 Wash. App. 10, 21, 218 P.3d 624
(2009). “Contact is intimate within the meaning of the statute if the conduct is 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.” State
v. Jackson, 145 Wash. App. 814, 819, 187 P.3d 321 (2008) (internal quotations omitted). A jury
may determine that “‘parts of the body in close proximity to the primary erogenous areas’” are
intimate parts. Harstad, 153 Wash. App. at 21 (quoting In re Welfare of Adams, 24 Wash. App. 517,
521, 601 P.2d 995 (1979)).
As stated above, Seevers and Johnson testified that E.S. was not, nor ever had been, married
to McVey. E.S. was born in 2010 and McVey was born in 1989, which indicates that E.S. was
less than 12 years old, and that McVey was more than 36 months older than E.S. The jury heard
testimony of multiple acts on multiple occasions, including that McVey pinched E.S’s upper thigh
multiple times, and that McVey touched E.S.’s clitoris. Because McVey touched E.S. in these
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ways, a person of common intelligence could fairly be expected to know that the touching was
improper. See Jackson, 145 Wn. App.at 819. Further, we can assume that when the touching is
in the erogenous areas, that it is for sexual gratification, absent evidence to the contrary, which
contrary evidence does not exist here. See Harstad, 153 Wash. App. at 21.
Because we construe the facts and all reasonable inferences in favor of the State, a rational
trier of fact could have found each of the essential elements of child molestation in the first degree
beyond a reasonable doubt. Because the State presented sufficient evidence that a rational trier of
fact could find McVey guilty of first degree child molestation beyond a reasonable doubt, we
affirm his conviction for first degree child molestation.
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 in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
JOHANSON, J.
MAXA, A.C.J.
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