State Of Washington, Resp. v. Michael Goss, App. , 189 Wash. App. 571 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
No. 72409-6-1
Respondent, ] , ~ "r~
CO
DIVISION ONE
v. )
PUBLISHED OPINION 5'~ ,
MICHAEL RAY GOSS, >-:!,
37"
Appellant. i FILED: August 17, 2015 's_r.' .."J -•'<• '
CO
Trickey, J. — The charging document must include all essential elements
ofan alleged crime to provide defendants notice ofthe nature ofthe allegations so
that they can properly prepare their defense. An essential element is one that is
necessary to establish the illegality of the behavior.
Here, the second amended information charged the crime ofsecond degree
child molestation alleging that the defendant was 36 months older than the victim,
who was less than 14 years old and not married to or in a domestic partnership
with the defendant. The statute defines the crime as "sexual contact with another
who is at least twelve years old but less than fourteen years old."1 The lower age
of the victim is a criterion for establishing the proper penalty and not an essential
element of the proscribed offense, child molestation. The information was not
deficient.
None of the other errors raised by the defendant have merit. Because there
is substantial evidence supporting the conviction, we affirm the judgment and
sentence.
RCW 9A.44.086.
No. 72409-6-1 / 2
FACTS
The State charged Michael Goss with one count of second degree child
molestation alleging that between September 25, 2011 and September 24, 2012,
Goss had sexual contact with E.F., who was 13 years old, and further, that at the
time, Goss was more than 36 months older than the victim. Before trial, the court
granted the State's motion to amend the information, charging an additional count
of third degree attempted child molestation. The second count alleged Goss
attempted sexual contact with E.F., then 14 years old, between September 25,
2012 and June 23, 2013. Defense did not object to that amendment.
E.F., born September 25, 1998, in tenth grade at the time of the trial,
testified that Goss, then her grandmother's fiance, inappropriately touched her on
her breasts when she was at Goss's home where her grandmother lived. Goss
called herover, grabbed her left arm, and touched her breasts stating, "I like these,
do you like these?" The touching lasted about 15 seconds. E.F. was shocked.
She told Goss, "No," to which he responded, "Why?" E.F. stated, "I don't," and she
threw his hands off her.2
E.F. went back to playing on the computer, feeling weird, and wanting to go
home. E.F. did not tell her grandmother, or anyone else. She later remembered
that the incident had occurred in seventh grade, because it happened before she
moved to her father's home in California for second semester in January. Goss
only touched her breasts one time.
Report of Proceedings at 483.
No. 72409-6-1 / 3
E.F. testified to two other incidents in Goss's house where Goss attempted
to touch her but was unsuccessful. She recounted that one attempt had occurred
at Thanksgiving, but when she screamed, her mother yelled from the other room,
enabling E.F. to escape. In the other incident, E.F. managed to raise her arms to
block Goss from touching her.
On June 22, 2013, E.F. attended a family reunion. At the reunion, E.F. was
rude to Goss any time he approached her. E.F.'s mother, aunt, and uncle all
chastised her for her rude behavior. E.F.'s uncle, Eric Randolph, approached E.F.
asking her what was going on. E.F. started to cry and told her uncle what had
occurred. Later that day, E.F., with her uncle's help, told her mother what had
happened. The family informed E.F.'s grandmother the following day. E.F.'s
grandmother immediately moved out of Goss's house.
Before the State rested, it moved to amend the charging period in count Ito
conform to testimony regarding the time frame within which the incident occurred.3
Over an unspecified objection by defense counsel, the court permitted the
amendment, finding there was no prejudice to the defendant.
The jury found Goss guilty of second degree child molestation, but acquitted
him on the attempted molestation charge. Goss appeals.
ANALYSIS
Goss contends that the trial court erred in permitting the State to amend the
information prior to concluding its case and that the second amended information
did not contain all the essential elements of the crime with which he was charged
September 25, 2010 to September 25, 2012.
No. 72409-6-1/4
and convicted. Goss also argues that the evidence was insufficient and the trial
court erred in limiting the scope of his closing argument.
Second Amended Information
Goss contends he was prejudiced by the State's amending the information
to enlarge the charging period by one year after the State had presented all of its
evidence but before the State rested. Under CrR 2.1(d), the court may permit an
amendment of information any time before a verdict, if the defendant is not
prejudiced. While the rule permits liberal amendment, it is tempered by article I,
section 22 of the Washington State Constitution, which requires that the accused
be adequately informed of the charge to be met at trial. State v. Pelkev. 109 Wash. 2d
484, 487, 745 P.2d 854 (1987).
But here, the amendment did notcharge any new offensesor add additional
child molestation counts. Instead, it merely enlarged the time frame within which
the crime was committed. Amendment of the charging period is usually not a
material element of a crime and, thus, an "amendment of the date is a matter of
form rather than substance, and should be allowed absent an alibi defense or a
showing of other substantial prejudice to the defendant." State v. DeBolt, 61 Wn.
App. 58, 60-62, 808 P.2d 794 (1991) (motion to amend permitted after State had
rested and after defendant had testified); see also State v. Allvn, 40 Wash. App. 27,
35, 696 P.2d 45 (1985) (elements of the crime charged remained the same both
before and after the change of the date). Goss has not claimed an alibi and he
has failed to show any prejudice from the amendment. The trial court did not abuse
its discretion in permitting the amendment.
No. 72409-6-1 / 5
Essential Elements
We review the adequacy of a charging document de novo. State v.
Johnson. 180 Wash. 2d 295, 300, 325 P.3d 135 (2014). Goss contends that the
second amended information charging him with second degree child molestation
is constitutionally deficient because it only alleged that E.F. was less than 14 years
old at the time of the crime and did not include the allegation that E.F. was at least
12 years old as stated in the statute.
RCW 9A.44.086(1) provides:
A person is guilty ofchild 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.
The second amended information alleged:
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 ENF (DOB 9/25/98), had sexual contact for the
purpose of sexual gratification with ENF (DOB 9/25/98), who was
less than 14 years old and was not married to and not in a state
registered domestic partnership with ENF (DOB (9/25/98).t4l
The State asserts that the only purpose ofthe "at least twelve" language of
the statute is to differentiate the lower degrees from the higher degrees of child
molestation. RCW 9A.44.086(1). That E.F. may have been younger than the
lower age specified in the second degree child molestation statute does not mean
that Goss did not commit sexual molestation. Several Washington Supreme Court
and Court ofAppeals decisions support the State's position that statutory language
4 Clerk's Papers at 67.
No. 72409-6-1 / 6
differentiating the various degrees of a crime does not necessarily create an
additional essential element.
In State v. Tinker. 155 Wash. 2d 219, 222, 118 P.3d 885 (2005), our Supreme
Court addressed a challenge to the sufficiency of an information alleging third
degree theft that did not specify the value of the property taken. The court
concluded that property value was not an essential element of the crime of third
degree theft, despite language in the statute then at issue that the theft "does not
exceed two hundred and fifty dollars in value." Tinker. 155 Wash. 2d at 222 (quoting
RCW9A.56.050(1)).
The Tinker court reasoned that the property value was not essential to
establish the illegality of theft behavior because such value merely served to
distinguish the various degrees of theft and, thus, "taking any item constitutes at
least third degree theft." 155 Wash. 2d at 222 (emphasis omitted). "An 'essential
element is one whose specification is necessary to establish the very illegality of
the behavior.'" Tinker. 155 Wash. 2d at 221 (quoting State v. Johnson. 119 Wash. 2d
143, 147, 829 P.2d 1078 (1992)): see also State v. Levda. 157 Wash. 2d 335, 341,
138 P.3d 610 (2006) (the value of goods, services, and credit obtained through
identity theft is not an essential element of second degree theft); State v. Feeser.
138 Wash. App. 737, 744, 158 P.3d 616 (2007) (absence of premeditation not an
element of second degree murder even though statute's language states "without
premeditation").
In State v. Ward. 148 Wash. 2d 803, 64 P.3d 640 (2003), the Supreme Court
was presented with the question of whetherfailure to include that the assault was
No. 72409-6-1 / 7
neither first nor second degree in the information charging the defendant with
violation of a no contact order under RCW 26.50.110(4) rendered the information
insufficient. RCW 26.50.110(4) 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.'"
Ward. 148 Wash. 2d at 810 (alterations in original) (quoting RCW 26.50.110(4)). The
defense argued that that provision was an essential element of the crime. In
rejecting the argument, the Supreme Court concluded that the definitional
language, "does not amount to assault in the first or second degree," is not an
essential element of the crime, but rather elevated no contact violations to a felony
when any assault is committed. Ward. 148 Wash. 2d at 812.
In State v. Smith. 122 Wash. App. 294, 296, 93 P.3d 206 (2004), this court
rejected a similar argument to the one presented here involving a "to-convict"
instruction rather than an information. The defendant argued that a "to-convict"
instruction for third degree rape of a child was erroneous because it stated the
ages of the victim as between 12 and 16, rather than between 14 and 16 years of
age. The Smith court held that "the age of the victim is a function of the proper
penalty and not an essential element of the proscribed offense of having sexual
intercourse with a minor." 122 Wash. App. at 296. In so holding, the Smith court
approved and cited the rationale in State v. Dodd. 53 Wn. App. 178,181, 765 P.2d
1337 (1989), "that 'third degree statutory rape is a crime of inferior degree to
second degree statutory rape, as each proscribes but one offense, that of sexual
intercourse with one too immature to rationally or legally consent to the act.'" 122
No. 72409-6-1 / 8
Wash. App. at 298. A "to-convict" instruction, like an amended information, must
contain all the essential elements of the crime. State v. Lorenz. 152 Wash. 2d 22, 31,
93P.3d133(2004).
To support his position, Goss cites Allevne v. United States. U.S. , 133
S. Ct. 2151, 186 L. Ed. 2d 314 (2013), in which the United States Supreme Court
held that a fact that increased the mandatory minimum sentence is an element
which must be presented to the jury and proven beyond a reasonable doubt.
There, the defendant was charged with robbery and using or carrying a firearm.
Allevne. 133 S. Ct. at 2155. The jury found that the defendant had used or carried
a firearm, but had not indicated whether he had "brandished" the gun. Allevne.
133 S. Ct. at 2155-56. If he had brandished a gun, his mandatory minimum
sentence would have increased from five to seven years. Allevne. 133 S. Ct. at
2155-56.
Allevne is not helpful. First, it applies to sentencing enhancement. Here,
Goss was not subjected to a higher sentence. Second, the omission ofthe lower
age of 12 did not increase his sentence. In fact, the crime for which Goss was
convicted was a lesser crime than if he had been convicted of child molestation of
someone under the age of 12. Adopting Goss's argument would in effect put the
defendant in the position of arguing that he was not guilty ofsecond degree child
molestation because he was in fact guilty of the greater crime offirst degree child
molestation.
The sole purpose of the "at least twelve" language of the statute is to
differentiate the lower degrees from the higher degrees of child molestation. The
8
No. 72409-6-1 / 9
omission of the "at least twelve" language did not add to Goss's burden in anyway;
nor did it excuse the State from proving beyond a reasonable doubt that Goss, by
his conduct, met the essential elements of child molestation in the second degree.
The lower age limit is not an essential element of the crime and therefore its
omission from the second amended information was not error.
Sufficiency of the Evidence
Goss argues insufficient evidence supports his conviction of child
molestation of E.F. in the second degree.
Sufficient evidence supports a conviction when, viewed in the light most
favorable to the State, a rational fact finder could have found guilt 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 and all inferences
reasonably drawn from theevidence. Salinas, 119 Wash. 2d at 201. This court defers
to the fact finder on issues of witness credibility and the persuasiveness of the
evidence. State v. Camarillo, 115 Wash. 2d 60, 794 P.2d 850 (1990); State v. Carver.
113 Wash. 2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
The only incident at issue here is Goss's touching E.F.'s breasts. Goss
disputes that it occurred during the charging period, but the evidence presented
clearly established that it occurred within the charging period. E.F. testified that
she was in seventh grade when the incident occurred. She remembered this
because it was the same year that she left to stay with her father in California in
January for the second semester of seventh grade. E.F. testified that thetouching
occurred before she went to California.
9
No. 72409-6-1/10
That this touching occurred when E.F. was in the seventh grade is
supported by testimony from E.F. and her mother, who both testified that E.F. had
just completed her ninth grade in July 2014 at the time of the trial. Thus, her
seventh grade school year would have been between fall 2011 and spring 2012.
E.F. would have been 12 years old when she started seventh grade and turned 13
years old in September 2011. Although the mother testified that E.F. went to visit
her father in eighth grade, the jury was free to believe E.F.'s testimony. If believed,
the evidence was sufficient to support the charge.
Scope of Closing Argument
During cross-examination, defense counsel asked the investigating police
detective whether he had taken a 50 minute recorded statement from Goss
regarding the allegations. The State objected to the question but was overruled.
The detective verified that he had taken the statement. There was no further
testimony about the interview.
Before closing argument, the State moved to prevent defense counsel from
arguing that the State did not present any evidence from the recorded interview
because it was not helpful to the State's case. The court agreed, stating that the
evidence was inadmissible as hearsay since it was not introduced by the State,
the party opponent. The court refused to permit the defense toargue that the State
should have introduced the recorded interview because it weakened the State's
case. The court permitted the defense to argue that the detective conducted an
investigation and that investigation included conducting a recorded interview with
10
No. 72409-6-1 /11
the defendant. Any other information regarding that interview was not in evidence
and could not be argued. Defense counsel objected to the court's ruling.
A trial court's limitation of the scope of closing argument is reviewed for
abuse of discretion. State v. Wooten. 178Wn.2d 890, 896-97, 312 P.3d41 (2013).
"This court will find that a trial court abused its discretion 'only if no reasonable
person would take the view adopted by the trial court.'" State v. Frost, 160 Wash. 2d
765, 771, 161 P.3d 361 (2007) (emphasis omitted) (internal quotation marks
omitted) (quoting State v. Perez-Cervantes. 141 Wash. 2d 468, 475, 6 P.3d 1160
(2000)). The court has stressed that "the trial court should 'in all cases ... restrict
the argument of counsel to the facts in evidence.'" Perez-Cervantes. 141 Wash. 2d
at 475 (alteration in original) (internal quotation marks omitted) (quoting Sears v.
Seattle Consol. St. Rv.. 6 Wash. 227, 233, 33 P. 389, 33 P. 1081 (1893)).
Otherwise a jury may be confused or misled. Perez-Cervantes. 141 Wash. 2d at 474.
Here, the trial court found that the evidence sought to be introduced was
inadmissible hearsay that was not in evidence. Because there was no evidence
presented to the jury to support the inference Goss sought to argue, the trial court
did not abuse its discretion in limiting the argument.
Goss argues that his position is analogous to an argument underlying the
right to a missing witness instruction. That doctrine permits a jury to infer that a
witness's testimony would have been unfavorable to the party that could have
called, but did not call, the witness at trial. State v. Flora. 160 Wash. App. 549, 556,
249 P.3d 1888 (2011). Essentially, Goss sought to introduce evidence that the
State knew he was notguilty, arguing that the State did not introduce the evidence
11
No. 72409-6-1/12
from its interview with him. Admissions of a party opponent are admissible under
ER 801(d)(2), only if offered by the party opponent. Further, the defendant was
unavailable to the State because it could not have called the defendant to the stand
because of his privilege against self-incrimination.
In sum, a defendant does not have a right to present inadmissible evidence.
State v. Hudlow. 99 Wash. 2d 1, 14-15, 659 P.2d 514 (1983). Under the
circumstances here, the court did not abuse its discretion.
Conclusion
The trial court properly permitted the amendment of the information which
contained all the essential elements of the crime of second degree child
molestation. There was sufficient evidence to sustain the conviction and the trial
court did not abuse its discretion in limiting the scope of the defendant's closing
argument.
Affirmed.
^T/'^Ke^f )^J
WE CONCUR:
12