State of Washington v. Anthony M. Messner ( 2020 )

FILED
OCTOBER 6, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 36737-1-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ANTHONY M. MESSNER, )
)
Appellant. )
FEARING, J. — The trial court convicted Anthony Messner of three counts of rape
of a child in the first degree and one count of molestation of a child in the first degree.
During Messner’s trial, the overwhelming evidence, including victim testimony,
established that Messner committed the sexual crimes against his daughter. Nevertheless,
the State never pled the crimes as being in the nature of “domestic violence.” Messner
believes his final judgment and sentence contains a scrivener’s error that incorrectly
converts his child rape and child molestation charges into domestic violence charges. He
asks the court to remand his case to correct the alleged error. Because we do not read the
judgment as declaring the convictions to be based on domestic violence, we decline his
request.
No. 36737-1-III
State v. Messner
Domestic Violence Designation
Anthony Messner contends the trial court erred in finding the State pled and
proved domestic violence. This contention rests on the presence of language, in his
judgment and sentence that reads: “*DV: Domestic Violence was pled and proved.”
Clerk’s Papers (CP) at 46. Messner argues this language incorrectly converted his child
rape and child molestation convictions into domestic violence convictions. The State
responds by asserting that the the identified language is contained in the standard form
judgment and sentence to indicate that, if the judgment contained other information with
a domestic violence designation, the court made a finding that domestic violence was
pled and proven in such case. The State further argues that, if the court had wished to
designate Messner’s convictions as domestic violence convictions, the court would have
checked two boxes contained in the judgment on a later page. Instead, the trial court left
the boxes unchecked. We agree with the State.
The issue is whether the language contained in Anthony Messner’s judgment and
sentence stating “*DV: Domestic Violence was pled and proved” is a scrivener’s error
that incorrectly designated his child rape and child molestation convictions as domestic
violence convictions. CP at 46. Generally, the law defines a scrivener’s error as a
clerical mistake that, when amended, would correctly convey the trial court’s intention,
as expressed in the record at trial. State v. Davis, 160 Wash. App. 471, 478, 248 P.3d 121
(2011). We find no scrivener’s error.
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No. 36737-1-III
State v. Messner
The language challenged by Anthony Messner serves as part of the general
structure of the standard form judgement and sentence prepared by the Washington
administrative office of the courts. If domestic violence had been pled and proven during
the course of Messner’s trial, the trial judge would have checked the two boxes, on a later
page, related to domestic violence. Because both boxes remain unchecked, Messner’s
judgment and sentence did not include a scrivener’s error that converts his child rape and
child molestation charges into domestic violence charges.
Statement of Additional Grounds
Anthony Messner asserts two errors in a statement of additional grounds. First, he
argues that he did not receive a fair and impartial trial as a result of an alleged discussion
that occurred outside the courtroom among a jury member, the victim’s mother, and the
prosecuting attorney. Second, he contends sufficient evidence did not support his
convictions because the State lacked physical or medical evidence and the State presented
contradicting witness testimony. He emphasizes testimony regarding his purported use of
a vibrator when the State never produced the vibrator at trial. Messner fails to cite the
extensive record to support either statement of additional grounds.
Regarding the first statement of additional grounds, any instances of conversations
by a juror outside the courtroom only occurred during his first trial, which resulted in a
mistrial. The record of the second trial lacks any mention of a jury member, the victim’s
mother, or the prosecuting attorney conversing. Any conversation, if it occurred, pertains
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No. 36737-1-III
State v. Messner
to matters not in the record and cannot be addressed in a direct appeal. State v.
McFarland, 127 Wash. 2d 322, 335, 899 P.2d 1251 (1995). Pertaining to sufficiency of
evidence, the State bears the burden of proving all elements of an offense beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. When reviewing a
challenge to the sufficiency of the evidence, this court must determine whether, after
viewing the evidence and all reasonable inferences in a light most favorable to the State,
a rational trier of fact could find the essential elements of the crime beyond a reasonable
doubt. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (plurality opinion). A
claim of insufficiency admits the truth of the State’s evidence and all inferences that
reasonably can be drawn therefrom. State v. Cardenas-Flores, 189 Wash. 2d 243, 265, 401
P.3d 19 (2017). Credibility determinations are for the trier of fact and are not subject to
review by this court. State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990). This
court must defer to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wash. 2d 60, 71,
794 P.2d 850 (1990); State v. Canfield, 13 Wash. App. 2d 410, 418, 463 P.3d 755 (2020).
The jury convicted Anthony Messner of three counts of rape of a child in the first degree
and one count of child molestation in the first degree. The elements of the rape charge
include:
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No. 36737-1-III
State v. Messner
(1) A person is guilty of rape of a child in the first degree when the
person has 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. Elements of child molestation include:
(1) A person is guilty of child molestation in the first degree when
the person has, or 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.
The victim, Anthony Messner’s daughter, testified that Messner performed sexual
acts with her while she was between the ages of six years old and nine years old. The
first count of rape required the State to prove that sexual contact occurred between
Messner’s penis and the daughter’s mouth. The daughter testified that she put her mouth
on Messner’s penis on multiple occasions. Her teacher, Meagan Higgins, also testified
that the daughter told her that Messner directed her to place her mouth on his penis on
multiple occasions beginning when she was in first grade.
The second count of rape required the State to prove Anthony Messner had sexual
intercourse with his daughter by an act of sexual contact involving his penis and the
daughter’s anus. The daughter, through a drawing, showed that Messner placed his
genitals against her buttocks. When asked if her father’s penis went inside or remained
outside of her, the daughter responded, “inside.” Report of Proceedings (RP) at 1251-52.
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No. 36737-1-III
State v. Messner
The third count of rape required the State to prove that sexual contact occurred
between Anthony Messner’s mouth and the daughter’s vagina. The daughter testified
that Messner touched her privates, as circled on an exhibit, with his mouth when she was
unclothed.
Finally, count four charged Anthony Messner with child molestation in the first
degree. This charge required the State to prove that Messner had sexual contact with his
daughter. The jury instructions defined sexual contact as “any touching of the sexual or
other intimate parts of a person done for the purpose of gratifying sexual desires of either
party.” CP at 23. The State asked the jury to find beyond a reasonable doubt that
Messner sexually molested his daughter when he used a vibrator on her. The daughter
testified that Messner used a “pink thingy” on her crotch. RP at 1258. The State showed
her a picture that she had previously drawn and asked her if that was the object Messner
had used on vagina. She responded affirmatively. The court admitted the drawing into
evidence. The State later presented the drawing to Jasmine Jordan, one of the daughter’s
counselors. Jordan explained that the drawing was done by the daughter during one of
the counseling sessions with Jordan. Jordan identified, for the jury, the object as a
vibrator.
Although Anthony Messner contends correctly that the State presented no physical
or medical evidence in support of the charges, such circumstances are common for most
child sexual abuse cases. State v. Swan, 114 Wash. 2d 613, 623, 630, 790 P.2d 610 (1990).
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No. 36737-1-III
State v. Messner
Notwithstanding the fact that law enforcement never found the vibrator described by the
daughter, the trier of fact weighs the evidence. Evidence existed in the record to find
beyond a reasonable doubt that the sexual acts occurred between Messner and his
daughter. The jury weighed the evidence and opted to believe the testimony of the
daughter.
CONCLUSION
We affirm the four convictions of Anthony Messner.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Korsmo, J.
______________________________
Pennell, C.J.
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