State Of Washington v. Michael R. Stewart

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 78846-9-I
Respondent,
DIVISION ONE
V.
PUBLISHED OPINION
MICHAEL ROBERT STEWART,
Appellant. FILED: February 10, 2020
APPELWICK, C.J. — Stewart appeals his conviction for indecent exposure.
He argues that the trial court’s findings of fact entered in support of the open and
obscene exposure element of the crime are not supported by substantial evidence.
We affirm.
FACTS
At around 10:00 a.m. on November 1, 2017, S.G. went shopping in Mount
Vernon. As she was walking around a building to get to another store, she saw a
man on the side of the building behind a dumpster. The man was kneeling on the
ground in an upright position, and his body was moving erratically.
S.G. initially thought that the man was having a seizure. The man then
turned and made eye contact with her. She noticed that his arm was moving back
and forth. She also observed his hands by his genitals, and one of his hands
No. 78846-9-1/2
moving rapidly back and forth. At that point, S.C. believed that the man was
masturbating.
S.C. went into the store she was walking towards and told the store clerk
that there was a man masturbating outside the door. The store clerk called the
police. From inside the store, S.C. saw the man walk across the street to a parking
lot. About 5 to 10 minutes later, Officer Chris Carison arrived and contacted the
man in the parking lot. Carlson identified the man as Michael Stewart.
After consulting with an officer who had spoken with the reporting parties,
Carlson placed Stewart under arrest. He advised Stewart of his constitutional
rights. Stewart agreed to speak with Carlson, and denied being next to the building
where S.G. had seen him. Carlson told Stewart that other people had told him he
had been next to the building and crossed the street just prior to his arrival. In
response, Stewart stated that he had been over there, and thought he might have
had a seizure. He did not request medical attention from Carlson.
Later that morning, Detective Sergeant Mike Don conducted an audio and
video interview of Stewart at the Mount Vernon Police Department. During the
interview, Stewart told Don that he had experienced a seizure. He explained that
when he experiences a seizure, he typically has about 12 seconds to loosen his
tight fitting clothing. He stated that he had undone his belt, and that, when he was
seen, his top layer of pants was probably down around his knees.1
1 Don noticed a white stain on the left thigh area of Stewart’s pants. As a
result, he collected Stewart’s pants as evidence. Katherine Woodward, an
employee at the Washington State Patrol Crime Laboratory, later performed a
2
No. 78846-9-1/3
The State charged Stewart with indecent exposure under RCW
9A.88.010(1) and (2)(c). Stewart waived his right to ajurytrial. Following a bench
trial, the trial court found Stewart guilty as charged. Stewart had 10 prior
convictions. His two most recent convictions were for indecent exposure. The trial
court did not find a basis to deviate from the standard sentencing range and
sentenced him to 60 months of confinement.
Stewart appeals.
DISCUSSION
Stewart argues that sufficient evidence does not support his indecent
exposure conviction. Specifically, he contends that the trial court’s findings of fact
entered in support of the open and obscene exposure element of the crime are not
supported by substantial evidence. As a result, he asserts that the trial court’s
findings of fact do not support its conclusion of law finding him guilty.
To determine whether sufficient evidence supports a conviction, we view
the evidence in the light most favorable to the State, and determine whether any
rational fact finder could have found the elements of the crime beyond a
reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).
Evidence sufficiency challenges admit the truth of the State’s evidence and all
reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192,
visual examination of the exterior surface of the pants. She observed four areas
of white staining. Upon further testing, she identified semen on the fly area of the
exterior of the pants. In its findings of fact and conclusions of law, the trial court
did not make a finding that there was semen on the exterior of Stewart’s pants.
Thus, we do not address this evidence in the remainder of the opinion.
3
No. 78846-9-1/4
201, 829 P.2d 1068 (1992). We defer to the trier of fact on issues of conflicting
testimony, credibility of witnesses, and the persuasiveness of the evidence. State
v. Killinqsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012).
“[F]ollowing a bench trial, appellate review is limited to determining whether
substantial evidence supports the findings of fact and, if so, whether the findings
support the conclusions of law.” Homan, 181 Wn.2d at 105-06. Substantial
evidence is evidence sufficient to persuade a fair-minded, rational person of the
finding’s truth. State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002).
We consider unchallenged findings of fact verities on appeal, and we review
conclusions of law de novo. Perry v. Costco Wholesale, Inc., 123 Wn. App. 783,
792, 98 P.3d 1264 (2004).
A person is guilty of indecent exposure under RCW 9A.88.010(1) “if he or
she intentionally makes any open and obscene exposure of his or her person or
the person of another knowing that such conduct is likely to cause reasonable
affront or alarm.” While the statute requires “open and obscene exposure” of a
defendant’s person, no witness must see a defendant’s genitalia for the State to
prove that the defendant exposed himself in another’s presence. ~L; State v. Vars,
157Wn. App. 482, 491, 237 P.3d 378 (2010). The crime has been committed “{s]o
long as an obscene exposure takes place when another is present and the
offender knew the exposure would likely cause reasonable alarm.” k~.
Stewart argues first that a sentence in finding of fact 5 is not supported by
substantial evidence. The challenged portion of finding of fact 5 states, “When
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No. 78846-9-1/5
[S.G.] was not more than 15 feet away from the man, she looked over her shoulder
and saw the man’s hand was by his genitals and his hand was moving back and
forth rapidly.”
S.G. testified that she was four or five yards away from Stewart when she
saw his arm moving back and forth. The State then asked, “When you are saying
you saw his arm moving back and forth can you tell us where his hands were in
relationship to his body?” She responded that his hands were “[b]y his genitals.”
The State also asked her how quickly Stewart’s hand was moving back and forth.
She responded, “Rapidly.” On cross-examination, S.G. clarified that she did not
actually see Stewart’s penis, but that his hand was “right in front of where his penis
would be.” She also stated that she could not tell if his pants were down.
Stewart contends that, looking at S.C’s testimony as a whole, she saw his
arm moving back and forth but only “inferred his hand was in the area of his penis.”
He asserts that if 5G. “actually saw his hands near his penis, as opposed to
inferring where his hands were, she woUld necessarily have been able to see at
the same time whether his pants were down.” But, S.C. clearly testified that
Stewart’s hands were by his genitals. She also stated that his hand was right in
front of where his penis would be. This testimony constitutes substantial evidence
supporting the trial court’s finding that S.C. saw Stewart’s hand by his genitals,
and saw his hand moving rapidly back and forth.
5
No. 78846-9-1/6
Stewart argues second that finding of fact 6 is not supported by substantial
evidence. Finding of fact 6 provides, “S.G. was not sure if she saw Mr. Stewart’s
penis because she saw his hand moving back and forth in the area of where his
penis was. That is clear evidence that his hand was not in his pants at the time
and, in fact, that his penis was outside of his pants.”
S.C. testified that she saw Stewart’s body moving around erratically, his
hands by his genitals, and his hand moving rapidly back and forth. The State
asked S.C. if she had any doubt in her mind as to what was going on at that point.
She responded,
You know, I thought I looked away when he made eye contact, and
not wanting to watch I looked away. And for a fleeting moment in my
head I thought, well, what if he’s really having a seizure and he’s hurt.
As I got closer, past a tree, I remember looking over, and it was very
obvious what he was doing. So I [did] have a second glance there,
and looked over and confirmed; that’s when I went into the store.~2~
The State then asked her, “When you say it was very obvious what he was doing
I’m assuming you are saying [you are] not believing he’s having a seizure at this
point?” S.C. responded, “Correct, correct, with his hand placement the way he
was moving, kneeling, it wasn’t a seizure.”
Next, the State asked S.C. what she believed Stewart was doing. S.C.
stated that it was “pretty obvious” Stewart was masturbating. When asked on
2 The trial transcript states, ‘So I didn’t have a second glance there, and
looked over and confirmed.” However, because S.C. stated within her answer that
she remembered looking over, and that she “looked over and confirmed,” it
appears that S.C. meant to state that she “[did] have a second glance.”
6
No. 78846-9-1/7
cross-examination if she saw Stewart’s penis, S.G. responded, “No, I don’t think
so.” She then stated, “When I looked over and saw where his hand was that was
enough.” She explained that his hand was ‘right in front of where his penis would
be.”
Stewart argues that “S.G.’s testimony does not show it is more likely than
not that his penis was outside his pants.” He asserts that it is possible to
masturbate “while the penis remains inside the pants.” But, S.G. testified that it
was “obvious” Stewart was masturbating, that his hand was moving rapidly back
and forth right in front of where his penis would be, and that, when she looked over
and saw where his hand was, “that was enough.” Based on S.G.’s testimony, a
rational, fair-minded person could conclude that Stewart was masturbating with his
penis outside his pants. As a result, substantial evidence supports the trial court’s
finding that Stewart’s penis was outside his pants.
Stewart argues last that finding of fact 7 is not supported by substantial
evidence. Finding of fact 7 states that “[t]he exposure of the defendant’s penis by
the defendant was intentional.” In challenging this finding, Stewart’s only argument
is that “the evidence does not show an exposure occurred.” But, as established
above, substantial evidence supports that an exposure did occur. And, despite
claiming that he had a seizure, Carison testified that Stewart did not ask him for
help in seeking medical attention. Thus, substantial evidence supports that the
exposure was intentional.
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No. 78846-9-1/8
Substantial evidence supports findings of fact 5, 6, and 7. The trial court’s
findings support its conclusion that Stewart committed indecent exposure.
Accordingly, the evidence is sufficient to support Stewart’s conviction.
We affirm.
WE CONCUR:
I,’
‘1
State v. Stewart, No. 78846-9-I
DWYER, J. (concurring) — Stewart’s conviction should be affirmed. The
quantum of evidence adduced at trial was constitutionally sufficient to support
Stewart’s conviction for indecent exposure. However, because the majority
reaches its decision by applying the sufficiency of the evidence test set forth by
our Supreme Court in State v. Homan, 181 Wn.2d 102, 330 P.3d 182 (2014),
which conflicts with the sufficiency of the evidence standard for criminal cases
announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S.
307, 99 5. Ct. 2781, 61 L. Ed. 2d 560 (1979), I find it necessary to decline to join
the majority opinion.
In Jackson, the United States Supreme Court considered a federal habeas
corpus proceeding wherein the petitioner asserted that he was “convicted in a
state court upon insufficient evidence.” 443 U.S. at 309. Jackson submitted his
habeas corpus petition protesting his conviction—resulting from a bench trial in
the Circuit Court of Chesterfield County, Virginia—for first degree murder.
Jackson, 443 U.S. at 309. Therein, the Court noted, Jackson did not challenge
“any aspect of Virginia law governing the allocation of the burden of production or
persuasion in a murder trial.” Jackson, 443 U.S. at 313. Instead, Jackson and
the Court focused solely on whether Jackson’s constitutional due process rights
as guaranteed by the Fourteenth Amendment to the United States Constitution
protect him “against conviction except upon evidence that is sufficient fairly to
No. 78846-9-1/2
support a conclusion that every element of the crime has been established
beyond a reasonable doubt.” Jackson, 443 U.S. at 313-1 5.
The Court concluded that “the critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction must be not simply to determine
whether the jury was properly instructed, but to determine whether the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt.”
Jackson, 443 U.S. at 318. It noted that ‘this inquiry does not require a court to
‘ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19 (quoting Woodbv v.
Immigration & Naturalization Serv., 385 U.S. 276, 282, 87 5. Ct. 483,
17 L. Ed. 2d 362 (1966)). “Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319 (citing Johnson v. Louisiana, 406
U.S. 356, 362, 92S. Ct. 1620,32 L. Ed. 2d 152 (1972)). The Court further
explained that such a standard preserves “the factfinder’s role as weigher of the
evidence . . . through a legal conclusion that upon judicial review all of the
evidence is to be considered in the light most favorable to the prosecution.”1
Jackson, 443 U.S. at 319.2
1 Applying this standard, the Jackson Court ultimately held, after reviewing the record in
the light most favorable to the prosecution, that “a rational factfinder could readily have found
[Jackson] guilty beyond a reasonable doubt of first-degree murder under Virginia law.” 443 U.S.
at 324.
2 The Jackson standard also applies to criminal trials subject to the Fifth Amendment’s
due process clause. ~Musacchio v. United States, — U.S.
—, 136 S. Ct. 709, 715,
193 L. Ed. 2d 639 (2016) (applying the Jackson standard in a federal criminal case). Although
Jackson involved review of a bench trial conviction, the Jackson standard also applies to
convictions arising from jury trials. ~ Musacchio, 136 5. Ct. at 714-15 (appeal from a jury trial).
2
No. 78846-9-1/3
Having set forth the sufficiency of the evidence standard prescribed by the
United States Supreme Court, I must now explain our Supreme Court’s
misapplication of this standard in Homan.
The majority opinion correctly delineates the requirements set forth in
Homan. The Homan court first stated that ‘[tb determine whether sufficient
evidence supports a conviction, we view the evidence in the light most favorable
to the prosecution and determine whether any rational fact finder could have
found the elements of the crime beyond a reasonable doubt.” Homan, 181
Wn.2d at 105 (citing State v. Enc~el, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009)).
The court further explained that “[un claiming insufficient evidence, the defendant
necessarily admits the truth of the State’s evidence and all reasonable inferences
that can be drawn from it.” Homan, 181 Wn.2d at 106 (citing State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Drum, 168 Wn.2d 23, 35,
225 P.3d 237 (2010)). These propositions are entirely consistent with the
standard set forth in Jackson.
The Homan court, however, next carved out an exception to the principles
it had correctly set forth, stating that
following a bench trial, appellate review is limited to determining
whether substantial evidence supports the findings of fact and, if
so, whether the findings support the conclusions of law. State v.
Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005).
“Substantial evidence” is evidence sufficient to persuade a fair
minded person of the truth of the asserted premise. k~. We treat
unchallenged findings of fact supported by substantial evidence as
verities on appeal. Schmidt v. Cornerstone lnvs., Inc., 115 Wn.2d
148, 169, 795 P.2d 1143 (1990).
3
No. 78846-9-114
181 Wn.2d at 105-06.
These propositions are inconsistent with the standard set forth in Jackson
in five ways.3 First, Jackson did not distinguish between a conviction resulting
from a trial by jury and a conviction resulting from a bench trial. There are not
different standards. The same standard applies in all cases, as the “question
whether a defendant has been convicted upon inadequate evidence is central to
the basic question of guilt or innocence.” Jackson, 443 U.S. at 323. However,
the Court in Jackson did, in fact, review a conviction resulting from a bench trial.
443 U.S. at 309. Irrefutably, the standard set forth in Jackson is the correct
standard for determining whether a conviction resulting from a bench trial is
supported by a constitutionally sufficient quantum of evidence.
Second, the Homan court’s standard focuses review on the result reached
by the specific trial judge in each case. 181 Wn.2d at 105-06 (“appellate review
is limited to determining whether substantial evidence supports the findings of
fact”). This is wrong. Jackson requires that a reviewing court determine whether
“any rational trier of fact” could have found the defendant guilty beyond a
reasonable doubt. 443 U.S. at 319. The focus is not on one particular trial judge
or one particular juror. To the contrary, it is an objective standard.
Third, the Homan standard limits review of the evidence in the record to
evidence set forth in the trial judge’s factual findings. 181 Wn.2d at 105-06
~ It is, therefore, unsurprising that the origins of these principles are to be found in civil,
rather than in criminal, cases. Even the Homan court’s citation to the Division Two decision in
State v. Stevenson actually relies on a civil case. To support the proposition that it should apply a
substantial evidence standard when reviewing convictions resulting from bench trials, the
Stevenson court cited not to a criminal case but, rather, to Perry v. Costco Wholesale, Inc., 123
Wn. App. 783, 792, 98 P.3d 1264 (2004). ~ Stevenson, 128 Wn. App. at 193.
4
No. 78846-9-1/5
(“appellate review is limited to determining whether substantial evidence supports
the findings of fact”). Again, this is wrong. The Jackson standard plainly requires
a reviewing court to consider all of the evidence, not just the evidence credited by
the trial judge in findings of fact. ~ 443 U.S. at 319.
Fourth, the Homan standard views only the trial judge’s findings of fact in
the light most favorable to the prosecution. .~ 181 Wn.2d at 106 (“We treat
unchallenged findings of fact and findings of fact supported by substantial
evidence as verities on appeal.”). In contrast, the Jackson standard requires
“that upon judicial review all of the evidence is to be considered in the light most
favorable to the prosecution.” 443 U.S. at 319.
Fifth, the Homan standard requires only “substantial evidence” to support
a trial judge’s findings of fact supporting a conviction. This is not the same
standard as required by the United States Supreme Court. Jackson requires a
reviewing court to determine that the record contains sufficient evidence to
enable any rational trier of fact to find “the essential elements of the crime
[proved] beyond a reasonable doubt.” 443 U.S. at 319.
In sum, Homan’s sufficiency of the evidence standard for reviewing
convictions resulting from bench trials conflicts with the Jackson standard, It
harms the prosecution by narrowing the inquiry on review to consider only a
portion—rather than all—of the evidence adduced at trial and by relying solely on
“As the Jackson Court noted, considering less than all of the evidence would intrude
upon the fact finder’s role as weigher of the evidence. 443 U.S. at 319. Even when a trial judge
has weighed the evidence, because a reviewing court must determine whether any rational trier
of fact could reasonably conclude that the evidence supports a finding of guilt beyond a
reasonable doubt, limiting review to only that evidence which a specific fact finder credited
wrongly converts the Jackson standard from an objective one to a subjective one.
5
No. 78846-9-1/6
whether a specific fact finder—as opposed to any rational fact finder—could
reasonably convict the defendant. Simultaneously, it harms defendants by
supplanting the demanding beyond a reasonable doubt standard with the less
stringent substantial evidence standard.
Ill
Lest it be argued that the substantial evidence standard from Homan may
be supported by an independent state right to be convicted only on sufficient
evidence, I will now address why the Jackson standard is applied to protect both
the state and federal constitutional right to be convicted only on proof beyond a
reasonable doubt.
Shortly following the publication of the Jackson decision, our Supreme
Court, in State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980) (Green II), held that
Washington courts must apply the federal constitutional standard for appellate
review of the sufficiency of the evidence in criminal cases in its reconsideration of
State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979) (Green I).
In Green I, the court reviewed a challenge to the sufficiency of the
evidence necessary to support a conviction for aggravated murder in the first
degree. 91 Wn.2d at 442-43. The court applied a substantial evidence test, the
prevailing test at the time, limiting review to “a determination of whether the State
has produced substantial evidence tending to establish circumstances from
which a jury could reasonably infer the fact to be proved.” Green I, 91 Wn.2d at
442. This analysis led the court to conclude that the State had produced
6
No. 78846-9-117
substantial evidence to support a conviction for aggravated murder in the first
degree. Green I, 91 Wn.2d at 444.
In response to Jackson, our Supreme Court granted reconsideration of
Green I. In the reconsidered opinion, the court abandoned the substantial
evidence standard previously applied by Washington courts and utilized by the
court in Green I. Green II, 94 Wn.2d at 221. The court acknowledged that the
proper inquiry in an evidentiary sufficiency review “is whether, after viewing the
evidence most favorable to the State, any rational trier of fact could have found
the essential elements of [the crime] beyond a reasonable doubt.” Green II, 94
Wn.2d at 221-22 (citing Jackson, 443 U.S. at 319). The court further noted that
the Green I substantial evidence rule ‘cannot be equated with Jackson’s
‘reasonable doubt’ rule.” Green II, 94 Wn.2d at 222. Although the Green II
opinion did not explicitly state that the Jackson standard was the only proper
standard for reviewing evidentiary sufficiency, the court’s rejection of other
standards strongly indicated that the sole evidentiary sufficiency standard
applicable in Washington was, in fact, the Jackson standard.
Subsequent decisions of our Supreme Court make clear that the Jackson
standard is the only applicable standard for reviewing the sufficiency of the
evidence in criminal cases in Washington. In the time period between Green II
and Homan (and even after Homan), when reviewing whether a conviction is
supported by a legally sufficient quantum of evidence, our Supreme Court has
applied only the federal constitutional standard set forth in Jackson. ~ ~
State v. Johnson, 188 Wn.2d 742, 750-51, 399 P.3d 507 (2017); State v.
7
No. 78846-9-1/8
Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015); Engel, 166 Wn.2d at 576;
State v. Wentz, 149 Wn.2d 342, 347, 68 P.3d 282 (2003); State v. Bencivenga,
137 Wn.2d 703, 706, 974 P.2d 832 (1999); State v. Luvene, 127 Wn.2d 690,
712, 903 P.2d 960 (1995).
Moreover, in Johnson, our Supreme Court explicitly acknowledged that
“Washington has adopted the federal standard for sufficiency review.” 188
Wn.2d at 758. The court stated that “[u}nder both the federal and state
constitutions, due process requires that the State prove every element of a crime
beyond a reasonable doubt.” Johnson, 188 Wn.2d at 750 (citing U.S. CONST.
amend. XIV; WASH. CONST. art I, § 3; In re Winship, 397 U.S. 358, 364, 90 S. Ct.
1068, 25 L. Ed. 2d 368 (1970); State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746(2016)). Then the court explained that, to guarantee those protections, it reviews
claims of constitutionally insufficient evidence by considering “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Johnson, 188 Wn.2d at 751 (internal quotation marks
omitted) (quoting Green II, 94 Wn.2d at 221). Thus, when reviewing a criminal
conviction, “Washington’s sole evidentiary sufficiency standard is that which the
Fourteenth Amendment requires.” State v. Tyler, 195 Wn. App. 385, 394, 382
P.3d 699 (2016), aff’d on other grounds, 191 Wn.2d 205, 422 P.3d 436 (2018).
8
No. 78846-9-1/9
lv
The distinction between the Homan court’s standard and the Jackson
standard is not merely academic, Indeed, although the ultimate disposition
happens to remain the same regardless of the test applied, this case provides a
concrete example of how the Homan standard differs from the Jackson standard.
As the majority notes in a footnote, the record contains evidence that a
white stain on the outside of Stewart’s pants (in the left thigh area) was identified
by the Washington State Patrol Crime Laboratory as semen. The majority
declines to consider this evidence as part of its evidentiary sufficiency review
because the trial court’s findings of fact do not contain a finding that there was
semen on the exterior of Stewart’s pants. Under the Homan rule, the majority’s
analysis is entirely correct; it is restricted to reviewing the trial court’s findings of
fact and conclusions of law. 181 Wn.2d at 105-06. Thus, it cannot consider the
presence of the semen stain or any inferences arising therefrom in evaluating the
quantum of evidence adduced at trial.
Under the Jackson standard, however, the semen stain and any
reasonable inferences that could be drawn from its existence must be
considered. Under the Jackson standard, reviewing courts must consider al/the
record evidence and give the prosecution the benefit of all inferences that can be
drawn therefrom. 443 U.S. at 319. By following Homan, the majority denies the
9
No. 78846-9-1/10
State the benefit of the clear inference that follows from the evidence of semen
on the exterior of Stewart’s pants.5
The majority nevertheless concludes that substantial evidence supports
the trial court’s finding that Stewart’s penis was exposed because the
complaining witness’s testimony established that she saw his hand rapidly
moving back and forth where his penis would be and that it was obvious that he
was masturbating. Such an analysis, however, is far more potent when
considered alongside the evidence that semen was found on the exterior of
Stewart’s pants. When considered together, this evidence is plainly sufficient to
permit any rational trier of fact to conclude that the evidence adduced at trial
established beyond a reasonable doubt that Stewart exposed his penis while
masturbating.
V
Our Supreme Court would do well by disavowing its misstatements in
Homan. However, this case raises an additional issue that our Supreme Court
has never clarified: What is the nature of the trial error, and what is the
appropriate relief required, when the State has adduced a constitutionally
sufficient quantum of evidence at trial, but the trial court’s findings of fact do not
support its determination of guilt?
It is a longstanding rule that when a reviewing court concludes that a
constitutionally insufficient quantum of evidence was adduced at trial to support a
~ Plainly, some rational trier of fact could conclude that Stewart’s penis was, at least in
part, outside of his pants at the moment he ejaculated. This rational trier of fact could also
conclude that Stewart’s ejaculation was the result of the masturbatory behavior observed and
testified to by the State’s complaining witness.
10
No. 78846-9-I/li
defendant’s conviction, it would violate the constitutional prohibition against
double jeopardy to retry the defendant following reversal. Burks v. United States,
437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1(1978). This is so because a
reversal premised on the constitutional insufficiency of the evidence has the
same effect as an acquittal, which is an absolute bar to retrial.6 Tibbs v. Florida,
457 U.S. 31, 41, 102 S. Ct. 2211,72 L. Ed. 2d 652 (1982).
The constitutional prohibition against double jeopardy, however, does not
bar retrial for the same offense when, on appellate review, a defendant obtains
reversal of his or her conviction on any other ground. State v. Wriciht, 165 Wn.2d
783, 792, 203 P.3d 1027 (2009) (citing State v. Corrado, 81 Wn. App. 640, 647-
48, 915 P.2d 1121 (1996)); accord Burks, 437 U.S. at 13. Thus, when the State
has adduced at trial a constitutionally sufficient quantum of evidence to support a
conviction, but the trial judge’s findings of fact do not support its determination of
guilt, it appears likely that—regardless of how that particular trial court error is
categorized—the remedy would be other than dismissal with prejudice.7
6 A reversal premised on the constitutional insufficiency of the evidence to support a
conviction is the equivalent of an acquittal for purposes of determining whether retrial would place
the defendant in double jeopardy because such a reversal “means that no rational factfinder
could have voted to convict the defendant.” Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72
L. Ed. 2d 652 (1982).
~ In the early years of statehood, well before the Fourteenth Amendment was identified as
the source of a constitutional evidentiary insufficiency claim, a reversal based on the
prosecution’s failure to prove the crime beyond a reasonable doubt was remedied by the grant of
a new trial—not dismissal with prejudice. This rule is articulated in two cases, which have never
been overruled.
The law presumes the innocence of the appellant until his guilt is established
beyond a reasonable doubt. We do not feel that we are invading the province of
the jury in holding the evidence before us insufficient to warrant a conviction.
. .
The judgment of the superior court is reversed, and the cause is
remanded for a new trial.
State v. Pienick, 46 Wash. 522, 529, 90 P. 645 (1907).
While we are [loath] to disturb the verdict of a jury on the ground of
insufficiency of the evidence to justify the verdict, yet where the evidence as
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No. 78846-9-1/12
Nevertheless, guidance from our Supreme Court is needed to conclusively
identify the nature of the described error and the proper remedy it demands.
VI
The record herein contains sufficient evidence for a rational fact finder to
conclude that all of the elements of the crimeof indecent exposure were proved
beyond a reasonable doubt. I therefore concur in affirming Stewart’s conviction.
disclosed by the record is palpably insufficient to warrant the verdict, as we deem
it to be in this case, it is our duty to say so and to award a new trial.
State v. Payne, 6 Wash. 563, 574, 34 P. 317 (1893).
This Supreme Court authority suggests that an assignment of error premised upon a
nonconstitutional claim of insufficient evidence is fully remedied by the grant of a new trial, as
opposed to dismissal.
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