State v. Delgado

• Decision Date: 05 November 2001
• Docket Number: No. 46166-4-I.,46166-4-I.
• Citation: 109 Wash. App. 61,33 P.3d 753
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Dumas DELGADO, Appellant.

33 P.3d 753

109 Wash. App. 61

STATE of Washington, Respondent, v. Dumas DELGADO, Appellant.

No. 46166-4-I.

Court of Appeals of Washington, Division 1.

November 5, 2001.

Donald Boyette Lundahl, Tacoma, for appellant/cross-respondent.

Cynthia Gannett, David Seaver, King County Prosecutor's Office, Seattle, for respondent/cross-appellant.

David Bruce Koch, Nielsen, Broman & Associates PLLC, Seattle, for ami curiae.

COLEMAN, J.

Following a bench trial on stipulated facts, appellant Dumas Delgado was convicted of one count of first degree child rape and one count of first degree child molestation. On appeal, Delgado does not dispute the trial court's finding that he digitally penetrated the folds of the victim's external genitalia. Instead, he argues that a conviction for child rape requires a finding that the defendant penetrated the victim's vaginal canal. Delgado asserts that because the record lacks any evidence of such penetration, his child rape conviction must be reversed. But because this court has previously held that any penetration of the female sexual organ constitutes "sexual intercourse" in child rape cases, we affirm Delgado's conviction.

The State is also before this court on appeal from the trial court's decision not to include Delgado's 1986 statutory rape conviction as a strike under the Persistent Offender Accountability Act ("POAA"). The Legislature recently amended the act to clarify its intention that offenses under prior Washington law that are comparable to the offenses listed in the act are to be counted as strikes. In light of this amendment, this case is remanded for resentencing.

STATEMENT OF FACTS

On June 30, 1999, eight-year-old A.S. went to Delgado's house to play on the tire swing in his backyard. As Delgado pushed A.S. back and forth on the swing, he repeatedly placed his hand on the outside of her clothing over her vagina. After swinging, the two of them went inside Delgado's home. Delgado put his arms around A.S., put his hand down her pants and inside her underwear, and rubbed her vagina with his fingers. A.S. later told a child interviewer and a defense investigator that Delgado touched her "up in the inside part of [her] private," "in the folds" of her external genitalia, but that his finger did not go into the "hole" that goes up inside her body.

Delgado was charged with one count of rape of a child in the first degree and two counts of child molestation in the first degree. Following a bench trial on stipulated facts, Delgado was convicted on the child rape charge and one of the molestation charges.¹

ISSUES

1. Conviction

At trial, Delgado stipulated to the fact that he touched A.S. "up in the inside part of [her] private" and "in the folds" of her external genitalia, but that his finger did not go into the "hole" that goes up inside her body. In its oral findings, the trial court stated that "whereas the defendant did not penetrate the vaginal canal of the child, he did touch the labia minor of the child, which is in the cleft of the labia majora." This finding is unchallenged on appeal.

According to RCW 9A.44.073(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." Sexual intercourse is defined in RCW 9A.44.010(1):

"Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

Delgado argues that "sexual intercourse"—as required for a conviction under RCW 9A.44.073 and as defined by RCW 9A.44.010(1)—necessarily involves penetration of the vagina and that the term "vagina" is not defined to include the labia minora. Delgado asserts that because the trial court found that he touched the victim's labia minora but did not penetrate her vaginal canal, the evidence is insufficient to support his child rape conviction. In sum, Delgado's argument hinges on an anatomical distinction between the terms "vagina" and "labia minora."

Where an ambiguity exists in a statute—as suggested in this case by the parties' differing anatomical definitions—"the primary duty of the court in interpreting the statute is to ascertain and give effect to the intent and purpose of the Legislature." State v. Hennings, 129 Wash.2d 512, 522, 919 P.2d 580 (1996). With this duty in mind, "[w]ords in statutes are to be understood in their ordinary and popular sense." State v. Cain, 28 Wash.App. 462, 464, 624 P.2d 732 (1981). Furthermore, a court should construe a statute "so as to avoid strained or absurd consequences which could result from a literal reading." In re Detention of A.S., 138 Wash.2d 898, 911, 982 P.2d 1156 (1999) (quoting In re Detention of LaBelle, 107 Wash.2d 196, 205, 728 P.2d 138 (1986)). These principles of statutory construction militate against Delgado's suggested reading of the child rape statute.

More importantly, this court has specifically held that "[u]nder RCW 9A.44.073, the State must prove that the defendant penetrated, at a minimum, the lips of the victim's sexual organs." State v. Bishop, 63 Wash. App. 15, 19, 816 P.2d 738 (1991); Cf., State v. Snyder, 199 Wash. 298, 300, 91 P.2d 570 (1939) (stating that "it is not necessary that the penetration should be perfect, the slightest penetration of the body of the female by the sexual organ of the male being sufficient"), quoting 52 C.J. 1015, § 24(b). This court has also held—in response to the same argument proffered by Delgado in this case—that for purposes of RCW 9A.44.010(1), "vagina means all of the components of the female sexual organ" and specifically, that "the labia minora are part of the definition of vagina." State v. Montgomery, 95 Wash.App. 192, 200-01, 974 P.2d 904 (1999). These decisions are soundly reasoned, reflective of well-established principles of statutory construction, and directly applicable to this case. Thus, Delgado's conviction for first degree rape of a child is affirmed.

2. Sentence

RCW 9.94A.030(31)(b)—commonly referred to as the persistent offender statute or the "two strikes" statute—contains a list of crimes to be considered "strikes" for purposes of sentence enhancement under the POAA.² At trial, the State argued that Delgado's 1986 conviction for first degree statutory rape should be counted as a strike.³ The trial court rejected the State's argument because statutory rape is not one of the sex crimes specifically listed in the two strikes statute.

We recently rejected such a reading of the two strikes statute as it applies to out-of-state convictions. In State v. Lawrence, 31 P.3d 1198 (Wash.Ct.App. Aug.13, 2001), the appellant argued that the two strikes statute "applies only to offenses specifically named in that statute" and that "whether an out-of-state conviction constitutes a strike turns, not on the acts committed, but on the name assigned to the offending conduct by the foreign jurisdiction." Lawrence, 31 P.3d at 1206. We held that the two strikes statute "does not require such an absurd result" and that instead, whether an out-of-state conviction counts as a strike turns on the conviction's factual equivalency to one of the crimes listed in the statute. Lawrence, 31 P.3d at 1207.

The same reasoning is applicable to this case. The POAA is intended to deter criminals who repeatedly commit serious offenses and to segregate those criminals from the...