State v. Goss

• Decision Date: 18 August 2016
• Docket Number: No. 92274–8,92274–8
• Citation: 378 P.3d 154,186 Wash.2d 372
• Parties: The State of Washington, Respondent, v. Michael Ray Goss, Petitioner.
• Court: Washington Supreme Court

186 Wash.2d 372

378 P.3d 154

The State of Washington, Respondent

v.Michael Ray Goss, Petitioner.

No. 92274–8

Supreme Court of Washington, En Banc.

Argued July 7, 2016

Filed Aug. 18, 2016

John Henry Browne, Colleen A. Hartl, Emma C. Scanlan, Law Offices of John Henry Browne, P.S., 108 S. Washington St., Ste. 200, Seattle, WA, 98104–3414, for Petitioner.

Donna Lynn Wise, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104–2362, for Respondent.

González

, J.

¶ 1 Those charged with a crime have the constitutional right to know “the nature and cause of the accusation” made against them and the constitutional right to notice of every fact (other than prior convictions) that increases the penalties they face. Wash. Const. art. I, § 22

; Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (quoting, Jones v. United

States, 526 U.S. 227, 243 n.6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) ). Michael Goss argues that the charging document the State used to accuse him of second degree child molestation failed to meet this constitutional standard because it failed to allege that the victim was “at least twelve years old,” the lower limit of the age range for that degree of the crime. RCW 9A.44.086(1). We conclude that Goss had notice of the nature and cause of the accusation against him and notice of every fact that exposed him to a greater penalty. We affirm.

Facts

¶ 2 The victim in this case, E.F., is the granddaughter of Goss's former fiancee. During the years Goss and E.F.'s grandmother were together, E.F. regularly visited, regularly spent the weekend, and regularly helped out with yard work and house work. For most of those years, Goss and E.F. seemed to get along well and had a playful relationship.

¶ 3 One summer Saturday in 2013, E.F.'s family held a family reunion on the Olympic Peninsula at Port Hadlock, a ferry ride away from where E.F. lived. Despite their earlier friendly relationship, E.F. resisted riding with Goss and wanted nothing to do with him. When Goss “tr[ied] to talk to her ... she would answer him rudely ..., something that wasn't ordinary for her.” 2 Verbatim Tr. of Proceedings (VTP) (July 7, 2014) at 290.

¶ 4 After the reunion, on the way to the ferry dock, E.F.'s mother and aunt criticized the way E.F. had treated Goss, leaving E.F. angry and in tears. During the crossing, E.F. stayed in the car while her mother and aunt walked around the ferry. E.F.'s uncle lingered behind after they left to ask E.F. what was going on between her and Goss. After initial reluctance, E.F. told her uncle that Goss had fondled her breasts. Her uncle listened to her and persuaded her to tell her mother. For the rest of the ferry ride, E.F.'s uncle kept himself between E.F. and Goss.

¶ 5 Late that evening, with her uncle at her side, E.F. told her mother what Goss had done. Within the hour, E.F.'s mother called the police. Within a day, E.F.'s mother told her own mother, who immediately ended her relationship with Goss. Goss was initially charged with one count of second degree child molestation. Later, a charge of attempted third degree child molestation was added.

¶ 6 E.F. testified at trial. She did not name any specific dates, but testified that Goss put his hands under her clothes and fondled her breasts once when she was in the seventh grade. She also described several incidents where Goss attempted to fondle her. Near the close of evidence, the State successfully moved to amend the charges to conform to the time frame E.F. testified to at trial.

¶ 7 Goss generally denied the events and sought, in his words, to “ ‘impeach[ ]’ ” the victim. 1 VTP (July 2, 2014) at 22. His defense focused on the fact that E.F. had been inconsistent in stating the number of times she had been molested, when those molestations occurred, why she had not come forward earlier, and whether she had told anyone about the molestation before she told her uncle. At no point did Goss suggest that E.F. was younger than 12 when the molestation was alleged to have happened. The jury found Goss guilty of second degree child molestation and not guilty of attempted third degree child molestation.

¶ 8 The Court of Appeals affirmed. State v. Goss , 189 Wash.App. 571, 358 P.3d 436 (2015)

. We granted review of two of the three issues Goss presented in his petition. State v. Goss, 185 Wash.2d 1001, 366 P.3d 1243 (2016).

Analysis

1. Adequacy of the Charging Document

¶ 9 We review the constitutional adequacy of charging documents de novo. State v. Johnson, 180 Wash.2d 295, 300, 325 P.3d 135 (2014)

(quoting State v. Siers, 174 Wash.2d 269, 273–74, 274 P.3d 358 (2012) ). When, as here, the adequacy of the charging document is challenged for the first time on appeal and when, as here, no prejudice is alleged, this court will “examine the document to determine if there is any fair construction by which the elements are all contained in the document.” State v. Hopper, 118 Wash.2d 151, 155–56, 822 P.2d 775 (1992) (citing State v. Kjorsvik, 117 Wash.2d 93, 105, 812 P.2d 86 (1991) ); Opening Br. of Appellant at 15–19 (not alleging actual prejudice).

¶ 10 Goss argues that the charging document was fatally defective because it did not allege the victim was at least 12 years old as required, he contends, by the second degree child molestation statute, RCW 9A.44.086

; due process; the Sixth Amendment to the United States Constitution; and Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2161, 186 L.Ed.2d 314 (2013). Suppl. Br. of Pet'r at 1–2. The State argues that the fact the victim was at least 12 years old is not an element of the crime of child molestation; rather, it is “a ceiling that separates it from a higher degree” of the crime. Suppl. Br. of Resp't at 1. We agree with the State that the lower limit of the age range is not an element of child molestation under either Washington law or the federal constitution.

¶ 11 The original 2013 information charged in relevant part;

Count 1 Child Molestation In The Second Degree

That the defendant MICHAEL RAY GOSS in King County, Washington, between or about September 25, 2011 and September 24, 2012, being at least 36 months older than [E.F.] (DOB 09/25/1998), had sexual contact for the purpose of sexual gratification with [E.F.] (DOB 09/25/1998), who was 13 years old and not married to and not in a state registered domestic partnership with [E.F.] (DOB 09/25/1998).

Clerk's Papers (CP) at 1. Initially, the State alleged the molestation occurred when E.F. was 13, but after her testimony, the State amended the information to allege:

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 [E.F.] (DOB 9/25/98), had sexual contact for the purpose of sexual gratification with [E.R.] (DOB 9/25/98), who was less than 14 years old and not married to and not in a state registered domestic partnership with [E.F.] (DOB 9/25/98).

CP at 67.

¶ 12 “[A]ll essential elements of an alleged crime must be included in the charging document in order to afford the accused notice of the nature of the allegations so that a defense can be properly prepared,” along with the particular facts supporting them. Kjorsvik , 117 Wash.2d at 101–02, 812 P.2d 86

(emphasis omitted) (citing 2 Wayne LaFave & Jerold Israel, Criminal Procedure § 19.2, at 446 (1st ed. 1984) ). Those the State accuses are not required “to search for the rules or regulations they are accused of violating.” Id. at 101, 812 P.2d 86 (citing State v. Jeske, 87 Wash.2d 760, 765, 558 P.2d 162 (1976) ).

¶ 13 While the legislature generally defines the elements of a crime, not every clause in every statute in Title 9A RCW creates an essential element of a crime. Instead, “ ‘[a]n essential element is one whose specification is necessary to establish the very illegality of the behavior charged.’ ” State v. Zillyette, 178 Wash.2d 153, 158, 307 P.3d 712 (2013)

(internal quotation marks omitted) (quoting State v. Ward, 148 Wash.2d 803, 811, 64 P.3d 640 (2003) ). A fact can also become an element of the crime because of the consequences of its proof. “[A]ny ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime” (except prior convictions under some circumstances). Alleyne, 133 S.Ct. at 2160¹ (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ); Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2288, 186 L.Ed.2d 438 (2013) (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ). This is not an exhaustive list. See generally

State v. Tinker, 155 Wash.2d 219, 221, 118 P.3d 885 (2005).

¶ 14 The State accused Goss of second degree molestation under RCW 9A.44.086(1)

. That statute says:

A person is guilty of child 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.

RCW 9A.44.086

is one of three child molestation statutes, each of which designates a different degree of the crime depending on the age of the victim and the age difference between the victim and the perpetrator. First degree child molestation requires a victim younger than 12 and a perpetrator who is at least 36 months older. RCW 9A.44.083. Third degree child molestation requires a victim younger than 16 and a perpetrator who is at least 48 months older. RCW 9A.44.089. The legislative purpose in dividing the crime into these three degrees is not hard to discern. The legislature has reserved the harshest punishments for those who victimize the youngest children.

¶ 15 Goss contends that the low end of the age range is an essential element of the crime that must be charged and proved and that the three degrees of child...