State v. Goss

• Decision Date: 17 August 2015
• Docket Number: No. 72409–6–I.,72409–6–I.
• Citation: 189 Wash.App. 571,358 P.3d 436
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michael Ray GOSS, Appellant.

189 Wash.App. 571

358 P.3d 436

STATE of Washington, Respondent

v.Michael Ray GOSS, Appellant.

No. 72409–6–I.

Court of Appeals of Washington, Division 1.

Aug. 17, 2015.

John Henry Browne, Law Offices of John Henry Browne PS, Seattle, WA, Colleen A. Hartl, Law Offices of John Henry Browne, Seattle, WA, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Seattle, WA, Donna Lynn Wise, King County Prosecutor's Office, Seattle, WA, for Respondent.

Opinion

TRICKEY, J.

¶ 1 The charging document must include all essential elements of an alleged crime to provide defendants notice of the nature of the allegations so that they can properly prepare their defense. An essential element is one that is necessary to establish the illegality of the behavior.

¶ 2 Here, the second amended information charged the crime of second 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.

¶ 3 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.

FACTS

¶ 4 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.

¶ 5 E.F., born September 25, 1998, in tenth grade at the time of the trial, testified that Goss, then her grandmother's fiancé, inappropriately touched her on her breasts when she was at Goss's home where her grandmother lived. Goss called her over, 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

¶ 6 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.

¶ 7 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.

¶ 8 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.

¶ 9 Before the State rested, it moved to amend the charging period in count I to 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.

¶ 10 The jury found Goss guilty of second degree child molestation, but acquitted him on the attempted molestation charge. Goss appeals.

ANALYSIS

¶ 11 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 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

¶ 12 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. Pelkey, 109 Wash.2d 484, 487, 745 P.2d 854 (1987).

¶ 13 But here, the amendment did not charge any new offenses or 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 Wash.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. Allyn, 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.

Essential Elements

¶ 14 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.

¶ 15 RCW 9A.44.086(1) provides:

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.

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).^{[ 4 ]}

¶ 16 The State asserts that the only purpose of the “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 of Appeals decisions support the State's position that statutory language differentiating the various degrees of a crime does not necessarily create an additional essential element.

¶ 17 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, 118 P.3d 885 (quoting RCW 9A.56.050(1) ).

¶ 18 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, 118 P.3d 885 (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, 118 P.3d 885 (quoting State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992) ): see also State v. Leyda, 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”).

¶ 19 In State v. Ward, 148 Wash.2d 803, 64 P.3d 640 (2003), the Supreme Court was presented with the question of whether failure to include that the assault was 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...