State v. J.P.S., 65439-5

• Decision Date: 23 April 1998
• Docket Number: No. 65439-5,65439-5
• Citation: 954 P.2d 894,135 Wn.2d 34
• Parties: STATE of Washington, Petitioner, v. J.P.S., Respondent.
• Court: Washington Supreme Court

Page 34

135 Wn.2d 34

954 P.2d 894

STATE of Washington, Petitioner, v. J.P.S., Respondent.

No. 65439-5.

Supreme Court of Washington En Banc.

Argued Jan. 28, 1998.

Decided April 23, 1998.

Jeffrey Sullivan, Yakima County Prosecutor, Lauri Boyd, Deputy County Prosecutor, Yakima, for Petitioner.

Hugh Spall Jr., Ellensburg, for Respondent.

GUY, Justice.

In this case, we are asked to review a superior court's conclusion that a child had the capacity to commit an offense which, if committed by an adult, would be a crime. We are also asked to clarify what the State must prove in order to overcome the statutory presumption that a young child is incapable of committing a crime.

The State charged 11-year-old J.P.S. (hereafter J.P.) with rape of a child in the first degree in violation of RCW 9A.44.073. The charge was based upon an alleged act of intercourse between J.P. and his three-year-old playmate, M. Because J.P. was under the age of 12 at the time of the alleged offense, the superior court held a capacity hearing to determine whether he was capable of committing the crime charged. RCW 9A.04.050. The trial court found, in spite of the fact that J.P. was mentally retarded, that he had the capacity to understand the prohibited act and its wrongfulness and could be tried for the offense of first degree rape of a child.

The Court of Appeals accepted discretionary review of the capacity determination prior to any determination on guilt and reversed the finding of capacity, holding the evidence was insufficient to rebut the statutory presumption of incapacity. State v. James P.S., 85 Wash.App. 586, 934 P.2d 698 (1997). We affirm the Court of Appeals decision in this case but clarify that it is not necessary for the State to prove that a child understands the illegality or the legal consequences of an act in order to prove capacity. The inquiry is whether the child had sufficient capacity to (1) understand the act and (2) know that it was wrong.

At common law, children below age 7 were conclusively presumed to be incapable of committing a crime and children over the age of 14 were presumed to be capable. Children between those ages were rebuttably presumed incapable of committing a crime. State v. Q.D., 102 Wash.2d 19, 22-23, 685 P.2d 557 (1984); Andrew Walkover, The Infancy Defense in the New Juvenile Court, 31 U.C.L.A. L. R EV. 503 (1984). Washington codified these presumptions, changing the age of incapacity to 7 and younger and the age of presumed capacity to 12 and older. RCW 9A.04.050 provides, in pertinent part, that children between the ages of 7 and 12 are presumed incapable of committing a crime:

Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.

This statute applies to juvenile adjudications, and the State has the burden to rebut the presumption of incapacity by clear and convincing evidence. Q.D., 102 Wash.2d at 21, 26, 685 P.2d 557; State v. K.R.L., 67 Wash.App. 721, 724, 840 P.2d 210 (1992). The standard of review on appeal is whether there was evidence from which a rational trier of fact could find capacity by clear and convincing evidence. K.R.L., 67 Wash.App. at 724, 840 P.2d 210; State v. Linares, 75 Wash.App. 404, 410, 880 P.2d 550 (1994).

A capacity determination must be made in reference to the specific act charged. Q.D., 102 Wash.2d at 26, 685 P.2d 557; see also K.R.L., 67 Wash.App. at 726, 840 P.2d 210. The legal test is whether J.P. had knowledge of the wrongfulness of the act at the time he committed the offense and not that he realized it was wrong after the fact. E.g., K.R.L., 67 Wash.App. at 725, 840 P.2d 210. Capacity must be found to exist separate from any mental element of the offense. Capacity is not an element of the crime; rather it is a general determination that the child understood the act and its wrongfulness. Q.D., 102 Wash.2d at 24, 685 P.2d 557.

In the instant case, the Court of Appeals concluded that the State must prove the child not only understood the nature of the act and that it was wrong, but also that it was punishable in court. James P.S., 85 Wash.App. at 593, 934 P.2d 698; see also State v. Erika D.W., 85 Wash.App. 601, 606, 934 P.2d 704 (1997). We disagree. The statute requires that a child have "sufficient capacity to understand the act or neglect, and to know that it was wrong" in order to rebut the presumption of incapacity. RCW 9A.04.050. It does not require that the child know the act was illegal or understand the legal consequences of the act. The Legislature has chosen to frame the test as a capacity to understand the conduct was wrong. We decline to add to the statute the requirement that the State prove the child understood the act was "illegal." We do emphasize that the nature of the offense charged is an important factor to be considered when determining the capacity of a child. When a child is accused of a crime which involves sexual misconduct, it is more difficult for the State to prove the child understood the conduct was wrong. It is very difficult to tell if a young child, particularly one who is developmentally disabled, understands the prohibitions on sexual behavior with other children.

Therefore, the question in this case is whether there is clear and convincing evidence introduced at the capacity hearing that J.P. understood the act of sexual intercourse and knew it was wrong at the time the alleged conduct occurred. The following factors may be relevant in determining whether a child knew the act he or she committed was wrong: (1) the nature of the crime; (2) the child's age and maturity; (3) whether the child showed a desire for secrecy (4) whether the child admonished the victim not to tell; (5) prior conduct similar to that charged; (6) any consequences that attached to the conduct; and (7) acknowledgment that the behavior was wrong and could lead to detention. Linares, 75 Wash.App. at 415, 880 P.2d 550; Erika D.W., 85 Wash.App. at 605, 934 P.2d 704. Also relevant is testimony from those acquainted with the child and the testimony of experts. See Linares, 75 Wash.App. at 415, 880 P.2d 550; K.R.L., 67 Wash.App. at 722-23, 840 P.2d 210. A child's age, maturity, experience, and understanding may all be relevant in deciding if a given child had knowledge of the act's wrongfulness at the time it was committed. See In re Paul C., 221 Cal.App.3d 43, 270 Cal.Rptr. 369, 374 (1990); In re Gladys R., 1 Cal.3d 855, 83 Cal.Rptr. 671, 678, 464 P.2d 127 (1970).

Testimony at the capacity hearing in this case showed that J.P. is a mentally retarded child who tested at the level of a first grader and had limited cognitive skills. At that hearing, testimony was offered by the alleged victim's (M.'s) father; a sergeant of the Selah Police Department; the assistant principal at J.P.'s school; J.P.'s fifth grade teacher; a probation officer for Yakima County; and J.P.'s mother.

The alleged victim's father testified that his 5-year-old son and 3-year-old daughter were playing in the yard with their neighbor, J.P., when the son reported that his sister, M., and J.P. were playing in a shed some distance from the house. The father testified that when he entered the shed, M. had the top of her bathing suit pulled down and that J.P.'s pants were unfastened. He told J.P. to leave and took his daughter to his wife who examined her and, finding no evidence of trauma, did not take her to the doctor. He stated that M. told him that J.P. had asked her to take her clothes off and that he had touched her on the vagina.

M.'s father notified the police. The investigating officer talked with J.P. three times. He reported J.P. appeared a little nervous when he first talked with him on the evening of the incident. The officer told J.P. he was investigating a crime to do with M. J.P. first said he had not seen M. that evening but then said he had been playing with her and her brother. He said that M. had been dressed. The officer told J.P. that it was "against the law to lie to a police officer and that he could be arrested for obstructing if he was." Report of Proceedings at 37. The officer testified that M.'s five-year-old brother had told another officer that he had been looking for J.P. and M. and had entered the shed, and that J.P. had pulled up his pants and had told him to leave. M.'s brother then told his father that J.P. and M. were in the shed.

Approximately a month later, the officer again met with J.P. and read him his Miranda ¹ warnings. He testified that J.P. appeared nervous and they only had a brief conversation without any factual information about the event. About a week later, the officer again interviewed J.P. at police headquarters and again read J.P. the Miranda warnings. ² After J.P.'s mother left the room, J.P. made a taped statement in which he admitted M. took off her clothes, he pulled down his pants, and he touched M.'s vagina with his finger and slightly penetrated her vagina with his penis for "half a second." Transcript of Statement at 5-6. J.P. stated at the end of the statement that "I'm sorry for what I done, I know it was bad and I feel real guilty about it." Transcript of Statement at 7.

J.P.'s fifth grade teacher testified that she had J.P. in her class for approximately half of the day and that he attended special education classes for three periods a day. She testified that when she taught him, she taught material that would be equivalent to a first or second grade level. She stated that he had been taught first grade material from first through the fifth grade and still remained at the first grade level. She testified that J.P. was not a discipline problem. She stated that if J.P. was taught things in repetition, he could eventually attain a concept. The...