State v. Loos

• Decision Date: 05 October 2020
• Docket Number: No. 80016-7-I,80016-7-I
• Citation: 473 P.3d 1229,14 Wash.App.2d 748
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Katrina R. LOOS, Appellant.

14 Wash.App.2d 748

473 P.3d 1229

STATE of Washington, Respondent,

v.Katrina R. LOOS, Appellant.

No. 80016-7-I

Court of Appeals of Washington, Division 1.

FILED October 5, 2020

Washington Appellate Project, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, for Appellant.

Prosecuting Attorney Snohomish, Mary Kathleen Webber, Snohomish County Prosecutors Office, 3000 Rockefeller Ave. Everett, WA, for Respondent.

PUBLISHED OPINION

Andrus, A.C.J. ¶1 Katrina Loos challenges her conviction for assault in the fourth degree, contending it is barred by the statute of limitations. She further argues that the trial court erred in instructing the jury as to fourth degree assault because it is neither a lesser included nor an inferior degree offense of the crime with which she was charged, assault of a child in the third degree. Lastly, she contends the State presented insufficient evidence of assault of a child in the third degree.

¶2 We conclude that Loos may not raise the statute of limitations for the first time on appeal. But because assault in the fourth degree is not an inferior degree offense to third degree assault of a child, we reverse Loos's conviction. Finally, we conclude the State failed to present sufficient evidence that Loos's actions caused the toddler in her care to experience substantial pain that endured for a period of time long enough to cause considerable suffering. The State is therefore precluded from retrying her on that charge.

FACTS

¶3 On June 15, 2015, Katrina Loos was babysitting J.T.S., a nonverbal, speech-delayed two-and-a-half-year-old toddler whom she had cared for throughout his infancy. Loos and a friend, Leah Tetzlaff, decided to take a group of seven children to swim in the Jordan River that day. Tetzlaff brought her two sons, T.L, age 16, and R.L., age five. Loos brought her two children, M.L., age 11, and G.L., age five. Loos also brought along three children for whom she was babysitting: M., age eight, T., age three, and J.T.S. ¶4 While swimming in the river, Tetzlaff became concerned about Loos's conduct. First, she recalled, Loos became angry and hostile toward another beachgoer whose dog came close to the children. Then Loos began attempting to teach the three-year-old girl in her care to swim, but the girl resisted Loos's efforts, began to cry and said she did not want to participate in swimming lessons. Tetzlaff then recounted that Loos saw one of the children in Loos's care, an older girl, splash water in the face of one of Loos's children. Loos dunked the girl's face under the water and said "how do you like that, now you see how it is? Do you like that?" The little girl began to cry and came out of the water gasping for breath.

¶5 At that point, Loos indicated that it was time for J.T.S., who was sitting on the beach playing with toys, to get into the water. Tetzlaff testified that Loos picked up J.T.S. and said "it's time to swim." According to Tetzlaff, Loos said something about "how naturally buoyant he was" because he was "chubby and fat" and then "she just dropped him in the water and he literally just sank like a rock." After a moment, Loos picked him up out of the water and consoled him as he screamed and cried. Tetzlaff's oldest son, T.L., corroborated this incident. Loos denied she dropped J.T.S. in the water to see if he would float.

¶6 Then Tetzlaff heard Loos tell J.T.S. she was going to teach him to swim. By this time Tetzlaff decided to video what Loos was doing. The second incident, during which Loos claimed she was giving J.T.S. a swimming lesson, was captured on video. In the 51-second video, Loos can be seen holding J.T.S. on his back in the water, and is heard telling him "when we scream, we go under." After a moment, J.T.S. was submerged in the water for a few seconds and Loos pulled him back up out of the water. Loos repositioned J.T.S. on his back, at which point he began to struggle and tried to pull away. Loos told J.T.S. again not to scream and he was again submerged. This time, Loos had one hand under J.T.S. and one hand on his chest. At trial, Tetzlaff testified that Loos was "holding him under the water." T.L. similarly testified he saw Loos push J.T.S. under water, and T.L. could see J.T.S. flailing his arms while submerged. When Loos lifted him out of the water, he came up coughing and screaming.

¶7 Loos denied pushing or holding J.T.S. under the water and testified that she kept her hands on him to make sure she could feel if he took a breath, to ensure he did not inhale any water. She stated that because she is familiar with teaching young children to swim, she was aware that a child could stay under water for up to five seconds without trying to take a breath. When she pulled him out of the water and set him on his feet, Loos told J.T.S. he did "much better" and, on the video, J.T.S. appeared to stop crying. This entire encounter took less than a minute.

¶8 Loos testified that the purpose of this exercise was to teach J.T.S. a technique she called "infant self-rescue" by teaching him to float on his back. She had read that the infant self-rescue technique was "one of the leading ways to prevent drowning." According to Loos, she told J.T.S. that if he screamed he would go under water, not because she would force him underwater but because she was trying to convey to him that, if he panicked, he would naturally submerge himself.

¶9 Tetzlaff testified that Loos then took J.T.S. out of the river, told him to calm down, and set him down in shallow water at the water's edge. Tetzlaff described J.T.S. as shivering and upset. When Tetzlaff went to comfort him, Loos told her not to "baby" him. According to Tetzlaff, Loos made J.T.S. sit at the shallow water for at least ten minutes while he cried quietly. T.L. testified J.T.S. looked sad, was whining and shivering, with blue lips and goose bumps on his arms.

¶10 Loos denied that she made J.T.S. sit in the water. She testified J.T.S. sat in the water playing with the rest of the kids and their toys.

¶11 At trial, the State called a Dr. Emily Brown to testify to the effects an incident like this could have on a non-verbal toddler. Dr. Brown testified that the physical risks associated with being submerged in water could include damage to the lungs or brain. However, she also testified that, to her knowledge, J.T.S. never suffered any such injuries.

¶12 J.T.S's parents testified that J.T.S. suffered no visible injury. While J.T.S.’s mother testified that the toddler had tubes in his ears and experienced a fever and ear infection after his trip to the river, she lost any medical records of the clinic visit she made for J.T.S. to get him evaluated. There was no evidence causally connecting Loos's conduct to this ear infection. J.T.S.’s father confirmed the child needed no medical treatment and neither he nor his wife took the child to be evaluated after learning of the incident in late June 2015. Tetzlaff agreed J.T.S. never lost consciousness and did not experience any vomiting. Tetzlaff's son similarly testified he saw no injuries.

¶13 On December 1, 2017, approximately two and a half years later, the State charged Loos with one count of assault of a child in the third degree. At the conclusion of the State's case-in-chief, and again at the conclusion of trial, Loos moved to dismiss the charge for insufficient evidence. The trial court denied this motion, although it acknowledged its decision was a "close call."

¶14 At the State's request, the court instructed the jury on the alternative offense of fourth degree assault. The jury did not reach a verdict on the charge of assault of a child, and instead convicted Loos of assault in the fourth degree.

ANALYSIS

¶15 Loos challenges her conviction for fourth degree assault as barred by the statute of limitations. She further argues the trial court erred by instructing the jury on fourth degree assault because it is neither a lesser-included nor an inferior degree offense of third degree assault of a child. Finally, she contends there was insufficient evidence to submit the third degree child assault charge to the jury.

¶16 While Loos failed to preserve the statute of limitations challenge in the trial court, we agree that the trial court erred in concluding it was an inferior degree offense to the criminal negligence prong of third degree assault with which Loos was charged. And we further conclude the State failed to present sufficient evidence that Loos's actions caused J.T.S. substantial pain that extended for a period of time sufficient to cause considerable suffering.

A. Statute of Limitations for Fourth Degree Assault

¶17 Loos was charged with the felony of assault of a child in the third degree under RCW 9A.36.140, based on the June 15, 2015, incident. This crime has a three year statute of limitations. RCW 9A.04.080(1)(i). There is no dispute the State brought this charge in a timely manner.

¶18 At the conclusion of trial, the State requested an instruction on the alternative charge of fourth degree assault. Assault in the fourth degree has a two year statute of limitations. RCW 9A.04.080(1)(j). While the original charge was timely, the State would have been barred by the statute of limitations from prosecuting Loos for fourth degree assault.

¶19 The State contends Loos did not raise the statute of limitations below and failed to preserve that issue for appeal. Loos maintains she can raise the issue for the first time on appeal under RAP 2.5(a)(1). Under RAP 2.5(a), this court may refuse to review any claim of error not raised in the trial court. RAP 2.5(a)(1) provides that a party may raise the lack of a trial court's jurisdiction for the first time on appeal. But a statute of limitations is not jurisdictional in nature. State v. Peltier, 181 Wash.2d 290, 296, 332 P.3d 457 (2014) (statute of limitations does not take away fundamental right of superior court to hear controversy; it merely limits the time in which court can...