State v. A.M., No. 66967–2–I.

CourtCourt of Appeals of Washington
Writing for the CourtBECKER, J.
Citation260 P.3d 229,163 Wash.App. 414
PartiesSTATE of Washington, Respondent,v.A.M., d.o.b., 2/2/1997, Appellant.
Docket NumberNo. 66967–2–I.
Decision Date06 September 2011

163 Wash.App. 414
260 P.3d 229

STATE of Washington, Respondent,
v.
A.M., d.o.b., 2/2/1997, Appellant.

No. 66967–2–I.

Court of Appeals of Washington, Division 1.

Sept. 6, 2011.


[260 P.3d 230]

John A. Hays, Attorney at Law, Longview, WA, for Appellant.Amie L. Hunter, Hall of Justice, Cowlitz Prosecuting Attorney's Office, Kelso, WA, for Respondent.BECKER, J.

[163 Wash.App. 416] ¶ 1 We reverse a conviction for first degree child rape because the required element of “sexual intercourse” was not established. The juvenile court found that the defendant penetrated the victim's buttocks but not his anus. Because the requirements for remanding to enter a conviction for an attempted rape are also not met, and double jeopardy would be violated by remanding to allow the court to convict on the alternative charge of child molestation, the case must be dismissed with prejudice.

[260 P.3d 231]

¶ 2 Appellant A.M. was 11 years old on March 27, 2008. He had two younger brothers, K.M. (about 9) and J.M. (about 7). J.M. was friends with R.D., a neighbor boy of the same age who is the alleged victim.

[163 Wash.App. 417] ¶ 3 R.D. and J.M. were playing together at J.M.'s house. R.D.'s 16 year old sister Jaime was babysitting. Jaime's friend, Hayley, was also at the house. According to Jaime's testimony at trial, Hayley approached her and told her she overheard the boys talking about a recent incident where A.M. placed his “wiener” in R.D.'s “butt.” Jaime confronted R.D. and J.M., and they confirmed that it happened. They told Jaime they would show her where it happened and led her to A.M.'s room. A.M. was in his room. He denied the allegations. R.D. and J.M. told A.M. to stop lying.

¶ 4 R.D. and Jaime went back home and told their parents. The parents called the police. R.D. described the incident to a police officer and indicated that A.M. did the same thing to J.M. When interviewed by the same officer, J.M. at first said nothing happened between his brother and R.D., but later said his brother raped R.D. When asked if he knew what rape was, J.M. indicated he did not.

¶ 5 A.M. denied the allegations. The State charged him with rape of a child in the first degree and, in the alternative, child molestation in the first degree.

¶ 6 The case came on for trial in juvenile court in February 2010, combined with a hearing on the admissibility of various child hearsay statements. R.D. was the principal witness. While hesitant to talk about what he called the “bad thing” that happened, R.D. eventually described how he and J.M. were playing outside and then went into A.M.'s room. A.M. told R.D. to get down as he wanted to play a game. While A.M. stood up behind him, R.D. kneeled down. At A.M.'s suggestion, R.D. took his pants and underwear down to his feet. He testified that A.M. “stuck his wiener in my poop—butt” and “it felt bad.” When the prosecutor asked for specifics on the extent of the touching, R.D. was not willing to say that A.M.'s “wiener” went inside his body:

Q. Okay. Where did it go?

A. It just touched the outside of the part where it's almost inside.

[163 Wash.App. 418] Q. Okay. I didn't understand that. Can you say that a little louder and help me?

A. The part where it almost inside but outside a little.

Q. Okay. You know you have two butt cheeks, right?

A. Uh-huh.

Q. Was it outside the butt cheeks or was it inside the butt cheeks?

A. Outside but up—it was—it was almost inside.

R.D. said it lasted a “medium” amount of time. What he felt was “round,” “hard,” and “cold.” He said after it happened, A.M. told him to keep it a secret. R.D. left the room and went home.

¶ 7 The court made an oral ruling finding R.D.'s testimony to be reliable and finding A.M. guilty of the charge of rape of a child in the first degree. The court did not, however, find that there was penetration of the anus:

And, the only real question to me in this case is whether it was penetration, which would make it rape or whether it was child molestation.

....

And there is a difference between anus and his buttocks. And, I am not saying that—that [A.M.] penetrated the anus and I don't believe he—we didn't have any discussion about that. I believe it is sufficient that he did penetrate the buttocks. If I'm wrong on that, then there would be—this would be a child molestation in the first degree. But, I believe I am accurate on that, penetration, however slight.

¶ 8 The court entered findings of fact and conclusions of law supporting the rape conviction. Finding of fact 11 states there “was penetration of the buttocks, but not the anus.” This appeal followed.

FIRST DEGREE CHILD RAPE

¶ 9 A.M. argues that “penetration of the buttocks, but not the anus” is insufficient to sustain a conviction for first [163 Wash.App. 419] degree rape of a child because such conduct does not

[260 P.3d 232]

meet the statutory definition of “sexual intercourse.” We agree.

¶ 10 Due process requires the State to prove beyond a reasonable doubt every essential element of a crime. State v. Marohl, 170 Wash.2d 691, 698, 246 P.3d 177 (2010). Where there are findings of fact, as in a bench trial, unchallenged findings of fact are verities on appeal. State v. Alvarez, 105 Wash.App. 215, 220, 19 P.3d 485 (2001). Review is then limited to determining whether the findings of fact support the conclusions of law. Alvarez, 105 Wash.App. at 220, 19 P.3d 485. We review conclusions of law de novo. State v. B.J.S., 140 Wash.App. 91, 97, 169 P.3d 34 (2007).

¶ 11 The statute that defines the offense of rape of a child in the first degree requires, among other things, that the perpetrator have “sexual intercourse” with the child:

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.

RCW 9A.44.073(1). The term “sexual intercourse,” for purposes of RCW chapter 9A.44 (sex offenses), “has its ordinary meaning and occurs upon any penetration, however slight.” RCW 9A.44.010(1)(a). There are two additional and more specific definitions of the term, but they are not at issue in this case as the State has not argued they are applicable.1

[163 Wash.App. 420] ¶ 12 Whether penetration of the buttocks is “sexual intercourse” appears to be an issue of first impression in Washington. Resolution of this issue requires statutory interpretation. The meaning of a statute is a question of law we review de novo. Marohl, 170 Wash.2d at 697, 246 P.3d 177. Our primary duty in interpreting a statute is to ascertain and give effect to the intent and purpose of the legislature. State v. Delgado, 109 Wash.App. 61, 65, 33 P.3d 753 (2001), rev'd in part on other grounds, 148 Wash.2d 723, 63 P.3d 792 (2003). Generally, statutes are to be construed according to their evident intent and purpose. State v. Montgomery, 95 Wash.App. 192, 200, 974 P.2d 904, review denied, 139 Wash.2d 1006, 989 P.2d 1139 (1999). Words in statutes are to be understood in their ordinary and popular sense. Montgomery, 95 Wash.App. at 200, 974 P.2d 904. Further, a court should read a statute to avoid strained or absurd consequences that could result from a literal reading. Delgado, 109 Wash.App. at 65, 33 P.3d 753. Accordingly, we read all of RCW 9A.44.010(1) together. See Montgomery, 95 Wash.App. at 200, 974 P.2d 904.

¶ 13 The issue is whether the “ordinary meaning” of the term “sexual intercourse” encompasses penetration of the buttocks. To determine the ordinary meaning of a term, we may consult a dictionary. Marohl, 170 Wash.2d at 699, 246 P.3d 177. The State cites a variety of dictionary definitions tending to show that the term has evolved over the years so that it is no longer limited to heterosexual intercourse and that it includes anal intercourse even without penetration. None of the definitions examined, however, say that sexual intercourse occurs upon insertion of the penis in between the buttocks.

¶ 14 The State contends the buttocks are part of the anus, analogizing to cases in which we have held that the labia minora are part of the vagina. Montgomery, 95 Wash.App. at 200, 974 P.2d 904 (“Vagina means all of the components of the female sexual organ.”); Delgado, 109 Wash.App. at 65–66, 33 P.3d 753 (following Montgomery ). The State argues that because the buttocks protect the anus from penetration, they are like [163 Wash.App. 421] the labia, which protect the vagina from penetration. This may be true to some extent,

[260 P.3d 233]

but it stretches credulity to maintain that the buttocks and anus are components of the same organ or that one is part of the other. A buttock is “either of the two rounded prominences separated by a median cleft that form the lower part of the back in man and consist largely of the gluteus muscles.” Webster's Third New International Dictionary 305 (2002). In...

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33 practice notes
  • People v. Paz, B265251
    • United States
    • California Court of Appeals
    • April 14, 2017
    ...below, we conclude forcible sodomy requires something more than penetration of the buttocks (see State v. A.M. (Wash.Ct.App. 2011) 163 Wash.App. 414, 260 P.3d 229 [penetration of buttocks not sufficient]; State v. Wells (2001) 91 Ohio St.3d 32, 740 N.E.2d 1097 [same] ), but does not require......
  • State v. Montar-Morales, No. 73452-1-I
    • United States
    • Court of Appeals of Washington
    • May 8, 2017
    ...(b). Penetration of the buttocks, but not the anus, is insufficient to sustain a rape conviction." State v. A.M., 163 Wn. App. 414, 421, 260 P.3d 229 (2011). Here, a rational trier of fact could have found that Montar-Morales committed child rape. Y.J. indicated that the hand had touched he......
  • State v. Montar-Morales, 73452-1-I
    • United States
    • Court of Appeals of Washington
    • May 8, 2017
    ...(b). Penetration of the buttocks, but not the anus, is insufficient to sustain a rape conviction." State v. A.M., 163 Wn.App. 414, 421, 260 P.3d 229 (2011). Here, a rational trier of fact could have found that Montar-Morales committed child rape. Y.J. indicated that the hand had touched her......
  • In re B.H., No. 2013–364–Appeal
    • United States
    • Rhode Island Supreme Court
    • May 26, 2016
    ...[the defendant's] penis and her buttocks, the relevant statutes require involvement—indeed ‘touching’—of the anus ”); State v. A.M., 163 Wash.App. 414, 260 P.3d 229, 233 (2011) (“[P]enetration of the buttocks, but not the anus, does not meet the ordinary meaning of ‘sexual intercourse.’ ”);......
  • Request a trial to view additional results
33 cases
  • People v. Paz, B265251
    • United States
    • California Court of Appeals
    • April 14, 2017
    ...below, we conclude forcible sodomy requires something more than penetration of the buttocks (see State v. A.M. (Wash.Ct.App. 2011) 163 Wash.App. 414, 260 P.3d 229 [penetration of buttocks not sufficient]; State v. Wells (2001) 91 Ohio St.3d 32, 740 N.E.2d 1097 [same] ), but does not require......
  • State v. Montar-Morales, No. 73452-1-I
    • United States
    • Court of Appeals of Washington
    • May 8, 2017
    ...(b). Penetration of the buttocks, but not the anus, is insufficient to sustain a rape conviction." State v. A.M., 163 Wn. App. 414, 421, 260 P.3d 229 (2011). Here, a rational trier of fact could have found that Montar-Morales committed child rape. Y.J. indicated that the hand had touched he......
  • State v. Montar-Morales, 73452-1-I
    • United States
    • Court of Appeals of Washington
    • May 8, 2017
    ...(b). Penetration of the buttocks, but not the anus, is insufficient to sustain a rape conviction." State v. A.M., 163 Wn.App. 414, 421, 260 P.3d 229 (2011). Here, a rational trier of fact could have found that Montar-Morales committed child rape. Y.J. indicated that the hand had touched her......
  • In re B.H., No. 2013–364–Appeal
    • United States
    • Rhode Island Supreme Court
    • May 26, 2016
    ...[the defendant's] penis and her buttocks, the relevant statutes require involvement—indeed ‘touching’—of the anus ”); State v. A.M., 163 Wash.App. 414, 260 P.3d 229, 233 (2011) (“[P]enetration of the buttocks, but not the anus, does not meet the ordinary meaning of ‘sexual intercourse.’ ”);......
  • Request a trial to view additional results

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