State v. Ramer

• Decision Date: 11 March 2004
• Docket Number: No. 72816-0.,72816-0.
• Citation: 151 Wash.2d 106,86 P.3d 132
• Parties: STATE of Washington, Respondent, v. Andrew RAMER, Petitioner.
• Court: Washington Supreme Court

86 P.3d 132

151 Wash.2d 106

STATE of Washington, Respondent, v. Andrew RAMER, Petitioner.

No. 72816-0.

Supreme Court of Washington, En Banc.

Argued September 11, 2003.

Decided March 11, 2004.

Robert Quillian, Olympia, for Petitioner.

Edward Holm, Thurston County Prosecutor, Steven Sherman, Deputy County Prosecutor, for Respondent.

CHAMBERS, J.

Andrew Ramer, an 11 year old juvenile defendant, was charged with two counts of first degree rape of a child. The Thurston County Superior Court found Ramer lacked the capacity to commit the crime. The State appealed, and in an unpublished opinion Division Two of the Court of Appeals reversed. State v. A.R., 112 Wash.App. 1006, No. 27501-5-II (Wash.Ct.App. June 7, 2002). Because there is evidence in the record to support the superior court's finding, we reverse.

FACTS

Ramer, his nine year old sister, Kensie, and his mother, Dina Lawrence, were temporarily living with their friends, the Briscoes. On January 25, 2001, another child in the home told Deanna Briscoe that Ramer was in the bathroom with his arm around her seven year old son, ZPG. Briscoe asked Ramer what happened, and Ramer "basically said `nothing.'" Clerk's Papers (CP) at 20. When ZPG was asked about the incident, he told his mother that Ramer had "rubbed his butt." CP at 21.

Briscoe finished getting the children ready for school and did not immediately pursue the subject further. Later that evening when she resumed her inquiry, ZPG told her that, in addition to "rubbing his butt," Ramer had also "placed his penis inside of [ZPG's] butt." CP at 21. When asked, Ramer freely admitted he had done these things.

The next morning, Briscoe and Lawrence contacted several social service agencies. The mothers were advised to go to the police. At the police station, Lawrence waived Ramer's right to counsel by granting Detective Beverly Reinhold's request to talk with Ramer alone. Before speaking with Reinhold, Ramer was not told that he might be arrested or sent to detention.¹

While talking with Detective Reinhold, Ramer revealed that for about two weeks he had sexual contact with ZPG approximately twice a week. Ramer also recounted having sexual contact with ZPG several years earlier when his family had previously lived with the Briscoes.² Detective Reinhold asked Ramer if he thought what he had done to ZPG was wrong. First, Ramer responded "`kind of sort of wrong.'" CP at 25. Then he added, "`[i]t wasn't wrong because he was into it too.'" Id. When asked to give examples of wrong behavior, Ramer said it would be wrong "to steal, murder, or poach." CP at 26. At the end of the conversation with Detective Reinhold, Ramer was arrested and charged with two counts of first degree rape of a child.

Because of Ramer's age, a hearing to determine his capacity to commit first degree rape of a child was held before Superior Court Commissioner Scott Nielson. Detective Reinhold testified about her conversation with Ramer at the police station. The defense was allowed to call two witnesses out of order: Dr. Brett Trowbridge, Ph.D., J.D.,³ a forensic psychologist, and Peg Cain, M.A.,⁴ a mental health specialist at St. Peter's Hospital psychiatric unit, who also performs juvenile and adult "safe to be at large" evaluations for Thurston County. Both witnesses for the defense had evaluated Ramer and had prepared written reports.

Dr. Trowbridge based his opinion upon his evaluation of Ramer. He testified that, in his opinion, Ramer did not understand the act of having sexual contact with a much younger child. He also testified that he believed Ramer did not understand that it was wrong, especially if the other child enjoys and voluntarily participates in the act. Specifically, Dr. Trowbridge opined:

Q. Based on your evaluation and investigation, it's your conclusion that [Ramer] does not possess sufficient information or ability to come to the understanding of what rape of a child meant in terms of his committing the act in this instance?

A. Yes. Because at that time of the alleged offense I don't think he did have that understanding.

CP at 52-53.

He did not understand if something felt good why it was wrong.

CP at 44-45.

[H]e thought if the child consented that that made it not wrong.

CP at 54.

Similarly, Cain testified that Ramer had "no concept of how serious the charge was." CP at 70. She also testified that Ramer asked her why sexual contact with ZPG was considered rape when it felt good, ZPG wanted to participate, and ZPG "really liked it." CP at 71. Cain also testified that Ramer's attitude and demeanor led her to believe that he did not understand that sexual contact was inappropriate behavior and that he did not know that what he had been doing with ZPG was wrong.

The State then called Thomas Nore, M.S.W., a juvenile court probation counselor with 26 years of experience. Nore did not evaluate Ramer, nor did he take notes of his conversations with Ramer. He based his opinion on the written reports of Dr. Trowbridge and Cain and his conversations with Ramer while transporting him to and from a psychosexual evaluation by Trudy Howe⁵ and on other occasions. Nore testified that he believed Ramer understood that his conduct was wrong. Nore also testified that Ramer had been told by his parents that "sexual contact with each other in the home or anyone else" was wrong. CP at 95. Nore opined that Ramer "had knowledge and experience far beyond any 11 year old I'd ever met. In fact far beyond some 16-17-year-olds." CP at 89.⁶ It was Nore's opinion that Ramer knew the serious consequences of sexual contact and had the capacity to commit the crime.

The commissioner concluded that Ramer understood his conduct was wrong and "understood the act of Rape of a Child first degree." CP at 130. Ramer moved for revision in the superior court before the Honorable Christine Pomeroy. Judge Pomeroy read the record and heard arguments before finding Ramer lacked capacity to commit the crime. Judge Pomeroy found that Ramer was "a highly sexualized young person, who clearly was confused about appropriate sexual behaviors and could not understand the prohibitions on sexual behavior with other children." CP at 137. The State appealed the superior court's finding. Finding Ramer did have capacity to commit the crime, the Court of Appeals reversed. Ramer sought and we granted discretionary review. State v. Ramer, 149 Wash.2d 1008, 67 P.3d 1097 (2003).

ANALYSIS

STANDARD OF REVIEW

We do not review a trial court's finding de novo with respect to a child's capacity to commit a crime. State v. J.P.S., 135 Wash.2d 34, 37, 954 P.2d 894 (1998). Rather, we review the record for evidence sufficient to support the superior court's finding. When the superior court finds capacity, we review the record to determine whether there is substantial evidence establishing that the State met its burden of overcoming the statutory presumption that children under 12 years of age are incapable of committing crime⁷ by clear and convincing evidence. State v. Q.D., 102 Wash.2d 19, 21, 25-26, 685 P.2d 557 (1984); accord J.P.S., 135 Wash.2d at 37,

954 P.2d 894. When the trial court finds a lack of capacity, we review the record to determine whether a rational trier of fact could find that the State failed to overcome the presumption that the child lacked capacity.

RULING TO BE REVIEWED

We review the superior court's ruling, not the commissioner's. All commissioner rulings are subject to revision by the superior court. RCW 2.24.050;⁸ see also CONST. art. IV, § 23. On revision, the superior court reviews both the commissioner's findings of fact and conclusions of law de novo based upon the evidence and issues presented to the commissioner.⁹ In re Marriage of Moody, 137 Wash.2d 979, 993, 976 P.2d 1240 (1999); State v. Wicker, 105 Wash. App. 428, 433, 20 P.3d 1007 (2001). Once the superior court makes a decision on revision, the appeal is from the superior court's decision, not the commissioner's. State v. Hoffman, 115 Wash.App. 91, 101, 60 P.3d 1261 (2003).

CAPACITY

By statute, a child "under 12 years of age is presumed incapable of committing any crime." State v. Erika D.W., 85 Wash.App. 601, 605, 934 P.2d 704 (1997); RCW 9A.04.050. The statute provides, in part:

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.

RCW 9A.04.050. The statute codifies what is known as "the infancy defense." The purpose of the infancy defense is "to protect from the criminal justice system those individuals of tender years who are less capable than adults of appreciating the wrongfulness of their behavior." Q.D., 102 Wash.2d at 23, 685 P.2d 557.

In order to overcome the presumption of incapacity, the State must provide clear and convincing evidence that the child had sufficient capacity to understand the act and to know that it was wrong. J.P.S., 135 Wash.2d at 38, 954 P.2d 894; Q.D., 102 Wash.2d at 26, 685 P.2d 557. A capacity determination is fact-specific and must be in reference to the specific act charged. J.P.S., 135 Wash.2d at 37, 954 P.2d 894; Q.D., 102 Wash.2d at 26, 685 P.2d 557. It is not necessary, however, for the child to understand that the act would be punishable under the law. J.P.S., 135 Wash.2d at 38, 954 P.2d 894. The focus is on "whether the child appreciated the quality of his or her acts at the time the act was committed," rather than whether the child understood the legal consequences of the act. State v. T.E.H., 91 Wash.App. 908, 913, 960 P.2d 441 (1998).

We have identified seven factors to consider in determining capacity: (1) the nature of the crime, (2) the child's age and maturity, (3) whether the child evidenced a desire for secrecy, (4) whether the child told the victim (if any) not to...