State v. A.X.K.

• Decision Date: 11 February 2020
• Docket Number: No. 52357-4-II,52357-4-II
• Parties: STATE of Washington, Respondent, v. A.X.K., Appellant.
• Court: Washington Court of Appeals

457 P.3d 1222

STATE of Washington, Respondent,

v.A.X.K., Appellant.

No. 52357-4-II

Court of Appeals of Washington, Division 2.

Filed February 11, 2020

Jennifer J. Sweigert, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.

Rachael Rogers, Clark County Prosecuting Attorney's Office, Po Box 5000, Vancouver, WA, 98666-5000, for Respondent.

PUBLISHED OPINION

Melnick, J. —

¶ 1 A juvenile court adjudicated AK guilty of attempted rape of a child in the first degree. The evidence at trial indicated that the incident occurred before AK turned 12 years old. The court never held a capacity hearing.

¶ 2 AK argues that the court erred by not holding a capacity hearing and that his adjudication should be reversed. AK also contends that insufficient evidence supports his adjudication and that the court erred in admitting the child victim’s out-of-court statements.

¶ 3 We remand to the juvenile court to hold a capacity hearing. If the court determines that AK had the capacity to commit the charged offense, the adjudication shall be affirmed. If the court determines that AK did not have the capacity to commit the charged offense, the adjudication must be dismissed.

FACTS

¶ 4 EH was born in August 2007. Approximately nine years later, EH’s parents, Brittnay and Alexander, filed for dissolution of their marriage.¹ They had a contentious dissolution proceeding. Pursuant to a court-ordered parenting plan, EH began splitting time between Brittnay’s and Alexander’s residences. EH spent three days with Brittnay and the rest with Alexander.

¶ 5 Sometime thereafter, Brittnay began a relationship with a man named Christopher, and the two began living together. Christopher had a son, AK, who was born on September 1, 2004.

¶ 6 In March 2017, Alexander’s sister, Joanna, babysat EH. During the evening, EH began pulling on Joanna’s pants. Joanna questioned EH about his actions. EH did not initially respond but eventually apologized. Within hours, Joanna initiated a video chat with her brother and told him about the incident.

¶ 7 During the video chat, Alexander scolded EH for pulling on Joanna’s pants. He asked EH where he learned to do that, and EH told him that AK had pulled down his pants and attempted to penetrate him. EH did not give a specific time when the incident occurred.

¶ 8 Shortly after the accusations, Alexander filed pleadings in the ongoing dissolution proceedings that reflected EH’s allegations. As a result, the court ordered that Brittnay have no contact with EH.

¶ 9 In late March, Kim Holland, a forensic interviewer with the Children’s Justice Center, conducted a forensic interview with EH.² Near the beginning of the interview, Holland asked EH whether he knew why she was interviewing him. EH responded that Alexander had brought him to talk about AK. EH then described how AK had sexually abused him. During the interview, EH said that AK abused him in August 2016 and that the abuse occurred in a hallway. He also stated that he waited a long period of time before he disclosed the abuse to Alexander. AK turned 12 years of age on September 1, 2016.

¶ 10 In October 2017, the State charged AK with attempted rape of a child in the first degree. The State alleged in the information that the crime occurred "on or about or between September 1, 2016 and March 3, 2017." Clerk’s Papers (CP) at 1. The State later amended the information to add a charge of child molestation in the first degree, occurring over the same time period. The matter proceeded to trial.³

¶ 11 At trial, EH testified and could not specify when the incident occurred. When the prosecutor asked him whether he knew what month it occurred, EH responded that he did not. When asked whether the abuse occurred in the hallway, EH responded "maybe or maybe not." Report of Proceedings (RP) (Mar. 28, 2018) at 90. EH also testified that he wanted Brittnay and Alexander to reconcile.

¶ 12 Alexander testified that when EH disclosed the incident to him, "[h]e didn’t give a specific time when it happened." RP (Mar. 28, 2018) at 118.

¶ 13 At the conclusion of the evidence, the court went through the Ryan⁴ factors on the record and admitted EH’s out-of-court statements. The court then adjudicated AK guilty of attempted rape of a child in the first degree.⁵

¶ 14 In support of its rulings, the court found "[t]hat about September 1, 2016 to March 3, 2017 [AK] did an act that was a substantial step toward having sexual intercourse with [EH]." CP at 53. AK appeals.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 15 AK argues that insufficient evidence supports his conviction because the evidence only showed that the abuse occurred before he turned 12 years old and therefore the State failed to prove that he had the capacity to commit the crime. Because capacity is not an element of the crime, we disagree.

¶ 16 "[F]ollowing a bench trial, appellate review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law." State v. Homan , 181 Wash.2d 102, 105-06, 330 P.3d 182 (2014). We examine the findings to decide whether, when viewing them in the light most favorable to the State, any rational fact finder could have found that the State proved each element of the offense beyond a reasonable doubt. Homan , 181 Wash.2d at 105, 330 P.3d 182.

¶ 17 Evidence is substantial if it is "sufficient to persuade a fair-minded person of the truth of the asserted premise." Homan , 181 Wash.2d at 106, 330 P.3d 182. Unchallenged findings of facts are verities on appeal. Homan , 181 Wash.2d at 106, 330 P.3d 182. We review conclusions of law de novo. Homan , 181 Wash.2d at 106, 330 P.3d 182.

¶ 18 To prove attempted rape of a child in the first degree, the State must establish that, with intent to commit the criminal act, the defendant took a substantial step toward having sexual intercourse with another who was less than 12 years old and not married to the defendant and the defendant was at least 24 months older than the victim. RCW 9A.28.020(1) ; RCW9A.44.073(1).

¶ 19 Children older than 8 but less than 12 years old "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. However, capacity is not an element of attempted rape of a child in the first degree. "While capacity is similar to the mental element of a specific crime or offense, it is not an element of the offense, but is rather a general determination that the individual understood the act and its wrongfulness." State v. Q.D. , 102 Wash.2d 19, 24, 685 P.2d 557 (1984).

¶ 20 Here, the only evidence shows that the crime occurred in August 2016, when AK was 11 years old. Therefore, AK was presumed to lack capacity, and the State never rebutted that presumption. However, because capacity is not an element of the crime, AK’s presumed lack of capacity does not implicate the sufficiency of the evidence.

¶ 21 Insufficient evidence claims go to the State’s proof of the elements of the crime. Because capacity is not an element, AK’s argument on this issue fails. When viewing the evidence in the light most favorable to the State, a rational fact finder could have found that the State proved every element beyond a reasonable doubt.

II. CAPACITY

¶ 22 AK argues that the juvenile court did not have the authority to enter a judgment against him because it failed to hold a capacity hearing and he was younger than 12 years old at the time the crime occurred. Therefore, he argues that we should reverse his conviction. We agree that the juvenile court lacked authority but disagree with AK’s proposed remedy.

¶ 23 As previously noted, RCW 9A.04.050 provides that children older than 8 but less than 12 years old "are presumed to be incapable of committing crime" but that this presumption can be rebutted. JuCR 7.6(e) necessitates that a court, when a determination of capacity is required, hold a hearing on capacity within 14 days after the juvenile’s first court appearance.

¶ 24 "The legal test [for capacity] is whether [the defendant] had knowledge of the wrongfulness of the act at the time he committed the offense." State v. J.P.S. , 135 Wash.2d 34, 37-38, 954 P.2d 894 (1998). The State must overcome the presumption of an 8 to 12 year old’s lack of capacity with clear and convincing evidence. J.P.S. , 135 Wash.2d at 37, 954 P.2d 894. "[W]hen a juvenile is charged with a sex crime, the State carries a greater burden of proving capacity, and must present a higher degree of proof that the child understood the illegality of the act." State v. Ramer , 151 Wash.2d 106, 115, 86 P.3d 132 (2004).

¶ 25 Until a juvenile’s presumed lack of capacity is rebutted, the trial court does not have the statutory "authority to act" as to that juvenile.⁶ State v. Golden , 112 Wash. App. 68, 77, 47 P.3d 587 (2002). Until the court holds a capacity hearing, it has "no authority to do anything but dismiss the charge." Golden , 112 Wash. App. at 77, 47 P.3d 587.

¶ 26 Here, the only evidence in the record indicates that AK abused EH in August 2016, before AK turned 12 years of age. The only date given in the record came from the forensic interview when EH said the sexual assault occurred in August 2016. At trial, neither EH nor Alexander could provide a date. Nor did any circumstantial evidence exist from which a reasonable fact finder could have found that the incident occurred after AK turned 12 years of age. Therefore, a presumption exists that AK lacked capacity, and the State did not rebut that presumption. As a result, we conclude that the juvenile court lacked the statutory authority to enter a judgment against AK.

¶ 27 However, we do not reverse AK’s conviction as he requests. Rather, we remand for the court to hold a capacity hearing.

¶ 28 This case is analogous to the situation presented in Dillenburg v. Maxwell , 70 Wash.2d 331, 355, 422 P.2d 783 ...