STATE v. CHARBONNEAU, 138 Wn. App. 1003 (2007)

No. 56747-1-I.The Court of Appeals of Washington, Division One.
April 16, 2007.

Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-02098-5, Eric Z. Lucas, J., entered August 22, 2005.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

Etienne Charbonneau a/k/a Steve Charbonneau claims insufficiency of the evidence to support the jury’s conviction of two separate counts of child molestation. He contends that the sentencing court erred by treating the two offenses separately in calculating his offender score. He also argues that the collection of a biological sample for DNA analysis without a warrant or individualized suspicion violated his Fourth Amendment protection against unreasonable searches and seizures, and his right to privacy under article I, § 7 of the Washington Constitution. We affirm.

FACTS
In 1998, Charbonneau’s sister-in-law, Kathryn, and her two daughters, I.C. and A.C. moved in with Charbonneau and his wife, Teresa. I.C. was four years old and A.C. was two years old. Over the next six years, the girls lived primarily with the Charbonneaus, while their mother moved around. From the summer of 2003 until the end of the school year in 2004, the girls spent school-day afternoons and weekends with the Charbonneaus.

In early July of 2004 Kathryn was cleaning I.C.’s room. She found a diary entry, dated Jan. 12, 2003, that read “I have lout [sic] of sex with Steve.” There were no other similar entries. Kathryn asked I.C. about the entry. I.C. told her mother that Steve had touched her “top and bottom.” Kathryn called the police and Charbonneau was arrested.

Two detectives testified that when they interviewed him regarding the allegations, Charbonneau told them that in the preceding six months, he had touched I.C.’s breasts seven to eight times and her vagina three to four times. He told the detectives that he was checking her for sores and infections. He also told the detectives that he inserted his finger into her vagina to “check for swelling on the clitoris.” During this interview, Charbonneau said that he loved the girls and would never hurt them, but that I.C. knew more about sex than she should as a ten-year-old. He also told the detectives that he should be kept away from people, specifically I.C., for doing what he did. During testimony, he denied the above statements to the detectives.

In her initial interview with detectives, I.C. would not disclose what had happened. But one day later, a detective was called to I.C.’s home to pick up a statement she had written. During that interview, I.C. confirmed that she had written the statement and read it out loud. Using diagrams, she identified the areas where Charbonneau had touched her. She was visibly upset and nervous while she described the events.

During trial, I.C. testified that Steve unclothed her and rubbed her breasts and vagina. She testified that the only times he asked her about rashes or sores were after she had fallen off of her bike. Teresa was present for those occasions. She answered “yes,” when asked if Charbonneau touched her breasts “between one and five” times and also answered “yes” when asked if he touched her vagina “between five and ten times.” She testified that Steve took his clothes off “sometimes,” but not every time.

A doctor that had examined I.C. for sexual abuse testified that when asked if “it had happened one time or more than one time,” I.C. said “more than one time.” During trial, the prosecutor asked I.C. when the events occurred. She answered that she was older than two years old, but younger than ten years old. She could not remember if it happened while she was actually living with Charbonneau or after she had moved out and was spending afternoons and weekends at his house. In her written statement, I.C. wrote, “I don’t know when it started and when it stopped.” In the same statement I.C. wrote, “every time Teresa was not there Steve would take me to Teresa’s room and touch the top of me and the bottom of me with his hands and play with thim [sic].”

Charbonneau was charged with two counts of first degree rape of a child and two counts of first degree child molestation. Jury instructions included a requirement that the jury be unanimous as to what particular acts had been proved beyond a reasonable doubt. The jury was given separate “to convict” instructions for each of the two counts of child molestation. Both of the “to convict” instructions instructed the jury to determine whether, “on or about the 1st day of March, 2003 to the 13th day of June, 2004, in an act separate and distinct from that charged in [the other count of molestation], the defendant had sexual contact with I.C.” The jury found him guilty on both counts of first degree child molestation. The court sentenced Charbonneau to a minimum of 67 months in prison.

ANALYSIS Sufficiency of the Evidence to Support Two Convictions ofChild Molestation

Charbonneau argues that in “multiple acts” cases in which any one of the charged acts could constitute the crime charged, the jury must be unanimous as to which particular act or incident constituted the crime. He maintains that the State did not present sufficient evidence to allow the jurors to distinguish among the multiple incidents alleged and to agree on which particular acts constituted the two separate convictions.

“The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “Circumstantial evidence is as probative as direct evidence.” State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992), (citation omitted). We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses. State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998).

To convict a criminal defendant, a unanimous jury must find that the defendant committed the criminal act charged State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788
(1996). “In cases where several acts are alleged, any one of which could constitute the crime charged, the jury must unanimously agree on the act or incident that constitutes the crime.” Id. However, this Court has created a distinction for the allegation of multiple counts of child sexual abuse:

In sexual abuse cases where multiple counts are alleged to have occurred within the same charging period, the State need not elect particular acts associated with each count so long as the evidence “clearly delineate[s] specific and distinct incidents of sexual abuse” during the charging periods. The trial court must also instruct the jury that they must be unanimous as to which act constitutes the count charged and that they are to find “separate and distinct acts” for each count when the counts are identically charged.

Id. at 431. (quoting State v. Newman, 63 Wn. App. 841, 851, 822 P.2d 308 (1992); State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d 190 (1991)).[1]

Here, the trial court met the jury instruction requirements for multiple counts of child sexual abuse. The jury was instructed that they must be unanimous as to which act constituted the count charged, and that they were to find “separate and distinct acts” for each of the child molestation charges.

Having satisfied the jury instruction requirements, the remaining inquiry is whether the evidence was sufficiently separate as to each count charged. Hayes, 81 Wn. App. at 431. In circumstances where the perpetrator is a “resident molester,” “[t]o hold as a matter of law that generic testimony is always insufficient to sustain a conviction of a resident child molester risks unfairly immunizing from prosecution those offenders who subject young victims to multiple assaults. . . . [T]o fairly balance the due process rights of the accused against the inability of the young accuser to give extensive details regarding multiple alleged assaults[,]” the Hayes court used three minimum requirements. Id. at 438.

Here, the evidence against Charbonneau is sufficient to show separate and distinct acts of child molestation. First, I.C.’s testimony establishes specific description of the acts. She said that Charbonneau would undress her and rub her “top”, and “bottom.” With the use of a diagram, she identified where Charbonneau had touched her. When asked during trial if he touched her “[l]ike kind of where your boobs are, right?” she answered “[y]es.” When asked “[w]ould he touch more in the middle like where your crotch is?” she answered affirmatively. She stated that at times he had his clothes on, but sometimes he was unclothed. Finally, she said that these acts occurred when Charbonneau’s wife, Teresa, was not home.

Second, I.C. described the number of acts committed with sufficient certainty to support each of the alleged counts. During interviews with detectives and her doctor, as well as during her testimony, I.C. said that Charbonneau had touched her “top and bottom” at least more than once. As noted above, she said that sometimes he was clothed, but sometimes he was not. This shows that at least two acts occurred — once when he was clothed, and once when he was unclothed. In an interview with detectives, Charbonneau himself said that he touched I.C.’s breasts seven to eight times and her vagina three to four times. The above evidence is sufficient to support the two alleged counts of child molestation.

Third, I.C. was able to tie the abuse to events in her life to establish a timeframe. When asked if she was living with Charbonneau in 4th grade, which would have been 2003, she answered “I think so.” When asked where she lived before moving to Arlington in 2003, she answered “I think the last [place] I lived was my Uncle Steve’s house.” She also testified that after she moved to Kirkland in the spring of 2003, she would still visit Charbonneau on the weekends. These dates were within the charging period asserted by the prosecutor. The above facts, viewed in the light most favorable to the State, show that the evidence was sufficient to support the jury’s conclusion that Charbonneau was guilty of two specific and distinct acts of sexual molestation of a child.

Same Criminal Conduct

Charbonneau argues that since the State did not prove that the two counts of child molestation were separate offenses, they must be considered same criminal conduct, resulting in a sentencing score of “0”. The State argues that Charbonneau waived the issue because he not only failed to challenge the State’s calculation of his offender score at sentencing, but also argued for the low end of the standard range applicable to an offender score of “3”. Alternatively, the State contends that the court properly considered the two crimes as separate and distinct because the jury found him guilty of two specific acts as defined in the instructions.

The State is correct on both points. A trial court’s determination regarding same criminal conduct for sentencing purposes is reviewed for abuse of discretion or misapplication of law. State v. Larry, 108 Wn. App. 894, 915, 34 P.3d 241 (2001). RCW 9.94A.589(1)(a) provides in relevant part that “same criminal conduct” means “two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.” A defendant waives any argument that his crimes count as the same criminal conduct when he explicitly agrees that his offender score was properly calculated. State v. Nitsch, 100 Wn. App. 512, 513, 997 P.2d 1000 (2000). An explicit statement of a range is an implicit assertion of a score and an implicit assertion that one’s crimes do not constitute the same criminal conduct Id. at 521-22.

Here, Charbonneau argued for the low end of a range applicable to an offender score of “3,” implicitly acknowledging that his crimes were not the same criminal conduct. Further, as noted above, the evidence was sufficient to show that although Charbonneau’s victim and intent were the same for both counts, his acts were not committed at the same time. The trial court did not abuse its discretion when it found that the two counts of child molestation did not qualify as the same criminal conduct for sentencing purposes.

Collection of DNA Sample

Charbonneau argues that collection of a biological sample for a DNA database violated his Fourth Amendment right to be free from unreasonable search and seizure. As Charbonneau acknowledges, this issue was decided to the contrary in State v. Surge, 122 Wn. App. 448, 94 P.3d 345 review granted, 153 Wn.2d 1008, (2004).

Charbonneau also advances an argument under the Washington Constitution, but fails to provide the necessar Gunwall analysis. As a result, we need not consider the argument. See State v. Nguyen, 134 Wn. App. 863, 871, 142 P.3d 1117 (2006) (citing State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986) (refusing to consider an Art. 1 § 7 argument when the appellant did not properly brie Gunwall).

The jury verdict finding Charbonneau guilty on two counts of child molestation is affirmed. Charbonneau’s sentence stands.