No. 36153-1-II.The Court of Appeals of Washington, Division Two.
August 5, 2008.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00830-5, James J. Stonier, J., entered March 29, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.
HOUGHTON, P.J.
Daniel Plant appeals his conviction of first degree child molestation, arguing that the State failed to prove he touched a minor for the purpose of sexual gratification. He also argues he received ineffective assistance of counsel. We affirm.
FACTS[1]
Plant was friends with Susan Norbury, who had a six-year-old daughter A. Norbury described that she and Plant were close and that he sometimes stayed at her house. She said that they did not have a romantic or sexual relationship. 1 Report of Proceedings (RP) at 87. She described Plant’s relationship with A. as “[k]ind of fatherly, like an uncle.” 4 RP at 353. Plant, along with Norbury’s son Blake, had babysat A. on one or two occasions when Norbury needed childcare on short notice as she attended to her dying mother.
On June 17, 2006, Norbury and A. returned home around midnight after visiting Norbury’s mother in the hospital. According to Norbury, Plant arrived at her home drunk shortly thereafter. She described that he stumbled and staggered, slurred his words, reeked of alcohol, almost fell down but he could “somewhat” carry on a conversation with her.[2] 1 RP at 93. She told him that he could stay at her house if he went to sleep.
Norbury had a queen-size bed in her living room in front of the television. She put on a movie in the dark so that they could all relax and go to sleep. A. had been restless, and it had taken Norbury a long time to settle her down. The three lay in bed, A. on Norbury’s left and Plant on Norbury’s right. Norbury said that Plant was being silly, wanting to play, and was wrestling with her. At first, she giggled and used her legs to hold him down. She testified that Plant also tried to grab, hug, and grope her while making sexual comments, including asking Norbury to have sex and pretend that they did not.
Norbury had a pillow between her legs and she described that Plant was on his side between her legs with his head on the pillow. She covered herself and A. with a blanket. She told Plant that he needed to be quiet so that A. could go to sleep. Plant was rubbing A.’s feet and legs under the blanket. He had started doing this while Norbury was rubbing A.’s back to encourage her to sleep. Norbury felt the rubbing was keeping A. awake. She told Plant to stop and leave A. alone but he continued. Norbury described that A. would start to fall asleep and then Plant would “start acting up again” and awaken her. 4 RP at 362. This went on for a few hours. Plant stopped after Norbury became serious and angry. 4 RP at 363.
Norbury fell asleep but woke when she heard A. say, “Dan, don’t.” 1 RP at 98-99. She described A.’s tone of voice as not very loud but very serious and one that she had never before heard from A. Norbury immediately threw back the blanket. She described that Plant’s hand was “way up high on [A.’s] body” and that he immediately jerked it down to A.’s feet and looked at Norbury as though caught. 1 RP at 100.
Norbury asked Plant if he was still keeping A. awake. She was upset Plant would not leave A. alone and got a “weird feeling” about it but at that point she believed he had been keeping her awake by rubbing her legs. 1 RP at 99. Norbury told Plant to “knock it off,” then shoved him out from between her legs and shut off the television. 1 RP at 99. She described that Plant became “really weird” and belligerent; he rambled and acted agitated and “hyper” but not “like normal just drunk.” 4 RP at 365.
When Plant sat up on the bed, Norbury saw that his pants were undone, exposing his penis. He had a condom and asked Norbury if she wanted to help him put it on. Norbury testified that she partially saw Plant’s penis but not long enough to determine if it was erect. Although she believed A. was asleep at that point, she covered A.’s face with her hands and told Plant to leave. She said that Plant responded that he would go outside for a while and when he came back inside, he said “it will be different.” 4 RP at 369. Norbury locked the door after Plant left and eventually went to sleep.
The following morning A. waited for everyone else to leave the house and then told Norbury she needed to tell her something. She stood close to Norbury, spoke in a low voice and told her that “[Plant] touched me where girls go pee.” 1 RP at 106. Norbury asked A. if the touching occurred on top of or under her clothes, and A. demonstrated by pulling down both her shorts and underwear and pointing to her pubic area. Norbury described A. as nervous while telling about the touching. A. later told Norbury she was scared because she thought she was going to be in trouble.[3] Norbury called the police.[4]
Longview Police Department Civilian Investigator Olga Lozano interviewed A. Lozano testified that during the interview, A. demonstrated how Plant touched her “pee” under her clothes by pulling down the waistband of her underwear and pointing to the front of her pubic area. 1 RP at 137. She testified that A. told her that Plant was playing with his fingers and “it felt like he was playing the piano on her pee area,” the touching was skin to skin, and it was not good and hurt.[5] 1 RP at 140.
Lozano also interviewed Plant. Plant told her he had had five or six wine coolers on the night of the incident and that Norbury had wanted to have sex that night. Plant told Lozano that he had been rubbing A.’s belly, legs, and feet to soothe her after she had a nightmare. Lozano asked Plant whether he touched A.’s pubic area. Initially he said no but later recalled that he had. Plant stated it was possible he might have mistaken A.’s pubic area for Norbury’s. Lozano asked him if he had ever put his hands inside A.’s underwear and Plant gave several responses, including that he had not, that it was possible, and that he might have done so if he had fallen asleep. Plant also gave different answers to why he left Norbury’s home that night, including that he wanted to leave to get more alcohol, Norbury had asked him to leave, and he left because he had started feeling uncomfortable.
Plant also told Lozano he suspected that A.’s two older brothers had been sexually abusing her, and he was testing A. to determine whether she had been molested. He stated that he thought about the incident “all night long” and concluded that it was a test. 1 RP at 164. Lozano asked where the test would stop, and Plant stated at A.’s pubic area. He told Lozano that he was “just being professional” and had concluded from A.’s reaction that her brothers had not molested her. 1 RP at 166. He stated that he received no sexual gratification from the touching.
The State charged Plant with one count of first degree child molestation. During the investigation, A. revealed to Lozano that her brother Cole had also molested her several years earlier.[6] Norbury testified that A. never confused her molestation by Plant with her molestation by Cole. She also testified that Plant never voiced any concern to her that A.’s brothers were abusing A.
A jury heard the matter. Defense counsel waived opening statement and presented no evidence.
In closing, defense counsel argued that the State failed to prove that Plant touched A. for the purpose of sexual gratification and that his act only constituted fourth degree assault. He argued that Plant was under the influence of alcohol, people under the influence “do some pretty dumb things,” and Plant’s plan to test whether A.’s brothers had molested her was not well conceived. 4 RP at 480. He also noted that Plant had been the first person to raise a concern that A. might have been sexually abused by her brothers and that he had been correct.
The trial court instructed the jury that to convict Plant of first degree child molestation, it must find, in part, that Plant had sexual contact with A., defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party.” CP at 47. The trial court also instructed the jury on the lesser included offense of fourth degree assault. Defense counsel did not object to the jury instructions and did not request a voluntary intoxication instruction. The jury convicted Plant of one count of first degree child molestation and he appeals.
ANALYSIS Sufficient Evidence
Plant first contends that insufficient evidence proves that he touched A. for the purpose of sexual gratification for two reasons. First, because her testimony about the superficial touching showed that it was not for gratifying sexual desire. Second, because Norbury testified that she considered him like a father or uncle to A. and entrusted him with her care, making the touching part of caretaking.
Sufficient evidence supports a conviction when, viewed in the light most favorable to the State, any rational fact finder could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences in the State’s favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State’s evidence and all inferences reasonably drawn from it. Salinas, 119 Wn.2d at 201. We defer to the fact finder on issues of conflicting testimony, witness credibility, and the persuasiveness of evidence. See State v. Cord, 103 Wn.2d 361, 367-68, 693 P.2d 81 (1985). We consider circumstantial evidence as reliable as direct evidence State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980).
Under RCW 9A.44.083, a person is guilty of first degree child molestation where he has sexual contact with another less then 12 years old who is not married to the perpetrator, and the perpetrator is at least 36 months older than the victim. “Sexual contact” is “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.” RCW 9A.44.010(2). “Sexual gratification” is not an essential element of first degree child molestation but clarifies the meaning of the term “sexual contact.” State v. Lorenz, 152 Wn.2d 22, 34-35, 93 P.3d 133 (2004). Finally, we must determine whether a caretaking function existed in order to discern whether there was a legitimate purpose for the adult to intimately touch the minor. See State v. Wilson, 56 Wn. App. 63, 68, 782 P.2d 224 (1989) (jury may infer touching for the purpose of sexual gratification when an unrelated adult serving no caretaking function touches the intimate part of a child).
Here, no one disputes that the touching occurred because Plant’s defense was that he touched A. to test whether she had been molested. He touched her skin to skin under her clothing, in an erogenous area. The touch was not fleeting or otherwise capable of an innocent explanation. And Plant was not A.’s caretaker.[7] A presumption thus arises that his touching was for the purpose of sexual gratification. See State v. Price, 127 Wn. App. 193, 202, 110 P.3d 1171 (2005) aff’d, 158 Wn.2d 630, 146 P.3d 1183 (2006); State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991).
The jury also heard Norbury’s testimony that before the touching occurred, Plant was wrestling, hugging, and groping Norbury while they were lying on a bed; he was rubbing A.’s legs despite Norbury repeatedly telling him to stop; and he made sexually charged comments to Norbury, including sexual propositions. It also heard Norbury’s testimony that after the incident she discovered that Plant’s pants were open and his penis was exposed, he had a condom, and he asked Norbury if she wanted to help put it on. Finally, it heard Lozano’s testimony regarding Plant’s inconsistent answers as to whether and why he touched A.
Viewed in the light most favorable to the State, ample evidence supported the jury’s determination that Plant’s contact with A. was for the purpose of sexual gratification. See State v. Whisenhunt, 96 Wn. App. 18, 24, 980 P.2d 232 (1999). Plant’s argument fails.
Ineffective Assistance of Counsel
Plant also contends that he received ineffective assistance of counsel because defense counsel failed to argue a voluntary intoxication defense or request a voluntary intoxication jury instruction. He argues that the evidence showed he was so highly intoxicated that it prevented him from touching A. for the purpose of sexual gratification. He argues that there is a reasonable probability that the trial result would have differed if the trial court gave a voluntary intoxication instruction because the evidence against him was otherwise insubstantial.
We review an ineffective assistance of counsel claim de novo State v. White, 80 Wn. App. 406, 410, 907 P.2d 310
(1995). To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s deficient performance prejudiced the defense such that, but for the deficient conduct, the proceeding’s outcome would have differed. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000). A defendant must also overcome a strong presumption that defense counsel’s conduct was effective Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Legitimate trial strategy or tactics may not serve as the basis of an ineffective assistance of counsel claim. State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 (1978).
Substantial evidence supporting a defendant’s theory of a case entitles him to submit his theory to the jury under appropriate instructions. State v. Washington, 36 Wn. App. 792, 793, 677 P.2d 786 (1984). To warrant a voluntary intoxication instruction, a defendant must show “(1) the crime charged has as an element a particular mental state, (2) there is substantial evidence of drinking, and (3) evidence that the drinking affected the defendant’s ability to acquire the required mental state.”[8] State v. Gabryschak, 83 Wn. App. 249, 252, 921 P.2d 549 (1996). Evidence of drinking alone is insufficient; there must be substantial evidence as to the effect of alcohol on the defendant’s mind or body. Gabryschak, 83 Wn. App. at 253.
We review de novo whether the evidence entitled Plant to a voluntary intoxication instruction, whether it was inappropriate for counsel not to seek such an instruction, and whether not giving the instruction prejudiced Plant. State v. Kruger, 116 Wn. App. 685, 690-91, 67 P.3d 1147 (2003).
The evidence of Plant’s intoxication was Norbury’s testimony that he arrived at her house drunk around midnight and Lozano’s testimony that Plant told her he had had five or six drinks on the night of the incident. Norbury also testified that after pulling back the blanket, Plant acted weird, belligerent, agitated, and “hyper,” but did not act as a drunk person typically would.
There was no evidence regarding Plant’s level of intoxication, the effect of alcohol on his mind or body, or whether he was incapable of forming the intent to contact A. for the purpose sexual gratification. To the contrary, evidence showed that before the incident he made sexually suggestive comments and tried to grope and hug Norbury. After the incident his pants were unzipped and his penis exposed and he asked Norbury assist him with a condom. Further, Plant told Lozano that he touched A. to test whether she had been molested, that he was “just being professional” and that he concluded from his test that A. had not been molested. 1 RP at 166.
In sum, Plant was not entitled to a voluntary intoxication jury instruction because there was not substantial evidence that drinking impaired his mental culpability. See State v. Mriglot, 88 Wn.2d 573, 577-78, 564 P.2d 784 (1977) (the issue of intoxication need not go to the jury unless supported by substantial evidence; evidence of intoxication based on opinion and unsupported by facts is speculative and conjectural, amounts to a scintilla of evidence, and should not be presented to the jury). The otherwise adequate jury instructions allowed Plant to argue his theory of the case that his touching only constituted a lesser included offense of fourth degree assault See State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219
(2005) (“Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law.”).
Even assuming Plant was entitled to a voluntary intoxication instruction, defense counsel’s strategy was to argue that Plant touched A. for the purpose of a test and not sexual gratification and the circumstances did not warrant a first degree child molestation conviction. A voluntary intoxication argument would have contradicted both Plant’s own statements to Lozano and the defense theory that Plant was conducting a test. In closing argument, defense counsel argued that alcohol impaired Plant’s judgment in deciding to conduct the test, aiding the defense’s theory that the touching was not well conceived but also was not for the purpose of sexual gratification. We do not reverse based on ineffective assistance of counsel where counsel’s decisions reflect legitimate strategic or tactical considerations. In the Pers. Restraint of Howerton, 109 Wn. App. 494, 508, 36 P.3d 565 (2001). Because he fails to show deficient performance, we do not address whether he suffered prejudice and Plant’s ineffective assistance claim fails.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur