Opinion
No. 35418-7-II.
January 8, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-00679-0, Thomas Felnagle, J., entered October 6, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
Alfredo Watzon-Pozo appeals his jury conviction for first degree child molestation, arguing that his trial counsel was ineffective for failing to request a jury instruction on the lesser included offense of fourth degree assault. Because the evidence does not support a finding that only an unlawful but nonsexual touching occurred, Watzon-Pozo was not entitled to a fourth degree assault instruction and we affirm.
FACTS
Because of the nature of this case, some confidentiality is appropriate. Pursuant to RAP 3.4, the name of the child and immediate family members shall not be used in the opinion.
On the afternoon of February 5, 2006, Watzon-Pozo and his girl friend, Shurna Gray, went to the home of Gray's niece, D.H., in Lakewood, Washington, to baby-sit her six-year-old son, L.H. After watching television that evening, Gray told L.H. to get ready for bed. While L.H. prepared for bed, Gray and Watzon-Pozo went outside to smoke cigarettes and remove some items from the garage. Watzon-Pozo soon returned to the house, but Gray stayed in the garage and continued to look through several boxes. Ten minutes later, Gray returned to the house to check on L.H.
When Gray entered L.H.'s bedroom, she saw L.H. lying face down on the bed with his shorts and underwear pulled down to his knees. According to Gray, Watzon-Pozo was masturbating as he stood over the child and his thumb was positioned near the "crack" of L.H.'s buttocks. 6 Report of Proceedings (RP) at 284. When he noticed Gray, Watzon-Pozo said, "I'm sorry . . . [i]t won't happen no more . . . [d]on't call the police." 6 RP at 283. Gray testified that as Watzon-Pozo pulled up his pants, she told L.H. to pull up his pants and go to his sister's room. Gray then wrestled the phone away from Watzon-Pozo and called the police. When the police arrived, Gray told the officers what she had seen.
At the scene, Watzon-Pozo told the officers that L.H. had complained of an itchy spot on his bottom and asked Watzon-Pozo to examine it. Watzon-Pozo claimed he was fully clothed when he examined L.H., and that his examination lasted only a few seconds before Gray entered the room and accused him of molesting the child. Watzon-Pozo also repeatedly stated that he had not digitally penetrated L.H.
Officers transported Watzon-Pozo to the police station for further questioning. During the interview, Watzon-Pozo gave conflicting versions of events. Initially, Watzon-Pozo told police that L.H. was lying on his bed watching television when he entered L.H.'s bedroom, and that the two had been watching cartoons together for 10 minutes when L.H. asked Watzon-Pozo to examine a mark on his bottom. Later, to explain the presence of a soiled facial tissue on the floor of L.H.'s room, Watzon-Pozo claimed that L.H. was in the bathroom when he first entered the bedroom, and that he briefly masturbated in the room until L.H. returned. After the interview, the police arrested Watzon-Pozo.
The following day, D.H. took L.H. to the emergency room. Michelle Breland, a pediatrics nurse, interviewed and examined L.H.
The State charged Watzon-Pozo with first degree child molestation in violation of RCW 9A.44.083. On July 12, 2006, Watzon-Pozo's trial commenced. Although he did not want to talk about the incident, L.H., who was seven years old at the time of trial, tearfully pointed at Watzon-Pozo and testified that he had done a bad thing to him. Breland testified that, during the interview, L.H. told her that (1) WatzonPozo touched his "private," (2) L.H. asked Watzon-Pozo to stop, and (3) Watzon-Pozo had no right to touch him. 8 RP at 432. And Gray testified consistent with her statements to police as set out above. Watzon-Pozo did not testify, but police witnesses recounted Watzon-Pozo's statements to them in which he repeatedly denied touching L.H. in an unlawful or sexual manner. At the trial's conclusion, Watzon-Pozo's counsel did not ask the trial court to instruct the jury on the lesser included offense of fourth degree assault. The jury convicted Watzon-Pozo of first degree child molestation, and the trial court sentenced Watzon-Pozo within the standard range: a minimum term of 68 months with a maximum term of life. Watzon-Pozo timely appeals.
During the interview, L.H. told Breland that Watzon-Pozo touched his penis and not his bottom. At trial, L.H. testified that Watzon-Pozo touched him "[b]elow [his] back." 8 RP at 449.
In addition, the trial court ordered that Watzon-Pozo obtain psychosexual evaluations and follow-up treatment, register as a sex offender, remain in community custody for life, have no contact with the victim, and pay legal financial obligations.
ANALYSIS
Ineffective Assistance of Counsel
Watzon-Pozo argues that his trial counsel was ineffective when he failed to request a lesser included offense instruction for fourth degree assault. We disagree.
The federal and state constitutions guarantee a defendant the right to effective assistance of counsel. U.S. Const. amend VI; Wash. Const. art. I, § 22; Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on an ineffective assistance of counsel claim, Watzon-Pozo must show that (1) his trial counsel's performance was deficient, and (2) the deficiency prejudiced him. Strickland, 466 U.S. at 687. Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). To demonstrate prejudice, Watzon-Pozo must show that his trial counsel's performance was so inadequate that there is a reasonable probability that the result at trial would have been different, which would undermine our confidence in the outcome. Strickland, 466 U.S. at 694.
Because Watzon-Pozo was not entitled to the lesser included offense instruction of fourth degree assault, his trial counsel was not deficient in failing to request one.
Lesser Included Offense Instructions
Under RCW 10.61.006, a jury may find a defendant guilty of an offense "the commission of which is necessarily included within that with which he is charged." A defendant is entitled to an instruction on a lesser included offense if: (1) each element of the lesser offense is a necessary element of the offense charged (the legal prong), and (2) the evidence in the case must support an inference that the defendant committed only the lesser crime (the factual prong). State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).
A. The Legal Prong
Watzon-Pozo argues, and the State concedes, that the crime of first degree child molestation necessarily includes all the elements of fourth degree assault. For the reasons discussed below, the State's concession is proper. See State v. Stevens, 158 Wn.2d 304, 311, 143 P.3d 817 (2006) (finding fourth degree assault is a lesser included offense of second degree child molestation).
RCW 9A.36.041 designates fourth degree assault, but the statute does not define the term "assault." Accordingly, Washington courts apply a common law definition, defining "assault" as an "unlawful touching with criminal intent." Stevens, 158 Wn.2d at 311.
RCW 9A.36.041 provides: "(1) A person is guilty of assault in the fourth degree if, under circumstances not amounting to assault in the first, second, or third degree, or custodial assault, he or she assaults another. (2) Assault in the fourth degree is a gross misdemeanor."
In Stevens, our Supreme Court compared the "unlawful touching with criminal intent" of fourth degree assault to second degree child molestation under RCW 9A.44.086. 158 Wn.2d at 311. Stevens noted that a conviction for second degree child molestation required "sexual contact" between a defendant and a victim who is at least 12 years old but less than 14 years old. RCW 9A.44.086(1); Stevens, 158 Wn.2d at 311. Stevens held that, because second degree child molestation entails an unlawful touching for the purpose of sexual gratification, the crime necessarily included the elements of fourth degree assault. 158 Wn.2d at 311.
"Sexual contact" is a touching of the sexual or intimate parts for the purposes of sexual gratification. RCW 9A.44.010(2); Stevens, 158 Wn.2d at 311.
Here, the State charged Watzon-Pozo with first degree child molestation. The only difference between first and second degree child molestation is the age of the victim. Compare RCW 9A.44.083 with RCW 9A.44.086. Because the remaining elements of first and second degree child molestation are the same, we conclude that first degree child molestation necessarily includes the elements of fourth degree assault and that the legal prong of the lesser included offense instruction analysis is satisfied here.
RCW 9A.44.083 provides:
(1) A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.
(2) Child molestation in the first degree is a class A felony.
RCW 9A.44.086 provides:
(1) A person is guilty of child molestation in the second degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.
(2) Child molestation in the second degree is a class B felony.
B. The Factual Prong
Watzon-Pozo argues that the evidence in this case supported an inference that he committed only the lesser crime of fourth degree assault. We disagree.
When we review whether a jury instruction on a lesser included offense would have been appropriate, if requested, we consider all evidence presented at trial. See Fernandez-Medina, 141 Wn.2d at 456. To require the court to instruct the jury on a lesser included offense, the evidence must be sufficient to "`permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.'" Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)). This means that the "evidence must affirmatively establish the defendant's theory of the case — it is not enough that the jury might disbelieve the evidence pointing to guilt." Fernandez-Medina, 141 Wn.2d at 456.
Here the lesser instruction of fourth degree assault was not warranted because (1) no affirmative evidence supports an inference that Watzon-Pozo committed the crime of fourth degree assault to the exclusion of first degree child molestation, and (2) the defense Watzon-Pozo presented at trial, if found credible, negated the criminal intent element required to establish any offense. Because the evidence presented at Watzon-Pozo's trial did not support a finding that he unlawfully touched L.H. for purposes other than sexual gratification, the jury could not find that he committed only the lesser included offense of fourth degree assault. Accordingly, he was not entitled to the lesser included offense instruction.
Furthermore, we note that overwhelming evidence established first degree child molestation. Gray testified that she saw Watzon-Pozo masturbating while he was massaging L.H.'s bottom with his thumb near L.H.'s anus. This testimony proves an unlawful touching for sexual gratification, first degree child molestation. Watzon-Pozo's masturbation leads to only one reasonable inference that he touched L.H. for the purpose of sexual gratification. Although the State presented testimony regarding Watzon-Pozo's statements that he did not digitally penetrate L.H., penetration is not an element of first degree child molestation or fourth degree assault and the absence of penetration does not preclude a finding that Watzon-Pozo touched L.H. for the purpose of sexual gratification. See State v. Marcum, 61 Wn. App. 611, 612 n. 1, 811 P.2d 963 (1991) (defendant's act of putting his hand down the front of a child's trousers was enough to create an inference that he did so for sexual gratification). Moreover, both Breland and L.H.'s testimony support a finding that Watzon-Pozo touched L.H. without permission. The touching was unwanted and unlawful — "[a] bad thing." 8 RP at 449.
Because Watzon-Pozo was not entitled to an instruction on fourth degree assault, his trial counsel was not deficient when he failed to request an instruction that the evidence did not support. Watzon-Pozo has not demonstrated that his counsel's performance was deficient or that he was prejudiced by the court's failure to give a lesser included offense instruction that the defense had not requested and the evidence did not support. We affirm.
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.
ARMSTRONG, J. VAN DEREN, A.C.J., concur.