Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA, 98122.
David Bruce Koch , Nielsen Broman & Koch PLLC, 1908 E Madison St, Seattle, WA, 98122-2842.
Christopher Alan Hill (Appearing Pro Se), 2426 Callow Road, Unit B, Lake Stevens, WA, 98258.
Counsel for Respondent(s), John Sanford Adcock , Attorney at Law, 3000 Rockefeller Ave, Everett, WA, 98201-4046.
Mary Kathleen Webber , Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA, 98201-4061.
LEACH, J.
When a child under 12 is charged with a sexual offense, "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."Here, the State charged 11-year-old C.A.H. with first degree child rape for conduct involving 3-year-old D.M. The juvenile court determined that C.A.H. had the capacity to commit the crime. It based this finding on C.A.H.'s age (almost 12) and on a statement C.A.H. made three days after the incident that he stopped the sexual contact because he knew it was wrong. C.A.H. appeals and argues that this evidence alone was insufficient to rebut the statutory presumption of incapacity. We agree and reverse the juvenile court's disposition.
C.A.H. and D.M. were neighbors. On August 29, 2009, C.A.H. and D.M. were playing in C.A.H.'s room while their mothers visited downstairs. After D.M. and his mother returned home, D.M. told her that C.A.H. had "stuck his pee pee in my butt." C.A.H. was 11 years, 9 months old at the time.
After the incident, C.A.H.'s parents talked to him about what had occurred and arranged for C.A.H. to enter counseling.
Three days later, Everett Police Detective Aaron Defolo interviewed C.A.H. C.A.H. told Defolo that he and D.M. were playing games in his room when C.A.H. told D.M. to pull down his pants. C.A.H. said, "[L]et me put it plainly, I hurt him." C.A.H. then began to cry and told Defolo that he was too embarrassed to say specifically what he had done. He instead wrote on a statement form, "my private went into his butt." According to C.A.H., the incident lasted about 10 seconds. C.A.H. said he stopped because he "knew it was wrong." The State charged C.A.H. with one count of first degree rape of a child.
Because C.A.H. was under the age of 12 at the time of the incident, the court held a pretrial capacity hearing. At that hearing, only Detective Defolo testified. The State asked Defolo if C.A.H. said "anything that indicated to you that he appreciated the wrongfulness of the conduct." The following exchange then occurred:
A: He did.
Q: What did he say?
A: He told me that he stopped because he knew it was wrong.
Q: And when you say stopped, stopped doing what?
A: His penis was inside of [D.M.'s] rectum.
. . . .
Q: And what was his demeanor?
A: He had—part way into our conversation . . . he began to cry.
Q: Did you get the feeling from him that he had remorse about this act?
A: Yes.
Q: Did you get the feeling that he knew at least morally that what he had done was wrong?
A: Yes, sir.
On cross-examination, defense counsel asked Defolo, "[W]hen he said that I stopped because I knew it was wrong, did you explore what he meant by that?" Defolo responded, "I don't believe I did. I didn't—not any further, no. I mean, it was a very uncomfortable situation."
After Defolo's testimony, the State presented no further evidence, and C.A.H. did not testify. Defense counsel argued that the State failed to meet its burden to show capacity by clear and convincing evidence. The court, however, disagreed:
[R]ecognizing that he was under age 12 at the time[,] I think that bears on capacity to some extent, but I think the issue is really pretty straightforward and limited today to whether he had the capacity to appreciate the wrongfulness of his conduct and the ability to conform his behavior to the requirements of the law.
I think the State has met that burden, clearly by the evidence that the respondent stopped committing the crime, thus evidencing that he was capable of conforming his behavior to the law and he stopped specifically because he recognized that what he was doing at that time was wrong.
I think the fact that he appeared remorseful to the officer and was crying during the interview underscores his knowledge of right and wrong as it relates to the alleged offense.
Beyond that, you know, what other adults may have told him, I have the evidence that he was then in counseling and the parents had initiated counseling before the officer's interview, but I don't have any information to suggest that one way or the other that adults had informed him of anything after the act or had in anyway colored his response to the officer at the time of the interview.
The parties then agreed to a bench trial based on a stipulated record. The judge found C.A.H. guilty and imposed a special sex offender disposition alternative.
Later, the court entered written findings of fact and conclusions of law. Conclusion of law 3, at issue here, memorializes the judge's ruling that C.A.H. had the required capacity to commit first degree rape of a child:
This court finds by clear and convincing evidence that the respondent did have the capacity to appreciate the wrongfulness of his conduct. While making his statement, the respondent admitted he knew it was wrong to sexually assault D.M. The respondent also began to cry during the statement indicating that he was remorseful for having sexually assaulted D.M. Furthermore, by stopping his sexual assault of D.M. he demonstrated his ability to conform his conduct to the requirements of the law.
C.A.H. appeals.
C.A.H argues the juvenile court erred by finding he had the capacity to commit first degree child rape. We will affirm the juvenile court's determination if a rational trier of fact could find capacity by clear and convincing evidence.
RCW 9A.04.050 establishes a statutory presumption that children between the ages of 8 and 12 are incapable of committing a crime.The State has the burden to rebut the presumption of incapacity by clear, cogent, and convincing evidence that the child (1) understood the act and (2) knew it was wrong."The legal test is whether [the child] had knowledge of the wrongfulness of the act at the time he committed the offense and not that he realized it was wrong after the fact."When a child under 12 is charged with a sex offense, "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."
"Capacity requires the actor to understand the nature or illegality of his acts. In other words, he must be able to entertain criminal intent. A `sense of moral guilt alone, in the absence of knowledge of legal responsibility, is not sufficient.'"The statute does not require the State to prove that the child had actual knowledge of the legal consequences of his act.
A capacity determination is a fact-specific inquiry and must be in reference to the specific act charged.Our Supreme Court has identified seven factors to consider in determining whether a child understands the wrongfulness of his conduct:
(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 tell, (5) prior conduct similar to that charged, (6) any consequences that attached to that prior conduct, and (7) whether the child had made an acknowledgement that the behavior is wrong and could lead to detention.
In,the State charged Pam, an 11-year-old, with first degree malicious mischief for throwing rocks at a building. At Pam's capacity hearing, as here, one witness, a police officer, testified.That officer had stopped Pam after receiving reports of the vandalism and read Pam his Mirandarights.The officer asked Pam whether he realized his actions were wrong, and Pam responded:
[H]e stated that he did realize that. We talked about did he think he was going to get in trouble from his parents; he stated yeah, he was going to be in trouble, andthat is [sic] was something that he could get in trouble for.
(Emphasis added.) We concluded that the State failed to meet its burden, holding, "[A] child's after-the-fact acknowledgement that he or she understood that the conduct was wrong is insufficient, standing alone, to overcome the presumption of incapacity by clear and convincing evidence."This is because the wrongfulness of the act has become obvious if, for example, by the time the child admits the conduct is wrong, he has been punished by his parents, enrolled in counseling, and interviewed by police.
Here, the State charged C.A.H. with first degree rape of a child, which required the State to prove that C.A.H. had sexual intercourse with D.M. when D.M. was younger than 12 years old and more than 24 months younger than C.A.H.We must decide, therefore, whether there was sufficient evidence for the court to find by clear and convincing evidence that C.A.H. understood the act of sexual intercourse and knew that it was wrong for him to engage in it with D.M. at the time the act occurred. Considering the seven factors above, we hold that there was not.
As to the first factor, the nature of the act, our Supreme Court has recognized that it is often very difficult to ascertain whether a child understands the prohibitions on sexual behavior with other children."Most young children are taught very young not to steal or set fires or injure other people, but often young children have little, if any, instruction regarding prohibitions on sexual conduct."At C.A.H.'s capacity hearing, the State presented no evidence regarding the first factor. There was no testimony establishing that C.A.H. understood sexual intercourse or knew that his conduct constituted sexual intercourse. Moreover, there was no evidence that C.A.H. knew it was wrong to engage in sexual intercourse with another child. The record does not reflect whether C.A.H. ever received any guidance regarding sexual matters either at school, at home, or elsewhere.
The second factor is the child's age and maturity. C.A.H. was almost 12 at the time of the incident, a fact the judge considered determinative. But the record contains no information regarding C.A.H.'s maturity level. C.A.H. did not testify.The court, therefore, did not have an opportunity to observe his demeanor. Nor did the court hear testimony from other witnesses, such as C.A.H.'s family, counselor, or teachers.
The third and fourth factors focus on whether the child's behavior at the time of the incident evidenced a desire to keep his act a secret. While C.A.H. and D.M. were alone when the incident occurred, the State presented no evidence that C.A.H. attempted to maintain secrecy. Similarly, there was no testimony that C.A.H. admonished D.M. not to tell. In fact, D.M. immediately told his mother what had occurred.
The fifth and sixth factors evaluate the child's past conduct. The State also failed to present any evidence that C.A.H. engaged in similar conduct prior to the incident with D.M. or that he had experienced any negative repercussions from such prior conduct.
The State provided some evidence regarding the final factor, whether the child acknowledged his behavior was wrong and could result in detention. Defolo testified that C.A.H. said he ended his sexual contact with D.M. because he knew it was wrong. But, as we held in, this after-the-fact statement, standing alone, is insufficient to rebut the incapacity presumption. Neither is crying or other demonstrations of remorse during a police interview probative of what the child felt or understood at the time he engaged in the prohibited act. And the judge's statement here that there was no evidence one way or the other whether the comments of adults colored C.A.H.'s responses to Defolo underscores the deficiency in the State's evidence.
Further, there is no indication what C.A.H. meant by "wrong." A child's sense of wrongfulness must relate to the prohibited act—sexual intercourse. Here, C.A.H.'s admission was not scrutinized to discover whether he meant sexual intercourse was wrong. C.A.H. could have meant, for example, that he stopped because he knew it was wrong to hurt D.M. Also, there was no evidence that C.A.H. believed his conduct was legally wrong and could result in detention. Defolo said only that it seemed C.A.H. understood his behavior to be morally wrong. "A `sense of moral guilt alone, in the absence of knowledge of legal responsibility, is not sufficient.'"
Based on the lack of evidence presented at C.A.H.'s capacity hearing, we hold that the State did not meet its burden. Apart from the fact that C.A.H. was 11 years old at the time of the incident, there was no other evidence presented at the hearing besides C.A.H.'s statement to Defolo on which the court could have based its capacity finding. And although C.A.H. admitted that he knew the act was wrong when he committed it, his after-the-fact acknowledgement is insufficient to meet the high burden placed on the State when it charges a child under 12 with a sexual offense. Without sufficient evidence to allow full consideration of the factors developed to determine whether a child understands the wrongfulness of his conduct, the court had no context regarding what C.A.H. meant when he said he knew his act was wrong.
We reverse.
DWYER and COX, JJ., concur.
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