State of Washington v. Jason Lee Dutcher ( 2014 )

FILED
NOV. 20, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31820-6-III
Respondent, )
)
v. )
)
JASON LEE DUTCHER, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. Jason Dutcher challenges his conviction for third degree child
molestation, arguing that the evidence was insufficient, the jury was incorrect~y
instructed, and two of the court's sentencing conditions were improper. We partially
agree with his latter arguments and remand for correction of the sentence, but otherwise
affirm the conviction.
FACTS
Mr. Dutcher, then 20, was watching a movie with H.N.D., then 14, and her school
friend when all three fell asleep in H.N.D.'s bedroom sometime after 2:00 a.m. H.N.D.
awoke later in the night to find Dutcher touching her. He put his hand down her shorts
and under her panties, touching her clitoris and vaginal area. Dutcher then thrust his hips
against her lower back. H.N.D. believed his penis was outside his clothing at that time,
but she was facing away and did not see him. When Dutcher reached for her breast,
No. 31820-6-111
State v. Dutcher
H.N.D. blocked him and told him to keep his hands to himself. Dutcher rolled over and
pretended he was asleep.
H.N.D. later left the room for the stated purpose of going to the bathroom.
Dutcher announced that he "didn't do it." H.N.D. reported the touching to an adult
housemate who then ordered Mr. Dutcher from the premises. He denied any wrongdoing
and insisted he had been asleep. He subsequently told the same thing to police.
The prosecutor filed charges of third degree child molestation and indecent liberties.
A jury acquitted Mr. Dutcher of indecent liberties, but did convict him on the molestation
count. At sentencing, the trial court imposed community custody conditions that Mr.
Dutcher not possess pornography and be subject to plethysmograph testing at the direction
of his community corrections officer (CCO). Mr. Dutcher then timely appealed to this
court.
ANALYSIS
Mr. Dutcher raises two challenges to his conviction and challenges the two
sentencing conditions noted above. We first address his challenges to the conviction
before jointly addressing the sentencing arguments.
Sufficiency ofthe Evidence
Mr. Dutcher initially argues that there was insufficient evidence that he acted for
the purpose of sexual gratification. The evidence amply permitted the jury to reach its
decision.
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No. 31820-6-111
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Appellate courts review sufficiency of the evidence challenges to see if there
was evidence from which the trier of fact could find each element of the offense proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980).
The reviewing court will consider the evidence in a light most favorable to the
prosecution. Id.
To prove third degree child molestation as charged here, the State was required to
establish that H.N.D. was less than 16 years old, Mr. Dutcher was at least 48 months
older than she was, and that he had sexual contact with her. RCW 9A.44.089(1).
"Sexual contact" means "any touching of the sexual or other intimate parts of a person
done for the purpose of gratifying sexual desire." RCW 9A.44.0 10(2). The effect of that
definition is that the State must prove defendant acted intentionally. State v. Stevens, 158
Wash. 2d 304, 311, 143 P .3d 817 (2006).
Initially, the prosecutor argues that "sleep sexual contact" should be an affirmative
defense as it is in cases of child rape. See State v. Deer, 175 Wn.2d 725,287 P.3d 539
(2012). Mr. Dutcher argues in rejoinder that unknowing sexual contact would simply
negate the State's case and should not be an affirmative defense on which he would have
to bear the burden of proof. We are inclined to Mr. Dutcher's view of the argument in
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No. 31820-6-111
State v. Dutcher
light of recent I authority, but need not reach the issue in this case because he does not
contend that he was denied an appropriate instruction or not pennitted to argue his theory
of the case. He styles his challenge solely as a sufficiency of the evidence argument and,
thus, that is our focus.
The evidence supported the verdict. The age-related elements are not in issue, nor
does Mr. Dutcher contend that his touching did not involve H.N.D.'s "sexual or intimate
parts." Instead, he simply asserts his alleged sleeping condition as the basis for establishing
that he acted without intent. However, our focus in reviewing ajury's verdict is on the
evidence in support of that verdict-in other words, the evidence supporting the State's
case. Green, 94 Wash. 2d at 222. That evidence squarely puts Mr. Dutcher awake and in
control of his actions. 2 The victim described the touching as purposeful. It was oriented
solely to her intimate bodily parts without additional contact that might support a theory of
unknowing behavior. Even more significantly, Mr. Dutcher's actions in thrusting his hips
against her strongly suggested that his purpose was sexual gratification, regardless of
whether he had removed his penis from his clothing.
The jury did not have to believe that Mr. Dutcher's actions were accidental or
without purpose. Indeed, his protestation to H.N.D. when she left the room strongly
I See State v. WR., No. 88341-6,2014 WL 5490399 (Wash. Oct. 30, 2014).
2Mr. Dutcher did not testify, so the only evidence that he was allegedly sleeping
came from his statements to others.
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No. 31820-6-111
State v. Dutcher
suggested that he was fully aware of his actions. Nonetheless, our focus is on what the
State proved rather than what the defense argued. Here, the victim described purposeful
acts of intimate contact that belied the defendant's argument and supported the jury's
determination about the purpose ofthe behavior.
The evidence supported the jury's verdict.
Unanimity Instruction
Mr. Dutcher argues that H.N.D. described multiple instances of sexual contact and
that the court therefore erred by failing to instruct the jury on the need to be unanimous in
its view of what action occurred. We believe a commonsense view of the evidence
establishes that this was one continuing course of conduct and the court did not err in its
instruction.
Only a unanimous jury can return a "guilty" verdict in a criminal case. State v.
Camarillo, 115 Wn.2d 60,63, 794 P.2d 850 (1990). Where the evidence shows multiple
acts occurred that could constitute the charged offense, the State must either elect which act
it relies upon or the jury must be instructed that it must unanimously agree upon which act
it found. State v. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984). Constitutional error
occurs if there is no election and no unanimity instruction is given. State v. Bobenhouse,
166 Wn.2d 881,893,214 PJd 907 (2009); State v. Kitchen, 110 Wn.2d 403,411, 756 P.2d
105 (1988). This type of error requires a new trial unless shown to be harmless beyond a
reasonable doubt. Camarillo, 115 Wash. 2d at 64.
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No. 31820-6-111
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However, no election or unanimity instruction is needed if the defendant's acts were
part of a continuing course of conduct. State v. Handran, 113 Wash. 2d 11, 17, 775 P.2d 453
(1989). Appellate courts must "review the facts in a commonsense manner to decide whether
criminal conduct constitutes one continuing act." State v. Fiallo-Lopez, 78 Wash. App. 717,
724, 899 P .2d 1294 (1995). A continuing course of conduct exists when actions promote one
objective and occur at the same time and place. Petrich, 101 Wash. 2d at 571; State v. Love,
80 Wash. App. 357, 361, 908 P.2d 395 (1996).3
That is the situation here. All of the acts of child molestation occurred at the same
time and place-just moments apart in the victim's bedroom. All of these brief incidents
of sexual touching were done for the same purpose of achieving Mr. Dutcher's sexual
gratification. A commonsense view of this evidence confirms that there was one
continuing course of criminal conduct. The jury did not need to parse this episode down
into its individual components. It was one incident and there was no need for either an
election or a unanimity instruction.
The jury was properly instructed. There was no Petrich violation.
3 A continuing course of conduct also exists when the charged criminal behavior is
an "ongoing enterprise." State v. Gooden, 51 Wn. App. 615,620, 754 P.2d 1000 (1988)
(promoting prostitution was ongoing enterprise).
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No. 31820-6-III
State v. Dutcher
Sentencing Conditions
Mr. Dutcher also argues that the trial court erred by imposing two of its sentencing
conditions. He challenges the condition that he not possess pornography as well as the
condition that he submit to plethysmograph testing at the direction of his CCO. The State
concedes that the first condition is improper, but argues that the second challenge is not
yet ripe. We accept the concession and remand to clarifY the judgment and sentence.
We agree with the parties that the no possession of pornography condition is
unconstitutionally vague. State v. Bahl, 164 Wash. 2d 739, 752-53, 193 P.3d 678 (2008).
Although it would be possible to remedy the condition by more explicitly describing the
prohibited behavior in the judgment and sentence, the parties simply ask that the
condition be stricken rather than corrected. We therefore direct the trial court to strike
the condition.
Mr. Dutcher contends that the trial court impermissibly empowered the CCO to order
plethysmograph monitoring. In State v. Riles, 135 Wash. 2d 326, 345, 957 P.2d 655 (1998),
the court concluded that plethysmograph testing could be ordered to support treatment or
other affirmative obligations imposed on an offender, but could not be used merely to
monitor compliance with sentence conditions. Mr. Dutcher was directed to enter into
treatment counseling as directed by his CCO. Clerk's Papers at 80. He apparently fears
that the CCO might require plethysmograph monitoring without imposing the treatment
counseling.
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No. 31820-6-111
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There is nothing in this record to suggest that the assigned CCO will violate his or
her obligations under the law and order monitoring without treatment. Since there is no
factual basis for believing the condition is improper, we doubt this issue is ripe for
review. State v. Valencia, 169 Wash. 2d 782, 788-89, 239 P.3d 1059 (2010). Nonetheless,
because we are remanding the matter to strike the pornography condition, we also direct
the trial court to clarify that a CCO can only order plethysmograph testing at the direction
of the treatment provider.
Affirmed and remanded.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
r~mo,J.
WE CONCUR:
J.
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