                                                                                                                      FILE
                                                                                                              COURT OF APPEALS
                                                                                                                    DIVISION II
                                                                                                           2015 JAN : 6 A11 9: 35

                                                                                                             STAT

                                                                                                             BY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                              DIVISION II

 STATE OF WASHINGTON,                                                                     No. 44709 -6 -II


                                                   Respondent,


                v.



 REBECCA JEAN BALE,                                                                 UNPUBLISHED OPINION


                                                   Appellant.


            SUTTON, J. —             Rebecca Jean Bale appeals her stipulated facts bench trial conviction for

attempted child molestation                       in the first degree.    She argues the trial court erred in denying her

motion      to       acquit   by    reason of      insanity. Even though Bale was able to perceive the nature of her

actions and able to tell right from wrong, she contends she was insane because she did not
                                         1
understand            the " quality "        of   her   actions.   Substantial evidence supports the trial court' s finding

that Bale had the ability to perceive the " quality" of her actions; therefore, we affirm.

                                                                     FACTS


                                                               I. BACKGROUND


            Bale has a history of mental health issues and a diagnosis of schizoaffective disorder,

bipolar type. On February 14, 2012, Bale invited her eight -year -old neighbor to her apartment for



1,
     Br.   of   Appellant      at   6.
No. 44709 -6 -II



some candy, shut and locked the door, forced the child into a chair, removed her own pants, and

then pulled down the child' s pants. The child pulled her pants back up and fled Bale' s apartment.

Bale followed the girl to her apartment and remained outside for a short time before returning to

her own apartment. Meanwhile, the girl' s mother called the police.


         When the police officers contacted Bale at her apartment, Bale gave them a false name.

Bale told the officers that she did not know any little girl and later denied having had the girl in

her apartment. Bale suddenly remembered the girl, however, when one of the officers told her that

she had seen Bale knocking on the girl' s door a few minutes earlier. Bale continued to deny that

the girl had been in her apartment. At one point, Bale admitted she had given the girl some cereal

and   they had been sitting    on      the   couch       watching the    movie   Pirates of the Caribbean. When the


officer specifically asked Bale why she had pushed the girl back on the couch and attempted to

pull her pants down, Bale said she did it but did not touch the child. When Bale realized what she

had just   said, she reiterated   that       she   did   not "   do anything."   Clerk' s Papers ( CP) at 19.


                                                          II. PROCEDURE


         The State   charged      Bale       with    attempted       first degree   child molestation.   The trial court


granted Bale' s request for a competency evaluation and an evaluation of her " sanity at the time of

the   alleged offense."   CP      at   43.     The trial court found Bale competent to stand trial.2 On the

separate issue of insanity, Bale obtained an independent evaluation from forensic psychologist Dr.

Mark Bennett Whitehill. Based on this evaluation, Bale moved for acquittal on grounds of insanity

at the time of the offense. She argued that she had established, by a preponderance of the evidence,




 2 Bale does not challenge the trial court' s competency finding.

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No. 44709 -6 -II



that at the time of the offense, she was so affected by a mental disease or defect that she was unable

 1)    to perceive the nature and quality of the charged act, or ( 2) to tell right from wrong with

reference to the charged act. RCW 9A. 12. 010. The trial court held an evidentiary hearing on the

motion to acquit.


                                    A. Testimony and Examination Reports

                                                      1.        Dr. Whitehill


           Dr. Whitehill testified for Bale at the hearing on the motion to acquit; his testimony was

consistent with     his   report.   He testified that Bale suffered from schizoaffective disorder, bipolar

type; that she was not taking her medication at the time of the incident; and that she was

                    an    acute   psychotic     state"          at    the time     of   the   incident.    Verbatim Report of
experiencing "


Proceedings ( VRP) ( Nov. 28, 2012) at 11.


           Dr. Whitehill testified that when he interviewed Bale, she told him that on the day of the

incident, she had been receiving " messages" from her television while watching the movie Pirates

of the Caribbean. VRP ( Nov. 28, 2012)                     at   11.       These " messages" told her " that she had to rape,


pillage, and plunder."          VRP (Nov. 28, 2012)                  at   11.   At the same time, she also believed that the


      thought police, '   an apparent reference to George Orwell' s novel, 1984,3 " were able to read her

thoughts      and read    her   mind"   and   that   they        were also       communicating      with   her. VRP ( Nov. 28,


2012) at11.




 3 G. ORWELL, 1984 ( 1932).



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No. 44709 -6 -II



         Bale also told Dr. Whitehill that she had concluded she would not be able to " pillage and

plunder "4 because " it might be dangerous for her "5 and the victim or victims " might harm her in

                6
some    way. "      She decided   she might     be   able   to "   rape,"   so she lured the neighbor child into her


apartment by offering the girl some candy. VRP (Nov. 28, 2012) at 12. In his report, Dr. Whitehall

stated that Bale told him that " she did not want to [ rape] the girl and that she recognized that it was


something wrong."         CP at 87. She said she was afraid that she or her family would be tortured and

killed if she did not comply with the voices she heard from the movie she had been watching.

         In both his report and testimony, Dr. Whitehill concluded that at the time of the offense

Bale   was "   legally   insane," because her delusional state rendered her unable to perceive the nature


and quality of her behavior. VRP ( Nov. 28, 2012) at 27. He conceded, however, that Bale knew

the " physical" 7 nature of actions ( that she was interacting with a child, rather than " an object, "8
                                              9
and   that she was attempting to "     rape "     the   child).    Dr. Whitehill opined that Bale would not have


been able to " recognize either the legal consequences of her behavior, or the level of harmfulness

of   her behavior, ...     the quality of her behavior, what exactly she was doing, and its impact was

compromised to the point where she was unable to perceive [ the] nature and quality" of the act.




4 VRP ( Nov. 28, 2012) at 11.

5 VRP (Nov. 28, 2012) at 44.

6 VRP (Nov. 28, 2012) at 44.

7VRP( Nov. 28, 2012) at37.

8 VRP (Nov. 28, 2012) at 30.

9 VRP (Nov. 28, 2012) at 29.


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No. 44709 -6 -I1



VRP ( Nov. 28, 2012)             at   28.   He further opined that he did not believe that Bale " was able to


formulate any appreciation of the degree of harmfulness" because " her behavior was guided at the

time ...     by   prominent     delusions     about   her    need   to   commit   this act."   VRP ( Nov. 28, 2012) at 31.


           On cross -examination, Dr. Whitehill testified that Bale could distinguish right from wrong

at the time of the incident and that she knew what she was doing was wrong. He agreed that Bale

had " lied" to the police when they contacted her. 10 VRP (Nov. 28, 2012) at 37. Dr. Whitehill also

reiterated that he believed that the definition of "nature and quality" included an appreciation of

the   act' s "    moral     significance,"    the "   appreciation       of   harm,"   and /or    the " appreciation of legal


consequences."            VRP ( Nov. 28, 2012)          at   39.    He believed that "[ t] o       appreciate   the quality,"   a




person had to have " some recognition of what the behavior is about, how it' s regarded, and what

could    happen."       VRP ( Nov. 28, 2012)           at   39. And he reasserted his belief that Bale' s delusional


condition prevented her from having such recognition.

                                                       2. Dr. Hendrickson


            Forensic psychologist Dr. Ray Hendrickson, evaluated Bale at Western State Hospital,

submitted         an evaluation report, and           testified    for the State.      Dr. Hendrickson agreed that. Bale


suffered from schizoaffective disorder, bipolar type, and that she was delusional at the time of the


incident; and he generally agreed with Dr. Whitehill' s characterization of what happened during

the incident. Dr. Hendrickson testified, however, that when he interviewed Bale, her description

of her     " beliefs"                        focused                 the "` thought                than on the movie she was
                        during that time                 more on                       police '




 1° Dr. Whitehill' s report suggested that Bale lied to the police because she believed they were the
  thought        police."   CP at 88.




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No. 44709 -6 -II



watching.     VRP ( Nov. 28, 2012)             at   54.    Bale told Dr. Hendrickson that she had to do what the


  thought    police '      wanted her to do or she or her family would be harmed. VRP (Nov. 28, 2012)

at 54.


          Dr. Hendrickson opined that Bale " had the capacity to know what she was doing at the

time" and that " she certainly was able to perceive the nature of the act, meaning she knew what

she was    doing."       VRP ( Nov. 28, 2012)             at   56, 57.     But Dr. Hendrickson was unwilling to give an

opinion as to whether Bale understood the " quality" of her act because he believed that this was

 more of    a legal       question   than    a psychological question, which [ was]                    obviously ...    beyond the


scope of [his] examination and opinion[ s]                     that [ he   was]   offering." VRP (Nov. 28, 2012) at 58.


          Dr. Hendrickson testified that this case was difficult because of Bale' s delusional belief

system, which " incorporate[           d]   a whole   legal      system."      VRP (Nov. 28, 2012) at 59. He opined that


 within    the   adopted     legal   system she was            adhering to, [     her actions] made perfectly good sense to

her, even though if you contrast that to the legal system in which we operate and we know about,

there certainly     is    a contrast."      VRP ( Nov. 28, 2012) at 59. Dr. Hendrickson noted,

          She described the behavior that she engaged in as being necessary in this belief
          system     to    reach   this higher      goal,      and   that if   she   did   not [   act],   that the " thought

          police" would harm her or her family, so that was part of this fixed delusional belief
          that she had, at least that she expressed to me.


VRP (Nov. 28, 2012) at 60.


           In his report, Dr. Hendrickson stated that Bale told him that the messages she was receiving

told her "`[ t] o    murder '        and that she had attempted to resist these messages on the day of the

 incident, but    she was "`       afraid [ the thought police] would torture [ her], kill [her] if [she] didn' t do

 it. '   CP at 102. He also stated:




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No. 44709 -6 -II




           Bale]    stated      the   messages         told      her to do things, "       They said to rape, pillage, and
         plunder ...         I thought I      was supposed               to do that ...     but I was afraid to go outside .
            it   was    dark. I thought           of   going to      a neighbor,         but they   were adults ...        I thought
         I might get hurt. I thought of the little girl downstairs, I told her I had some candy
         for her ... she was eight years old. She had been my neighbor for a while. I thought
         she needed candy. I gave her a variety of candy. I stopped giving her candy .. .

         my brother said it was dangerous giving candy to kids ...         because if something
         happened I could get in trouble."


         She     continued, "         I   made an o ffer [ of            candy] but I      was   lying ...     just trying to do
         something bad ...                but it didn' t seem bad because it was what I was supposed to do
                 the thought police were telling me to do those things.

CP at 102 -03 ( some alterations in original).


         Bale admitted to Dr. Hendrickson that she had lied to the police, but she asserted that she

was "` confused about what [ she] was supposed                              to say [;     she] had to lie to the thought police .. .


tell the truth to the        real     police. '        CP   at    103.    When he asked Bale about why she had to " do the

opposite with       the ` thought          police,'"        Bale told him, "` Because the government controls you .. .


you' re supposed        to   move and corrupt               things ...      to    go   up the ladder. '      CP   at   103.    She continued,



stating that      when a person " reached                    the top       of    the ladder [    by doing     bad things], ` You are in


charge.'     CP    at   103 (   alterations       in   original).        She also stated that even if she had realized the police


were   the "`    real police, "' she would              have lied to them because                she was "'    too     scared. '   CP at 103.


In   addition,    Bale told Dr. Hendrickson, "` If                       I do good things and don' t watch TV or do anything,

                                    torture    you ...           they     would     take your     family     away ...         torture them.   I
they   would come            and




recognize the things are bad, but to the rest of the world they were not bad. This was my delusional

belief. "' CP at 103.


           In evaluating whether Bale was aware of the legal consequences of her actions, Dr.

Hendrickson concluded that Bale was " apparently conflicted about what her actions might mean,"




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No. 44709 -6 -II




she wanted to avoid being tortured and killed by the thought police and to keep her family safe

from them,      she was also aware        of "the   victim' s circumstances."               CP at 63. Despite this awareness,


Bale was " apparently focused on her own survival, in accordance with her stated delusional belief,

and not   necessarily     on   the   plight of   the   victim."     CP at 63.


          Dr. Hendrickson' s report also stated that when evaluating the ability to know right from

wrong with respect. to acts charged, the focus was a legal, as opposed to a moral one, and that

Bale' s actions were based on her delusional belief "regarding a society that required one to act

contrary to the     normal moral /legal          dictates."     CP       at   63.    Despite her delusions, his report stated


that   at some    level Bale      understood      the    societal /legal norms             for   our   society.   Dr. Hendrickson


concluded that Bale' s " impulse control, her ability to accurately perceive reality, and her ability to

                                                       her                      significantly limited             impaired."   CP at
rationally foresee the         consequences of               actions was                                    and




64.


                               B. Trial Court' s Rulings and Subsequent Proceedings


          The trial   court             ruled   that ( 1) Bale      suffered        from   a mental    disease; ( 2) she committed
                               orally


the act of attempted sexual molestation on February 14, 2012; and ( 3) at that time she was able to

tell   right   from wrong       and   knew her      actions were          wrong.       The remaining question was whether

Bale    was "   unable to perceive the nature and quality of the act with which she [ was] charged."

VRP ( Nov. 30, 2012) at 80.


          Addressing this element, the trial court first concluded that, under State v. Jamison, 94

Wn.2d 663, 665, 619 P. 2d 352 ( 1980),                 Bale had to show that she was incapable of perceiving the

nature and      quality   of   her    actions, not. just     that   her   perception was compromised               or limited. The


trial court found that Bale' s behavior was inconsistent with her contention that she was just



                                                                     8
No. 44709 -6 -II




attempting to          protect   herself   or   her     family.     The trial court found that although Bale had a


significant impairment, she failed to prove that she was " unable to perceive the nature and quality

of   the   act" with which she [ was]           charged.    VRP ( Nov. 30, 2012)          at   83. The trial court also found


that Bale' s actions of luring the child, removing the child to a private location, and lying to the

police demonstrated she knew what she was doing was wrong under the law or general social

mores. 11

            Bale waived her right to a jury trial and agreed to a bench trial. Bale stipulated to the facts

in the police report and child interview report, which are set out above, and agreed that those facts

established       her   guilt,   but   she preserved      the issue    of    her   insanity   defense.   The trial court found


Bale guilty of attempted first degree child molestation. Bale appeals.

                                                            ANALYSIS


            Bale argues that the trial court erred when it denied her motion to acquit on grounds of


insanity. She contends that the evidence does not support the trial court' s finding that she was able

to perceive the " quality" of her actions. Br. of Appellant at 7. Her argument fails.




11 The parties later consented to having another judge sign written findings of fact and conclusions
of   law    on   the    motion   to    acquit   because the       original   judge    was no    longer   available.   Because a

successor judge lacks the authority to enter findings of fact based on testimony heard by a
predecessor judge, we do not consider these written findings of fact and conclusions of law. RCW
                re Marriage of Crosetto, 101 Wn. App. 89, 95 -96, 1 P. 3d 1180 ( 2000).
2. 28. 030( 2); In                                                                         Instead,
because no written findings of fact and conclusions of law are required when a trial court denies a
motion for acquittal on grounds of insanity, on review, we consider only the original court' s oral
ruling.      RCW 10. 77. 080; State              v.    McDonald, 89 Wn.2d 256, 267 -68, 571 P. 2d 930 ( 1977),
overruled        in part   on other grounds           by State v. Sommerville, 111 Wn.2d 524, 760 P. 2d 932 ( 1988).
No. 44709 -6 -II



                                                I. STANDARD OF REVIEW


          We review a trial court' s findings of fact on a motion to acquit on grounds of insanity for

substantial evidence.        We then determine whether these findings support the trial court' s legal


conclusion that the defendant has failed to prove insanity by a preponderance of the evidence.

State   v.    Chanthabouly,        164 Wn.      App.   104,   128 -29, 262 P. 3d 144 ( 2011) (         citing State v.

Sommerville, 111 Wn.2d 524, 533 -34, 760 P. 2d 932 ( 1988)), review denied, 173 Wn.2d 1018


 2012).      We   consider   any   unchallenged     findings   of   fact to be   verities on appeal.   Chanthabouly,

164 Wn. App. at 129 ( citing State v. Shaver, 116 Wn. App. 375, 380, 65 P. 3d 688 ( 2003)).

          Substantial evidence exists if the record contains evidence of sufficient quantity to

persuade a fair -minded, rational person of the truth of the declared premise. State v. Thetford, 109

Wn.2d 392, 396, 745 P. 2d 496 ( 1987). The fact finder must weigh the evidence and determine the


credibility     of witnesses.   State   v.   Jeannotte, 133 Wn.2d 847, 853, 947 P. 2d 1192 ( 1997). We leave


the weight      given an expert' s conclusions         to the fact finder.   State v. Lord, 117 Wn.2d 829, 854,


822 P. 2d 177 ( 1991), cent. denied, 506 U.S. 856 ( 1992).


                                II. MOTION TO ACQUIT ON GROUNDS OF INSANITY


          A defendant in a criminal trial may move the trial court for a judgment of acquittal on the

grounds of insanity under RCW 10. 77. 080. At this hearing, defendant has the burden of proving

by a preponderance of the evidence that he or she was insane at the time of the offense or offenses

with which he or she is charged. RCW 10. 77. 080.


             To establish the defense of insanity, it must be shown that:

              1) At the time of the commission of the offense, as a result of mental disease or
             defect, the mind of the actor was affected to such an extent that:




                                                              10
No. 44709 -6 -II



          a) He or she was unable to perceive the nature and quality of the act with which
         he or she is charged; or


          b) He or she was unable to tell right from wrong with reference to the particular
         act charged.




RCW 9A. 12. 010( 1) (       emphasis added).              The term " unable" means incapable, not merely possessed

of   limited capacity —significant impairment is not sufficient. Jamison, 94 Wn.2d at 665.


         Bale argues the evidence does not support the trial court' s finding that she was able to
                                                         12
 appreciate     the quality      of   her   actions. "        Br.   of   Appellant      at   7.   She contends that the " quality" of

an act refers   to " the   characteristics or          features ...       of the act."       Br. of Appellant at 8 ( citing Merriam -

Webster. com     ( accessed       10/ 30/ 13)).        She does not contend the evidence fails to establish that she




12 Bale also appears to argue that because Dr. Whitehill concluded that Bale did not appreciate the
 quality" ofher actions and Dr. Hendrickson refused to give an opinion as to that issue, she proved
insanity by     a preponderance of               the   evidence.         Br.   of   Appellant      at   9. This argument lacks merit
because the trial court, as the fact finder, was not bound by Dr. Whitehill' s or Dr. Hendrickson' s
expert opinions and was free to evaluate the evidence as a whole and come to its own conclusion
on this issue. See Lord, 117 Wn.2d at 854.
       In addition, Bale appears to argue that written finding of fact 2 must be vacated because
nothing in the record suggests that she attempted to touch the child for sexual gratification. RCW
9A. 44. 010( 2) ("    Sexual contact' means 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. 083 ( first degree        child molestation requires sexual contact).                            The State does not discuss this
argument.       But on appeal Bale is challenging only the trial court' s denial of her motion to acquit
by reason of insanity. See Br. of Appellant at 10 ( citing Clerk' s Papers at 9 ( Findings of Fact and
Conclusions      of   Law   on   Motion to Acquit)). And for purposes of that motion she had to " admit[ ]
to   having   committed      the      act   in   question."    12 WASHINGTON PRACTICE:                          CRIMINAL PRACTICE AND
PROCEDURE § 1010,           at   198 -99 ( 3d Ed.). Bale does not challenge the findings of fact or conclusions
of law related to her conviction. Thus, the only question before us at this time is whether the trial
court erred in denying Bale' s motion to acquit on grounds of insanity. Accordingly, even if we

were to consider the written findings of fact, we do not address this issue further.




                                                                         11
No. 44709 -6 -I1



was able to perceive the " nature "13 of her actions or that she was able to tell right from wrong with

reference to this particular act. 14

             Even presuming, but not deciding, that the inability to perceive the " quality" of an act alone

can establish insanity, there was sufficient evidence to establish that Bale understood the " quality"

of    her   actions under        the definition         of " quality"        she provides.        Bale invited the child up to her

apartment       for the    purpose of "rap[           ing]"    her. VRP ( Nov. 28, 2012)            at   12. She took steps towards


achieving that goal by pulling the child' s pants down. Bale took steps to avoid being detected by

luring the child to her apartment away from others, by locking the door, and by later lying to the

police. She intentionally chose a vulnerable child victim rather than attempt to " rape, pillage, and

plunder" an adult          specifically to           avoid    the   risk   that a   victim would    harm her. CP       at   102. She had


previously ceased giving the child candy after her brother warned her that it was behavior that she
could " get       in trouble" for if something happened to the                          child.    CP   at   103.    She admitted to Dr.


Hendrickson that               she   knew     what     the   voices were         directing   her to do      was "   bad "15 and that she


believed the voices were requiring her to do things that were the opposite of what society

demands. 16 Substantial evidence supports the trial court' s oral finding that Bale knew her acts



13 Br. of Appellant at 6.

14
      Bale    asserts    there are three        ways     to          insanity —by establishing ( 1) she was unable to
                                                               establish

perceive       the     nature of     her   act, (   2) she was unable to perceive the quality of her act, or ( 3) she was
unable       to tell   right   from wrong       with reference         to the    act —she    provides no citation for this assertion.


 15 CP at 103.

 16
      Dr. Hendrickson           stated     in his    report, "   At   some    level, [ Bale]     appeared to have an understanding
of the societal /legal norms                for behavior in         our    society," and he expressed that Bale felt compelled
to behave inconsistently with what she knew were the societal /legal expectations in order to
 accommodate            her overlying " delusional belief                  system."    CP at 63.



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No. 44709 -6 -II




were either legally or morally wrong and that they had consequences for both her and the victim,

and, therefore, Bale had the ability to perceive the " quality" of her actions.

          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 in accordance with RCW 2. 06. 040,

it is so ordered.




                                                        94 Pah"          C
                                                        J. Sutton
 We concur:




    orswick, C. J.




Lee, J.




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