      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

                                                                                            11



CHRISTINE NORTON,                           ]      No. 69302-6-1
on behalf of L.T. and M.T.,                 ]


                       Respondent,          ]                                       Xs*     :;c-r-"
                                                   DIVISION ONE                     _*-     r^'r"
                                                                                       <5   t5cn
          v.



RUBEN TORRES,                               i      UNPUBLISHED OPINION

                       Appellant.           )      FILED: January 21, 2014

          Spearman, A.C.J. — Ruben Torres appeals the entry of a sexual assault

protection order against him based on insufficiency of the evidence. Concluding
the evidence is sufficient to support entry of the order, we affirm. We also deny

the respondents' requestfor attorney fees and costs pursuant to RAP 18.9.
                                         FACTS

          Mr. Torres is the paternal grandfather of L.T. and M.T., who are thirteen-

year-old identical twin sisters. The twins live with their mother, Christine Norton,
and their stepfather, Nicholas Norton. They have visitation with their biological
father pursuant to a parenting plan. The girls regularly spend time with their
extended family, including their paternal grandparents, during visits with their

father.

          In January 2012, L.T. and M.T. complained to their mother that they no
longer wished to visit their father. Ms. Norton told the girls that she had to follow
No. 69302-6-1/2


the parenting plan. When the girls became angry, Ms. Norton suggested that

they write letters to their father explaining why they wanted to stop visitation.

VRP at 68. The letters stated, in part:

       M.T.'s letter: Ruben is being very inappropriate and I really don't
       like it! If I went to the police, he could go to jail. I want him to stop.
       So the only way it would, would [sic] be to leave and not come on
       visits. I also have said I don't want to come and say my feelings but
       no one ever listens to what I say...Tela, Ruben, and Jessica can be
       rude and I explain what happens they get mad and say stop
       flapping and that's hurtful to me.

       L. T.'s letter: Ruben is being very inappropriate with me and I feel
       VERY uncomfortable with him.

Clerk's Papers (CP) at 10-11.

       After reading her daughters' letters, Ms. Norton became concerned. She

spoke with the girls, who told her they were uncomfortable about Mr. Torres

touching them "on their chest, their butt." Verbatim Report of Proceedings (VRP)

at 70. Ms. Norton asked her daughters if they had previously told anyone about

the touching. She testified:

       And I actually asked the girls have they told anyone about the
       incident, and they said yes. And I've always told them that if
       anything ever happens, if they're in trouble or anything like that,
       they need to at least tell two people. And they told two people that
       they thought they trusted, their grandmother and their father. They
       didn't tell me. And I asked them why they didn't tell me either and
       they said well, you told us to tell two people we trusted and we
       thought that, you know, that itwas, those two people would help us,
       would do something about it. And they, one said it was an accident
       and just blew it off, and the other one laughed at them, so.

VRP at 71-72. Ms. Norton also called the girls' father. She testified that he did not

believe his daughters' allegations: "he laughed at me, called me crazy              " VRP

at 71. Ms. Norton reported the allegations to the police who initiated a criminal
No. 69302-6-1/3


investigation. She also filed a petition in King County Superior Court asking the

court to enter a sexual assault protection order in favor of L.T. and M.T. and

against Mr. Torres.

        On August 21, 2012, the parties appeared, with counsel, for a hearing on

the petition. It was agreed that instead of hearing testimony from L.T. and M.T.,

the judge would watch a DVD recording of interviews of the girls conducted

during the criminal investigation by a child forensic interviewer.1. The judge also
heard testimony from Ms. Norton, Mr. Torres, and the girls' paternal

grandmother, Tela Torres.

        During the interview, when M.T. was asked if she knew why she was

being interviewed, she responded "[bjecause of my grandpa is being

inappropriate [sic]." VRP at 21. M.T. said that her grandfather touched her

inappropriately "[mjore than one [time]," that the touching started when she was

"little," and that it had occurred as recently as "a couple visits ago." VRP at 22.

M.T. described her grandfather's behavior: "he would like tickle me and like get

his hand down my shirt and go like that." VRP at 22. M.T. stated, "I would tell [my

grandma, Tela Torres] and she would just say it was an accident." VRP at 22.
The interviewer asked M.T. to describe the tickling in more detail:

        A: [M.T.]: He would like tickle me and then he would get his hand
        up my shirt and he would keep his hand there and Iwould push him
        away and I'd go tell someone.
        Q: [interviewer]: I want to hear all about the tickling, okay? Tell me
        how it would start. Tell me about this time, how it started.

        1Although a transcript ofthe audio portion ofthe DVD recording seen by the trial judge is
part of the record, the DVD itself is not.
No. 69302-6-1/4


      A: Like I would just be sitting on the couch and then he'd start like
      tickling my neck.
      Q: Uh hm.

      A: And then he would tickle my foot. And then he'd tickle my
      stomach and then he'd go up my shirt.... He'd like just do that and
      then I would tell him to stop.
      Q: Uh hm.
      A: And then I'd be like what are you doing? And he was like I'm not
      doing anything. I was like that's the girl's spot. Then he was like, he
      was like I didn't even do anything.

VRP at 23-24. The interviewer then asked for more detail about where M.T.'s

grandfather was tickling her; M.T. identified it as "[m]y chest." VRP at 24. She

explained that when his hand was up her shirt he would, "brush [his hand] back

and forth" on her chest. VRP at 24.

       L.T. stated that her grandfather's touching was only over her shirt. VRP at

53-54. Other than that, L.T.'s description was similar to M.T.'s. She told the

interviewer:

       Q [interviewer]: So tell me all about how he tickled up here. Tell me
       how he did that.
       A [L.T.]: He like tries, tickles my neck. And then he like to, goes
       more down.... He sort of goes down like to here and then like
       (inaudible).
       Q: And went down to your what?
       A: Boobs. . ..
       Q: Okay. And then what does he do when he gets down to your
       boobs?
       A: Well, and then I, I like run away. And my sister like tackles him.
       Well, not tackles him, but like starts to run away...And then like we
       go downstairs.
       Q: Okay. Okay. And where on your boobs did he do the tickling?
       A: Like right here.. ..
       Q: Okay In the middle of here?
       A: Yeah.
No. 69302-6-1/5


VRP at 52-53. Upon further questioning, L.T. explained what she meant when

she said M.T. "tackles him," as, "[w]ell, like, so like sort of pushing him to get him

like away from me." VRP at 56.

       The interviewer asked the girls if Mr. Torres touched their breasts other

than brushing back and forth against them in the context of tickling. M.T.

responded, "sometimes he like grabbed me ... and he says he's tickling my

neck, but I can feel him pushing on my boobs and I'm like stop doing that and

stuff." VRP at 34.

       The twins reported that, in addition to verbally telling Mr. Torres to stop,

they tried to make him stop in several ways. For example, M.T. said that when

"his hand was brushing back and forth" on her bare breasts: "I would like, would

take his hand and I'd take it away and then push his hand away. .. . Then I would

run away. ... Or sometimes I would just go to my room with [L.T.] and talk to

her." VRP at 24-25. "And he would do it again and stuff and he would be like

really mad and stuff. So when we, the last times we've been at our dad's with our

grandpa and stuff       [L.T.] and Iwould be with each other 24-7. And when he
would try to get near us, we would push him away and run down into our room

and lock the door. VRP 27-28. M.T. admitted, "when I'm at their house

sometimes, I, I want to run away. And actually we planned [on] running away."

VRP at 32.

       The twins each stated that they reported the touching to their father and

grandmother, but neither intervened. As M.T. put it, "my mom said if, when Iwas
little, that if anything bad happens to you, go tell an adult. And they tell you that at
No. 69302-6-1/6


school for like a week and stuff. . . . And then so I did, but they wouldn't listen to

me." VRP at 24. M.T. said that when Mr. Torres would touch her breasts, "I would

tell my grandma [Tela Torres] and she would just say it was an accident.. .. And

I would tell her that it was happening a lot. ... And she would just say it was an

accident." VRP at 22, 27, 58. L.T. reported, "One time my sister told my dad that

our grandpa was touching us in weird spots. And then he's like just laughing like

saying that she doesn't know what she's talking about." VRP at 49.

       At the hearing, the girls' grandmother denied that M.T. and L.T. ever

approached her to complain about the touching. Mr. Torres admitted to tickling

the girls, but denied ever touching them inappropriately. He claimed that when

the girls told him to stop tickling them, he did and they would "run off." VRP at 94.

He also admitted that one of the twins "jumped on [his] back and tried to peel

[him] off' while he was tickling the other twin. VRP at 95-96. Mr. Torres

characterized all of this as a "game" and "[n]othing sexually, nothing

inappropriate as they seem to believe at this point." VRP at 95.

       At the conclusion of the hearing, the judge stated:

       I have during the many years on the bench seen many
       victims of sexual abuse, both young and older.

       I will tell you that the demeanor that they showed me in the
       video was convincing. The demeanor certainly changed
       dramaticallythe instant there was any suggestion that the
       interviewer was getting close to the topic of the touching. It
       was striking.

VRP at 107. The judge then found:

       I do find that the touching did occur on the breasts of both
       girls, perhaps during tickling, that the issue was brought up
No. 69302-6-1/7


      and then it continued for some period of time. I don't find it
      unusual that the girls would have complained about it and that
      adults would have, I won't say made light of it, but had
      brushed it off as something that was of no consequence. But
      the court finds that it did happen, and the court will enter a
      sexual assault protection order.

In its written order the trial court "found by a preponderance of the evidence that

the petitioner has been a victim of nonconsensual sexual conduct or

nonconsensual sexual penetration by the respondent." CP at 14.

       Mr. Torres appeals.

                                       DISCUSSION

       Under chapter 7.90 RCW, the Sexual Assault Protection Order Act, a

person may petition the court for an order protecting them from nonconsensual

sexual conduct. RCW 7.90.010(4) defines "sexual conduct" as "any" of six

categories ofconduct.2 Ms. Norton alleged that Mr. Torres had engaged in the
conduct described in subsections (4)(a) and (e):



        (4) "Sexual conduct" means any of the following:

           (a) Any intentional or knowing touching or fondling of the genitals,
        anus, or breasts, directly or indirectly, including through clothing;
           (b) Any intentional or knowing display of the genitals, anus, or
        breasts for the purposes of arousal or sexual gratification of the
        respondent;
           (c) Any intentional or knowing touching or fondling of the genitals,
        anus, or breasts, directly or indirectly, including through clothing, that
        the petitioner is forced to perform by another person or the respondent;
           (d) Any forced display of the petitioner's genitals, anus, or breasts for
        the purposes of arousal or sexual gratification of the respondent or
        others;
           (e) Any intentional or knowing touching of the clothed or unclothed
        body of a child under the age of thirteen, if done for the purpose of
        sexual gratification or arousal of the respondent or others; and
           (f) Any coerced or forced touching or fondling by a child under the
        age of thirteen, directly or indirectly, including through clothing, of the
        genitals, anus, or breasts of the respondent or others.
No. 69302-6-1/8


          (a) Any intentional or knowing touching or fondling of the
       genitals, anus, or breasts, directly or indirectly, including
       through clothing;

           (e) Any intentional or knowing touching of the clothed or
       unclothed body of a child under the age of thirteen, if done
       for the purpose of sexual gratification or arousal of the
       respondent or others;. . .

RCW 7.90.010(4). In its oral ruling, the trial court found that only the conduct

addressed under subsection (a) had been proved.

       Mr. Torres argues that the trial court's findings do not support entry of the

order because in the court's oral ruling it did not explicitly find that he intentionally

and knowingly touched the breasts of M.T. and L.T. He also asserts that even if

the court did make such a finding, the evidence in the record is insufficient to

support it. Mr. Torres contends that, at most, the evidence shows that he may

have accidentally touched the girls' breasts when he tickled them. We disagree

with both arguments.

       The final expression of the trial court's ruling is that set forth in its written

order. State v. Collins, 112 Wn.2d 303, 308, 771 P.2d 350 (1989). We may also

look to the trial court's oral ruling to supplement its written order. See e.g.,

Shelden v. Dep't of Licensing. 68 Wn. App. 681, 684-85, 845 P.2d 341 (1993);

Peoples National Bank of Washington v. Bimev's Enterprises. Inc.. 54 Wn. App.

668, 669-72, 775 P.2d 466 (1989). When reviewing a challenge to the sufficiency

of the evidence, we construe the evidence in the light most favorable to the

prevailing party. State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992).




                                            8
No. 69302-6-1/9


        In its oral ruling the trial court found "that the touching did occur on the

breasts of both girls." VRP at 107. Moreover, the statements by M.T. and L.T.,

which the trial court found to be credible, are more than sufficient to establish that

this touching was intentional and knowing.3 The girls stated repeatedly to the
child forensic interviewer that Mr. Torres had touched their breasts on several

occasions and that he would keep his hand on their breasts in spite of their

efforts to push it away. Even when the girls complained directly to Mr. Torres that

he was touching them inappropriately when he tickled them, he ignored their

requests to stop the conduct. Construing these together, the record sufficiently

supports the trial court's written order expressly finding that M.T and L.T. were

the victims of"nonconsensual sexual misconduct" by Mr. Torres.4 CP at 14.
        Once it has been proven by a preponderance of the evidence that the

alleged sexual misconduct has occurred, the statute mandates that the trial court

issue the protection order.5 RCW 7.90.090(1 )(a). The trial court did not err when
it did so in this case.




          3Mr. Torres moved to strike that portion of Ms. Norton's brief in which she argued that
the trial judge could confirm L.T.'s and M.T.'s verbal references to their "chest" and "boobs" by
observing their simultaneous physical gestures on the DVDs. Brief of Respondent at 15. He
contends the argument refers to matters outside the record because the DVDs are not part of the
record on appeal. We view Ms. Norton's argument only as an observation that, in assessing the
girls' credibility, the trial judge considered visible images as well as oral statements—a fact that is
not disputed on appeal. Accordingly, the motion is denied.
        4Itwas not disputed below that the touching was nonconsensual.
        5 RCW 7.90.090(1 )(a) provides in relevant part:
        If the court finds by a preponderance of the evidence that the petitioner
        has been a victim of nonconsensual sexual conduct or nonconsensual
        sexual penetration by the respondent, the court shall issue a sexual
        assault protection order;... (Emphasis added.)
No. 69302-6-1/10


       Ms. Norton requests an award of attorney fees and costs under RAP

18.9(a). The cited rule authorizes an appellate court, on its own initiative or on

motion of a party, to order a party who files a frivolous appeal to compensate the

opposing party for its attorney fees and costs associated with the appeal. "An

appeal is frivolous if, considering the entire record, the court is convinced that the

appeal presents no debatable issues upon which reasonable minds might differ

and that it is so devoid of merit that there is no possibility of reversal. And we

resolve all doubts to whether an appeal is frivolous in favor of the appellant." Lutz

Tile. Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007) (internal

citations omitted). We cannot conclude, on this record, that the appeal is so

totally without merit as to be frivolous. Accordingly, we decline to award attorney

fees and costs under RAP 18.9.

       Affirmed.




                                                      l4*XJ»*t~.. f\. CO .
WE CONCUR:




                                                   C^Wy^ J




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