                                                                FILED
                                                              Aug. 11, 2016
                                                      In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division Ill


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            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                              II
                               DIVISION THREE                                                 I

STATE OF WASHINGTON,                           )       No. 33049-4-111                        I
                     Respondent,
                                               )
                                               )
                                               )
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       V.                                      )       UNPUBLISHED OPINION                    f
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TANNER FUSTON,                                 )
                                                                                              f
                                               )                                              I
                     Appellant.                )                                              I
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       PENNELL,   J. -Tanner Fuston appeals his conviction for first degree child             f
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molestation, which was sustained after a stipulated facts trial. Although there was           ll
sufficient evidence to justify the conviction, we largely agree with Mr. Fuston's

contentions. We therefore remand to the juvenile court for additional findings and

vacation of one of the orders of protection.
No. 33049-4-III
State v. Fuston


                                          FACTS

       The State charged twelve-year-old Tanner Fuston with two counts of first degree

child molestation, based on allegations of sexual misconduct against two minor children,

C.B. and A.B. The juvenile court entered a sexual assault protection order prohibiting

Mr. Fuston from having contact with both children. This order expired on February 7,

2016. In August 2014, Mr. Fuston and the State entered into a 24-month stipulated order

of continuance of the charges. At that time, the State also agreed to dismiss the charge

relating to A.B.

       After finding Mr. Fuston did not comply with the conditions in the stipulated order

of continuance, the juvenile court revoked the order. Following a stipulated facts bench

trial where only the police reports and an interview with the child forensic interviewer

were admitted into evidence, the juvenile court found Mr. Fuston guilty of one count of

first degree child molestation. Mr. Fuston appeals.

                                        ANALYSIS

Sufficiency of the Findings of Fact

       Mr. Fuston contends the juvenile court's findings of fact are insufficient to support

his conviction because they lack a finding on sexual gratification, an ultimate fact as to an




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No. 33049-4-III
State v. Fuston


essential element-sexual contact-of first degree child molestation. 1 The juvenile court

convicted Mr. Fuston following an adjudicatory hearing. The State must prove each

element of the charged crime beyond a reasonable doubt. State v. Alvarez, 128 Wn.2d 1,

13, 904 P.2d 754 (1995). This court reviews a juvenile court's adjudication by

determining whether substantial evidence supports the court's findings of fact and

whether the findings of fact support the conclusions oflaw. State v. B.J.S., 140 Wn. App.

91, 97, 169 P.3d 34 (2007). Conclusions oflaw are reviewed de novo. State v. A.M, 163

Wn. App. 414,419,260 P.3d 229 (2011).

       A person is guilty of first degree child molestation "when the person has ... 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."

RCW 9A.44.083(1). "Sexual contact" is "any touching of the sexual or other intimate

parts of a person done for the purpose of gratifying sexual desire of either party .... "

RCW 9A.44.0I0(2). "Sexual gratification" is thus not an essential element to the crime


       1
         Conclusion of law 1, where the juvenile court partly concluded "[Tanner] Fuston
had sexual contact [with] CB," is more properly considered a finding of fact. Clerk's         I
Papers at 54; see State v. TE.H, 91 Wn. App. 908, 915, 960 P.2d 441 (1998) (a
conclusion of law finding that the juvenile had sexual contact with the victim was more       I
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properly labeled as a finding of fact); Willener v. Sweeting, 107 Wn.2d 388,394, 730
P.2d 45 (1986) (this court reviews findings of fact wrongly labeled as conclusions oflaw
as findings of fact).

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No. 33049-4-111
State v. Fuston


of first degree child molestation but instead merely a definition that serves to clarify the

meaning of the essential element "sexual contact." State v. Lorenz, 152 Wn.2d 22, 34-35,

93 P.3d 133 (2004).

       Regarding the juvenile court's decision, JuCR 7.1 l(d) requires the court enter

written findings of ultimate facts with respect to each element of the crime. 2 The

language of JuCR 7.1 l(d) is mandatory. State v. Avila, 102 Wn. App. 882, 896, 10 P.3d

486 (2000). The juvenile court's written findings of fact and conclusions of law must

state with specificity the ultimate facts necessary to support a conviction. Alvarez, 128




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Wn.2d at 17. "Ultimate facts" are facts "which are necessary to determine issues in case,

as distinguished from evidentiary facts supporting them. The logical conclusions deduced

from certain primary evidentiary facts. Final facts required to establish plaintiffs cause

of action or defendant's defense." Id. at 15 n.15 (quoting BLACK'S LAW DICTIONARY

1522 (6th ed. 1990)).

       For support, Mr. Fuston primarily relies on State v. BJS, 72 Wn. App. 368, 864

P.2d 432 (1994), abrogated by State v. Lorenz, 152 Wn.2d 22, 93 P.3d 133 (2004). In




       2  In relevant part, the text of JuCR 7.1 l(d) provides: "The court shall enter written
findings and conclusions in a case that is appealed. The findings shall state the ultimate
facts as to each element of the crime and the evidence upon which the court relied in
reaching its decision."

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No. 33049-4-III
State v. Fuston


BJS, the court reversed the juvenile's conviction for first degree child molestation

because the facts set forth in the written findings failed to address whether the acts were

done for the purpose of gratifying sexual desire. Id. at 372. The court noted that while it

may be reasonable to assume the acts were done for sexual gratification based on the

nature of the contact, appellate courts cannot weigh the evidence or enter findings of fact.

Id.

       Lorenz abrogated BJS, stating the BJS court conflated sexual gratification, an

ultimate fact, with sexual contact, an essential element. Lorenz, 152 Wn.2d at 32.

However, the Lorenz court went on to find the result reached in BJS was not erroneous as

"it was appropriate to require the finding of sexual gratification because it was an

ultimate fact as to the essential element of sexual contact." Id. Accordingly, the juvenile

court here committed error when it did not include a finding of the ultimate facts it relied

on to support its conclusion that Mr. Fuston acted for the purpose of sexual gratification.

       Mr. Fuston argues the appropriate remedy for such error is reversal and dismissal.

When the evidence is sufficient to support an adjudication of guilt but the juvenile court's

findings are deficient, we will remand for revision of the findings. Alvarez, 128 Wn.2d at

19. The evidence here meets this standard. On remand, new findings and conclusions

must be based on the evidence already taken. Avila, l 02 Wn. App. at 897.


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No. 33049-4-111
State v. Fuston


Ineffective Assistance of Counsel

       Mr. Fuston contends defense counsel's failure to move to vacate the sexual assault

protection order for A.B. constitutes ineffective assistance of counsel. RCW 7.90.150

authorizes the court to issue a sexual assault protection order in conjunction with criminal

charges, but that order "shall terminate if the defendant is acquitted or the charges are

dismissed." RCW 7.90.150(2)(b). Here, the sexual assault protection order for the

children expired during the pendency of Mr. Fuston's appeal, on February 7, 2016. The

State agrees remand is needed to allow the juvenile court to vacate the sexual assault

protection order relating to A.B. While the expiration of the order seemingly raises a

question of mootness, there is currently legislation pending that would allow for (1)

permanent sexual assault protection orders and (2) modification of the procedure for

renewal of a sexual assault protection order, placing the burden of proof for nonrenewal

ofan order on the perpetrator instead of the victim. H.B. REP. on S.B. 6151, 64th Leg.,

Reg. Sess. (Wash. 2016). Because of this, and because the State agrees with Mr. Fuston

as to the remedy, remand is appropriate and there is no need to analyze whether Mr.

Fuston received ineffective assistance of counsel.




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No. 33049-4-111
State v. Fuston


Statement of Additional Grounds

       In a Statement of Additional Grounds, Mr. Fuston complains about a video

watched by the judge. It is unclear what video is the source of concern. If Mr. Fuston is

referring to C.B. 's forensic interview, there was no error. Mr. Fuston agreed to admission

of that interview in the stipulated order of continuance. If it was a different video, there

is nothing in the record to permit our consideration on direct review. State v. McFarland,

127 Wn.2d 322,335,899 P.2d 1251 (1995).

       Based on the foregoing, this matter is remanded for entry of appropriate findings

of fact and for vacating the sexual assault protection order relating to A.B.

              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.


                                           Pennell, J.
WE CONCUR:




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