                                                                                  FILED 

                                                                                FEB. 25, 2014 

                                                                      In the Office of tbe Clerk of Court
                                                                     WA State Court of Appeals, Division III




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

     STATE OF WASHINGTON,                           )
                                                    )         No.30717-4-III
                            Respondent,             )


I           v. 	
                                                    )
                                                    )
                                                    )


I	
j
~
     CHARLES ROLFE MOE, 	



            FEARING, J. -
                            Appellant. 	
                                                    )
                                                    )
                                                    )
                                                              UNPUBLISHED OPINION



                             The relationship between an older brother and younger brother is a

     .special relationship, one of solidarity, trust, and nurture. Sometimes.

            The trial court, after a bench trial, found Charles Moe guilty of second degree

     assault upon and indecent exposure towards his younger brother during two incidents in

     the summer of 20 11. In this appeal, Moe asserts the trial court committed three errors.

     First, Moe challenges his second degree assault conviction because of an. alibi defense.

     Second, Moe contends that-and the State concedes-insufficient evidence supported his

     indecent exposure conviction. Third, Moe contends that-and again the State

     concedes-the trial court improperly imposed $25 in attorney fees for recoupment. We

     affirm Moe's conviction for second degree assault and accept the State's concessions.
     No. 30717-4-III
     State v. Moe


                                            FACTS

            In December 2011, A.M.l disclosed to his parents two incidents from the past

     summer involving his older brother, Charles Rolfe Moe. A.M. was 13-years-old and

     Moe 17-years-old at the time of the episodes. A.M. is a special needs child with a low

     LQ. First, when the brothers were alone in the family's laundry room, Moe showed A.M.

     their father's sheathed hunting knife and stated that he wanted to cut off A.M.'smale

     appurtenance. Moe told A.M. to drop his pants. Second, while A.M., along with other

     children, swam in the family pool, Moe pulled down his shorts to expose his buttocks.

            The State charged Moe with assault in the second degree under RCW

     9AJ6.02I(l)(c) and indecent exposure under RCW 9A.88.01O(1) and (2)(b}-alleging

     that both occurred "[o]n or about or between June 1,2011 through August 1,2011."

     Clerk's Papers (CP) at 18. During trial, A.M. testified that the knife threat occurred in

     July 2011. He stated:

           Q: 	  Okay. And when did this take place?
           A: 	  The day?
           Q: 	  Yeah.
           A: 	  When, uhm ­
           Q: 	  Well, if you can't remember the exact date, give us a-like 

                 maybe a month? 

            A: 	 I don't know the date, it was a little close to--it was sometime 

                 in the summer. 

            Q: 	 Okay. Was that this past summer?
            A: 	 Yeah, this past summer.

1           1 Pursuant  to the General Order of this court dated June 15,2012, the victim in this
     case is referred to using only his initials.

I	                                                2


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No. 30717-4-II1
State v. Moe


       Q: 	 So 2011, okay. So it was sometime during the summer. 

            Do you remember if it was before or after the 4th of July? 

       A: 	 A little bit after the 4th of July.
       Q: 	 Okay, so sometime in the month of July 2011, this incident 

            in the laundry room at your house took place? 

       A: Yeah.

I Report of Proceedings (RP) at 90-91. 2

       Moe was incarcerated from June 30 to August 8, 2011. Since he was incarcerated

during the entire month of July, Moe claimed his incarceration provided him a complete

alibi for the assault charge. Disregarding A.M.'s more specific testimony, the trial court

found that "[t]he hunting knife incident occurred sometime during the summer of2011

when [the parents] left [the family residence] to go to the store." CP at 21. The trial

court acknowledged that this finding disregards part of A.M.'s testimony, "So I believe

that I can distinguish and find his-his recitation of what occurred, because he painted it

in great detail, I thought, is very credible. I'm much less concerned about when he says it

happened." 2 RP at 21-22.

       The court sentenced Charles Moe, for both offenses, to 25 weeks confinement.

The court also ordered Moe to pay $100 crime victims penalty assessment and $25 in

attorney fees for recoupment.




       2 There  are two verbatim reports of proceedings for this case. For ease, "1 RP"
refers to the proceedings on March 9 and 12,2012 and "2 RP" refers to the proceeding on
April 24 and May 3, 2012.

                                             3

No. 30717-4-III
State v. Moe


                              SECOND DEGREE ASSAULT

       Moe contends that the trial court erred by finding the hunting knife incident

occurred sometime during the summer of 2011. He argues the State's own evidence­

A.M.'s testimony that the assault occurred in July 2011-precludes the more general

finding that it occurred sometime that summer. In turn, Moe desires the conviction to be

overturned since he could not possibly have threatened his brother at home during a time

he sat in state confinement. The arguments raise two distinct questions. First, may the

trial court, after a bench trial, find that the crime occurred at some indefinite time during

a three-month period? Conversely, must the trial court identify a narrower range of time

during which the crime occurred? Second, may the trial court's finding as to the date of

the crime be inconsistent with the victim's testimony?

       Washington courts have wrestled with problems reSUlting from a young or

vulnerable victim being unable to specify a date upon which the crime was committed.

Usually the problem arises during a sex crime prosecution. Washington courts do not

wish a child's inability to recall the time of sexual contact with the defendant to permit

the defendant to escape prosecution, whether there are multiple events or a single event.

State v. Cozza, 71 Wn. App. 252, 257,858 P.2d 270 (1993). When young children are

victims, the court is flexible in the requirement regarding specificity as to time and place

of the crime or crimes. Id. at 259. The defendant may use the child's inability to recall

dates as an attack upon the credibility of the victim, but not as a sword to escape trial. Id.

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No. 30717-4-111
State v. Moe


       Washington courts have affirmed convictions with various lengths for the window

of time for the crime. In State v. Jordan, 6 Wn.2d 719, 108 P.2d 657 (1940), the jury was

allowed to determine the sexual assault occurred at any time in a two-month period. In

State v. Bailey, 52 Wn. App. 42, 757 P.2d 541 (1988), the victim and her mother could

only place the assault within a 30-day period. In State v. Carver, 37 Wn. App. 122,678

P.2d 842 (1984), the victim recalled that the rape occurred sometime during "the summer

school vacation." Finally, in Cozza, the court approved a three-year time span. 71 Wn.

App. at 260. Based upon the foregoing, the trial court did not err in finding that the

assault on A.M. occurred during the summer of 20 11.

       Moe relies on the rule stated in State v. Brown: 


               When the complaining witness has fixed the exact time when 

       the act charged was committed, and the defense is an alibi, the 

       commission of the crime on the exact date so fixed is the controlling 

       issue, and the jury should be instructed that they must find the act to 

       have been committed at that time.

35 Wn.2d 379, 383, 213 P.2d 305 (1949) (emphasis added) (internal quotation marks

omitted) (quoting State v. Severns, 13 Wn.2d 542, 560, 125 P.2d 659 (1942» (emphasis

added). This rule is of no help to Moe, however, since his brother could not testify to an

exact date or time for the assault in the laundry room.

       We also find no error in the trial court discounting A.M.'s testimony that the

assault occurred after July 4,2011. The case we find most on point is Stevenson v. State,

164 Ind. App. 199,327 N.E.2d 621 (1975). There, the State charged Stevenson with

                                              5

     No. 307I7-4-III
     State v. Moe


     burglary. The victim's testimony established the date of the burglary to be May 11. The

     State's principal witness, a police officer, testified he went to the scene and gathered the

     defendant's fingerprints from the home window on May 10. Stevenson argued that the

     court must accept the officer's testimony as true and therefore cannot convict him since

     the burglary occurred the day after his prints were found. The reviewing court affirmed
1

I

     the conviction. The Stevenson trial court was free to reason that the officer made an error 


     in his testimony. A similar error in A.M.'s testimony occurred here. To obtain the truth 




I

I
     in the case at bar, the trial court was free to ignore the testimony of A.M. as to the date of 


     the crime. 


            In a closely related argument, Charles Moe also contends the trial court wrongly

     deprived him of his alibi defense by finding that he assaulted A.M. on a date outside that

     fixed by A.M.'s testimony. A criminal defendant has the right to present his or her

     defense, guaranteed by the Sixth Amendment to the federal constitution, as well as article

     I, section 22 of the Washington Constitution. Wash. v. Texas, 388 U.S. 14, 19, 87 S. Ct.

     1920,18 L. Ed. 2d 1019 (1967); State v. Hudlow, 99 Wn.2d 1,14,659 P.2d 514 (1983).

     But "the State need not, by election, fix a precise time for the commission of an alleged

     crime, when it cannot intelligently do so." State v. Pitts, 62 Wn.2d 294, 299, 382 P.2d

     508 (1963). More specifically, "a defendant has no due process right to a reasonable

     opportunity to raise an alibi defense." Cozza, 71 Wn. App. at 259.




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No. 30717-4-III
State v. Moe


        The infonnation charged Moe with having committed second degree assault "[o]n

or [around June 1 to] August 1,2011." CP at 18. Therefore, Moe was on notice that the

State might not fix the date of the assault on a precise date. A.M. was a young,

vulnerable victim and his inability to provide an accurate date should be of no surprise to

Moe. Moe had frequent contact with his younger brother and thus many opportunities to

threaten him. He does not argue that the assault could not have occurred during June

2011.

                                   ~ECENTEXPOSURE


        Moe contends, and the State concedes, the trial court erred when it ruled that

exposing one's bare buttocks, without exposing one's genitalia, constitutes indecent

exposure. We agree.

        Whether the State must prove that Moe exposed his genitalia as an element of the

crime of indecent exposure is a question of law, which this court reviews de novo. State

v. Vars, 157 Wn. App. 482, 489,237 P.3d 378 (2010). Under RCW 9A.88.010(1), "[a]

person is guilty of indecent exposure if he or she intentionally makes any open and

obscene exposure ofhis or her person or the person of another knowing that such

conduct is likely to cause reasonable affront or alarm." (Emphasis added.) As Division

One of this court noted in Vars:

                This statute does not define or expressly incorporate any 

        definition for the phrase "any open and obscene exposure of his 

        or her person." When a statute fails to define a tenn, the tenn 


                                              7

No. 30717-4-111
State v. Moe


       is presumed to have its common law meaning and the 

       Legislature is presumed to know the prior judicial use of the 

       term. Since at least 1966, Washington common law has defined 

       this phrase as "a lascivious exhibition of those private parts of 

       the person which instinctive modesty, human decency, or 

       common propriety require shall be customarily kept covered in 

       the presence of others." 


157 Wn. App. at 489-90 (emphasis added) (some internal quotations and citations

omitted) (quoting State v. Galbreath, 69 Wn.2d 664,668,419 P.2d 800 (1966)). In turn,

"private parts" means genitalia. Vars, 157 Wn. App. at 491 n.15 (acknowledging that

"RCW 9A.88.0 10 requires an exposure of genitalia in the presence of another"). The

term "private parts" is "generally understood as a commonplace designation of the genital

procreative organs." State v. Dennison, 72 Wn.2d 842, 846, 435 P.2d 526 (1967).

       Charles Moe dropped his shorts exposing his bare bottom to young children in the

swimming pool. A.M. testified that "[w]e didn't see his private part but we saw his other

part on the backside." 1 RP at 94. There is no evidence that Moe exposed his genitalia.

Because exposing genitalia is an element of the crime, there is insufficient evidence to

support Moe's conviction for indecent exposure. We therefore reverse Moe's conviction

for indecent exposure.

                           LEGAL FINANCIAL OBLIGATIONS (LFOs)

       A trial court may impose costs on a convicted juvenile under RCW 13.40.145,

which states:

                If, after hearing, the court finds the juvenile, parent, or other

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No. 30717-4-III
State v. Moe


       legally obligated person able to pay part or all of the attorney's 

       fees and costs incurred on appeal, the court may enter such order or 

       decree as is equitable and may enforce the order or decree by 

       execution, or in any way in which a court of equity may enforce its 

       decrees. 


RCW 13.40.145 requires the court to inquire into the defendant's, or defendant's parents'

ability to pay prior to imposing costs. Moe contends the trial court erred when it ordered

him to pay costs of $25 in attorney fees for recoupment without inquiry into his ability to

pay. The State concedes that the trial court ordered Moe to pay costs without inquiring

into his ability to pay. Nonetheless, we conclude it is premature for this court to address

the assigned error for two reasons.

       First, challenges to LFOs are not properly before this court until the State seeks to

enforce them. State v. Hathaway, 161 Wn. App. 634, 651, 251 PJd 253 (2011); State v.

Smits, 152 Wn. App. 514, 524, 216 P.3d 1097 (2009). Because a person is not an

"aggrieved party" under RAP 3.1 "until the State seeks to enforce the award of costs and

it is determined that [the defendant] has the ability to pay," appellate review is

inappropriate. State v. Mahone, 98 Wn. App. 342, 349, 989 P.2d 583 (1999); see also

State v. Blank, 131 Wn.2d 230,242,930 P.2d 1213 (1997). In State v. Crook, 146 Wn.

App. 24, 27-28, 189 PJd 811 (2008), this division held that "[m]andatory Department of

Corrections deductions from inmate wages for repayment of legal financial obligations

are not collection actions by the State requiring inquiry into a defendant's financial




                                              9

No. 30717-4-111
State v. Moe


status." Thus, "[i]nquiry into the defendant's ability to pay is appropriate only when the

State enforces collection under the judgment or imposes sanctions for nonpayment."

Crook, 146 Wn. App. at 27.

       Second, when and if the State seeks to collect, Moe may petition the court for

remission under RCW 10.01.160(4), which states:

              A defendant who has been ordered to pay costs and who is not in
      contumacious default in the payment thereof may at any time petition
      the sentencing court for remission of the payment of costs or of any
      unpaid portion thereof. If it appears to the satisfaction of the court
      that payment of the amount due will impose manifest hardship on the
      defendant or the defendant's immediate family, the court may remit all
      or part of the amount due in costs, or modifY the method of payment
      under RCW 10.01.170.

The denial or granting of that motion would warrant appellate review.

                                         CONCLUSION

      We affirm Charles Moe's conviction for second degree assault; reverse

his conviction for indecent exposure; and remand for sentencing consistent with this

opmIOn.

      A majority of the panel has determined this opinion will not be printed in the




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No. 30717-4-111
State v. Moe




Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




                                                       Fearing, J.   ~
WE CONCUR: 





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