            IN THE COURT OF APPEALS OF THE STATE OF WAJ SHINGTON

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STATE OF WASHINGTON,                                 ]                                             CD


                                                             DIVISION ONE                          c_
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                            Respondent,              ]                                             r-
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                                                             No. 71010-9-1                         ro

                       v.                            ]
                                                             UNPUBLISHED OPINION
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D.S.,                                                                                                       t;' ' "^

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                                                                                                    VXJ
                            Appellant.                       FILED: July 21,      2014



            Dwyer, J. — After a juvenile court bench trial, D.S. was convicted of two

counts of assault in the fourth degree with sexual motivation for having touched

the breasts of two of his classmates. D.S. contends that the evidence was

insufficient to support the trial court's finding that he committed the alleged

offenses during the charging period. We hold that the evidence was sufficient to

convict D.S. of one charge, but not the other. Accordingly, we affirm in part and

reverse in part.

                                                     I


            In January and February of 2013, D.S. attended eighth grade at Mount

Baker Middle School in Auburn. B.S., E.B., and A.C.1 also attended eighth grade

at Mount Baker Middle School at that time. Students at Mount Baker created a

game called "Slap Ass Fridays," which involved hitting one another on the


            1D.S., B.S., E.B., and A.C. are all juveniles. Accordingly, we refer to them by using their
initials.
No. 71010-9-1/2



buttocks. D.S. participated in "Slap Ass Fridays."

       One ofthe students D.S. slapped on the buttocks on a "Slap Ass Friday"

was B.S. D.S. sometimes called her "Big [B.]" and "Juicy," and told her and A.C.

that they had big butts that he would like to have sex with. B.S. did not ever

agree to participate in "Slap Ass Fridays," and felt uncomfortable when D.S.

slapped her on the buttocks. B.S. testified that this happened in January 2013.

B.S. asked D.S. to stop. D.S. stopped "for a moment" but later "would come up

to [B.S.] and like slap [her] boob."

       B.S. testified that she saw D.S. do something similar to E.B. on one

occasion.2 A.C. also saw D.S. slap E.B. on the buttocks and that E.B. would

always tell D.S. to stop. A.C. testified that this happened after Christmas Break
ofthe 2012-2013 school year, but did not remember a specific day or time. A.C.

also saw D.S. grab E.B.'s breasts in the hallway at the school.3 A.C. did not
recall when this occurred.

       On February 27, 2013, B.S., A.C, and E.B. reported D.S.'s actions to the

       2 B.S. was not specific about what she saw happen to E.B., just that itwas "sexual
harassment."
       3On redirect examination, the following exchange took place between the prosecutor and
A.C.
       Q:... Ijust want to go back to kind of what we were talking about when these
       events happened, and you said they happened during your eighth-grade school
       year. Do you remember if itwas the beginning, middle or end of the school
       year?
       A: It was the end of the school year.
       Q: So after Christmas break?
       A: Yes.

       Q: Now, you mentioned [E.B.] being slapped on the butt and you saw [D.S.] do
       that, correct?
       A: Yes.
       Q: Did you ever see him touch her anywhere else?
       A: In her breasts.


                                               -2-
No. 71010-9-1/3



vice principal, Denise Wheeler. Wheeler referred the matter to the Auburn Police

Department.

      The State charged D.S. with two counts of assault in the fourth degree

with sexual motivation. The charging period for these offenses was January 3

through February 28, 2013.

       The trial court found D.S. guilty as charged. At the conclusion of the trial,

the trial court explained, "If this had just been about slapping on the butt, given

the Slap Ass Friday game at school, it would be a closer case. Touching on the
breast is an entirely different matter." The trial court stated that it was "finding

proof beyond a reasonable doubt as to touching on the breast being assault in
the fourth degree with sexual motivation." The trial court did not make any
finding as to whether touching on the butt would constitute the same offenses.
The trial court sentenced D.S. to 12 months of supervision and 24 hours of

community restitution.

       D.S. appeals.

                                           II


       D.S. contends that the trial court erred by finding him guilty of two counts

of assault in the fourth degree with sexual motivation. This is so, he asserts,

because the evidence was insufficient to prove that he committed the alleged

offenses during the charging period. We agree with respectto one of his

convictions.

       When reviewing a sufficiency of the evidence challenge, "'the relevant
question is whether, after viewing the evidence in the light most favorable to the
                                          -3-
No. 71010-9-1/4



prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt'" State v. Green, 94 Wn.2d 216, 221, 616

P.2d 628 (1980) (quoting Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979)). In order to find a defendant guilty beyond a reasonable

doubt, the trier of fact must "reach a subjective state of near certitude ofthe guilt

ofthe accused." Jackson. 443 U.S. at 315. All reasonable inferences from the

evidence must be drawn in favor of the State. State v. Salinas. 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth ofthe

State's evidence and all inferences that reasonably can be drawn therefrom.

Salinas. 119 Wn.2d at 201. "Deference must be given to the trier of fact who

resolves conflicting testimony and evaluates the credibility of witnesses and
persuasiveness of material evidence." State v. Carver. 113 Wn.2d 591, 604, 781
P.2d 1308, 789 P.2d 306 (1989).

       D.S.'s sufficiency challenge centers on the time frame during which the

alleged incidents occurred. B.S. testified that D.S. slapped her butt sometime in
January. B.S. also testified that D.S. touched her breast after she told him to
stop slapping her butt. B.S. reported these incidents to the vice principal on
February 27, 2013. This evidence was sufficient for the trier offact to find that
D.S. committed assault in the fourth degree with sexual motivation against B.S.

by touching her breast sometime between January 3 and February 28, 2013.
       However, the evidence was not sufficient to support the conviction with

respect to E.B. B.S. testified that she saw D.S. commit some type of "sexual
harassment" against E.B., but did not specify what that entailed. A.C. saw D.S.
                                         -4-
No. 71010-9-1/5



slap E.B. on the butt after Christmas Break ofthe 2012-2013 school year.

However, the trial court specifically stated that it was finding D.S. guilty based on

his touching of B.S.'s and E.B.'s breasts, and made no findings with respect to

his touching of their buttocks. Thus, in order for the conviction with respect to

E.B. to stand, there must be sufficient evidence that D.S. touched E.B.'s breasts

between January 3 and February 28, 2013. The evidence presented at trial was

not sufficient to support such a finding.

       On direct examination, A.C. did not mention any touching of E.B.'s

breasts. On redirect examination, A.C. testified that "these events" occurred

sometime during "the end ofthe school year" after Christmas break. A.C. also

testified on redirect that she witnessed D.S. touch E.B.'s breasts. When asked

on recross examination when she saw D.S. touch E.B.'s breasts, A.C. answered

"I don't remember." The issue of timing did not arise again.

       As commonly understood, "after Christmas break" and "the end ofthe

school year" typically refers to the period between January and June. This
evidence is not definite enough to prove with "near certitude" that an act took

place between January 3 and February 28. See Jackson, 443 U.S. at 315. A.C.
did not testify as to a more specific date, stating instead that she did not

remember when D.S. touched E.B.'s breasts. Without a definite time frame for

when D.S. touched E.B.'s breasts, a rational trier of fact could not have found

beyond a reasonable doubt that D.S. assaulted E.B. between January 3 and
February 28, 2013. Therefore, we reverse D.S.'s conviction with respect to E.B.
and remand with instructions to vacate the conviction.
No. 71010-9-1/6



      We affirm D.S.'s conviction with respect to B.S.

      Affirmed in part, reversed in part.




We concur:




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