 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      )
                                                 No. 72409-6-1
                     Respondent,          ]                                               , ~ "r~
                                                                                CO
                                                 DIVISION ONE
             v.                           )
                                                 PUBLISHED OPINION                       5'~ ,

MICHAEL RAY GOSS,                                                                       >-:!,
                                                                                37"



                     Appellant.            i      FILED: August 17, 2015       's_r.'   .."J -•'<•   '

                                                                               CO




       Trickey, J. — The charging document must include all essential elements

ofan alleged crime to provide defendants notice ofthe nature ofthe allegations so
that they can properly prepare their defense. An essential element is one that is
necessary to establish the illegality of the behavior.

       Here, the second amended information charged the crime ofsecond degree

child molestation alleging that the defendant was 36 months older than the victim,
who was less than 14 years old and not married to or in a domestic partnership
with the defendant. The statute defines the crime as "sexual contact with another

who is at least twelve years old but less than fourteen years old."1 The lower age
of the victim is a criterion for establishing the proper penalty and not an essential
element of the proscribed offense, child molestation. The information was not

deficient.

       None of the other errors raised by the defendant have merit. Because there

is substantial evidence supporting the conviction, we affirm the judgment and

sentence.




  RCW 9A.44.086.
No. 72409-6-1 / 2


                                      FACTS

      The State charged Michael Goss with one count of second degree child

molestation alleging that between September 25, 2011 and September 24, 2012,

Goss had sexual contact with E.F., who was 13 years old, and further, that at the

time, Goss was more than 36 months older than the victim. Before trial, the court

granted the State's motion to amend the information, charging an additional count

of third degree attempted child molestation. The second count alleged Goss

attempted sexual contact with E.F., then 14 years old, between September 25,
2012 and June 23, 2013. Defense did not object to that amendment.

       E.F., born September 25, 1998, in tenth grade at the time of the trial,

testified that Goss, then her grandmother's fiance, inappropriately touched her on

her breasts when she was at Goss's home where her grandmother lived. Goss

called herover, grabbed her left arm, and touched her breasts stating, "I like these,
do you like these?" The touching lasted about 15 seconds. E.F. was shocked.
She told Goss, "No," to which he responded, "Why?" E.F. stated, "I don't," and she

threw his hands off her.2

       E.F. went back to playing on the computer, feeling weird, and wanting to go
home. E.F. did not tell her grandmother, or anyone else. She later remembered

that the incident had occurred in seventh grade, because it happened before she

moved to her father's home in California for second semester in January. Goss

only touched her breasts one time.




  Report of Proceedings at 483.
No. 72409-6-1 / 3


      E.F. testified to two other incidents in Goss's house where Goss attempted

to touch her but was unsuccessful. She recounted that one attempt had occurred

at Thanksgiving, but when she screamed, her mother yelled from the other room,

enabling E.F. to escape. In the other incident, E.F. managed to raise her arms to

block Goss from touching her.

       On June 22, 2013, E.F. attended a family reunion. At the reunion, E.F. was

rude to Goss any time he approached her. E.F.'s mother, aunt, and uncle all
chastised her for her rude behavior. E.F.'s uncle, Eric Randolph, approached E.F.

asking her what was going on. E.F. started to cry and told her uncle what had
occurred. Later that day, E.F., with her uncle's help, told her mother what had
happened. The family informed E.F.'s grandmother the following day. E.F.'s
grandmother immediately moved out of Goss's house.
       Before the State rested, it moved to amend the charging period in count Ito

conform to testimony regarding the time frame within which the incident occurred.3
Over an unspecified objection by defense counsel, the court permitted the
amendment, finding there was no prejudice to the defendant.
       The jury found Goss guilty of second degree child molestation, but acquitted
him on the attempted molestation charge. Goss appeals.
                                    ANALYSIS

       Goss contends that the trial court erred in permitting the State to amend the

 information prior to concluding its case and that the second amended information
did not contain all the essential elements of the crime with which he was charged


  September 25, 2010 to September 25, 2012.
No. 72409-6-1/4


and convicted. Goss also argues that the evidence was insufficient and the trial

court erred in limiting the scope of his closing argument.

Second Amended Information

       Goss contends he was prejudiced by the State's amending the information

to enlarge the charging period by one year after the State had presented all of its
evidence but before the State rested. Under CrR 2.1(d), the court may permit an

amendment of information any time before a verdict, if the defendant is not

prejudiced. While the rule permits liberal amendment, it is tempered by article I,
section 22 of the Washington State Constitution, which requires that the accused

be adequately informed of the charge to be met at trial. State v. Pelkev. 109 Wn.2d
484, 487, 745 P.2d 854 (1987).

       But here, the amendment did notcharge any new offensesor add additional
child molestation counts. Instead, it merely enlarged the time frame within which

the crime was committed. Amendment of the charging period is usually not a

material element of a crime and, thus, an "amendment of the date is a matter of

form rather than substance, and should be allowed absent an alibi defense or a

showing of other substantial prejudice to the defendant." State v. DeBolt, 61 Wn.
App. 58, 60-62, 808 P.2d 794 (1991) (motion to amend permitted after State had
rested and after defendant had testified); see also State v. Allvn, 40 Wn. App. 27,

35, 696 P.2d 45 (1985) (elements of the crime charged remained the same both
before and after the change of the date). Goss has not claimed an alibi and he
has failed to show any prejudice from the amendment. The trial court did not abuse
its discretion in permitting the amendment.
No. 72409-6-1 / 5


Essential Elements

      We review the adequacy of a charging document de novo.                 State v.

Johnson. 180 Wn.2d 295, 300, 325 P.3d 135 (2014). Goss contends that the

second amended information charging him with second degree child molestation

is constitutionally deficient because it only alleged that E.F. was less than 14 years

old at the time of the crime and did not include the allegation that E.F. was at least

12 years old as stated in the statute.

       RCW 9A.44.086(1) provides:

       A person is guilty ofchild molestation in the second degree when the
       person has, or knowingly causes another person under the age of
       eighteen to have, sexual contact with another who is at least twelve
       years old but less than fourteen years old and not married to the
       perpetrator and the perpetrator is at least thirty-six months older than
       the victim.

The second amended information alleged:

          That the defendant Michael Ray Goss in King County,
       Washington, during an intervening period of time between
       September 25, 2010 and September 25, 2012, being at least 36
       months older than ENF (DOB 9/25/98), had sexual contact for the
       purpose of sexual gratification with ENF (DOB 9/25/98), who was
       less than 14 years old and was not married to and not in a state
       registered domestic partnership with ENF (DOB (9/25/98).t4l
       The State asserts that the only purpose ofthe "at least twelve" language of
the statute is to differentiate the lower degrees from the higher degrees of child

molestation. RCW 9A.44.086(1). That E.F. may have been younger than the
lower age specified in the second degree child molestation statute does not mean
that Goss did not commit sexual molestation. Several Washington Supreme Court
and Court ofAppeals decisions support the State's position that statutory language

4 Clerk's Papers at 67.
No. 72409-6-1 / 6


differentiating the various degrees of a crime does not necessarily create an

additional essential element.


       In State v. Tinker. 155 Wn.2d 219, 222, 118 P.3d 885 (2005), our Supreme

Court addressed a challenge to the sufficiency of an information alleging third

degree theft that did not specify the value of the property taken.       The court

concluded that property value was not an essential element of the crime of third

degree theft, despite language in the statute then at issue that the theft "does not

exceed two hundred and fifty dollars in value." Tinker. 155 Wn.2d at 222 (quoting

RCW9A.56.050(1)).

      The Tinker court reasoned that the property value was not essential to

establish the illegality of theft behavior because such value merely served to

distinguish the various degrees of theft and, thus, "taking any item constitutes at

least third degree theft." 155 Wn.2d at 222 (emphasis omitted). "An 'essential

element is one whose specification is necessary to establish the very illegality of

the behavior.'" Tinker. 155 Wn.2d at 221 (quoting State v. Johnson. 119 Wn.2d

143, 147, 829 P.2d 1078 (1992)): see also State v. Levda. 157 Wn.2d 335, 341,

138 P.3d 610 (2006) (the value of goods, services, and credit obtained through

identity theft is not an essential element of second degree theft); State v. Feeser.
138 Wn. App. 737, 744, 158 P.3d 616 (2007) (absence of premeditation not an

element of second degree murder even though statute's language states "without

premeditation").

       In State v. Ward. 148 Wn.2d 803, 64 P.3d 640 (2003), the Supreme Court

was presented with the question of whetherfailure to include that the assault was
No. 72409-6-1 / 7


neither first nor second degree in the information charging the defendant with

violation of a no contact order under RCW 26.50.110(4) rendered the information

insufficient. RCW 26.50.110(4) provided that "'[a]ny assault that is a violation of

an order issued under this chapter. . . and that does not amount to assault in the

first or second degree under RCW 9A.36.011 or 9A.36.021 is a class C felony.'"

Ward. 148 Wn.2d at 810 (alterations in original) (quoting RCW 26.50.110(4)). The

defense argued that that provision was an essential element of the crime. In
rejecting the argument, the Supreme Court concluded that the definitional
language, "does not amount to assault in the first or second degree," is not an
essential element of the crime, but rather elevated no contact violations to a felony

when any assault is committed. Ward. 148 Wn.2d at 812.
       In State v. Smith. 122 Wn. App. 294, 296, 93 P.3d 206 (2004), this court

rejected a similar argument to the one presented here involving a "to-convict"
instruction rather than an information. The defendant argued that a "to-convict"

instruction for third degree rape of a child was erroneous because it stated the
ages of the victim as between 12 and 16, rather than between 14 and 16 years of
age. The Smith court held that "the age of the victim is a function of the proper
penalty and not an essential element of the proscribed offense of having sexual
intercourse with a minor." 122 Wn. App. at 296. In so holding, the Smith court

approved and cited the rationale in State v. Dodd. 53 Wn. App. 178,181, 765 P.2d
1337 (1989), "that 'third degree statutory rape is a crime of inferior degree to
second degree statutory rape, as each proscribes but one offense, that of sexual
intercourse with one too immature to rationally or legally consent to the act.'" 122
No. 72409-6-1 / 8


Wn. App. at 298. A "to-convict" instruction, like an amended information, must

contain all the essential elements of the crime. State v. Lorenz. 152 Wn.2d 22, 31,

93P.3d133(2004).

      To support his position, Goss cites Allevne v. United States.   U.S.    , 133

S. Ct. 2151, 186 L. Ed. 2d 314 (2013), in which the United States Supreme Court

held that a fact that increased the mandatory minimum sentence is an element

which must be presented to the jury and proven beyond a reasonable doubt.

There, the defendant was charged with robbery and using or carrying a firearm.

Allevne. 133 S. Ct. at 2155. The jury found that the defendant had used or carried

a firearm, but had not indicated whether he had "brandished" the gun. Allevne.

133 S. Ct. at 2155-56.    If he had brandished a gun, his mandatory minimum

sentence would have increased from five to seven years. Allevne. 133 S. Ct. at

2155-56.

       Allevne is not helpful. First, it applies to sentencing enhancement. Here,
Goss was not subjected to a higher sentence. Second, the omission ofthe lower
age of 12 did not increase his sentence. In fact, the crime for which Goss was
convicted was a lesser crime than if he had been convicted of child molestation of

someone under the age of 12. Adopting Goss's argument would in effect put the
defendant in the position of arguing that he was not guilty ofsecond degree child
molestation because he was in fact guilty of the greater crime offirst degree child

molestation.

       The sole purpose of the "at least twelve" language of the statute is to
differentiate the lower degrees from the higher degrees of child molestation. The



                                         8
No. 72409-6-1 / 9


omission of the "at least twelve" language did not add to Goss's burden in anyway;

nor did it excuse the State from proving beyond a reasonable doubt that Goss, by

his conduct, met the essential elements of child molestation in the second degree.

The lower age limit is not an essential element of the crime and therefore its

omission from the second amended information was not error.

Sufficiency of the Evidence

       Goss argues insufficient evidence supports his conviction of child

molestation of E.F. in the second degree.

       Sufficient evidence supports a conviction when, viewed in the light most

favorable to the State, a rational fact finder could have found guilt beyond a

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

A claim of insufficiency admits the truth of the State's evidence and all inferences
reasonably drawn from theevidence. Salinas, 119 Wn.2d at 201. This court defers
to the fact finder on issues of witness credibility and the persuasiveness of the

evidence. State v. Camarillo, 115 Wn.2d 60, 794 P.2d 850 (1990); State v. Carver.

113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).

       The only incident at issue here is Goss's touching E.F.'s breasts. Goss
disputes that it occurred during the charging period, but the evidence presented
clearly established that it occurred within the charging period. E.F. testified that
she was in seventh grade when the incident occurred. She remembered this
because it was the same year that she left to stay with her father in California in
January for the second semester of seventh grade. E.F. testified that thetouching
occurred before she went to California.




                                          9
No. 72409-6-1/10


      That this touching occurred when E.F. was in the seventh grade is

supported by testimony from E.F. and her mother, who both testified that E.F. had

just completed her ninth grade in July 2014 at the time of the trial. Thus, her

seventh grade school year would have been between fall 2011 and spring 2012.

E.F. would have been 12 years old when she started seventh grade and turned 13

years old in September 2011. Although the mother testified that E.F. went to visit
her father in eighth grade, the jury was free to believe E.F.'s testimony. If believed,

the evidence was sufficient to support the charge.

Scope of Closing Argument

       During cross-examination, defense counsel asked the investigating police
detective whether he had taken a 50 minute recorded statement from Goss

regarding the allegations. The State objected to the question but was overruled.
The detective verified that he had taken the statement. There was no further

testimony about the interview.

       Before closing argument, the State moved to prevent defense counsel from
arguing that the State did not present any evidence from the recorded interview
because it was not helpful to the State's case. The court agreed, stating that the
evidence was inadmissible as hearsay since it was not introduced by the State,

the party opponent. The court refused to permit the defense toargue that the State
should have introduced the recorded interview because it weakened the State's

case. The court permitted the defense to argue that the detective conducted an
investigation and that investigation included conducting a recorded interview with




                                           10
No. 72409-6-1 /11


the defendant. Any other information regarding that interview was not in evidence

and could not be argued. Defense counsel objected to the court's ruling.

      A trial court's limitation of the scope of closing argument is reviewed for

abuse of discretion. State v. Wooten. 178Wn.2d 890, 896-97, 312 P.3d41 (2013).

"This court will find that a trial court abused its discretion 'only if no reasonable

person would take the view adopted by the trial court.'" State v. Frost, 160 Wn.2d

765, 771, 161 P.3d 361 (2007) (emphasis omitted) (internal quotation marks

omitted) (quoting State v. Perez-Cervantes. 141 Wn.2d 468, 475, 6 P.3d 1160

(2000)). The court has stressed that "the trial court should 'in all cases ... restrict

the argument of counsel to the facts in evidence.'" Perez-Cervantes. 141 Wn.2d
at 475 (alteration in original) (internal quotation marks omitted) (quoting Sears v.

Seattle Consol. St. Rv.. 6 Wash. 227, 233, 33 P. 389, 33 P. 1081 (1893)).

Otherwise a jury may be confused or misled. Perez-Cervantes. 141 Wn.2d at 474.
       Here, the trial court found that the evidence sought to be introduced was

inadmissible hearsay that was not in evidence. Because there was no evidence
presented to the jury to support the inference Goss sought to argue, the trial court
did not abuse its discretion in limiting the argument.

       Goss argues that his position is analogous to an argument underlying the
right to a missing witness instruction. That doctrine permits a jury to infer that a
witness's testimony would have been unfavorable to the party that could have
called, but did not call, the witness at trial. State v. Flora. 160 Wn. App. 549, 556,
249 P.3d 1888 (2011). Essentially, Goss sought to introduce evidence that the
State knew he was notguilty, arguing that the State did not introduce the evidence



                                          11
No. 72409-6-1/12


from its interview with him. Admissions of a party opponent are admissible under

ER 801(d)(2), only if offered by the party opponent. Further, the defendant was

unavailable to the State because it could not have called the defendant to the stand

because of his privilege against self-incrimination.

       In sum, a defendant does not have a right to present inadmissible evidence.

State v. Hudlow. 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983).                 Under the

circumstances here, the court did not abuse its discretion.

Conclusion


       The trial court properly permitted the amendment of the information which

contained all the essential elements of the crime of second degree child

molestation. There was sufficient evidence to sustain the conviction and the trial

court did not abuse its discretion in limiting the scope of the defendant's closing

argument.

       Affirmed.




                                                       ^T/'^Ke^f )^J

WE CONCUR:




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