            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  STATE OF WASHINGTON,
                                                        No. 77848-0-I
                                     Appellant,
                                                        DIVISION ONE
                   v.
                                                        UNPUBLISHED OPINION
 ERIC DEAN VIGIL,

                                      Respondent.       FILED: July 22, 2019

            CHuN, J.   —   A jury convicted Eric Vigil of two counts of third degree child

molestation.1 At trial, Vigil requested a jury instruction requiring additional

evidence of sexual gratification where touching of intimate parts occurs through

clothing. The trial court determined the instruction was unnecessary under State

v. Veliz, 76 Wn. App. 775, 778-79, 888 P.2d 189 (1995). We agree and affirm.

                                         BACKGROUND
        Vigil celebrated Thanksgiving in 2015 at the home of his friend, Bruce

Burns. Knowing Vigil lived a significant distance away, Burns invited him to stay

the night. The next day, Burns’s 14-year-old stepdaughter, K.C., reported that

Vigil had touched her breast and squeezed her buttocks over her clothing. K.C.

also told her parents that Vigil entered her room, offered her a beer, and asked




        1The jury also convicted Vigil of one count of communication with a minor for immoral
purposes. Vigil does not appeal this conviction.
 No. 77848-0-112


her to “give him her lips” and kiss him. After K.C. told Vigil to leave her room, he

stayed outside her bedroom door all night and kept opening and closing her door.

       K.C.’s parents contacted police. The State charged Vigil with two counts

of third degree child molestation, and one count of communication with a minor

for immoral purposes.

       At trial, K.C. recounted the following: Vigil rubbed her back over her

clothes and a blanket she had wrapped around her shoulders. Vigil then moved

his hand up toward the top of her shoulder and continued rubbing. Soon after,

Vigil began rubbing his hand down the front of K.C.’s body. Specifically, he

rubbed up and down K.C.’s left breast on the outside of her shirt and the blanket.

Later, when K.C. hugged him goodnight, Vigil “grabbed” her buttocks under the

blanket but outside of her shorts.

       K.C. went to her bedroom and eventually fell asleep. She woke up

because of a “scratching feeling” on her elbow and arm and found Vigil holding

her arm and putting his mouth on it. Vigil offered K.C. a beer, which she

declined. Vigil asked K.C. repeatedly if she wanted him to leave her room, and

she responded yes. Before he left, he asked for a kiss and said “give me your

lips.” K.C. again declined and told Vigil to leave her room. He left her room. But

later that night K.C. found him sitting outside her door. Vigil opened and closed

her door several times throughout the night. K.C. also heard the clicking sound

of a cell phone camera during one of the times Vigil opened her door.




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 No. 77848-0-113


        After conclusion of all testimony, Vigil proposed the following jury

instruction on sexual gratification: “If the evidence shows touching through

clothing, or touching of intimate parts of the body other than the primary

erogenous areas, some additional evidence of sexual gratification is required.”

The trial court declined to give the instruction.

       A jury convicted Vigil as charged. Vigil appeals.

                                     DISCUSSION
    A. Jury Instruction

       Vigil contends the trial court’s failure to issue his requested jury instruction

deprived him of his right to due process and a fair trial. Vigil proposed this

instruction based on cases concluding that the State must present additional

evidence of sexual gratification where the evidence shows only touching through

clothing. ~ State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991)

(discussing the sufficiency of the evidence); State v. Harstad, 153 Wn. App. 10,

21, 218 P.3d 624 (2009) (same). The trial court declined to issue the instruction

because this court previously determined that Powell addressed only the

sufficiency of the evidence of molestation and “does not stand for the proposition

that a trial court is required to instruct the jury that it must find additional evidence

of sexual gratification in order to find the defendant guilty of child molestation.”

Veliz, 76 Wn. App. at 778-79. We agree with the trial court and adhere to the

decision outlined in Veliz, 76 Wn. App. at 779.




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 No. 77848-0-114


       “Jury instructions are proper when they permit the parties to argue their

theories of the case, do not mislead the jury, and properly inform the jury of the

applicable law.” State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).

The standard of review for jury instructions varies based on the decision under

review. State v. Condon, 182 Wn.2d 307, 315, 343 P.3d 357 (2015). “The trial

court’s refusal to give an instruction based upon a ruling of law is reviewed de

novo.” State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998). Here, the

trial court determined that Vigil’s proposed instruction was not required as a

matter of law under Veliz. 76 Wn. App. at 777. Therefore, we review the

decision de novo.

        The trial court correctly refused to give Vigil’s suggested instruction in

accordance with existing case law. In Veliz, the defense proposed a similar jury

instruction during a trial for first degree child molestation where the evidence

showed the touching occurred over clothing. 76 Wn. App. at 777. Veliz claimed

the trial court’s refusal to give the instruction precluded him from arguing his

theory of the case. Veliz, 76 Wn. App. at 777. This court disagreed, concluding:
       [TJhe instructions actually given to the jury in this case required it to
      find that Veliz touched A.F. for the purpose of sexual gratification.
      The jury was instructed that, to convict Veliz, it must find that he had
      sexual contact with A.F. In a separate instruction, the term “sexual
      conduct” was defined as “any touching of the sexual or other intimate
      parts of a person done for the purpose of gratifying sexual desire of
      either party.” Thus, the instructions allowed Veliz to argue that he
      had not touched A.F. or, alternatively, if he had, that the touching
      was not for the purpose of sexual gratification. The instructions were
      therefore sufficient.
Veliz, 76 Wn. App. at 779.




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No. 77848-0-1/5


        In this case, the jury instructions provided the same opportunity for

argument as those approved in Veliz. The trial court provided the “to convict”

instruction requiring the jury to find Vigil had sexual contact with K.C. A separate

instruction gave the definition of “sexual contact” as “any touching of the sexual

or other intimate parts of a person done for the purpose of gratifying sexual

desires of either party.” These instructions permitted Vigil to argue that he did

not touch K.C. and that any touching was not for the purpose of sexual

gratification.

       The trial court’s instructions were sufficient for Vigil to argue his theory of

the case. The trial court correctly followed Veliz, and we see no compelling

reason to disregard this precedent.

   B. Entry of Findings of Fact and Conclusions of Law

       Vigil requests remand for entry of written findings of fact and conclusions

of law as required by CrR 3.5(c). The trial court held the CrR 3.5 hearing on

June 15, 2017, at which time the court ruled orally on the admissibility of Vigil’s

statement to the police. As of the filing of Vigil’s appellate brief on May 30, 2018,

the trial court had yet to enter the requisite findings of fact and conclusions of law

on that proceeding. The trial court belatedly entered the findings and

conclusions on June 7, 2018. Because the trial court has complied with

CrR 3.5(c), this court can no longer provide the relief sought and Vigil’s request is

moot. See Snohomish County v. State, 69 Wn. App. 655, 660, 850 P.2d 546

(1993) (“A case is technically moot if the court cannot provide the basic relief




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No. 77848-0-1/6


originally sought or can no longer provide effective relief”) (internal citation

omitted).

       Affirmed.




WE CONCUR:




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