                                                                         FILED
                                                                     JANUARY 31, 2017
                                                                  In the Office of the 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. 33568-2-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
MICHAEL RILEY FRAZIER,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, C.J. -    Michael Frazier appeals from his conviction, in juvenile court,

for indecent liberties by forcible compulsion. He argues that a bench trial abridged his

right to a jury trial. He claims that the trial court should have considered his age before

finding that he knowingly engaged in sexual contact with force. We reject Frazier's

arguments and affirm his conviction.

                                          FACTS

       At the end of eighth grade and into the succeeding summer, Michael Frazier and

Mary Bartholomew dated. Mary Bartholomew is a pseudonym. The romantic

relationship included hugging and kissing. They entered high school that fall. Mary

ended the relationship.
No. 33568-2-III
State v. Frazier


       On December 29, 2014, while a sophomore in high school, Michael Frazier visited

his friend Stan Baker at Stan's home. Frazier was then fifteen years of age. Stan Baker

is also a pseudonym. In the early evening, Frazier invited, by Snapchat, Mary

Bartholomew to join him at Stan's residence. Mary visited Stan's home briefly before

attending work that evening. As she left the house, Stan and Frazier walked Mary to her

car. Frazier gave Mary a hug and tried to kiss her goodbye. Mary did not reciprocate.

Mary, however, continued to contact Frazier through Snapchat while working. She

agreed to meet Frazier and Stan, after completion of work, at Okanogan's Fire Hall, a

firefighting museum with other activities available.

       When Mary Bartholomew arrived at the Fire Hall, Stan Baker and Michael Frazier

entered her 2004 Ford Focus. Frazier sat in the passenger seat, and Stan sat in the back.

The trio chatted while Frazier and Stan waited for their friend Woody. When Woody

arrived, Stan exited the car. Woody and Stan entered the Fire Hall to play pool, leaving

Mary and Frazier alone in the car. Frazier asked Mary to drive to the Food Depot, a

closed business, and park in the store's parking lot to talk. Mary complied.

      Our analysis requires only a limited depiction of the conduct inside the car. Mary

Bartholomew and Michael Frazier conversed for minutes, and then Frazier touched Mary.

Mary immediately pushed Frazier's hand and declared "no" and "stop it, Michael."

Report of Proceedings at 32-33. Frazier pinned Mary against the driver's door. Frazier

did not stop, but repeatedly touched both Mary's breasts and private area. Frazier then

                                             2
No. 33568-2-III
State v. Frazier


stood six feet, four inches and Mary reached five feet, three inches. Mary Bartholomew

yelled, repeatedly told Michael Frazier to cease his conduct, attempted to push him, and

kicked him. Mary cried. Frazier insisted that, no matter how often Mary repeated his

name, he would not stop. Mary suffered bite marks on a breast and her neck. She also

incurred a bruise on each thigh.

       Eventually Michael Frazier got upset and ceased his behavior. Mary ordered him

from her car. Frazier asked her to return him to the Fire Hall. At the Fire Hall, Frazier

kissed Mary. She did not reciprocate. Frazier exited the car and entered the Fire Hall.

Stan Baker asked Frazier what happen~d, and Frazier said nothing.

       Mary Bartholomew drove home. When school started after the holiday break,

Mary told a friend and her school counselor about the conduct of Michael Frazier on

December 29. The friend confronted Frazier at school. Frazier replied that he felt bad

about his behavior and admitted that Mary repeatedly told him to stop.

                                       PROCEDURE

       The State of Washington charged Michael Frazier with indecent liberties by

forcible compulsion. On cross-examination during trial, Frazier admitted that Mary

Bartholomew said no three or four times. The trial court found the testimony of Mary

Bartholomew to be credible compared to the testimony of Frazier. The trial court also

found that Frazier acted "knowingly" with regard to his force applied to Mary. Clerk's

Papers at 23. The trial court adjudicated Frazier guilty of indecent liberties by forcible

                                              3
No. 33568-2-III
State v. Frazier


compulsion. The trial court sentenced Frazier to fifteen to thirty-six weeks in juvenile

detention. Frazier must register as a sex offender. A restraining order precludes him

from any contact with Mary for life.

                                 LAW AND ANALYSIS

       Michael Frazier raises two arguments on appeal. First, because he was a juvenile

at the time of the crime, the trial court should have applied the "reasonable child"

standard to the mens rea requirement. Second, he was deprived of his right to a jury trial.

We reject both arguments.

                                         Mens Rea

       RCW 9A.44.100(1) defines the crime of indecent liberties by compulsion as:

              A person is guilty of indecent liberties when he or she knowingly
       causes another person to have sexual contact with him or her or another:
              (a) By forcible compulsion ....

(Emphasis added.) In tum, RCW 9A.44.0I0(6) defines "forcible compulsion" as

              "Forcible compulsion" means physical force which overcomes
      resistance, or a threat, express or implied, that places a person in fear of
      death or physical injury to herself or himself or another person, or in fear
      that she or he or another person will be kidnapped.

      Note that RCW 9A.44.I00(1) required the State to prove Michael Frazier

"knowingly" caused another person to have sexual contact with him by forcible

compulsion. Washington's criminal code defines "knowingly" as:

              ... A person knows or acts knowingly or with knowledge when:


                                             4
No. 33568-2-III
State v. Frazier


                (i) he or she is aware of a fact, facts, or circumstances or result
        described by a statute defining an offense; or
                (ii) he or she has information which would lead a reasonable person
        in the same situation to believe that facts exist which facts are described by
        a statute defining an offense.

RCW 9A.08.010(1 )(b ). The first subsection describes actual knowledge. The second

subsection portrays constructive knowledge. Both concepts are familiar to the law.

Constructive knowledge asks: what would a reasonable person in the same situation

know?

        Michael Frazier argues that the trial court erred when failing to recognize his age

and to consider his age when assessing his culpability. Frazier contends that the

knowledge standard for him and other minors should be the "reasonable child" not

"reasonable person" standard. The State interprets Frazier's argument as challenging his

capacity to commit the crime.

        We conclude sufficient evidence supports a finding that Frazier possessed actual

knowledge. Since a reasonable child or reasonable person standard applies only for

constructive knowledge, we need not and do not address whether the trial court should

have applied a reasonable child standard. We also do not consider Frazier to argue he

lacked capacity to commit a crime and thus do not address the State's argument.

      · Michael Frazier contends that courts consistently analyze knowledge from the

perspective of a reasonable person. He cites two cases to support this contention: State v.

Stribling, 164 Wn. App. 867, 267 P.3d 403 (2011) and State v. Shipp, 93 Wn.2d 510, 610

                                              5
    II   No. 33568-2-III
    I
    I
         State v. Frazier
    !i

I        P.2d 1322 (1980). He maintains that his knowledge should be determined in light of a

         person his age. Nevertheless, neither of the two cases support his argument. Neither case
I        stands for the proposition that the trier of fact considers the knowledge of a reasonable

II       person when the accused has actual knowledge.

                In State v. Stribling, this court acknowledged both methods of proving knowledge,
I
I        but the decision required no analysis of the nature of knowledge. In State v. Shipp, the

         Washington Supreme Court evaluated constructive knowledge. The court declared:
I
                       [T]he statute must be interpreted as only permitting, rather than
               directing, the jury to find that the defendant had knowledge if it finds that
               the ordinary person would have had knowledge under the circumstances.
I
I              The jury must still be allowed to conclude that he was less attentive or
               intelligent than the ordinary person.
I
         Shipp, 93 Wn.2d at 516. Of course, this passage assumes that the trier of fact decides
I
i        guilt based on constructive knowledge, not actual knowledge.
I
I
I              Our trial court heard sufficient evidence to establish that Michael Frazier actually
!

         knew that he caused Mary Bartholomew to have sexual contact with him by overcoming

         her resistance. Therefore, we need not discuss Frazier's argument regarding the

         reasonable person standard for purposes of constructive knowledge.

               Evidence is sufficient if a rational trier of fact could find each element of the crime

         beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

         Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.

         App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor

                                                      6
No. 33568-2-III
State v. Frazier


of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The trier of

fact weighs the evidence and judges the credibility of witnesses. State v. Carver, 113

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

       As the trial court found, Michael Frazier pinned Mary Bartholomew against a car

door as she tried to escape. She yelled "no" and "stop" and pushed and kicked Frazier

away. Frazier declared his intention not to stop. A seven-year-old, let alone a fifteen-

year-old, knows the meaning of no. Frazier later told Mary's friend that he felt bad about

what he did to Mary and that Mary repeatedly said no.

                                          Jury Trial

       Michael Frazier next contends that the trial court's failure to provide him with a

trial by jury violated his due process rights. He argues that the differences between the

juvenile and adult systems have so eroded that the right to a jury trial for juveniles should

be restored. The State responds that major differences still exist between the juvenile and

adult systems such that the right to a jury trial is not constitutionally required. As the

State mentions, all of Frazier's arguments have been made and rebuffed by either the

Washington Supreme Court or the United States Supreme Court. Although we might

agree with some of Frazier's observations, we must reject his argument. A higher court

will need to overturn precedence.

       Michael Frazier argues first that the Juvenile Justice Act of 1977, chapter 13.40

RCW, violates the Washington Constitution. Article I, section 21 of the Washington

                                              7
No. 33568-2-III
State v. Frazier


Constitution reads "[t]he right of trial by jury shall remain involate[.]" In tum, RCW

13.04.021(2) reads: "[c]ases in the juvenile court shall be tried without a jury."

       The Washington Supreme Court has held that a juvenile has no right to a jury trial.

Estes v. Hopp, 73 Wn.2d 263, 438 P.2d 205 (1968); State v. Lawley, 91 Wn.2d 654, 591

P.2d 772 (1979); State v. Schaaf, 109 Wn.2d 1, 743 P.2d 240 (1987); Monroe v. Soliz,

132 Wn.2d 414, 939 P.2d 205 (1997); State v. Chavez, 163 Wn.2d 262, 180 P.3d 1250

(2008). State v. Chavez is the most recent case from the Washington Supreme Court that

rejects many of the arguments advanced by Michael Frazier. The State charged Azel

Chavez in juvenile court with attempted first degree murder, second degree unlawful

possession of a firearm, first degree robbery, second degree assault, and second degree

taking a motor vehicle without permission. The trial court found Chavez guilty following

a bench trial.

       On appeal, Azel Chavez argued that, for a juvenile, such as himself, charged with

a serious offense, the balance struck between punitive and rehabilitative philosophies is

identical to that struck for adult offenders. He claimed that, except for the length of his

sentence and conditions of his confinement, the legal system treated him as an adult. He

emphasized that the State fingerprinted, photographed, and forced him to provide a

deoxyribonucleic acid sample. He noted that he could be transferred to adult prison to

complete his disposition. He observed that his records cannot be sealed or destroyed,

and, if he committed future crimes, the convictions would be calculated into his offender

                                              8
No. 33568-2-III
State v. Frazier


score. After analyzing all of these arguments, the Supreme Court held that the juvenile

justice system has not been so altered that juveniles charged with violent and serious

violent offenses have the right to a jury trial.

       In addressing Michael Frazier's constitutional argument, Washington courts

consistently answer:

               [a] telling illustration of the fact that juvenile proceedings remain
       more lenient and more rehabilitative than adult criminal proceedings is the
       fact that none of the juveniles involved in this appeal availed themselves of
       the opportunity, pursuant to RCW 13.40.110, to request the juvenile court
       to decline jurisdiction and transfer the matter to the adult criminal system,
       where a jury trial would have been available.

State v. J.H., 96 Wn. App. 167, 182-83, 978 P.2d 1121 (1999). Michael Frazier did not

seek a declination.

       Michael Frazier raises two additional contentions. First, he must register as a sex

offender. Second, the State might involuntarily commit him as a sexually violent

predator under chapter 71.09 RCW. Based on current law, we disagree that these factors

require a jury trial.

       This court ruled, in State v. J.H., 96 Wn. App. at 182, that the adult sex offender

registration statute does not constitute punishment, but rather is a regulatory measure. It

follows that community notification requirements for juvenile offenders are likewise not

punitive and do not affect a juvenile offender's right to a jury trial. The Washington




                                               9
I
I
I
    No. 33568-2-III
I   State v. Frazier
I
    Supreme Court, in State v. Chavez, 163 Wn.2d 262 (2008) found the reasoning in J.H.

I   convmcmg.

           RCW 71.09.030(1) allows a sexually violent predator petition if: (a) a person has

    been convicted of a sexually violent felony, (b) a person has been committed for a

    sexually violent offense as a juvenile, (c) a person has been charged with a sexually

    violent offense and has been determined to be incompetent to stand trial, or ( d) a person

    has been found not guilty by reason of insanity of a sexually violent offense.· Michael

    Frazier's use of the sexually violent predator act fails for the same reason. The fact that

    juvenile convictions can count as points for calculating offender scores does not create a

    right to jury trial. Involuntary commitment for sexually violent predators requires a

    separate proceeding. Though the juvenile adjudication renders Michael Frazier subject to

    a sexually violent predator petition, the juvenile conviction does not mandate a petition

    nor does the filing of a petition automatically result in involuntary commitment.

           Michael Frazier also relies on the United States Constitution's Sixth Amendment.

    The amendment declares, in pertinent part:

                  In all criminal prosecutions, the accused shall enjoy the right to a
           speedy and public trial, by an impartial jury of the state and district wherein
           the crime shall have been committed.

    Nevertheless, the United States Supreme Court has also held that trial by jury in the

    juvenile court's adjudicative stage is not a constitutional requirement. McKeiver v.

    Pennsylvania, 403 U.S. 528, 545, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971).

                                                 10
No. 33568-2-III
State v. Frazier


                                     CONCLUSION

       We affirm Michael Frazier's conviction for indecent liberties by forcible

compulsion.

       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.




WE CONCUR:




Pennell, J.




                                             11
