                                                                 -•'A7t OF V.'ASH.'NGTC-:1
                                                                 2013 JUM 17 AH » i»2


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 68006-4-1
                     Respondent,
                                                 DIVISION ONE
       v.



JEFFREY MATTHEW HARPER,                          UNPUBLISHED OPINION

                     Appellant.                  FILED: June 17, 2013


       Leach, C.J. — Jeffrey Harper appeals his conviction for four counts of first

degree rape of a child with domestic violence enhancements. He challenges (1)

the sufficiency of the evidence, (2) the performance of defense counsel, and (3) a

community custody condition prohibiting unsupervised contact with minor

children. Finding no error, we affirm.

                                         FACTS


       Harper is the stepfather of K.R., born October 10, 2002. In March 2008,

law enforcement removed K.R. and her five siblings from the care of their mother

and Harper. K.R. returned to their care in July 2009, only to be removed again in

October 2010 due to allegations of physical abuse in the home.

       In January 2011, K.R.'s Division of Child and Family Services (DCFS)

social worker, Sarah Luft, referred K.R. for a research study at the University of

Washington involving therapy for children in foster care.        Kate Conover, the

coordinator of the study, interviewed K.R. at her foster home to determine K.R.'s
No. 68006-4-1 / 2




eligibility for the study. As part of a list of standard interview questions, Conover

asked K.R. whether she had experienced various traumatic events. When asked

whether an adult had ever touched her private body parts when she did not want

them to, K.R. replied that Harper had done so. Conover asked K.R. how many

times the touching occurred, and K.R. responded that it happened "a few times."

Conover asked where the touching occurred, and K.R. stated that it happened in

the home she shared with her mother and Harper. Because Conover's interview

involved only a standard set of questions, she did not ask K.R. anything further at

the time. After Conover finished interviewing K.R., K.R. left the room to go play,

and Conover began interviewing K.R.'s foster father. K.R. returned to the room

and asked, "[W]hen are you going to ask me the scary, hard things?" When

Conover responded that she did not have any more questions for K.R., K.R.

stated that she needed to tell Conover something else and wanted to do so in

private. Conover accompanied K.R. to K.R.'s bedroom where K.R. reported what

Harper had done to her was "S-E-X." K.R. stated that it had started when she

was "three or four or five."   When Conover told K.R. that she would need to tell


other adults what had happened, including K.R.'s social worker, K.R. appeared

relieved and said, "[0]h, good, Sarah will help." Conover took extensive notes
No. 68006-4-1 / 3




about K.R.'s disclosures and reported them to DCFS, which contacted law

enforcement.


       As part of the law enforcement investigation, child interview specialist

Carolyn Webster interviewed K.R. K.R. disclosed several separate incidents of

sexual abuse to Webster. K.R. reported one incident in which she was taking a

bath and a glass door shattered. Harper took K.R., still naked from the bath, to

his bedroom, where he closed the bedroom door, removed a small piece of glass

from her foot, and then laid her on the bed facedown.             K.R. felt Harper rub

"creamy, slimy stuff' on her bottom that she identified as coming from a bottle in

a drawer in Harper's bedside table. Harper removed his underwear, sat on K.R.,

and put his "wiener" into her "B-U-T-T" while "moving up and down . . . [a]gain

and over and over and over again." K.R. reported that "[i]t hurted" and she asked

Harper to stop, but he told her to calm down.            K.R. initially stated that this

happened when she was "two, maybe one" but immediately corrected herself,

stating, "No, I don't think, no. Urn probably four or five."

       K.R. disclosed another incident in which Harper applied "white creamy

stuff to his penis, got on top of her, and inserted his penis into her mouth. She

described it as, "he goes like up, down, up, down . . . like a push up," and Harper

"was saying like urn, like he liked it." K.R. reported that "[i]t felt all gushy and all



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No. 68006-4-1 /4




yucky" and when she went into the bathroom afterward to rinse her mouth, "this

white gooey like slimy stuff" came out. K.R. stated that she was "four or five"

when this happened.

      K.R. also recounted an incident in which she was lying down pretending to

take a nap, and Harper came into her room, pulled down her pants and

underwear, and "put his finger in my back," and "it really, really, really hurted."

K.R. clarified that by "back" she meant "B-U-T-T." Harper then removed his

finger and put it in her "front" or "pee-pee." K.R. was "about maybe six" at this

time. K.R. told Webster that Harper had penetrated her vagina and anus with his

finger on multiple occasions.

       Dr. Rebecca Wiester, a pediatrician at the Harborview Center for Sexual

Assault and Traumatic Stress, also met with K.R. K.R. disclosed to Dr. Wiester

that Harper's "private part" touched her on her "back private part" and that it hurt.

However, K.R. stated that she couldn't tell if actual penetration had occurred.

K.R. also reported that something had come out of Harper's body into her mouth
and that she did not like it. Dr. Wiester performed a physical examination of

K.R., which was normal.1


    1 Dr. Wiester testified at trial that "in cases where it's been a delayed
disclosure, in other words, something hasn't happened for weeks or months," the
likelihood of a visible injury remaining was "probably less than five percent."
No. 68006-4-1 / 5




       The State charged Harper with four counts of first degree rape of a child

with domestic violence enhancements, committed between October 10, 2006, to

October 9, 2010, when K.R. was between four and seven years old. The basis

for the four counts was the four separate incidents described by K.R. to Webster:

(1) Harper penetrating her anus with his penis when she was four or five years

old, (2) Harper penetrating her mouth with his penis when she was four or five

years old, (3) Harper penetrating her anus with his finger when she was six years

old, and (4) Harper penetrating her vagina with his finger when she was six years

old.


       At trial, the State presented the testimony of Luft, Conover, Webster, Dr.

Wiester, Detective Patty Neorr of the Redmond Police Department, K.R.'s foster

parents, and K.R.     The State also played the videotape of Webster's child

interview with K.R.

       In her testimony, K.R. described the incident following the breaking of the

glass door, stating that after Harper removed glass from her foot, he penetrated
her vagina and anus with his penis, and it hurt. Her description of that incident
was consistent with her prior statements to Webster. When asked whether

Harper had ever put his penis inside her mouth, K.R. stated that she could not
remember. K.R. also did not remember how many times Harper had abused her.
No. 68006-4-1 / 6




During the middle of her testimony, K.R. began to cry, and the trial court took a

recess. Harper's defense counsel did not cross-examine K.R.

      After the State rested its case, Harper moved to dismiss the charges. The

trial court denied the motion. Harper did not put on a case.

      A jury convicted Harper on all four counts. As part of Harper's sentence,

the sentencing court imposed the following no-contact order:

       For the maximum term of life, defendant shall have no contact,
      direct or indirect, in person, in writing, by telephone, or through third
      parties with: Any minors without supervision of a responsible adult
      who has knowledge of this conviction. A sexual deviancy treatment
      provider's permission to have contact with children is required.
      Stacy Harper is not allowed to supervise.

In addition, as part of Harper's community custody conditions, the sentencing

court prohibited Harper from having "direct and/or indirect contact with minors."

       Harper appeals.

                                    DECISION


Sufficiency of the Evidence

      When reviewing a claim of insufficient evidence, this court must decide

"'whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of
No. 68006-4-1 / 7




the crime beyond a reasonable doubt.'"2        In challenging the sufficiency of

evidence, the defendant admits the truth of the State's evidence and all

inferences that reasonably can be drawn from it.3 Credibility determinations are

reserved for the trier of fact; thus, we defer to the jury on issues of conflicting

testimony, witness credibility, and persuasiveness of the evidence.4

       Harper makes several challenges to the sufficiency of the evidence. First,

Harper contends that K.R.'s testimony contained too many inconsistencies to

support the convictions.   Second, Harper claims that the State failed to prove

when the abuse took place. Third, Harper argues that the State did not present

sufficient evidence of penetration to support the convictions involving anal

intercourse.   Finally, Harper asserts that the two counts involving digital

penetration were part of the same conduct.

       To convict Harper of first degree rape of a child, the State must prove that

Harper had sexual intercourse with K.R. during a time when K.R. was less than




       2 State v. Ortiz, 119 Wn.2d 294, 311-12, 831 P.2d 1060 (1992) (internal
quotation marks omitted) (quoting State v. Bingham, 105 Wn.2d 820, 823, 719
P.2d 109(1986)).
       3 State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990).
       4 State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
No. 68006-4-1 / 8




12 years old and Harper was at least 24 months older than K.R.5 "Sexual

intercourse" is defined in RCW 9A.44.010(1):

      "Sexual intercourse" (a) has its ordinary meaning and occurs upon
      any penetration, however slight, and
            (b) Also means any penetration of the vagina or anus
      however slight, by an object, when committed on one person by
      another, whether such persons are of the same or opposite sex,
      except when such penetration is accomplished for medically
      recognized treatment or diagnostic purposes, and
            (c) Also means any act of sexual contact between persons
      involving the sex organs of one person and the mouth or anus of
      another whether such persons are of the same or opposite sex.

      1.     Inconsistencies in K.R.'s Statements


      Harper argues that K.R.'s story was too "confused and inconsistent" to

support convictions on all four counts.   Specifically, Harper claims that K.R.'s

inability at trial to remember certain details she had previously disclosed about

the abuse, such as when it began, how old she was, and whether it had even

happened, requires reversal. We disagree.

      As to the first count involving the "glass door" incident, K.R. told Webster

that she was in the bathtub when the door shattered and that while she was still

naked from the bath, Harper took her to his bedroom, removed a piece of glass

from her foot, and placed her on her stomach on the bed.        Harper applied a

creamy substance from a bottle in his bedside table to K.R.'s bottom and


      5 RCW 9A.44.073.


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No. 68006-4-1 / 9




penetrated her anus with his penis. K.R. could see Harper moving up and down

on top of her. She felt pain and begged Harper to stop, but he refused. K.R. also

disclosed to Dr. Wiester that Harper touched her anus with his penis and it hurt.

At trial, K.R.'s testimony was consistent with her earlier disclosures. She testified

that after the door broke, Harper took her to his bedroom while she was still

naked, removed the glass, placed her on her stomach on his bed, and

penetrated her anus with his penis, causing her pain.

       As to the second count involving oral penetration, K.R. told Webster that

Harper applied a creamy substance from a bottle to his penis, got on top of her,

and inserted his penis into her mouth. K.R. felt Harper ejaculate into her mouth

and spat out "white gooey like slimy stuff' when she went to the bathroom

afterward to rinse her mouth. K.R. told Dr. Wiester that something had come out

of Harper's body when he put his penis in her mouth and she did not like it. At

trial, when asked if Harper had ever touched her mouth with his penis, K.R.

stated that she could not remember.

       As to the third and fourth counts regarding digital penetration, K.R. told

Webster that Harper had put his finger into both her vagina and her anus on

several occasions. She recounted one incident in which she was pretending to

take a nap, and Harper pulled down her pants and underwear and penetrated
No. 68006-4-1 /10




first her anus and then her vagina with his finger. K.R. described the incident as

extremely painful.   However, at trial, when asked whether Harper had touched

her vagina with anything other than his penis, K.R. responded, "Just his penis."

       Because we resolve a challenge to the sufficiency of the evidence by

viewing the evidence in the light most favorable to the State, the mere existence

of inconsistent or differing evidence does not negate the sufficiency of the State's

evidence.6 The jury heard testimony regarding four separate incidents of sexual

abuse. The evidence, viewed in the light most favorable to the State, supported

conviction on all four counts.


       Relying on State v. Alexander,7 Harper argues that the inconsistencies in

K.R.'s testimony were so extreme that a rational jury could not have found

beyond a reasonable doubt that he sexually abused her on four separate

occasions.   In Alexander, a child victim of sexual abuse contradicted herself

multiple times during her testimony regarding the chronology of the abuse and

whether the events occurred at all.8 In addition, the victim's testimony differed

from other witnesses' accounts of the abuse.9           This court reversed the



    6 State v. Rafav, 168 Wn. App. 734, 843, 285 P.3d 83 (2012), review denied.
176Wn.2d 1023(2013).
    764 Wn. App. 147, 822 P.2d 1250 (1992).
    8Alexander, 64 Wn. App. at 149-50.
    9Alexander. 64 Wn. App. at 150.

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No. 68006-4-1 /11




convictions, holding that these "extreme" inconsistencies, combined with other

errors, denied the defendant a fair trial.10

       The facts of this case are distinguishable from Alexander.        Here, K.R.'s

prior statements regarding the "glass door" incident were entirely consistent with

her trial testimony. While K.R. could not remember or repeat some aspects of

the other three incidents at trial, this went to K.R.'s credibility, which is the sole

province of the trier of fact. We will not review the jury's determination of K.R.'s

credibility on appeal.

       2.     Whether the Acts Occurred during the Charging Period

       Harper contends that because the State included the charging period in

the "to-convict" instruction, the State was obligated to prove beyond a reasonable

doubt that the abuse took place between October 10, 2006, and October 9,

2010.11 He argues that the State did not meet this burden because K.R.'s reports

of how old she was when the abuse occurred were hazy or inconsistent. But the

jury heard evidence that the anal and oral penetration occurred when K.R. was

four or five years old and the digital penetration of her vagina and anus occurred



    10 Alexander, 64 Wn. App. at 158.
    11 See State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998) (in
criminal cases, the State may assume the burden of proving otherwise
unnecessary elements of the offense when such added elements are included
without objection in the to-convict instruction).


                                               -11-
No. 68006-4-1 /12




when she was six years old. Again, viewed in the light most favorable to the

State, the evidence was sufficient to establish that the events occurred during the

charging period.

         3.    Evidence of Anal Penetration


         Harper contends that the State did not present evidence that he actually

penetrated K.R.'s anus with either his penis or his finger. In doing so, Harper

relies on State v. A.M.,12 in which this court held that penetration of the buttocks,

but not the anus, was insufficient to sustain a conviction for first degree rape of a

child.   The facts of this case are different from the facts in A.M.    In A.M., the

victim testified that the defendant's penis went inside his buttocks but was

unwilling to say that it went inside his anus.13 The trial court concluded that

"penetration of the buttocks, but not the anus" was sufficient to meet the

definition of "sexual intercourse."14 This court reversed, holding that the ordinary

meaning of the term "sexual intercourse" did not encompass penetration of the

buttocks in the absence of penetration of the anal cavity.15




     12 163 Wn. App. 414, 416, 260 P.3d 229 (2011), review denied, 175 Wn.2d
1009(2012).
     13 A.M., 163 Wn. App. at 417-18.
     14 A.M., 163 Wn. App. at 418.
     15 A.M., 163 Wn. App. at 420-21.

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No. 68006-4-1 /13




       Here, there was ample evidence that Harper penetrated K.R.'s anus with

both his penis and his finger. K.R. told Webster that Harper had put his "wiener

in [her] B-U-T-T" and that she could feel it "when he puts it in." She reported that

this incident caused her significant pain. K.R. also disclosed that Harper put his

finger in her "B-U-T-T" and that she felt pressure "like a rock or maybe like

something like that."     She stated that it "really, really, really hurted."        This

evidence, viewed in the light most favorable to the State, indicated that Harper's

penis and finger penetrated K.R.'s anus, not just her buttocks.

       4.     Separate Acts of Digital Penetration

       Harper contends that the incident in which he digitally penetrated K.R.'s

anus and then her vagina while K.R. was pretending to nap did not constitute two

distinct events and therefore did not support two separate charges. But the unit

of prosecution for rape of a child is "sexual intercourse," which includes "any

penetration, however slight" of the vagina or anus.16 We agree with the State
that the facts of this case are similar to the facts in State v. Tili.17 In Jjli, during a

single incident of sexual assault, the defendant forcibly penetrated the victim's
anus with his finger, then removed his finger from her anus, and penetrated her



    16RCW9A.44.010(1)(a), (b).
    17139 Wn.2d 107, 985 P.2d 365 (1999).


                                               •13-
No. 68006-4-1 /14




vagina with his finger. The defendant then proceeded to insert his penis into her

vagina. The Washington Supreme Court affirmed the defendant's convictions for

three counts of first degree rape, holding that because "sexual intercourse" was

complete upon any penetration, the defendant committed three independent acts

of rape by committing three independent acts of penetration.18 Here, Harper

penetrated K.R.'s anus, then her vagina, with his finger. He inserted his finger

into these two orifices separately, not at the same time.       Because Harper

committed two separate acts of penetration, the jury appropriately convicted him

on two separate counts of first degree rape of a child.

Ineffective Assistance of Counsel

       Harper contends that defense counsel's performance was constitutionally

ineffective.   Specifically, Harper claims that defense counsel was generally

inexperienced and failed to satisfactorily cross-examine the State's witnesses,

including K.R., or call witnesses on Harper's behalf.

       Claims of ineffective assistance of counsel present mixed questions of law

and fact, which we review de novo.19        To prevail on a claim of ineffective

assistance, a defendant must satisfy the two-prong test under Strickland v.




    18 Till, 139Wn.2dat117.
    19 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).


                                            -14-
No. 68006-4-1 /15




Washington,20 showing (1) that counsel's performance fell below an objective

standard of reasonableness based on a consideration of all the circumstances


and (2) that the deficient performance prejudiced the trial.21 The reasonableness

inquiry presumes effective representation and requires the appellant to show the

absence of legitimate strategic or tactical reasons for the challenged conduct.22

To show prejudice, the appellant must prove that but for the deficient

performance, there is a reasonable probability that the outcome would have been

different.23 When an appellant raises an ineffective assistance of counsel claim

on direct appeal, we do not consider matters outside the trial record.24

       In support of his claim that defense counsel was inexperienced, Harper

cites to only one instance in the record. On the morning of trial, defense counsel

provided a three-page proposed jury questionnaire. The trial court suggested

using its own standard questionnaire, which was similar in content but fit the

questions on a single page. Defense counsel had no objection, stating, "I didn't

know the policies usually with this kind of case."      Defense counsel's lack of




    20 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
    21 Strickland. 466 U.S. at 687; State v. Nichols. 161 Wn.2d 1, 8, 162 P.3d
1122(2007).
    22 State v. McFarland. 127Wn.2d 322, 336, 899 P.2d 1251 (1995).
    23 In re Pers. Restraint of Pirtle. 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
    24 McFarland. 127 Wn.2d at 335.

                                            -15-
No. 68006-4-1 /16




familiarity with the trial court's preference regarding jury questionnaires does not

suggest that defense counsel was inexperienced generally or in the area of child

sex abuse cases.


       Harper also fails to show that defense counsel's trial performance was

deficient or resulted in prejudice.     Although Harper contends that defense

counsel should have cross-examined K.R. to point out the inconsistencies in her

testimony, we presume defense counsel made a reasonable and strategic

decision not to question a crying child in order not to arouse the sympathy of the

jury further or open the door to more detailed testimony about the abuse.

Moreover, even without cross-examining K.R., defense counsel was adequately

able to argue to the jury that her inability to remember some of the incidents at

trial should constitute reasonable doubt.     As to the State's other witnesses,

Harper does not identify what questions he believed defense counsel failed to

ask.   Harper's    bare assertion that defense       counsel's cross-examination

techniques "proved detrimental to the case" is insufficient.

       Harper's claim that defense counsel was ineffective for failing to call a

defense investigator to testify is similarly without merit. Harper does not explain

how the outcome of his trial would have differed had the investigator testified and

therefore does not show that he was prejudiced by defense counsel's action.



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No. 68006-4-1 /17




Sentencing Condition Involving Contact with Minor Children

       Under RCW 9.94A.505(8), a trial court may impose "crime-related

prohibitions" for a term of the maximum sentence to a crime, independent of

conditions of community custody.25      "Crime-related prohibitions" are orders

directly related to "the circumstances of the crime."26 Determining whether a

relationship exists between the crime and the condition "'will always be

subjective, and such issues have traditionally been left to the discretion of the

sentencing judge.'"27   Thus, we review sentencing conditions for abuse of

discretion.28

       Harper argues that the trial court exceeded its authority by imposing a

sentencing condition prohibiting unsupervised contact with minor children. He

claims the condition interferes with his constitutional right to parent his own

biological children and is not reasonably crime-related because there was no

evidence he posed a risk to his own children.

       A parent has the constitutional right to raise children without State

interference, but a sentencing court may impose limitations on this right when


    25 State v. Armendariz, 160Wn.2d 106, 112, 120, 156P.3d201 (2007).
    26 Former RCW 9.94A.030(13) (2006).
    27 State v. Parramore. 53 Wn. App. 527, 530, 768 P.2d 530 (1989) (quoting
David Boerner, Sentencing in Washington 4-7 (1985)).
   28 State v. Riley. 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).


                                          -17-
No. 68006-4-1 /18




reasonably necessary to further the State's compelling interest in protecting

children.29 Citing State v. Letoumeau,30 Harper argues that the sentencing court

lacked the authority to restrict contact with his own children because there was

no evidence he ever molested them or posed a risk to them. But Letoumeau is

inapposite because the victim in that case was the defendant's student, not a

family member who lived in the home.        Here, the condition restricting contact

between Harper and minor children is clearly crime-related. While Harper was

not K.R.'s biological parent, he lived with her in a parent-child relationship and

committed the abuse in the home. He used his relationship with K.R. to gain her

trust and to get her alone.    Moreover, at the time of trial, Harper's biological

children were three and seven, making them similar in age to the age K.R. was

when Harper abused her. Restricting Harper's contact with his biological children

was reasonably related to preventing Harper from committing the same abuse

that he committed against K.R. Although Harper argues that his abuse of K.R.,

his stepdaughter, is insufficient to show that he was at risk to abuse his biological




    29 State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008).
    30100 Wn. App. 424, 997 P.2d 436 (2000).

                                            -18-
No. 68006-4-1 /19




son,31 we agree with the State that the abuse Harper committed against K.R.

involved incidents of anal and oral penetration, which are not gender-specific.32

       Furthermore, the condition that Harper challenges is narrowly tailored to

meet the State's objectives.    Harper is not restricted completely from having

contact with his biological children. Rather, Harper must first get the permission

of a sexual deviancy treatment provider, and the contact must be supervised by a

responsible adult who has knowledge of Harper's conviction.         Accordingly, we

affirm Harper's sentencing condition prohibiting contact with all minor children,

including his biological children, as a valid crime-related prohibition that does not

unduly burden his fundamental parenting rights.

      Affirmed.




                                                    JU2^0£&(        C- -

WE CONCUR:




                                                        (jOX.T

    31 Harper argues that the sentencing condition should be stricken because
the "father-son contact" does not pose a danger to his "sons." However, the
record indicates that Harper's biological children with K.R.'s mother include both
a son, I.H., and a daughter, J.H.
    32 See, e.g.. State v. Corbett, 158 Wn. App. 576, 600, 242 P.3d 52 (2010).

                                            -19-
