     /Fli:E"'
           IN CLERKS OFFICE
                                                            This opinion was filed for record
  IIJI'm1MF. COURT, BTATE OF WASHINGTON
DATE_AUG 1 8 2016                                           at)(:.~lle
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  --CHI~-EF        Jusncer--                                         SAN~~                      '
                                                                  Supreme Court Clerk

                  IN THE SUPREME COURT OF THE STATE OF WASHINGTON


         THE STATE OF WASHINGTON,                       )
                                                        )    No. 92274-8
                                          Respondent,   )
                                                        )
                   v.                                   )    EnBanc
                                                        )
         MICHAEL RAY GOSS,                              )
                                                        )
                                          Petitioner.   )    Filed   AIJG 1 13 2016
         ____________________ )
                    GONZALEZ, J.-Those charged with a crime have the constitutional

          right to know "the nature and cause of the accusation" made against them

          and the constitutional right to notice of every fact (other than prior

          convictions) that increases the penalties they face. WASH. CONST. art. I, §

          22; Apprendi v. New Jersey, 530 U.S. 466,476, 120 S. Ct. 2348, 147 L. Ed.

          2d 435 (2000) (quoting_Jones v. United States, 526 U.S. 227, 243 n.6, 119 S.

          Ct. 1215, 143 L. Ed. 2d 311 (1999)). Michael Goss argues that the charging

          document the State used to accuse him of second degree child molestation

          failed to meet this constitutional standard because it failed to allege that the

          victim was "at least twelve years old," the lower limit ofthe age range for

          that degree of the crime. RCW 9A.44.086(1). We conclude that Goss had
State v. Goss, No. 92274-8


notice of the nature and cause of the accusation against him and notice of

every fact that exposed him to a greater penalty. We affirm.

                                     FACTS

       The victim in this case, E. F., is the granddaughter of Goss's former

fiancee. During the years Goss and E.F. 's grandmother were together, E.F.

regularly visited, regularly spent the weekend, and regularly helped out with

yard work and house work. For most ofthose years, Goss and E.F. seemed

to get along well and had a playful relationship.

       One summer Saturday in 2013, E.F.'s family held a family reunion on

the Olympic Peninsula at Port Hadlock, a ferry ride away from where E.F.

lived. Despite their earlier friendly relationship, E.F. resisted riding with

Goss and wanted nothing to do with him. When Goss "tr[ied] to talk to her .

. . she would answer him mdely ... , something that wasn't ordinary for

her." 2 Verbatim Tr. of Proceedings (VTP) (July 7, 2014) at 290.

       After the reunion, on the way to the ferry dock, E.F. 's mother and

aunt criticized the way E.F. had treated Goss, leaving E.F. angry and in

tears. During the crossing, E.F. stayed in the car while her mother and aunt

walked around the ferry. E.F. 's uncle lingered behind after they left to ask

E.F. what was going on between her and Goss. After initial reluctance, E.F.

told her uncle that Goss had fondled her breasts. Her uncle listened to her



                                        2
State v. Goss, No. 92274-8


and persuaded her to tell her mother. For the rest of the ferry ride, E.F.'s

uncle kept himself between E.F. and Goss.

       Late that evening, with her uncle at her side, E.F. told her mother

what Goss had done. Within the hour, E.F. 's mother called the police.

Within a day, E.F.'s mother told her own mother, who immediately ended

her relationship with Goss. Goss was initially charged with one count of

second degree child molestation. Later, a charge of attempted third degree

child molestation was added.

       E.F. testified at trial. She did not name any specific dates, but

testified that Goss put his hands under her clothes and fondled her breasts

once when she was in the seventh grade. She also described several

incidents where Goss attempted to fondle her. Near the close of evidence,

the State successfully moved to amend the charges to conform to the time

frame E.F. testified to at trial.

       Goss generally denied the events and sought, in his words, to

"'impeach[]'" the victim. 1 VTP (July 2, 2014) at 22. His defense focused

on the fact that E.F. had been inconsistent in stating the number of times she

had been molested, when those molestations occurred, why she had not

come forward earlier, and whether she had told anyone about the

molestation before she told her uncle. At no point did Goss suggest that E.F.



                                        3
State v. Goss, No. 92274-8


was younger than 12 when the molestation was alleged to have happened.

The jury found Goss guilty of second degree child molestation and not guilty

of attempted third degree child molestation.

       The Court of Appeals affirmed. State v. Goss, 189 Wn. App. 571, 358

P.3d 436 (2015). We granted review oftwo ofthe three issues Goss

presented in his petition. 185 Wn.2d 1001, 366 P.3d 1243 (2016).

                                  ANALYSIS

                   1. ADEQUACY OF THE CHARGING DOCUMENT

       We review the constitutional adequacy of charging documents de

novo. State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014) (quoting

State v. Siers, 174 Wn.2d 269,273-74,274 P.3d 358 (2012)). When, as

here, the adequacy of the charging document is challenged for the first time

on appeal and when, as here, no prejudice is alleged, this court will

"examine the document to determine ifthere is any fair construction by

which the elements are all contained in the document." State v. Hopper, 118

Wn.2d 151, 155-56, 822 P.2d 775 (1992) (citing State v. Kjorsvik, 117

Wn.2d 93, 105, 812 P.2d 86 (1991)); Opening Br. of Appellant at 15-19 (not

alleging actual prejudice).

       Goss argues that the charging document was fatally defective because

it did not allege the victim was at least 12 years old as required, he contends,



                                       4
State v. Goss, No. 92274-8


by the second degree child molestation statute, RCW 9A.44.086; due

process; the Sixth Amendment to the United States Constitution; and Alleyne

v. United States,_ U.S._, 133 S. Ct. 2151, 2161, 186 L. Ed. 2d 314

(2013). Suppl. Br. ofPet'r at 1-2. The State argues that the fact the victim

was at least 12 years old is not an element of the crime of child molestation;

rather, it is "a ceiling that separates it from a higher degree" ofthe crime.

Suppl. Br. ofResp't at 1. We agree with the State that the lower limit of the

age range is not an element of child molestation under either Washington

law or the federal constitution.

       The original 2013 information charged in relevant part:

                   Count 1 Child Molestation In The Second Degree

              That the defendant MICHAEL RAY GOSS in King County,
       Washington, between or about September 25, 2011 and September 24,
       2012, being at least 36 months older than [E.F.] (DOB 09/25/1998),
       had sexual contact for the purpose of sexual gratification with [E.F.]
       (DOB 09/25/1998), who was 13 years old and not married to and not
       in a state registered domestic partnership with [E.F.] (DOB
       09/25/1998).

Clerk's Papers (CP) at 1. Initially, the State alleged the molestation

occurred when E.F. was 13, but after her testimony, the State amended the

information to allege:

             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


                                        5
State v. Goss, No. 92274-8


       [E.F.] (DOB 9/25/98), had sexual contact for the purpose of sexual
       gratification with [E.F.] (DOB 9/25/98), who was less than 14 years
       old and not married to and not in a state registered domestic
       partnership with [E.F.] (DOB 9/25/98).

CP at 67.

        "[A]ll essential elements of an alleged crime must be included in the

charging document in order to afford the accused notice ofthe nature of the

allegations so that a defense can be properly prepared," along with the

particular facts supporting them. Kjorsvik, 117 Wn.2d at 101-02 (emphasis

omitted) (citing 2 WAYNE LAFAVE & JEROLD ISRAEL, CRIMINAL PROCEDURE

§ 19.2, at 446 (1st ed. 1984)). Those the State accuses are not required "to

search for the rules or regulations they are accused of violating." Id. at 101

(citing State v. Jeske, 87 Wn.2d 760, 765, 558 P.2d 162 (1976)).

       While the legislature generally defines the elements of a crime, not

every clause in every statute in Title 9A RCW creates an essential element

of a crime. Instead, "'[a]n essential element is one whose specification is

necessary to establish the very illegality of the behavior charged."' State v.

Zillyette, 178 Wn.2d 153, 158,307 PJd 712 (2013) (internal quotation

marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P .3d 640

(2003)). A fact can also become an element of the crime because of the

consequences of its proof. "[A]ny 'facts that increase the prescribed range



                                       6
State v. Goss, No. 92274-8


of penalties to which a criminal defendant is exposed' are elements ofthe

crime" (except prior convictions under some circumstances). Alleyne, 133

S. Ct. at 2160 1 (quoting Apprendi, 530 U.S. at 490); Descamps v. United

States,_ U.S. __, 133 S. Ct. 2276,2288, 186 L. Ed. 2d 438 (2013)

(quoting Apprendi, 530 U.S. at 490). This is not an exhaustive list. See

generally State v. Tinker, 155 Wn.2d 219, 221, 118 P.3d 885 (2005).

       The State accused Goss of second degree molestation under RCW

9A.44.086(1). That statute says:

       A person is guilty of child 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.

RCW 9A.44.086 is one of three child molestation statutes, each of which

designates a different degree ofthe crime depending on the age of the victim


1
 Alleyne does not directly concern charging. In Alleyne, the defendant was convicted of
a federal fireanns offense that carried a five year mandatory minimum if the defendant
carried a firearm and a seven year mandatory minimum if that firearm was brandished.
133 S. Ct. at 2155 (citing 18 U.S.C. § 924(c)(l)(A)). A jury found beyond a reasonable
doubt Alleyne carried a fireann. !d. at 2156. The trial court found by a preponderance of
the evidence that Alleyne brandished that firearm and based his sentence on the higher
mandatory minimum. I d. The United States Supreme Court concluded that a fact that
"increase[ d] [the] sentencing floor ... forms an essential ingredient of the offense" and
"was an element, which had to be found by a jury beyond a reasonable doubt." I d. at
2161, 2163. We acknowledge that we found otherwise in the context of indeterminate
life sentences for sex offenders in State v. Clarke, 156 Wn.2d 880, 893, 134 P.3d 188
(2006), but this case does not give us an opportunity to explore whether Clarke remains
good law. Unpreserved Apprendi charging defects have been held harmless. See United
States v. Cotton, 535 U.S. 625, 627, 632-33, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002).


                                            7
State v. Goss, No. 92274-8


and the age difference between the victim and the perpetrator. First degree

child molestation requires a victim younger than 12 and a perpetrator who is

at least 36 months older. RCW 9A.44.083. Third degree child molestation

requires a victim younger than 16 and a perpetrator who is at least 48

months older. RCW 9A.44.089. The legislative purpose in dividing the

crime into these three degrees is not hard to discern. The legislature has

reserved the harshest punishments for those who victimize the youngest

children.

       Goss contends that the low end of the age range is an essential

element of the crime that must be charged and proved and that the three

degrees of child molestation are analytically separate crimes, not greater or

lesser degrees of each other. The necessary consequence of this position, as

Goss forthrightly acknowledged at oral argument, is that a defendant

charged with second degree child molestation would be necessarily acquitted

if the victim testified at trial she was less than 12. See Wash. Supreme Court

oral argument, State v. Goss, No. 92274-8 (July 7, 2016) at 35 min., 34 sec.

to 36 min., 24 sec., audio recording by TVW, Washington State's Public

Affairs Network, http://www.tvw.org. We find this untenable both as a

matter of statutory construction and constitutional law.




                                       8
State v. Goss, No. 92274-8


       Not every clause in a criminal statute creates an element of a crime.

Ward, 148 Wn.2d at 813. Again, '"[a]n essential element is one whose

specification is necessary to establish the very illegality of the behavior

charged."' Zillyette, 178 Wn.2d at 158 (internal quotation marks omitted)

(quoting Ward, 148 Wn.2d at 811). Facts that merely divide a lower degree

of a crime from a higher one will rarely meet this standard. Our opinion in

Ward is illustrative. Ward concerned domestic violence statutes that made

violations of a no-contact order a felony under certain circumstances,

including when the violation is accompanied by an assault. Ward, 148

Wn.2d at 805 (citing former RCW 10.99.040(4)(b) and 10.99.050(2)

(1997)). Among other things, those statutes 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."' Id. at 810 (quoting RCW 26.50.110(4) and

citing former RCW 10.99.040(4)(b) (1997); former RCW 10.99.050(2)

(1997)). While plainly the felony-elevating assault was an element that had

to be charged and proved, we found that the statutory language "'does not

amount to assault in the first or second degree'" did not establish an

essential element of the crime. Id. at 806. We looked at the purpose ofthe

statute: to ensure that violations of no-contact orders accompanied by assault



                                        9
State v. Goss, No. 92274-8


were punished as felonies. Id. at 813. "The legislature did not need to

increase the penalty for first or second degree assault, since in their own

right the crimes are class A and B felonies respectively." Id. at 812. The

"does not amount to" clause was not a statutory element because it was not

necessary for establishing the criminality of the act. Id. (citing State v.

Azpitarte, 140 Wn.2d 138, 142,995 P.2d 31 (2000)).

       Similarly, in Tinker, we found that statutory language did not create

an essential element of the crime. In Tinker, the defendant was charged with

third degree theft under a former version of the statute that said in relevant

part, "'A person is guilty of theft in the third degree if he or she commits

theft of property or services which (a) does not exceed two hundred and fifty

dollars in value."' 155 Wn.2d at 222 (quoting former RCW 9A.56.050(1)

(1998) ). The charging document did not allege a value for the snowboarding

pants Tinker allegedly stole. Id. at 220-21. Tinker unsuccessfully

challenged the charging document during the trial for omitting the allegedly

essential element of value. Id. at 221. We found that the value of the object

alleged to be stolen was not an essential element of third degree theft; it

simply divided the lowest degree of the crime from the next higher one. Id.

at 222; see also State v. Leyda, 157 Wn.2d 335, 341, 138 P.3d 610 (2006)

("[V]alue is not an essential element of second degree identity theft and need



                                        10
State v. Goss, No. 92274-8


not be alleged in the charging document."); State v. Keend, 140 Wn. App.

858, 870-72, 166 P.3d 1268 (2007) (holding that the statutory phrase "not

amounting to assault in the first degree" is not an essential element of second

degree assault).

       Based on Ward, Tinker, Leyda, Keend, and the overall statutory

scheme, we conclude that the "who is at least twelve years old" clause in the

second degree child molestation statute does not create an essential element

of the crime. RCW 9A.44.086(1). The lower age limit (unlike the highest) is

not a fact "'whose specification is necessary to establish the very illegality

of the behavior charged."' Zillyette, 178 Wn.2d at 158 (internal quotation

marks omitted) (quoting Ward, 148 Wn.2d at 811)_2

       Our conclusion is bolstered by the fact that our Court of Appeals has

repeatedly held that the lower age limit is not an element of analogous

crimes without any corrective legislative response. See, e.g., State v. Smith,

122 Wn. App. 294, 296, 93 P.3d 206 (2004); State v. Dodd, 53 Wn. App.

178, 180-81, 765 P.2d 1337 (1989). The legislature's failure to respond

suggests it does not think the lower age threshold in statutes involving

sexual contact with children functions as an element.


2
  The fact that establishes the very illegality of child molestation is that the victim was
under the age of 16; if younger than that, it is a matter of degree. If the State wishes to
seek a higher penalty, it would be wise to allege the younger age.


                                              11
State v. Goss, No. 92274-8


       While criminal statutes are strictly construed, "it is not true that they

are to be construed so strictly that they would be defeated by a forced and

over-strict construction." State v. Larson, 119 Wash. 123, 125, 204 P. 1041

(1922) (citing United States v. Morris, 39 U.S. (14 Pet.) 464, 10 L. Ed. 543

(1840)). But see RCW 1.12.010 ("The provisions of this code shall be

liberally construed, and shall not be limited by any rule of strict

construction."). Requiring the State to allege the victim was at least 12 years

old would not further the announced legislative purpose of protecting "the

children of Washington from sexual abuse." LAWS OF 1994, ch. 271, §§ 301-

07.

       We also conclude that the lower age limit does not need to be treated

as an element under the Apprendi line of cases. See 540 U.S. at 490.

Second degree child molestation is a class B felony and carries a lower

presumptive sentence than first degree child molestation, a class A felony.

RCW 9A.44.086, .083; RCW 9A.20.021(1)(a), (b). It is not a fact that will

increase the penalty the defendant faces. See Alleyne, 133 S. Ct. at 2160

(quoting Apprendi, 530 U.S. at 490).

                             2. CLOSING ARGUMENr

       Next, we must decide whether the trial court violated Goss's right to

present a defense when it excluded argument that the jury could draw a



                                        12
State v. Goss, No. 92274-8


negative inference from the fact the State had not offered a recording of a

detective's interview with Goss.

       Briefly, the State had in its possession a 50 minute recording of the

investigating detective's initial interview with Goss. Prior to trial, Goss

moved to redact portions of the recording relating to pornography found on a

computer seized from Goss's house and prior allegations of child

molestation made against him. The State indicated that it did not plan to

play the recording in its case in chief, and the trial judge reserved ruling until

and unless the recording was offered. Neither side moved to admit the

recording, and it is not part of the record on appeal. Prior to closing

arguments, the State moved to exclude any argument about the recorded

statement. Goss opposed the motion, arguing that he should be able to point

out that the State had evidence it did not present. The trial court concluded

that the recording was "inadmissible ... hearsay and would only be

admissible if it was an admission offered by a party opponent, and the party

opponent didn't offer it." 3 VTP (July 8, 2014) at 672. However, the trial

court did allow the defense to argue that "'[t]he detective spends 50 minutes

with my client and 10 minutes with so-and-so,' and things like that." !d.

       "We review the trial court's decision to limit closing argument for

abuse of discretion." State v. Wooten, 178 Wn.2d 890, 897, 312 P.3d



                                        13
State v. Goss, No. 92274-8


41(2013) (citing State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160

(2000)). "A court abuses its discretion 'only if no reasonable person would

take the view adopted by the trial court."' !d. (quoting State v. Huelett, 92

Wn.2d 967, 969, 603 P.2d 1258 (1979)). While counsel has considerable

latitude in closing argument, argument "must be restricted to the facts in

evidence and the applicable law, lest the jury be confused or misled." Perez-

Cervantes, 141 Wn.2d at 474.

       Goss does not challenge the trial judge's conclusion that the recording

contained hearsay and does not contend that it contained anything helpful to

him. Instead, he contends, since the State could have offered the tape under

ER 801 (d)(2), its failure to do so is analogous to a party not offering a

witness that is peculiarly available to it or to the State commenting on what a

defendant who waives the right to silence does not say. Suppl. Br. ofPet'r

at 17-18 (citing State v. Flora, 160 Wn. App. 549, 556, 249 P.3d 188 (2011);

State v. Clark, 143 Wn.2d 731,765,24 P.3d 1006 (2001)). He argues that

any error was not harmless because the jury must have had doubts or it

would not have acquitted him of attempted third degree child molestation.

!d. at 20.

       Goss's analogy to the missing witness doctrine is not persuasive.

Under that doctrine, '"where evidence which would properly be part of a



                                       14
State v. Goss, No. 92274-8


case is within the control of the party whose interest it would naturally be to

produce it, and, ... he fails to do so, -the jury may draw an inference that it

would be unfavorable to him."' State v. Blair, 117 Wn.2d 479, 485-86, 816

P.2d 718 (1991) (alteration in original) (quoting State v. Davis, 73 Wn.2d

271, 276, 438 P.2d 185 (1968), overruled on other grounds by State v.

Abdulle, 174 Wn.2d 411, 275 P.3d 1113 (2012)). Among other things, the

doctrine applies '"only where, under all the circumstances of the case, such

unexplained failure to call the witnesses creates a suspicion that there has

been a willful attempt to withhold competent testimony."' !d. at 488

(quoting State v. Baker, 56 Wn.2d 846, 859-60, 355 P.2d 806 (1960)).

Nothing here creates such a suspicion. Goss did not make an offer of proof

regarding the tape and in fact moved to redact portions relating to prior

allegations of child molestation made against Goss by his daughter. The

detective who questioned Goss on the tape testified at trial. The State may

well have concluded it was better to present any relevant evidence through

live testimony rather than a heavily redacted recording or transcript. The

defense was allowed, over objection, to elicit from the detective that the

interview was recorded. Nothing in this record suggests the State's decision

not to play the tape was nefarious. Goss has not shown the trial court abused

its discretion because the tape was analogous to a missing witness.



                                       15
State v. Goss, No. 92274-8


       Nor are we persuaded that the State's decision not to offer the

recordings is analogous to the State commenting on what a defendant who

has waived the right to remain silent fails to say. Suppl. Br. ofPet'r at 18

(citing Clark, 143 Wn.2d at 765). We find the trial court did not abuse its

discretion.

                                 CONCLUSION

       We hold that the fact that the victim was "at least twelve years old" is

not an essential element of second degree child molestation. We hold the

trial court did not abuse its discretion in limiting closing argument.

Accordingly, we affirm.




                                       16
State v. Goss, No. 92274-8




WE CONCUR:




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