                                                                                  COURT OF APPEALS
                                                                                         DIVISION II
                                                                                2015JJN 13 AMU: 18

                                                                                 STATE OF WASHINGTON
                                                                                 8Y...
                                                                                            PUTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

    STATE OF WASHINGTON,                                                        No. 45599 -4 -II


                                           Respondent,


           v.



    RIKKI DONNELL COOPER,                                                   UNPUBLISHED OPINION


                                           Appellant.


          WoRSwIcK, P. J. —            The trial court found Rikki Donnell Cooper guilty of three counts of

first degree child molestation) following a bench trial. Each count relates to a separate incident

between 2005 and 2009 where Cooper had unlawful sexual contact with E. S. 2 Cooper appeals

count 3, arguing that the evidence of unlawful sexual contact with E. S. was insufficient to

support the trial court' s finding of fact that Cooper touched E. S' s vagina over her clothes.

Because sufficient evidence supports the trial court' s finding and that finding supports the

conviction, we affirm.




1 RCW 9A.44. 083.

2
    We   refer   to E. S.   by her   initials to   protect   her privacy.
No. 45599 -4 -II




                                                              FACTS


          Kim Lee is the       mother of       E. S.,   a child   born in 1999.      Although E. S.' s grandmother is


E. S.' s legal guardian, E. S. would occasionally stay at Lee' s home in Tacoma, Washington

between 2005       and   2009.     Cooper resided at Lee' s home during that time.

          When Lee was not at home, multiple incidents occurred where Cooper had sexual contact

with   E. S.   On the occasion that forms the basis for count 3, Cooper kissed E. S. on the face and


touched her " vaginal area" on the outside of her pajama pants. Report of Proceedings ( RP)


 Sept. 23, 2013) at 21.


          At a bench trial, E. S. testified to all the incidents of sexual contact. E. S. testified that the


incident at issue here occurred at Lee' s house when E. S. was about to turn eight years old. She

testified that she, her sister, and Cooper went upstairs at Lee' s house to pick out a movie.

Cooper told E. S.'      s sister   to   go   downstairs    and    then told E. S. to   sit on   his   lap.   Cooper began


 rubbing"      and "   touching" E. S. RP ( Sept. 23, 2013)              at   20. Cooper tried to kiss E. S. on the face


and attempted to stick his tongue in her mouth. E. S. then told Cooper not to touch her. E. S.

testified that she and Cooper then went downstairs to watch the movie and Cooper got into E. S.' s

bed with her. Cooper then " kept touching [ E. S.' s] vaginal area" on the outside of her pajama

pants. RP ( Sept. 23, 2013) at 21.


          During cross -examination, E. S. testified that this third incident did not occur downstairs

in her bed but upstairs while she was picking out a movie. E. S. testified that during that incident

Cooper kissed her on the face, tried to put his tongue in her mouth. She responded " yes" when

asked    if Cooper     put   his hand    on   the " front"   of   her   pajama.    RP ( Sept. 23, 2013)       at   67.
No. 45599 -4 -II




           The trial court found Cooper guilty of three counts of first degree child molestation.

Regarding the incident at issue, the trial court found that Cooper " attempted to stick his tongue in

E. S.'   s mouth" and " started        rubbing E. S.'   s vagina over clothes."   Clerk' s Papers ( CP) at 70. The


trial court also entered conclusions of law that the State proved beyond a reasonable doubt that

 the defendant          used   his hand to touch E. S.'   s vagina over clothes [ sic]"   and that Cooper is " guilty

of count       3 [ third incident], Child Molestation in the First Degree."         CP    at   74 -75.   Cooper appeals.




                                                          ANALYSIS .


               Cooper challenges the sufficiency of the State' s evidence supporting his conviction for

count     3.    Cooper argues that insufficient evidence supports the finding that Cooper rubbed E.S.' s

vagina over her clothes, and as a result, the trial court erred by concluding that Cooper used his

hand to touch E.S.' s vagina over her clothes. Specifically, Cooper argues that there was

insufficient evidence to prove that Cooper " touched an intimate part of E. S. with respect to count


3" because, on cross -examination, E. S. did not describe where Cooper touched her. Br. of App.

at7.



                                                 I. STANDARD OF REVIEW


               When, as here, a trial court enters findings of facts and conclusions of law following a

bench trial, we determine whether substantial evidence supports the findings, and if so, whether

the findings support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114

P. 3d 699 ( 2005).          Substantial evidence is evidence sufficient to persuade a fair -minded, rational


person of        the   finding' s   truth. 128 Wn.   App.   at   193. Unchallenged findings of fact are verities on




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No. 45599 -4 -II




appeal.    128 Wn.        App.   at   193.   We review conclusions of law de novo. Stevenson, 128 Wn. App.

at 193.


          A claim of insufficiency admits the truth of the State' s evidence and all reasonable

inferences drawn therefrom. State                v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "[ A] 11


reasonable inferences from the evidence must be drawn in favor of the State and interpreted most


strongly   against       the defendant."      119 Wn.2d       at   201.   Circumstantial evidence and direct evidence


are   deemed equally        reliable.    State   v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). " We


defer to the fact finder' s resolution of conflicting testimony, witness credibility, and

persuasiveness of         the   evidence."     State v. O' Neal, 126 Wn. App. 395, 424, 109 P. 3d 429 ( 2005).

          To convict Cooper of first degree child molestation, the State had to prove that ( 1)


Cooper had      sexual contact with          E. S., ( 2) E. S.   was    less than twelve   years old, ( 3)   Cooper was not


married    to E. S., (   4) Cooper was at least thirty -six months older than E. S, and ( 5) the act occurred

in Washington. RCW 9A.44. 083. "                      Sexual contact" is 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 or

a   third party."   RCW 9A.44. 010( 2).


                                  II. FINDINGS OF FACT AND CONCLUSIONS OF LAW


          Cooper argues that insufficient evidence supports the trial court' s finding of fact that

Cooper rubbed E. S.' s vagina over her clothes, and as a result, the trial court erred by entering the

conclusion of law that Cooper used his hand to touch E. S.' s vagina. We disagree. The trial court


found the testimony of E. S. credible, and that testimony provided substantial evidence to support

the finding of fact.




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No. 45599 -4 -I1




         E. S. testified that Cooper began rubbing and touching her after he told her sister to go

downstairs. E. S. testified that Cooper began rubbing her " vaginal area" outside of her pajama

pants.   RP ( Sept. 23, 2013)   at   21.   E. S. also testified that Cooper put his hand on the front of her


pajama pants. The trial court found this testimony credible, and as such, this testimony provides

substantial evidence to support the trial court' s finding that Cooper rubbed E. S.' s vagina over her

clothes.




           Cooper argues that E. S.' s testimony on direct examination was inconsistent with her

testimony on cross -examination regarding where in Lee' s house the third incident took place and

whether     Cooper touched E. S.     Cooper argues that as a result, there was insufficient evidence to


show that Cooper touched an intimate part of E.S. because she did not describe where Cooper

touched her. But on cross -examination, E. S. agreed that Cooper touched her on the " outside" of


her   pajama pants "[   i] n the front." RP ( Sept. 23, 2013) at 67. Regardless of E. S.' s inconsistent


testimony about what part of the house the conduct occurred, E. S.' s testimony on direct that

Cooper rubbed her " vaginal area" outside her pajamas is consistent with her answers on cross -

examination     that Cooper touched the       outside of   her   pajamas "[   i] n the front." RP ( Sept. 23, 2013)


at 21, 67. Accordingly, this testimony provides substantial evidence to support the trial court' s

finding that Cooper rubbed E. S.' s vagina over her clothes.

           The trial court' s finding that Cooper rubbed E. S.' s vagina over her clothes, supported by

substantial evidence, supports the conclusion that the State proved beyond a reasonable doubt


that Cooper used his hand to touch E. S.' s vagina over her clothes. Substantial evidence supports


the trial court' s finding that Cooper rubbed E. S.' s vagina over her clothes, and that finding




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No. 45599 -4 -II




supports the conclusion that Cooper is guilty of first degree child molestation regarding the third

incident. Accordingly, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




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