STATE v. SCHAEFER

QUINN-BRINTNALL, C.J.

Michael Schaefer, Jr., was convicted of first degree rape of a child, first degree child molestation, and indecent exposure. In this appeal, Schaefer asserts that there was insufficient evidence to support the molestation count, that the prosecutor committed misconduct, and that he received ineffective assistance of counsel. Schaefer also challenges the trial court's refusal to grant a Special Sex Offender Sentencing Alternative (SSOSA) evaluation and its setting of determinate minimum terms on the rape and molestation counts outside the standard range for each crime. Finding there was sufficient evidence to support the molestation count and that Schaefer received a fair trial, we affirm his convictions. However, because the trial court imposed determinate minimum terms based on disputed facts which had not been found beyond a reasonable doubt by a jury, we vacate Schaefer's determinate minimum term sentences on the rape and molestation counts and remand for resentencing.

FACTS

On May 1, 2003, five-year-old G.H. told her stepmother that her vagina hurt and that G.H.'s stepfather, Schaefer, had masturbated in front of her. After G.H.'s stepmother called the police, G.H. talked with a child interviewer. During the interview, G.H. repeated her previous disclosure and also stated that Schaefer had put his finger in her vagina `[a]s far as it stops.' 4 Report of Proceedings (RP) at 97. She also indicated that Schaefer had made her touch his penis and that the entire incident had occurred when her mother was at work.

In an interview with police, Schaefer initially denied that anything inappropriate had occurred with G.H. Schaefer stated that while he had been applying an ointment to G.H.'s crotch, she had asked him where babies come from. According to Schaefer, he told her that they came from her vagina and then lightly touched it to indicate where that was. Schaefer denied that he digitally penetrated G.H.'s vagina. But when asked about G.H.'s masturbation allegation, Schaefer told the officer that he had intentionally masturbated in front of G.H. for sexual gratification, `to show her how a boy . . . plays with his peepee.' 5 RP at 141, 143.

The State charged Schaefer with first degree rape of a child, first degree child molestation, and indecent exposure. At trial, G.H. testified that Schaefer had masturbated in front of her and that it hurt `[a] little' when Schaefer had put his finger `a little bit' into her vagina. 4 RP at 64. When asked whether Schaefer had told her to touch his penis, G.H. testified: `On accident. On accident. . . . No. Huh-uh.' 4 RP at 65. At the close of G.H.'s testimony, the prosecutor asked G.H. whether she had told the truth, to which G.H. answered `[y]es.' 4 RP at 66.

Schaefer would also testify at trial, largely repeating what he had said during the police interview. Schaefer denied digitally penetrating G.H.'s vagina but did admit that he broke the plane of G.H.'s vaginal lips.

Schaefer was found guilty as charged. At sentencing, Schaefer requested a continuance so he could obtain an evaluation to determine whether he was a candidate for the SSOSA program. The trial court denied the request and, pursuant to RCW 9.94A.712, imposed maximum-term sentences of life on the rape and molestation counts. In setting the statutorily required determinate minimum terms, the trial court found that there existed four aggravating factors which warranted a departure from the standard range: the particular vulnerability of G.H., that Schaefer's acts constituted an abuse of trust, that Schaefer had committed the crimes while he was G.H.'s primary caregiver, and that Schaefer had taken steps to conceal the crimes by making G.H. promise not to tell what had happened. Based on these factors, the trial court imposed a determinate minimum term of 240 months on the rape count and 120 months on the molestation count. This appeal followed.

Schaefer's standard range for the two crimes was 120 to 160 months on the rape count and 67 to 89 months on the molestation count.

ANALYSIS Prosecutorial Misconduct/Ineffective Assistance of Counsel

Schaefer first contends that the prosecutor engaged in misconduct when she (1) asked G.H. at the close of her testimony whether G.H. had told the truth; (2) opined in closing that Schaefer's crimes were `heinous'; and (3) stated in closing that Schaefer had given a `full-blown' confession. 5 RP as 212. As Schaefer's trial counsel did not object to any of these incidents, Schaefer alternatively argues that he received ineffective assistance of counsel.

5 RP at 213.

Turning first to the prosecutor's question asking G.H. whether she had testified truthfully, Schaefer asserts that this `compel[ed] [G.H.] to express an opinion as to whether [she was] lying or telling the truth,' which invaded the jury's responsibility to assess credibility. Br. of Appellant at 14-15. It is, of course, misconduct for a prosecutor `to compel a witness to give an opinion on whether another witness is telling the truth.' State v. Hughes, 118 Wn. App. 713, 726, 77 P.3d 681 (2003), review denied, 151 Wn.2d 1039 (2004). But the key to this rule is that the witness is vouching for the credibility of another witness. It is almost beyond the need for elaboration that a witness may be asked and testify as to whether his or her testimony is truthful. Such a statement is made every time a witness takes the stand and declares under oath or affirmation, as is required under ER 603, that she or he will testify truthfully. G.H.'s statement that she testified truthfully was proper.

We next address whether it was misconduct for the prosecutor to state during closing that `sexually based crimes are considered especially heinous' and that Schaefer's crimes were `even more heinous because [they involved] a five-year-old child.' V RP at 213. `[R]eference to the heinous nature of a crime and its effect on the victim can be proper argument' if it does not appeal to the passions and prejudice of the jury. State v. Rice, 110 Wn.2d 577, 606, 757 P.2d 889 (1988) (quoting State v. Claflin, 38 Wn. App. 847, 849-50, 690 P.2d 1186 (1984), review denied, 103 Wn.2d 1014 (1985)), cert. denied, 491 U.S. 910 (1989); see also State v. Fleetwood, 75 Wn.2d 80, 84, 448 P.2d 502 (1968) (`A prosecutor is not muted because the acts committed arouse natural indignation.'). The prosecutor's comment that Schaefer's crimes were `heinous' did not rise to the level of what has been deemed improper argument. See, e.g., State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988) (improper for the prosecutor to encourage the jury to render a verdict based on the defendant's association with a group which the prosecutor described as `butchers that kill indiscriminately' and `a deadly group of madmen' akin to the Irish Republican Army's Sinn F`in and Libya's Mommar Kadafi); State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984) (misconduct for the prosecutor to call the defendant a liar, clearly a `murder two,' and to imply that defense counsel should not be believed because they drove fancy cars); Claflin, 38 Wn. App. at 849-52 (improper for prosecutor to read a poem utilizing vivid and highly inflammatory imagery in describing rape's emotional effect on its victims). Crimes against children, particularly those that are sexual in nature, are inherently heinous and the prosecutor's decision to state so without dwelling on it was not misconduct.

Turning lastly to the prosecutor's statement in closing that Schaefer had given a `full-blown' confession, the State concedes that this was a mischaracterization to the extent it suggested that Schaefer had confessed to all elements of the three crimes with which he had been charged. Schaefer did not admit at trial or in his interview that he had forced G.H. to touch his penis, a fact that had to be proved to sustain the molestation count. Because Schaefer's defense counsel did not object to the mischaracterization and because it could have been remedied by a curative instruction, Schaefer's prosecutorial misconduct claim must fail. See State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).

Schaefer's admission that he had masturbated in front of G.H. was sufficient to convict on the indecent exposure count. See former RCW 9A.88.010 (2001). Schaefer's admission that he had intentionally broken the plane of G.H.'s vaginal lips was also sufficient to convict on the child rape count. See RCW 9A.44.073.

But a different issue is raised by Schaefer's claim that his trial counsel was constitutionally ineffective for not objecting to the prosecutor's closing argument. Even assuming that the failure to object was deficient, Schaefer must show that this failure was prejudicial, i.e., there is a reasonable probability that the outcome of his trial would have been different if an objection had been made. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Here, the prosecutor's mischaracterization of Schaefer's confession as `full-blown' was but one line in a lengthy closing argument. Moreover, Schaefer's defense counsel began his closing by conceding guilt on the rape and indecent exposure counts but then reminded the jury that Schaefer adamantly maintained his innocence on the molestation count. But for the prosecutor's fleeting statement, there is no reasonable probability that the jury would have found Schaefer innocent on the molestation count.

Sufficiency of the Evidence

Schaefer next contends that there was insufficient evidence to find that he had `sexual contact' with G.H., as is required for first degree child molestation. 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). Evidence is sufficient if, accepting the State's evidence as true and viewing that evidence in the light most favorable to the State, any rational trier of fact could have found the element at issue beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

The basis for the molestation count was G.H.'s forced touching of Schaefer's penis. Although G.H. offered an ambiguous answer at trial as to whether she had touched Schaefer's penis, it was for the jury to assess the credibility of G.H.'s trial testimony. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). G.H. told the child interviewer that she had touched Schaefer's penis. Connected to this touching was Schaefer's digital penetration of G.H.'s vagina and Schaefer's admission to the police that he had masturbated in front of G.H. for his own sexual gratification. Accepting G.H.'s statement to the child interviewer as true, the jury could infer that the touching had been for the same reason as Schaefer's admitted purpose in masturbating in front of G.H.: the gratification of his sexual desires. As such, the evidence was more than sufficient to find that Schaefer had `sexual contact' with G.H. See generally State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003) (concluding that evidence was sufficient, although `far from strong,' where the defendant grabbed the victim's private parts over his clothes and told victim not to tell); State v. Gary J.E., 99 Wn. App. 258, 265, 991 P.2d 1220 (concluding evidence was sufficient where `on at least two occasions [the child] touched his father's penis, causing in the father a physical reaction equated with sexual gratification'), review denied, 141 Wn.2d 1020 (2000).

Sentencing

Schaefer lastly assigns error to the trial court's imposition of determinate minimum terms for his rape and molestation convictions which were above the standard range for each crime. Citing Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), Schaefer challenges the trial court's sentencing because it, rather than the jury, made the relevant factual determinations that supported departure from the standard range for each crime. The State argues that Blakely does not apply to determinate minimum terms imposed under RCW 9.94A.712(3) because the statutory maximum for Blakely purposes is the maximum-term sentence which the trial court must impose when the jury finds the defendant guilty of a crime enumerated under RCW 9.94A.712(1). This court has already rejected the State's argument. See State v. Borboa, ___ Wn. App. ___, 102 P.3d 183 (2004) (holding that Blakely's jury trial requirement applies to the setting of a determinate minimum term), and see also State v. Monroe, No. 30239-0-II, 2005 WL 590287 (Wash.Ct.App. Mar. 15, 2005) (opinion of Quinn-Brintnall, C.J.) (statute requires compliance with the Blakely sentencing jury procedure in the setting of a defendant's determinate minimum term). Because the trial court set Schaefer's determinate minimum terms above the standard range for each crime based on disputed facts which had not been proven beyond a reasonable doubt to a jury, we remand for resentencing.

In remanding for resentencing, we need not address the trial court's decision denying Schaefer's request for a SSOSA evaluation. Briefly, however, even if an offender is eligible for a SSOSA, the decision to grant it is discretionary on the part of the sentencing judge. State v. Montgomery, 105 Wn. App. 442, 444, 17 P.3d 1237, 22 P.3d 279 (2001). The sentencing court has no obligation to provide a reason for its SSOSA determination and is not bound by expert opinion, the recommendation of the presentencing report, or the wishes of the victim. State v. Hays, 55 Wn. App. 13, 15-16, 776 P.2d 718 (1989).

Affirmed in part, reversed in part.

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 pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON, J., Concur.

BRIDGEWATER, J. (concurring)

I write separately to concur. I concur with the reasoning of the majority in all matters except that concerning sentencing. I concur in the result and determination of the majority based upon stare decisis in State v. Monroe, ___ P.3d ___, 2005 WL 590287 (Wash.Ct.App. Mar. 15, 2005), even though I dissented in Monroe.