State of Washington v. Randall J. Stevens (2006)
The Washington Supreme Court has affirmed an order of a new trial for a man convicted of Child Molestation in the Second Degree. State of Washington v. Randall J. Stevens, 2006 WL 2852753 (Oct. 5, 2006). The court was motivated by two errors at the trial.
Stevens fell into conversation near a shopping complex with two girls, aged 12 and 13. He told the girls he was drunk, and the older one, at least, believed he was. Stevens left the girls but encountered them again a short while later at a ferry terminal. At the younger girl’s suggestion, he posed for a photo with her. The photo shows his hand on her breast, while she smiles.
The defense asked the trial court to give the jury a voluntary intoxication instruction. The instruction would have told the jury this: if Stevens’ drunkenness interfered with his ability to intend sexual gratification, that could mean he was not guilty. The court refused to give the instruction.
Stevens was convicted of one count of second-degree child molestation for this hand-on-breast contact. (He was acquitted of molesting the older girl by touching her bottom.)
The supreme court concluded without dissent that Stevens was entitled to the voluntary intoxication instruction. This is because a touching can be child molestation, under Washington law, only if it is done with the intent of sexual gratification, and intoxication could interfere with the mental process of forming that intent.
A bare majority of the supreme court also faulted the trial court for not permitting the jury to consider whether Stevens might only have committed Assault in the Fourth Degree. It found that offense to be a lesser included offense of child molestation. It reasoned that the relevant definition of assault was “an unlawful touching with criminal intent.” No one, the majority concluded, could commit child molestation without committing an unlawful touching with criminal intent.
Four of the nine justices disagreed on that point. For them Justice Madsen asserted that, on facts like these, a touching had to be “harmful or offensive” to constitute fourth-degree assault. That meant fourth-degree assault was not a lesser included offense of child molestation, Justice Madsen wrote:
[C]hild molestation does not require that the sexual contact be harmful or offensive … . It is possible for the offender to touch an intimate part of the victim’s body under circumstances and in a manner that the victim would not necessarily find harmful or offensive but that would be for the purpose of sexual gratification. For example, the offender might touch the victim’s breast while assisting the victim put on a coat or other outer garment, or while measuring the victim for alterations to clothing … .
For an article on the court of appeals decision in the same case—the decision here affirmed—see Prosecutor May Not Ask if Complainants Were Consistent.