State v. A.M., 260 P.3d 229

AM, age 11, was charged with first degree rape of a child and, in the alternative, first degree child molestation.
Victim RD described AM placing his penis in RD’s buttocks; trial court found penetration of the buttocks but not the anus.
Judge stated penetration of the buttocks could be sufficient for rape if considered penetration, but acknowledged it did not definitively prove anal penetration.
Conviction for rape of a child in the first degree was entered; the court did not find evidence of anal penetration.
State sought remand for entry of a conviction for attempted rape or for child molestation; issues centered on legality of sexual intercourse definition and alternative charges.
Opinion reverses the rape conviction, discusses remand/double jeopardy issues, and dismisses the case with prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does buttocks penetration satisfy sexual intercourse?	State argued buttocks penetration falls within sexual intercourse’s ordinary meaning.	AM argued buttocks penetration is not sexual intercourse as defined in RCW 9A.44.010(1).	buttocks penetration does not meet the ordinary meaning of sexual intercourse.
May the court remand for conviction on attempted first degree rape when the rape conviction is reversed?	State contends remand is proper when lesser included offense is supported by evidence.	AM contends remand is improper absent necessary elements proven for attempt.	Remand for attempted first degree rape is not permissible; not all elements for attempt were shown.
Does double jeopardy bar remand for the alternative charge of first degree child molestation?	State argues remand to child molestation could be proper if supported by findings.	AM asserts remand would violate double jeopardy since the court had opportunity to convict on molestation and did not.	Remand for the child molestation conviction would violate double jeopardy.
Were the written findings sufficient to sustain child molestation if the rape conviction were set aside?	State contends court could supply findings to uphold molestation.	AM argues there were no written findings supporting molestation; silence implies acquittal on molestation.	Lack of written findings on molestation prevents remand; acquittal on molestation implied; dismissal with prejudice.

State v. Marohl, 170 Wn.2d 691 (2010) (due process requires proof of all elements beyond reasonable doubt; statutory interpretation of sexual intercourse)
State v. Alvarez, 105 Wn. App. 215 (2001) (uncontested findings are verities on appeal; review of findings of fact vs conclusions of law)
State v. B.J.S., 140 Wn. App. 91 (2007) (review of conclusions of law; remand for lesser offense when necessarily proved)
State v. Garcia, 146 Wn. App. 821 (2008) (remand for entry of lesser offense where evidence supports but not fully; necessarily proved standard)
State v. Gilbert, 68 Wn. App. 379 (1993) (remand for lesser included offense focusing on evidence actually proven)
State v. Cobelli, 56 Wn. App. 921 (1989) (remand for lesser included offense where evidence undisputed)
State v. Mannering, 150 Wn.2d 277 (2003) (attempt included in the offense; sufficiency/goals for remand)
State v. Chhom, 128 Wn.2d 739 (1996) (intent requirement for attempted rape of a child; strict definitions)
State v. Hescock, 98 Wn. App. 600 (1999) (written findings control; implied acquittal when not provided)
State v. Head, 136 Wn.2d 619 (1998) (remand for findings where judgments lack support)
State v. Alvarez, 128 Wn.2d 1 (1995) (remand when omission is inadvertent; not applicable where no conviction)