State v. AM
260 P.3d 229
Wash. Ct. App.2011Background
- A.M. was 11 years old; R.D. is the alleged victim and J.M. is R.D.'s friend.
- R.D. testified that A.M. penetrated his buttocks with his penis, but not his anus.
- The juvenile court convicted A.M. of rape of a child in the first degree, finding penetration of the buttocks but not the anus.
- The court indicated uncertainty whether the act met the statutory definition of sexual intercourse.
- The State sought remand for attempted rape or alternative child molestation; issues included double jeopardy concerns and adequacy of written findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether buttocks penetration constitutes sexual intercourse | A.M. penetrated buttocks; buttocks part of anus, thus sexual intercourse. | Penetration of buttocks alone does not meet the ordinary meaning of sexual intercourse. | buttocks penetration does not meet sexual intercourse; conviction reversed |
| Remand for attempted first degree rape | If rape reversed, remand for attempt could be entered. | Record does not show the trier found all elements of attempted rape; would impair double jeopardy protections. | Remand for attempted first degree rape denied; not necessarily inferred from record |
| Remand for first degree child molestation | Court could enter conviction for child molestation consistent with oral ruling. | Written findings do not support a molestation conviction; dual jeopardy concerns. | Remand for child molestation conviction denied; double jeopardy prevents further proceedings |
| Double jeopardy and disposition of charges | State should be allowed to pursue alternative charge if primary conviction invalidated. | Oral ruling lacks concrete written findings; prevents valid alternative conviction without remand. | Adjudication reversed; charges dismissed with prejudice |
Key Cases Cited
- State v. Marohl, 170 Wash.2d 691, 246 P.3d 177 (2010) (due process requires proof of all essential elements beyond reasonable doubt)
- State v. Alvarez, 105 Wash.App. 215, 19 P.3d 485 (2001) (uncontested findings on appeal treated as verities; review de novo on law)
- State v. Garcia, 146 Wash.App. 821, 193 P.3d 181 (2008) (remand for entry of lesser included offense where elements are proven)
- State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980) (lesser included offenses require explicit express finding of elements)
- State v. Chhom, 128 Wash.2d 739, 911 P.2d 1014 (1996) (intent in attempted rape of a child; requires intent to have sexual intercourse)
- State v. Hescock, 98 Wash.App. 600, 989 P.2d 1251 (1999) (silence in written findings on alternative means equates to acquittal; double jeopardy concerns)