IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 68806-5-1
Respondent,
v.
J.M.M. (dob 3/6/97), UNPUBLISHED OPINION
Appellant. FILED: January 13, 2014
Verellen, J. — J.M.M. appeals his conviction of child molestation in the first
degree, contending that the information failed to provide him notice of the essential
element that the alleged "sexual contact" must have been "for the purpose of gratifying
sexual desire," per RCW 9A.44.010(2). But sexual gratification merely defines the
essential element of sexual contact, and is not itself an essential element. We affirm.
FACTS
On October 8, 2010, thirteen-year-old J.M.M. was left to babysit five-year-old K.P.
for two hours while K.P.'s mother went grocery shopping. While the two boys were
alone, J.M.M. told K.P. that he intended to put his "pee pee" in K.P.'s "butt."1 J.M.M. then
made K.P. take off his pants and expose his buttocks. J.M.M. rubbed his groin against
K.P.'s buttocks and K.P. was able to feel J.M.M.'s penis through J.M.M.'s pants. J.M.M.
told K.P. not to tell anyone about the contact. Within two hours after K.P.'s mother
Clerk's Papers at 13 (Finding of Fact 9).
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returned, K.P. told her what had happened. Three days later, K.P. repeated his account
to child interview specialist Ashley Wilske.
On August 30, 2011, the State charged J.M.M. with one count of child molestation
in the first degree, in violation of RCW 9A.44.083. Following a bench trial in Snohomish
County Superior Court, J.M.M. was found guilty.
J.M.M. appeals.
ANALYSIS
J.M.M. contends that his conviction must be reversed because the information
omitted an essential element of first degree child molestation. We disagree.
A charging document must include all essential elements of a crime, statutory or
otherwise, in order to provide a defendant with sufficient notice of the nature and cause of
the accusation.2 Where, as here, a defendant challenges the sufficiency of the
information for the first time on appeal, this court construes the document liberally in favor
of validity.3 In making that determination, we ask "whether the essential elements appear
in any form, or can be found by any fair construction, in the information, and, if so,
whether the defendant was . . . actually prejudiced by the inartful language used."4
Pursuant to RCW 9A.44.083(1), "[a] person is guilty of child molestation in the first
degree when the person has . . . sexual contact with another who is less than twelve
years old and not married to the perpetrator and the perpetrator is at least thirty-six
months older than the victim." Our Supreme Court expressly held that this statute is
2 State v. Kiorsvik, 117 Wn.2d 93. 97. 812 P.2d 86 (1991)); see also State v.
Saunders. Wn. App. , 311 P.3d 601, 606 (2013).
3 Kiorsvik. 117 Wn.2d at 102.
4State v. Brown, 169 Wn.2d 195, 197-98, 234 P.3d 212 (2010).
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unambiguous in State v. Lorenz:
RCW 9A.44.083 unambiguously states that a person is guilty of the
crime of first degree of child molestation if (1) the perpetrator has sexual
contact (2) with a victim who is less than twelve years old, and (3) the
perpetrator is at least thirty six months older than the victim. The plain
meaning rule applies.151
RCW 9A.44.010(2) further defines "sexual contact" 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."
Here, the State charged that J.M.M. committed child molestation in the first degree
by having "sexual contact with K.P."6 J.M.M. argues that the State was required to prove
that his sexual contact with K.P. occurred for the purpose of gratifying sexual desire, and
that the charging document was inadequate because it failed to include this element. But
contrary to J.M.M.'s argument, the Lorenz court expressly held that sexual gratification is
not an element of child molestation:
The legislature codified "sexual contact" as an essential element of first
degree child molestation. The definition of "sexual contact" is in
RCW 9A.44.010(2), a wholly separate section of chapter 9A.44 RCW,
entitled "Definitions." Had the legislature intended a term to serve as an
element of the crime, it would have placed "for the purposes of sexual
gratification" in RCW 9A.44.083. Rather the definition of "sexual contact"
clarifies the meaning such that it excludes inadvertent touching or contact
from being a crime.']
On this basis, the Lorenz court held that under the statute's plain meaning, sexual
gratification is not an essential element of child molestation in the first degree but rathera
definition clarifying the meaning of the essential element of "sexual contact."8
5152 Wn.2d 22, 34, 93 P.3d 133 (2004) (emphasis omitted).
6 Clerk's Papers at 93
7 Lorenz, 152 Wn.2d at 34.
8 Id. at 34-35.
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Accordingly, we conclude that all of the essential elements of child molestation in the first
degree were contained in the document charging J.M.M.
J.M.M.'s argument that that sexual gratification is an element of the offense that
must be alleged in the information is incorrect, and is not supported by the other
authorities he cites. State v. Stevens did not involve a challenge to the adequacy of a
charging document or to-convict instruction but rather a challenge to the trial court's
refusal to give a proposed jury instruction relevant to the defense theory that the
defendant's intoxication was relevant to determine whether the defendant "acted with
intent and/or knowledge."9 In Stevens, the Supreme Court discussed its holding in
Lorenz and reiterated that the State had the burden of proving that sexual contact
occurred for the purpose of sexual gratification to prove child molestation, but that this did
not amount to an element of the offense:
In order to prove "sexual contact," the State must establish the defendant
acted with a purpose of sexual gratification. Thus, while sexual gratification
is not an explicit element of. . . child molestation, the State must prove a
defendant acted for the purpose of sexual gratification.1101
Likewise, State v. French did not involve a challenge to the adequacy of a
charging document, but addressed an appellant's argument that, after Lorenz, intent is
not an element of child molestation that would preclude charging child molestation as a
lesser included offense of child rape.11 The French court reiterated that "[sjexual contact,
an element of child molestation . . . continues to require a showing of purpose or intent,"12
9 158 Wn.2d 304, 308-09, 143 P.3d 817 (2006).
10 IdL at 309-10.
11 157Wn.2d 593,610-11, 141 P.3d 54 (2006).
12 Id. at 611.
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but does not support the proposition that sexual gratification must be included in the
information.13
J.M.M.'s argument that RCW 9A.44.083 is ambiguous fails in light of the Lorenz
court's contrary conclusion. Because the essential elements appear expressly in the
information and J.M.M. fails to establish that he was prejudiced by any vague or inartful
language in the information, J.M.M. fails to demonstrate that he is entitled to appellate
relief.
Affirmed.
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WE CONCUR:
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13 See also State v. Gurrola. 69 Wn. App. 152, 157, 848 P.2d 199 (1993) (pre-
Lorenz decision holding that sexual gratification is not an element of child molestation
and need not be included in the charging document).