State v. Roswell

STATE OF WASHINGTON, Respondent, v. JOHNATHAN DANIEL ROSWELL, Appellant.

No. 31242-5-II

Court of Appeals of Washington, Division 2

February 8, 2011

UNPUBLISHED OPINION

Worswick, A.C.J.

Johnathon Daniel Roswell seeks review of his conviction for one count of third degree child molestation. He contends that the State presented insufficient evidence to sustain his conviction that the trial judge improperly commented on the evidence and that the prosecutor committed misconduct during closing argument. We affirm.

Facts

During July 2003, fourteen-year-old A.M. and thirteen-year-old J.C.^[1] met nineteen-year-old Roswell at a swimming pool at the Arbor Terrace apartments. Over the course of several weeks the minors, along with Roswell and others, swam, skinny-dipped listened to music, and drank alcohol. On August 6, Roswell and A.M. French kissed, and Roswell fondled A.M.'s naked breasts. The State charged Roswell with one count of third degree child molestation against A.M. and one count of second degree child molestation against J.C.^[2]A.M.'s Testimony

A.M testified at trial that she was fourteen years old in July 2003. During that month, A.M. and her friend J.C. would jump the fence at Arbor Terrace apartments to swim at the apartment complex pool almost nightly. The girls would usually swim and use the hot tub and listen to music. After the girls met Roswell, the three would frequently meet and swim at the pool.

A.M. testified that the day she first met Roswell at the pool, she specifically told him that she was fourteen years old and that J.C. was thirteen years old. Roswell told her that he was fifteen and she believed him. A.M. testified that they never discussed their ages after that first day, and A.M. never lied to Roswell about her age or J.C.'s age.

There was no romantic contact between A.M. and Roswell until August 4. On that date, A.M., J.C., Roswell and some other males were at the pool, and they drank some beer. A.M. French kissed Roswell. She could not remember if she was clothed when they kissed, but she knew that she drank quite a few beers and at some point took her clothes off. That night, no other romantic or sexual contact occurred aside from the kiss.

The next evening, A.M. and J.C. arrived at the pool between 10:30 and 11:00 p.m. and Roswell showed up later. A person named Brandon came for an hour or two and when he left, he left a bottle with two-to-three inches of alcohol in it.^[3] A.M., J.C., and Roswell drank the contents of the bottle. A.M. became very intoxicated and removed her swimsuit. A.M. believed that Roswell had shorts on when they were in the hot tub, but she could not be certain. While they were in the hot tub, A.M. French kissed Roswell, who then touched A.M.'s naked breasts. Roswell "squish[ed]" A.M.'s breasts together and "ma[de] them talk." 1 Report of Proceedings (RP) at 137. It was at this time that the police arrived.

In response to police questioning, A.M. told Port Orchard police officer David Kaeka that she was fourteen and would be fifteen in September. Roswell was not present when she told Officer Kaeka her age. A.M. did not learn that Roswell was over eighteen until after the police arrived and inquired about their ages.

Officer Kaeka's Testimony

Officer Kaeka testified that on August 6, in the early morning hours, he and Officer Minh Truong responded to a noise complaint at the Arbor Terrace apartments. The officers approached the pool enclosure from different directions. Officer Kaeka walked down the hill overlooking the hot tub. The hot tub's underwater lights were illuminated and enabled Kaeka to observe what was occurring in the tub. The hot tub's lights were the only lights illuminated in the pool area, leaving the rest of the scene in darkness.

Officer Kaeka observed the scene as he walked down the hill and from the bottom of the stairs leading to the pool area. He saw three people in the hot tub, one male and two females, and could see that none were wearing tops. The trio in the hot tub did not immediately notice him.

Officer Kaeka saw Roswell and A.M. facing each other and Roswell had his hands on A.M.'s breasts. Kaeka shined his flashlight on Roswell, who slid his hands from A.M.'s breasts down her sides and back. A.M. backed away from Roswell when she realized Officer Kaeka was there. Kaeka observed that Roswell, A.M., and J.C. were completely naked.

Officer Kaeka directed the trio to get out of the hot tub. A.M. asked Roswell for her swim suit, he gave it to her, she put it on, and she got out of the hot tub. Officer Kaeka asked the girls their ages and A.M. said that she was fourteen and J.C. said that she was thirteen. A.M. did not misrepresent her age to Kaeka at any time. When Kaeka asked Roswell his age, Roswell said he was eighteen but his identification card showed that he was actually nineteen. Roswell's Testimony

Roswell testified that his friend Anthony, who was twenty or twenty-one, introduced him to A.M. and J.C. at the apartment pool. Roswell stated that he asked the girls their ages the first night he met them, but there was "really no answer at first." RP at 289. According to Roswell, both A.M. and Anthony later said that the girls were sixteen and fourteen but they did not identify which girl was sixteen. Thereafter, Roswell saw A.M. and J.C. at the pool four or five times a week for the next two or three weeks.

Several days after meeting the girls, Roswell talked with J.C. about the girls' ages. J.C. told Roswell that she was thirteen. Roswell asked her if A.M. was sixteen, and J.C. told him that A.M. was not. He never asked A.M. for clarification. He acknowledged that he was unsure of and had doubts about A.M.'s age, and he admitted that he did nothing to discover A.M.'s true age. Roswell stated that he knew a lot of thirteen- and fourteen-year-olds from his baby-sitting duties.

The night before Roswell was arrested, he was at the pool with A.M., J.C., and four guys who had arrived later with some beer. Roswell said that he drank less than half a beer, and gave the other half of his beer to J.C. Roswell said that A.M. drank at least four bottles of beer, and that A.M. and J.C. appeared to be intoxicated. He described A.M. as "all over the place drinking everybody's beer." RP at 293.

Roswell stated that after A.M. had been drinking she kept hanging around him and hanging on him, even though he told her that he "wasn't really interested." RP at 294. A.M. always asked Roswell if she could kiss him before she did so. Roswell said that he probably should have told A.M. no.

The night Roswell was arrested, he had agreed to meet the girls at the pool around 11:00 p.m. His friend Anthony, who had been there earlier that evening, returned with a bottle of Gatorade and a half-gallon bottle of rum that still had two or three inches of rum left in it. Roswell had one or two shots, and the other three drank the rest. Anthony left when most of the alcohol was gone.

The girls were skinny dipping when Roswell arrived that night. They put their suits on before they came over to talk to him. They took off their swimsuits again at some point during the evening, and then again about thirty minutes before the police arrived. The last time the girls came over, Roswell took their swimsuits and "hid them" or "put them away." RP at 297. After they took off their suits, he was "horsing around" with them. RP at 297. A.M. kissed him once or twice in the hot tub. Roswell testified that he did not touch J.C., but he did touch A.M.'s arms, shoulders, and stomach. When asked if he remembered anything that would explain A.M.'s testimony that he was touching her breasts and making them talk, Roswell denied ever touching A.M.'s breasts, but admitted that he liked making "weird voices" to make people laugh.

According to Roswell, he pushed A.M. away when the police arrived because he did not like the officer's bright flashlight shining in his face. Roswell said that A.M. was directly in front of him when the police arrived. He admitted that his hands "could have been" on A.M.'s breasts, but if they were he did not intend for such touching to be sexual. RP at 299. Roswell explained that he was not sure if he touched A.M.'s breasts, but if he did it was to "get her out of the way." RP at 300. Roswell also said that he thought A.M. was sixteen.

Roswell asserted that A.M. always initiated any kissing that he and she engaged in. He conceded that once or twice they French kissed, that she did not force him to kiss her, that he participated in the kissing, and that he and A.M. had kissed right before the police arrived on the night he was arrested. He also claimed that he had his trunks on when the police arrived, but that he had been naked earlier.

Roswell said that he did not see the police officer before the flashlight came on. Roswell said that his hands were on A.M.'s shoulder or a little lower before the flashlight came on. He explained that A.M. was standing up and he was seated, and he had his hands on her shoulders to keep her from falling on him.

Rebuttal Testimony

In rebuttal, Officer Kaeka testified that Roswell did not appear to be pushing A.M. away when Officer Kaeka first saw them, and there was no outward motion to Roswell's arms. Officer Kaeka watched them for thirty or forty seconds before he shined his flashlight on them. He said that Roswell's hands were on A.M.'s breasts for that entire time, groping and squeezing them. Roswell did not appear to be trying to hold A.M. up, and Roswell was naked when he got out of the tub.

Instructions

After the parties rested, the trial court instructed the jury in part as follows:

A person commits the crime of child molestation in the third degree when that person has sexual contact with

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