State v. Tilton
State v. Tilton
Opinion of the Court
a record of “sufficient completeness” for appellate review.
FACTS
On February 1, 1999, 6-year-old J.L., 15-year-old Nathaniel Tilton, and their 5-year-old sister Jiah spent the night at the home of a family friend, Gretchen Titus. At bedtime, J.L., Jiah, and Titus’ daughter Hannah went upstairs to sleep on the floor of Hannah’s bedroom. Jiah did not want to sleep and became upset, screaming, “I want Nate.” Gretchen asked Tilton, who was in the basement, to help Jiah calm down and go to sleep. Tilton took Jiah upstairs and lay down on a mat between Jiah and J.L.
Titus’ daughter Heidi was awake in a room next to Hannah’s. She heard J.L. whining and went to see what was wrong. J.L. told her that “Nate was playing with his privates.” Heidi told J.L. to go tell her mom.
Gretchen Titus testified that J.L. came downstairs and said, “Nate keeps touching my private parts and he won’t. . . stop. He is sleeping and I can’t wake him up and make him stop.” Gretchen went to Hannah’s room and Tilton “lifted his head up immediately and scooted back on the mat a little bit.”
J.L. testified that he was trying to sleep when “Nate put his hands on my penis.” J.L. said he was wearing a pair of sweat pants inside a pair of “nightie pants.” Nate’s hand was inside the outer pants but outside the sweatpants.
When asked to describe how Nate touched him, J.L. said “wiggly kind of’ and demonstrated with his hand. J.L. tried to get Nate’s hand off his penis but could not stop him. When asked how long the touching lasted, J.L. said, “I forget.” The prosecutor then asked if it seemed like a long time, and J.L. said, “Uh Huh.” J.L. testified that he thought Tilton was asleep because his eyes were closed.
The juvenile court found that Tilton was awake during the touching. In its oral decision, the court stated that, “grabbing his penis and then not letting go ... . That to me can only be the act of a conscious person.”
Shortly after trial, the parties discovered that most of Tilton’s testimony, including all of his direct examination and a total of 36 minutes of testimony, had not been recorded. The State moved to reconstruct the record. Judge Steven Mura ordered the prosecutor, defense counsel, and the trial court (Commissioner Alfred Heydrich) to submit affidavits regarding their recollection of Tilton’s testimony. Judge Mura reviewed the affidavits and found “no conflicts of consequence in the affidavits to the determining issues in this trial.” He concluded that Tilton “was not prejudiced by his testimony not being recorded” and declared that “the affidavits are [hereby] adopted as the testimony of Nathaniel Tilton.”
I
The constitutional right to appeal in a criminal case includes the right to a “record of sufficient completeness.”
First, he contends the record is insufficient for appellate counsel to determine which issues to raise on appeal. He argues that the affidavits are inconsistent and/or unclear regarding his recollection of the incident. The record does not support this claim.
In their affidavits, the trial court, defense counsel, and the prosecutor agreed that Tilton testified he fell asleep next to J.L. The next thing he remembered was Gretchen Titus calling him from downstairs. All three remembered Tilton testifying that he did not know or recall whether he touched J.L.’s genitals. Contrary to Tilton’s assertions, the three affidavits are not materially different on this point.
Tilton also argues that the affidavits are inconsistent and/or unclear as to whether he smoked marijuana before he went to Hannah’s room. He claims this prejudiced him because “it is impossible ... to appeal on grounds of inef
In addition, Tilton has not shown prejudice from any inconsistency in the affidavits because he fails to address all the prerequisites for a diminished capacity defense.
Tilton cites State v. Larson
Second, Tilton contends the record is insufficient for this court to conduct meaningful review. He argues that it is impossible, on this record, to determine whether there was sufficient evidence to support the verdict. We disagree.
In determining whether a conviction is supported by sufficient evidence, we review the evidence in a light most favorable to the State. The focus is thus on the State’s evidence, not the defendant’s. In this case, all of the State’s evidence was recorded and transcribed. The transcripts encompass all of the evidence relied on by the trial court in its findings. Furthermore, Tilton’s testimony was adequately reconstructed by detailed affidavits, and a more complete record of his testimony would not enhance this court’s review. The case turned on whether the court believed Tilton’s claim that he was asleep. Because the court did not believe that testimony, and because credibility determinations are not reviewable by this court,
In short, we conclude that the reconstructed record is constitutionally sufficient for review.
II
Tilton argues in the alternative that the evidence was insufficient to show that he touched the victim for sexual gratification. Again, we disagree.
Affirmed.
Reconsideration denied April 25, 2002.
Review granted at 147 Wn.2d 1007 (2002).
State v. Brown, 132 Wn.2d 529, 592, 940 P.2d 546 (1997).
Report of Proceedings (RP) at 667.
RCW 9A.44.010(2) 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.”
A third count was dismissed at the close of the State’s case.
Draper v. Washington, 372 U.S. 487, 497, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); State v. Larson, 62 Wn.2d 64, 67, 381 P.2d 120 (1963).
Larson, 62 Wn.2d at 67.
State v. Thomas, 70 Wn. App. 296, 298, 852 P.2d 1130 (1993) (citing Coppedge v. United States, 369 U.S. 438, 446, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962)).
Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 30 L. Ed. 2d 372 (1971); Draper, 372 U.S. at 497.
State v. Miller, 40 Wn. App. 483, 488, 698 P.2d 1123 (1985).
Br. of Appellant at 9.
(Emphasis added.)
A diminished capacity defense requires evidence that the defendant had been drinking or using drugs, and that the drinking or drug use had an effect on his ability to form the requisite mental state. State v. King, 24 Wn. App. 495, 501-02, 601 P.2d 982 (1979). Likewise, mere evidence of drug or alcohol use is insufficient to warrant a voluntary intoxication instruction. There must also be “ ‘substantial evidence of the effects of the alcohol on the defendant’s mind or body.’ ” State v. Gabryschak, 83 Wn. App. 249, 253, 921 P.2d 549 (1996) (quoting Safeco Ins. Co. v. McGrath, 63 Wn. App. 170, 179, 817 P.2d 861 (1991)).
To demonstrate ineffective assistance, a defendant must show deficient performance and prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that trial counsel’s performance was adequate, and ineffective assistance will not be found where trial counsel’s conduct can be characterized as legitimate trial strategy or tactics. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002).
62 Wn.2d 64, 381 P.2d 120 (1963).
Larson, 62 Wn.2d at 67.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. T.E.H., 91 Wn. App. 908, 916, 960 P.2d 441 (1998).
See T.E.H., 91 Wn. App. at 916-17.
RP at 735-37.
See T.E.H., 91 Wn. App. at 916-17 (court could infer sexual gratification where juvenile forced victim to disrobe, molested him with his hands, and continued when told to stop).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.