State v. Jackson
State v. Jackson
Opinion of the Court
¶1 Jackson appeals his conviction of second degree child molestation. He challenges the sufficiency of the evidence to prove that he had “sexual contact” with the victim, contending that his ejaculation onto the victim was not a touching. We disagree and affirm.
Background
¶2 R.S., a 12-year-old girl, awakened very early one morning to discover a warm, white liquid on her face. She could see her stepfather, Ronell Jackson, in the bathroom across the hall from her room. She wiped some of the liquid onto the covers and went to her mother’s room to ask what was on her face.
¶3 Her mother, Kristie Johnson, smelled and tasted the substance and told R.S. to return to her room. Johnson then went to the bathroom and began screaming at Jackson and hitting him. Jackson left the apartment, and Johnson called the police. Johnson told the responding officers that she thought the substance on her daughter’s face was semen.
¶4 The police obtained R.S.’s bedding and two tops she had slept in. DNA (deoxyribonucleic acid) testing revealed Jackson’s semen on two pillowcases and both tops. Semen was found on the chest area and right shoulder of the tank top and on the collar, middle, left shoulder, and two areas near the bottom of the other top.
¶5 Jackson was charged with and convicted of second degree child molestation.
¶6 We review questions of statutory construction de novo
Discussion
¶7 A person commits child molestation in the second degree when that person has sexual contact with another who is at least 12 years but less than 14 years old.
¶9 Contact is “intimate” within the meaning of the statute if the conduct is of such a nature that a person of common intelligence could fairly be expected to know that, under the circumstances, the parts touched were intimate and therefore the touching was improper.
¶10 Jackson argues that ejaculating on another individual is not a “touching” for purposes of the “sexual contact” element. While conceding that his “penis was obviously the source of the semen,” Jackson contends that there is insufficient evidence that he “touched” R.S. to support his conviction.
¶11 There is no statutory definition of “touching.” Our primary purpose in interpreting a statute is to ascertain and give effect to the intent and purpose of the legislature.
¶12 While there is little authority on whether ejaculation onto another person constitutes a “touching” of that person, the authority that does exist supports our conclusion that it is a “touching.” In People v. Vinson,
¶13 In United States v. Whitefeather,
¶14 Further support for our decision can be found in the multitude of cases holding that spitting on another is physical contact constituting either a battery or a criminal assault.
¶15 Jackson attempts to distinguish the assault cases by claiming that they involve a different type of touching. However, in State v. Stevens
¶16 Jackson also asserts that, had the legislature intended to include ejaculation as a form of “sexual contact,” it could have expressly done so. He supports this argument with citations to Wisconsin and North Dakota statutes that expressly include ejaculation within their respective definitions of “sexual contact.”
¶17 We have previously observed that fair notice does not require that a statute spell out every detail and that “[s]ome aspects of the prohibited conduct may be left to the commonly accepted community sense of decency, propriety and morality.”
¶18 Since Jackson does not dispute that his semen was found on the face and clothing covering the chest of R.S., the evidence was sufficient to support a jury’s determination that Jackson had prohibited “sexual contact” with her by touching her intimate parts.
¶19 Even if we adopted the narrow definition of “touching” advanced by Jackson, the evidence was sufficient to sustain his conviction. In State v. Brooks,
¶20 Jackson attempts to distinguish his case from Brooks by pointing out that in Brooks the baby’s blanket and booties had been removed,
¶21 Jackson also seeks to distinguish Brooks by pointing to R.S.’s testimony that Jackson never actually touched her or her clothing.
Q: [I]t is true that at this time, this morning, you were never touched by Mr. Jackson; is that right?
A: Yeah.
Q: He never touched you on your clothes or anything like that; is that correct?
A: Yeah.
¶22 While R.S. agreed with defense counsel’s statements that Jackson never touched her, a jury might well have concluded that R.S. would not have been aware of being touched because she was asleep. Indeed, she testified that Jackson was not even in her room anymore when she awoke. Her first awareness that something was amiss was when she discovered his semen on her face. Just as the baby in Brooks could not testify about what happened to her, so the jury could have concluded that R.S. lacked personal knowledge of what occurred to her while she was asleep.
¶23 The jury was provided with instructions defining “second degree child molestation” and “sexual contact.” Juries are presumed to follow instructions.
¶24 We affirm the judgment and sentence below.
State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 201.
State v. Delmarter, 94 Wn.2d 634, 638, 618 P2d 99 (1980).
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 5.01, at 124 (2d ed. 1994).
State v. Kovac, 50 Wn. App. 117, 119, 747 P.2d 484 (1987).
State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
Salinas, 119 Wn.2d at 201.
RCW 9A.44.086.
RCW 9A.44.010(2).
State v. Gary J.E., 99 Wn. App. 258, 265, 991 P.2d 1220 (2000).
In re Welfare of Adams, 24 Wn. App. 517, 519, 601 P.2d 995 (1979).
State v. Brown, 55 Wn. App. 738, 780 P2d 880 (1989) (holding the victim touched the defendant by operating the vacuum pump of a “penis enlarger”).
Adams, 24 Wn. App. at 521.
Adams, 24 Wn. App. at 520.
Br. of Appellant at 7.
Watson, 146 Wn.2d at 954.
Watson, 146 Wn.2d at 954.
Watson, 146 Wn.2d at 954.
42 P.3d 86 (Colo. App. 2002).
Vinson, 42 P.3d at 87.
275 F.3d 741 (8th Cir. 2002).
985 S.W.2d 941 (Mo. Ct. App. 1999).
Dawson, 985 S.W.2d at 951 (quoting State v. Greathouse, 789 S.W.2d 50, 52 (Mo. Ct. App. 1990)).
State v. Keller, 40 Or. App. 143, 146, 594 P.2d 1250 (1979).
See, e.g., United States v. Lewellyn, 481 F.3d 695 (9th Cir. 2007) (holding that spitting in the face of a victim is an offensive touching constituting assault); United States v. Masel, 563 F.2d 322, 322-24 (7th Cir. 1977) (holding that spitting in the face of a senator constitutes an offensive touching); United States v. Frizzi, 491 F.2d 1231, 1231-32 (1st Cir. 1974) (holding that spitting in the face of postal worker was bodily contact constituting assault); Gilbert v. Commonwealth, 45 Va. App. 67, 608 S.E.2d 509 (2005) (holding that spitting upon an officer constitutes an assault and battery); and People v. Carlson, 183 Misc. 2d 630, 705 N.Y.S.2d 830 (N.Y. City Crim. Ct. 1999) (holding that spitting in victim’s face was physical contact for purpose of aggravated harassment charge).
6 Mod. Rep. 172, (1705) 87 Eng. Rep. 928 (Q.B.).
People v. Peck, 260 Ill. App. 3d 812, 814, 633 N.E.2d 222, 198 Ill. Dec. 760 (1994).
158 Wn.2d 304, 143 P.3d 817 (2006).
Wis. Stat. Ann. § 948.01(5); N.D. Cent. Code § 12.1-20-02(4).
State v. Wadsworth, 139 Wn.2d 724, 743, 991 P.2d 80 (2000).
Adams, 24 Wn. App. at 520.
Adams, 24 Wn. App. at 520.
Laws of 1994, ch. 271, § 301.
45 Wn. App. 824, 727 P.2d 988 (1986).
Brooks, 45 Wn. App. at 825-26.
Brooks, 45 Wn. App. at 825-26.
Brooks, 45 Wn. App. at 826.
Brooks, 45 Wn. App. at 827.
Brooks, 45 Wn. App. at 825.
Brooks, 45 Wn. App. at 827.
Br. of Appellant at 3.
State v. Graham, 59 Wn. App. 418, 428, 798 P.2d 314 (1990).
Reference
- Full Case Name
- The State of Washington v. Ronell Jackson
- Cited By
- 41 cases
- Status
- Published