IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OFWASHINGTON No. 77639-8-I

Respondent,
v. UNPUBLISHED OPINION KRISTOPHER KEITH GREENING,

Appellant. FILED: June 3, 2019 SCHINDLER, J.

—Ajury convicted Kristopher Keith Greening ofone count of rape ofa child in the first degree. Greening seeks reversal, arguing insufficient evidence supports the conviction and the court erred in denying his motion to exclude his admission and testimonythat he engaged in anal sex. We affirm. FACTS Beginning in August2010, Kristopher Keith Greening lived with J.F. and herfour minor children in Mount Vernon. They moved from MountVernon to SedroWoolley, to the “Chinook house” in Birch Bay, and then to Blame. Greening, J.F., and the children lived in the Chinook house between July 2014 and December2014 and in the Blame house between January 2015 and October2015.No. 77639-8-1/2

Greening and J.F. worked long hours with unpredictable schedules. J.F. worked threejobs, leaving home early in the morning and not returning until late at night. Greening worked on a rotating schedule and spenttime alone with the children. In early October2015, 11-year-old A.C. spentthe night at herfriend R.F.’s house. A.C. told R.F. that Greening raped her “in the back area” but not “in the front.” A.C. asked R.F. notto tell anyone aboutthe rape because she was “scared.” On Monday, October5, R.F. told A.C.’s bestfriend J.B. thatA.C. said Greening raped her. When J.B. asked A.C. if“itwas true,”A.C. started crying. That day after school, J.B. told herfather. J.B.’s father immediately called J.F. J.F. tookA.C. to PeaceHealth St. Joseph Medical Centerthat day. A sexual assault nurse examined A.C. During the approximately 90-minute examination, A.C. told the nurse that “within the lastweek some time,” Greening “touched her under” her clothes in her“butt.” A.C. told the nurse “this had been going on” for“years” and sometimes “it hurts.” Because there was no physical evidence, the nurse referred A.C. to a forensic interviewerat Brigid Collins Family Support Center. Brigid Collins child forensic interviewerGayle Tierney metwith A.C. and Whatcom County Sheriff’s Detective Julie Baker. Tierneyvideotaped the interview. Using open-ended and nonsuggestive questions, Tierney interviewed A.C. for approximately45 minutes. A.C. had “a very difficulttime” during the interview and did notwantto talk in detail aboutthe sexual assault. Nonetheless, Tierney concluded A.C. had been raped on multiple occasions. On October 11,2015, Blame Police Detective John Landis spoke with J.B. by telephone and interviewed J.F. and A.C.’s otherfriend R.F.

2No. 77639-8-113

Detective Landis arrested Greening. During a 40- to 45-minute interview, Greening was “verytalkative, very open.” Greening told Detective Landis about his relationship with J.F. and that “things weren’t going as well” in the lastyear. Greening admitted he “had anal sexwith” J.F. Greening told Detective Landis he felt “closest with” A.C. and he often “cuddled” with her. When Detective Landis told Greening that A.C. said he raped her, Greening “got quiet” and “closed down.” On October 19, 2015, the State charged Greening with rape ofa child in the first degree that occurred between January 1, 2015 and October6, 2015, count 1; and rape of a child in the first degreethat occurred between June 1,2014 and January 1, 2015, count2. Greening pleaded not guilty. Pretrial, Greening moved to exclude anytestimony that he engaged in anal sex. The court denied the motion. During the five-dayjurytrial, the State called a number ofwitnesses to testify, including A.C., her motherJ.F., herfriends J.B. and R.F., the St. Joseph sexual assault
nurse examiner, Brigid Collinsforensic interviewerTierney, and Detective Landis. Thirteen-year-old A.C. testified that Greening anally raped herone to three times
a weekfor multiple years. However, A.C. testified abouttwo specifictimes Greening anally raped her. A.C. testified thatthe “lasttime” Greening anally raped herwas during the 2015 school year. A.C. testified thatthe rape occurred while she and hertwo younger siblings were watching the movie Madagascaratthe Blame house with Greening. A.C.

3No. 77639-8-114

said the living room was dark exceptforthe lightfrom the television and she and Greening were togetheron a couch undera blanket. Q. Were you cuddling atthis time? A. Yeah. Q. And when you are in that position on the couch, were you facing [Greening] orfacing awayfrom [Greening]? A. Away. Q. Was [Greening] facing awayfrom you ortoward you? A. Towards. Q. Tell us what happened. A. [Greening], um, what do you mean exactly? Q. Well, you told us that he raped you. A. Yes. Q. And you told us that he

— and you are drawing us a picture and telling us how it happened. Could you tell us howthe rape happened? A. He pulled down my pants a little bit and yeah. Q. And what?

Is this hard foryou? A. (Witness nods). Q. It’s okay. We can take some time. Pulled down your pants and what happened? A. He touched me in inappropriate places. Q.

. . . Can you tell me where he touched you? A. My butt. Q. What did he touch you with? A. His privates. Q. Okay. When you say “privates”, what do you mean? A. Um, his penis. Q. Okay. Did he touch you on the inside or outside ofyour butt? A. On the inside. A.C. testified she was “too scared” to move. A.C. said the rape did not last “for very long” and neitherone ofthem “ma[d]e any noise.” A.C. testified heryounger brotherwas watching the movie while sitting on a different section ofthe couch and her youngersisterwas watching the movie while sitting in a chair.1 A.C. drew a diagram for

1 In October2015, AC’s youngersisterand brotherwere six and seven years old.
4No. 77639-8-1/5

thejury ofthe living room and marked the location ofthe furniture and where each individual was sitting. AC. testified that during a weekend sleepoverwith R.F., they “were sharing a bunch ofsecrets” and she told R.F. that Greening “was physically abusing me.” A.C. told R.F. that Greening “raped me” and “[i]twas all in the back area.” A.C. said R.F. “started crying” and “I cried with her.” A.C. told R.F. notto tell anyone because she was “scared” Greening “would come after me orsomething.” During cross-examination, A.C. testified about additional details ofthe rape atthe Blame house. Q. Okay. So the way I see t here, and I guess first ofall I ask, were you sitting orwere you laying down? A. I was laying down. Q. You were laying down? A. Uh-huh. Q. And on yourside, on your back, on yourfront? A. On my side. Q. On yourside. And you were fully clothed? A. Yes. Q. What does that mean? A. It means shirt, underwear, pants. Q. Jeans? A. Um, normally or probably something comfortable because I didn’t likejeans atthe time. Q. Sweats? A. Yeah, sweats oryoga pants, something like that. Q. Orwhat? A. Yoga pants. Q. Okay. Were you wearing underwear? A. Yes. Q. Okay. And, um, in that picture there thatyou have marked, you have [Greening] right nextto you or behind you, I’m trying to understand, where was he sitting? A. He was laying down and he was right behind me. Q. So he was laying down behind you? A. Yes. Q. And you were laying down in front of him? A. Yes.

5No. 77639-8-1/6

Q. Was his head where your head would be? A. Yes. Q. Itwasn’t like the opposite where his head was atyourfeet? A. His head was nextto mine. A.C. testified she could not rememberas much aboutthe rape atthe Chinook house because it happened “many, many months earlier.” Q. Do you recall anothertime thatthis did happen thatyou can describe for us? A. Um, I can’t describe verywell but I sort of rememberanothertime. A.C. said Greening asked herto sit on the couch and “read with him.” Q. Okay. Can you tell us what happened? A. Urn, so he asked me to read with him so we sat on the couch and I read to him. Q. Was itthe same couch? A. No. Itwas a different house and different couch. Q. Okay. All right. So, you are reading with him on the couch. Were you getting closewith him? A. Yes. Q. Cuddling? A. Yes. Q. Okay. And could you tell us aboutthe position with you and him? A. We were laying down. Q. Laying down? A. Uh-huh. Q. Were you facing toward him orawayfrom him? A. Away. Q. Was he facing toward you or awayfrom you? A. Towards. Q. Can you tell us what happened? A. He did the exact same thing as the last story. A.C. testified thatwhen Greening raped her, “[i]twas scary” and she felt physical pain in her “butt.” R.F. testified that during the weekend sleepover, A.C. told her“a lot ofdetails” about Greening raping her. R.F. testified thatA.C. told her Greening raped her“in the back area.” R.F. testified thatwhen A.C. firsttalked aboutthe rape, A.C.’s “face was

6No. 77639-8-1/7

sad” but hervoice was “very angry.” R.F. said thatwhen “we started discussing it more,” they both were crying. R.F. testified that afterthe sleepover, they did not discuss the rape “because she didn’twantto because itwas not

—she didn’tfeel very good about it.” RE. testified she told theirfriend J.B. aboutthe rape at school on Monday. Detective Landis testified that Greening said he and J.F. engaged in anal sex. Greening told Detective Landis he had a very “close” relationship with AC. Q. Okay. And did you everask [Greening] about any sexual relationships that he had with [J.F.]? A. Yes. Q. And what did he indicate to you? A. He indicated that he had anal sexwith [J.F.]. Q. And did you ask about any ofthe relationships with the children? A. I did. Q. And whatwas his response? A. He talked about he was close with the kids, ah, and taking care of them, ah, urn, butthe closest one he was with was with [AC.]. Greening testified. Greening adamantly denied ever having sexual intercourse with AC. or being sexually aroused by her. Greening testified thatwhile watching “a cartoon” atthe Blame house, he sat on the couch “cuddling with [AC.] and [heryounger sister], one on each side” of him. Greening testified he did not “recall a blanket” but admitted, “Thatwas one thing we did on movie nights is, like, when we’re watching a movie you’re allowed to go grab your own blanket, your own pillow.” Greening testified he was “shocked” when he “heard aboutthese allegations.” According to Greening, A.C. “was very angrywith me” and “[a] lot of it had to do with groundings.”

7No. 77639-8-1/8

Greening said J.F. consented to having anal sexwith him during their relationship. Q Okay. You were in a romantic relationship

—

A Yes, sir. Q —withJ.F.? A Uh-huh. Q Did you have sexual relations with her? A Yes, sir. 

### Q [J.F.J? A Idid. Q And could you describe thatto thejury, please? A We were very intimate. Both actuallyverysexually active 

### people.Q There’s been testimony by [Detective] Landis thatyou said thatyou had had anal sexwith her? A That has happened. Q With [J.F.]? A Yes, sir. Q And was that consensual? A Yes, itwas. Itwas one ofthose things that had been agreed by both parties. Greening denied preferring only anal intercourse. Two defense witnesses testified that during the interviews with A.C., she did not saythat Greening raped her multiple times perweek. In rebuttal, J.F. testified that during the lastfive months of her relationship with Greening, they engaged in only anal intercourse. J.F. said that although she consented, Greening was the person who “asked forordesired” thattype of intercourse. J.F. testified thatshe nevertalked to A.C. or any of herchildren about sexwith Greening. Thejury convicted Greening of rape ofa child in the first degree between January 1 and October6, 2015, count 1. Thejuryfound Greening not guilty of rape ofa child in the firstdegree between June 1,2014 and January 1,2015, count2.

8No. 77639-8-1/9 ANALYSIS

Greening seeks reversal, arguing (1) insufficient evidence supports his conviction of rape ofchild in the first degree and (2) the court erred in denying his motion in limine to exclude testimonythat he engaged in anal sex. 1. Sufficiency ofthe Evidence Greening asserts sufficient evidence does not support his conviction of rape ofa child in the first degree. Evidence is sufficientto supporta conviction ifany rational trieroffact could have found the essential elements ofthe crime charged beyond a reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750-51, 399 P.3d 507 (2017). A challenge to the sufficiency ofthe evidence admits the truth ofthe State’s evidence. State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014). “[AJIl reasonable inferences from the evidence must be drawn in favorofthe State and interpreted most strongly against the defendant.” Statev. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); Jacksonv. Virginia, 443 U.S. 307, 319, 99S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In determining sufficiency, circumstantial evidence is no less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We deferto the trieroffact on “issues ofwitness credibility.” Witherspoon, 180 Wn.2d at 883. The State has the burden to prove every element ofthe crime charged beyond a reasonable doubt. U.S. CONST. amend. XIV; WASH. CONST. art. I, 

### § 3; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “[T]he Due Process Clause protects the accused against conviction except upon proofbeyond a reasonable doubt ofeveryfact necessaryto constitute the crime with which he is charged.” Winship, 397 U.S. at 364; Statev. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Sufficiency ofthe
9No. 77639-8-1/10

evidence is a question of constitutional lawthatwe review de novo. Rich, 184 Wn.2d at 903. The State charged Greening in count 1 with rape ofa child in the first degree in violation of RCW 9A.44.073(2). The to-convictjury instruction states, in pertinent part:

To convictthe defendant ofthe crime of Rape ofa Child in the First Degree, as charged in Count I, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) Between the 1st day ofJanuary, 2015 and the 6th day of October, 2015, the defendant had sexual intercourse with A.C. dob[2] 6/22/04; (2) ThatA.C. dob 6/22/04 was less than twelve years old atthe time ofthe sexual intercourse and was not married to the defendant; (3) ThatA.C. dob 6/22/04 was at leasttwenty-four months younger than the defendant; and (4) Thatthis act occurred in the State ofWashington. Greening cites State v. Jensen, 125 Wn. App. 319, 104 P.3d 717 (2005), to argue sufficient evidence does not support his conviction. Greening asserts A.C.’s “generic” testimony “about being anally raped up to three times perweekforsome unspecified period oftime is so vague and uncertain that it cannot support a conviction.” In Jensen, we reversed a conviction forchild molestation. Jensen, 125 Wn. App. at 328. We held that “[i]n cases involving a resident child molester, the alleged victim’s generictestimony can be used to support multiple counts.” Jensen, 125 Wn. App. at 327. However, [alt a minimum, the alleged victim must be able to describe (1) the kind of act oracts with sufficient specificityforthejuryto determine which offense, ifany, has been committed; (2) the number ofacts committed

2 Date of birth.
10No. 77639-8-Ill 1

with sufficient certaintyto support each count alleged bythe prosecution; and (3) the general time period in which the acts occurred. Jensen, 125 Wn. App. at 327. Because the child did ‘not describe the acts with sufficient specificityforthejuryto determine which offenses, ifany, [the defendant] committed,” we reversed. Jensen, 125 Wn. App. at 328. In contrastto Jensen, A.C. provided details and described with specificitythe anal rape. Greening anally raped herwhile theywere watching the movie Madagascar in a dimly lit room atthe Blame house. A.C. testified theywere undera blanket on the couch, facing “toward” the television, Greening was directly behind her, and “[h]is head
was nextto mine.” A.C. described what she was wearing and how Greening pulled down her pants and placed “his penis

. . . [o]n the inside” of “[m]y butt.” A.C. drew a diagram and described exactlywhere heryounger siblings were sitting while Greening raped her. Greening claims sufficient evidence does not supportthe verdict because his testimony is more credible than the testimony ofA.C. We do not reweigh the evidence
on appeal. State v. Ramos, 187 Wn.2d 420, 453, 387 P.3d 650 (2017). We give deference to the finderoffact in resolving conflicting testimony and weighing the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). The credibility ofwitnesses and the weightthejury gives to the evidence are within the sole province ofthejury. Witherspoon, 180 Wn.2d at 883. Viewing the evidence in the light mostfavorable to the State, sufficient evidence supports the conviction of rape ofa child in the first degree between January 1 and October6, 2015.

11No. 77639-8-1/12

2. Denial of Motion in Limine Greening contends the court abused its discretion by denying his motion to exclude testimonythat he engaged in anal sexwith J.F. Greening asserts the evidence
was unfairly prejudicial. We will not disturb the trial courts rulings on a motion in limine absent an abuse ofdiscretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Powell, 126 Wn.2d at 258. Evidence is relevant if it has “anytendencyto make the existence of anyfactthat is ofconsequence to the determination ofthe action more probable or less probable than itwould be withoutthe evidence.” ER 401. The trial court must balance the danger of prejudice againstthe probative value ofthe evidence. ER 403. We will overturn the court’s determination “only if no reasonable person could take the view adopted bythe trial court.” State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007). The trial judge is in the best position to evaluate the prejudicial effect and relevancy ofevidence. Posey, 161 Wn.2d at 648. Greening argued that equating the “conduct between consenting adults with rape ofa child was inflammatory and prejudicial.” The State argued that because Greening “exclusively had anal intercourse with AC.,” the testimony that he was interested in having only consensual anal sexwith J.F. was relevant and outweighed the prejudice. The court denied Greening’s motion to exclude the testimony. The court ruled the testimonywas “highly probative” and was not “unfairly prejudicial” as long as the State used the testimonyforthe limited purpose ofestablishing Greening’s interest in anal
sex.

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The court did not abuse its discretion ordeprive Greening of his rightto a fairtrial by admitting the testimony. The record shows Greening had a meaningful opportunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324, 126 5. Ct. 1727, 164 L. Ed. 2d 503 (20O6)~ (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)). We affirm thejury conviction ofone count of rape ofa child in the first degree. 

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~ WE CONCUR:



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Internal quotation marks omitted.