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2011 JUL 214 Mi T. 51

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

V.

RONALD L. KIRKWOOD,

Appellant.

No. 74777-1-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: July 24, 2017

TRICKEY, A.C.J. — In order to support convictions for multiple counts of

sexual abuse alleged to have occurred during the same charging period, the

evidence must permit the jury to distinguish and unanimously agree on specific

and distinct acts constituting each count. In the case of a resident abuser, the

victim's generic testimony may be sufficient. Here, the State's evidence, which

included both the defendant's admissions after his arrest and the victim's

testimony describing multiple sexual assaults of a similar nature perpetrated by

her stepfather, was sufficient to permit the jury to find Ronald Kirkwood guilty of

four counts of first degree rape of a child. We affirm the convictions, but remand

for the trial court to strike or modify the unconstitutionally vague community

custody condition that prohibits Kirkwood from entering places where minors

congregate.
No. 74777-1-1 / 2

FACTS

Ronald Kirkwood and Lori Sasse married in 2000. Kirkwood became the

stepfather to Sasse's three children, including her daughter, D.S., who was born

on July 21, 1998.

One evening in December 2013, when D.S. was 15 years old, she was

home alone with Kirkland. D.S. entered Kirkland's bedroom to say goodnight

and Kirkland offered to give her a backrub. Kirkwood told D.S. she was a

"beautiful young lady," which made her feel uncomfortable) After rubbing her

shoulder, Kirkwood lowered D.S.'s yoga pants, put his hands partially under her

pants, and massaged her hip area. He then pulled down the covers and

exposed his erect penis to her. Kirkwood told her it was "natural" and "okay."2

D.S. left the room and barricaded herself in her bedroom.

When Sasse came home later that evening, D.S. was locked in her

bedroom and distraught. This was unusual behavior for D.S. and Sasse asked

Kirkwood what had happened. Kirkwood responded that it was "really nothing"

and he "didn't mean to do it."3 Sasse noticed that Kirkwood had been drinking.

D.S. eventually let her mother enter her bedroom and told her about the incident.

A few weeks later, in January 2014, Kirkwood left the home to work in

Nevada. After Kirkwood was gone, D.S. disclosed that Kirkwood had sexually

abused her multiple times over the course of several years when she was a

young child.

I Report of Proceedings (RP) at 387.

2 RP at 390, 394.

3 RP at 479.

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No. 74777-1-1/ 3

According to D.S., who was 17 years old when she testified at trial,

Kirkland began sexually abusing her when she was about five years old and the

family lived on North Fork Road in Whatcom County. The family resided in that

home from 2000 until approximately 2009. The first incident D.S. could recall

took place after she had a bath. Kirkwood was wearing an orange work shirt and

jeans. D.S. had a skin irritation in the vaginal area. Although D.S. told Kirkland

the rash had gone away, he insisted that he needed to check and told her to lie

down. Kirkwood kneeled down and rubbed her vaginal area with his thumb and

index finger. After a few minutes, he began to lick her vagina. This continued for

several more minutes. Kirkwood told her to "relax," that it was "okay," and that

he was only looking at her rash.

D.S. said that after the first incident, Kirkwood assaulted her again a

couple of months later, and continued to assault her in a similar manner once or

twice every couple of weeks. After the first time, Kirkwood did not use the

excuse of checking her vagina for medical reasons.

D.S. said that each act happened in her bedroom, after the sun set, and

usually after she had a bath. Kirkwood would always ask D.S. to lie down and

sometimes would only put this finger in her vagina. Most of the time, he also

performed oral sex on her. The assaults generally lasted for approximately 10

minutes. D.S. tried to avoid Kirkland and also tried to prevent him from

assaulting her by squirming or by misbehaving.

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No. 74777-1-1 / 4

D.S. explained that she felt she had to do what Kirkwood told her because

he was her parent, and that she did not tell anyone because she was scared.4

She also said that Kirkwood occasionally reminded her that it was a secret and

that, shortly after the first incident, he specifically told her that no one would

believe her if she told. D.S. testified that Kirkwood stopped physically abusing

her around the time she was in the fourth grade, but he continued to make

inappropriate comments about her body and development.

Although D.S. was afraid and reluctant to involve law enforcement, after

these second disclosures, Sasse contacted the police.

Detective Eric Francis, a Whatcom County police officer, interviewed

Kirkwood twice in March 2014. In the first interview, Kirkwood denied any

inappropriate contact with D.S. About 10 days later, after he was arrested,

Kirkwood admitted that he had consumed some alcohol on the night of the

December 2013 incident and had inappropriately touched D.S. on her buttocks.

In a second recorded interview immediately following this disclosure, Kirkwood

admitted that on the night in question, his hands "wandered" down to D.S.'s hip

and that he may have had "half' of an erection when he pulled the covers back

and went to the bathroom. Eventually, Kirkwood also admitted that he had

sexual contact with D.S. when she was a young child. He estimated that the

contact occurred approximately four or five times. He denied penetrating her

with his finger, but said he may have used his tongue. He said that the sexual

contact with D.S. stopped a couple of years before the family moved out of the

house on North Fork Road when he came to the "realization" that what he was

4 RP at 404

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No. 74777-1-1/ 5

doing was wrong and was "not a good thing."5 Kirkwood said he never tried to

get help or treatment of any kind because he was too embarrassed and ashamed

to discuss it.

The State charged Kirkwood with four counts of rape of a child in the first

degree. The State alleged that each offense took place between July 21, 2003

and July 20, 2007.

At trial, Kirkwood denied any sexual intent when he touched D.S. in

December 2013. He also categorically denied any type of sexual contact with

D.S. when she was a child. He explained that when he talked to Detective

Francis in March 2014, he was suffering from severe head pain, was confused,

and was trying to "make things fit" with what the detective was telling him.6

The jury convicted Kirkwood on all counts.

ANALYSIS

Sufficiency of the Evidence 

Kirkwood concedes that D.S.'s testimony was sufficiently detailed with

respect to the first incident of sexual abuse and that the testimony supports one

count of rape of a child. However, challenging the other three counts, Kirkwood

contends that D.S.'s testimony about subsequent acts was merely "generic and

nondescript."7 He maintains that D.S.'s testimony that the abuse happened

5 Ex. 7, 10, 15.

6 RP at 836.

7 Appellant's Br. at 8.

5
No. 74777-1-116

"periodically" and "repeated times" failed to adequately describe the number of

assaults or identify the general time period.8

The constitutional right to a jury trial requires that the jury be unanimous as

to the specific act the defendant committed for each crime. State v. Petrich, 101

Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part by State v. Kitchen, 110

Wn.2d 403, 756 P.2d 105 (1988). To protect this right, the State may elect an act

to rely on for conviction or the court must instruct the jury "that all 12 jurors must

agree that the same underlying criminal act has been proved beyond a

reasonable doubt." Petrich, 101 Wn.2d at 572. "In sexual abuse cases where

multiple counts are alleged to have occurred within the same charging period, the

State need not elect particular acts associated with each count so long as the

evidence 'clearly delineate[s] specific and distinct incidents of sexual abuse'

during the charging periods." State v. Hayes, 81 Wn. App. 425, 431, 914 P.2d

788 (1996) (quoting State v. Newman, 63 Wn. App. 841, 851, 822 P.2d 308

(1992)). When the State charges identical counts, the trial court must also instruct

the jury "that they are to find 'separate and distinct acts' for each count." Haves,

81 Wn. App. at 431 (quoting State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d

190 (1991))

Kirkwood does not argue that the trial court failed to properly instruct the

jury. Instead, he claims that the evidence was not sufficiently specific to permit

the jury to distinguish among multiple incidents and to agree on three separate

and distinct incidents of sexual intercourse. The trial court rejected this argument

when it denied Kirkwood's post-sentence motion to arrest judgment. "Evidence

8 RP at 404-05.

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No. 74777-1-1 / 7

is sufficient to support a conviction if, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Haves, 81 Wn.

App. at 430.

Balancing the rights of the accused and the young victims of multiple

sexual assaults, this court has concluded that "generic" testimony may be

sufficient to support a conviction for multiple counts of sexual assault if it meets

certain minimum requirements. State v. Jensen, 125 Wn. App. 319, 327, 104

P.3d 717 (2005). Generic testimony consists, for example, of a victim's

estimation that abuse occurred "'once a month for three years," which "outlines

a series of specific, albeit undifferentiated, incidents each of which amounts to a

separate offense, and each of which could support a separate criminal sanction."

Hayes, 81 Wn. App. at 437 (internal quotation marks and emphasis omitted)

(quoting People v. Jones, 51 Cal. 3d 294, 792 P.2d 643 (1990)). Due process

requires that in order for such generic testimony to support multiple counts of

sexual abuse, the victim must be able to describe:

(1) the kind of act or acts with sufficient specificity for the jury to

determine which offense, if any, has been committed; (2) the

number of acts committed with sufficient certainty to support

each count alleged by the prosecution; and (3) the general time

period in which the acts occurred.

Jensen, 125 Wn. App. at 327.

The first prong requires a sufficient description of the acts at issue. In

State v. Hayes, the decision in which we set forth the three-prong test, the first

prong was met by the victim's testimony that the defendant "put his private part

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No. 74777-1-1/ 8

in mine." 81 Wn. App. at 438. That statement alone sufficiently described the

act to allow the trier of fact to determine what offense had been committed, but

additional details added to the specificity. Haves, 81 Wn. App. at 438. The

victim also described the defendant's usual course of conduct, testifying that it

happened in his bed, with him on top of her, and that he used paper towels to

clean up afterward. Haves,81 Wn. App. at 438.

D.S. provided a similar level of detail in her testimony. She specifically

described the first incident of sexual abuse and then described Kirkwood's usual

course of conduct thereafter. She testified that Kirkwood would always enter her

bedroom, at night, usually after she had a bath, and would tell her to lie down.

He would then touch her vaginal area, usually put his finger inside her vagina,

and, almost always, perform oral sex on her. She testified that the events

happened in the same way every time. This testimony describes the acts with

sufficient specificity to satisfy the first prong.

The second prong requires the victim to describe the number of acts with

sufficient certainty to support each count. In Hayes_, the victim's statements that

it happened at least "four times" and up to "two or three times a week" was

sufficient to support convictions of four counts of rape of a child. 81 Wn. App. at

439. Thus, the testimony need not be certain about the specific number of acts.

The victim may provide varying estimates and still satisfy the prong as long as

the victim's estimates support the counts charged.

Kirkwood was charged with four counts of child molestation. Although

D.S. did not provide an exact number of times sexual intercourse occurred, she

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No. 74777-1-1 / 9

indicated that it occurred many more than four times—once or twice every

"couple of weeks" over a period of approximately five years.9 This testimony was

sufficiently certain to support each count and satisfies the second prong.

The third prong requires the victim to testify to the general time period in

which the acts occurred. The charging period in Haves was based on the

victim's testimony that the acts occurred when she lived alone with Hayes, when

she lived with Hayes and his girlfriend, and after she and Hayes moved out of the

girlfriend's house. 81 Wn. App. at 427, 429. The court held that the evidence

about the timeframe satisfied the third prong. Hayes,81 Wn. App. at 439.

Here, D.S. testified that she was about five years old and not yet in

kindergarten when the first incident occurred. She estimated the timing of the

first incident based on the appearance of her bedroom and the fact that her

bedroom closet doors had not yet been removed. D.S. testified that Kirkwood

continued to regularly sexually assault her until approximately the fourth grade.

The charging period spanned four years, from D.S.'s fifth birthday until her ninth

birthday. D.S. defined the time period of the acts by providing her age when the

abuse started and her grade when it finally stopped. The charging period

encompasses the period that D.S. described. Accordingly, her testimony

satisfies the third prong.

D.S.'s testimony was sufficiently specific under all three prongs. In

addition, her testimony was corroborated by Kirkwood's admission to four or five

instances of sexual contact with D.S. during the charging period. Viewed in the

light most favorable to the State, the evidence established the occurrence of

9 RP at 405.
No. 74777-1-1/ 10

multiple specific and distinct acts of sexual intercourse that took place between

July 21, 2003 and July 20, 2007 to support Kirkwood's conviction of four counts

of rape of a child. D.S.'s failure to identify specific dates and times or to provide

additional details about the offenses are factors affecting credibility, but "not

necessary elements that need to be proved to sustain a conviction." Haves, 81

Wn. App. at 437.

Community Custody Condition 

The sentencing court imposed several conditions of community custody as

a part of community placement. The following condition prohibits Kirkwood from

frequenting places where minors reside or congregate:

Avoid all places where minors reside or congregate, including

schools, playgrounds, childcare centers, church youth programs,

parks and recreational programs, services used by minors, and

locations frequented by minors, unless otherwise approved by the

Department of Corrections with a sponsor approved by the

Department of Corrections.(101

Kirkwood contends that this condition of sentence is unconstitutionally vague.

"The guaranty of due process, contained in the Fourteenth Amendment to

the United States Constitution and article 1, section 3 of the Washington

Constitution requires that laws not be vague." State v. Irwin, 191 Wn. App. 644,

652, 364 P.3d 830 (2015) (quoting State v. Bahl, 164 Wn.2d 739, 752-53, 193

P.3d 678 (2008)). A community custody condition is not vague so long as it: (1)

provides ordinary people with fair warning of the proscribed conduct, and (2) has

standards that are definite enough to "protect against arbitrary enforcement."

1° Clerk's Papers (CP) at 209.

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No. 74777-1-1/ 11

See Bahl, 164 Wn.2d at 753 (quoting City of Spokane v. Douglass, 115 Wn.2d

171, 178, 795 P.2d 693 (1990)).

11}Ilegal or erroneous sentences may be challenged for the first time on

appeal." Bahl, 164 Wn.2d at 744 (quoting State v. Ford, 137 Wn.2d 472, 477,

973 P.2d 452 (1999)). We review community custody conditions for abuse of

discretion, and reverse them only upon a determination that they are manifestly

unreasonable. Irwin, 191 Wn. App. at 652. A trial court abuses its discretion if it

imposes an unconstitutional condition. Irwin, 191 Wn. App. at 652.

We addressed a similar community custody condition in Irwin. In that

case, the court imposed a condition prohibiting the offender from "frequent[ing]

areas where minor children are known to congregate, as defined by the

supervising [community corrections officer (CCO)]." Irwin, 191 Wn. App. at 649

(second alteration in original). This court struck the condition, concluding that the

offender could not know whether the prohibition included "'public parks, bowling

alleys, shopping malls, theaters, churches, hiking trails and other public places

where there may be children." Irwin, 191 Wn. App. at 654. The condition failed

to provide sufficient notice that would enable ordinary people to understand what

conduct is proscribed. Irwin, 191 Wn. App. at 655. Further, the court noted that

the unconstitutional vagueness would not be cured by the ability of the CCO to

define the places where minors are known to congregate, as this could lead to

arbitrary enforcement. Irwin, 191 Wn. App. at 655.

Following Irwin, Division Two of this court considered another version of

this condition in State v. Maqana, 197 Wn. App. 189, 389 P.3d 654 (2016). The

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No. 74777-1-1 / 12

condition imposed in that case prohibited Magana from frequenting "parks,

schools, malls, family missions or establishments where children are known to

congregate or other areas as defined" by the CCO or treatment providers.

Magana, 197 Wn. App. at 200. The court held that this condition was

unconstitutionally vague even though it enumerated several specific prohibited

locations. The designation of prohibited places was not limited to the listed

examples and the discretion conferred on the CCO to define such locations was

"boundless." Maqana,197 Wn. App. at 201.

Kirkwood's community custody condition, like the challenged condition in

Magana, includes specific examples of places where "minors reside or

congregate" such as playgrounds, childcare centers, and schools." But 141

places where minors reside or congregate," is not limited to the illustrative list.12

And while a prohibition limited to schools, childcare centers, playgrounds, and

parks would arguably provide fair notice of the proscribed conduct, the list of

specific prohibited locations here includes other ill-defined places such as

"church youth programs," "recreational programs," and "services used by minors,

and locations frequented by minors."13 This language does not make it clear

which locations Kirkwood is prohibited from entering. Even though the condition

does not expressly authorize the CCO to designate other places where minors

reside, congregate, or frequent, the sweeping language of the condition provides

no standards to protect against arbitrary enforcement. As a result, the condition

is unconstitutionally vague.

" CP at 209.

12 CP at 209.

13 CP at 209.

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No. 74777-1-1 / 13

Accordingly, we remand with instructions for the trial court to modify or

strike the unlawful condition.

Appellate Costs 

Kirkwood asks that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. RAP 14.2.

However, when a trial court makes a finding of indigency, that finding remains

throughout review "unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency." RAP 14.2. It

appears that Kirkwood was represented by private counsel at trial. However, he

was found indigent by the trial court in order to seek review of his convictions at

public expense and that finding presumptively continues. If the State has

evidence indicating that Kirkwood's financial circumstances have significantly

improved since the trial court's finding, it may file a motion for costs with the

commissioner.

Remanded to strike the unlawful condition but otherwise affirmed.

I r% c,ke l AcT

WE CONCUR:

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13