### FILED OCTOBER 13, 2015 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32718-3-111 Respondent, ) ) v. ) ) ADRIAN ANGUIANO, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Adrian Anguiano, ajuvenile,was found guilty ofattempted indecent liberties after he told a fellow resident at the TwinRiversjuvenile detention facility to perform oral sex on him while Mr. Anguiano'sroommate held the victim in a chokehold against a wall. Mr. Anguiano challenges the sufficiency ofthe evidence to show that (1) he and his roommate worked in concert in the commission ofthe crime and (2) as thejuvenilecourt implicitly found, Mr. Anguiano was attempting to have sexual contactwiththe victim. He also challenges three ofthejuvenile court's conclusions of law as erroneous, predicated entirely onhis challenges to the two findings. Because substantial evidence supports the challenged findings, we affirm. FACTSANDPROCEDURALBACKGROlmD Fourteen-year-oldAdrianAnguiano was a resident at TwinRivers Community Facility, an all-male, minimum security facility forjuvenile offenders. OnMarch 28,No. 32718-3-II1 State 

### v. Anguiano 2014, he was eating lunch with D.T., another Twin Rivers resident, who mentioned that he was going to stop at the front desk to get some lotion. Mr. Anguiano responded that he had some in his room and would "hook [him] up." Report ofProceedings (RP) at 22. D.T. grabbed some small cups from the salad bar and the two boys headed for Mr. Anguiano's room. Afterthey entered his room, Mr. Anguiano pulled out his penis, held 

### itin his hand, and said to D.T., "[C]ome on manjustsuckme up," and "it [i]sn't gay or nothing." RP at 31,32. D.T. responded, "[N]o dude I ain't like that." RP at 32. Mr. Anguiano's roommate, George Thacker, came into theroom, apparently shortly afterMr. Anguiano and D.T. entered, and was present as Mr. Anguiano continued to tell D.T. to "just do it." Id. Mr. Thacker grabbed D.T. from behind and wrestled him to the ground, placinghim in a chokehold against the wall. D.T. "had one arm free" and "was swingingwith itto keep [Mr. Anguiano] away." RP at 33. He estimated Mr. Anguiano was roughly five feet away from him at this point. William Chapin, a residential counselor at the facility, was doing a population count after lunch that day and went looking for Mr. Thacker, who was assigned to dish detaiL Upon arriving at Mr. Thacker'sroom, he saw Mr. Anguiano through the window; Mr. Anguiano's shorts werepulled down and he was holding his penis in his hand, "kind ofdancing around." RP at 8. As soon as Mr. Anguiano saw Mr. Chapin, he pulled up his pants and his face reddened. Mr. Chapin opened the door, entered the room, and 2No. 32718-3-111 State v. Anguiano immediately saw that Mr. Thacker had D.T. in a hold against the wall and that D.T. was struggling to get away. 

### Mr. Chapin estimatedthat Mr. Anguiano was three to four feet away from the two otherboys. 

### Mr. Chapin described both Mr. Anguiano and Mr. Thacker as laughing until they realized they had been caught. He described D.T. as also "kind ofappear[ing] to be laughing," but was doing so awkwardly, as ifhe "didn'twantto be there." RP at 9. 

### Mr. Anguiano was charged with attempted indecent liberties by forcible compulsion in violation ofRCW9A.44.100(1)(a) and RCW 9A.28.020. The information charged him with "knowingly attempt[ing] to cause [D.T.], a person who was not hislher spouse, to have sexual contact with himlherby forcible compulsion, to-wit: tried to touched [sic] him with his penis while he was beingheld against his will." Clerk's Papers (CP) at 1. The matter proceeded to an adjudicatory hearing before the Benton County Juvenile Court. Following presentation ofthe evidence, the defense argued that the State failed toprove Mr. Anguiano had anything to do with the force used by 

### Mr. Thacker because there was no evidence Mr. Anguiano asked Mr. Thackerto use force orthatthey had any sort ofplan or agreement. Also, because Mr. Anguiano was several feet away from D.T., defense counsel argued that the State could not establish that there was "forced sexual touching." RP at 43.

3No. 32718-3-111 State v. Anguiano

The trial courtrejected the defense arguments and found Mr. Anguiano gUilty. It orally announced its decision at the conclusion ofthe trial and later entered written findings and conclusions. 

### Mr. Anguiano appeals. ANALYSIS 

### Mr. Anguiano's openingbriefmentions the requirement ofthe Juvenile Court Rules that when ajuvenile case is appealed, thejuvenile courtmust enterwritten findings and conclusions that "state the ultimate facts as to each elementofthe crime and the evidence upon which the courtrelied in reaching its decision." JuCR 7.11(d). The argumentportion ofhis briefimplicitly complains that the court's findings do not meet this standard, repeatedly addressing matters that the court "did not find" or as to which it "madeno findings." 

### E.g., Br. ofAppellant at 7,9, and 10. YetMr. Anguiano has not assigned errorto the trial court's failure to make sufficient findings. See RAP 10.3(a)(4) (each error claimed by an appellant must be identified under an appropriate heading by a separate concise statement ofthe alleged error). Ifhehad assigned error to the failure to make sufficient findings, we would first considerthe trial court's oral findings for purposes ofreview. State v. Robertson, 88 Wn. App. 836, 843,947P.2d 765 (1997). Ifreview ofboth the written and oral findings fell short ofthe rule's requirements, we would remand for sufficient findings as long as there

was evidence in the record from which a rational trier offact could find the elements of the charged offense. State v. Alvarez, 128 Wn.2d 1, 19,904 P.2d 754 (1995). 4No. 32718-3-III 

### State v. Anguiano

Mr. Anguiano's required assignments oferror are to only two findings offact and three conclusions oflaw. Br. ofAppellant at 1, Section "A. ASSIGNMENTS OF ERROR". Given Mr. Anguiano's decision not to assign errorto any inadequacy ofthe court's findings under JuCR 7.l1(d), we will not address the Juvenile Court Rule requirements further. We first separately address Mr. Anguiano's assignments oferrorto two findings offact. We then address collectively his assignments oferrorto thejuvenile court's conclusions oflaw. 

### Assignmentof ErrorNo.1. The court erredinfinding: "The respondent andco-respondent, George Thacker, workedin concert in the commission of this crime." CP at42. "Dueprocess requires the State to prove all elements ofthe crime beyond a reasonable doubt." 

### State v. Washington, 135 Wn. App. 42, 48, 143 PJd 606 (2006). Mr. Anguiano was charged with attempted indecent liberties by forcible compulsion. Although intent is not an element ofindecent liberties, I crimes ofattempt require proofof

a specific intentto commit the offense. 

### See, e.g., State v. Dunbar, 117 Wn.2d 587, 591, 817 P.2d 1360 (1991) (while defendant may be guilty ofmurder even without an actual intentto kill, attemptto murderrequires specific intentto kill); 

### State v. Aumick, 73 Wn.

I 

### State v. Price, 17 Wn. App. 247, 249, 562 P.2d 256 (1977); 

### State v. Thomas, 98 Wn. App. 422,425-26,989 P.2d 612 (1999) (the necessary culpable mental state for the crime ofindecent liberties is knowledge, which "is a less culpable mental state than, and does not necessarily include, intent"). 5No. 32718-3-III State v. Anguiano App. 379, 383, 869 P.2d 421 (1994), ajJ'd, 126 Wn.2d 422,894 P.2d 1325 (1995) ("Unlike the crime ofrape, attempted rape requires proofofa specific intent to rape."). "Aperson is guilty ofan attempt to commit a crime if, with intent to commit a specific crime, he or she does any actwhich is a substantial step toward the commission ofthat crime." RCW 9A.28.020(1). Attempt therefore consists oftwo elements: "(1) intent, and (2) a substantial step." Aumiek, 126 Wn.2d at 429. "The intent required is the intent to accomplish the criminal result ofthe base crime." State v. Johnson, 173 Wn.2d 895, 899, 270 PJd 591 (2012). To determine the required criminal result, the court looks to the definition ofthe base crime. Id. at 899. As relevant here, RCW 9A.44.100(1)(a) provides that a person is guilty ofindecent liberties "whenhe or she knowingly causes another person to have sexual contact with him orher

or another

... [b]y forcible compulsion." Because the requisite criminal result is that sexual contact occurby forcible compulsion, see State v. Tieeson, 26 Wn. App. 876, 880, 614 P.2d 245 (1980), the intentrequired for the crime ofattempted indecent liberties is an intent to cause sexual contactby forcible compulsion. "Forcible compUlsion" is defined in RCW 9A.44.010(6) to include "physical force which overcomes resistance." "Sexual contact" means "any touching ofthe sexual or other intimate parts ofaperson done for the purpose ofgratifying sexual desire ofeitherparty or a third party." RCW 9A.44.01O(2).

6No. 32718-3-III State v. Anguiano

The elements ofa crime can be splitbetween a principal and an accomplice. If

one ofthem commits the necessary physical acts and the otherhas the necessary mental state, both canbe convicted. State v. Walker, 182 Wn.2d 463, 483,341 P.3d 976 (2015); State v. Haack, 88 Wn. App. 423, 427-28, 958 P.2d 1001 (1997). Thetheory of accomplice liability need notbe included in the charging document because it is the same
as direct liability. State v. Carothers, 84 Wn.2d 256, 262, 525 P.2d 731 (1974). As the Supreme Court explained in Carothers: The legislature has saidthat anyone who participates in the commission of a crime is guilty ofthe crime and should be charged as a principal, regardless ofthe degree or nature ofhis participation. Whetherhe holds the gun, holds the victim, keeps a lookout, stands by ready to help the assailant, or aids in some other way, he is a participant. The elements ofthe crime remain the same. 

### ld. at 264. An accomplice "need notparticipate in orhave specific knowledge ofevery element ofthe crime nor share the same mental state as the principal." State v. Berube, 150 Wn.2d 498,511, 79 P.3d 1144 (2003). A defendant can be charged as a principal and convicted as an accomplice; thejury need not determine the defendant's exact role in the crime. State v. Baylor, 17 Wn. App. 616, 618, 565 P.2d 99 (1977), A person is liable

as an accomplice if, "[wlith knowledge that it will promote or facilitate the commission ofthe crime, he , , . (i) [s]olicits, commands, encourages, orrequests such other person to



### 7No. 32718-3-III State v. Anguiano

commit it; or (ii) [a]iqs or agrees to aid such otherperson in planning orcommitting it." RCW 9A.08.020(3)(a). The first finding ofthejuvenile courtchallenged by Mr. Anguiano is its finding thathe and Mr. Thacker "worked in concert in the commission ofthis crime." CP at 42. Where a defendant challenges the sufficiency ofthe evidence, wemust "viewthe evidence in the light most favorable to the State and determine whether any rational trier offact could have found the elements ofthe charged crime beyond a reasonable doubt." State v. Brown, 162 Wn.2d 422,428, 173 P.3d 245 (2007). In evaluating the sufficiency ofthe evidence, we "mustdefer to the trier offact on issues ofconflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence." State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970 (2004). "The elements ofa crime can be established by both direct and circumstantial evidence." State v. Thompson, 88 Wn.2d 13, 16,558 P.2d 202 (1977). Circumstantial evidence is consideredjustas reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634,638, 618 P.2d 99 (1980). Mr. Anguiano argues that there was no evidence that Mr. Thackerknew thatMr. Anguiano was attempting to commitindecent liberties by force. Br. ofAppellant at 9. Yet the evidence established that Mr. Thacker, having witnessed Mr. Anguiano; penis in hand, asking D.T. to "suckhim up," wrestled D.T. to the floor while Mr. Anguiano stood three to five feet away. It established that Mr. Anguiano continued to face D.T. with his 8No. 32718-3-111 State 

### v. Anguiano exposed penis in his hand and was dancing around as D.T. swung his free ann at Mr. Anguiano in an effort to fend him off. Mr. Anguiano would have us conclude that he and Mr. Thacker were engaged in independent horseplay without any demonstrated knowledge ofthe other's intent. But the element ofintent "may be inferred from all the facts and circumstances surrounding the commission ofan act or acts." State v. Bergeron, 105 Wn.2d 1, 19, 711 P.2d 1000 (1985); State v. Abuan, 161 Wn. App. 135, 155,257 P.3d 1(2011) (noting that specific criminal intent may be inferred "from conduct that plainly indicates such intent as a matter oflogical probability"). Thejuvenile court inferred it here, and it was in the best position to weigh credibility and the persuasiveness ofD.T.'s and Mr. Chapin's perceptions. Theirtestimony was substantial evidencethat Mr. Thacker's actions both encouraged and aided Mr. Anguiano in attempting to have sexual contactby providing the necessary force. Substantial evidencetherefore supported thejuvenilecourt's finding that Mr. Anguiano and Mr. Thacker worked in concert in the commission ofthe crime. Assignmentof ErrorNo.2. The court erred infinding: "[D.T.] usedhis free handtoprevent the respondent from havingsexual contactwith him. " CPat43. The second factual finding challenged by Mr. Anguiano is thejuvenile court's finding that "[D.T.] used his free hand toprevent the respondent from having sexual contactwith him." CP at 43. Mr. Anguiano concedes that sufficient evidence supports the finding that D.T. was swinging his arm; what he challenges is the finding that he was 9No. 32718-3-III State v. Anguiano doing this to preventMr. Anguiano from having sexual contact with him and the implied finding that Mr. Anguianodidhave the intention ofhaving sexual contact with D.T. D.T. testified that after being pulledto the ground and held by Mr. Thacker, "Ihad

one arm free and Iwas swinging with it to keep Adrian away." RP at 33. Hetestified that Mr. Thacker wrestled him to the ground and held him after Mr. Thacker witnessed Mr. Anguiano withhis penis in his hand, asking D.T. to "suckhim up." RP at 32. When D.T. was asked howMr. Anguiano appeared after D.T. had beenwrestled to the ground and was in Mr. Thacker's hold, he testified "Well he had his, you know, his penis out and, you know, he kept saying that stufflike oh it ain't gay. I'm up with on you and stuff like that." RP at 33. Mr. Chapin testified consistently, recounting that he saw D.T. on the ground, in a hold, and "struggling to get away from [Mr. Thacker]," while Mr. Anguiano was three or four feet in front ofD.T., penis in hand, "kind ofdancing around." RP at 8, 9. Mr. Chapintestified that upon seeing Mr. Chapin, Mr. Anguiano pulled up his pants, blushed, and "looked like hejustknew that hejust got caught doing something." RP at 9. D.T. testified that following the incident, Mr. Anguiano "toldme not to snitch and stufflike that." RP at 34. This testimony from D.T. and Mr. Chapin is substantial evidence supportingboth thejuvenile court's finding that D.T. was swinging his arm to preventMr. Anguiano

10No. 32718-3-111 

### State v. 

### Anguiano

from having sexual contactwith him and its implicit finding that Mr. Anguiano 

### didhave the intention ofhaving sexual contactwith D.T. 

### Assignments of ErrorNo.3, 4, 

### and5. 

### The court erred in concluding: "The court finds beyonda reasonable doubt that the respondent in conjunction with the co-respondent, George Thacker, took a substantial

step towardforcing[D.T] to have sexual contactwith the respondent throughforcible compulsion." CP at43; "The state does nothave to establish that the respondent aloneprovided theforcible compulsion." Id.; and Mr. Anguiano was guilty of attempted indecent liberties by forcible compulsion. Mr. Anguiano's remaining challenges are to thejuvenile court's three conclusions oflaw: (1) that the State proved beyond a reasonable doubt that he, in conjunction with Mr. Thacker, "took a substantial step toward forcing [D.T.] to have sexual contactwith [Mr. Anguiano] through forcible compulsion," (2) that the State does not have to establish that Mr. Anguiano alone provided the forcible compulsion, and (3) that Mr. Anguiano is guilty ofthe crime ofattempted indecent liberties by forcible compulsion. CP at 43. In reviewing a conclusion oflaw, we decide whether it is supported by the juvenile court's findings. 

### State v. B.J.s., 140 Wn. App. 91,97,169 P.3d 34 (2007). Our review is de novo. 

### Id. We treat unchallenged findings offact, ofwhich there are several

11No. 32718-3-111 State v. Anguiano

in this case, as verities on appeal. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). Mr. Anguiano'sbriefdoes notprovide argument or authority for his challenge to thejuvenile court'sthree legal conclusions. His assignment oferror to the conclusions appears to be predicated entirely onhis challenge to the underlying factual findings that he intended to have sexual contact with D.T. and acted in concert with Mr. Thacker. He evidently relies 'on the fact that ifthe critical findings fail, the conclusions will as well. We have held, however, thatthe challenged findings were supported by substantial evidence. Given no other suggestion as to whythe conclusions oflaw are in error, Mr. Anguiano'S remaining assignments oferror merit no further discussion. RAP 10.3(a)(6). Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. 

# 1zdLo (5 Siddoway, C.J.

# ~, 

# fj"

WE CONCUR:

Brown, J. 12