IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

ANTHONY M. MESSNER,

Appellant.

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No. 36737-1-III

UNPUBLISHED OPINION

FEARING, J. — The trial court convicted Anthony Messner of three counts of rape 

of a child in the first degree and one count of molestation of a child in the first degree. 

During Messner’s trial, the overwhelming evidence, including victim testimony, 

established that Messner committed the sexual crimes against his daughter. Nevertheless, 

the State never pled the crimes as being in the nature of “domestic violence.” Messner 

believes his final judgment and sentence contains a scrivener’s error that incorrectly 

converts his child rape and child molestation charges into domestic violence charges. He 

asks the court to remand his case to correct the alleged error. Because we do not read the 

judgment as declaring the convictions to be based on domestic violence, we decline his 

request. 

FILED

OCTOBER 6, 2020

In the Office of the Clerk of Court

WA State Court of Appeals Division III
No. 36737-1-III

State v. Messner

2

Domestic Violence Designation

Anthony Messner contends the trial court erred in finding the State pled and 

proved domestic violence. This contention rests on the presence of language, in his 

judgment and sentence that reads: “*DV: Domestic Violence was pled and proved.”

Clerk’s Papers (CP) at 46. Messner argues this language incorrectly converted his child 

rape and child molestation convictions into domestic violence convictions. The State 

responds by asserting that the the identified language is contained in the standard form 

judgment and sentence to indicate that, if the judgment contained other information with 

a domestic violence designation, the court made a finding that domestic violence was 

pled and proven in such case. The State further argues that, if the court had wished to 

designate Messner’s convictions as domestic violence convictions, the court would have 

checked two boxes contained in the judgment on a later page. Instead, the trial court left 

the boxes unchecked. We agree with the State. 

The issue is whether the language contained in Anthony Messner’s judgment and 

sentence stating “*DV: Domestic Violence was pled and proved” is a scrivener’s error

that incorrectly designated his child rape and child molestation convictions as domestic 

violence convictions. CP at 46. Generally, the law defines a scrivener’s error as a 

clerical mistake that, when amended, would correctly convey the trial court’s intention, 

as expressed in the record at trial. State v. Davis, 160 Wn. App. 471, 478, 248 P.3d 121

(2011). We find no scrivener’s error. 
No. 36737-1-III

State v. Messner

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The language challenged by Anthony Messner serves as part of the general 

structure of the standard form judgement and sentence prepared by the Washington 

administrative office of the courts. If domestic violence had been pled and proven during 

the course of Messner’s trial, the trial judge would have checked the two boxes, on a later 

page, related to domestic violence. Because both boxes remain unchecked, Messner’s 

judgment and sentence did not include a scrivener’s error that converts his child rape and 

child molestation charges into domestic violence charges. 

Statement of Additional Grounds

Anthony Messner asserts two errors in a statement of additional grounds. First, he 

argues that he did not receive a fair and impartial trial as a result of an alleged discussion 

that occurred outside the courtroom among a jury member, the victim’s mother, and the 

prosecuting attorney. Second, he contends sufficient evidence did not support his 

convictions because the State lacked physical or medical evidence and the State presented 

contradicting witness testimony. He emphasizes testimony regarding his purported use of 

a vibrator when the State never produced the vibrator at trial. Messner fails to cite the 

extensive record to support either statement of additional grounds. 

Regarding the first statement of additional grounds, any instances of conversations 

by a juror outside the courtroom only occurred during his first trial, which resulted in a 

mistrial. The record of the second trial lacks any mention of a jury member, the victim’s 

mother, or the prosecuting attorney conversing. Any conversation, if it occurred, pertains 
No. 36737-1-III

State v. Messner

4

to matters not in the record and cannot be addressed in a direct appeal. State v. 

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Pertaining to sufficiency of 

evidence, the State bears the burden of proving all elements of an offense beyond a 

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 

(1970); U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. When reviewing a 

challenge to the sufficiency of the evidence, this court must determine whether, after 

viewing the evidence and all reasonable inferences in a light most favorable to the State, 

a rational trier of fact could find the essential elements of the crime beyond a reasonable 

doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion). A 

claim of insufficiency admits the truth of the State’s evidence and all inferences that 

reasonably can be drawn therefrom. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 

P.3d 19 (2017). Credibility determinations are for the trier of fact and are not subject to 

review by this court. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). This 

court must defer to the trier of fact on issues of conflicting testimony, credibility of 

witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 

794 P.2d 850 (1990); State v. Canfield, 13 Wn. App. 2d 410, 418, 463 P.3d 755 (2020). 

The jury convicted Anthony Messner of three counts of rape of a child in the first degree 

and one count of child molestation in the first degree. The elements of the rape charge 

include:
No. 36737-1-III

State v. Messner

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(1) A person is guilty of rape of a child in the first degree when the 

person has sexual intercourse with another who is less than twelve years old 

and not married to the perpetrator and the perpetrator is at least twenty-four 

months older than the victim.

RCW 9A.44.073. Elements of child molestation include:

(1) A person is guilty of child molestation in the first degree when 

the person has, or knowingly causes another person under the age of 

eighteen to have, sexual contact with another who is less than twelve years 

old and not married to the perpetrator and the perpetrator is at least thirtysix months older than the victim.

RCW 9A.44.083. 

The victim, Anthony Messner’s daughter, testified that Messner performed sexual 

acts with her while she was between the ages of six years old and nine years old. The 

first count of rape required the State to prove that sexual contact occurred between 

Messner’s penis and the daughter’s mouth. The daughter testified that she put her mouth 

on Messner’s penis on multiple occasions. Her teacher, Meagan Higgins, also testified 

that the daughter told her that Messner directed her to place her mouth on his penis on 

multiple occasions beginning when she was in first grade. 

The second count of rape required the State to prove Anthony Messner had sexual 

intercourse with his daughter by an act of sexual contact involving his penis and the 

daughter’s anus. The daughter, through a drawing, showed that Messner placed his 

genitals against her buttocks. When asked if her father’s penis went inside or remained 

outside of her, the daughter responded, “inside.” Report of Proceedings (RP) at 1251-52. 
No. 36737-1-III

State v. Messner

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The third count of rape required the State to prove that sexual contact occurred 

between Anthony Messner’s mouth and the daughter’s vagina. The daughter testified 

that Messner touched her privates, as circled on an exhibit, with his mouth when she was 

unclothed. 

Finally, count four charged Anthony Messner with child molestation in the first 

degree. This charge required the State to prove that Messner had sexual contact with his 

daughter. The jury instructions defined sexual contact as “any touching of the sexual or 

other intimate parts of a person done for the purpose of gratifying sexual desires of either 

party.” CP at 23. The State asked the jury to find beyond a reasonable doubt that 

Messner sexually molested his daughter when he used a vibrator on her. The daughter 

testified that Messner used a “pink thingy” on her crotch. RP at 1258. The State showed 

her a picture that she had previously drawn and asked her if that was the object Messner 

had used on vagina. She responded affirmatively. The court admitted the drawing into 

evidence. The State later presented the drawing to Jasmine Jordan, one of the daughter’s 

counselors. Jordan explained that the drawing was done by the daughter during one of 

the counseling sessions with Jordan. Jordan identified, for the jury, the object as a 

vibrator. 

Although Anthony Messner contends correctly that the State presented no physical 

or medical evidence in support of the charges, such circumstances are common for most 

child sexual abuse cases. State v. Swan, 114 Wn.2d 613, 623, 630, 790 P.2d 610 (1990). 
No. 36737-1-III

State v. Messner

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Notwithstanding the fact that law enforcement never found the vibrator described by the 

daughter, the trier of fact weighs the evidence. Evidence existed in the record to find 

beyond a reasonable doubt that the sexual acts occurred between Messner and his 

daughter. The jury weighed the evidence and opted to believe the testimony of the 

daughter. 

CONCLUSION

We affirm the four convictions of Anthony Messner. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Korsmo, J.

______________________________

Pennell, C.J.