COURT OF AFP/".'! '1 fT'

STATE OF WASH^GTf.A:

20I3HAY 23 Aii G: 3G

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

)

STATE OF WASHINGTON, ) No. 68061-7-1

)

Respondent, ) DIVISION ONE

)

v. )

)

MOHAMAUD SULDAN MOHAMED, ) PUBLISHED

)

Appellant. ) FILED: May 28.2013

)

Cox, J. — Under RCW 9A.44.100(1)(b), a person is guilty of indecent

liberties if he or she "knowingly causes another person who is not his or her

spouse to have sexual contact with him or her or another. .. [w]hen the other

person is incapable of consent by reason of being mentally defective, mentally

incapacitated, or physically helpless." A person's knowledge that the victim is

"incapable of consent by reason of being mentally defective, mentally

incapacitated, or physically helpless" is not an essential element of this crime.

Thus, here, where Mohamaud Mohamed was charged with the crime of indecent

liberties, such knowledge need not have been included in the information. And

there was sufficient evidence to convict Mohamed of indecent liberties. We

affirm.
No. 68061-7-1/2

Mohamed, M.M., and M.M.'s boyfriend, Nolan Milgate, attended a party in

Seattle in 2011. Mohamed met M.M and Milgate for the first time at this party.

During the party, Mohamed and M.M. consumed alcohol. Mohamed also

consumed marijuana. Mohamed and M.M. conversed during the party.

At the end of the party, Mohamed missed his ride home. The hostess told

Mohamed that he could sleep on a couch on the first floor. M.M. and Milgate

also spent the night at the house in an upstairs bedroom.

M.M. testified at trial that she was sleeping in bed with Milgate when she

was awakened by someone touching her vagina. At first she thought it was

Milgate. But then she felt fingers in her mouth and a penis penetrating her

vagina. M.M. further testified that she realized that Mohamed was in the bed with

her. M.M. moved away from Mohamed and woke up Milgate. She told Milgate

that she had been raped.

Milgate grabbed Mohamed, and they started fighting. A neighbor saw the

fighting through a window and called 911. Milgate also called for help. The

police arrived, interviewed witnesses, and arrested Mohamed.

The State initially charged Mohamed with third degree rape, but it later

amended the charge to indecent liberties.

Mohamed testified at trial that he and M.M. "made out" on the first floor of

the house before they went to sleep that night. He testified that he fell asleep on

the couch downstairs, and M.M. went upstairs. Later, he went upstairs to find a

bathroom. While he was looking for a bathroom, he opened the door to the
No. 68061-7-1/3

bedroom where M.M. and Milgate were sleeping, and Milgate hit him. Mohamed

testified that he never got into bed with M.M. and Milgate.

The jury convicted Mohamed as charged.

Mohamed appeals.

ADEQUACY OF INFORMATION

Mohamed argues that his conviction must be reversed because the State

failed to allege in the amended information all of the essential elements of

indecent liberties. Specifically, he claims that an essential element of this crime

is "knowledge that the person was incapable of consent by reason of being

physically helpless."1 We hold thatsuch knowledge is not an essential element

of this crime and need not be included in an information.

Constitutional law and CrR 2.1(b) require that "[a]ll essential elements of a

crime, statutory or otherwise,... be included in a charging document in order to

afford notice to an accused of the nature and cause of the accusation against

him."2 "An 'essential element isone whose specification is necessary to

establish the very illegality of the behavior.'"3

To determine the elements of a crime, a court looks at the language of the

statute.4 If the plain language ofa statute is unambiguous, the court need not

1Appellant's Opening Brief at 6-10.

2State v. Kiorsvik. 117Wn.2d 93, 97, 812 P.2d 86 (1991) (citing U.S.

Const, amend. 6; Const, art. 1, § 22 (amend. 10); CrR 2.1(b)).

3State v. Tinker. 155Wn.2d 219, 221,118 P.3d 885 (2005) (quoting State

v. Johnson. 119 Wn.2d 143, 147, 829 P.2d 1078 (1992)).

4 Kiorsvik. 117 Wn.2d at 101.
No. 68061-7-1/4

construe the statute.5 "But if the language may be reasonably interpreted in

more than one way, it is ambiguous ... ."6 The courtmay rely on standard aids

to statutoryconstruction to determine the legislative intent.7 This court reviews

de novo statutory construction issues8 and challenges tothe sufficiency of a

charging document.9

Here, Mohamed argues that the information failed to allege a statutory

element of indecent liberties. RCW 9A.44.100(1), which defines that crime,

states in full:

(1) A person is guiltyof indecent liberties when he or she knowingly

causes another person who is not his or her spouse to have sexual

contact with him or her or another:

(a) By forcible compulsion;

(b) When the other person is incapable of consent by reason of

being mentally defective, mentally incapacitated, or physically

helpless;

(c) When the victim is a person with a development disability and

the perpetrator is a person who is not married to the victim and

who:

(i) Has supervisory authority over the victim; or

(ii) Was providing transportation, within the course of his or her

employment, to the victim at the time of the offense;

5State v. Cooper. 176Wn.2d 678, 683, 294 P.3d 704, 706 (2013).

6ld

7JcL

8State v. Bradshaw. 152Wn.2d 528, 531, 98 P.3d 1190 (2004).

9State v. Williams. 162Wn.2d 177, 182, 170 P.3d 30 (2007).
No. 68061-7-1/5

(d) When the perpetrator is a health care provider, the victim is a

client or patient, and the sexual contact occurs during a treatment

session, consultation, interview, or examination. It is an affirmative

defense that the defendant must prove by a preponderance of the

evidence that the client or patient consented to the sexual contact

with the knowledge that the sexual contact was not for the purpose

of treatment;

(e) When the victim is a resident of a facility for persons with a

mental disorder or chemical dependency and the perpetrator is a

person who is not married to the victim and has supervisory

authority over the victim; or

(f) When the victim is a frail elder or vulnerable adult and the

perpetrator is a person who is not married to the victim and who:

(i) Has a significant relationship with the victim; or

(ii) Was providing transportation, within the course of his or her

employment, to the victim at the time of the offense.

The State charged Mohamed under RCW 9A.44.100(1)(b). The amended

information stated:

I, Daniel T. Satterberg, Prosecuting Attorney for KingCounty

in the name and by the authority of the State of Washington, do

accuse MOHAMAUD SULDAN MOHAMED of the crime of

Indecent Liberties, committed as follows:

That the defendant MOHAMAUD SULDAN MOHAMED in

King County, Washington, on or about April 16, 2011, did

knowingly cause M.M. (DOB 12/2/90), who was not the spouse of

the Defendant and who was incapable of consent by reason of

being (a) mentally defective, (b) mentally incapacitated, [or] (c)

physically helpless, to have sexual contact with the Defendant.

Contrary to RCW 9A.44.100(1)(b), and against the peace

and dignity of the State ofWashington.1101

10 Clerk's Papers at 7 (emphasis added).
No. 68061-7-1/6

Elements of Indecent Liberties

For the first time on appeal, Mohamed argues that the amended

information is defective because itfailed to allege an element of indecent

liberties. He specifically argues that the word "knowingly" applies to subsection

(b) of the above statute. Thus, he contends that the statute required the State to

prove that Mohamed had knowledge that M.M. was "incapable of consent by

reason of being ... physically helpless." We reject this argument because it is

based on a misreading of the statute.

The sentence structure of RCW 9A.44.100(1) places the adverb,

"knowingly," immediately before the verb, "causes." Generally, an adverb

modifies the word to which it is placed closest.11 Thissentence structure makes

clear that one must "knowingly cause[] another person who is not his or her

spouse to have sexual contact with him or her or another" to be guilty of indecent

liberties.

Mohamed does not dispute this reading of the statute. Rather, he makes

a different argument. He claims that "knowingly" also modifies the language of

subsection (b): "When the other person is incapable of consent by reason of

being ... physically helpless." He is mistaken.

11 See, e.g.. TheChicago Manualof Style H5.165 (16th ed. 2010) ("The

adverb should generally be placed as near as possible to the word it is intended

to modify.... Placing the adverb with the word it modifies makes the meaning

clear....").
No. 68061-7-1/7

When interpreting statutes, statutory provisions must be read in their

entirety and within the contextofthe statutory scheme as a whole.12 "Statutes

should not be construed so as to render any portion meaningless or

superfluous."13 "\T\he rule of statutory construction that trumps every other rule"

is that "'the court should not construe statutory language so as to result in absurd

or strained consequences.'"14

We conclude that "knowingly" does not apply to subsection (b) of the

indecent liberties statute for two reasons.

First, the colon that appears at the end of the lead passage of RCW

9A.44.100(1) identifies that what follows are the alternative means of committing

the crime. Thus, if "knowingly" applied to subsection (b), it follows that it must

also apply to the other subsections, stating other alternative means. But applying

"knowingly" to the other subsections of this statute leads to absurd or unlikely

results.

For example, applying "knowingly"to subsections (d) and (e) makes no

sense. Subsection (d) provides that a person is guilty of indecent liberties

"[w]hen the perpetrator is a health care provider, the victim is a client or patient,

and the sexual contact occurs during a treatment session, consultation, interview,

12 ITT Ravonier. Inc. v. Dalman. 122Wn.2d 801, 807, 863 P.2d 64 (1993).

13 Stone v. Chelan County Sheriff's Dep't. 110 Wn.2d 806, 810, 756 P.2d

736(1988).

14 Davis v. State ex rel. Dep't of Licensing. 137 Wn.2d 957, 971, 977 P.2d

554 (1999) (quoting In re Custody of Smith. 137 Wn.2d 1, 8, 969 P.2d 21 (1998)).
No. 68061-7-1/8

or examination."15 Subsection (e) provides that a person is guilty of this crime

"[w]hen the victim is a resident of a facility for persons with a mental disorder or

chemical dependency ... and has supervisory authority over the victim."16

These subsections require the State to prove a defendant's status in relation to

the victim. It does not make sense that the State would have to prove that the

defendant knew of his or her own status with respect to the victim.

Since applying such knowledge to these other subsections does not make

sense, it follows that "knowingly"does not apply to subsection (b) of the statute.

Second, applying "knowingly" to subsection (b) shifts the burden of proof

in ways inconsistent with relevant statutes. RCW 9A.44.030 sets out the

defenses to the prosecution of sex offenses under the chapter. It provides the

following relevant affirmative defense for an accused:

(1) In any prosecution under this chapter in which lack of consent is

based solely upon the victim's mental incapacity or upon the

victim's being physically helpless, it is a defense which the

defendant must prove by a preponderance ofthe evidence that

at the time of the offense the defendant reasonably believed that

the victim was not mentally incapacitated and/or physically

helpless.1^

According to this provision, the defendant has the burden of proving by a

preponderance of the evidence this reasonable belief defense. But if "knowingly"

applied to subsection (b) of RCW 9A.44.100(1), the Sfafe would have the burden

15RCW9A.44.100(1)(d).

16RCW9A.44.100(1)(e).

17 RCW 9A.44.030(1) (emphasis added).

8
No. 68061-7-1/9

of proving beyond a reasonable doubt the required knowledge.18 Specifically, the

State would have to prove that the defendant knew the victim was "incapable of

consent by reason of being ... physically helpless."19 Mohamed offers no

persuasive explanation why his reading of the statute is correct, in view of RCW

9A.44.030.

As the State correctly argues, if"knowingly" applies to subsection (b) of

RCW 9A.44.100(1), the statutory defense of RCW 9A.44.030 would be

superfluous. It is unlikely that the legislature intended this result.

Mohamed principally relies on a footnote in this court's decision in State v.

Lough20 to support his argument that "knowingly" appliesto subsection (b) ofthe

indecent liberties statute. We disagree with the statement in the footnote of that

case to the extent that itstates that "knowingly" applies to this subsection of the

statute.

That case was an appeal of convictions of indecent liberties and other

felonies.21 Lynn Lough's primary contention on appeal was that the trial court

abused its discretion by admitting testimony of women who were allegedly

18 See, e.g.. 11 Washington Practice: Washington Pattern Jury

Instructions: Criminal 49.02 (3d ed. 2011).

19RCW9A.44.100(1).

20 70 Wn. App. 302, 853 P.2d 920 (1993).

21 Id. at 306.
No. 68061-7-1/10

drugged and raped by Lough as evidence of a common scheme or plan to drug

and rape women.22

This court outlined the analysis for determining whether evidence of other

crimes may be admitted under ER 404(b).23 One ofthe steps in that analysis is

to determine whether "the evidence is relevant and of consequence to the

outcome" of the case.24 In discussing this part of the analysis, the court stated

that the crime of indecent liberties required a showing that "a defendant must

knowingly cause 'sexual contact' and he must 'knowingly' cause such contact

with a person who is'physically helpless.'"25 In support ofthis reading, this court

stated in a footnote:

That "knowingly" modifies both "causes another person ...

to have sexual contact' and "when the other person is ...

physically helpless" is apparent from the sentence structure and

punctuation of the statute. It is also apparent from RCW

9A.44.030(1) which allows a defendant to negate culpability by

interposing the affirmative defense that he reasonably believed the

victim was not physically helpless.'26'

22 Id. at 312-24.

23 Id,at 313.

24 Id.

25 jd at 325 (quoting RCW 9A.44.030(1)).

26 Id. at 325 n.14.

10
No. 68061-7-1/11

We disagree with this reading of the indecent liberties statute. We do so

because, in our view, the statement is legally incorrect dicta that we decline to

follow.27

These statements in Lough are dicta because they were not necessary to

the holding that the evidence was admissible under ER 404(b) as a common

scheme or plan. On review of the Lough decision, the supreme court did not

adopt these statements in concluding that the challenged evidence was

admissible.28 Rather, the supreme court decided the "evidence was relevant to a

material assertion of [Lough] that the victim had consented to sexual intercourse

and to the question whether he rendered her so helpless that she was unable to

refuse."29

Moreover, as we already explained in this opinion, the Lough court's

reading of the sentence structure of RCW 9A.44.100(1) is legally incorrect.

"Knowingly" modifies "causes." It does not modify subsection (b), a more remote

provision of the indecent liberties statute.

For the reasons we already explained in this opinion, we disagree with the

Lough court's conclusion regarding the affirmative defense statute. Mohamed's

argument necessarily requires a shifting of the burden of proof to the State to

27 Ass'n of Wash. Bus, v. Dep't of Revenue. 155 Wn.2d 430, 442 n.11,

120 P.3d 46 (2005) (explaining that language in an opinion is dicta if it is "made

in passing and not directly related to the holdings").

28 State v. Lough. 125Wn.2d 847, 889 P.2d 487 (1995).

29 Id. at 862.

11
No. 68061-7-1/12

prove the accused's knowledge that a victim is physically helpless, making RCW

9A.44.030 superfluous. The legislature is unlikely to have intended this result.

Mohamed also contends that State v. Shipp30 supports his interpretation of

RCW 9A.44.100(1). He argues that Shipp expressed a "rule" of statutory

construction that "the word 'knowingly,' followed by a colon, modifies 'everything

which follows the colon.'" We are not persuaded that Shipp supports his

argument.

In Shipp. Atis Krumins was convicted of promoting prostitution in the first

and second degree.31 The former promoting prostitution statute provided:

(1) A person is guilty of promoting prostitution in the first degree if

he knowingly:

(b) Advances or profits from prostitution of a person less than

eighteen years old.[32]

Krumins argued that the State had to prove that he had knowledge that the

prostitute was under 18.33 The supreme court agreed.34 It explained that "the

legislature has specifically included the requirement of knowledge."35 For the

30 93 Wn.2d 510, 610 P.2d 1322 (1980).

31id,at 512.

32 jd, at 518 (emphasis added) (citing former RCW 9A.88.070(1) (1975)).

33 Jd,at 519.

34 id,

35 id,

12
No. 68061-7-1/13

promoting prostitution statute, "[t]he word 'knowingly' precedes a colon and

modifies everything which follows the colon."36

This statement, in the context of the promoting prostitution statute's

structure, makes sense. But it makes no sense in the context of the statute at

issue here, where the sentence structure is different.

Mohamed argues that "[t]here is nothing different between the language of

the former promoting prostitution statute at issue in Shipp. and the language of

the statute at issue in the present case, which compels a different statutory

construction result here." But the placement of the word "knowingly" in the

indecent liberties statute is different from that in the promoting prostitution

statute.37 In any event, as our analysis in thisopinion already explains, sentence

structure alone is not the sole basis of why we conclude that "knowingly" does

not apply to subsection (b) of the indecent liberties statute.

In sum, a defendant's knowledge that a person is incapable of consent by

reason of being physically helpless is not an essential element of indecent

liberties. The amended information in this case adequately stated the crime of

indecent liberties.

SUFFICIENCY OF THE EVIDENCE

Mohamed next argues that his conviction must be reversed with prejudice

because the evidence was insufficient to prove that he had sexual contact with

M.M. while she was incapable of consent. We disagree.

36 id,

37 Compare former RCW 9A.88.070(1) (1975) with RCW 9A.44.100(1).

13
No. 68061-7-1/14

The State must prove each essential element of the crime beyond a

reasonable doubt.38 In deciding whether sufficient evidence supportsthe

conviction, the court views the evidence in the light most favorable to the State to

determine whether any rational trier of fact could have found the essential

elementsofthe crime beyond a reasonable doubt.39

A challenge to the sufficiency of the evidence admits the truth of the

State's evidence.40 "[A]ll reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the

defendant."41 Thiscourtdefers to the trier offact on "issues of conflicting

testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence."42

Here, the State was required to prove that Mohamed "knowingly cause[d]

another person who is not his or her spouse to have sexual contact with him or

her or another... [w]hen the other person is incapable of consent by reason of

being ... physically helpless."43 RCW 9A.44.010(2) defines "sexual contact' as

38 In re Winship. 397 U.S. 358, 363-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970).

39 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

40 id,

41 Id,

42 State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004),

abrogated in part on other grounds bv Crawford v. Washington. 541 U.S. 36, 124

S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

43 RCW 9A.44.100(1).

14
No. 68061-7-1/15

"any touching of the sexual or other intimate parts of a person done for the

purpose of gratifying sexual desire of either party or a third party."

RCW 9A.44.010(5) states, "'physically helpless' means a person who is

unconscious or for any other reason is physically unable to communicate

unwillingness to an act." This court has explained that "[t]he state of sleep

appears to be universally understood as unconsciousness or physical inability to

communicate unwillingness."44

At trial, M.M. testified during redirect examination as follows:

Q. Can you go through the sequence of events of you waking

up, and explain to us what your state of consciousness was—

A. Yes.

Q. —at the time?

A. Yes. I was in bed, and somebody was touching my

vagina. Ithought it was [Milgate]. That's when Istarted waking up.

And then the fingers and the penetration kind of happened at

the same time. It was enough to like really wake me up, and I woke

up and actually opened my eyes and saw [Milgate] sleeping in front

of me.

Q. At what point did you feel awake and alert?

A. The penetration—well, the fingers probably, but they

happened like simultaneously. They happened at like the same

time.145'

According to other parts of M.M.'s testimony, she first felt the person who turned

out to be Mohamed touching her vaginawith his hand.46

44 State v. Puapuaoa. 54 Wn. App. 857, 861, 776 P.2d 170 (1989).

45 Report of Proceedings (Sept. 22, 2011) at 105 (emphasis added).

46 Jd, at 82.

15
No. 68061-7-1/16

During cross-examination, M.M. provided similar testimony:

Q. All right. And, once again, you were—you were woken by

the finger in your mouth, not the penetration.

A. Yes.

Q. And how much time elapsed between the two?

A. Well, so there was a confusion earlier. He was touching me,

and I was half awake, and I thought it was [Milgate], and then the

fingers were in my mouth, and then the penetration.

Q. Okay. So when the fingers went into your mouth and you

weren't asleep, you were half awake, right?

A. Yes.

Q. So, during this episode, you were not asleep.

A. I was half asleep.

Q. Okay. Well, I'm asking, let's assume that half asleep does

not equal being asleep.

A. Okay, then yes, I was awake.

Q. Okay, so during this entire episode, you were awake.

A. Yes.[47]

This evidence shows that M.M. was sleeping until Mohamed began to

wake her up bytouching her vagina with his hand.48 The jury was entitled to

believe this testimony, which is sufficient to establish the required sexual contact.

47 id, at 103.

48 id, at 82, 103,105.

16
No. 68061-7-1/17

Further, M.M. testified that she became more conscious when he put his

fingers in her mouth and penetrated her vaginawith his penis.49 Thisevidence

demonstrates that a rational trier of fact could have found that Mohamed

knowingly caused M.M. to have sexual contact with him when M.M. was

sleeping. Her state of sleeping rendered her "physically helpless" for the purpose

ofthe indecent liberties statute.50 There wassubstantial evidence to prove that

M.M. was incapable of consenting to the sexual contact.

Mohamed argues that "the grogginess of a recent, but past state of sleep

does not establish lack of capacity to communicate non-consent." He cites State

v. Bucknell51 and a New York case52 to supportthis assertion. We are not

persuaded by this argument for two reasons.

First, those cases did not involve a victim who was sleeping. Rather, they

addressed one victim who had physical limitations but was able to

communicate53 and anothervictim who was "profoundly mentally retarded."54

Second, M.M.'s testimony shows that she was sleeping until Mohamed

began to wake her up by touching her vagina. Thus, her testimony shows that

she was unconscious and unable to consent when he began the sexual contact.

49 id, at 103.

50 See Puapuaga. 54 Wn. App. at 861.

51 144Wn. App. 524, 183 P.3d 1078 (2008).

52 People v. Huurre. 193 A.D.2d 305 (N.Y. App. Div. 1993).

53 Bucknell. 144Wn. App. at 530.

54 Huurre. 193 A.D.2d at 306.

17
No. 68061-7-1/18

Mohamed also argues that M.M.'s testimony was inconsistent. He

contends that she effectively retracted her testimony that she was unconscious

when Mohamed first started touching her vagina. But Mohamed

mischaracterizes M.M.'s testimony. M.M. consistently testified that she was

sleeping and firststarted waking up when Mohamed touched her vagina. In any

event, the jury was entitled to resolve inconsistencies, if any.

Mohamed claims that "M.M. stated that the vaginal activity only lasted for

a few seconds, indicating she was aware of when it began." He essentially

argues that M.M. was not "physically helpless" because she was aware of the

entire sexual contact. But the testimony he cites to support this argument was

regarding the penetration, which was affer Mohamed touched M.M.'s vagina and

put his fingers in her mouth according to M.M.'s testimony. M.M. may have been

•conscious at the point of penetration, but she was unconscious when Mohamed

initially touched her vagina. Thus, this argument is not persuasive.

We affirm the judgment and sentence.

^J

WE CONCUR:

i

18