### 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 ofindecent 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 ofconsent by reason ofbeing mentally defective, mentally 

### incapacitated, or physically helpless." A person's knowledge that the victim is "incapable ofconsent by reason ofbeing 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 ofindecent 

### 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. Atthe end ofthe 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 hervagina. At first she thought itwas 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 initiallycharged Mohamed with third degree rape, but itlater 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 theNo. 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. Thejury 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 ofthis crime 

### is "knowledge that the person was incapable ofconsent by reason ofbeing 

### physically helpless."1 Wehold thatsuchknowledge isnotanessential 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 orotherwise,... be included in a charging document in orderto afford notice to an accused ofthe nature and cause ofthe accusation against 

### him."2 "An 'essential elementisonewhose specification isnecessaryto establish thevery illegality of thebehavior.'"3 To determine the elements of a crime, a court looks at the language ofthe 

### statute.4 Iftheplain language ofa statute isunambiguous, thecourtneednot

1Appellant's Opening Briefat6-10. 

### 2Statev. Kiorsvik. 117Wn.2d 93,97, 812P.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)). 4Kiorsvik. 117 Wn.2d at 101.No. 68061-7-1/4 

### construethestatute.5 "Butifthelanguage may bereasonably interpreted in more than oneway, itisambiguous
... ."6 The courtmayrely on standard aids to statutoryconstruction to determine the legislative intent.7 This courtreviews 

### denovo statutoryconstruction issues8 and challenges tothe sufficiencyofa charging document.9 Here, Mohamed argues that the information failed to allege a statutory element ofindecent liberties. RCW 9A.44.100(1), which defines that crime,
states in full: 

### (1) Aperson is guiltyofindecent 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) Byforcible compulsion; 

### (b) When the other person is incapable ofconsent 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 overthe victim; or (ii) Was providing transportation, within the course of his or her employment, to the victim atthe time of the offense;


### 5State v.Cooper. 176Wn.2d 678, 683, 294 P.3d 704, 706 (2013). 6ld 

### 7JcL 

### 8Statev. Bradshaw. 152Wn.2d 528, 531, 98P.3d 1190(2004). 9State v. Williams. 162Wn.2d 177, 182, 170P.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 ofthe 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 inthe name and by the authority ofthe State ofWashington, do accuse MOHAMAUD SULDAN MOHAMED of the crime of Indecent Liberties, committed as follows: That the defendant MOHAMAUD SULDAN MOHAMED in 

### KingCounty, 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 ofconsentbyreason of being (a) mentally defective, (b) mentally incapacitated, [or] (c) physicallyhelpless, to have sexualcontact with the Defendant. 

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

### anddignity of the State ofWashington.1101

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

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

### information is defective because itfailed to allege an element ofindecent liberties. He specifically argues that the word "knowingly" applies to subsection (b) ofthe above statute. Thus, he contends that the statute required the State to 

### prove that Mohamed had knowledge that M.M. was "incapable ofconsent by
reason ofbeing
... physically helpless." We rejectthis argument because it is based on a misreading ofthe statute. The sentence structure of RCW 9A.44.100(1) places the adverb, 

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

### modifies theword towhich it is placedclosest.11 Thissentence structure makes clearthat one must "knowingly cause[] another person who is not his or her 

### spouse to have sexual contact with him or heror another" to be guilty ofindecent liberties. Mohamed does not dispute this reading ofthe statute. Rather, he makes 

### a different argument. He claims that "knowingly" also modifies the language of subsection (b): "When the other person is incapable ofconsent by reason of being
... physically helpless." He is mistaken.



### 11 See, e.g.. TheChicago ManualofStyle 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 itmodifies makes the meaning clear....").No. 68061-7-1/7 

### When interpreting statutes, statutory provisions must be read in their 

### entirety andwithin 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 ofstatutoryconstruction thattrumps everyotherrule" is that "'the court should not construe statutory language so as to result inabsurd 

### or strainedconsequences.'"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 ofthe lead passage of RCW 

### 9A.44.100(1) identifies that whatfollows are the alternative means ofcommitting the crime. Thus, if "knowingly" applied to subsection (b), it follows that itmust 

### also apply to the other subsections, stating otheralternative 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 ofindecent 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. ChelanCounty Sheriff's Dep't. 110Wn.2d 806, 810,756 P.2d 736(1988). 

### 14 Davis v. State ex rel. Dep't ofLicensing. 137Wn.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


### orexamination."15 Subsection (e) provides that a person isguilty ofthis crime "[w]henthe victim is a resident of a facility for persons with a mental disorder or 

### chemical dependency
... and has supervisory authority over thevictim."16 These subsections require the State to prove a defendant's status in relation to 

### the victim. Itdoes not make sense thatthe 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) ofthe 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 ofsex offenses under the chapter. Itprovides the following relevant affirmative defense for an accused: (1) In any prosecution underthis chapter in which lack ofconsent is 

### based solely upon the victim's mental incapacity or upon the victim's being physically helpless, itis a defense which the defendantmustprove byapreponderance ofthe evidence that 

### atthe time ofthe offense the defendant reasonably believed that the victim was notmentally incapacitated and/or physically 

### helpless.1^ According to this provision, the defendanthas the burden of proving by a preponderance ofthe 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).

8No. 68061-7-1/9 

### ofproving beyond a reasonable doubttherequired knowledge.18 Specifically, the State would have to prove that the defendant knew the victim was "incapable of 

### consent by reason ofbeing
... physically helpless."19 Mohamed offers no persuasive explanation why his reading ofthe 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 tosupporthisargumentthat"knowingly" appliestosubsection (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 ofthe

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

### felonies.21 Lynn Lough's primary contention on appeal was that thetrial 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 70Wn. 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 rapewomen.22 This court outlined the analysis for determining whether evidence ofother 

### crimes may beadmitted underER404(b).23 One ofthe steps in thatanalysis is to determine whether "the evidence is relevant and ofconsequence to the 

### outcome" ofthecase.24 In discussing this partoftheanalysis, thecourtstated thatthe crime ofindecent liberties required a showing that "a defendant must knowinglycause 'sexual contact' andhe must 'knowingly' cause such contact 

### with aperson who is'physically helpless.'"25 In supportofthis 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 apparentfrom the sentence structure and punctuation ofthe statute. It is also apparent from RCW 

### 9A.44.030(1) which allows a defendantto negate culpability by interposing the affirmative defense that he reasonably believed the 

### victim was notphysically helpless.'26'

22 Id. at 312-24. 

### 23 Id,at 313. 24 Id.

25jd at 325 (quoting RCW 9A.44.030(1)). 26 Id. at 325 n.14.

10No. 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 ofthe Lough decision, the supreme court did not 

### adopt these statements in concluding that the challenged evidence was 

### admissible.28 Rather, the supremecourtdecided the "evidencewas relevantto 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 ofthe sentence structure of RCW 9A.44.100(1) is legally incorrect. "Knowingly" modifies "causes." Itdoes not modify subsection (b), a more remote provision of the indecent liberties statute. For the reasons we already explained inthis 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 proofto the State to



### 27 Ass'n of Wash. Bus, v. Dep't of Revenue. 155Wn.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.

11No. 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 Statev. Shipp30 supportshis 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 seconddegree.31 Theformer promoting prostitution statuteprovided: (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 yearsold.[32] Krumins argued that the State had to prove that he had knowledge that the 

### prostitute was under18.33 The supremecourtagreed.34 Itexplained that"the 

### legislature has specifically included therequirementofknowledge."35 Forthe

30 93Wn.2d 510, 610 P.2d 1322(1980). 31id,at 512. 32jd, at 518 (emphasis added) (citing former RCW 9A.88.070(1) (1975)). 

### 33 Jd,at 519. 34id, 35 id,

12No. 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 ofthe 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 differentfrom that in the promoting prostitution 

### statute.37 In anyevent, as ouranalysis 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 contactwith M.M. while she was incapable of consent. We disagree. 

### 36id, 37 Compare former RCW 9A.88.070(1) (1975) with RCW 9A.44.100(1).

13No. 68061-7-1/14 The State must prove each essential element ofthe crime beyond a 

### reasonable doubt.38 In deciding whethersufficientevidence supportsthe conviction, the court views the evidence inthe light most favorable to the State to determine whether any rational trier offact could have found the essential 

### elementsofthecrime beyond a reasonable doubt.39 A challenge to the sufficiency of the evidence admits the truth ofthe 

### 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 thetrieroffact on "issues ofconflicting 

### testimony, credibility ofwitnesses, and the persuasiveness oftheevidence."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 contactwith 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 InreWinship. 397 U.S. 358, 363-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

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

### 40id, 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).

14No. 68061-7-1/15 "any touching ofthe sexual or other intimate parts of a person done for the 

### purpose of gratifying sexual desire ofeither party or a third party." RCW 9A.44.010(5) states, "'physically helpless' means a person who is unconscious orfor 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 ofevents of you waking up, and explain to us what your state of consciousness was— A. Yes. Q. —at the time? A. Yes. Iwas in bed, and somebody was touching my vagina. Ithought itwas [Milgate]. That's when Istarted waking up. And then the fingers and the penetration kind of happened at the same time. Itwas enough to like really wake me up, and Iwoke up and actually opened my eyes and saw [Milgate] sleeping in front of me. Q. Atwhat 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 hishand.46

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

### 45 ReportofProceedings (Sept. 22, 2011) at 105(emphasis added). 46Jd, at 82. 15No. 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 Iwas half awake, and Ithought itwas [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. Iwas half asleep. Q. Okay. Well, I'm asking, let's assume that half asleep does not equal being asleep. A. Okay, then yes, Iwas 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 hervaginawith hishand.48 Thejurywas entitled to believe this testimony, which is sufficient to establish the required sexual contact.



### 47 id, at 103. 

### 48 id, at 82, 103,105.

16No. 68061-7-1/17 Further, M.M. testified that she became more conscious when he put his 

### fingers in hermouth and penetrated her vaginawith hispenis.49 Thisevidence demonstrates that a rational trier of fact could have found that Mohamed knowingly caused M.M. to have sexual contactwith him when M.M. was sleeping. Her state of sleeping rendered her "physically helpless" for the purpose 

### oftheindecentliberties statute.50 There wassubstantial evidence toprove that M.M. was incapable ofconsenting to the sexual contact. Mohamed argues that "the grogginess of a recent, but past state of sleep does not establish lackof capacity to communicate non-consent." He cites State 

### v. Bucknell51 and a New Yorkcase52 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. 

### 49id, at 103. 50 See Puapuaga. 54Wn. App. at 861. 51 144Wn. App. 524, 183 P.3d 1078(2008). 52 People v. Huurre. 193A.D.2d 305 (N.Y. App. Div. 1993). 

### 53 Bucknell. 144Wn. App. at 530. 54 Huurre. 193 A.D.2d at 306.

17No. 68061-7-1/18 

### Mohamed also argues that M.M.'s testimony was inconsistent. He contends that she effectively retracted hertestimony 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. Inany event, the jurywas entitled to resolve inconsistencies, if any. Mohamed claims that "M.M. stated that the vaginal activity only lasted for 

### a few seconds, indicatingshe was aware of when itbegan." He essentially 

### argues that M.M. was not "physically helpless" because she was aware of the entire sexual contact. Butthe testimony he cites to supportthis argument was 

### regarding the penetration, which was afferMohamed 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 thejudgment and sentence. 

# ^J

WE CONCUR: 

# i

18