IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. WILLIS ALLEN WHIPPLE, Appellant. No. 68056-1-1 

## DIVISION ONE " ^§ UNPUBLISHED OPINION

. °" >. 

## FILED: May6,2013 ^ l;~

o o 

### Grosse, J. — A developmental^ delayed 12-year-old girl's generic testimony of multiple sexual assaults may be sufficient to sustain multiple 

### convictions of a resident child rapist.1 Willis Whipple argues that the generic testimony here was insufficient to support his convictions of four counts of first degree rape of a child. He also argues thatthe prosecutor's improperarguments demonstrate the insufficiency of the evidence. Whipple also challenges two conditions of community custody imposed at sentencing. We affirm the conviction but remand for the trial court to strike the challenged community custody conditions. FACTS The State charged Whipple with four counts of first degree rape of a child, ST., occurring on or about January 1, 2010 to July 31, 2010. At trial in September 2011, ST. testified that she was 12 years old and in seventh grade but she could not spell her last name, identify her school or town, or remember



### 1See Statev. Haves. 81 Wn.App. 425, 438, 914 P.2d 788 (1996). o ^rNo. 68056-1-1/2 

### herbirthday.2 ST. identifiedWhipple as her uncle and testified that she stayed in the same house with him when she and her sisters and brother spent weekends with Whipple's "mom and dad." ST. testified that the first time "something happened" with Whipple, she

was sleeping on a couch in the same room with her brother, her sisters, and her father. Whipple woke her, told her to come to the bedroom, and "said he would give [her] a treat after it." ST. testified that she went with Whipple to his bed, where she took offher pajama pants and underwear. When asked why she took 

### offherclothes, ST. responded, "Howelse am Igoing to getthe chocolate?" ST. testified that Whipple touched her with his hand on "My penis, my butt, and my 

### boobies."3 ST. agreed that her"penis" isbetween herlegs on thefront of her body. When asked whether she had another name for her "penis," ST. said, "No." ST. testified that after Whipple stopped touching her, he gave her chocolate, and she went back to her bed, ate the chocolate, and went to sleep. 

### ST. testified that she thought she should not tell otherpeople inthe house about 

### howshe got the chocolate, "becausethen Ihave to sharethe chocolate." ST. testified thatthe "next time" took place inthe bathroom at night. ST. 

### testified that Whipple woke her up and came into the bathroom with her, she used the toilet, and "[h]e told [her] to wipe." ST. initially refused to provide additional details or explain her statements. Throughout her testimony, ST. answered "I don't know," or "I don't remember," to several questions, and 

### 2 ST.'s mother testified that ST. is "slow in school," "doesn't catch on to 

### schooling, like spelling, reading, writing," and was diagnosed as "[m]entally retarded" when she was inthird grade. 

### 3ST. testified that when he touched her, Whipple's fingers "[s]tayed outside" her body.No. 68056-1-1/3 eventually admitted, "Ijustdon'twantto talk about it right now." Inresponse to a series of general questions, ST. agreed that "things happened" with Whipple

more than once in the bedroom, the laundry room, and the bathroom, but only those three rooms. Ultimately, referring to the first incident inthe bathroom, ST. testified, "He started licking me." The prosecutor asked, "Where did he lickyou?" 

### ST. answered, "In my pee-pee." The followingexchange occurred: Q: How manytimes do you think he licked you, how manydifferent days or nights? A: A couple. Q: Whatdo you mean by "a couple"? A: I don't know. Q: Is thattwo, three, or more than three? A: More than three. 

### ST. later testified that when he was licking her, Whipple was on his knees and 

### she was standing. ST. did not describe any other incidents or details, despite her testimony that more than ten incidents occurred ineach of the three rooms she identified. S.T.'s mother, Ronda Lee Snowden, testified that ST. had regular visits 

### every other weekend with her father, Luddly Thompson, at the home of Thompson's mother, Anita Thompson, in Monroe, Washington, between September2009 and June 2010. 

### Forthe defense case, AnitaThompson testified that ST. usually stayed at 

### her house on alternatingweekends during the fall of 2009 until June 2010, when 

### she stayed for approximately three weeks. Thompson testified that Whipple stayed at her house "offand on" betweenThanksgiving 2009 and January 2011. When asked how many times she thoughtWhipple was at her house when ST.No. 68056-1-1/4



### was staying there between Thanksgiving 2009 and January 2010, Thompson responded, "I'massuming

-- maybe 20 times." 

### In his closing argument, the prosecutor began by arguing that the jury should assess S.T.'s credibility by focusing on the particular moment in S.T.'s testimony when she responded to his question of why she took off her clothes with "How else am Igoing to get the chocolate?" The prosecutor argued, "So I ask you, what did you feel inyour heart, what did you feel inyour stomach, when you heard that answer? At that moment in time, did you have any doubt whatsoeverthatwhat shejust said was the truth?" He asked thejury to startwith that moment in considering whether S.T. was confused or lied during her testimony. He continued, "You can't ignore everything else, because you can't 

### find somebody guilty until you have analyzed all the evidence, or the lack of evidence, and decide beyond a reasonable doubt that it's true and that you are satisfied that all the elements have been proved." The prosecutor argued that 

### the jury should find Whipple guilty of the four charged counts under the third definition of "sexual intercourse" referring to "any contact with the mouth and 

### genitals," based on S.T.'s testimony "with respect to the licking," which S.T. testified occurred "[m]ore than three" times. 

### Defense counsel argued that even ifthejury believed ST., her testimony 

### regarding the licking only supported one count of child rape because she did not sufficientlydistinguish other incidents. Defense counsel further argued that the jury should not believe S.T. because she was suggestible, confused, or not 

### telling the truth, as demonstrated when she claimed during a defense interview thatWhipple touched her inappropriately hundreds oftimes inthe laundry room,

4No. 68056-1-1/5 

### bedroom, and bathroom, but later testified that nothing happened, or different 

### things happened, or she failed to describe any specific incident. Defense counsel also directed thejurors to the instructions and argued thatthey were not 

### allowed to rely on whatthey knew intheirhearts as suggested bythe prosecutor. 

### In rebuttal, the prosecutor urged the jury to consider S.T.'s actual 

### testimony rather than defense counsel's characterization of the evidence. He described his efforts to draw S.T. out when she failed to provide details or 

### explanations for her statements indicating that "things happened" with Whipple. He stated, "She made clear there was a lot more that happened, but she didn't 

### describe it, so you don't have that evidence. But don'tassume from that that it didn't happen." The prosecutor suggested that the jury should determine 

### whether S.T.'stestimonythatnothing happened in the laundry room negated her 

### testimony ofother specific events. He argued, "[l]t all started because she told
ussomething happened inthreedifferentplaces, includingthelaundryroom. So you can't just assume that at one pointwhen she says 'nothing,' that that means nothing happened. Sometimes thatmightbe the right conclusion, orsometimes 

### you might not know, which means there's reasonable doubt; or sometimes it means, Idon't want to talk about it; nothing happened." Finally, the prosecutor 

### clarified his argumentregarding the jury'sassessmentof S.T.'s credibility: This case comes down to [ST.], and that's why itcomes down to 

### that moment. And when Isaid, you know in your heart ofhearts, I 

### didn't mean to say use sympathy or passion or prejudice to reach a verdict in this case, because that's absolutely right; you cannot do 

### that. When Isaid heart ofhearts, Ijust meantthe certainty. It's not 

### about rendering the verdict, it's about assessing credibility, because 

### first you have to assess the credibility before you can render a verdict. And you should know beyond all doubt whatsoever, and that's all I really meant by heart of hearts. I'm not asking you toNo. 68056-1-1/6 convict somebody based on passion oremotion. But you know, and you knew right then, that itwas the absolute truth. The jury found Whipple guilty as charged and the trial court imposed a standard range sentence. Whipple appeals. ANALYSIS Evidence is sufficient to support a conviction if, after viewing the evidence inthe light mostfavorable to the State, any rational trier offact could have found 

### a defendantguilty beyond a reasonable doubt.4 "A claim ofinsufficiency admits the truth ofthe State's evidence and all inferences that reasonably can be drawn 

### therefrom."5 "Credibilitydeterminations areforthetrieroffact and arenotsubject to review."6 We must defer to the jury on issues of conflicting testimony, credibilityofwitnesses, and the persuasiveness oftheevidence.7 The State charged Whipple with four counts of first degree rape of a child under RCW 9A.44.073, which provides in pertinent part: (1) A person is guilty of rape of a child inthe first degree when the person has sexual intercourse with anotherwho is less than twelve years old and not married to the perpetrator and the perpetrator is at leasttwenty-fourmonths olderthan the victim. RCW 9A.44.010(1) provides: "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and (b) Also means any penetration ofthe vagina or anus however slight, by an object, when committed on one person by another, 

### 4State v. Tilton. 149 Wn.2d 775, 786, 72 P.3d 735 (2003) (quoting State v. Joy. 121 Wn.2d 333, 338, 851 P.2d 654 (1993)). 

### 5Statev. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 

### 6State v. Thomas. 150 Wn.2d 821, 874, 83 P.2d 970 (2004). 7Thomas. 150Wn.2d at 874-75.No. 68056-1-1/7 whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment ordiagnostic purposes, and (c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of anotherwhether such persons are ofthe same or opposite sex.

To convict the defendant ofmultiple acts, thejury must unanimously agree 

### on the act or incident constituting the crime.8 "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 thecharging periods."9 After balancing the rights ofthe accused and the young victims of multiple sexual assaults, this court concluded that "generic" testimony may be sufficientto support a conviction for multiple counts of sexual assault, if it meets certain minimum requirements: First, the alleged victim must describe the kind of act or acts with 

### sufficient specificity to allow the trier of fact to determine what offense, if any, has been committed. Second, the alleged victim must describe the number of acts committed with sufficient certainty to support each ofthe counts alleged by the prosecution. Third, the alleged victim must be able to describe the general time 

### period inwhichthe actsoccurred.[10]

85tatev.Petrich. 101 Wn.2d 566, 572, 683 P.2d 173 (1984). 9State v. Haves. 81 Wn. App. 425, 431, 914 P.2d 788 (1996) (quoting State v. Newman. 63 Wn. App. 841, 851. 822 P.2d 308. review denied. 119Wn.2d 1002, 832 P.2d 487 (1992)). 

### 10Haves. 81 Wn. App. at 438.No. 68056-1-1/8 

### Whipple first contends that ST. failed to meet the first requirement because she did not define her "pee-pee" or clarify that she was referring to her genitals and "had no consistent language to describe hergenitals." Whipple fails to identify any authority suggesting that a developmentally delayed 12-year-old girl's reference to her "pee-pee," without more, does not allow a reasonable trier of fact to infer that "pee-pee" is a reference to her "sex 

### organs."11 And wedeferto thetrieroffact on issues ofconflicting testimony and persuasiveness of the evidence.12 When viewed in the light mostfavorable to the State, S.T.'s testimony that Whipple "licked" her "pee-pee" describes an act with sufficient specificity to allow the trier of fact to determine whether Whipple committed rape of a child under RCW 9A.44.010(1)(c) by making oral-genital 

### contactwith ST.13 S.T.'sdescriptionofWhipplewaking herup atnight, following her into the bathroom, telling herto wipe, and then kneeling to lickher "pee-pee" 

### while she wasstanding "add[s] to thespecificityprong."14 Whipple next contends that S.T. failed to describe the number of acts with sufficient certainty to support four counts of child rape. Whipple claims ST.



### 11 Whipple cites State v. A.M.. 163Wn. App. 414, 421, 260 P.3d 229 (2011), to support his claim that S.T.'s testimony did not establish penetration of hervagina or anus "as required for sexual intercourse." A.M. is limited to the question of whether penetration of the buttocks, but not the anus, constitutes "sexual intercourse" under RCW 9A.44.010(1)(a), and is therefore irrelevant to the question presented here of whether "pee-pee" sufficiently identifies "sex organs" under RCW9A44.010(1)(c). 

### 12 State v.Lonquskie. 59Wn. App. 838, 844,801 P.2d 1004(1990). 

### 13 See Haves. 81 Wn. App. at 438 (victim's testimony that defendant "put his private partin mine" established required specificityofdescription ofthe acts). 

### 14 Haves. 81 Wn. App. at 438 (victim's testimony that defendant"put his private part in mine" "establishes the first prong of the requirement, specificity of description of the acts. Her descriptions of how he did these acts add to the specificity prong."). 8No. 68056-1-1/9 

### testified that each interaction with Whipple was different but she failed to describe where on her body she was licked on any other occasion. Whipple points to S.T.'s testimony when the followingexchange occurred: 

### Q: Was italways the same, like, the licking, or did different things happen inthe bathroom? A: Differentthings. 

### Q: Can you tell us a little bitaboutsome ofthe otherthings thatare different? A: (Pause.) Idon't wantto talk about it. 

### But ST. did not testify to any innocuous incidents of licking such that the 

### jury would be unable to tell which occasions involved acts constituting a 

### particular offense.15 And viewed in the light mostfavorable to the State, S.T.'s statement that "different things" happened in the bathroom suggests that other additional things that she did not want to describe occurred in the bathroom but 

### does not contradict her testimony thatWhipple "licked" her "in [her] pee-pee" on "[m]orethan three" "different days or nights." This evidence describes a number 

### ofactscommittedwith sufficientcertaintytosupportthefourcountsalleged.16 Whipple also contends that ST. did not sufficiently describe the time period inwhich the acts occurred, the third prong required to support a conviction 

### with generic testimony. He claims that S.T. did not indicate that any incident occurred inthe time frame ofthe charging documentand thejury instruction. 

### 15 Cf. Statev. Jensen. 125 Wn. App. 319, 324, 104 P.3d 717 (2005) (reversing one of three child molestation convictions where victim described two incidents with particularity, testified defendant came into her room at night on two other occasions, and detective testified victim reported a "few" incidents of touching, because victim did not describe acts with sufficient specificity for jury to determine which offenses, if any, defendant committed on the two additional occasions he came into her room at night). 

### 16 Haves. 81 Wn. App. at 439(victim's testimonythatdefendanthad intercourse with her "at least 'four times' and up to 'two or three times a week'" supported conviction on four counts).No. 68056-1-1/10 But ST. testified that the incidents occurred when she was staying at Thompson's house for weekends and Whipple lived there. Independent evidence linked the general time period she stayed with Thompson to the specific dates in the information and the jury instructions by establishing that ST. spent weekends at Thompson's house between September 2009 and June 2010 and that Whipple occasionally stayed there between Thanksgiving 2009 and January 2011. Whipple fails to identify any authority suggesting that S.T.'s testimony here is insufficient to identify a general time period. "[Specifics regarding date, time, place, and circumstances are factors regarding credibility and are not 

### necessary elementsthat need to beproved tosustain aconviction."17 Viewed in the light most favorable to the State, S.T.'s testimony connecting the incidents to times she spent weekends at Thompson's house and independent evidence 

### establishing the timeframe of S.T.'s visits would allow the jury to determine whetherthe alleged acts occurred within the charging period. 

### Whipple did not object to the prosecutor's argument at trial and does not argue here thatthe prosecutor's remarks were so flagrant and ill-intentioned that

no curative instruction could have alleviated the prejudice. Instead, he argues 

### generally that the prosecutor urged thejury to convict based on feelings, misled 

### thejury regarding the burden of proof, and encouraged the jury to convict based

on speculation. Whipple claims thatthe prosecutor's argumentdemonstrates the insufficiency ofthe evidence.



### 17 Haves. 81 Wn. App. at 437 (citing People v. Jones. 51 Cal.3d 294, 792 P.2d 643, 270 Cal. Rptr. 611, 623 (1990)). 10No. 68056-1-1/11 In particular, Whipple claims that the prosecutor urged the jury to convict based on whatthey felt in their hearts. A review ofthe argument reveals thatthe prosecutor actually mentioned hearts and feelings when discussing S.T.'s credibility and specifically explained during rebuttal that when he referred to 

### hearts and feelings he was talking about the certainty of their belief in S.T.'s credibility. This is not improper. Prosecutors are given reasonable latitude to draw and express inferences from the evidence, as well as the demeanor of 

### witnesses, as to thecredibilityofwitnesses.18 Whipple also claims that the prosecutor told the jury not to assume that 

### nothing happened when S.T. said that nothing happened. But a review of the entire argument incontextreveals thatthe prosecutorwas responding todefense counsel's suggestion that the jury should not credit ST. because she contradicted herself and repeatedly claimed that nothing happened. The 

### prosecutor argued that the jury should recall the actual series ofquestions and

answers during S.T.'s testimony, and should not assume that S.T.'s refusal to

answercertain questions or her testimonythat "nothing" happened inresponse to


### one question necessarily contradicted her testimony in response to other questions. Although the prosecutor's argument may have been inartful at points, 

### itwas afairresponseto defensecounsel's argument.19 Finally, Whipple argues that the prosecutor improperly "put the onus on the jury tofind fourseparate occurrences rather than acknowledging its burden to prove four separate acts." He identifies the prosecutor's argument that thejury



### 18 Statev. Knapp. 14 Wn. App. 101, 111, 540 P.2d 898 (1975). 19 Statev.Russell. 125 Wn.2d 24, 87, 882 P.2d 747 (1994). 11No. 68056-1-1/12 could pick any four times they believe the acts occurred as long as they agree on each act that occurred. But the prosecutor referred specifically to S.T.'s testimony that the licking occurred "[m]ore than three" times and the fact that the State charged Whipple with four counts. The prosecutor accurately argued that 

### thejury could determine from the evidencethat more than four acts occurred, but that itmust unanimously agree as to which acts were proved to support the four counts. The prosecutor's argument was consistentwith the court's instruction to the jury that they must be unanimous as to which act constitutes the count 

### charged and that they must find "an act separate and distinct" for each of the 

### identicallychargedcounts.20 Theargumentwas notimproper. Finally, Whipple challenges the following community custody conditions imposed at sentencing: 

### 7. Do not possess or access sexually explicitmaterials, as directed bythe supervising Community Corrections Officer. Do notfrequent establishments whose primary business pertains to sexually explicit or erotic material. 

### 8. Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising Community Corrections Officer and therapist except as provided fortherapeutic purposes. 

### Whipple argues that the conditions are unconstitutionally vague under State v. 

### Bahl.21 Whipple also argues that the court exceeded its authority when it

20 See Haves. 81 Wn.App. at 431 ("Thetrial court must also instruct the jurythat they must be unanimous as to which act constitutes the count charged and that they are to find 'separate and distinct acts' foreach count when the counts are 

### identically charged.") (quoting State v. Noltie. 116 Wn.2d 831, 842-43, 809 P.2d 190(1991)). 

### 21 164 Wn.2d739, 193 P.3d 678 (2010). 12No. 68056-1-1/13 

### imposed the conditions because the court did not find that the provisions are crime-related. 

### The State concedes thatcondition 8 is improper under Bahl.22 However, the State argues that condition 7 is notunconstitutionally vague and is related to the crime because "[t]he circumstances of his crimes show Whipple to be egregiously unable to control himselfwhen in a state ofsexual stimulus." 

### The sentencing court has discretion to impose crime-related prohibitions 

## as aconditionofsupervision.23 Butnothing intherecord indicatesthatWhipple's offenses involved sexually explicit materials or establishments whose primary business involves sexually explicit materials. Under these circumstances, the 

### challenged communitycustody conditions should be stricken.24 We affirm Whipple's conviction, but remand for the trial court to strike the 

### challenged community custody conditions.

WE CONCUR: 

# XaK^Qojl^

22 Bahl. 164Wn.2d at761 (identical language unconstitutionally vaguewhere no deviancy had been diagnosed or identified). 

### 23 RCW9.94A.703(3)(f)- 

### 24 See Statev.O'Cain. 144Wn. App. 772, 184 P.3d 1262 (2008) (baronInternet access in rape case improperwhere notcrime related). 13