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From Washington Criminal Justice State Training Commission Law Enforcement Digest

Substantial evidence held to support Superior Court's ruling that 11-year old sex offender lacked criminal capacity.

State v. Ramer, 151 Wn.2d 106 (2004)

Facts and Proceedings below:

Following an investigation, 11-year-old Andrew Ramer was arrested and charged for having sex with a 7-year-old acquaintance.  The Washington Supreme Court describes as follows the Superior Court proceedings below that followed:

Because of Ramer's age, a hearing to determine his capacity to commit first degree rape of a child was held before Superior Court Commissioner Scott Nielson.  [A detective] testified about her conversation with Ramer at the police station.  The defense was allowed to call two witnesses out of order: Dr. Brett Trowbridge, Ph .D., J.D., a forensic psychologist, and Peg Cain, M.A., a mental health specialist at St. Peter's Hospital psychiatric unit, who also performs juvenile and adult "safe to be at large" evaluations for Thurston County.  Both witnesses for the defense had evaluated Ramer and had prepared written reports.

Dr. Trowbridge based his opinion upon his evaluation of Ramer.  He testified that, in his opinion, Ramer did not understand the act of having sexual contact with a much younger child.  He also testified that he believed Ramer did not understand that it was wrong, especially if the other child enjoys and voluntarily participates in the act.  Specifically, Dr. Trowbridge opined:

Q. Based on your evaluation and investigation, it's your conclusion that [Ramer] does not possess sufficient information or ability to come to the understanding of what rape of a child meant in terms of his committing the act in this instance?

A. Yes.  Because at that time of the alleged offense I don't think he did have that understanding.

        He did not understand if something felt good why it was wrong.

        [H]e thought if the child consented that that made it not wrong.

Similarly, Cain testified that Ramer had "no concept of how serious the charge was."  She also testified that Ramer asked her why sexual contact with ZPG was considered rape when it felt good, ZPG wanted to participate, and ZPG "really liked it."  Cain also testified that Ramer's attitude and demeanor led her to believe that he did not understand that sexual contact was inappropriate behavior and that he did not know that what he had been doing with ZPG was wrong.

The State then called Thomas Nore, M.S.W., a juvenile court probation counselor with 26 years of experience.  Nore did not evaluate Ramer, nor did he take notes of his conversations with Ramer.  He based his opinion on the written reports of Dr. Trowbridge and Cain and his conversations with Ramer while transporting him to and from a psychosexual evaluation by Trudy Howe and on other occasions.  Nore testified that he believed Ramer understood that his conduct was wrong.  Nore also testified that Ramer had been told by his parents that "sexual contact with each other in the home or anyone else" was wrong.  Nore opined that Ramer "had knowledge and experience far beyond any 11 year old I'd ever met.  In fact far beyond some 16-, 17-year- olds."  It was Nore's opinion that Ramer knew the serious consequences of sexual contact and had the capacity to commit the crime.

The [Superior Court] commissioner concluded that Ramer understood his conduct was wrong and "understood the act of Rape of a Child first degree."  Ramer moved for revision in the superior court before the Honorable Christine Pomeroy.  Judge Pomeroy read the record and heard arguments before finding Ramer lacked capacity to commit the crime.  Judge Pomeroy found that Ramer was "a highly sexualized young person, who clearly was confused about appropriate sexual behaviors and could not understand the prohibitions on sexual behavior with other children."  The State appealed the superior court's finding.  Finding Ramer did have capacity to commit the crime, the Court of Appeals reversed. Ramer sought and we granted discretionary review.  

ISSUE AND RULING:  Does substantial evidence in the record support the superior courtís determination that Ramer lacked capacity to commit the crime of rape of a child in the first degree?  (ANSWER:  Yes, rules a unanimous Supreme Court)

Result:  Reversal of unpublished Court of Appeals decision and reinstatement of Thurston County Superior Court determination that Andrew Ramer lacked criminal capacity.

ANALYSIS:  (Excerpted from Supreme Court opinion)

By statute, a child "under 12 years of age is presumed incapable of committing any crime."  State v. Erika D.W., 85 Wn. App. 601 (1997); RCW 9A.04.050.  The statute provides, in part:

Children under the age of eight years are incapable of committing crime.  Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.  

    RCW 9A.04.050.  The statute codifies what is known as "the infancy defense."  The purpose of the infancy defense is "to protect from the criminal justice system those individuals of tender years who are less capable than adults of appreciating the wrongfulness of their behavior."

In order to overcome the presumption of incapacity, the State must provide clear and convincing evidence that the child had sufficient capacity to understand the act and to know that it was wrong.  A capacity determination is fact-specific and must be in reference to the specific act charged. It is not necessary, however, for the child to understand that the act would be punishable under the law.  The focus is on "whether the child appreciated the quality of his or her acts at the time the act was committed," rather than whether the child understood the legal consequences of the act.

We have identified seven factors to consider in determining capacity: (1) the nature of the crime, (2) the child's age and maturity, (3) whether the child evidenced a desire for secrecy, (4) whether the child told the victim (if any) not to tell, (5) prior conduct similar to that charged, (6) any consequences that attached to that prior conduct, and (7) whether the child had made an acknowledgment that the behavior is wrong and could lead to detention.  "Also relevant is testimony from those acquainted with the child and the testimony of experts."

Capacity requires the actor to understand the nature or illegality of his acts.  In other words, he must be able to entertain criminal intent.  A "sense of moral guilt alone, in the absence of knowledge of legal responsibility, is not sufficient," although actual knowledge of the legal consequences is not necessary.

Washington courts have held that when a juvenile is charged with a sex crime, the State carries a greater burden of proving capacity, and must present a higher degree of proof that the child understood the illegality of the act.

Because the superior court found, consistent with the statutory presumption, that Ramer lacked capacity, we review this record to determine whether there was evidence from which a rational trier of fact could find Ramer incapable of first degree rape of a child.  We do not substitute our judgment for that of the superior court's.  While reasonable minds might differ over conflicting evidence, we will reverse the superior court only if, based upon the record, no rational trier of fact could reach the conclusion that the State failed to meet its burden.

In [State v. J.P.S., 135 Wn.2d 34 (1998)] July 98 LED:21, this court noted that the nature of the crime is an important factor, but with sexual crimes it is very difficult to tell if a child understands the prohibitions on sexual behavior with other children.  In J.P.S., the eleven year old, mildly retarded defendant was charged with first degree rape of a three year old.  The defendant took the younger child to a shed, sent the other children away, pulled down both their pants, and then touched the three year old on the vagina.  The defendant lied about what contact had occurred but did not admonish the victim not to tell.  After talking with the police, the defendant admitted that the conduct was "bad."  This court unanimously concluded that the State had failed to establish by clear and convincing evidence that the defendant understood that his conduct was wrong.

We conclude that there is sufficient evidence in the record to support the superior court's finding in this case that the State failed to establish by clear and convincing evidence that Ramer understood that his conduct was wrong.  Four witnesses testified at the capacity hearing.  [The detective] did not express an opinion as to Ramer's capacity, and her testimony was equivocal, quoting Ramer as saying his conduct was "kind of sort of wrong."  Dr. Trowbridge, who evaluated Ramer for the defense, opined that Ramer did not have the capacity to commit the crime charged.  Dr. Trowbridge was further of the opinion that Ramer did not understand that sex with someone who consents and likes the sex is wrong.  Cain, who performed Ramer's "safe to be at large" evaluation for Thurston County, also expressed the opinion that Ramer did not have the capacity to commit the crime charged.  Nore, who did not evaluate Ramer, was the only witness to express the opinion that Ramer had the capacity to commit the crime of first degree rape of a child.  While Nore's testimony supports the State's contention, we conclude a rational trier of fact could find the State failed to meet its burden based upon [the detective's] testimony and the expert opinions of Cain and Dr. Trowbridge.

[Some citations omitted]

MADSEN CONCURRENCE:  Justice Madsen writes a concurring opinion to clarify that the State bears a heavy burden in the appellate courts to try to overcome a trial court finding of criminal incapacity of a child.

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