Opinion
No. 23630-7-III.
Filed: April 27, 2006.
Appeal from Superior Court of Adams County. Docket No: 04-1-00089-1. Judgment or order under review. Date filed: 12/06/2004. Judge signing: Hon. Richard W. Miller.
Counsel for Appellant(s), Julia Anne Dooris, Gemberling Dooris Ladich, PO Box 20008, Spokane, WA 99204-0008.
Janet G. Gemberling, Gemberling Dooris Ladich PS, PO Box 20129, Spokane, WA 99204-7129.
Counsel for Respondent(s), Barrett Jonas Scudder, Adams County Prosecutors Office, 210 W Broadway Ave, Ritzville, WA 99169-1860.
UNPUBLISHED OPINION
Rito Canales-Diaz challenges his conviction for child molestation in the third degree. Mr. Canales-Diaz argues there is insufficient evidence to prove that he had any contact with I.L.H. on May 10, 2004. The information alleged that Mr. Canales-Diaz committed the crime `on or about May 10, 2004.' The phrase `on or about' is sufficient to admit proof that the crime occurred at any time within the statute of limitations when no alibi is argued. The evidence is then sufficient to support Mr. Canales-Diaz's conviction. We affirm the trial court.
FACTS
Rito Canales-Diaz went to a family party on May 9, 2004. His niece, I.L.H., was at the party. I.L.H. was 15 years old. I.L.H. told her mom she wanted to go home. Her mother asked Mr. Canales-Diaz to drive I.L.H. home. I.L.H. left the party with Mr. Canales-Diaz.
Mr. Canales-Diaz stopped the car on the way to I.L.H.'s house. He got into the back seat and sexually assaulted I.L.H.
I.L.H. contacted the police. The State charged Mr. Canales-Diaz by an amended information on September 13, 2004. The State charged him with (1) indecent liberties by forcible compulsion, and (2) child molestation in the third degree. The second count alleged that Mr. Canales-Diaz had sexual contact with I.L.H. `on or about May 10, 2004.' Clerk's Papers (CP) at 26. A jury convicted Mr. Canales-Diaz of both counts. He appeals.
DISCUSSION
Mr. Canales-Diaz argues there is insufficient evidence to support his conviction for child molestation in the third degree. He argues that the jury was required to find that he had sexual contact with I.L.H. on May 10, 2004. He argues there is no evidence to indicate that he had any contact with I.L.H. on any date other than May 9, 2004.
We review a challenge to the sufficiency of the evidence in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The challenge represents an admission of the truth of the State's evidence and all reasonable inferences. Id. We will affirm where the trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.
An individual commits the crime of child molestation in the third degree if he `has . . . sexual contact with another who is at least fourteen years old but less than sixteen years old . . . and the perpetrator is at least forty-eight months older than the victim.' RCW 9A.44.089(1). The statute of limitations to prosecute the crime is three years. RCW 9A.04.080(h).
`[W]here time is not a material element of the charged crime, the language `on or about' [in the information] is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi.' State v. Hayes, 81 Wn. App. 425, 432, 914 P.2d 788 (1996); State v. Oberg, 187 Wash. 429, 432, 60 P.2d 66 (1936). An alibi is an assertion by a defendant that he was not at the scene of the crime when the crime was committed. State v. Johnson, 19 Wn. App. 200, 205, 574 P.2d 741 (1978).
I.L.H. testified that Mr. Canales-Diaz took her home on May 9, 2004. He stopped the car on the way to her house. Mr. Canales-Diaz tried to remove I.L.H.'s clothing and kiss her. He repeatedly touched her breasts and her `private area.' Report of Proceedings (Oct. 12, 2004) at 9, 10, 13.
The State charged Mr. Canales-Diaz by an amended information on September 13, 2004. The information alleged that Mr. Canales-Diaz committed the crime of child molestation in the third degree `on or about May 10, 2004.' CP at 26. The State showed that Mr. Canales-Diaz had sexual contact with I.L.H. on May 9, 2004. Mr. Canales-Diaz did not present an alibi defense. There is then sufficient evidence to support Mr. Canales-Diaz's conviction for child molestation in the third degree. Salinas, 119 Wn.2d at 201; Oberg, 187 Wash. at 432; Hayes, 81 Wn. App. at 432.
We affirm.
A majority of the panel has determined that 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.
SCHULTHEIS and KULIK, JJ., concurs.