STATE v. PAYNE (2003)

PART PUBLISHED OPINION

Jeffrey Payne appeals his first degree child molestation conviction and life sentence as a persistent offender.   He argues that the sentencing judge improperly counted a Canadian conviction as one strike, considering it comparable to Washington's first degree child molestation.   Payne also claims a number of trial court errors, including that (1) the court erred in admitting his statement to the police and admitting the victim's hearsay statements, (2) the prosecutor committed misconduct, (3) his counsel was ineffective, (4) the evidence was insufficient to support the verdict, and (5) the court lacked jurisdiction because the State failed to prove that the crime occurred in Washington.   The State cross appeals, arguing that the trial judge should have considered Payne's Canadian conviction record in sentencing.

The State concedes that under a recent Supreme Court decision, the court erred in considering the Canadian conviction as a strike.   Accordingly, we vacate the sentence and remand for resentencing.   Otherwise, we find no error and affirm.

 FACTS

Jeffrey Payne babysat his girlfriend Jennifer Simon's daughter, C.A.S., for a weekend.   Eight-year-old C.A.S. awoke to Payne touching her between her legs under her panties.   Payne said he would give her five dollars not to tell anyone and that he would kill her if she did tell.   A few days later, when Payne was helping Jennifer's sister, Rachael Simon-Cole, move, Simon-Cole saw Payne leaning over her daughter, C.D.C., with a screwdriver in his hand, touching her labia.   When confronted, Payne claimed that she jumped on his back and scratched herself on a screwdriver in his back pocket.

The State charged Payne with molesting the two girls.   The jury convicted him of first degree child molestation against C.A.S., but it acquitted him as to C.D.C. The trial judge found that one of Payne's Canadian convictions was comparable to Washington's child molestation statute and sentenced him to life imprisonment without the possibility of parole under the two-strike provision of Washington's Persistent Offender Accountability Act (POAA).

Payne contends that the trial court should have suppressed statements he made to police after he invoked his right to remain silent.   He also argues prosecutorial misconduct, ineffective assistance of counsel, improper admission of child hearsay, insufficient evidence to support the verdict, and lack of jurisdiction.

In its cross appeal, the State argues that the trial court erred in refusing to consider Payne's Canadian conviction record for purposes of either a three-strike life sentence or an exceptional sentence.

 ANALYSIS

I. Sentencing IssuesA. Out-of-State Convictions and POAA

 Payne argues that his current conviction for first degree child molestation is not a second strike for purposes of the Persistent Offender Accountability Act (POAA).   Former RCW 9.94A.030(29)(b) (2000).   Payne was twice convicted under Canadian law for sexual assault.   The Supreme Court has recently held that the POAA for sex offenders (two strikes) does not include prior convictions that are not specifically listed in the statute.  State v. Delgado, 148 Wash.2d 723, 63 P.3d 792 (2003).   Since Payne's Canadian sexual assaults are not specifically listed in the two-strike statute, the State concedes that his current sentence cannot stand.   We agree and, accordingly, vacate the sentence and remand for resentencing.

B. State's Cross Appeal

 The State argues that the trial court erred when it refused to consider Payne's Canadian criminal history either for purposes of the three-strike statute,¹ former RCW 9.94A.030(29)(a), or as a basis for an exceptional sentence.   The State also urges us to find that on remand, the trial court can give Payne an exceptional sentence based on future dangerousness, vulnerable victim, and abuse of trust.   Although the State argued before the trial court for an exceptional sentence based on these factors, it does not discuss in briefing before us future dangerousness, vulnerable victim, or abuse of trust.   Accordingly, we discuss only whether the trial court properly excluded Payne's Canadian criminal history.  State v. Johnson, 119 Wash.2d 167, 170, 829 P.2d 1082 (1992).

 1. Admissibility of Documents on Payne's Canadian Conviction No. 40354C3

 The trial judge used Payne's Canadian Conviction No. 40354C3, sexual assault, as one strike under the two-strike statute.   Although the State concedes that the conviction can not be counted under the two-strike statute, it correctly contends that the trial court can consider the conviction on remand under the three-strike statute or as an unscored offense that would support an exceptional sentence.   Payne argues that the trial court should not have considered the conviction because the State did not lay a proper foundation.

 The State must prove the defendant's criminal history by a preponderance of the evidence.  RCW 9.94A.500(1).   While the best evidence of a prior conviction is a certified copy of the judgment, the State may also introduce “other comparable documents of record or transcripts of prior proceedings.”  State v. Ford, 137 Wash.2d 472, 480, 973 P.2d 452 (1999).   A court may consider a foreign indictment and information, but it should be aware that facts and allegations in the foreign record that do not directly relate to the elements of the charged offense may be unreliable.  State v. Morley, 134 Wash.2d 588, 606, 952 P.2d 167 (1998).

 Although the State's burden is easily met, it must at least introduce “evidence of some kind to support the alleged criminal history.”   Ford, 137 Wash.2d at 480, 973 P.2d 452.   The facts on which the trial court relies at sentencing must have some basis in the record.  Ford, 137 Wash.2d at 482, 973 P.2d 452.

 On Conviction No. 40354C3, the State introduced evidence of:  the warrant, information, and sentence;  the transcript of Payne's plea and submissions;  and the warrant of committal.   Only the transcript contains information about the facts underlying the conviction.   Payne contends that the transcript is inadmissible because it was not certified.   The State concedes that Payne challenged all of his prior Canadian convictions in the trial court.   Thus, the State had to present evidence sufficient to prove the conviction by a preponderance of the evidence.  State v. Cabrera, 73 Wash.App. 165, 169, 868 P.2d 179 (1994).

 Authentication is a threshold requirement designed to assure that evidence is what it purports to be.   5C K. Tegland, Wash. Prac., Evidence § 900.2,, at 175;  § 901.2 at 181-82.   The State satisfies ER 901, which requires that documents be authenticated or identified, if it introduces sufficient proof to permit a reasonable juror to find in favor of authenticity or identification.  State v. Danielson, 37 Wash.App. 469, 471, 681 P.2d 260 (1984).  “Rule 901 does not limit the type of evidence allowed to authenticate a document.   It merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be.”  United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir.1989).

 Exhibit 12 was signed by the court transcriber, who certified that it was a true and accurate transcript.   Canadian crown counsel Ron Parsons testified that he arranged to have the transcript made, and that he would regularly rely on similar transcripts as crown counsel.   But he did not know whether the court transcriber was certified;  nor did he personally know whether the transcript was accurate.   Exhibits 11 (record of proceedings and endorsement of information) and 13 (warrant of committal for conviction of sexual assault) support the authenticity of Exhibit 12.   All three exhibits have the same name and cause number.   Exhibits 11 and 12 indicate the same hearing date and judge.   Exhibits 12 and 13 list the same indictment information and the same victim;  the transcript in Exhibit 12 includes Payne's admission of guilt regarding that victim. Parsons also testified extensively about the authenticity of Exhibits 11 and 12.   The combined effect of this evidence is similar to that in Jimenez Lopez, where a court document that could not be self-authenticated was admitted based on evidence including a signature, testimony of the person who requested the document, and “internal indicia of reliability within the document itself.”  Jimenez Lopez, 873 F.2d at 772.    We conclude that the signatures and handwriting on the documents, coupled with Parson's testimony, provide sufficient proof for the court to find in favor of authenticity.   The court properly admitted Exhibits 11-13.

2. Constitutional Validity of Payne's Canadian Conviction No. 34121

The trial court refused to consider Conviction No. 34121, ruling that it did not meet Washington's constitutional standards.   The State cross appeals this ruling.

 The sentencing court may not consider a conviction that is constitutionally invalid on its face.  State v. Ammons, 105 Wash.2d 175, 187-88, 713 P.2d 719 (1986).   Criminal defendants have a right to a jury trial under both the Washington Constitution and the U.S. Constitution.   U.S. Const. amend.   VI.;  Wash. Const. art. I, § 21.   But under Canadian law, Payne did not have a right to a jury trial on Conviction No. 34121, which is listed on page 3 of Exhibit 1. Thus, the conviction is constitutionally invalid and the trial court properly refused to consider it at sentencing.   See State v. Herzog, 48 Wash.App. 831, 834, 740 P.2d 380 (1987) (conviction by a two-person jury was facially invalid and trial court correctly refused to consider it in sentencing).

3. Exhibit 1-Payne's Canadian Criminal History

 The State contends that the trial court abused its discretion by rejecting Exhibit 1, page 3, which listed Payne's criminal convictions.   It claims that the court rejected the document because no one testified about how the document was created, and it argues that no authority supports the court's ruling.   But the court articulated other reasons as well.

The trial court admitted pages 1 and 2 of State's Exhibit 1;  these pages contained the cover sheet and Payne's fingerprints.   But the trial court excluded, for lack of proper authentication, page 3 of the exhibit, which was a list of Payne's prior Canadian convictions.   The court reasoned  that (1) Parsons, crown counsel who testified in support of the State's argument for admission, was not the custodian of the record and did not know the source of the information contained on the record;  (2) the document was certified but not in accordance with ER 902's requirements for foreign documents;  (3) the document itself warns that it is not a positive identification of Payne;  and (4) no record custodian testified to explain the source of the information, where the document came from, or how it was compiled;  nor did the State present any circumstantial evidence of how it was prepared.

Because Payne challenged the State's representations of his criminal history, the State was required to prove it by a preponderance of the evidence.  State v. Manussier, 129 Wash.2d 652, 682, 921 P.2d 473 (1996);  State v. Mitchell, 81 Wash.App. 387, 390, 914 P.2d 771 (1996).   The State argues that Exhibit 1, page 3 is admissible under ER 901 and ER 902.   It contends that it met its burden of proof by presenting the certified criminal history, live testimony that the document is of the type relied on in Canadian courts to prove a defendant's criminal history, and cross-verification by other documents and Payne's fingerprints.

ER 902 requires certification by particular office-holders before a foreign document is self-authenticated.  ER 902(c).  The document was certified by a sergeant with the Royal Canadian Mounted Police (RCMP).  But this office is not one named in ER 902.   The document was not certified by any of the particular office-holders listed in the rule.   Thus, the trial court properly refused to admit the document under ER 902.

 ER 901 requires “authentication or identification as a condition precedent to admissibility.”  ER 901(a).   The proponent must show that the document in question is what the proponent claims it is.  ER 901(a).   Because the proponent must make only a prima facie showing of authenticity, ER 901 is met if the proponent shows enough proof for a reasonable fact-finder to find in favor of authenticity.  Danielson, 37 Wash.App. at 471, 681 P.2d 260.

  The State implies that the document is admissible under ER 901(b)(1) because Parsons had seen it before and knew that it was “what it ․ claimed to be.”   Resp. br. at 16;  ER 901(b)(1).   But the State cites cases where the witness had seen the offered document before and could, therefore, verify its authenticity.   Although Parsons testified that he used similar documents to resolve disputes in Canadian courts about a defendant's prior criminal history, he had no independent or personal knowledge about Payne's prior convictions or this particular document.

 The State then mentions that documents can be authenticated if a witness testifies that the handwriting is similar to the purported author's handwriting.  ER 901(b)(2).   But Exhibit 1 is typed;  this subsection does not apply.

 The State next argues that the document can be authenticated by circumstantial evidence because it was received in the mail in reply to the witness's request and because it was found in Payne's file.   Washington law allows authenticity or identification by circumstantial evidence.  ER 901(b)(4);  5C K. Tegland, Wash. Prac., EvidenceE § 901.9, at 188 (1999).

A federal court has held that authenticity can be established by the document's contents (appearance, contents, substance) and the fact that the document was produced in response to a discovery request.  McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928-29 (3rd Cir.1985).   In another federal case, the court held that because a probation form was found in the defendant's probation file, the jury had a rational basis to connect the form to the defendant.  United States v. Inserra, 34 F.3d 83, 90 (2nd Cir.1994).

These cases are distinguishable.   The defendant in Inserra challenged the documents by claiming they were not linked to him.  Inserra, 34 F.3d at 90.   An officer who was personally familiar with the defendant testified and “specifically connected” the documents to the defendant.  Inserra, 34 F.3d at 90.   And the circumstantial evidence in McQueeney was significantly stronger than here.   McQueeney signed and dated the documents, they included his personal U.S. Merchant Mariners Document Number,  and they were specific, regular, and official in appearance.   McQueeney, 779 F.2d at 929.   McQueeny himself produced the documents in response to a discovery request.  McQueeney, 779 F.2d at 929.   And the information contained in the records was not widely known;  this supported the claim that the documents were what they were purported to be-McQueeney's records.   In contrast, no one verified the documents here with his or her personal knowledge.   Nor did the documents contain information that was specific, detailed, and difficult to discover, as in McQueeney.

 More importantly, we review a trial court's decision on authenticity for an abuse of discretion.  State v. Castellanos, 132 Wash.2d 94, 97, 935 P.2d 1353 (1997).   A court abuses its discretion when its decision is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.”  State v. Cunningham, 96 Wash.2d 31, 34, 633 P.2d 886 (1981) (quoting State v. Blight, 89 Wash.2d 38, 41, 569 P.2d 1129 (1977) (quoting State v. Sponburgh, 84 Wash.2d 203, 210, 525 P.2d 238 (1974))).   The trial court heard arguments from both parties on the authenticity of this document.   While some circumstantial evidence-the document appears on RCMP paper, was sent to Parsons in response to his request, and was apparently found in Payne's file-supported the document's authenticity, the court was not satisfied with the level of proof.   In particular, the court had concerns about where the criminal history information came from, how it was compiled, and who compiled it.   Ultimately, the court was not satisfied that the document accurately set forth Payne's criminal history.   And although another court may have been satisfied with the State's evidence on authentication, we can not say the court abused its discretion by concluding that the State had not shown the document to be what it purported to be.   Thus, the trial court did not err in rejecting page 3 of Exhibit 1.

A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder  shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Trial Issues

A. Admission of Payne's Statement

Payne argues that the trial court should have suppressed his statement to the police after he exercised his right to remain silent.   The arresting detective admitted that immediately after she arrested Payne, he said he was not ready to talk to the police.   Accordingly, she arranged for another officer to take Payne to jail. But when Payne was in the police vehicle, the detective asked him to clarify whether he wanted to talk to her;  Payne said that he did, explaining that he wanted to know what was going on.   Payne then confessed to improperly touching the girls, and the detective took a taped statement.   When she asked him on tape whether he wanted to talk, he replied, “Yes and no.   I am confused.   Yeah, I want to give a statement.”   Report of Proceedings (RP) at 24.

If an accused “ ‘indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’  ” State v. Robtoy, 98 Wash.2d 30, 35, 653 P.2d 284 (1982) (quoting Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).   The State must prove by a preponderance of the evidence that the defendant voluntarily waived this right.  Robtoy, 98 Wash.2d at 35-36, 653 P.2d 284.   If the defendant makes an equivocal request for counsel, the police may continue questioning him only to clarify his request.  Robtoy, 98 Wash.2d at 38, 653 P.2d 284.  “[A]n interrogating officer may not utilize the guise of clarification as a subterfuge for eliciting a waiver of the previously asserted request for counsel.”  Robtoy, 98 Wash.2d at 39, 653 P.2d 284.

In Robtoy, the defendant said, “Maybe I should call my attorney.”   Robtoy, 98 Wash.2d at 40, 653 P.2d 284.   The detective said, “Mike, if you say you want your attorney, this conversation ends right here.”  Robtoy, 98 Wash.2d at 40, 653 P.2d 284.   The defendant then said he would talk to detectives and did not ask for an attorney.  Robtoy, 98 Wash.2d at 40, 653 P.2d 284.   The court found his waiver valid because after his equivocal statement about an attorney, the detective sought clarification and did not further question defendant about an offense until his waiver was clear.   Robtoy, 98 Wash.2d at 41, 653 P.2d 284.

Here, the trial court accepted the detective's version of events that Payne was not ready to talk at first, but later was ready.   It found that Payne did not invoke his right to remain silent.   Payne's initial statement was equivocal:  He said he was not ready to talk.   A short time later, the detective sought to clarify whether Payne wanted to talk to her;  he said he did.   As in Robtoy, after Payne said he was not yet ready to talk, the detective asked him nothing more about the offense.   And despite Payne's implication on appeal, the record does not show that the detective coerced him by saying that he would go to jail unless he talked.   We hold that the trial court did not err in finding that Payne voluntarily waived his right to remain silent.

B. Prosecutorial Misconduct

Payne contends that the trial court erred in denying him a mistrial based on prosecutorial misconduct.   He cites two reasons:  (1) it knew that Simon-Cole would testify to a hearsay statement by C.D.C. that had not been addressed in a child hearsay hearing, yet it did not give the court or defense notice and (2) witness tampering.   He points to a statement Simon-Cole made on cross examination that she was told not to tell what she knew.   And he contends that this statement, along with inconsistencies between the victim's testimony and what she told other witnesses, implies that the State tampered with the victim as well.

We need not resolve these issues, however, because the jury acquitted Payne of the C.D.C. charge.   Payne, therefore, shows no prejudice because of any of these claimed errors.

C. Child Hearsay

Payne next argues that the trial court erred in admitting C.A.S.'s hearsay statements to several witnesses.   A statement by a child under ten years of age that describes sexual contact with the child is admissible in criminal proceedings under certain conditions. RCW 9A.44.120. The trial court must conduct a hearing outside the jury's presence and find “that the time, content, and circumstances of the statement provide sufficient indicia of reliability.”  RCW 9A.44.120(1).   The trial court has “considerable discretion” in determining whether the statements are reliable.  State v. Swan, 114 Wash.2d 613, 648, 790 P.2d 610 (1990).

Nine factors help the trial court decide whether a child's out-of-court statements are reliable.  State v. Ryan, 103 Wash.2d 165, 175-76, 691 P.2d 197 (1984).   A child's hearsay statement can be reliable even if it does not satisfy every Ryan factor.  Swan, 114 Wash.2d at 652, 790 P.2d 610.   The factors simply help the court decide “whether the comments and circumstances surrounding the statement indicate it to be reliable.”  Swan, 114 Wash.2d at 648, 790 P.2d 610.   Payne questions only two:  whether C.A.S. had a motive to lie and whether her answers were spontaneous.

1. Motive to Lie

The trial court found that C.A.S. had no motive to lie.   Specifically, the court found that C.A.S. understood the difference between real and pretend, usually told the truth, and quickly gave away any “fibbing.”   Clerk's Papers (CP) at 23.   Payne does not assign error to these findings so we consider them verities on appeal.  State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).

Payne suggests that C.A.S. had a motive to lie so that people would believe C.D.C.'s story that Payne hurt her.   Defense counsel asked C.A.S., “Did you ever think if you told that people might believe [C.D.C.] more?”   RP (Dec. 11, 2000) at 16.   C.A.S. responded, “Yeah.” RP (Dec. 11, 2000) at 16.   Payne correctly notes that this is a potential motive for C.A.S. to lie.   But the trial court pointed out that when C.A.S. reported her own abuse after she saw Payne hurt her cousin, C.A.S. was remorseful and wished she had said something sooner because it might have helped her cousin.   This explains C.A.S.'s earlier answer and rebuts her alleged motive to lie.   We conclude that the trial court did not err in finding that C.A.S. had no motive to lie.

2. Spontaneity of Statement

The court ruled that C.A.S.'s statements to her mother, the child interviewer, and nurse were spontaneous, and that the people asking her questions did not pressure her, suggest answers, or make promises or threats to her.   The court also found that C.A.S.'s language suggested spontaneity.   Payne does not assign error to these findings so we consider them verities on appeal.  Hill, 123 Wash.2d at 644, 870 P.2d 313.   Nevertheless, Payne challenges the court's conclusion that C.A.S.'s statements were spontaneous.   Essentially, he argues that for several reasons, the statements must have been given in response to leading questions.

To be spontaneous, a child's statement should be either volunteered or given in response to a question that is not leading or suggestive.  State v. Henderson, 48 Wash.App. 543, 550-51, 740 P.2d 329 (1987).   For example, where the child victim volunteers a detailed statement that was not suggested by the receiver, the statement is spontaneous.   See State v. Madison, 53 Wash.App. 754, 759, 770 P.2d 662 (1989) (after foster mother gave child a book on reproduction and asked if anyone had touched her, child described intercourse and oral sex);  Swan, 114 Wash.2d at 649, 790 P.2d 610 (child revealed details and identities of sexual abuse and abusers after day care worker told her to cover her private parts).

A leading question suggests the desired answer.  State v. Scott, 20 Wash.2d 696, 698, 149 P.2d 152 (1944).   When a person volunteers information in response to a question, the statement is likely spontaneous.   See Henderson, 48 Wash.App. at 550, 740 P.2d 329 (detective asked child why it hurt when her father touched her vagina, child answered that her father stuck his fingers in her vagina;  question was not leading and answer was spontaneous).

Payne questions why the nurse examiners had no record of what questions they asked;  he reasons that because of this, the court erred in accepting their assertions that they did not ask leading questions.   And he speculates that the witnesses who testified about C.A.S.'s statements lied.   But these are all matters of credibility, which we do not review on appeal.  State v. Casbeer, 48 Wash.App. 539, 542, 740 P.2d 335 (1987).

Payne also suggests that because C.A.S.'s first statement came two days after the event, it must have been given in response to leading questions.   While a lapse of time can affect the reliability of a child's statement, it does not necessarily do so.  State v. Carlson, 61 Wash.App. 865, 872, 812 P.2d 536 (1991).   Unless the time lapse “somehow affected the child's statements,” the statement may still be admitted.  Carlson, 61 Wash.App. at 873, 812 P.2d 536.   Payne has not shown how the two-day time lapse affected C.A.S.'s statement other than his speculation that her cousin's allegations triggered C.A.S.'s disclosures.

C.A.S.'s mother asked her if the defendant did anything to her.   C.A.S. answered yes, pointed to her groin area, and cried.   The mother's question was not leading because it did not suggest the answer C.A.S gave.   The child interviewer also asked questions that did not suggest an answer.   The interviewer “mostly would just say tell me about it and she [C.A.S.] would tell me what happened, and then I would ask specific questions for clarification.”   RP (Dec. 11, 2000) at 90.

Courts have found that questions similar to and even more direct than those asked here were not leading.   See State v. Young, 62 Wash.App. 895, 802 P.2d 829, 817 P.2d 412 (1991) (non-leading questions included whether father hurt her with a stick, whether she had seen father naked and whether he had an erection, whether father put his penis near her face and if anything came out);  State v. McKinney, 50 Wash.App. 56, 59, 63, 747 P.2d 1113 (1987) (mother's question to daughter whether anyone had touched her in her private parts not leading).   The questions asked here did not suggest a specific answer, and the court did not abuse its discretion in finding C.A.S.'s statements to her mother and the interviewer reliable.

Payne also challenges the trial court's hearsay findings as to C.D.C. and statements C.A.S. made about C.D.C. Since the jury acquitted Payne on the charge related to her, we need not consider the issue.   Any error was harmless.

3. Statement for Purposes of Medical Diagnosis

Payne disputes the trial court's finding that the victim's statements to two nurse examiners were admissible under ER 803(a)(4)-made for the purposes of medical treatment or diagnosis-because the nurses did not make a diagnosis and because the victim did not know why she was being seen.   The court ruled admissible only those statements C.A.S. made to the nurses regarding medical treatment.   It rejected C.A.S.'s statement that Payne offered her five dollars to keep her silent.

Statements made for the purposes of medical diagnosis or treatment that describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof” are admissible.  ER 803(a)(4).   The declarant's motive in making the statement must be “consistent with receiving treatment and the statements must be information upon which the medical provider reasonably relies to make a diagnosis.”  State v. Kilgore, 107 Wash.App. 160, 182-83, 26 P.3d 308 (2001), aff'd, 147 Wash.2d 288, 53 P.3d 974 (2002).   Unless the declarant is a very young child or does not understand what the medical provider does (i.e., provides medical treatment), courts may infer that the declarant had a treatment motive when she made the statement.  Kilgore, 107 Wash.App. at 184, 26 P.3d 308.   C.A.S. was eight years old and knew that the nurses provided medical treatment.   The trial court properly admitted C.A.S.'s statement to the nurses.

Payne cites State v. Carol M.D., 89 Wash.App. 77, 948 P.2d 837 (1997), to support his argument that ER 803(a)(4) does not apply because the nurses did not diagnose C.A.S. But Carol M.D. involved a therapist and a child who did not know what a therapist did.   See Kilgore, 107 Wash.App. at 184, 26 P.3d 308.   Here, C.A.S. never said she did not understand what the nurses did.   And unless the child is very young or states that she does not know what the medical provider does, the court can infer that the child had a treatment motive.  Kilgore, 107 Wash.App. at 184, 26 P.3d 308.   We conclude that the court did not err in ruling C.A.S.'s statements to the nurses admissible.

D. Effective Assistance of Counsel

Payne faults his trial counsel for not asking for a hearing to determine whether the State improperly instructed Simon-Cole to withhold evidence.   To demonstrate that counsel was ineffective, Payne must show that counsel's representation was deficient;  that is, that it fell below an objective standard of reasonableness.  Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   And he must show that the deficiency prejudiced him, depriving him of a fair trial.  Strickland, 466 U.S. at 687, 104 S.Ct. 2052.   But even if the State had improperly instructed Simon-Cole to withhold evidence (which the record does not show), the jury acquitted Payne on the C.D.C. charge.   Thus, he can not show prejudice as to that charge.

Payne also contends that defense counsel improperly suggested that he was guilty when he said in his closing argument that most people who commit sexual offenses do so in private.   Payne has not, however, provided a record of closing arguments.   Thus, we cannot consider this claim.  RAP 10.3(a)(5).

E. Sufficiency of the Evidence

Payne challenges the sufficiency of the evidence to support his conviction of molesting C.A.S., pointing to inconsistencies in the testimony of various witnesses and urging us to conclude that therefore some of the witnesses must have lied.

Evidence is sufficient to support a conviction if, taken in the light most favorable to the State, it allows any rational trier of fact to find the essential elements of the case beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   Circumstantial and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).   The trier of fact determines the credibility of witnesses, which we do not review on appeal.  Casbeer, 48 Wash.App. at 542, 740 P.2d 335.

First degree child molestation requires the State to prove that the defendant had sexual contact with a child under twelve years old to whom he was not married and that the defendant is at least three years older than the victim.   RCW 9A.44.083. Payne was not married to C.A.S., who was eight years old at the time of the contact.   Payne was thirty-seven years old.

Sexual contact is “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(2).   The fact-finder can infer sexual gratification from the “nature and circumstances of the act itself.”  State v. Tilton, 111 Wash.App. 423, 430, 45 P.3d 200, review granted, 147 Wash.2d 1007, 56 P.3d 565 (2002).  “Proof that an unrelated adult with no caretaking function has touched the intimate parts of a child supports the inference the touching was for the purpose of sexual gratification.”  State v. Powell, 62 Wash.App. 914, 917, 816 P.2d 86 (1991).

Taking the evidence in the light most favorable to the State, Payne touched C.A.S. between her legs underneath her panties while she slept.   When she awoke, Payne told her that he would give her five dollars not to tell anyone, and that he would kill her if she did.   This evidence was sufficient for the jury to find beyond a reasonable doubt that Payne molested C.A.S.

F. Jurisdiction

Finally, Payne contends that the trial court should have dismissed the charges for lack of jurisdiction.   The State must prove that Payne committed the crime in this state.  RCW 9A.04.030(1).  “ ‘Ordinarily, the State meets this burden by presenting evidence that any or all of the essential elements of the alleged offense occurred in the state.’  ” State v. Daniels, 104 Wash.App. 271, 275, 16 P.3d 650 (2001) (quoting State v. L.J.M., 129 Wash.2d 386, 392, 918 P.2d 898 (1996)).

The State did not present direct evidence that the offense occurred in Washington.   But circumstantial evidence is as reliable as direct evidence.   Delmarter, 94 Wash.2d at 638, 618 P.2d 99.   The State presented evidence that the victim and her mother lived in Bremerton, that the offense occurred either at the victim's or Payne's house, and that Payne was arrested in Bremerton.   A detective testified that when she arrested Payne, she “asked him about where he lived, his address ․ how long he had lived in Bremerton, where he came from, that sort of thing.”   RP at 239.   She also “asked him why he left Bremerton on the 5th of September [the day the event concerning C.D.C. allegedly occurred], the Tuesday, and he advised me that he did so to look for a job.”   RP at 239.   This circumstantial evidence was sufficient for the jury to find that the crime took place in Washington.

In conclusion, the trial court erred in considering Conviction No. 40354C3 as one strike under the two-strike-life-sentence statute.   But the trial court did not err in ruling that the State had met the foundational requirements for admitting the evidence of Conviction No. 40354C3 and, on remand, the court can again consider this conviction for sentencing, including the possibility of an exceptional sentence.   Nor did the trial court err in rejecting page 3 of Exhibit 1 for lack of proper authentication.   We vacate the sentence and remand for resentencing.

FOOTNOTES

1.   Unlike the two-strike statute, the three-strike statute allows the court to consider a comparable foreign conviction.   Former RCW 9.94A.030(29).

ARMSTRONG, J.