STATE v. BARTOLOME (2007)

PUBLISHED IN PART OPINION

¶ 1 Defendant Joshua Bartolome appeals his bench-trial conviction, based on a stipulated record, and his standard-range sentence for indecent liberties by forcible compulsion, RCW 9A.44.100(a).   He argues that (1) because the trial court found him guilty based on a stipulated record, we should apply a de novo standard of review;  (2) there was insufficient evidence to support his conviction;  (3) the trial court erred in considering inadmissible evidence in the presentence report;  and (4) the trial court erred in failing to grant him credit for time served while under electric home monitoring.   The State moves to dismiss Bartolome's appeal of his non-appealable standard range sentence.

¶ 2 Holding that the substantial evidence standard of review applies, we affirm Bartolome's conviction.   We grant the State's motion to dismiss Bartolome's sentence appeal, but we remand to the trial court to calculate credit for time served.

FACTS RELATING TO PUBLISHED PORTION OF OPINION

¶ 3 The State charged 18-year-old Joshua Bartolome with two counts of indecent liberties by forcible compulsion and with sexual motivation, based on sexual assaults against two minor females, AMH and RAE. Throughout the pretrial proceedings, Bartolome resided at his parents' home “confined” by electric home monitoring.

¶ 4 Bartolome waived his right to a jury trial with live testimony and agreed to a bench trial on an agreed stipulated record in the form of an evidence binder.   The binder contained 19 exhibits, mainly comprising the police and forensic interviews with Bartolome, the victims, and potential witnesses.   The parties also presented argument to the trial court.

¶ 5 The trial court issued written findings of fact and conclusions of law, finding beyond a reasonable doubt that (1) Bartolome committed indecent liberties by forcible compulsion against the first victim, AMH, “for the purpose of gratifying Bartolome's sexual desires”;  (2) while straddling AMH and rubbing himself back and forth against her, Bartolome rubbed the inside and outside of AMH's thighs, climbed on top of her, attempted to remove her clothing, and attempted to force AMH to touch his penis;  and (3) AMH refused Bartolome's sexual advances, but he overcame her resistance through physical force.   The trial court did not find beyond a reasonable doubt that Bartolome committed indecent liberties by forcible compulsion against the second victim, RAE.

ANALYSIS

¶ 6 The parties dispute the appropriate standard of review for Bartolome's challenge that the evidence is insufficient to support the trial court's verdict.   Bartolome argues that in a criminal case with a stipulated record, the appellate court should review the conviction de novo.   He reasons that (1) we normally defer to the fact finder because of the latter's ability to review live testimony and to make credibility determinations;  (2) but when the appellate court has the same record as the trial court, such as a stipulated record, the appellate court is just as competent to weigh and to consider evidence and to assess credibility.   In support of de novo review, Bartolome cites Smith v. Skagit County, 75 Wash.2d 715, 718-719, 453 P.2d 832 (1969), and Danielson v. City of Seattle, 45 Wash.App. 235, 240, 724 P.2d 1115 (1986).

¶ 7 The parties do not cite and our research has not revealed any Washington case law addressing the standard of review for criminal trials on stipulated records.   A recent Washington Supreme Court decision, however, In re Marriage of Rideout, 150 Wash.2d 337, 351, 77 P.3d 1174 (2003), holds that “substantial evidence” is the appropriate standard of review for trials on stipulated or documentary records in family law cases and that appellate courts defer to trial courts, even when they rule on stipulated records in cases that turn on credibility and “where competing documentary evidence ha[s] to be weighed and conflicts resolved.” ¹

¶ 8 Although the trial court here made no explicit findings on credibility, this case, like Rideout, turns on credibility.   According to AMH's statements, Bartolome used force to engage in nonconsensual sexual conduct with her.   In contrast, Bartolome asserted to the police that he had ceased his activities when AMH told him “no.”

¶ 9 Bartolome, like Sara Rideout, “had a right to request the opportunity to present live testimony,” Rideout, 150 Wash.2d at 352, 77 P.3d 1174.   He could have gone to trial and cross-examined the live witnesses whose credibility he wished to challenge.   But he, like Sara Rideout, did not exercise that right.   Instead, he elected to waive this right and submitted his case to trial on an agreed stipulated record.   Criminal defendants convicted in live trials do not receive de novo review on appeal.   Neither should Bartolome.²

¶ 10 In light of Bartolome's waiver of his right to a trial with live testimony, we apply Rideout to this criminal case and leave it for the trial court to weigh this conflicting stipulated evidence and to resolve factual disputes.   Therefore, according to Rideout, we review Bartolome's stipulated record trial to determine whether substantial evidence supports the trial court's verdict.

¶ 11 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.

FACTS RELATING TO UNPUBLISHED PORTION OF OPINION

I. Indecent Liberties

¶ 12 In September 2004, the Kitsap County Sheriff's Office interviewed 14-year-old AMH in response to a sex offense report.   According to AMH, in June 2004, she telephoned Bartolome and asked him to take her and her friends, Kayla and Zanaeia, to Silverdale to visit Kayla's boyfriend.   Bartolome and AMH previously knew each other from chatting online and by sending Instant Messages through their computers.   They were neither romantically involved nor had they spent time together alone.

¶ 13 After Bartolome dropped off AMH's friends in Silverdale, AMH agreed to remain with Bartolome because she felt guilty for taking advantage of Bartolome's willingness to give the girls a ride.   The two drove around and eventually ended up at Bartolome's home where he stopped to retrieve alcohol.   After Bartolome left the car, AMH telephoned Kayla to ask her to call back in several minutes and pretend that AMH had to return immediately.

¶ 14 Bartolome returned with the alcohol and drove AMH to an elementary school parking lot where he asked her to drink the beers.   Then, Kayla called AMH as planned and told AMH she had to return.   Bartolome took AMH's phone, turned it off, and hid it from AMH. Bartolome also took the car keys and threw them in the back seat.   Then, he began kissing AMH and rubbing her inner thigh.   He then climbed on top of her and began “humping” her.3  With Bartolome on top and straddling her, AMH became hysterical, crying and screaming at Bartolome that she was only 14 years-old and he needed to stop.   Bartolome continued to hold AMH as he tried to unbutton her shirt and pants, while AMH attempted to keep her clothing on.   AMH kept crying for Bartolome to stop, but he refused and persisted in rubbing her thighs, groin, and chest.   Bartolome then removed his penis from his pants and tried to force AMH's hand to touch him, causing minimal contact.   AMH again screamed out.   Bartolome continued to pin AMH down and then asked to “hump her butt.”   AMH again refused.

¶ 15 Bartolome apparently became frustrated with AMH and climbed into the back seat.   AMH feigned that she was going to vomit, and Bartolome told her to step outside the car if she was going to be ill.   While AMH was pretending to be sick, she saw her cell phone in the driver-side-door pocket.   She grabbed the phone, stepped outside the car, and ran away.

¶ 16 AMH then called Kayla for help, asking her friend to meet her at a nearby water tower.   Kayla arrived and found AMH crying hysterically.   AMH immediately “grabbed” Kayla and wrapped her arms around Kayla, but AMH would not stop sobbing.   On their way home from the water tower, AMH told Kayla that Bartolome had tried to do “sexual stuff” with her.   After the girls returned to Kayla's home over an hour later, Kayla asked AMH what had occurred between AMH and Bartolome;  AMH stated that Bartolome “didn't try very much.” 4

II. Arrest and Statements to Police

¶ 17 After AMH's report and the subsequent interview, the police arrested Bartolome.   Bartolome agreed to speak with the police.   Bartolome initially denied knowing AMH and stated he did not know about the incident the police described.   The police then provided further details of AMH's allegations;  Bartolome paused for a substantial period and again stated he did not remember providing transportation to anyone on that night.   Following another pause, Bartolome admitted that he did know AMH and he had been with her that night.

¶ 18 Bartolome then described his encounter with AMH to the police.   As Bartolome recalled, after he drove AMH's friends to Kayla's boyfriend's home in Silverdale, he and AMH continued to drive around.   Bartolome admitted that he had retrieved alcohol, but stated that it was AMH's suggestion, not his.   After the two consumed alcohol, Bartolome stated they engaged in mutual kissing and fondling.   Although he initially denied having rubbed AMH's thigh or groin, Bartolome eventually admitted that he had engaged in these acts, but once AMH told him to stop, he did.   The police questioned Bartolome about any use of force;  he stated that he held AMH's arms down only because she had become intoxicated and had begun to assault him.   Finally, Bartolome admitted that AMH had repeatedly requested to be driven back to her friends, but that he refused because she had been drinking and he feared they would both get in trouble.

¶ 19 In addition to AMH and Bartolome, AMH's friends also provided interviews that the parties submitted to the trial court.   Neither of AMH's friends had witnessed the attack, but both recalled finding AMH near the water tower extremely distraught.   Kayla stated that she tried to call AMH while she was with Bartolome, but AMH's cell phone was off.   Immediately following the incident, AMH told Zanaeia that Bartolome had tried to force her to engage in sexual activity, that he had pinned her down, and that he had withheld her cell phone.

¶ 20 Bartolome's presentence investigation report included facts surrounding his prior convictions as well as his present offense.   His criminal history comprised juvenile adjudications of first degree child rape, first degree trespass with sexual motivation, and fourth degree assault with sexual motivation.   Bartolome presented the court with a redacted version of this presentence report because, he claimed, the trial court's copy contained inadmissible information.

¶ 21 In response to Bartolome's concerns about considering inadmissible information in the presentence report, the trial court stated:

This was a stipulated facts trial and my recollection is counsel spent enumerable hours parsing that record to make sure I only had what was appropriate for me to consider.   I am going to consider what was in that parsed record, and if it shows up in the presentence investigation, then it will be something that I have considered.   If the presentence investigation report contains things that weren't in the stipulated facts trial, then that will not be part of my decision.

Report of Proceedings (RP) (Jan. 20, 2006) at 3-4.

¶ 22 When defense counsel further objected to the presentence report, the trial court responded:

[I]n answer to your legal concerns, let me tell you as I make my decision today, I am considering only the findings of fact and conclusions of law, in making my decision, together with the criminal history, the convictions themselves, together with the statement of defendant on plea of guilty, which you have provided.

RP (Jan. 20, 2006) at 45 (emphasis added).

¶ 23 Bartolome then argued that he merited a downward departure from the standard range sentence.   He presented letters and testimony from relatives and a family friend attesting to his good character and his successful treatment following his juvenile child rape adjudication.   The State argued that the trial court should sentence Bartolome within the standard range.   In support, the State presented live testimony from AMH's parents and a letter from AMH.

¶ 24 The trial court calculated Bartolome's offender score as three, based on his prior convictions.   This offender score resulted in a standard range sentence from 67 to 89 months.   The trial court imposed a 78-month sentence.   Bartolome asked the trial court to grant him 474 days credit for “time served” while “in custody” under electronic home monitoring.   The trial court denied the motion, saying it did not think he was entitled to such credit.   The trial court did say, however, that it would reconsider this decision.

¶ 25 When the trial court entered Bartolome's judgment and sentence, the trial court did not explicitly mention credit for electric home monitoring.   Instead, the trial court stated generally, “[Bartolome] shall receive credit for time served prior to sentencing solely for this cause number as computated by the jail unless specifically set forth.”   Clerk's Papers at 142.   The Warrant of Commitment accompanying the judgment and sentence requires the Department of Corrections generally to grant Bartolome credit for time served.

¶ 26 Bartolome appeals his convictions, his standard-range sentence, and the trial court's failure to grant in his judgment and sentence express credit for time served while he was on electronic home monitoring in connection with this case.

ANALYSIS (unpublished portion of opinion)

I. Indecent Liberties

¶ 27 Bartolome argues the evidence was insufficient to support his conviction for indecent liberties by forcible compulsion under RCW 9A.44.100(a).   We disagree.

A. Standard of Review

¶ 28 As we held in the published portion of this opinion, we apply the substantial evidence standard of review.   Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn there from.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   Circumstantial evidence and direct evidence are equally reliable.  State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

¶ 29 We will not disrupt a trier of fact's credibility determinations.   State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).   Rather, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.  State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wash.2d 1011, 833 P.2d 386 (1992).

B. Sufficiency of the Evidence

¶ 30 A person commits indecent liberties by forcible compulsion, RCW 9A.44.100(1)(a), when he knowingly causes another person to have sexual contact with him using:

physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

RCW 9A.44.010(6).   Thus, at trial the State had to demonstrate that (1) Bartolome and AMH had sexual contact;  and (2) Bartolome achieved this contact through either the use of force or a threat to overcome AMH's resistance.   The State met this burden of proof.

¶ 31 First, the record supports the trial court's finding that there was sexual contact between AMH and Bartolome.   Washington courts have defined “sexual contact” as the touching of the sexual or other intimate parts of a person for the purpose of sexual gratification.  State v. R.P., 67 Wash.App. 663, 667, 838 P.2d 701 (1992), modified on other grounds, 122 Wash.2d 735, 862 P.2d 127 (1993).   A defendant need not have direct physical contact in order to commit an indecent liberty.  State v. Fischer, 57 Wash.2d 262, 264, 356 P.2d 983 (1960).   Here, AMH stated in several interviews that Bartolome rubbed his groin against her body, grabbed her groin and thighs, fondled her breasts, and forced her hand to come in contact with his penis.   Taken in the light most favorable to the State, these contacts satisfy the statutory definition of sexual contact.

¶ 32 Second, the record adequately supports a finding of physical force.   Forcible compulsion requires more than the force normally used to achieve sexual intercourse or sexual contact.  State v. Ritola, 63 Wash.App. 252, 817 P.2d 1390 (1991).   But to prove forcible compulsion, the State need not show that the victim physically resisted.   See State v. McKnight, 54 Wash.App. 521, 525, 774 P.2d 532 (1989).   In McKnight, Division I of our court found forcible compulsion when the perpetrator continued to disrobe the victim after she repeatedly asked him to stop.  54 Wash.App. at 526, 774 P.2d 532.   Here, not only did Bartolome continue his sexual contact after AMH asked him to stop, but also he forced AMH to submit to his sexual advances by pinning down her arms, restricting her movement, and removing her cellphone.

¶ 33 Bartolome argues that the trial court's failure to make explicit credibility determinations means that it lacked sufficient evidence.   We disagree.   By adopting AMH's version of the events, the trial court implicitly found her statements, in conjunction with Kayla's and Zanaeia's statements, more credible than Bartolome's.   Furthermore, it was not unreasonable for the trial court to accord more credibility to AMH's statements because Bartolome first falsely denied even knowing AMH, then denied ever providing her transportation, and then, after a significant pause, finally claimed to have engaged in consensual sexual contact with AMH.

¶ 34 Bartolome also argues that the trial court should have given greater weight to AMH's statements to her friends immediately after the attack, during which she did not describe Bartolome's actions with the same precision as she did in later police and forensic interviews.   We reiterate that the trial court is responsible for weighing evidence and determining credibility, not us.   It was not unreasonable or an abuse of discretion for the trial court to have believed that AMH perhaps was more comfortable discussing the details of the assault in a safe setting with a child interviewer than she was in the minutes following the attack when she spoke with her friends.

¶ 35 We hold, therefore, that the evidence was sufficient to support the trial court's finding Bartolome guilty beyond a reasonable doubt.

II. Sentence

A. Standard Range

¶ 36 Next, Bartolome argues that the trial court violated RCW 9.94A.530(2) 5 by considering inadmissible information in the presentence report. 6  Specifically, Bartolome argues that the trial court impermissibly considered the report writer's rendition of facts surrounding Bartolome's juvenile adjudications.7  This argument also fails.

¶ 37 At the outset, we note that, generally, a defendant cannot appeal a sentence within the standard range.  RCW 9.94A.585(1);  State v. Garcia-Martinez, 88 Wash.App. 322, 329, 944 P.2d 1104 (1997), review denied, 136 Wash.2d 1002, 966 P.2d 902 (1998).   A defendant may appeal a standard range sentence only if the sentencing court failed to comply with procedural requirements of the Sentencing Reform Act or constitutional requirements.   State v. Mail, 121 Wash.2d 707, 711-13, 854 P.2d 1042 (1993).   Such is not the case here.

¶ 38 The record shows that trial court considered only (1) the stipulated facts of the record, (2) Bartolome's prior convictions, and (3) his guilty plea statements for his prior convictions.   In his redacted version of the sentencing report, Bartolome admitted to the three prior juvenile adjudications, and he admitted that the misdemeanors included special verdicts of sexual motivation.   Thus, the trial court relied only on information proved at trial or information that Bartolome admitted.   See RCW 9A.44.530(2) (acknowledgement includes failing to object to information in the presentence report).   Based on this admissible evidence alone, the trial court correctly determined that Bartolome's offender score was three,8 properly calculated the standard range, and then properly sentenced Bartolome within the standard range.

¶ 39 We hold that Bartolome is not entitled to appeal his standard range sentence and, therefore, we dismiss that part of his appeal.

B. Credit for Time Served

¶ 40 Lastly, Bartolome argues that the trial court erred in failing to grant him 343 days 9 credit for time served while under electric home monitoring.   The State concedes that Bartolome is entitled to this credit.

¶ 41 The State further contends, however, that Bartolome's judgment and sentence does not preclude crediting him with time served because the trial court ordered in its “Warrant of Commitment” that Bartolome be given credit for time served.   We are not persuaded that this general language cures the problem here.

¶ 42 When Bartolome's counsel stated that she believed he was entitled to 474 days credit for electronic home monitoring, the trial court replied it would not make that decision on that day.   Instead, the trial court stated, “I am going to say that it doesn't count.   If you want to file a motion for reconsideration, with appropriate authority, I may reconsider my decision.”   RP at 48.   We note, however, that Bartolome's judgment and sentence does not expressly mention credit for time served on electronic home monitoring.   Instead, as is apparently the practice in Kitsap County, the trial court seems to have left the credit calculation to the Kitsap County Jail.10

¶ 43 We cannot tell from the record before us whether or not the jail, or subsequently, the Department of Corrections, has credited Bartolome for the days he served on EHM if, indeed, this is what the trial court ordered and intended.   Accordingly, under the circumstances, where Bartolome has apparently not received credit for time served on EHM, we remand to the trial court to calculate this credit and to make sure that he receives the proper credit against his period of confinement.

III. CONCLUSION

¶ 44 We affirm Bartolome's conviction, grant the State's motion to dismiss Bartolome's appeal of his standard range sentence, and remand for calculation of credit for time Bartolome served on EHM.

FOOTNOTES

1.   In Rideout, the trial court ruled in a contempt hearing where the parties relied solely on documentary evidence in the form of declarations and affidavits and then argued therefrom.   The Supreme Court affirmed our decision not to engage in de novo review.  Rideout, 150 Wash.2d at 351, 77 P.3d 1174.   We reasoned that (1) a trial court is more able to resolve conflicts and to draw inferences from the evidence, even when that evidence is in written form;  and (2) a trial court can take additional testimony if the record is inadequate to resolve the credibility issues and disputes between the declarations.  Id. at 376, 77 P.3d 1174.   Moreover, an appellate court allows additional evidence only in very limited circumstances;  and, even then, it generally designates the trial court as the appropriate body to hear the evidence and to make findings of fact.   See RAP 9.11.

2.   We acknowledge the following language in Rideout:[T]here are cases that stand for the proposition that appellate courts are in as good a position as trial courts to review written submissions and, thus, may generally review de novo decisions of trial courts that were based on affidavits and other documentary evidence.․The application of the substantial evidence standard in cases such as this is a narrow exception to the general rule that where a trial court considers only documents, such as parties' declarations, in reaching its decision, the appellate court may review such cases de novo because that court is in the same position as trial courts to review written submissions.Rideout, 150 Wash.2d at 350-51, 77 P.3d 1174 (emphasis added).   But even this language makes such application of de novo review discretionary, not mandatory, with the appellate court.   Thus, even if we had such discretion here, we would not exercise it to grant Bartolome de novo review because, as we note above, he expressly waived his right to a trial with live testimony when he agreed to submit his case to trial by the bench based on a stipulated record.

3.   When asked in the interview to define “humping,” AMH described Bartolome as sitting on her with his legs around her and rubbing back and forth.

4.   The defense later interviewed AMH, who relayed the night's events in a similar fashion as she had told the police and the child interviewer.   She described Bartolome's rubbing her inner thigh, climbing on top of her, and rubbing himself against her, as well as Bartolome's efforts to remove AMH's clothes and forcing her to touch his penis.

5.   RCW 9.94A.530(2) provides:In determining any sentence other than a sentence above the standard range, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing, or proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to information stated in the presentence reports.   Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point.   The facts shall be deemed proved at the hearing by a preponderance of the evidence, except as otherwise specified in RCW 9.94A.537.

6.   Insofar as Bartolome implies that mere exposure to inadmissible information in the presentence report biased the trial court against him, he ignores the presumption that trial courts disregard inadmissible evidence.  State v. Miles, 77 Wash.2d 593, 601, 464 P.2d 723 (1970);  State v. Bell, 59 Wash.2d 338, 352, 368 P.2d 177, cert. denied, 371 U.S. 818, 83 S.Ct. 34, 9 L.Ed.2d 59 (1962).   Furthermore, the trial court explicitly told Bartolome that it would consider only the information in the redacted presentence report, evidence that was unquestionably admissible at sentencing.

7.   Bartolome does not “dispute the fact of the first degree child rape conviction, although, not having ever been advised of his right to collateral attack on any of the convictions, he will challenge the validity of the misdemeanor convictions.”   Br of Appellant at 24.   If Bartolome wishes to challenge the validity of his misdemeanor convictions, he must bring a Personal Restraint Petition, pursuant to RAP 16.3.   This Court cannot address the validity of these convictions on appeal.

8.   Bartolome does not appear to contest this offender score.

9.   We know that at sentencing, Bartolome asked for 474 days credit.

10.   At oral argument, counsel for the State explained that the usual practice in Kitsap County is for the trial court simply to order credit for time served in the judgment and sentence and then to leave the actual calculation to the Kitsap County Jail. The State argued in its brief and at oral argument that it was incumbent on Bartolome to provide proper documentation from his private electronic home monitoring provider to the jail in order to insure credit for this time served.

HUNT, J.