Mr. Landa went to trial and was found guilty of 2 counts of Child Molestation in the First Degree (‘CM 1’) with an ‘aggravating factor’ of ‘domestic violence’ (‘DV’). This factor involved the State proving beyond a reasonable doubt (1) the victim and the Defendant were family or household members and (2) the offenses were part of an “ongoing pattern of sexual abuse manifested by multiple incidents over a prolonged period of time”.
Mr. Landa, on appeal, argued the State didn’t present sufficient evidence for proving second prong. Division III agreed, upholding the convictions, but striking the aggravator because the evidence of “prolonged period of time” was limited to testimony of the victim, who testified she did not know how much time there was between the first and the last incident of abuse.
The victim testified the abuse happened on multiple occasions during the summer of 2011 between her second and third grade years. She stayed, on and off, with her maternal grandmother and step-grandfather (Mr. Landa) for a couple weeks at a time while her mother worked. She testified she was molested on four separate occasions “sometime between May and/or June or August and September”. When asked specifically by the defense how much time lapsed from the first to last incident, she could not recall, nor estimate whether it was a week or a month. The Court, at sentencing, gave Mr. Landa a top end of the presumptive range sentence of 89 months, plus an additional 6 months as an exceptional sentence (due to the aggravator).
Division III agreed there was insufficient evidence to prove the aggravator beyond a reasonable doubt. Mr. Landa relied on State v. Barnett, 104 Wn App 191, 203 (2001) that “more than 2 week is necessary to satisfy the prolonged period of time requirement” and argued there was insufficient evidence of time. The State relied on State v. Epefanio, 156 Wn App 378, 392 (2010) that five to six weeks is sufficient to show a prolonged period, and agreed there was sufficient evidence.
Division III disagreed with the State because the victim testified she did not know how much time elapsed between incidents.
Mr. Landa’s case was remanded for resentencing with no aggravating factor (he’ll probably get an 89 month sentence, saving him only 6 months).
The State often threatens to “add aggravators” like the DV aggravator if a Defendant dares to go to trial. This case is a very recent example of (1) a jury is going to be empathetic to the victim and find in favor of an aggravator if the underlying accusation of molestation is proven; but (2) the State has to prove the necessary elements of the aggravator.
I’m betting good trial prosecutors won’t leave the timing of molests so vague in future cases.