IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86263-4-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION JONATHAN CRUZ,
Respondent.
COBURN, J. — Based on his alleged actions as an 11-year-old, the State charged
Jonathan Cruz as an adult with rape of a child in the first degree. The trial court
dismissed the charge after concluding the State failed to meet its burden in a capacity
hearing. Because the court did not apply the correct legal standard, we reverse and
remand for further proceedings.
FACTS
In 2023, the State charged Cruz with rape of a child in the first degree for acts he
allegedly committed in 2016 against J.Z., who was then 5 years old. 1 The trial court held
a capacity hearing. At the hearing the court admitted the State’s evidence which
consisted of a video recording of a 2022 forensic interview of J.Z., a supplemental
1 Although J.Z.’s date of birth is not in the record, the parties do not dispute that J.Z. would have been five at the time of the alleged rape. See Exhibit 2 which includes a police report stating that J.Z. said the incident happened right before his family moved from the apartment complex in 2016 where Cruz also lived and where the rape occurred. 86263-4-I/2
report from the investigating detective, and Cruz’s school disciplinary records from 2015
to 2022. 2 Neither party presented any expert witnesses or live testimony.
According to J.Z., in early 2016, as children, Cruz and J.Z. lived in the same
apartment complex. According to J.Z., one day, sometime between January 1 and
March 1 of that year, the two children were outside playing with a toy gun together,
while J.Z.’s mother was preparing to move out of her apartment. Cruz then invited J.Z.
into his apartment to play Xbox, to which J.Z. agreed. Once the pair entered Cruz’s
apartment, Cruz locked the door behind them. Cruz and J.Z. were alone in the
apartment. Cruz and J.Z. entered a bedroom, where Cruz forcibly put J.Z. facedown on
a bed, pulled J.Z.’s pants down, and inserted his penis into J.Z.’s buttocks. Cruz then
grabbed J.Z., pushed him down and inserted his penis into J.Z.’s mouth. Cruz then put
his hands on J.Z.’s head and moved his head back and forth, forcing J.Z. to perform
oral sex. After the incident occurred, Cruz told J.Z. “If you tell anyone, I’ll hurt you and
your family.” J.Z. responded “Okay.” The two then exited the apartment and continued
to play outside.
In a forensic interview conducted in August 2022, J.Z. said that while recently
playing Xbox he remembered what had happened with Cruz in 2016. The next night
when J.Z. and his mother went to pick up pizza, J.Z. saw Cruz there and told his mom
he did not want to go inside to pick up the food. J.Z. later told his mother what had
happened in 2016 with Cruz. J.Z. and his family confronted Cruz with his family. Cruz
denied the allegations. J.Z. and his family then reported the incident to police.
2 Three and a half pages of the school records were completely redacted. 2 86263-4-I/3
A few days later, a detective interviewed Cruz. According to the detective’s
supplemental narrative, when asked about the incident with J.Z., Cruz said that the only
time J.Z. was ever in their apartment was when Cruz’s mother was babysitting J.Z. Cruz
denied any wrongdoing, asserting that the only time he had touched J.Z. physically was
when they pretended to wrestle like “WWE”3 as seen on TV.
In January 2023, the State charged Cruz with rape of a child in the first degree.
Following a capacity hearing, the court heard argument at a follow-up hearing and
issued its ruling. The court’s ruling centered on its interpretation of State v. Ramer, 151
Wn.2d 106, 86 P.3d 132 (2004). The court stated that
[b]ased upon a pre-Ramer understanding of the law, the Court would have concluded that Mr. Cruz was capable or had capacity given the defendant’s age and the Court’s findings that he understood the nature of the acts and understood that they were not just wrong, but quite wrong.
However, the court clarified that Ramer established a higher standard. The court ruled
that under RCW 9A.04.050, Cruz was not capable of committing the offense charged
because the court could not “find by clear and convincing evidence that Mr. Cruz
understood that his actions were illegal and could result in detention or legal
consequences.” The court dismissed the charges without prejudice.
The State appeals.
DISCUSSION
When the trial court finds a lack of capacity, we review the record to determine
whether a rational trier of fact could find that the State failed to overcome the
presumption that the child lacked capacity. 4 Id. at 113. A court necessarily abuses its
3 WWE presumably stands for World Wrestling Entertainment. 4 “When the superior court finds capacity, we review the record to determine whether there is substantial evidence establishing that the State met its burden of overcoming the 3 86263-4-I/4
discretion if its decision is based on an erroneous view of the law. State v. Booth, 24
Wn. App. 2d 586, 600, 521 P.3d 196 (2022).
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. Referred to as “the infancy defense,” this presumption helps 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.’” Ramer, 151
Wn.2d at 114 (quoting State v. Q.D., 102 Wn.2d 19, 23, 685 P.2d 557 (1984)).
To successfully overcome the presumption of incapacity, the State must prove by
clear and convincing evidence that the child possessed sufficient capacity to understand
the act and know that it was wrong. State v. J.P.S., 135 Wn.2d 34, 38, 954 P.2d 894
(1998); Q.D., 102 Wn.2d at 21.
Establishing capacity is a separate inquiry from the specific mental element of
the charged crime. Q.D., 102 Wn.2d at 24. While there are similarities between the
capacity and the mental element of a specific criminal offense, capacity is not
considered an element of the charged offense. Id. Instead, it constitutes a general
determination that the juvenile understood the act and its wrongfulness. Id. Were
capacity an element of the crime, proof beyond a reasonable doubt would be required.
Id. But capacity, not being an element of the crime, does not require as stringent a
standard of proof. Id.
statutory presumption that children under 12 years of age are incapable of committing crime by clear and convincing evidence.” Ramer, 151 Wn.2d at 112-13 (citing RCW 9A.04.050). 4 86263-4-I/5
The State contends that the trial court misinterpreted Ramer as having created a
more rigorous legal test to rebut the presumption of incapacity. The State argues that
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86263-4-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION JONATHAN CRUZ,
Respondent.
COBURN, J. — Based on his alleged actions as an 11-year-old, the State charged
Jonathan Cruz as an adult with rape of a child in the first degree. The trial court
dismissed the charge after concluding the State failed to meet its burden in a capacity
hearing. Because the court did not apply the correct legal standard, we reverse and
remand for further proceedings.
FACTS
In 2023, the State charged Cruz with rape of a child in the first degree for acts he
allegedly committed in 2016 against J.Z., who was then 5 years old. 1 The trial court held
a capacity hearing. At the hearing the court admitted the State’s evidence which
consisted of a video recording of a 2022 forensic interview of J.Z., a supplemental
1 Although J.Z.’s date of birth is not in the record, the parties do not dispute that J.Z. would have been five at the time of the alleged rape. See Exhibit 2 which includes a police report stating that J.Z. said the incident happened right before his family moved from the apartment complex in 2016 where Cruz also lived and where the rape occurred. 86263-4-I/2
report from the investigating detective, and Cruz’s school disciplinary records from 2015
to 2022. 2 Neither party presented any expert witnesses or live testimony.
According to J.Z., in early 2016, as children, Cruz and J.Z. lived in the same
apartment complex. According to J.Z., one day, sometime between January 1 and
March 1 of that year, the two children were outside playing with a toy gun together,
while J.Z.’s mother was preparing to move out of her apartment. Cruz then invited J.Z.
into his apartment to play Xbox, to which J.Z. agreed. Once the pair entered Cruz’s
apartment, Cruz locked the door behind them. Cruz and J.Z. were alone in the
apartment. Cruz and J.Z. entered a bedroom, where Cruz forcibly put J.Z. facedown on
a bed, pulled J.Z.’s pants down, and inserted his penis into J.Z.’s buttocks. Cruz then
grabbed J.Z., pushed him down and inserted his penis into J.Z.’s mouth. Cruz then put
his hands on J.Z.’s head and moved his head back and forth, forcing J.Z. to perform
oral sex. After the incident occurred, Cruz told J.Z. “If you tell anyone, I’ll hurt you and
your family.” J.Z. responded “Okay.” The two then exited the apartment and continued
to play outside.
In a forensic interview conducted in August 2022, J.Z. said that while recently
playing Xbox he remembered what had happened with Cruz in 2016. The next night
when J.Z. and his mother went to pick up pizza, J.Z. saw Cruz there and told his mom
he did not want to go inside to pick up the food. J.Z. later told his mother what had
happened in 2016 with Cruz. J.Z. and his family confronted Cruz with his family. Cruz
denied the allegations. J.Z. and his family then reported the incident to police.
2 Three and a half pages of the school records were completely redacted. 2 86263-4-I/3
A few days later, a detective interviewed Cruz. According to the detective’s
supplemental narrative, when asked about the incident with J.Z., Cruz said that the only
time J.Z. was ever in their apartment was when Cruz’s mother was babysitting J.Z. Cruz
denied any wrongdoing, asserting that the only time he had touched J.Z. physically was
when they pretended to wrestle like “WWE”3 as seen on TV.
In January 2023, the State charged Cruz with rape of a child in the first degree.
Following a capacity hearing, the court heard argument at a follow-up hearing and
issued its ruling. The court’s ruling centered on its interpretation of State v. Ramer, 151
Wn.2d 106, 86 P.3d 132 (2004). The court stated that
[b]ased upon a pre-Ramer understanding of the law, the Court would have concluded that Mr. Cruz was capable or had capacity given the defendant’s age and the Court’s findings that he understood the nature of the acts and understood that they were not just wrong, but quite wrong.
However, the court clarified that Ramer established a higher standard. The court ruled
that under RCW 9A.04.050, Cruz was not capable of committing the offense charged
because the court could not “find by clear and convincing evidence that Mr. Cruz
understood that his actions were illegal and could result in detention or legal
consequences.” The court dismissed the charges without prejudice.
The State appeals.
DISCUSSION
When the trial court finds a lack of capacity, we review the record to determine
whether a rational trier of fact could find that the State failed to overcome the
presumption that the child lacked capacity. 4 Id. at 113. A court necessarily abuses its
3 WWE presumably stands for World Wrestling Entertainment. 4 “When the superior court finds capacity, we review the record to determine whether there is substantial evidence establishing that the State met its burden of overcoming the 3 86263-4-I/4
discretion if its decision is based on an erroneous view of the law. State v. Booth, 24
Wn. App. 2d 586, 600, 521 P.3d 196 (2022).
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. Referred to as “the infancy defense,” this presumption helps 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.’” Ramer, 151
Wn.2d at 114 (quoting State v. Q.D., 102 Wn.2d 19, 23, 685 P.2d 557 (1984)).
To successfully overcome the presumption of incapacity, the State must prove by
clear and convincing evidence that the child possessed sufficient capacity to understand
the act and know that it was wrong. State v. J.P.S., 135 Wn.2d 34, 38, 954 P.2d 894
(1998); Q.D., 102 Wn.2d at 21.
Establishing capacity is a separate inquiry from the specific mental element of
the charged crime. Q.D., 102 Wn.2d at 24. While there are similarities between the
capacity and the mental element of a specific criminal offense, capacity is not
considered an element of the charged offense. Id. Instead, it constitutes a general
determination that the juvenile understood the act and its wrongfulness. Id. Were
capacity an element of the crime, proof beyond a reasonable doubt would be required.
Id. But capacity, not being an element of the crime, does not require as stringent a
standard of proof. Id.
statutory presumption that children under 12 years of age are incapable of committing crime by clear and convincing evidence.” Ramer, 151 Wn.2d at 112-13 (citing RCW 9A.04.050). 4 86263-4-I/5
The State contends that the trial court misinterpreted Ramer as having created a
more rigorous legal test to rebut the presumption of incapacity. The State argues that
Ramer cited J.P.S., which provides the proper legal test and that any additional
language in Ramer is dicta. Cruz maintains that the court correctly required the State to
prove that the child understood the illegality of the act committed.
We agree with Cruz that Ramer did further clarify the legal test by which the
State must prove capacity. But Cruz, the State, and the trial court misread that legal test
set forth in Ramer.
When determining capacity, Washington courts engage in a fact-specific inquiry
that “must be in reference to the specific act charged.” Ramer, 151 Wn.2d at 114.
Washington courts have recognized that “[w]hen a child is accused of a crime which
involves sexual misconduct, it is more difficult for the State to prove the child
understood the conduct was wrong.” Id. at 115. There are seven factors that may be
relevant in determining whether a child knew the act committed was wrong:
(1) the nature of the crime; (2) the child’s age and maturity; (3) whether the child showed a desire for secrecy; (4) whether the child admonished the victim not to tell; (5) prior conduct similar to that charged; (6) any consequences that attached to the conduct; and (7) acknowledgment that the behavior was wrong and could lead to detention.
J.P.S., 135 Wn.2d at 38-39. “A child’s age, maturity, experience, and understanding
may all be relevant in deciding if a given child had knowledge of the act’s wrongfulness
at the time it was committed.” Id. at 39 “Also relevant is testimony from those
acquainted with the child and the testimony of experts.” Id.
The legal test is whether the child had knowledge of the wrongfulness of the act
at the time the child committed the offense and not that the child realized it was wrong
5 86263-4-I/6
after the fact. Id. at 37-38. The legal test for capacity “does not require that the child
know the act was illegal or understand the legal consequences of the act.” Id. at 38.
In 2004, the Washington State Supreme Court, in Ramer, continued to follow
J.P.S. in every way, including stating that “[i]t is not necessary, however, for the child to
understand that the act would be punishable under the law.” Ramer, 151 Wn.2d at 114
(citing J.P.S., 135 Wn.2d at 38). However, the court also clarified what is required to
overcome the presumption of incapacity. The Supreme Court stated:
Capacity requires the actor to understand the nature or illegality of his acts. 43 C.J.S. Infants § 197 (1978). In other words, [the child] must be able to entertain criminal intent. Id. 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. Id.
Ramer, 151 Wn.2d at 115. 5
The State argues that this quote from the C.J.S. Infants treatise should be
considered dicta, particularly in light of the concurrence in Ramer that emphasized “that
the majority has not announced a new standard for reviewing child capacity
determinations but continues to adhere to the standard set forth in J.P.S., 135 Wn.2d 34
and Q.D., 102 Wn.2d 19.” Ramer, 151 Wn.2d at 117-18 (Madsen, J. concurring). Justice
Madsen concurred in result only. Id. But the concurrence only addressed the standard of
review and did not address the legal test in determining capacity nor mention the citation
to C.J.S. Infants. Regardless, eight justices signed the majority opinion, and no other
justice joined the concurrence. Even if it could be argued that the concurrence suggests
the citation to C.J.S. Infants is dicta, an opinion joined by fewer than a majority does not
5 Subsequent editions of the C.J.S. no longer contain this language quoted in Ramer. However, the current version of the C.J.S. states that there may be a rebuttable presumption of incapacity for minors between the ages of 7 and 14. 43 C.J.S. Infants § 379. 6 86263-4-I/7
establish precedent. Fredrickson v. Bertolino’s Tacoma, Inc., 131 Wn. App. 183, 193, 127
P.3d 5 (2005).
Nor could the language in Ramer be considered dicta. Statements in a case that
are unrelated to an issue before the court and are unnecessary to decide the case
constitute obiter dictum and need not be followed. Johnson v. Liquor & Cannabis Bd.,
197 Wn.2d 605, 618, 486 P.3d 125 (2021). In Ramer, the defendant admitted that the
conduct was “bad” after talking with the police. 151 Wn.2d at 116. The investigating
detective quoted Ramer as saying his conduct was “kind of sort of wrong.” Two experts’
opinions also concluded that Ramer did not have the capacity to commit the crime
charged. Our Supreme Court quoted C.J.S. Infants immediately after listing the seven
factors from J.P.S. in discussing the legal test for capacity. Id. at 114-15. The Ramer
court’s citation to C.J.S. could not reasonably be viewed as “unrelated” to an issue
before the court. Accordingly, we agree with Cruz that Ramer is controlling authority.
Division Two recently recognized our Supreme Court’s quotation in Ramer from
43 C.J.S. Infants § 197 (1978). State v. K.A.B., 14 Wn. App. 2d 677, 697, 475 P.3d 216
(2020). Division Two read this new language to mean that the child “‘must be able to
entertain criminal intent.’” Id. at 697 (quoting Ramer, 151 Wn.2d at 114-15) (emphasis
added). In other words, “a child must be shown to have an ability to form criminal
intent.” Id. at 698.
We, like Division Two, are required to follow Ramer and agree that the State
must establish by clear and convincing evidence that the child had the ability to form
criminal intent. “[T]here remains no requirement that the State show that the child
understands the specific legal consequences they face for committing the act.” K.A.B.,
7 86263-4-I/8
14 Wn. App. at 697-98. Yet, in the instant case, the trial court dismissed the charge
because it held the State did not meet its burden by establishing by clear and
convincing evidence that Cruz “understood that his actions were illegal and could result
in detention or legal consequences.” This was a misapplication of the law.
The State also argues that general statutory interpretation proscribes this court
from incorporating the additional requirement of proving the ability to entertain criminal
intent when the legislature has chosen not to impose it. In general, we are bound to
follow Washington Supreme Court precedent. 1000 Virginia Ltd. P’ship v. Vertecs Corp.,
158 Wn.2d 566, 590, 146 P.3d 423 (2006). Moreover, Ramer was decided and has
remained controlling authority since 2004. Since Ramer was published 20 years ago,
legislature has made no attempt to amend RCW 9A.04.050 or clarify its legislative intent
that is contrary to the holding in Ramer. This court presumes that the legislature is
aware of judicial interpretations of its enactments and takes its failure to amend a
statute following a judicial decision interpreting that statute to indicate legislative
acquiescence in that decision. City of Federal Way v. Koenig, 167 Wn.2d 341, 348, 217
P.3d 1172 (2009). “If the legislature does not register its disapproval of a court opinion,
at some point that silence itself is evidence of legislative approval.” In re Custody of
A.F.J., 179 Wn.2d 179, 186, 314 P.3d 373 (2013) (quoting 1000 Friends of Wash. v.
McFarland, 159 Wn.2d 165, 181, 149 P.3d 616 (2006)).
Because the trial court did not apply the correct legal standard in the instant
case, we reverse and remand for further proceedings. Given the lack of any live
testimony, including expert testimony, at the first hearing where the court and parties
8 86263-4-I/9
misread Ramer, we further note that the trial court is not restricted from considering
additional evidence at a new capacity hearing.
Even setting aside the court’s misreading of Ramer, Cruz asks this court to affirm
the dismissal because the State presented a thin evidentiary record that still lacks clear
and convincing evidence that Cruz had capacity. But this court does not determine the
issue of capacity in the first instance. See Ramer, 151 Wn.2d at 112-13 (holding that
when the superior court finds capacity, appellate courts review the record to determine
whether there is substantial evidence establishing that the State met its burden of
overcoming the statutory presumption that children under 12 years of age are incapable
of committing crime by clear and convincing evidence). Though the trial court found the
State met its burden under the “pre-Ramer” standard, that determination also was
based on a misapplication of the law in failing to recognize and apply the legal test as
articulated in Ramer.
We reverse and remand for the court to reconsider capacity under the correct
legal standard. Because the court and parties misunderstood this standard previously,
we note that the trial court is not limited from considering additional evidence.
WE CONCUR: