P. v. Cawkwell
Filed 7/13/12 P. v. Cawkwell CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RENNARD CAWKWELL,
Defendant and Appellant.
D059077
(Super. Ct.
No. SCD223009)
APPEAL from
a judgment of the Superior Court
of
County, Kerry Wells, Judge.
Affirmed.
Following a
bench trial, Rennard Cawkwell was convicted of
to commit a sexual offense (Pen. Code,
§§ 664, 288.3, subd. (a)); attempting to commit a lewd act upon a child (§§
664, 288, subd. (a)); and possession of child
pornography (§ 311.11, subd. (a)).
The trial court sentenced Cawkwell to prison for four years eight
months. Cawkwell appeals, challenging
the sufficiency of the evidence to support his attempt convictions. We affirm the judgment.
FACTUAL BACKGROUND
Prosecution Case
Around
August 2009, Cawkwell, 39 years old, began communicating with
11-year-old S.B. on an Internet chat site called
Kidzworld.com. Cawkwell stated in his
Kidzworld profile he was 13 years old and wanted to chat only with girls. S.B. believed everyone on Kidzworld was
approximately her age. Cawkwell and S.B.
chatted online about general matters a couple times a day for about a
month. He told S.B. during their online
chats that he cared for her and wanted to meet her. Although Cawkwell never talked about kissing
or anything of a sexual nature during that time, S.B. believed he was acting
"like a boyfriend."
After
initially hesitating, S.B. agreed to meet Cawkwell at a recreation center near
her home. They agreed to wear certain
clothing so that they could recognize each other, and Cawkwell would hand S.B.
a note. As agreed, Cawkwell approached
S.B. at the recreation center. His note
stated something like, " 'Now that I met you, I hope it doesn't change
anything.' " S.B. "freaked
out" and ran into the bathroom.
Cawkwell stayed nearby and talked with some of S.B.'s friends. When S.B. exited the bathroom, she went with
a friend to the other side of the recreation center and started walking toward
her house. S.B. and her friend saw
Cawkwell following them and they started running. S.B.'s friend yelled and screamed at Cawkwell
that S.B. did not want to talk to him.
Cawkwell followed them and called S.B.'s name until an adult told
Cawkwell to return to the recreation center.
Cawkwell stayed there until police arrived. Police questioned but did not arrest
him. Cawkwell said he was there to meet
a friend, and that he relates to teenagers around age 14.
Police
followed up by assuming S.B.'s online identity and continuing her conversations
with Cawkwell. Cawkwell first
reinitiated online contact saying, "[T]alk to me [S.B.], what is your
problem[? Why] don't you talk to me any
more[?]" When the detective posing
as S.B. resumed the conversation, Cawkwell asked whether police had contacted
S.B.'s parents.
During two
extended chats, Cawkwell described what he wanted in a future relationship with
S.B. Although Cawkwell said that
"just friends is good," he also said it would be nice to be boyfriend
and girlfriend. "[I] dont [
and] that's why [I] go to kids world[.]
[I] go to singles websites too[, and] [I] do try to meet 18 to 35 year
old women. . . . [T]eens are not kids[;] teens are young
adults." "[I]n person gf
means a girlfriend that you are with every day[. You] can hold and kiss her . . . you would be
my in person girlfriend. . . . [W]e can be together in person and hold each
other." Cawkwell said he was
"just a big kid," but he also told S.B. that an older man would treat her better than
someone her age. "[I] don't treat
you like a kid[. You're] a young woman
[and] [I] would treat you like a woman."
When S.B. said she liked being his girlfriend, Cawkwell did not correct
her but instead asked, "[Do] you really like m[e] or do you just want me
to buy you stuff[?]" S.B. asked
about sex and Cawkwell told her that it wouldn't hurt much and that he would be
gentle. Finally, Cawkwell asked
S.B. if she would ever like to marry him, and told her she could marry "at
any age."
At one point when asked to
clarify something he had said, Cawkwell wrote, "[I] dint [
chats, Cawkwell mentioned "kissing" eight times; "hugging"
ten times; and "sex" four times.
They discussed being girlfriend and boyfriend eight times; the need for
privacy four times; and marriage twice.
Cawkwell
stated that he wanted to see S.B. again:
"[W]e can meet and when [we're] both sure that [we're] comfortable
together then we can do more . . . ."
He suggested they meet during daylight hours at a grocery store. S.B. agreed to meet. While planning their meeting, Cawkwell expressed his concern
about S.B. "freaking out" again.
Cawkwell made statements such as:
"[T]here wont [sic] be
anything sexual going on" and "we can walk around the store and
talk." He wanted to keep their meeting secret, and suggested
S.B. call her mother just before the time they were to meet so that her mother
would not worry. He said "you['re]
not gonna say anything to any one [sic]
about meeting tomorrow right" and "that would be crazy to say
anything." Cawkwell was also
concerned that police not show up again.
When asked if he was going to bring "protection,"
Cawkwell responded, "[We're] not [going to] do anything like
that." But he immediately added,
"[W]e have to know each other better . . . just kissing[,] holding
hands."
Cawkwell drove nearly an
hour to meet the person he thought was S.B. Police
arrested him when he arrived at the designated time and place.
found over 300 images of child pornography.
Defense Case
The defense
called only one witness, Clark Clipson, Ph.D., a forensic psychologist who
interviewed Cawkwell and Cawkwell's mother, and conducted neuropsychological
tests on him. Dr. Clipson testified he
did not believe Cawkwell has "any kind of paraphilia or other kind of
deviant sexual interest that would lead him to commit a sexual
offense." The psychological tests
showed that Cawkwell's motor functioning is intact and Cawkwell displayed no
significant psychopathology. But the
tests also showed Cawkwell has numerous difficulties in perceptive and
cognitive functioning, and overall difficulty focusing. Cawkwell's academic record reflected low
academic functioning as well. Cawkwell's
interpersonal social and adaptive skills are impaired. Due to the results of the tests and a
personal history that included head trauma and problems at birth, Dr. Clipson
claimed Cawkwell is "mildly mentally retarded" and possibly suffers
from either Asperger's disorder or dementia.
Dr. Clipson concluded Cawkwell was very unlikely to commit a sexual
offense in the future. Instead, Dr.
Clipson opined, Cawkwell's interests in a friendship with S.B. appeared to be
more on the level of a six-or seven-year-old boy's understanding of friendship.
On
cross-examination, Dr. Clipson conceded that whether someone is mentally or
developmentally impaired is irrelevant when determining if that person is
sexually deviant. Dr. Clipson said he
would change his opinion regarding Cawkwell's behavior if he had known that
police found over 300 images of child
pornography on Cawkwell's personal computer. He admitted Cawkwell's online behaviors could
be considered grooming. The court asked
Dr. Clipson, "So if Mr. Cawkwell had been, let's just assume hypothetically,
had been successful at the [recreation] center in walking off with [S.B.]
around the corner off somewhere where there weren't other people and actually
making out with her, which is what apparently he might have had in mind, would
that have been a sexual offense?"
Dr. Clipson replied, "I believe it would have been in that
context. You've got a guy that's much
older than her, yes."
After
considering the chat transcripts and trial testimony, the trial court concluded
that "[Cawkwell was] exhibiting much more sophisticated behavior than . .
. Dr. Clipson believes he [was] capable of." The court noted that since Cawkwell was
adamant about keeping the entire relationship with S.B. secret, Cawkwell knew his
conduct was wrong. The court inferred from the chats that
Cawkwell engaged in clear sophisticated grooming behavior when he told S.B.
that he would be gentle with her and not hurt her. He was not acting like an innocent
six-year-old boy, but had adult, sexual intentions. The court convicted Cawkwell, finding: "It was [Cawkwell's] intent, I believe
beyond a reasonable doubt, if [S.B.] had shown up at the [grocery store], to
touch her in a sexual manner if she had let him."
DISCUSSION
Cawkwell
contends there was insufficient evidence he had the requisite intent to commit
lewd acts with S.B. when he met her at the grocery store. Specifically, he argues his nonsexual
intention was shown by his statements in the chats such as, "just friends
is good" and "we could meet at [the grocery store] . . . go shopping
. . . pretend like [we're] shopping and talk to each other."
Cawkwell
also contends that all of his actions pertaining to his meeting with S.B. show
he did not attempt to commit the charged crimes. Cawkwell argues that since no evidence was found in his car
and he did not send S.B. any pornographic material over the Internet, there was
no evidence he had planned to commit lewd acts with S.B. when he met her at the
grocery store.
Standard of Review
In reviewing the sufficiency of the
evidence on appeal, " '[w]e examine the record to determine "whether
it shows evidence that is reasonable, credible and of solid value from which a
rational trier of fact could find the defendant guilty beyond a reasonable
doubt." ' " (People v.
Crabtree (2009) 169 Cal.App.4th
1293, 1321-1322 (Crabtree).)
Further, we presume " ' "the existence of every fact the trier
could reasonably deduce from the evidence." ' " (Ibid.) This standard applies whether direct or
circumstantial evidence is involved.
Although it is the fact finder's duty to acquit a defendant if it finds
the circumstantial evidence
susceptible of two reasonable interpretations, one of which suggests guilt the
other innocence, it is the trial court, not the appellate court, that must be
convinced of the defendant's guilt beyond a reasonable doubt. " ' "If the circumstances
reasonably justify the trier of fact's findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment." '
" (Ibid.) In evaluating
the sufficiency of the evidence, we are mindful that "it is the exclusive
province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination
depends." (People
v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Law Regarding Lewd/Sexual
Acts upon a Minor
A lewd act upon a child is "any
lewd or lascivious act . . . upon or with the body, or any part or member
thereof, of a child who is under the age of 14, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of [the
defendant] or the child." (§ 288,
subd. (a).) The action may be " 'any touching' of
an underage child . . . with the intent to sexually arouse either the defendant
or the child." (People v. Martinez (1995) 11 Cal.4th 434, 442.)
The crime may be based on conduct having " 'the outward
appearance of innocence.' " (Id.
at p. 444.) The controlling factor is
the defendant's intent when touching the minor, not the type of touching.
Additionally, "[e]very person
who contacts or communicates with a minor, or attempts to contact or
communicate with a minor, who knows or reasonably should know that the person
is a minor, with intent to commit an offense specified in Section . . . 288
. .
. involving the minor" has violated section 288.3, subdivision (a). (§ 288.3, subd. (a).)
Law Regarding Attempt
An attempt to commit a crime consists
of two elements, a specific intent to commit the crime and a direct but
ineffectual act done toward its commission. (People v. Gallardo (1953) 41 Cal.2d 57, 66, overruled on other
grounds by People v. Chapman (1959)
52 Cal.2d 95, 98.) Although merely
intending or planning to commit a crime does not constitute an attempt, slight
direct actions can be sufficient. "
'The preparation consists in devising or arranging the means or measures
necessary for the commission of the offense; the attempt is the direct movement
toward the commission after the preparations are made.' " (People
v. Superior Court (Decker) (2007)
41 Cal.4th 1, 8.) For an attempt, the
overt act must show that the defendant is putting his plan into action, but it
need not be the last proximate or ultimate step toward commission of the crime
or crimes (People v. Kipp (1998)
18 Cal.4th 349, 376) nor need it satisfy any element of the
crime. (People v. Dillon (1983) 34 Cal.3d 441, 454 (Dillon).) It is sufficient if it is the first or
some subsequent act directed toward that end after the preparations are
made. (People v. Memro (1985) 38 Cal.3d 658, 698 (Memro),
overruled on other grounds as stated in People v. Gaines (2009) 46
Cal.4th 172, 181, fn. 2.)
No clear marker divides preparatory
acts from those initiating the criminal act.
Nonetheless, " 'the more clearly the intent to commit the offense
is shown . . . "the more likely that steps in the early stages of the
commission of the crime will satisfy the overt act requirement" ' of an
attempt." (Crabtree, supra, 169 Cal.App.4th at p. 1322,
quoting Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 187-188.) In other words, whenever the intent to commit
a crime is clearly shown, slight acts in furtherance of that crime will
constitute an attempt. (
at p. 698.)
" '
"Applying criminal culpability to acts directly moving toward commission
of crime . . . is an obvious safeguard to society because it makes it unnecessary
for police to wait before intervening until the actor has done the substantive
evil sought to be prevented. It
allows such criminal conduct to be stopped or intercepted when it becomes
clear what the actor's intention is and when the acts done show that the
perpetrator is actually putting his plan into action." ' " (People v. Herman (2002) 97 Cal.App.4th
1369, 1389.)
Sufficient
Evidence Supports Cawkwell's Convictions
The evidence shows that Cawkwell set
up a fake profile on a website aimed at children and chatted with 11-year-old
S.B. He told her he wanted to be her
boyfriend as well as her friend. His
definition of a boyfriend/girlfriend relationship included hugging, kissing,
holding each other, and "making out."
He initiated a
meeting with S.B. that failed when S.B. became scared and ran away. At that time, police questioned
Cawkwell. This intervention put Cawkwell
on notice that his attempt to befriend S.B. was at least inappropriate. Nonetheless, his inadequate response to
S.B.'s running from him and police involvement was to tell S.B. he didn't want
those events repeated. He was
undeterred, reinitiated online contact with someone he believed was S.B., repeatedly
brought up kissing and other lewd acts, and planned a second meeting.
Although he also wrote they were not going to do anything sexual the
first time they met, it is reasonable to infer from Cawkwell's chat comments,
as the trial court did, that his seemingly innocent statements were not
that of a seven-year-old child, but rather served as a sophisticated grooming tactic to entice
S.B. to meet with him. We conclude
Cawkwell's intention was to befriend S.B. and commit lewd acts on her.
Further, Cawkwell's actions were
more than preparatory. The court noted
that Cawkwell's intention at the first meeting may have been merely to meet
S.B. and determine what her reaction to him was. But the second meeting was much different
because Cawkwell risked another police encounter by continuing to pursue S.B.
online. The sexual content of the
subsequent online discussions made Cawkwell's intentions clear; therefore, only
a slight step was required to satisfy the overt act requirement of an
attempt. (Memro,
trial court rightly concluded, Cawkwell's arrival at the grocery store to meet
S.B. was that slight step and sufficed to support the convictions for attempt
to contact a minor to commit a sexual offense and lewd act, and attempt to
commit a lewd act.
Cawkwell attempts to distinguish his
case from Crabtree,
169 Cal.App.4th 1293 and Memro, supra, 38 Cal.3d 658, two cases that affirmed convictions for attempted lewd acts on minors. In
Crabtree, police
arrested the defendant who attempted to meet the child in a public place—a bus
station—after having sexually explicit online conversations with her. Police had found sexual paraphernalia in the
defendant's car. (Crabtree, supra, 169 Cal.App.4th at p. 1323.) The defendant appealed, contending he had not
planned to have sex with the child at the bus station where he was arrested;
therefore his arrival there constituted mere preparations. The court disagreed: "We find unpersuasive appellant's
position there was no attempt, because 'the events at the bus station were
still in the preparation stage.' "
(Crabtree,
Cawkwell contends
case he told S.B. nothing sexual would happen during their meeting, and he
brought nothing with him to the meeting.
We disagree. His failure to bring
items to the meeting is not dispositive, nor are his isolated statements taken
out of context. In Crabtree, the seemingly innocent act of showing up at the bus
station to meet the intended victim, though not itself a lewd act, was an overt
act in furtherance of the defendant's intended crime. So too here, Cawkwell's attempt to meet S.B.
at the grocery store was an overt act in furtherance of his plan to become
S.B.'s boyfriend and commit lewd acts on her.
The key point is that in both Crabtree
and this case the defendants' actions were direct but ineffectual steps toward
the completion of their plans.
In Memro, the defendant lured a youth upstairs to his bedroom, but the
youth refused to comply with the defendant's plans to engage in sex. The defendant was
found
guilty of attempted lewd conduct. On appeal, the court stated: "No specific 'plan' vis-a-vis [the
minor] had been formulated.
Nevertheless, the 'arrangement' of lights, pornographic materials and
other paraphernalia in appellant's apartment would suggest sufficient planning
to enable appellant to commit lewd conduct once a willing participant
came along." (Memro, supra, 38 Cal.3d at p. 699.)
Here, Cawkwell contends
meet S.B. in a private place. We again
disagree. An overt act beyond mere
preparation may occur in public or private, and may appear outwardly as
"innocent behavior." (Dillon, supra, 34 Cal.3d at p. 455.) Cawkwell's stated purpose for meeting
with S.B. was to develop a boyfriend-girlfriend relationship that includes holding
hands, kissing, and cuddling. Therefore
the meeting at the grocery store constituted "an immediate step in the
present execution of the criminal design," which is an attempted crime. (People
v. Jones (1999) 75 Cal.App.4th 616, 627.)
We note that Cawkwell's
request to meet S.B. in a public place does not mean he intended to keep her
there. We conclude that the apparently
innocent meeting between Cawkwell and S.B. in the grocery store was a direct
but ineffectual attempt to carry out his plan to commit a sexual offense and
lewd acts on a child.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
name="_ftn1" title="">[1] All statutory references are to the
Penal Code unless otherwise stated.
name="_ftn2" title="">[2] The court found Cawkwell not guilty of
a charge under section 288.3, subdivision (a) that he contacted a minor with
intent to commit a sexual offense based on this incident.
