People v. McFarland CA3

Filed 11/18/15 P. v. McFarland CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C079287

Plaintiff and Respondent, (Super. Ct. No. 14F2419)

v.

DOUGLAS SCOTT MCFARLAND,

Defendant and Appellant.

A jury found defendant Douglas Scott McFarland guilty of, inter alia, eight counts of aggravated sexual assault, by means of sexual penetration, of a child under the age of 14. Defendant now challenges five of these sexual penetration convictions, claiming there was insufficient evidence to support all eight convictions. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The victim was born on July 13, 1997. When she was around two years old, she began living solely with her father, defendant. At that time, defendant began molesting the victim. While she was between the ages of two and four years old, defendant “rub[bed] [her] vagina” “multiple times.” When she was five or six, defendant began “putting his fingers inside of [the victim’s vagina].” Before defendant was arrested, the

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victim told City of Redding Police Investigator Elizabeth Harris that defendant “put his fingers inside of her vagina” “at least once a month, if not more.” At trial, the victim testified that she could not remember if defendant put his fingers inside of her vagina on more than two occasions. Most of the touching did not stop until she was around 13 years old. The prosecutor charged defendant with multiple counts of aggravated sexual assault of a child, by means of rape, oral copulation, and sexual penetration, and multiple counts of lewd or lascivious acts with a child under 14 years of age.1 At trial, defendant testified that the charges against him were “[b]asically true,” but he later recanted his admission, stating he “did not stick [his] penis [or his fingers] inside [the victim’s] vagina.” The jury found defendant guilty of all the crimes with which he was charged, and the court sentenced defendant to an aggregate prison term of 285 years to life. DISCUSSION Defendant concedes that the victim’s testimony that when she was five or six, he put his fingers into her vagina, but she could not remember if it occurred on more than two occasions, supported his conviction of two of the eight sexual penetration counts. Defendant also concedes that the victim’s testimony that when she was between four and six years old he put his fingers in her vagina supports his conviction of another of the eight counts. Thus, defendant contends the “evidence adduced at trial supports conviction on three counts [of sexual penetration], but not all eight.” We disagree. As an initial matter, defendant argues that the victim could not remember if defendant put his fingers inside her vagina on more than two occasions. This argument ignores the fact that there was evidence offered in the form of prior inconsistent