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Dismissal of attempted child molestation charge reversed

The state Court of Appeals offered a split decision this week in its ruling involving a Bainbridge Island man who had two child molestation-related charges dismissed by Kitsap County Superior Court in July 2008.

The court released a ruling Tuesday that supported the dismissal of a first-degree child molestation charge against Michael Joseph Gaffney, 45, who was accused of touching a 4-year-old girl on her leg in a bathroom at the Bainbridge Island Aquatic Center on March 26, 2008. However, the trial court’s dismissal of attempted child molestation was reversed and the case will be remanded to the Kitsap County Prosecutor’s Office for further proceedings.

The defendant has 30 days to seek discretionary review from the State Supreme Court.

“We haven’t revisited the issue of bail yet,” said Kitsap County Prosecutor Russell Hauge, “but it is unlikely he will be taken into custody.”

Gaffney was accused of following the girl into the bathroom while her mother waited in an adjacent lobby for her return. After a few minutes, the mother entered the bathroom and found Gaffney standing over her partially dressed daughter. She said the girl pointed to her thigh near the knee and said the man “touched me here,” at which time the mother shouted at Gaffney, who ran from the facility. He was arrested by Bainbridge Police on April 1, 2008.

According to a Court of Appeals statement: “...Gaffney admitted (to police)... he removed her bathing suit but denied touching her inappropriately or offering her assistance using the restroom.”

Besides the mother’s statement, an acquaintance of Gaffney told police that Gaffney said he followed the girl into the bathroom and molested her but ran out when her mother entered.

After a child hearsay hearing, the parties involved and the trial court agreed that the girl was too young to testify. The court also found the mother’s statements inadmissible, which led to dismissal of both charges.

The Court of Appeals stated in its opinion: “We agree with the trial court that the evidence is insufficient to prove every element of first-degree child molestation because under the circumstances, evidence of Gaffney’s inappropriate touch of (the girl’s) thigh amounted to a substantial step toward sexual contact, rather than the completed act.”

However, citing the defendant’s confession and the mother’s statement, the court ruled, “...he is not entitled to a judgment in his favor as a matter of law for the charge of attempted child molestation.”

A phone call to Gaffney’s attorney was not returned.

State Appeals Court Decision

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