Opinion
No. 55537-5-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for King County, No. 01-1-05850-5, Michael Hayden, J., entered December 30, 2004.
Affirmed by unpublished per curiam opinion.
Richard Dunn kidnapped, beat, and molested D.C., a six year old boy. When the police searched Dunn's personal computer, they found images of minors engaged in sexually explicit conduct. A jury convicted Dunn of first degree kidnapping, first degree child molestation, and six counts of possession of depictions of minors engaged in sexually explicit conduct. The trial court also submitted special verdict forms to the jury asking whether certain aggravating factors applied to justify an exceptional sentence. The jury found that Dunn committed the kidnapping with sexual motivation, acted with "deliberate cruelty," and that D.C. was a "particularly vulnerable" victim. The trial court ruled that each of these aggravating factors alone was sufficient to justify imposing an exceptional sentence of 360 months. Dunn argues that: (1) the court erred in admitting the images of minors engaged in sexually explicit conduct because the police found the images on his computer in violation of constitutional particularity and probable cause requirements for search warrants; (2) the trial court improperly denied his motion to sever the kidnapping and child molestation counts from the images of minors counts; (3) his right to compulsory process was violated because the physician who examined the victim did not testify; (4) his convictions for kidnapping with sexual motivation and child molestation violate double jeopardy; (5) the court did not have authority to order the jury to find the "deliberate cruelty" and "particularly vulnerable" victim aggravators; (6) those aggravators violate due process vagueness doctrine; (7) the "deliberate cruelty" aggravator inhered in the first degree kidnapping count because it was predicated on intent to inflict bodily injury; and (8) the 360 month exceptional sentence imposed by the trial court was clearly excessive. We hold that Dunn's arguments involving the guilt phase of his trial are without merit. Because the trial court could have based Dunn's exceptional sentence solely on the properly-found sexual motivation aggravator, we decline to reach his arguments about the other aggravating factors. Finally, we hold that a 360 month sentence for abducting and beating a six year old with sexual motivation is not clearly excessive. We affirm.
FACTS
On June 20, 2001, Dunn kidnapped a six year old boy named D.C. from his apartment complex in Kirkland, Washington. Dunn took D.C. to his apartment, tied him up, and hit him repeatedly with a belt. When D.C.'s mother realized he was missing, she called 911. The people who lived in the apartment below Dunn's saw a sketch of the suspected kidnapper on the news and reported their upstairs neighbor to the police. The police forced entry into Dunn's apartment and found D.C. alone in the master bedroom, on the bed, with his hands bound. D.C. did not report any sexual contact with Dunn, but investigators later found semen in D.C.'s underwear and on his perineum.
Everything Dunn owned or rented was in the name of his partner, Brandon Walcutt. Initially, the police believed Walcutt was the kidnapper because the apartment was in his name. The first warrant to search the apartment listed Walcutt as the primary suspect. But Walcutt had left Dunn in May, 2001, and was living in California. While investigating Walcutt, the police found out that Dunn fit the kidnapper's description. They apprehended Dunn on June 22, 2001.
Earlier that morning, police searched Dunn's apartment, using a warrant listing Walcutt as the primary suspect, and discovered that one of the computers in the second bedroom was still turned on. The warrant authorized the seizure of any computers or related equipment. They unplugged both computers and took them for further investigation. After Dunn's arrest, police got a second warrant listing Dunn as the primary suspect, which specifically provided for a search of the computers seized from his residence. During that second search, they found images of children engaged in sexually explicit conduct and obtained a third warrant to investigate those images. They discovered that his computer was used to download depictions of minors engaged in sexually explicit conduct immediately before he kidnapped D.C. and while the child was in his apartment, including an image entitled "Asian boys nude." D.C. is of Cambodian ancestry. DNA (deoxyribonucleic acid) evidence later linked Dunn to some of the blood found in the bathroom of the apartment and the semen found on D.C.
The State charged Dunn with first degree kidnapping in violation of RCW 9A.40.020(1)(c), first degree child molestation in violation of RCW 9A.44.083, and six counts of possession of depictions of minors engaged in sexually explicit conduct in violation of former RCW 9.68A.070. The State also alleged certain aggravating factors, namely that the kidnapping and child molestation involved deliberate cruelty and a particularly vulnerable victim and that Dunn committed the kidnapping and depictions of minors counts with sexual motivation under former RCW 9.94A.127. Dunn moved to sever the kidnapping and child molestation charges from the depictions of minors counts, but the court denied his motion. He did not renew this motion after the prosecution rested. He also moved to suppress the depictions of minors found on his computer, claiming that the search was improper, but the court denied that motion as well.
RCW 9.68A.070 was amended in 2006 to change the status of the offense from a class C felony to a class B felony. Laws of 2006, ch. 139, § 3.
See former RCW 9.94A.390(2)(a), (b), (f) (2001) recodified as RCW 9.94A.535(3)(a), (b), (f).
On November 8, 2004, a jury found Dunn guilty on all counts. After the jury reached its verdict, the court provided additional instructions on the aggravating factors. The jury found that the State had proven all of the aggravating factors beyond a reasonable doubt. The standard ranges for the kidnapping and child molestation counts were 149-198 months each. The range for the possession of depictions of minors engaged in sexually explicit conduct counts was 0-12 months. On December 28, 2004, the court imposed exceptional sentences of 360 months on the kidnapping and child molestation charges and exceptional sentences of 60 months on each count of depictions of minors. The court based these exceptional sentences on the aggravating factors found by the jury and ordered that they run concurrently. With respect to the first degree kidnapping count, the court explicitly stated that each of the aggravating factors, standing alone, justified the imposition of the 360 month exceptional sentence. Dunn appeals.
Former RCW 9.94A.310 (June 2001), recodified as 9.94A.510; former RCW 9.94A.320 (June 2001), recodified as RCW 9.94A.515.
DISCUSSION
I. Admission of Images Found on Dunn's Computer
The fourth amendment to the United States Constitution provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Article I, section 7 of the Washington Constitution also protects against invasion of a person's home or privacy "without authority of law." Although this language varies slightly from the fourth amendment, it does not require a different standard for challenging a search warrant. We review a challenge to a search warrant for abuse of discretion. We give great deference to the magistrate and resolve any doubts about whether there is probable cause in favor of the decision to issue the search warrant.
State v. Chenoweth, 127 Wn. App. 444, 461, 111 P.3d 1217 (2005), review granted, 156 Wn.2d 1031 (2006).
State v. Nordlund, 113 Wn. App. 171, 180, 53 P.3d 520 (2002) (citing State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995)), review denied, 149 Wn.2d 1005 (2003).
State v. Vickers, 148 Wn.2d 91, 108-09, 59 P.3d 58 (2002).
Dunn contends that the trial court should have suppressed the depictions of minors engaged in sexually explicit conduct found on his computer because the search warrants violated the Fourth Amendment's particularity requirement. We review whether a warrant meets the Fourth Amendment's particularity requirement de novo. "To satisfy the particularity requirement, the warrant must be sufficiently definite to allow the searching officer to identify the objects sought with reasonable certainty." The degree of specificity required depends on the circumstances and the nature of the crime under investigation.
State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992) (citing United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986)).
Nordlund, 113 Wn. App. at 180 (citing State v. Stenson, 132 Wn.2d 668, 691-92, 940 P.2d 1239 (1997), cert. denied sub nom. Stenson v. Washington, 523 U.S. 1008 (1998)).
Id.
Here, the police obtained three separate search warrants, each increasing in specificity, to allow them to search the sexually explicit images of children on Dunn's computer. The first warrant authorized a search of the apartment and the seizure of any computers found there. The second warrant authorized a search of the computers "for the purpose of recovering any evidence, including e-mails, instant messages, chat room records or other communications relevant to the abduction, kidnapping and assault of [D.C.] "The affidavit in support of the second warrant states that one of the computers in the apartment was still on when police found D.C., and they were uncertain about the identity of D.C.'s kidnapper because the apartment was in Walcutt's name and Dunn's post-arrest statements left open the possibility that Walcutt could have abducted D.C. The third warrant specifically allowed the computer investigator to search for "[e] vidence of the crimes of possession of depictions of a minor engaged in sexually explicit conduct, as defined in RCW 9.68A," after he inadvertently found images of children engaged in sexually explicit conduct in the recycle bin of Dunn's computer.
In State v. Perrone, the Washington Supreme Court stated that using statutory language in describing the materials sought will tend to satisfy the particularity requirement. The affidavit in support of the second warrant makes clear that searching the computers was necessary to find evidence identifying who was in the apartment at the time of the kidnapping. Initially, police conducted a limited search, looking for evidence of dominion and control of the apartment in which D.C. was held and molested. When the investigator accidentally found images of minors involved in sexual conduct, he immediately stopped the search and applied for a third warrant. At no time were police officers given the authority to conduct a broad, general search of Dunn's computers. We hold that Dunn's particularity challenge is without merit.
Dunn also argues that the two search warrants allowing the seizure and later search of his computers were invalid because there was no probable cause to believe evidence related to the kidnapping and assault of D.C. would be found on his computers. "'[P] robable cause requires a nexus between criminal activity and the item to be seized. . . .'" Dunn relies on State v. Nordlund where the Supreme Court held that the police lacked probable cause to search a defendant's computer for evidence relating to his assaults against two women outside of his home. There was no nexus in Nordland because the search was based solely on general statements that sex offenders tend to keep evidence of their crimes on their personal computers. This case is factually distinguishable from Nordlund. Here, the computers were found in the apartment where the crimes were committed. The computer containing the images Dunn seeks to suppress was turned on when police found D.C., implying that the kidnapper had used the computer during the commission of the crime. Finally, because the apartment lease was in Brandon Walcutt's name, the police also needed to find evidence establishing the identity of D.C.'s kidnapper. Based on these facts, we hold there was a sufficient nexus between the computers and the kidnapping and assault allegations to support the magistrate's probable cause determination.
Two cases Dunn relies on heavily apply additional scrutiny to the challenged search warrants based on First Amendment considerations inherent in the search for pornography. Nordlund, 113 Wn. App. at 182; Perrone, 119 Wn.2d at 547. But Dunn raises no First Amendment claims.
Nordlund, 113 Wn. App. at 183 (quoting State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)).
113 Wn. App. 171, 183-84, 53 P.3d 520 (2002), review denied, 149 Wn.2d 1005 (2003).
Id.
II. Motion to Sever
Dunn argues that the trial court erred in denying his pretrial motion to sever the counts of possession of depictions of minors involved in sexually explicit conduct from the kidnapping and child molestation counts. But he failed to renew his motion to sever after the State rested. Criminal Rule (CrR) 4.4(a)(2) clearly states that "[s] everance is waived by failure to renew the motion." We have held that failure to renew a severance motion precludes review of the issue on appeal. Because Dunn failed to renew his severance motion, we hold he waived his right to raise it on appeal.
State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998) (citing State v. Henderson, 48 Wn. App. 543, 551, 740 P.2d 329, review denied, 109 Wn.2d 1008 (1987)), review denied, 137 Wn.2d 1017 (1999).
III. Compulsory Process
The sixth amendment to the United States Constitution and article I, section 22, of the Washington State Constitution guarantee the right of compulsory process, meaning a criminal defendant can compel the attendance of witnesses favorable to his defense. But that right is limited to witnesses who are both "'relevant and material to the defense.'" And the defendant must attempt to call the witness at trial before he can argue that the court violated his right to compulsory process. In State v. Woody, the Washington Supreme Court held that a defendant cannot assert a compulsory process violation on appeal unless he can show that he made an effort to subpoena the witness or ask "the court for an order to detain the witness."
State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)).
State v. Smith, 101 Wn.2d 36, 41, 677 P.2d 100 (1984) (emphasis omitted) (quoting Washington, 388 U.S. at 23).
State v. Summers, 60 Wn.2d 702, 706, 375 P.2d 143 (1962).
73 Wn.2d 179, 182, 437 P.2d 167 (1968).
Dunn argues that his compulsory process rights were violated because the State chose not to call Dr. Jason Vargas, the doctor who examined D.C. and found that there was no physical evidence of sexual assault. Instead, the State presented Dr. Vargas' report and had another physician testify about its contents. Dunn claims his counsel told the court that he could not subpoena Dr. Vargas because he had left Washington and there was a $150 limit on funding for witness travel. This assertion is not supported by the record. The only conversation on the record about whether the defense would attempt to subpoena Dr. Vargas suggests that Dunn's counsel understood the process and would follow it:
MR. MARCHI: Your Honor, I can certainly attempt to contact Dr. Vargas and I will attempt to get a funding order in front of you. However, you're only limited to $150 of funding. So I will contact OPD [Office of the Public Defense] and follow up on Mr. Dunn's request.
THE COURT: It appears, Mr. Dunn, that your counsel knows the procedure for doing this. . . .
Because defense counsel apparently did not attempt to subpoena Dr. Vargas, we hold that Dunn cannot now raise a compulsory process challenge. In addition, the State's witness, Dr. Naomi Sugar, also testified that there was no physical evidence of sexual assault. Even if the court had refused to do whatever was necessary to bring Dr. Vargas to court to testify, there would have been no compulsory process violation because his testimony would have been cumulative and, therefore, not material.
See State v. Downing, 151 Wn.2d 265, 275-76, 87 P.3d 1169 (2004); see also State v. Mims, 9 Wn. App. 213, 220, 511 P.2d 1383 (1973).
IV. Double Jeopardy
The fifth amendment to the United States Constitution and article I, section 9 of the Washington Constitution prohibit double jeopardy, guaranteeing that no person will be punished twice for the same offense. Double jeopardy analysis is the same under both the federal and state constitutions. Multiple convictions for the same conduct do not necessarily violate double jeopardy prohibitions. We first look to the language of the pertinent statutes to determine whether the legislature intended to allow multiple punishments for criminal conduct that violates more than one statute. When we cannot discern legislative intent from the statutory language, we apply the Blockburger v. United States "same evidence" test to determine whether the two offenses, "as charged and proved, are the same in law and in fact." "If each offense requires proof of an element not required in the other, where proof of one does not necessarily prove the other, the offenses are not the same and multiple convictions are permitted."
State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995) (citing State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)).
State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995).
State v. Freeman, 153 Wn.2d 765, 777, 108 P.3d 753 (2005) (citing United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993)).
State v. Louis, 155 Wn.2d 563, 569, 120 P.3d 936 (2005).
284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Freeman, 153 Wn.2d at 776-77.
Louis, 155 Wn.2d at 569.
Dunn contends that his convictions for first degree kidnapping with sexual motivation and first degree child molestation constitute multiple punishments for the same offense and, therefore, violate the double jeopardy prohibition. Because the statutes are silent about legislative intent, we must look at the elements of each offense and apply the "same evidence" test. To prove kidnapping in the first degree with sexual motivation, the State had to show that Dunn intentionally abducted D.C. to inflict bodily injury on him for sexual gratification. In contrast, to prove first degree child molestation, the State needed to show that Dunn had sexual contact with a person under 12 years old and that he was more than 36 months older than the victim. Clearly, these crimes are not the same in law because they have very different elements and require different evidence.
RCW 9A.40.020(1)(c); former RCW 9.94A.127 (2001), recodified as 9.94A.835; former RCW 9.94A.030(38) (2001) (defining sexual motivation), recodified as RCW 9.94A.030(43).
Dunn argues that, despite their legal differences, the two offenses as proven were the same in fact. He attempts to analogize to Whalen v. United States. There, the United States Supreme Court held that imposing consecutive sentences for felony murder predicated on rape and a separate rape conviction violated double jeopardy because the prosecution had to prove all the elements of rape in order to prove both the rape and the felony murder charges. Dunn asserts that, as in Whalen, the State could not prove that he kidnapped D.C. with sexual motivation without first proving that he molested D.C. But unlike a felony murder conviction based on rape, a finding of sexual motivation is not predicated on a finding of sexual contact. Even if Dunn had not molested D.C., the jury could still have found that he abducted D.C. for the purpose of sexual gratification based on witnesses' testimony about his sexual interest in children and the numerous images of children involved in sexually explicit conduct found on his computer.
445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).
Id. at 693-94.
Dunn contends that the State cannot now argue that the jury could have found sexual motivation without finding him guilty of molesting D.C. because the prosecution failed to elect a particular act to support the sexual motivation allegation. He cites no authority to support this assertion, and we will not consider arguments that are unsupported by authority.
See RAP 10.3(a)(5); Hines v. Todd Pac. Shipyards Corp., 127 Wn. App. 356, 368, 112 P.3d 522 (2005).
There is a strong presumption that the legislature intended separate punishments for offenses that do not satisfy the "same evidence" test. Although one can overcome this presumption by presenting "clear evidence of contrary [legislative] intent," Dunn presents no such evidence here. Because Dunn's convictions for first degree kidnapping with sexual motivation and first degree child molestation do not satisfy the "same evidence" test, we hold there was no double jeopardy violation.
Calle, 125 Wn.2d at 780.
Id.
V. Exceptional Sentences
Dunn raises a variety of issues involving the trial court's imposition of exceptional sentences based on the jury's findings that his kidnapping and molestation of D.C. involved deliberate cruelty toward a particularly vulnerable victim. Specifically, he argues that the court did not have the authority to order the jury to find these aggravating facts before the legislature amended the Sentencing Reform Act of 1981 (SRA) to comply with the United States Supreme Court's holding, in Blakely v. Washington, that aggravating facts justifying an exceptional sentence must be determined beyond a reasonable doubt by a jury.
See former RCW 9.94A.390(2)(a), (b) (2001).
See Laws of 2005, ch. 68.
He also contends that the "deliberate cruelty" and "particularly vulnerable victim" aggravators violate due process vagueness doctrine and that the "deliberate cruelty" aggravator inhered in the first degree kidnapping count because it was predicated on intent to inflict bodily injury.
But Dunn acknowledges that the sexual motivation aggravating factor was properly submitted to and found by the jury. Even before Blakely, the legislature had established a procedure requiring that a jury find beyond a reasonable doubt that a crime was sexually motivated. We may uphold an exceptional sentence when, despite possible problems with some of the aggravating factors, the record shows the trial court would have imposed the same sentence based solely on a validly-found aggravating factor. Because the trial court explicitly stated that the sexual motivation factor alone was sufficient to justify imposing an exceptional sentence of 360 months on the first degree kidnapping count, we need not consider Dunn's arguments relating to the other aggravators.
Former RCW 9.94A.127(2) (2001), recodified as RCW 9.94A.835(2).
State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003).
Dunn also argues that, despite the written order stating that the exceptional sentence was justified by each of the aggravating factors standing alone, the court's oral ruling suggests that it would not have imposed the exceptional sentence solely on the basis of sexual motivation. This contention is without merit because we held that a court's oral ruling cannot be used to impeach its written statements. Mairs v. Dep't of Licensing, 70 Wn. App. 541, 545, 854 P.2d 665 (1993).
Dunn also argues that his 360 month exceptional sentence is "clearly excessive" under former RCW 9.94A.210(4). We review claims that an exceptional sentence is clearly excessive for abuse of discretion. "There is an abuse of discretion when, under the circumstances, no reasonable person would adopt the position taken by the trial court or it is based on untenable grounds." Trial courts are given wide discretion in determining exceptional sentences, and we have upheld an exceptional sentence more than four times the standard range where the circumstances warranted it. Here, Dunn's standard range sentence was 149-198 months based solely on his first degree kidnapping conviction. The trial court found that an exceptional sentence of 360 months was justified because Dunn kidnapped D.C. with sexual motivation. This is not a sentence that no reasonable person would have imposed.
Former RCW 9.94A.210(4) was in effect in June 2001, when Dunn committed his crime. It is recodified as RCW 9.94A.585(4).
State v. Ritchie, 126 Wn.2d 388, 392, 894 P.2d 1308 (1995) (citing State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986)).
State v. Ferguson, 142 Wn.2d 631, 651, 15 P.3d 1271 (2001) (citing Ritchie, 126 Wn.2d at 392-93).
State v. Souther, 100 Wn. App. 701, 722, 998 P.2d 350, review denied, 142 Wn.2d 1007 (2000).
Dunn also submitted a statement of additional grounds for review contending the trial court improperly denied his claim that police officers engaged in evidence tampering and improperly denied him access to a federal law library. Neither evidence nor case law supports these contentions.
Finding no prejudicial error or abuse of discretion by the trial court, we affirm.