Opinion
No. 53329-1-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-02648-2. Judgment or order under review. Date filed: 10/31/2003. Judge signing: Hon. Harry J. McCarthy.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
M. O'Dell — Informational only (Appearing Pro Se), #623560 Anc-05, Mcneil Island Corr. Ctr., P.O. Box 881000, Steilacoom, WA 98388-1000.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Morris O'Dell was convicted and sentenced for third degree child molestation, attempted third degree child molestation, and 15 counts of communication with a minor for immoral purposes. Because the victim testified to multiple incidents but the trial court ruled that as a matter of law only one incident merited submission to the jury for child molestation, O'Dell argues that the jury could have convicted him based on one of the incidents dismissed by the court. But the prosecuting attorney elected during closing argument to rely on the incident not dismissed by the court; therefore we conclude that beyond a reasonable doubt the jury based its decision on an incident sufficiently supported by the evidence. We reject O'Dell's other arguments, and affirm.
I.
O'Dell's convictions arose out of allegations made by his 14-year-old stepdaughter. The victim testified to five separate incidents on which third degree child molestation or attempted child molestation charges could rest. She also testified to two incidents upon which two counts of communication with a minor for immoral purposes were based. Finally, the last 13 counts of communication with a minor for immoral purposes were based on 13 separate incidents of electronic mail (`email') he had sent to her.
During closing argument, the prosecuting attorney explained to the jury that:
Count I is about what happened in [the victim's] bedroom after the night that there's that garage conversation when her dad gave her alcohol. And [the victim] told you that after she left the garage that night, she went to bed and she woke up to find the defendant kissing her forehead and pulling his hands out of her pants, her underwear; she said that she felt his hand on her private area.
The prosecuting attorney next explained that:
In Count II, the defendant is charged with attempted child molestation in the third degree, and that was the day that [the victim] stayed home from school. . . . And [the victim] told you that that conversation was about licking, the defendant asked his daughter if she wanted to know what it was like to be licked, and he tried to put his hands down her pants, and she fought him off.
During deliberation, the jury asked two questions:
Please provide us with the date and description of the incident for the child molestation charge number one. Please provide us with the date and description of the incident for attempted child molestation charge number two.
After consulting with counsel, the court responded, `Please refer to the instructions, particularly instruction number seven.'
Ultimately, the jury convicted O'Dell on all 17 counts. The court sentenced O'Dell to 29 months for his count I felony conviction of child molestation in the third degree, 90 days for his count II misdemeanor conviction of attempted child molestation in the third degree, and 30 days each for counts III-XVII, communication with a minor for immoral purposes (misdemeanors). The court ordered all of the sentences to run consecutively.
The court found that O'Dell had earned 585 days of credit for time served in the King County jail. The court applied 45 days to the felony sentence and 540 days to the misdemeanor sentences.
II.
We review de novo the application of a statute. We also review de novo a challenge to the adequacy of a `to convict' instruction.
State v. Johnson, 96 Wn. App. 813, 816, 981 P.2d 25 (1999).
State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003).
"Criminal defendants in Washington have a right to a unanimous jury verdict." More specifically, `[i]n multiple acts cases where several acts are alleged, any one of which could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime.' Generally, to protect jury unanimity, either the State must elect the act upon which it will rely for conviction, or the `court [must] instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt.' But if a defendant is convicted in a multiple acts case where the prosecution did not elect the act upon which it relied for a conviction, and failed to support one of the acts with sufficient evidence for a conviction, the conviction must be reversed. A person commits `child molestation in the third degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.' ``Sexual contact' means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.'
State v. Kinchen, 92 Wn. App. 442, 451, 963 P.2d 928 (1998) (quoting State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994)).
State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d 190 (1991).
Noltie, 116 Wn.2d at 843.
See Kinchen, 92 Wn. App at 452 (where the court reversed a conviction because the State presented two separate acts, did not elect an act, and only supported one sufficiently for a conviction).
The State presented evidence of three incidents that it claimed could support a child molestation charge. The three incidents included an incident in the victim's bedroom, a tackling incident, and an incident in the parents' bedroom on a day the victim stayed home from school. The trial court ruled that sufficient evidence existed to support submission to the jury for only the incident in the victim's bedroom.
Because the court ruled that two of the incidents were not sufficiently supported by evidence to submit to the jury, O'Dell argues that his conviction for child molestation should be reversed. He makes a similar argument for the charge of attempted molestation. But even in multiple acts cases where at least one of the acts is not supported by sufficient evidence, jury unanimity still may be protected if the State, `in its discretion, elect[s] the act upon which it will rely for conviction.' During closing argument, the State elected the acts on which it relied, leaving no doubt that the jury's unanimous verdicts were based on incidents supported by the evidence.
State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
O'Dell argues that despite this election, the jury indicated its confusion during deliberations when it submitted two questions: `Please provide us with the date and description of the incident for the child molestation charge number one. Please provide us with the date and description of the incident for attempted child molestation charge number two.'
But the jury's questions may not be used as support for the idea that its members were confused when it arrived at the verdict. In State v. Ng, our Supreme Court explained that `[t]he individual or collective thought processes leading to a verdict `inhere in the verdict' and cannot be used to impeach a jury verdict.' The court further explained that a `jury's question does not create an inference that the entire jury was confused, or that any confusion was not clarified before a final verdict was reached.' Although the jury here asked a question that seemingly signals confusion as to which incidents the State elected, we cannot assume that the confusion was not cleared up during the remainder of deliberations.
110 Wn.2d 32, 750 P.2d 632 (1988).
Ng, 110 Wn.2d at 43.
Ng, 110 Wn.2d at 43.
O'Dell also argues that in State v. Refuerzo, this court called into question the effectiveness of the State making its election during closing argument. In Refuerzo, we noted that even if the State elected a defendant's flight from a bicycle officer over his flight from a marked police car as the basis for an eluding charge, the jury would not be precluded from relying on the flight from the police car for the finding of guilt. We noted that the trial court instructed the jury that the attorneys' remarks and arguments were not evidence and decided that because evidence supported the other incident, the jury could rely on it for a conviction.
102 Wn. App. 341, 7 P.3d 847 (2000).
Refuerzo, 102 Wn. App. at 345.
Refuerzo, 102 Wn. App. at 345.
But the facts in Refuerzo are easily distinguishable from the facts in O'Dell's case. The court in Refuerzo ultimately found that substantial evidence supported both incidents upon which the jury may have relied. Thus, unlike in Odell's case, Refuerzo did not involve multiple incidents where at least one of the incidents was not supported by sufficient evidence. Because the court found both incidents were supported by sufficient evidence, our commentary on the effectiveness of the prosecuting attorney's election was not dispositive and therefore, dicta. Moreover, even if our commentary in Refuerzo were not dicta, we would not read it as challenging the long-held belief that the State may `elect the act upon which it will rely for conviction.'
Refuerzo, 102 Wn. App. at 345-46.
Stikes Woods Neighborhood Ass'n v. City of Lacey, 124 Wn.2d 459, 463, 880 P.2d 25 (1994).
Petrich, 101 Wn.2d at 572.
Next, O'Dell argues that the trial court erred by failing to give him full credit for time served. O'Dell argues that the court failed to grant his constitutional and statutory right for credit for time served. The court applied 540 days to the misdemeanor sentences, but only 45 days to the felony sentence. O'Dell claims that all 585 days should have been applied to his felony sentence.
RCW 9.94A.505(6) states that `[t]he sentencing court shall give the offender credit for all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.' We focus our analysis of the statute on the word `solely.' In State v. Williams, we held that a trial court properly refused to award credit for time served on the defendant's felony conviction because the defendant was not detained solely on his felony charge, but was also detained because of the suspension of his parole. The Sentencing Reform Act of 1981 (SRA) applies only to felony sentences. Therefore, a court sentencing a defendant for a misdemeanor is not constrained by the SRA. For example, a sentencing court was allowed to run a defendant's sentence for a misdemeanor conviction consecutive to a sentence for a felony conviction without imposing an exceptional sentence despite former RCW 9.94A.400(1), which provided in pertinent part that `[c]onsecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.120 and RCW 9.94A.390(2)(f) or any other provision of RCW 9.94A.390.'
59 Wn. App. 379, 796 P.2d 1301 (1990).
Williams, 59 Wn. App. at 382-83.
Ch. 9.94A RCW.
RCW 9.94A.010; RCW 9.94A.505(1); State v. Langford, 67 Wn. App 572, 587, 837 P.2d 1037 (1992).
Langford, 67 Wn. App. at 587-88.
Former RCW 9.94A.400(1), recodified as RCW 9.94A.589 (Laws 2001, ch. 10, sec. 6).
Langford, 67 Wn. App. at 587 (quoting former RCW 9.94A.400(1)).
Because O'Dell was held on misdemeanor charges as well, he did not serve his presentence time solely because of his felony offense. Therefore, the sentencing court was not obligated under RCW 9.9A.505(6) to apply all of his credit for time served to his felony sentence.
O'Dell argues that in addition to the statutory requirement that he receive all his credit for time served, there is also a constitutional requirement. He is correct. Our Supreme Court has commented that `[e]ven without statutory authority for the allowance of such credit, it is constitutionally mandated.' We have noted that `[f]ailure to allow credit violates due process, equal protection, and the prohibition against multiple punishments.'
State v. Speaks, 119 Wn.2d 204, 206, 829 P.2d 1096 (1992).
State v. Cook, 37 Wn. App. 269, 271, 679 P.2d 413 (1984).
But unlike the defendants in the cases upon which O'Dell relies, he was not denied credit for time served. In State v. Cook, the trial court failed to credit the defendant with 12 days of detention. In Reanier v. Smith, the petitioners were not credited with time served. In State v. Phelan, defendant and petitioner were denied credit for time served against their discretionary minimum terms. O'Dell received his credit for time served. It was distributed among his consecutive sentences.
37 Wn. App. 269, 679 P.2d 413 (1984).
Cook, 37 Wn. App. at 270.
83 Wn.2d 342, 517 P.2d 949 (1974).
Reanier, 83 Wn.2d at 343-44.
100 Wn.2d 508, 671 P.2d 1212 (1983).
Phelan, 100 Wn.2d at 511.
Next, O'Dell argues that sexual gratification is an essential element of third degree child molestation and attempted third degree child molestation. Therefore, O'Dell argues that his convictions should be reversed because the trial court did not include sexual gratification as an element in the `to convict' instructions.
"[A] `to convict' instruction must contain all of the elements of the crime because it serves as a `yardstick' by which the jury measures the evidence to determine guilt or innocence." Moreover, a defective instruction is not cured by another instruction supplying the missing element.
State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003) (quoting State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997)).
DeRyke, 149 Wn.2d at 910 (citing Smith, 131 Wn.2d at 262-63).
RCW 9A.44.089 provides that a person commits `child molestation in the third degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.' In the `Definitions' section of Chapter 9A.44 RCW, `[s]exual contact' is defined as `any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.'
Recently, our Supreme Court in State v. Lorenz addressed the issue of whether sexual gratification needed to be included in the `to convict' instruction for first degree child molestation. The court held that if the Legislature had `intended a term to serve as an element of the crime, it would have placed `for the purposes of sexual gratification' in RCW 9A.44.083.' The court further explained that `[a] plain reading of the statute favors a holding that `sexual gratification' is not an essential element to the crime . . . but a definition clarifying the meaning of the essential element `sexual contact.'' Then the court held that `[o]n this basis, we hold that `sexual gratification' is not an essential element of first degree child molestation.' Because there is no difference pertinent to our analysis between the language in the first degree and third degree child molestation statutes, we follow the holding in Lorenz and conclude that the court did not omit any essential element from the `to convict' instructions.
152 Wn.2d 22, 93 P.3d 133 (2004).
Lorenz, 152 Wn.2d at 34.
Lorenz, 152 Wn.2d at 34-35.
Lorenz, 152 Wn.2d at 35.
Next, O'Dell argues that the trial court impermissibly limited his right to cross-examine the victim. O'Dell was not allowed to fully explore for the jury's benefit the full extent of the victim's misbehavior at home and at school, the reasons why he had restricted her behavior, or the extent to which she had been punished. He argues that these limits prevented the jury from learning the full extent of the victim's motive to lie.
But during cross-examination, the victim admitted she and the defendant did not get along. She conceded that he set the rules in the house and that his rules restricted her from doing what she wanted to do. She conceded that he did not allow her to see some of her friends. She admitted that they fought about the rules and that theirs was a `stormy relationship.' She even confessed that she lied to both parents to circumvent the rules and that she and her friends made up stories so she could go out. She stated that she lied to them five or six times a week. She also testified on direct reexamination that she had gained freedom as a result of alleging sexual abuse by the defendant. The victim also testified on redirect that she had served in-school suspension.
Although `[t]he cross-examination of a witness to elicit facts which tend to show bias, prejudice or interest is generally a matter of right, . . . the scope or extent of such cross-examination is within the discretion of the trial court.' But `[w]here a case stands or falls on the jury's belief or disbelief of essentially one witness, that witness' credibility or motive must be subject to close scrutiny.'
State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980).
Roberts, 25 Wn. App. at 834.
`[A]n error of constitutional magnitude is harmless only if the State can prove beyond a reasonable doubt that the jury would have reached the same result in the absence of the error.' Given the quantity and subject matter of the testimony by the victim conceding her difficulties with the defendant, his position of rule-making and enforcing, her record of lying, and her increased freedom as a result of removing the defendant from her life, we conclude that even if the court erred, it was harmless error. We conclude beyond a reasonable doubt that more evidence about why the victim had problems with the defendant would not have changed the result.
State v. Anderson, 112 Wn. App. 828, 837, 51 P.3d 179 (2002), rev. denied, 149 Wn.2d 1022 (2003).
Next, O'Dell argues that the trial court erred by dismissing his pro se motion to dismiss for violation of his right to a fair and speedy trial. He also argues that the court erred by denying him his right to a fair and speedy trial and due process of law because of ineffective assistance of counsel. Although the delay was long, approximately 15 months, the defendant presents no evidence that anyone other than the defense had moved for a continuance, albeit over O'Dell's objections. Moreover, O'Dell presents no evidence that the delay prejudiced his defense. Therefore, we conclude the trial court did not violate his right to a speedy trial or deny him due process.
See State v. Corrado, 94 Wn. App 228, 972 P.2d 515 (1999) (where the court determined that defendant's speedy trial rights had not been violated after applying a balancing test).
To prevail on an ineffective assistance of counsel claim, O'Dell must prove that his attorneys were `not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment' and that their errors were "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." But O'Dell cannot prove the second prong of the test, that `there is a reasonable probability the outcome of the proceeding would have been different.'
In re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Pirtle, 136 Wn.2d at 487.
Next, O'Dell argues that RCW 9.68A.090 was unconstitutionally vague or violated double jeopardy as applied to his case. When a defendant is convicted of violating one statute multiple times, `[t]he proper inquiry . . . is what `unit of prosecution' has the Legislature intended as the punishable act under the specific criminal statute.' Our Supreme Court has held that `[w]hen the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.' And `if the Legislature has failed to denote the unit of prosecution in a criminal statute, the United States Supreme Court has declared the ambiguity should be construed in favor of lenity.' A statute is unconstitutionally vague if either:
State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998).
Adel, 136 Wn.2d at 634.
Adel, 136 Wn.2d at 634-35.
`(1) . . . the [statute] does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) . . . the [statute] does not provide ascertainable standards of guilt to protect against arbitrary enforcement.'
State v. Wissing, 66 Wn. App. 745, 749, 833 P.2d 424 (1992) (quoting Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990)).
O'Dell argues that, under the second prong of the test, because the State could choose to charge him with one or fifteen counts, RCW 9.68A.090 does not `protect against arbitrary, erratic, and discriminatory enforcement.' In State v. Root, our Supreme Court explained that `[t]he first step in a `unit of prosecution' inquiry is to analyze the applicable criminal statute.' RCW 9.68A.090 provides in pertinent part that `[a] person who communicates with . . . a minor for immoral purposes, is guilty of a gross misdemeanor. . . .' Webster's Third New International Dictionary defines the verb transitive form of `communicate' as `2a: to make known: inform a person of: convey the knowledge or information of . . . b: impart, transmit . . . c: to make (itself) known — used of an intangible. . . .' But O'Dell relies on the third definition, `to send information or messages sometimes back and forth: speak, gesticulate, or write to another to convey information: interchange thoughts. . . .'
Wissing, 66 Wn. App. at 749.
141 Wn.2d 701, 9 P.3d 214 (2000).
Root, 141 Wn.2d at 706.
Webster's Third New International Dictionary 460 (1966).
Webster's Third New International Dictionary 460 (1966).
O'Dell argues that the statute's use of `communicate' does not make a single communication the correct unit of prosecution, or at least the statute is vague in that regard. Instead, O'Dell argues that the statute's use of `communicate' involves the interchange of thoughts or sending messages back and forth. In other words, the verb communicate may involve several communications.
But we do not read into the language of the statute a legislative intent to emphasize the exchange of ideas or an interchange of thoughts between the abuser and the victim. Certainly the crime of communicating with a minor for immoral purposes may be committed without a reply from the victim. We construe statutes `to effect their purpose and [avoid] unlikely, absurd or strained consequences. . . .' It would be absurd to interpret the statute as emphasizing an exchange of communication between the abuser and his victim.
State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990).
RCW 9.68A.090 is clear that a person who sends one email can violate the statute. Further emails can constitute additional acts of communicating with a minor for immoral purposes even if the underlying immoral purpose of all the emails is the same. Therefore, each email may be charged in separate counts.
Finally, O'Dell argues that the prosecuting attorney acted vindictively in an effort to inflame the passions and prejudices of the jury. A prosecuting attorney may not vindictively file "a more serious crime in retaliation for a defendant's lawful exercise of a procedural right." `But an initial charging decision does not freeze prosecutorial discretion.' There is no presumption of vindictiveness when a prosecutor amends the charges in a pretrial setting. Instead, the defendant bears the burden of proving either "(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness."
State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d 1222 (1998) (quoting State v. Lee, 69 Wn. App. 31, 35, 847 P.2d 25 (1993)).
Bonisisio, 92 Wn. App. at 790.
Bonisisio, 92 Wn. App. at 791.
Bonisisio, 92 Wn. App. at 791 (quoting U.S. v. Wall, 37 F.3d 1443, 1447 (10th Cir. 1994)).
O'Dell relies heavily on State v. Korum to make his argument. In Korum, the State `expressly threatened to file an amended 32-count information with 16 additional charges if Korum did not plead guilty and opted instead to go to trial.' The State even went so far as to formalize the threat in a fax. The court in Korum found a `realistic likelihood of vindictiveness' based on several facts, including that the State retaliated to Korum's withdrawal of his guilty plea by doubling the number of charges and increasing the sentence recommendation ten-fold and, `in so doing, the State distended the already stacked multiple kidnapping charges, one per victim, which should not have been filed under the facts here. . . .' But unlike the defendant in Korum, O'Dell does not present sufficient evidence to prove either actual vindictiveness, or a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness. O'Dell argues that the State's threat of charging a third-strike crime and the addition of 13 additional counts of communication with a minor for immoral purposes 13 months after he had been formally charged were evidence of the prosecutor's vindictiveness.
120 Wn. App. 686, 86 P.3d 166 (2004), rev. granted, 152 Wn.2d 1021 (2004).
Korum, 120 Wn. App. at 709.
Korum, 120 Wn. App. at 709.
Korum, 120 Wn. App. at 718.
But his assertions are not supported by proof. Although 13 months is a long time before finalizing the charges, the passage of time can hardly be held against the State because all continuances were at the request of the defense. Ultimately, the court set a deadline for the State to amend the charges and the State complied. Unlike the charges against Korum, the additional 13 counts of communicating with a minor for immoral purposes were not the result of improper stacking. O'Dell also offers no evidence like the fax in Korum that the State was retaliating for his decision to go to trial. Instead, O'Dell merely relies on unsupported assertions. O'Dell failed to meet his burden of proof and we conclude that the amended charges were not a product of vindictiveness.
AFFIRMED.
GROSSE and AGID, JJ., concur.