Opinion
No. 64418-1-I.
Filed: March 7, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-07608-0, Michael Hayden, J., entered November 4, 2009.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Spearman, JJ.
In this prosecution for three counts of child rape and one count of child molestation, Robert Rise contends the trial court abused its discretion in allowing the State to amend the information on the eve of trial. He also contends his counsel was ineffective for failing to argue that, under State v. Dolen, three of his convictions counted as one offense because the State failed to prove they were not the same criminal conduct. We conclude the amendment was well within the court's discretion, and though we question the reasoning in Dolen, we conclude it is distinguishable and that Rise has not overcome the presumption that he received effective assistance of counsel. Because these contentions and Rise's pro se arguments lack merit, we affirm.
83 Wn. App. 361, 921 P.2d 590 (1996), review denied, 131 Wn.2d 1006 (1997).
FACTS
Based on allegations that Rise molested and raped J.P. over a period of years, the State charged him with two counts of second degree rape of a child, one count of third degree rape of a child, and one count of second degree child molestation.
At trial, J.P. testified that he had been friends with Rise's son since the first grade. Over time, Rise became a father figure to J.P. and allowed him to stay at Rise's residence on weekends and holidays. J.P. slept on the couch or in the master bedroom with Rise and showered in the master bathroom.
When J.P. was 11 or 12, Rise started regularly showering with him and washing his genital area. This went on for several months.
One day, as J.P. was sitting in the shower, Rise washed him and then put J.P.'s mouth on his penis. Over the next several years, Rise regularly put his mouth on J.P.'s penis when they were in the shower. The shower incidents occurred nearly every day and stopped after J.P. turned 14.
J.P. also recalled an incident in Rise's bed when he was 12 or 13. On that occasion, Rise rubbed his penis and put it in his mouth.
Rise testified and denied having sexual contact with J.P. He admitted that J.P. slept in his bed on occasion. He also admitted taking a cold shower with J.P. when he had a fever, but alleged he was wearing swim trunks and J.P. was wearing boxer shorts. He denied taking any other showers with J.P.
The jury instructions included two counts of second degree child rape and one count of child molestation occurring between September 7, 2003 and September 6, 2005, and one count of third degree child rape occurring between September 7, 2005 and June 30, 2006. Each "to convict" instruction required the jury to base its verdict on "an act separate and distinct" from the acts charged in the other counts.
During closing arguments, the prosecutor told the jury that the instructions required them to "unanimously agree that the defendant had sexual contact or sexual intercourse with [J.P.] on one separate occasion." (Emphasis added.) She then encouraged the jury to rely on any of the occasions of molestation preceding the first occasion of rape in deciding the molestation count. As to the rape counts, she encouraged the jury to rely on separate acts of oral sex in either the shower or the bed.
Defense counsel argued that J.P. was not credible and that his testimony was implausible. The jury convicted Rise as charged.
DECISION
Rise first contends the trial court abused its discretion in allowing the State to amend the information on the eve of trial to add one count of child molestation. Under CrR 2.1(d), a court may permit amendment anytime before the verdict if the defendant's substantial rights are not prejudiced. When, as in this case, an information is amended before the State rests its case in chief, the defendant must demonstrate prejudice under CrR 2.1(d). State v. Ziegler, 138 Wn. App. 804, 809, 158 P.3d 647 (2007). Prejudice exists if the amendment misled or surprised the defendant. State v. Brisebois, 39 Wn. App. 156, 163, 692 P.2d 842 (1984), review denied, 103 Wn.2d 1023 (1985). Failure to request a continuance suggests that the defense was not prejudiced. Ziegler, 138 Wn. App. at 810; State v. Schaffer, 63 Wn. App. 761, 767, 822 P.2d 292 (1991) (failure to seek continuance raises presumption that there was no prejudice), aff'd, 120 Wn.2d 616, 845 P.2d 281 (1993). We review a decision allowing an amendment for abuse of discretion. Ziegler, 138 Wn. App. at 808.
Here, the amendment did not surprise or mislead the defense. The State provided notice of its intent to add a molestation charge over two weeks before trial, and the amendment was taken up prior to trial and prior to jury selection. While Rise contends the amendment affected his ability to prepare a defense, nothing in the record supports this claim. The new count involved the same charging period alleged in the two rape counts and was based on essentially the same facts. The fact that defense counsel did not request a continuance belies any claim of prejudice.
Rise also asserts that his "trial strategy and plea negotiations with the State would likely have been different had he known there would be the additional child molestation charge." Rise points to nothing in the record supporting this bald assertion. As we have noted, Rise did know about the State's intent to add the charge, had over two weeks to strategize and/or negotiate, and could have requested a continuance if he needed additional time to prepare a defense. The court was well within its discretion in allowing the amendment.
Rise next contends his trial counsel was ineffective for failing to argue that the molestation and second degree child rape convictions constituted the same criminal conduct. To establish ineffective assistance of counsel, Rise must demonstrate both deficient performance and resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We strongly presume that counsel's performance was effective. McFarland, 127 Wn.2d at 335.
Rise's ineffective assistance claim rests on Dolen, 83 Wn. App. 361. In that case, the State charged Dolen with one count of child rape and one count of child molestation occurring during the same charging period. The victim testified to six specific incidents, each of which involved multiple forms of sexual contact occurring continuously during a relatively brief period. The jury convicted Dolen as charged, but the jury instructions and verdicts did not indicate whether the convictions rested on acts occurring during a single incident or separate incidents. The trial court ruled that the convictions did not constitute the same criminal conduct and counted them separately. Division Two of this court reversed, stating:
if the jury convicted Dolen of both offenses for the same incident, the crimes encompassed the same criminal conduct. But the record does not tell us whether the jury convicted Dolen of committing the two offenses in a single incident or in separate incidents. At sentencing, the State has the burden of proving the defendant's criminal history by a preponderance of the evidence. RCW 9.94A.110; State v. Jones, 110 Wn.2d 74, 77, 750 P.2d 620 (1988). If the time an offense was committed affects the seriousness of the sentence, the State must prove the relevant time. State v. Gurrola, 69 Wn. App. 152, 158, 848 P.2d 199, review denied, 121 Wn.2d 1032 (1993).
Here, the State failed to prove that Dolen committed the crimes in separate incidents. Consequently, the trial court's finding that the two convictions did not constitute the same criminal conduct is unsupported. The trial court erred in treating each conviction as a prior offense in determining Dolen's offender scores and criminal sentences.
Dolen, 83 Wn. App. at 365. The Dolen court concluded that the incidents of molestation followed by intercourse involved the same criminal intent, i.e., sexual gratification, and that the molestation furthered the rapes. Dolen, 83 Wn. App. at 365.
Citing Dolen, Rise contends his counsel was ineffective for failing to argue at sentencing that the State had not carried its burden of demonstrating that the molestation and second degree rape counts were not the same criminal conduct.
We question the reasoning in Dolen. The State does have the burden of proving a defendant's criminal history, but its burden is simply to prove the existence and comparability of such criminal history by a preponderance of the evidence. State v. Ross, 152 Wn.2d 220, 230, 95 P.3d 1225 (2004); see RCW 9.94A.500(1) ("If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist."). We are aware of no authority, other than Dolen, requiring the State to bear the burden of proving that current offenses are not the same criminal conduct. In fact, such a requirement seems at odds with the statute specifying how current offenses are to be treated. RCW 9.94A.589(1)(a) provides in pertinent part:
Whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.
In essence, this statute provides that current offenses are "presumed to count separately unless the trial court finds that the current offenses encompass the same criminal conduct." State v. Lopez, 142 Wn. App. 341, 351, 174 P.3d 1216 (2007) (citing RCW 9.94A.589(1)(a)), review denied, 164 Wn.2d 1012 (2008); cf. In re Pers. Restraint of Markel, 154 Wn.2d 262, 274, 111 P.3d 249 (2005) (Under statutes relating to prior convictions, "a `same criminal conduct' finding is an exception to the default rule that all convictions must count separately."). It makes little sense to require the State to prove what the statute already presumes.
Dolen also states that "if the time an offense was committed affects the seriousness of the sentence, the State must prove the relevant time." Dolen, 83 Wn. App. at 365. The only case cited by Dolen in support of this proposition — Gurrola, 69 Wn. App. 152 — addresses a different issue and is not on point. In Gurrola, the charging periods for the sex offenses spanned a time during which the legislature raised the seriousness level of the offense from 10 to 11. Gurrola, 69 Wn. App. at 158. Because the State did not prove that the offenses occurred during the portion of the charging period occurring after the effective date of the new legislation, the appellate court held that the trial court violated the constitutional guarantee against ex post facto legislation by sentencing Gurrola on the higher seriousness level. Gurrola, 69 Wn. App. at 158-59.
The present case, by contrast, does not involve ex post facto legislation or the seriousness level of Rise's offenses. And while the Gurrola court treated the ex post facto issue before it as a sentencing matter implicating the State's burden of proving criminal history, our Supreme Court expressly rejected that characterization of the issue in State v. Parker, 132 Wn.2d 182, 192 n. 14, 937 P.2d 575 (1997) (For ex post facto purposes, when a crime was committed is a jury question, not a criminal history matter to be proved at sentencing.). Nothing in Gurrola or Dolen supports extension of Gurrola's ex post facto analysis to the same criminal conduct issues in this case and Dolen.
In the 14 years since Dolen was decided, it has not been cited in any published decision for the holdings we question here. The State, however, has not challenged Dolen in this case and has thus not presented us an opportunity to directly address its soundness as a precedent. For purposes of this case, we will simply say that we view Dolen as a case that at best is confined to its particular facts and record.
Against this backdrop, we conclude that Rise has not overcome the strong presumption of effective assistance of counsel. Given the evidence and arguments presented below, counsel could reasonably have concluded that Rise's case is unlike Dolen on its facts. First, unlike in Dolen, there was evidence of incidents in which Rise committed only molestation. Second, the prosecutor encouraged the jury to rely on those incidents for the molestation count. Third, the jury was instructed that each count had to be based on an act "separate and distinct" from the other counts, and the prosecutor summarized the instructions as requiring verdicts that were based on a "separate occasion." Fourth, the defense did not ask the jury to distinguish between the various criminal acts but instead argued that none of the acts were proven because J.P. was not credible. And finally, there were no incidents that involved more than one act of rape.
On this record, if the State had any burden to establish separate incidents at sentencing by a preponderance of the evidence, the trial court would likely have found that burden satisfied had counsel made an argument based on Dolen. Accordingly, we cannot say it was deficient performance for counsel to forego an argument under Dolen. And even if counsel had made the argument, there is no reasonable probability such an argument would have succeeded given the evidence and arguments in this case.
Rise raises several additional arguments in his statement of additional grounds for review. Arguments raised in a statement of additional grounds will not be considered if they fail to inform this court of the nature and occurrence of the alleged errors. RAP 10.10(c).
Rise contends the prosecutor committed misconduct in her opening statement and that the trial court did not give him "enough latitude to correct this to the jury." But the court allowed defense counsel to respond to and correct the prosecutor's statement in his opening statement. The court also invited a mistrial motion, but after conferring with Rise, defense counsel affirmatively chose to continue with the trial rather than to make a mistrial motion. Given the court's curative actions below and Rise's failure to suggest what more the court should have done, this contention provides no basis for relief.
Rise also contends the prosecutor committed misconduct when she "testified in her closing statements" to facts not supported by the evidence. But the defense did not object to these statements or to any of the other alleged misconduct in closing argument, and Rise makes no showing that any of the claimed misconduct was so flagrant and ill-intentioned as to be incurable. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). The prosecutor's statements were generally correct and proper. We see no probability that they affected the outcome of the trial.
Rise claims his counsel was ineffective for failing to call his son and an expert as witnesses and for doing an improper cross-examination. He does not show what the witnesses would have said had they testified at trial and he fails to identify the deficient cross-examination. Finally, he contends counsel failed "to disclose the possible maximum penalty prior to any possible negotiations, and kept me from fully understanding the direction I needed to go." This claim involves matters outside the record and is therefore not properly before us. McFarland, 127 Wn.2d at 335.
Rise argues that defense counsel should have offered his polygraph result. But polygraph evidence is inadmissible unless the parties stipulate to its use. State v. Justesen, 121 Wn. App. 83, 86, 86 P.3d 1259, review denied, 152 Wn.2d 1033 (2004).
Last, Rise contends "the State failed to establish a timeline to be able to separate the charges" and thus made it "impossible for the jury to be able to separate the different counts." We disagree. See State v. Hayes, 81 Wn. App. 425, 914 P.2d 788, review denied, 130 Wn.2d 1013 (1996). One charging period spanned the years between J.P.'s twelfth and fourteenth birthdays. The evidence established specific acts and groups of acts occurring when J.P. was 12 or 13. The testimony described distinct acts of molestation and oral sex, their frequency, and the temporal sequence in which they occurred. This was sufficient to support convictions for molestation and rape during the charging period. The second charging period covered the year when J.P. was 14. The evidence established that the incidents of oral sex occurring during the first charging period continued in the same location, in the same way, and with the same frequency after J.P.'s fourteenth birthday. This evidence was sufficient to support the conviction for rape during the second charging period.
Affirmed.
WE CONCUR: