Opinion
Nos. 26239-8-II, c/w 26242-8-II.
Filed: May 17, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Lewis County, No. 99-1-00137-5, Hon. Richard L. Brosey, July 27, 2000, Judgment or order under review.
Counsel for Appellant(s), Robert M. Quillian, Attorney At Law, 2633a Parkmont Lane SW, Olympia, WA 98502.
Counsel for Respondent(s), J. A. Toynbee, Lewis Co. Deputy Pros. Atty., M/S Pr001, 360 N.W. North St, Chehalis, WA 98532-1900.
Jacob Squibb was charged with multiple counts of child rape and child molestation under a charging document that initially alleged general time periods ranging from three months to as much as four years. The morning of trial, Squibb moved for dismissal, claiming that the broad dates in the information prevented him from arguing alibi (a defense he had not claimed until then). The judge denied Squibb's motion, and the jury found him guilty of all counts. Squibb appeals, claiming lack of specificity in the charging documents, and insufficient evidence and double jeopardy involving one count. Because Squibb waived his challenge to the charging document by failing to request a bill of particulars and because his other claims have no merit, we affirm.
FACTS
The victims in this case first came forward in late 1996, nearly three years after the last of the crimes initially alleged had stopped. Four of the victims were Squibb's cousins, one his neighbor. They claimed that from 1986 to 1994, Squibb had sexual contact with them in varying ways. During that period, Squibb was age 10 to 16, and his victims ranged in age between 5 and 14.
At the start of trial, the time span alleged among all counts was October 28, 1986, to December 31, 1994. At the close of the State's case, the counts encompassing the later dates were dropped, so Squibb's convictions encompass the years 1986 to 1992.
At least two years passed between the last of the crimes and the reporting, and the victims could give only general dates to the investigators. In early 1997, the sheriff's office referred the case to the prosecutor's office, which sent it back to the sheriff's office for more specific investigation into the dates at issue. The case was tried in May, 2000. The State originally charged Squibb under two different cause numbers, the first (99-1-0137-5) on February 16, 1999, and the second (99-1-00295-9) on April 1, 1999. The cases were later consolidated for a trial that was held on May 15, 2000.
The record before this court reflects no request for a bill of particulars, and the State declares that Squibb never requested one. At oral argument Squibb's counsel (who did not represent him below) stated that he did not believe a bill of particulars was requested below. The omnibus order notes only 'general denial' as Squibb's defense: he did not mention alibi or any affirmative defense.
The morning of trial, Squibb moved in the alternative for a continuance or dismissal, claiming insufficient specificity in the dates of the charging document and mentioning for the first time his plan to assert an alibi defense. His counsel explained I think actually the remedy . . . would be a continuance of the trial and the State to attempt to elicit better timing than what we have here.
It's kind of in the guise I guess of a bill of particulars. It's really not. We're not asking what crime is the underlying charge. We want more specific dates here so we can attempt to see — my client does have some alibis. He does have some defenses. We found one to one of the victims here time frame wise. It's not like he doesn't have them. It's just we simply can't find them under what we've been given.
Report of Proceedings (Vol. I) at 14.
After receiving an unsatisfactory explanation as to why the defendant did not timely request more specific dates, and after the State explained that further victim interviews would likely not yield more specific dates, the court denied the defendant's motion, explaining that Squibb should have requested a bill of particulars during the pendency of the trial.
At trial, the bulk of the evidence came from the victims' testimony (aside from some testimony from the victims' family corroborating various dates). Because the crimes had occurred from 6 to 14 years before trial, each victim testified to rather general dates of the various crimes, but sometimes tying them to other events, such as when the families' houses were being built as reference points. Trial Testimony of S.L.W. S.L.W. was a neighbor of the three families at the time of the crimes. She testified that the families were very close and spent a lot of time together.
S.L.W. testified about two specific occasions of sexual contact in which Squibb penetrated her vagina first with his fingers, then with his penis. She testified that one instance happened in the woods where the children had set up a fort. Specifically, her testimony regarding the first incident (supporting the two counts of rape) was as follows:
Q Do you remember which of those he did first? What did he do with regard to your vagina?
A He stuck his fingers in there.
Q What if anything else did he do after that?
A He took off his pants or pulled down his pants. He continued to do the same thing that he did with his finger.
Q With what part of his body?
A His penis.
Q Would you tell the jury what he did with his penis.
A He stuck it in my vagina.
Report of Proceedings (Vol. I) at 26.
And regarding the next time that it happened (supporting the third count), S.L.W. testified that
A The other occasion I can remember was almost the exact same thing.
Q Where did that occur?
A Out in the field.
Q Was there another fort?
A There was another fort. One of the forts — I don't remember which occasion. One of the forts was made out of lawn chairs, like you lay out in the sun with. The other one was made out of trees.
Q What happened on the second incident you remember?
A The same thing.
Q Did he touch you with parts of his body?
. . . .
A Yes, he did.
Q What parts of his body touched yours?
A His fingers and his penis.
Q In the same manner as before?
A Yes, he did.
Report of Proceedings (Vol. I) at 25-26 (objection omitted).
At the close of the State's case, Squibb moved for dismissal of various counts under cause number 99-1-00137-5, arguing that the dates did not conform to the victims' testimony. The court dismissed four counts (IV, V, VI, and VII). Squibb also moved to dismiss Count III of cause number 99-1-00295-9, claiming S.L.W.'s testimony supported only two — not three — counts of rape of a child. The court disagreed and denied this motion.
The jury convicted Squibb of all remaining 11 counts of rape of a child and child molestation. The judge imposed an exceptional sentence for Squibb's convictions under 99-1-00137-5 and sentenced him to 306 months. He appeals.
ANALYSIS Waiver of Challenge to Information
A defendant who fails to timely request a bill of particulars below is not entitled to challenge the information as vague on appeal. State v. Hayes, 81 Wn. App. 425, 440, 914 P.2d 788, review denied, 130 Wn.2d 1013 (1996) (citing State v. Noltie, 116 Wn.2d 831, 843-44, 809 P.2d 190 (1991)). Squibb's proper remedy was to seek a bill of particulars requesting more specific dates, and we will not now consider this claim. See State v. Russell, 69 Wn. App. 237, 248, 848 P.2d 743, review denied, 122 Wn.2d 1003 (1993) (declining to consider challenge on appeal that information lacked sufficient specificity to allow defendant to adequately prepare his defense against charge of homicide by abuse, as proper remedy was to seek a bill of particulars).
Additionally, Squibb did not assert an alibi defense until the morning of trial, when he moved for dismissal. The pretrial orders show that Squibb asserted only a general denial defense at the omnibus hearing. Squibb waived any challenge he might have had to the specificity of the charging document.
Sufficiency of the Evidence
Squibb claims the evidence supports his conviction of only two (not three) counts of child rape regarding S.L.W. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Hayes, 81 Wn. App. at 430 (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). We defer to the trier of fact in resolving conflicts in testimony, weighing evidence, and drawing reasonable inferences therefrom. Hayes, 81 Wn. App. at 430.
Viewed in the light most favorable to the prosecution, S.L.W.'s testimony established four instances of digital and penile penetration, supporting the three counts of rape. See S.L.W.'s testimony outlined above at pages 3-4.
Squibb argues that S.L.W.'s testimony established only two counts of rape: In both instances, S[.L.W.] testified that Squibb inserted both his fingers and his penis into her vagina. There was no testimony of evidence as to any significant time lapse between those two actions, and it seems safe to infer and conclude from S[.L.W.]'s testimony that the insertion of the fingers and the insertion of the penis occurred as part of a single act on the part of Squibb. Assuming that to be the case, logic dictates that there were but two acts of rape, not three and not four.
Br. of Appellant at 10.
The State correctly counters that, under State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999), each penetration — regardless of whether penile or digital — supports a separate rape conviction. For purposes of Squibb's challenge to the sufficiency of the evidence to support his convictions on three counts of rape of a child regarding S.L.W., the above excerpt from S.L.W.'s testimony clearly established two separate instances of first digital and then penile penetration. When viewed in the light most favorable to the prosecution, her testimony establishes four independent penetrations. As discussed more fully below, the unit of prosecution for rape of a child is sexual intercourse, defined as any (or each and every) penetration.
Therefore, specific evidence of four independent penetrations amply supports Squibb's conviction on three counts of rape of a child.
Squibb's argument about the lack of any evidence of 'any significant time lapse between [the digital and penile penetration]' in each of the two instances to which S.L.W. testified would ordinarily be relevant to a 'same criminal conduct' analysis; however, as Squibb acknowledges in his brief, his high offender score and exceptional sentence render such analysis moot. See Br. of Appellant at 11-12.
Double Jeopardy
Employing virtually the same argument as in the previous issue, Squibb challenges his three convictions of first degree rape of S.L.W. under the double jeopardy clause, claiming the two instances of first digital and then penile penetration constituted just one act of rape each. Squibb uses the wrong analysis in evaluating his double jeopardy claim. Instead of using the 'unit of prosecution' analysis, appropriate when a defendant is charged with violating a single statute multiple times (State v. Adel, 136 Wn.2d 629, 633-34, 965 P.2d 1072 (1998)), Squibb cites the 'same offense' analysis as explained in State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983). Squibb then argues that, applying this analysis to the instant case, 'there can be no serious argument that the rape charged in Count III is the same offense as was charged in either Count I or Count II' as '[t]he only difference . . . was the use of fingers as opposed to the penis.' Br. of Appellant at 11.
We note that what Squibb's counsel presented as a single act probably occurred as separate acts to S.L.W. From the digital penetration S.L.W. was not as vulnerable to contracting a sexually transmitted disease or to becoming pregnant. From the subsequent penile penetration, her vulnerability increased dramatically.
But when, as here, a defendant is convicted of violating a single statute multiple times and claims his convictions violate the double jeopardy clause, the proper inquiry is what unit of prosecution the legislature intended to be the punishable act under the statute charged. Adel, 136 Wn.2d at 634. Although 'unit of prosecution' cases are of constitutional dimension, they are resolved through statutory interpretation and legislative intent. In re Personal Restraint of Davis, 142 Wn.2d 165, 172, 12 P.3d 603 (2000).
Squibb challenges his three convictions of first degree rape of a child (specifically S.L.W.) under RCW 9A.44.073(1), which reads as follows:
A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.
While no cases have interpreted the proper unit of prosecution under the rape of a child statutes, Tili, 139 Wn.2d 107, addressed the proper unit of prosecution for first degree rape under RCW 9A.44.040. In that case, the defendant committed three acts of rape, involving digital penetration of the victim's vagina and anus and penile penetration of her vagina. Tili, 139 Wn.2d at 111. Tili was charged with three counts of first degree rape under former RCW 9A.44.040 (1983), which read in pertinent part as follows:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or
(b) Kidnaps the victim; or
(c) Inflicts serious physical injury; or
(d) Feloniously enters into the building or vehicle where the victim is situated.
Referring to the three degrees of rape, the Tili court held that the common element of the three is the act of sexual intercourse. 139 Wn.2d at 113-14. Hence, the court held that 'sexual intercourse' is the unit of prosecution for rape. Tili, 139 Wn.2d at 114. 'Sexual intercourse' involves 'any penetration, however slight.' RCW 9A.44.010(1) (emphasis added); Tili, 139 Wn.2d at 115. The Tili court explained that, while the word 'any' is not defined by the statute, 'Washington courts have repeatedly construed the word 'any' to mean 'every' and 'all'.' 139 Wn.2d at 115 (quoting State v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991)). Therefore, the defendant in Tili committed three independent acts of rape with each penetration. Tili, 139 Wn.2d at 117.
RCW 9A.44.040 (rape in the first degree), RCW 9A.44.050 (rape in the second degree), RCW 9A.44.060 (rape in the third degree).
The same is true for the child rape statutes, which also have the common element of sexual intercourse (the different degrees are determined by the age of the victim and the relative age of the perpetrator). See RCW 9A.44.073(1); RCW 9A.44.076(1); and RCW 9A.44.079(1). That element is the proper unit of prosecution for rape of a child. Therefore, every independent penetration completes an independent act of rape under the Tili analysis. For that reason, Squibb was not placed in double jeopardy for his prosecution and conviction of three counts of first degree rape of a child under the testimony S.L.W. presented.
For example, in first degree rape of a child, the victim is less than 12 years old, and the perpetrator is at least 24 months older than the victim. RCW 9A.44.073(1). In second degree rape of a child, the victim is between 12 and 14 years old, and the perpetrator is at least 36 months older than the victim. RCW 9A.44.076(1). In third degree child rape, the victim is between 14 and 16 years old, and the perpetrator is at least 48 months older than the victim. RCW 9A.44.079(1).
Costs on Appeal
The State requests an award of costs on appeal, including the cost of the reproduction of briefs, verbatim transcripts, clerk's papers, filing fee, and the State's statutory attorney fees. Because we affirm Squibb's conviction, the State is entitled to such an award as the substantially prevailing party under RAP 14.2. See also RCW 10.73.160. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: BRIDGEWATER, J., ARMSTRONG, J.