Opinion
No. 34912-4-II.
May 1, 2007.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 06-1-00047-4, F. Mark McCauley, J., entered May 15, 2006.
Affirmed by unpublished opinion per Hunt, J., concurred in by Armstrong and Penoyar, JJ.
Defendant Joseph Steen appeals his bench trial conviction for indecent exposure under RCW 9A.88.010. He argues that the terms "obscene" and "open and obscene exposure" in RCW 9A.88.010 are unconstitutionally vague and that the information was deficient because it failed to notify him that the State would seek an exceptional sentence. In a Statement of Additional Grounds (SAG), Steen argues on various grounds that his trial attorney deprived him of effective assistance of counsel. We affirm.
Steen does not appeal his conviction for possession of methamphetamine.
RAP 10.10.
FACTS
At 6 a.m. one morning, Diane Earl went to her window to smoke a cigarette. Through her window, she looked down into the vacant yard next to her apartment, where she clearly saw Joseph Steen, amply illuminated by a motion detector in the yard and lights from the nearby fire station. Steen looked up at Earl's window and, after making eye contact, removed his pants, fully exposed his genitalia, and began to masturbate. Earl left the window, picked up her cellular phone, and called the police to report Steen's actions and location. Returning to the window, Earl saw that Steen had moved to the side of a nearby garage, where he continued to manipulate his exposed genitals. Steen telephoned the police a second time, informing them of Steen's new location.
Based on Earl's information, the police located Steen and arrested him. During a search incident to Steen's arrest, the police found pornographic pictures, a tube of Vaseline, and a syringe. Later, the police searched Steen's hat and found a small amount of methamphetamine hidden in the brim.
Steen waived his right to a jury. At trial, Earl testified as described above. The arresting officers and a State crime laboratory technician testified about the methamphetamine recovered from Steen's hat. Lab tests on Steen's sweatpants produced no evidence of seminal fluid. Before Steen testified and without objection, the State offered into evidence his previous voyeurism conviction, arguing that this conviction demonstrated Steen's encounter with Earl could not have been a mistake.
Taking the stand in his own defense, Steen did not deny that he had been in front of Earl's home on the day in question. But he testified that he had been urinating, not masturbating, in the adjacent vacant lot.
Finding Earl more credible than Steen and that Steen had exposed himself for sexual gratification, the trial court found Steen guilty of both charges. The State asked the trial court to sentence Steen above the standard range for the indecent exposure conviction based on the trial court's finding of sexual motivation. The trial court sentenced Steen to 24 months confinement for the indecent exposure conviction and 18 months on the methamphetamine possession conviction, to be served concurrently, and the statutory maximum for community custody.
The standard range for indecent exposure is from 6 months plus one day to 18 months.
Steen appeals.
ANALYSIS I. Vagueness
Steen first argues that the RCW 9A.88.010 phrase "open and obscene exposure of his or her person" is unconstitutionally vague. We disagree.
A. Standard of Review
The due process clause of the Fourteenth Amendment requires that a criminal statute's terms must be sufficiently explicit to inform the public about the type of conduct that will result in criminal culpability under the statute. Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926). A statute is unconstitutionally vague if it forbids or requires the performance of an act "that men of common intelligence must necessarily guess at its meaning and differ as to its application. . . ." Connally, 269 U.S. at 391; State v. Carter, 89 Wn.2d 236, 239-40, 570 P.2d 1218 (1977).
But "[t]he fact that [the legislature] might, without difficulty, have chosen '[c]learer and more precise language' equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague." United States v. Powell, 423 U.S. 87, 94, 96 S. Ct. 316, 46 L. Ed. 2d 228 (1975). Instead, a statute will satisfy due process if it contains reasonable standards to guide the conduct in question. Powell, 423 U.S. at 94.
B. "Open and Obscene Exposure"
A person commits the crime of indecent exposure when "he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm" under RCW 9A.88.010(1). Steen argues that the statute's lack of a precise definition of "open and obscene exposure" renders RCW 9A.88.010 unconstitutional because reasonable people can differ in their opinions about what is and what is not obscene behavior. While Steen's general statement may be accurate, his appeal does not raise a First Amendment question; rather it is a challenge to a criminal statute.
"It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 42 L. Ed. 2d 706 (1975) (citation omitted). Therefore, we do not evaluate the term "obscene" in the abstract. Instead, the question before us is whether the terms of RCW 9A.88.010 are so vague so as to prevent reasonable people from understanding that public masturbation is an "open and obscene exposure [of the person] . . . likely to cause reasonable affront or alarm." While intelligent minds continue to analyze and to debate the definition of "obscenity," RCW 9A.88.010 is not vague in its proscription of exposed, public masturbation.
Moreover, in the context of another statute, the Washington Supreme Court has previously ruled that the phrase "indecent or obscene exposure of the person" is not unconstitutionally vague. State v. Galbreath, 69 Wn.2d 664, 668, 419 P.2d 800 (1966). Galbreath exposed himself in the presence of girls under the age of 15. The trial court convicted him under RCW 9.79.080(2), which proscribed "obscene exposure of his person." 69 Wn.2d at 665-66. The Court reasoned that, although the terms "indecent" and "obscene" can carry varying connotations in different contexts, there is no ambiguity when coupled with the phrase "exposure of the person." Galbreath, 69 Wn.2d at 668; accord State v. Roberts, 69 Wn.2d 921, 923-24, 421 P.2d 1014 (1996). Galbreath applies and controls here.
Steen attempts to distinguish Galbreath by arguing that the statute in that case involved indecent exposure to a child under the age of 15 and, thus, the same phrase was not vague with respect to determining what constitutes indecent behavior in front of a child. Although the victims in Galbreath were indeed younger, the Court specifically analyzed the language "indecent exposure of the person" and found that the statute provided sufficient ascertainable standards to people of common intelligence. 69 Wn.2d at 668. We do not find Steen's argument persuasive.
Steen's additional argument also fails — that society has changed so much since 1966, when the Court decided Galbreath, that the definitions of "obscene" and "indecent" have become too muddled. Contrary to Steen's assertion, it does not appear that society has ceased to view public masturbation as an act of indecent exposure of the person.
Accordingly, we hold that (1) the phrase "open and obscene exposure of his or her person" in RCW 9A.88.010 provides sufficient guidance such that the public need not guess that the statute prohibits masturbating exposed genitals in a public place, and (2) RCW 9A.88.010 is not unconstitutionally vague.
II. Sufficiency of Information
Steen next argues that the State's Amended Information was deficient because it failed to inform him that the State intended to seek a sentence above the standard range if it convicted him of indecent exposure. For the first time on appeal, he argues that RCW 9.94A.537(1) requires the Information to contain notice of the State's intent to seek an exceptional sentence. This argument fails.
A. Standard of Review
Generally, a charging document must contain "[a]ll essential elements of a crime," to give the defendant notice of the charges, thus allowing him to prepare a defense. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). But the standard of review depends on when the defendant challenges the charging document. Id. at 103. When, as here, the defendant challenges the charging document for the first time on appeal, we liberally construe the document in favor of validity. Id. at 105. This rule encourages defendants who recognize a charging defect to raise an objection when the defect can be cured by amendment. Id. at 103.
Under the liberal construction rule, "even if there is an apparently missing element, [if] it may be able to be fairly implied from language within the charging document," then the Court will uphold the charging document on appeal. Id. at 104. Thus, we look at the entire information to determine whether it contains the necessary allegations. Id. 104. The test is: "(1) [D]o the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Id. at 105-06.
B. No Deficiency for Failure to Assert Exceptional Sentence in Information
Steen is not asserting that the information lacked all essential elements of the crime. Rather, he contends that (1) the United States Constitution requires the charging document to inform the defendant of the State's recommendation for punishment if the State secures a conviction; and (2) the statute's plain language requires the information to include, not only the factual allegations of sexual motivation, but also express language that the State plans to seek an exceptional sentence upon conviction. Contrary to Steen's assertion, the statute's plain language contains no such requirement.
RCW 9.94A.537(1) provides:
At any time prior to trial or entry of the guilty plea if substantial rights of the defendant are not prejudiced, the state may give notice that it is seeking a sentence above the standard sentencing range. The notice shall state aggravating circumstances upon which the requested sentence will be based.
(Emphasis added.) Although the statute allows the State to give notice that it is seeking an exceptional sentence, such notice is not required under the statute's plain language. Instead, RCW 9.94A.537(1) requires the State to allege the "aggravating circumstances upon which the requested sentence will be based" only if the State elects to provide notice of its intent to seek an exceptional sentence. And even in that instance, the statute does not require that the charging information must be the vehicle for providing such notice.
See also State v. Pillatos, 159 Wn.2d 459, 479, 150 P.3d 1130 (2007), in which our Supreme Court appears to have reached the same conclusion but did not so hold because the issue was not ripe for review in that case:
Defendants assert, additionally, that they may not be subject to an exceptional sentence unless the aggravating factors are charged in the information. Laws of 2005, chapter 68, does not explicitly require such pleading of aggravators. Instead, it says that if the "substantial rights of the defendant" are not offended, notice of intent to seek an exceptional sentence may be given any time "prior to trial or the entry of a guilty plea." Laws of 2005, ch. 68, § 4(1).
Again, this issue is not ripe for review. We have already determined that Butters and Pillatos may not receive exceptional sentences for other reasons, as explained above. In the case of Metcalf, the information was amended three months before trial to add sexual motivation as an aggravating factor. For that reason, Metcalf argued that the pleading issue was "not germane" to his case. Resp't's Br. (Metcalf) at 5. As for Base, since he has not pleaded guilty or been to trial, the State may proceed under the provisions of the new statute, which provides that the State give notice of the aggravating circumstances upon which it relies.
Nonetheless, the italicized paragraph of the Amended Information below immediately follows the indecent exposure charging language, giving Steen specific notice of the aggravating circumstance it was alleging to support an exceptional sentence for Count I:
THE STATE does further allege that one of the purposes for which the defendant committed the crime of Indecent Exposure was for the purpose of his sexual gratification;
CONTRARY TO RCW 9.94A.030(39) , RCW 9.94A.535 (2)(f).
The Information's citation to subsection (39), which defines "risk assessment," appears to be a clerical error. Subsection (43) of RCW 9.94A.030 defines "sexual motivation." RCW 9.94A.030(43) defines "sexual motivation" as meaning "that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification."
The information's citation to subsection "2" also appears to be a clerical error — subsection "f", which contains the "sexual gratification" language, is in subsection "3" of RCW 9.94A.535. This statute lists as a "substantial and compelling reason justifying an exceptional sentence" that "[t]he current offense included a finding of sexual motivation pursuant to RCW 9.94A.835." RCW 9.94A.535(3)(f).
Clerk's Papers at 16 (emphasis added). This express citation to RCW 9.94A.535, the exceptional sentence statute, put Steen on notice of a potential exceptional sentence.
RCW 9.94A.535 provides that the trial court
may impose a sentence outside the standard sentence range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence. Facts supporting aggravated sentences, other than the fact of a prior conviction, shall be determined pursuant to the provisions of RCW 9.94A.537.
We reiterate, however, that nothing in RCW 9.94A.537(1) requires the State to notify a defendant at the time of filing an information that it will seek an exceptional sentence.
We hold that, contrary to Steen's allegations, there was no deficiency in the charging language of the information.
III. Ineffective Assistance of Counsel
In his SAG, Steen argues that his trial attorney denied him effective assistance of counsel for (1) raising Steen's prior convictions, (2) failing to offer into evidence that Steen's pants did not contain evidence of seminal fluid, and (3) failing to ask the trial judge to recuse himself based on his having presided over a previous case involving Steen as the defendant. These arguments fail.
Steen also asserts that the State repeatedly stated he had a prior conviction for indecent liberties. We find no such reference in the record.
A. Standard of Review
Steen must demonstrate that his counsel's representation was deficient and that the deficiency prejudiced the trial's outcome. State v. Hendrickson, 129 Wn.2d 61, 77-8, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Prejudice results where there is a reasonable probability that, but for counsel's deficient performance, the outcome would have differed. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
We presume that counsel provided competent and adequate representation, and we review performance in light of the entire record. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). Counsel's representation is deficient only if it falls below an objective standard of performance. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). But such is not the case here.
B. Effective Assistance
Steen fails to show that his attorney's performance was deficient. First, there is no evidence in the record that defense counsel referenced Steen's previous convictions; thus, there is no support for this assignment of error. Second, contrary to Steen's assertion, the record shows that defense counsel both noted during cross examination that there was no seminal fluid found on Steen's pants and strongly argued that point during closing. Finally, there is no discussion on the record about a reason or a need for the trial judge's recusal. Therefore, we do not further consider this argument.
Moreover, that this judge had presided over Steen's previous trial does not itself require the trial judge's recusal. See Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995).
Affirmed.
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:
Armstrong, P.J.
Penoyar, J.