Opinion
41179-2-II
02-07-2012
STATE OF WASHINGTON, Respondent, v. ZACHARY VERNIE SCOTT COLLINS, Appellant.
UNPUBLISHED OPINION
Armstrong, J
Zachary Vernie Scott Collins appeals his convictions of first degree rape of a child and first degree child molestation and his resulting sentences, arguing that reversal is required because (1) the trial court failed to enter written findings and conclusions following a suppression hearing and failed to suppress the recording of a telephone conversation in which he confessed, (2) the prosecutor committed misconduct by vouching for a witness during closing argument, (3) his dual convictions violate his double jeopardy rights, (4) his convictions should count as one under the same criminal conduct rule, and (5) the evidence is insufficient to support his convictions. We affirm.
Facts
In late May 2009, nine-year-old C.D.A. came to her mother, A.A., and said she had something to tell her. C.D.A. told her mother that Collins, a family friend, had touched her inappropriately. A.A. was shocked and asked her cousin, K.W., to talk to C.D.A. C.D.A. told both women that Collins had touched her with his fingers and licked her "new-new, " meaning her vagina. I Report of Proceedings (RP) at 97-99. The next day, A.A. reported the disclosures to C.D.A.'s school counselor, who in turn reported them to law enforcement.
We use initials to identify C.D.A.'s relatives to provide anonymity.
Lisa Wahl, a nurse practitioner at a pediatric sexual assault clinic, examined and questioned C.D.A. about 10 days later. C.D.A. told Wahl that Collins had touched her breasts and vagina with his hand and tongue and had told her not to tell, saying he would go to jail if she did. The results of the physical examination were normal.
C.D.A. repeated her allegations to Detective Chris Ivanovich. He then applied for and received an intercept order authorizing him to tape a telephone conversation between A.A. and Collins. In late June, Detective Ivanovich intercepted and recorded a conversation in which Collins confessed to touching C.D.A. with his hands and tongue.
The State charged Collins with first degree child molestation and first degree rape of a child. After a child hearsay hearing, the trial court ruled that C.D.A.'s hearsay statements were admissible. Collins then moved to suppress the transcript of his recorded telephone conversation, arguing that the application to intercept and record the conversation did not comply with the statutory requirement to set forth specific facts explaining why other investigative techniques were not considered or used. Even though the trial court had not received a copy of the e-mailed motion to suppress, the court reviewed the intercept order application and concluded that it satisfied the statutory requirements. More specifically, the trial court found that there was evidence from which it was reasonable to conclude that Collins would deny having sexual contact with C.D.A. to protect himself from prosecution and that other investigative methods were unlikely to succeed.
The officer recites his training and history and gives opinions based upon that training and history. The detective recites that there is no other corroborative evidence that can be obtained at that time, and therefore that it is reasonable to conclude that there are no other investigative methods available to the police at the time that this application was made that would provide additional evidence to support the allegations of the child. . . . For those reasons I conclude that this is a sufficient statement and that the authorization is legal.I RP at 54. The trial court denied the motion to suppress and subsequently ruled that Collins's prior juvenile conviction for first degree child molestation was admissible under RCW 10.58.090.
RCW 10.58.090 allowed introduction of the defendant's prior sex offenses to show propensity in a sex offense prosecution. 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence, Rule 404(b) at 252 (2010). The Washington Supreme Court recently struck down this statute as unconstitutional. State v. Gresham, ___ P.3d ___, 2012 WL 19664 (Wash. 2012).
A.A. testified about C.D.A.'s allegations against Collins and said that he admitted them during their recorded telephone conversation. C.D.A. then testified that Collins had touched her private parts when she was eight years old. The touching occurred when Collins was spending the night at her home. C.D.A. awoke from a nightmare and went looking for her mother but encountered Collins instead. He touched her chest and front private part with his hands and also touched her front private part with his tongue.
K.W. testified that C.D.A. told her Collins touched her vaginal area with his hands, and Wahl testified that C.D.A. said Collins touched her vagina with his hands and his tongue. Detective Ivanovich also testified that C.D.A. had alleged Collins touched her breast and vaginal area with both his hands and tongue, and the detective disclosed Collins's 2003 conviction for first degree child molestation. During the detective's testimony, the State played the recording of the telephone conversation between A.A. and Collins. Collins testified on his own behalf and asserted that he had falsely confessed during his conversation with A.A.
During closing argument, the defense summarized the inconsistencies in C.D.A.'s statements about the allegations. On rebuttal, the prosecutor challenged that summary:
What inconsistencies? Well, do any of these claims negate [the] defendant's guilt? Well, the first one was that [C.D.A.] told the detective that he, this defendant, licked her breasts. She didn't tell her mom that. She didn't tell [K.W.] that. Well, did she tell anybody anything else that would make that improbable or inconsistent? She said that he touched me with his hand and with his tongue, right?
She's clearly very uncomfortable talking about the subjects. She didn't want to say the words. She showed me her hands when I asked her what he touched you with. And not all parts of the story fall out conveniently in order. That's the way of nature of the way people, as human beings, tell stories. At this time, this was a nine-year-old girl . . . recounting what she told people a year ago. She did a really good job. But you get to decide--
DEFENSE COUNSEL: Your honor, I'm going to object to her vouching for the credibility of the witness.
THE COURT: Overruled.
PROSECUTOR: Your Honor--
THE COURT: That's not improper.III RP at 416-17. The prosecutor then stated that the jury got to decide C.D.A.'s credibility.
The jury found Collins guilty as charged, and the trial court imposed concurrent standard range sentences. Collins appeals his convictions and offender scores.
ANALYSIS
I. Findings of Fact and Conclusions of Law under CrR 3.6
Collins argues initially that his convictions should be reversed because the trial court failed to enter written findings of fact and conclusions of law under CrR 3.6. Shortly after he filed his opening brief, the State submitted written findings and conclusions.
CrR 3.6(b) provides that at the conclusion of a suppression hearing, the trial court shall enter written findings of fact and conclusions of law. State v. Gaddy, 114 Wn.App. 702, 705, 60 P.3d 116 (2003), affirmed on other grounds, 152 Wn.2d 64, 93 P.3d 872 (2004). But we will not reverse a conviction for a tardy entry of these required findings unless the defendant can establish either that he was prejudiced by the delay or that the findings and conclusions were tailored to meet the issues in his appellate brief. Gaddy, 114 Wn.App. at 705; State v. Byrd, 83 Wn.App. 509, 512, 922 P.2d 168 (1996).
The written findings are as follows:
1.1 Detective Ivanovich of the Thurston County Sheriff's Office obtained a court order, pursuant to RCW 9.73.130(f), authorizing the Sheriff's Office to record a telephone conversation between the defendant and A.A., the mother of the victim.
1.2 In the application supporting the order authorizing the recording, Detective Ivanovitch [sic] recited his training and history. Based upon that training and history he concluded that no other corroborative evidence could be obtained at that time.
1.3 A conversation was recorded, during which the defendant made incriminating statements.Clerk's Papers (CP) at 113.
From those findings, the trial court concluded that there was evidence showing that it was reasonable to believe that Collins would deny having sexual contact with C.D.A. and that other investigative methods were unlikely to succeed.
Based on Detective Ivanovitch's [sic] assertion that no other evidence could be obtained at the time, it is reasonable to conclude that no other investigative methods available to the police at the time the application was made would provide additional evidence to support the allegations of the victim.CP at 114. As a result, the application was sufficient and the authorization to record was legal.
Collins has not filed a reply brief alleging that the tardy filing of these findings and conclusions prejudiced his ability to challenge the suppression ruling on appeal, and no prejudice is evident. The written findings and conclusions follow the trial court's oral ruling and do not appear to have been tailored to meet Collins's issues on appeal. Consequently, we decline to grant Collins relief because of the tardy entry of findings.
II. Admissibility of Recorded Telephone Conversation.
1. Adequacy of Appellate Record
Collins acknowledges that neither his motion to suppress nor the intercept application are part of the trial or appellate record. The trial court never received defense counsel's e-mailed motion, but the transcript of the suppression hearing shows that the court had a copy of the intercept application. Collins asserts that the hearing transcript is sufficient for appellate review but adds that we could order the motion and application to be made part of the appellate record under RAP 9.10 and 9.11. The State responds that it is the appellant's burden to perfect the record and that this issue is not properly before us because of the inadequate record. See State v. Vazquez, 66 Wn.App. 573, 583, 832 P.2d 883 (1992) (party seeking review has the burden of perfecting the record so that the reviewing court has before it all of the relevant evidence). We agree that Collins should have moved to supplement the record as soon as this omission became apparent, and we will not now remedy the situation. We will, however, consider this issue based on the record before us.
2. Application for Intercept Order
Collins complains that because the application to intercept and record his telephone conversation with A.A. contains only "boilerplate" justifications, the application does not set forth particular facts showing that other normal investigative techniques were tried, appear unlikely to succeed, or were too dangerous to employ, and thus does not satisfy the requirements of RCW 9.73.130(3)(f).
Washington's privacy act, chapter 9.73 RCW, prohibits the interception and recording of private communications and conversations without the consent of all parties. RCW 9.73.030(1)(a); State v. Constance, 154 Wn.App. 861, 877, 226 P.3d 231 (2010). Exceptions exist, however, and the police may intercept and record communications if one party consents, if there is probable cause to believe the nonconsenting party has committed a felony, and if a judge authorizes interception and recording. RCW 9.73.090(2); Constance, 154 Wn.App. at 878. Tape recordings obtained in violation of the state privacy act are inadmissible in state court proceedings. RCW 9.73.050; State v. Williams, 94 Wn.2d 531, 534, 617 P.2d 1012, 24 A.L.R. 4th 1191 (1980).
An application for court approval to intercept and record communications must satisfy the requirements of RCW 9.73.130. The application must contain a statement of the facts justifying interception and recording, including a statement of probable cause, detailed information concerning the offense, the need to intercept and record, and under subsection (3)(f),
[a] particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ[.]RCW 9.73.130; Constance, 154 Wn.App. at 878-79.
RCW 9.73.130(3)(f) requires "something less than a showing of absolute necessity to record to acquire or preserve evidence." State v. Platz, 33 Wn.App. 345, 349, 655 P.2d 710 (1982) (citing State v. Kichinko, 26 Wn.App. 304, 311, 613 P.2d 792 (1980)). In determining whether to authorize the interception and recording of communications, the judge "has considerable discretion to determine whether the statutory safeguards have been satisfied." State v. Johnson, 125 Wn.App. 443, 455, 105 P.3d 85 (2005) (citing State v. Cisneros, 63 Wn.App. 724, 728-29, 821 P.2d 1262 (1992)). The judge also must consider the nature of the crime and the inherent difficulties in proving it. Constance, 154 Wn.App. at 883. The reviewing court's role is not to review the application's sufficiency de novo, but to decide if the facts it contains are minimally adequate to support the determination made. State v. Manning, 81 Wn.App. 714, 718, 915 P.2d 1162 (1996).
Collins argues that the trial court relied on boilerplate statements alone in upholding the intercept application and points to the declaration in Manning that boilerplate is "antithetical" to the particularity requirement in RCW 9.73.130(3)(f). Manning, 81 Wn.App. at 720. Generalities may not fulfill the requirement for particularity. Manning, 81 Wn.App. at 721.
The applications in both Manning and Constance were adequate because they contained more than general boilerplate justifications. Constance, 154 Wn.App. at 882 (citing Manning, 81 Wn.App. at 721-22). In Manning, 81 Wn.App. at 721-22, the application stated that the defendant was the target of a previous inconclusive investigation, was known to be armed and dangerous, and that using an undercover officer without the protection of a transmitter would be unlikely to succeed because of the risk to the officer. The application in Constance explained that time was of the essence, that a previous attempt to question the defendant was unsuccessful, and that it was necessary to monitor the undercover officer for safety reasons. Constance, 154 Wn.App. at 883-84.
Although the factual support for the application here does not compare with that offered in Manning and Constance, the trial court referred to more than just boilerplate language in upholding the intercept order. There was evidence in the application from which the magistrate could conclude that it was reasonable to believe Collins would deny having sexual contact with C.D.A. to protect himself from criminal prosecution. The court also found evidence in the record supporting the conclusion that other investigative methods were unlikely to succeed, including the detective's recitation that there was no other corroborative evidence that could be obtained to support C.D.A.'s allegations. The court rejected the detective's assertion that having A.A. discuss the incident with Collins in person would expose her to physical danger, but it correctly observed that satisfaction of each element in RCW 9.73.130(3)(f) was not necessary to uphold the intercept application.
On the record before us, it does not appear that the trial court relied on boilerplate language alone. The facts are minimally adequate to support the intercept application, and we affirm the denial of Collins's motion to suppress his recorded conversation.
III. Prosecutorial Misconduct
Collins argues here that the prosecutor engaged in misconduct requiring reversal when she vouched for C.D.A. by asserting that the child "did a really good job" while testifying.
We review allegations of prosecutorial misconduct under an abuse of discretion standard. State v. Ish, 170 Wn.2d 189, 195, 241 P.3d 389 (2010). To prevail on such a claim, the defendant bears the burden of showing that the comments were improper and prejudicial. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). The trial judge generally is in the best position to determine whether the prosecutor's statements were improper. Ish, 170 Wn.2d at 195. And, even if a prosecutor's remarks are improper, they are not grounds for reversal if they were invited or provoked by defense counsel and made in reply to counsel's statements, unless they were so prejudicial that a curative instruction would have been ineffective. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Improper vouching occurs if the prosecutor expresses her personal belief as to the veracity of the witness. Ish, 170 Wn.2d at 196; State v. Horton, 116 Wn.App. 909, 921, 68 P.3d 1145 (2003). In reviewing a claim of improper vouching, we consider the entire argument. State v. Jackson, 150 Wn.App. 877, 884, 209 P.3d 553 (2009). Here, defense counsel spent a considerable amount of time discussing the inconsistencies in C.D.A.'s hearsay statements and testimony. The prosecutor began her rebuttal by addressing those alleged inconsistencies, and after observing that C.D.A. had testified about what she told people a year ago, added that "[s]he did a very good job." III RP at 417.
The trial court did not abuse its discretion in ruling that this comment was not improper. The prosecutor was asserting that by remembering and relating what she had told people a year earlier, C.D.A had done a very good job. In so asserting, the prosecutor was arguing an inference from the evidence as well as replying to defense counsel's closing argument. See State v. Ish, 150 Wn.App. 775, 786, 208 P.3d 1281 (2009) (while it is improper for a prosecutor to vouch for the credibility of a witness, no prejudicial error arises unless counsel unmistakenly expresses a personal opinion as opposed to arguing an inference from the evidence), affirmed, 170 Wn.2d 189 (2010).
But, even if the statement can be characterized as improper vouching, it cannot be characterized as prejudicial because there is no substantial likelihood that it affected the jury's verdict. C.D.A. made consistent statements about Collins's touching to several witnesses, and Collins confessed. There is no substantial likelihood that the prosecutor's rebuttal argument affected the jury's verdict.
IV. Double Jeopardy
Collins argues here that his dual convictions violate his double jeopardy rights because any child molestation he committed was incidental to, part of, or coexistent with the rape.
Double jeopardy claims are questions of law subject to de novo review and may be raised for the first time on appeal. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009); State v. Turner, 102 Wn.App. 202, 206, 6 P.3d 1226 (2000). The United States Constitution provides that a person may not be subject "for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Similarly, the Washington Constitution provides that a person may not be twice put in jeopardy for the same offense. Wash. Const. art. I, § 9. Both clauses prohibit multiple punishments for the same offense, but they do not prohibit separate punishment for different offenses. In re Pers. Restraint of Percer, 150 Wn.2d 41, 49, 75 P.3d 488 (2003); In re Pers. Restraint of Fletcher, 113 Wn.2d 42, 46-47, 776 P.2d 114 (1989).
To determine whether two convictions constitute double jeopardy, we first examine the statutory language to see if the applicable statutes expressly permit punishment for the same act or transaction. Hughes, 166 Wn.2d at 681. If the legislature has specifically authorized multiple punishments, there is no double jeopardy violation. In re Pers. Restraint of Burchfield, 111 Wn.App. 892, 895, 46 P.3d 840 (2002). If the statutes do not speak to multiple punishments for the same act, we turn to the "same evidence" test. Hughes, 166 Wn.2d at 681-82. Even if the two statutes pass that test, multiple convictions are not permissible if the legislature has clearly indicated its intent that the same conduct or transaction will not be punished under both statutes. Hughes, 166 Wn.2d at 682.
The State argues here that the first test is dispositive because the legislature has made it clear that multiple punishments for child rape and child molestation arising out of the same incident are permissible. Rape of a child in the first degree requires proof of sexual intercourse, which includes "any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another." CP at 34; RCW 9A.44.010(1)(c). First degree child molestation requires proof of sexual contact, or "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party." CP at 36; RCW 9A.44.010(2).
Washington courts have repeatedly construed the word "any" to mean "every" and "all." State v. Tili, 139 Wn.2d 107, 115, 985 P.2d 365 (1999). Accordingly, a defendant who penetrated his victim three times in approximately two minutes was properly convicted of three counts of rape because each penetration was a crime that the legislature intended to punish. Tili, 139 Wn. at 116-17, 119. As the Tili court explained,
One should not be allowed to take advantage of the fact that he has already committed one sexual assault on the victim and thereby be permitted to commit further assaults on the same person with no risk of further punishment for each assault committed.Tili, 139 Wn.2d at 117 (quoting Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462, 469 (1979)).
The State contends that by using "any" to define the key elements of both child rape and child molestation, the legislature intended that each crime be punished separately even if committed against the same victim within a short span of time.
But, even if such legislative intent is not apparent, the State argues further that the crimes of child molestation and child rape do not satisfy the "same evidence" test. To violate double jeopardy principles under this test, a defendant's two convictions must be identical in both fact and law. Percer, 150 Wn.2d at 50. If each offense includes an element not included in the other, and proof of one would not necessarily prove the other, the two crimes are not identical in law, and multiple convictions may stand. Percer, 150 Wn.2d at 50.
As the trial court instructed, child rape requires sexual intercourse, while child molestation requires sexual contact. Collins argues here that sexual intercourse and sexual contact are merely different degrees of touching and should not be regarded as different elements, but Washington law suggests otherwise. The Supreme Court recently differentiated between sexual contact and sexual intercourse in holding that child molestation is not a lesser included offense of child rape. State v. Lorenz, 152 Wn.2d 22, 34, 93 P.3d 133 (2004). Sexual contact requires proof of sexual gratification, and sexual intercourse does not. RCW 9A.44.010(1)(c), (2). Proof of one crime does not necessarily prove the other, and the crimes are not the same in fact or in law.
The presumption accorded to statutes by the first two double jeopardy tests may be overcome only by clear evidence of contrary legislative intent. State v. Calle, 125 Wn.2d 769, 780, 888 P.2d 155 (1995). Collins provides no such evidence. Rather, it would appear that as with sexual offenses involving adults, sexual offenses involving children should be prosecuted separately. We see no indication of legislative intent to protect an offender from separate punishments simply because he commits multiple assaults against the same child within a short period of time.
Collins also argues that application of the merger doctrine shows that his conduct should be punished as a single offense. Washington courts have already determined, however, that child molestation does not merge as a lesser included offense of rape of a child. Lorenz, 152 Wn.2d at 34; State v. Jones, 71 Wn.App. 798, 825-26, 863 P.2d 85 (1993). Collins's dual convictions neither merge nor constitute double jeopardy.
V. Same Criminal Conduct
Collins next contends that the trial court miscalculated his offender score by failing to conclude that his two current offenses counted as one under the same criminal conduct rule. See RCW 9.94A.589(1)(a) (offenses count as one under the same criminal conduct rule if they require the same criminal intent, are committed at the same time, and involve the same victim).
Because Collins did not raise this issue during sentencing, he has waived the ability to raise it on appeal. Although offender scores based on legal error may be challenged for the first time on appeal, those resulting from factual determinations and the exercise of discretion may not, and application of the same criminal conduct statute turns on factual and discretionary considerations. See State v. Wilson, 170 Wn.2d 682, 689, 244 P.3d 950 (2010) (noting that it had found waiver where defendant argued for the first time on appeal that two of his convictions constituted the same criminal conduct); State v. Nitsch, 100 Wn.App. 512, 523, 997 P.2d 1000 (2000) (application of same criminal conduct statute involves both factual determination and exercise of discretion). Collins has waived this issue. Jackson, 150 Wn.App. at 892.
VI. Sufficiency of the Evidence
Finally, Collins argues that the State provided insufficient evidence to prove either of his convictions. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533 (1992).
To prove that Collins committed first degree rape of a child, the State had to prove that he had sexual intercourse with C.D.A. when she was under 12 and at least 24 months younger than Collins. The court defined "sexual intercourse" as "sexual contact . . . involving the sex organs of one person and the mouth or anus of another." CP at 34. C.D.A. testified that Collins licked her vagina when she was 8 years old, and A.A., Wahl, and Detective Ivanovich testified that she repeated that allegation to them. Collins, who was 19 or 20 at the time of the alleged touching, admitted the oral/genital contact in his telephone conversation with A.A. This evidence is more than sufficient to support the rape conviction.
To prove that Collins committed first degree child molestation, the State had to prove that he had sexual contact with C.D.A. when she was less than 12 years old and at least 36 months younger than Collins. The court defined sexual contact to mean any touching of the sexual or intimate parts of a person done for the purpose of gratifying sexual desires of either party. C.D.A. testified that Collins touched her chest and vaginal area with his hands, and her mother, aunt, therapist, and Detective Ivanovich confirmed that she made similar allegations to them. Collins admitted touching C.D.A. and "mess[ing] around" with her for about five minutes. II RP at 317-18. When this evidence and the inferences therefrom are viewed in the light most favorable to the State, they are sufficient to support Collins's conviction for first degree child molestation.
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: Hunt, J. Johanson, J.