Opinion
No. 30132-6-II.
Filed: March 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No. 01-1-00497-0. Judgment or order under review. Date filed: 03/13/2003. Judge signing: Hon. Stephen M Warning.
Counsel for Appellant(s), Thomas A. Ladouceur, Attorney at Law, 100 E 13th St. Ste 113, Vancouver, WA 98660-3230.
Counsel for Respondent(s), A.O. Denny, Cowlitz County Prosecutors Office, 312 SW 1st Ave, Kelso, WA 98626-1739.
Raymond Rodriguez Harris appeals his convictions of three counts of first degree rape of a child and three counts of first degree child molestation. Through counsel, he argues that the prosecutor committed misconduct by suggesting in closing argument that Harris, who testified in his own defense, may have been motivated to lie in order to escape punishment. In a pro se Statement of Additional Grounds (SAG), Harris argues that (1) the State knowingly presented perjured testimony; and (2) the prosecutor committed misconduct by referring to him as a "monster" in closing argument. The State cross-appeals Harris's exceptional sentence downward.
RAP 10.10.
Harris also presents additional argument related to the issue raised by appellate counsel, see SAG at 1 (Additional Ground 1), we do not consider this argument separately.
We hold that the prosecutor's statement about Harris's possible motive to lie was not misconduct and that the record does not show that State knowingly presented perjured testimony or referred to Harris as a "monster." Accordingly, we affirm the conviction. We also conclude that the trial court improperly imposed the exceptional sentence downward and remand for resentencing.
FACTS I. Charge and First Trial
The State charged Harris by amended information with three counts of first degree rape of a child and three counts of first degree child molestation. Harris pleaded not guilty and the case went to a jury trial. Harris's first trial ended in a deadlocked jury.
II. Trial Testimony
At his second trial, the victim, her mother, and two deputies who had investigated the allegations testified for the State. Harris and his mother testified for the defense.
The victim testified (1) that when she was eight to ten years old, Harris, then her mother's boyfriend, lived with her family; (2) the alleged offenses occurred during that period; (3) Harris repeatedly forced her to perform oral sex, attempted to penetrate or had partially penetrated her vagina with his penis and other items, and had inappropriate sexual contact with her through clothing; and (4) Harris threatened to harm her mother and sister if she disclosed what he had done to her.
The victim did not report the abuse to her mother until several months after Harris had moved out of the family home. Although the victim's mother reported the abuse to Child Protective Services, it was several more months before she revealed that the abuser was Harris. Between the time the victim's mother reported the abuse and disclosed Harris's name, the victim, who was now 11 or 12 years old, revealed that she had recently had sexual intercourse with a 17 or 18-year-old male, Geno Giovinco.
The State's witnesses also testified about various statements the victim made during the investigation and the prior court proceedings, revealing numerous inconsistencies between her trial testimony and the prior statements. These inconsistencies included the number of alleged offenses, the victim originally alleged more than 50 to 75 incidents, and the details of the six charged offenses. The testimony also established that before reporting the abuse to her mother, the victim was exhibiting behavioral problems that included increased lying.
Harris attempted to impeach the victim's credibility by emphasizing that she had a reputation for lying and by suggesting that she had fabricated the allegations either because she resented Harris's discipline or because her mother was angry with Harris. Harris also emphasized that the victim had told the deputies that when she had sexual intercourse with Giovinco, it was painful and she bled, suggesting that because this event occurred well after Harris's alleged offenses, it proved Harris had not penetrated the victim's vagina.
Harris denied any inappropriate contact with the victim.
III. Closing Argument
In closing argument, the prosecutor discussed the victim's and Harris's credibilities:
Why can we believe [the victim]? She testified under oath. And because of that, she had an incentive to tell you the truth. This is in contrast to the defendant, who, while he may have understood the oath, had something to gain by not telling you the truth. Not telling the truth will help him escape conviction, here
What reason does this child have to not tell the truth here? Not only did she have, as a result of the oath, a reason to tell the truth, she has no incentive to lie. Does anyone think that this was fun for [the victim]? She had to [t]ell her mom, her grandmother, police officer about sexual contact that most of us would have trouble talking to any strangers about.
And before the trial she had to speak with a representative of the prosecutor's office, as well as the defense investigator and his lawyer about the same things. And then she had to come to court, in front of the man who did this to her and folks who were, in fact, strangers to her, and testify again about that, as well as endure the cross-examination of her assailant's attorney. She had a lot of fun in here, didn't she?
. . . .
There's no motive for her to lie about this. She gained nothing by this. She had to endure all these proceedings just to get this before you. Think about it in your own experience. Children lie to get themselves out of trouble, they don't lie to get others in trouble.
And she's not sophisticated enough to pull off a lie alleged by the defendant. Think of it, they want you to believe that she's so sophisticated that she could tell a lie believable to the police, to fool the CPS people, and to keep the story intact over many, many months, through the course of several interviews, including that of the defense investigator. You're asked to believe that she's not only a liar, but a darn good one.
Now, I know you've heard some other testimony in this case, and I want to talk about that, and that's primarily the testimony of the defendant that this didn't happen. What reasons are — does he have not to tell the truth? In a criminal case, there's one obvious reason and that is to escape punishment.
Report of Proceedings (RP) at 268-71.
Defense counsel objected to this last statement and, "ask[ed] [the] Court to instruct the jury at this time that they are not to consider the fact that Mr. Harris is the defendant as evidence in this case." RP at 271. The trial court responded: "Okay. The jury's already been instructed . . . that the charge is just that and isn't considered evidence. Go ahead." RP at 271.
The jury convicted Harris as charged.
Before sentencing, Harris moved for relief from judgment on several bases not at issue in this appeal. Although the trial court stated that it was surprised by the verdict, it denied the motion. Harris does not assign error to this ruling.
IV. Sentencing
Although Harris had no prior felony convictions, his offender score for each offense was 15 because of the tripling effect of RCW 9.94A.525(16) (formerly RCW 9.94A.360(16); see Laws of 2001, ch. 10 sec. 6). Based on an offender score of 15, the trial court calculated the standard range for each rape conviction as 240 to 318 months, and for each molestation conviction as 149 to 198 months.
RCW 9.94A.525(16) provides: "If the present conviction is for a sex offense, count priors as in subsections (7) through (15) of this section; however count three points for each adult and juvenile prior sex offense conviction." (Emphasis added.).
At sentencing, defense counsel requested an exceptional sentence downward based, in part, on Harris's deteriorating medical condition. Counsel also argued that the counts "overlap[ed]," that the charging document was vague, and that the court should treat the offenses as a single offense.
Although the trial court rejected defense counsel's request to consider the offenses as a single offense, the court's oral ruling suggests that it believed basing Harris's offender score on all six counts would result in an excessive sentence. Specifically, the trial court stated:
All right. Well, Mr. Harris, as I said before, I have to sentence based on the jury verdict. The underlying purpose of the sentencing guidelines [is] that people committing similar conduct be treated similarly.
Based on the initial statements of the victim in this case, the prosecutor quite — quite properly charged six specific incidents out of what she described as a myriad of somewhere in the neighborhood of 100. When we came to trial, the statement was that these six incidents were the only ones that had happened.
Based upon notions of addressing someone's conduct by charging — or sentencing them on crimes sufficient to accurately represent the conduct and based on prior history in this community, it is — it would not be ordinary, if you will, for someone to ultimately be sentenced on six counts, or six counts with a grand total of the conduct which occurred.
As I say, based on the initial statements, charging that was certainly quite proper.
I think under the circumstances, given that and to sentence Mr. Harris in accord with the conduct that actually occurred, it's more appropriate for me to treat this and to sentence within a range for acts that occurred more than once.
So, I'm looking at the guideline range for two counts of Rape of a Child in the First Degree which is 120 to 160 months, I'll sentence him to the middle of that range, 140 months on each of those three counts; and I'll sentence him to 80 months on each of the three counts of Child Molestation in the First Degree.
RP at 345-46.
The trial court later filed the following, somewhat contradictory, findings of fact and conclusions of law in support of the exceptional sentence downward:
I. FINDINGS OF FACT
The purpose of the Sentencing Reform Act is to impose similar sentences on persons who commit similar acts[.]
The child originally alleged 100 acts and the Prosecutor charged 6 events. At trial the child testified that only those 6 acts [plus 1 incident not previously disclosed] occurred. The State seeks to charge a defendant with counts and charges that fairly describe the behavior complained of. The [h]istory of charging in this County demonstrates that the State seldom charges every act complained of. The prosecution of the defendant for 6 acts of 6 alleged is disproportionate to others charged with sex offenses.
II. CONCLUSIONS OF LAW
The operation of the multiple offense policy results in a presumptive range sentence that is clearly excessive and disproportionate to other charging and prosecution decisions in this county.
There clearly exists mitigating circumstances based on multiple offense prosecution and scoring that result in an excessive and disproportionate sentence.
Clerk's Papers (CP) at 27.
Harris appeals the conviction; the State cross-appeals the exceptional sentence.
ANALYSIS I. Prosecutorial Misconduct A. Harris's Credibility
Harris contends that the prosecutor committed misconduct by suggesting in closing argument that Harris had a motive to lie in order to avoid punishment. Relying on State v. Johnson, 80 Wn. App. 337, 908 P.2d 900, review denied, 129 Wn.2d 1016 (1996), he argues that in making this argument, the prosecutor argued an "unfavorable inference" from Harris's exercise of his constitutional right to testify in his own defense. We disagree.
To obtain reversal on the basis of prosecutorial misconduct, Harris must establish (1) the impropriety of the prosecutor's comments and (2) their prejudicial effect. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). We review allegedly improper arguments in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the trial court's instructions. Russell, 125 Wn.2d at 85-86.
Although it is improper for a prosecutor to assert a personal opinion about a witness's credibility, State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984), "[t]he prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and express such inferences to the jury." State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998) (citations omitted). Prejudicial error does not occur unless it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion. State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996); State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983). Here, the prosecutor merely argued a logical inference from the fact that Harris was the defendant in this case: the prosecutor was not expressing his personal opinion about whether Harris was a liar.
Further, commenting on a defendant's interest in the case in the context of questioning the credibility of his testimony is different from commenting on exercise of his right to testify in his own defense. A prosecutor has the right to draw reasonable inferences from the evidence, including that a witness's testimony was not credible and that he had a motive to lie. State v. Adams, 76 Wn.2d 650, 660, 458 P.2d 558 (1969), rev. on other grounds, 403 U.S. 947 (1971). A defendant who chooses to testify places his credibility at issue. The prosecutor should be at liberty to impeach a testifying defendant's credibility in the same manner in which he could impeach any witness's credibility by drawing the jury's attention to the fact that the witness has an interest in the outcome of the case.
Nor does Harris's reliance on Johnson persuade us otherwise. Johnson has been impliedly overruled by Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). See State v. Miller, 110 Wn. App. 283, 285, 40 P.3d 692 (recognizing implied overruling), review denied, 147 Wn.2d 1011 (2002). In Portuondo, the United States Supreme Court addressed whether a prosecutor committed misconduct by pointing out that the defendant/witness had the advantage of hearing the other witnesses testify. The Court emphasized that a testifying defendant is not entitled to special consideration and that the prosecutor is, therefore, entitled to treat a testifying defendant as he would treat any other witness:
In sum, we see no reason to depart from the practice of treating testifying defendants the same as other witnesses. A witness's ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate — and indeed, given the inability to sequester the defendant, sometimes essential — to the central function of the trial, which is to discover the truth.
Portuondo, 529 U.S. at 73 (emphasis added).
Here, the case's resolution was dependant, almost entirely, on the jury's credibility determinations. By choosing to testify, Harris placed his credibility at issue; it was his status as a witness, not his exercise of his right to testify, that created this credibility issue. Once Harris chose to place his credibility at issue, the State properly attempted to impeach him by arguing that he had an interest in the outcome of the trial, as would have been proper with any other witness.
Because the prosecutor's comment was not improper, Harris fails to establish prosecutorial misconduct.
B. "Monster" Comment
In his SAG, petitioner argues that the prosecutor committed misconduct by referring to him as a "monster" during both the first and second trials. SAG at 2 (Additional Ground 3). But our review of the record of the second trial, the only record before us, does not reveal that the prosecutor made this specific reference at any time. Whether the prosecutor made this reference during the first trial is irrelevant. Accordingly, this argument fails.
II. Presentation of Perjured Testimony
Also in his SAG, petitioner appears to argue that the State presented testimony it knew was false. He contends that because the victim's allegations changed over time, her testimony was obviously false. SAG at 2 (Additional Ground 2).
There is nothing in the record showing that the prosecutor knew at any time that the victim would, or did, testify falsely at trial. That the victim may have previously made statements inconsistent with her trial testimony relates to her credibility; it does not necessarily establish that the prosecutor knew the victim would present false evidence.
The jury heard abundant testimony about the victim's inconsistent statements. It obviously chose to believe the victim's trial testimony despite these inconsistencies; and we do not question that determination on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
III. Cross Appeal: Exceptional Sentence
The State cross-appeals Harris's exceptional sentence, arguing that the reasons for the downward deviation are not supported by fact or law. We will reverse an exceptional sentence below the standard range if (1) the sentencing court's reasons for the exceptional sentence are not supported by the record; (2) the reasons relied on by the court do not justify an exceptional sentence for the relevant offense; or (3) the sentence imposed was clearly too lenient. State v. Moore, 73 Wn. App. 789, 794, 871 P.2d 642 (1994).
Under the Sentencing Reform Act of 1981, a trial court must impose a sentence within the standard range unless it finds "substantial and compelling" reasons to justify a departure. State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991). One mitigating factor the trial court may consider in deciding whether to impose an exceptional sentence downward is whether "[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010." RCW 9.94A.535(1)(g). Although we find the trial court's oral and written rulings to be somewhat obscure, it appears that the trial court found that the presumptive sentence was excessive due to the operation of the multiple offense policy.
RCW 9.94A.589(1)(a) provides in part:
Except as provided in (b) or (c) of this subsection, 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.
Formerly 9.94A.390(1)(g); see Laws of 2001, ch. 10 sec. 6.
"[A] presumptive sentence calculated in accord with the multiple offense policy is clearly excessive if the difference between the effects of the first criminal act and the cumulative effects of the subsequent criminal acts is nonexistent, trivial or trifling." State v. Hortman, 76 Wn. App. 454, 463-64, 886 P.2d 234 (1994) (citing State v. Sanchez, 69 Wn. App. 255, 848 P.2d 208, review denied, 122 W.2d 1007 (1993)), review denied, 126 Wn.2d 1025 (1995). Here, the trial court's findings and conclusions of law show that the trial court focused exclusively on the prosecutor's charging decisions. Nothing in the record shows that the trial court considered the cumulative effects of the multiple criminal acts.
We note that the case law in this area has been developed and applied almost exclusively in situations involving multiple charges stemming from multiple controlled buy drug transactions. See e.g. State v. McGill, 112 Wn. App. 95, 47 P.3d 173 (2002); State v. Hernandez-Hernandez, 104 Wn. App. 263, 15 P.3d 719, review denied, 143 Wn.2d 1024 (2001); State v. Bridges, 104 Wn. App. 98, 15 P.3d 1047, review denied, 144 Wn.2d 1005 (2001); State v. Fitch, 78 Wn. App. 546, 897 P.2d 424 (1995); State v. Powers, 78 Wn. App. 264, 896 P.2d 754 (1995); Hortman, 76 Wn. App. at 454; Sanchez, 69 Wn. App. at 255; but see State v. Calvert, 79 Wn. App. 569, 903 P.2d 1003 (1995) (applying multiple offense policy analysis developed in Sanchez in context of multiple forgery case), review denied, 129 Wn.2d 1005 (1996).
As discussed in Hortman, the trial court's role at sentencing in situations where there have been multiple charges for similar offenses is to focus on the differences between the effects of the first charged offense and the cumulative effects of the subsequent charged offenses. "The prosecutor's charging decision does not dictate the result of this independent judicial inquiry." Hortman, 76 Wn. App. at 461. Because the trial court here failed to address the effect of the multiple acts, the findings do not support its exceptional sentence downward.
Accordingly, we affirm the conviction, and remand for resentencing.
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.
SEINFELD and QUINN-BRINTNALL, JJ., concur.