Opinion
No. 30753-7-II
Filed: December 7, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 03-1-01365-1. Judgment or order under review. Date filed: 07/25/2003. Judge signing: Hon. Gary Steiner.
Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
William Laverne Hessner appeals his jury convictions of second degree rape and unlawful imprisonment with sexual motivations. He contends that he was denied a fair trial when (1) the State shifted the burden of proof, and (2) the State's expert witness improperly inferred the victim was truthful. Hessner argues that the trial court's sentencing was incorrect because unlawful imprisonment merges with second degree rape or constitutes the same criminal conduct. Additionally, he claims his counsel was ineffective for failing to object to any of these errors. Finding none of these arguments persuasive, we affirm.
Facts
Theresa Stephenson drove to Hessner's trailer to retrieve her vacuum cleaner. The two had been in a relationship for three weeks, but due to Hessner's increasingly chauvinistic and alcoholic behavior, Stephenson intended to end their affiliation that night. When Stephenson arrived at the trailer, Hessner appeared to have been drinking. Hessner said he knew Stephenson was going to `break his heart.' Report of Proceedings (RP) (June 4, 2003) at 184. Stephenson replied that he was correct and that she was leaving. Hessner pushed Stephenson down and said she `wasn't going anywhere until he got one last piece of pussy.' RP (June 4, 2003) at 185.
Hessner then pinned Stephenson on the bed by lying on top of her and jumping on her. He took her car keys away and said she was going to spend the night there. While Stephenson struggled to get away, Hessner removed her clothes. He performed oral sex roughly as Stephenson objected and continued to struggle. Hessner shoved his fingers into Stephenson's vagina and anus brusquely, asking if she `like[d] it' and had `ever been fisted.' RP (June 4, 2003) at 194. Stephenson pinched Hessner's genitals in an effort to make him stop. In response, Hessner pinched Stephenson's left breast hard and told her that `was a really stupid mistake.' RP (June 4, 2003) at 191.
Using another tactic to get Hessner to stop, Stephenson tried to appear nonresponsive. Hessner reacted by sitting on Stephenson, slapping her face, and punching her stomach. When Stephenson began screaming, Hessner put his hand over her mouth and pinched her nose. Another time, Hessner used a pillow case as a gag.
Stephenson was able to get dressed during a brief reprieve. She washed her hands in the bathroom and quietly backed out the front door towards her car. Hessner came out after her and pushed her back into the house stating, `[T]hat was a stupid ass thing [to do].' RP (June 4, 2003) at 198. When Stephenson told him she did not want to go back into the bedroom, Hessner became enraged and forced her into the bedroom, tackling her and dragging her by her ankles when she tried to run out.
Stephenson surreptitiously tried to call her daughter with a cell phone, but Hessner grabbed the phone and removed the battery. After approximately three hours, Hessner stopped restraining Stephenson and told her if she called the police or tried to contact anyone, `he was coming after [her] and [her] bitch daughter.' RP (June 4, 2003) at 207. Stephenson ran to her car and left.
Stephenson drove directly to the Longsten Place Theater where she knew an off-duty police officer would be working. She related her plight, and wrote a statement, while the officer called for assistance.
Cheryl Killen, a sexual assault nurse, examined Stephenson at Tacoma General Hospital. Stephenson told Killen what had happened at Hessner's trailer and then underwent a physical examination. Killen documented bruising on Stephenson's right thigh and left breast, redness to the sides of Stephenson's vaginal folds, and dark red drainage on the vaginal floor. At trial, Killen testified these were abnormal findings, consistent with Stephenson's disclosure of the previous events.
ANALYSIS I. Trial Errors A. Prosecutorial Misconduct
Hessner claims the State committed prosecutorial misconduct by shifting the burden of proof during closing arguments. Because he did not object below, he waived any objection unless the prosecutor's statements were so flagrant and ill-intentioned that they could not have been cured by an instruction. See State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
A defendant alleging prosecutorial misconduct must show both improper conduct and prejudice. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict. In re Pirtle, 136 Wn.2d 467, 481-82, 965 P.2d 593 (1998). In determining whether a prosecutor's remarks require a new trial, we view the remarks in the context of the total argument, the issues in the case, the evidence, and the jury instructions. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
The State argued in closing, `There is no evidence to contradict what [Theresa] Stevenson said occurred.' RP (June 5, 2003) at 288. The trial court instructed the jury that it must disregard arguments contrary to the law, that the defense had no burden of proving that a reasonable doubt existed, and that a reasonable doubt could arise from evidence or lack of evidence. The instructions made it clear that the jury could find a reasonable doubt even in the absence of defense evidence. State v. Cleveland, 58 Wn. App. 634, 648, 794 P.2d 546 (1990). And we presume the jury follows a court's instruction to disregard an improper remark by counsel. State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990).
The State also argued in closing that Killen's testimony corroborated Stephenson's. Although it is improper to vouch for a witness's credibility, attorneys may argue credibility and draw inferences about it from the evidence. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). A prosecutor arguing credibility commits misconduct only when it is `clear and unmistakable' that he is expressing a personal opinion rather than arguing an inference from the evidence. State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983); see also State v. Day, 51 Wn. App. 544, 551-52, 754 P.2d 1021 (1988).
Killen testified about her credentials as a sexual assault nurse examiner. She explained the mechanics of and the reasons for a pelvic exam in a female patient. Utilizing her report, Killen testified that her findings were consistent with Stephenson's disclosures. When the State argued that Killen's testimony corroborated Stephenson's, it was arguing an inference based on the evidence. We find no misconduct in the argument.
B. Opinion Testimony
Hessner also argues that Killen's corroborating of Stephenson's injuries was improper opinion testimony.
Expert evidence is helpful if it concerns matters beyond the common knowledge of the layperson and does not mislead the jury. State v. Jones, 59 Wn. App. 744, 750, 801 P.2d 263 (1990). While opinion testimony need not be excluded merely because it encompasses an ultimate issue of fact, State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992), no witness may testify, either directly or by inference, as to the defendant's guilt. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Neither may an expert usurp the jury's role to weigh the evidence and determine credibility. Jones, 59 Wn. App. at 749 (quoting State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P.2d 1117 (1985)).
Killen's testimony was not improper opinion testimony. She simply described her physical findings and stated that the findings were consistent with Stephenson's story of what caused the injuries. This falls short of expressing an opinion that Hessner was guilty. Moreover, Hessner cross-examined Killen about the lack of DNA evidence collected, other reasons for redness in Stephenson's vaginal area, other possible causes of vaginal bleeding, and other potential conclusions for these findings.
II. Sentencing Errors A. Merger
Hessner contends unlawful imprisonment with sexual motivation merges into the crime of second degree rape. The merger doctrine applies only when conviction of one crime (here second degree rape) necessarily requires proof of a second crime (here unlawful imprisonment). State v. Rivera, 85 Wn. App. 296, 301-02, 932 P.2d 701 (1997). Second degree rape requires sexual intercourse by forcible compulsion. RCW 9A.44.050(1)(a). Unlawful imprisonment requires proof of restraint of another person. RCW 9A.40.040(1). ``Restrain' means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his [or her] liberty. Restraint is `without consent' if it is accomplished by (a) physical force, intimidation, or deception.' RCW 9A.40.010(1)(a).
Hessner argues that adding the sexual motivation sentence enhancement causes the unlawful imprisonment to merge with second degree rape. He reasons that the `physical force used to restrain Theresa was for the purpose of compelling the rape by force,' and that `she was imprisoned to force her to submit to the rape.' Appellant's Br. at 20.
Under RCW 9.94A.835, the State is authorized to file a special allegation of sexual motivation in every criminal case other than sex offenses as defined in RCW 9.94A.030. The purpose of a sexual motivation determination is to hold those offenders who commit sexually motivated crimes more culpable than those offenders who commit the same crimes without sexual motivation. State v. Thomas, 138 Wn.2d 630, 636, 980 P.2d 1275 (1999) (citing State v. Halstien, 122 Wn.2d 109, 124, 857 P.2d 270 (1993)). But the State did not have to prove a sexually motivated unlawful imprisonment to prove rape in the second degree.
B. Same Criminal Conduct
When sentencing a defendant for two or more current offenses, if the court finds that some or all of the current offenses constitute the same criminal conduct, those offenses are counted as one crime for purposes of calculating the offender score. RCW 9.94A.589(1)(a). `Same criminal conduct' means that multiple crimes require the same criminal intent, are committed at the same time and place, and involve the same victim. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). If any of these elements is absent, the court may not find `same criminal conduct;' the court construes the statute narrowly to disallow most such claims. Porter, 133 Wn.2d at 181. We review a trial court's same criminal conduct determination for a clear abuse of discretion or misapplication of the law. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990).
Hessner argues that the second degree rape and unlawful imprisonment convictions should count as one offense because they involved the same victim (Stephenson), they occurred at the same place (Hessner's trailer), and they occurred at the same time (March 23, 2003). Further, he asserts that the objective intent of the crimes was the same — to commit sexual violence against Stephenson — and the offenses occurred in a continuing, uninterrupted sequence of events.
The State responds that the objective intents of the crimes were not the same because the unlawful imprisonment of Stephenson continued for hours after the rape. The test for evaluating same criminal conduct intent is whether the intent, objectively viewed, changed from one crime to the next. State v. Lessley, 118 Wn.2d 773, 777, 827 P.2d 996 (1992). `Under that test, if one crime furthered another, and if the time and place of the crimes remained the same, then the defendant's criminal purpose or intent did not change and the offenses encompass the same criminal conduct.' Lessley, 118 Wn.2d at 777 (citing State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987)).
To determine the issue of intent in this context, we objectively view each underlying statute and determine whether the requisite intents are the same. State v. Rodriguez, 61 Wn. App. 812, 816, 812 P.2d 868 (1991). The intent for unlawful imprisonment is to `knowingly [restrain] another person.' RCW 9A.40.040(1). Second degree rape requires sexual intercourse by forcible compulsion. RCW 9A.44.050(1)(a). Thus, these two offenses involve different objective intents.
While Hessner may have originally intended to unlawfully imprison Stephenson to rape her, the unlawful imprisonment continued well after the rape. The trial court could have reasonably concluded that Hessner's intent changed after the rape. The trial court had the discretion to determine Hessner's intent and we defer to that determination. See Rodriguez, 61 Wn. App. at 816; see also State v. Grantham, 84 Wn. App. 854, 858-59, 932 P.2d 657 (1997).
III. Ineffective Assistance
Lastly, Hessner claims his counsel was ineffective when he failed to object to the above errors. The test for ineffective assistance of counsel is whether counsel's performance fell below the objective standard of reasonableness and whether this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice results when it is reasonably probable that but for counsel's errors, the result of the proceeding would have been different. Thomas, 109 Wn.2d at 226. When counsel's conduct can be characterized as legitimate trial strategy, it cannot provide a basis for an ineffective assistance of counsel claim. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
The decision of whether to object is a clear example of trial strategy. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989) (`Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal.') (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). To prevail on an ineffective assistance of counsel claim based on the failure to object, the defendant must show (1) an absence of legitimate strategic or tactical reasons for failing to object; (2) that the objection would likely have been sustained if raised; and (3) that the result of the trial would have been different. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
The State did not improperly shift the burden of proof, and its expert witness did not infer the victim was truthful or testified with improper opinion testimony. The trial court committed no sentencing errors. Thus, counsel's objection to any of these claimed errors would likely have been overruled. Hessner's ineffective assistance argument fails.
We affirm.
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.
MORGAN, A.C.J. and VAN DEREN, J., Concur.