Opinion
No. 59692-6-I.
June 23, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-04498-0, James D. Cayce, J., entered March 5, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Becker and Lau, JJ.
Hoston appeals his conviction on one count of second degree assault, two counts of second degree rape, felony harassment, and one count each of first degree promotion of prostitution, and kidnapping. He contends that double jeopardy requires vacation of the majority of his convictions. But, since none of his convictions are the same in law or fact, they do not constitute multiple punishments in violation of double jeopardy. We affirm.
Facts
In July 2005, Danielle Miller met Leonard Hoston. They began dating in early August. According to Miller, the relationship went horribly awry and she was forced into working as a prostitute for Hoston. She was eventually arrested for prostitution and told the police about her experiences. Her testimony became the basis for the State's charges, which Hoston now appeals.
When they first began dating, Hoston was affectionate and enjoyed spending time with Miller. He treated her very well. In October, they began living together in Miller's apartment. But, by September, they began arguing, and the arguments became increasingly frequent. Hoston became increasingly controlling — monitoring her cell phone usage, telling her she could only have female friends, taking her car keys and blocking the door so she could not leave the apartment. Then he threatened to hit her.
Hoston's threats of violence soon became actual violence. Miller testified that in November 2005, Hoston became upset when she spoke to a male friend on the telephone. He held a knife to her throat and threatened to kill her. The knife left a small mark on her neck. Hoston apologized and they continued their relationship. Hoston was charged with second degree assault based on this incident.
In March 2006, Hoston and Miller ended their relationship and Hoston moved out of the apartment. Shortly after he moved out, Hoston called Miller and asked her to pick him up from a hotel and give him a ride. Miller agreed, and drove to the hotel. When she arrived, she saw Hoston with another woman. Hoston forced Miller from the driver's seat and began hitting her. He said "Move over, bitch, I am in control now." He told her that she now worked for him, and that she was going to be a prostitute. He continued to beat her with his fist and with the rear-view mirror, which had detached during the struggle. Eventually, Hoston told the other woman to get into the car and they drove away with Miller still in the car. They went to his cousin's house and then Miller's apartment so that she could put on sexy clothes. When Miller resisted, he choked her. He took Miller and the other woman to Aurora Avenue, and the two women went to work on the streets. This was the first night of Miller's life as a prostitute. The State charged Hoston with first degree kidnapping based on this incident.
In her testimony, Miller describes her life as a prostitute, which became the basis for the charge of first degree promotion of prostitution, as well as felony harassment and second degree rape. This rape charge stems from Hoston's repeated use of coerced oral sex, or "deep throat," as a "consequence" when Miller failed to earn enough money. He continually threatened her with this consequence, as well as beatings and other acts of violence.
The final incident occurred on May 4, 2006, only a couple of days before Miller's arrest. That night, Miller failed to make enough money to satisfy Hoston. When they returned home, Hoston told her to run a bath, get undressed and get into the bathtub. As the consequence for not earning $1,000, he grabbed Miller by the neck and held her under the water in the bathtub several times. He let her get out of the bathtub, but became angry again and told her to lie down on the living room floor on her stomach. Hoston took the plastic rod off of the window blinds and used it to beat the bottoms of her feet; when the rod broke, he jabbed the broken edge of it into the bottoms of her feet until they bled. Then he found a belt, which he fastened tightly around Miller's neck and choked her until she lost consciousness. When she regained consciousness, Hoston was punching her face. He proceeded to put a pornographic movie on the television, and forced Miller to perform oral sex on him. Then, Hoston raped her anally and vaginally. Finally, he forced her to sleep naked on the patio outside the apartment. Based on this incident, the State charged Hoston with second degree assault and second degree rape.
After a lengthy trial, a jury convicted Hoston of two counts of second degree rape, one count of second degree assault, one count of fourth degree assault, and one count each of promotion of prostitution in the first degree, first degree kidnapping, and felony harassment. He now appeals these convictions.
The State also charged Hoston with intimidating a witness and felony harassment for a confrontation with Miller's stepmother that occurred as they waited for Miller's release from jail. The jury acquitted Hoston of the charges.
Discussion
I. Double Jeopardy
Hoston argues that his multiple convictions for conduct arising from the same incidents violate double jeopardy and should be vacated. Double jeopardy bars multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). The double jeopardy clauses in our state and federal constitutions provide the same protection. In re Personal Restraint of Borrero, 161 Wn.2d 532, 536, 167 P.3d 1106 (2007) cert. denied 128 S. Ct. 1098, 169 L. Ed. 2d 832 (2008). Courts must determine whether convicting a defendant of several crimes based on the same conduct violates double jeopardy. State v. Freeman, 153 Wn.2d 765, 768, 108 P.3d 753 (2005). This inquiry involves determination of legislative intent — if the legislature intended to authorize multiple punishments for the crimes then double jeopardy is not offended. Borrero, 161 Wn.2d at 536. If the language of the criminal statutes under which the defendant has been convicted does not expressly indicate legislative intent, the court must turn to statutory construction to determine if multiple punishments are authorized. Id.
Under well established case law, Washington courts employ the "same evidence rule" to determine if multiple convictions violate double jeopardy.
In order to be the "same offense" for purposes of double jeopardy the offenses must be the same in law and in fact. If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.
State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983). Hoston argues that Vladovic is incorrectly decided because it is irrelevant whether each statute contains different elements. Instead, Hoston believes the inquiry must focus on whether each offense requires proof of an additional fact which the other does not. He contends that this court must perform this inquiry into the law and facts as charged and prosecuted, not merely by the statutory language. As a result, he claims that most of his convictions should be vacated. But this contention misconstrues both the law and facts of this case.
A. Second Degree Assault and Rape
Hoston contends that his convictions for second degree rape and assault — based on the bathtub incident — violate double jeopardy because the State could not prove forcible rape without the assault charge. Under the same elements test, the offenses must be the same in law and fact. See Vladovic, 99 Wn.2d at 423; Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Second degree rape and assault each contain elements not found in the other and, accordingly, require proof of different facts. The elements of second degree assault include intentional assault that recklessly inflicts substantial bodily harm. RCW 9A.36.021(1)(a). Second degree rape requires sexual intercourse by forcible compulsion. RCW 9A.44.050(1)(a). Sexual intercourse is defined as penetration, including penetration of the vagina or anus by an object, and also includes sexual contact between the sex organs of one person and the mouth or anus of another. RCW 9A.44.010(1)(b), (c). Based on the statutes, the State needs to prove intentional and reckless infliction of substantial bodily harm for the assault charge, whereas neither intent to assault nor bodily harm, other than intercourse, is required to prove the rape. Similarly, the rape charge requires evidence of any of the activities defined as sexual intercourse, but intercourse is unnecessary to prove the assault. The two charges and resulting convictions differ in law, and therefore cannot violate double jeopardy.
In addition, the convictions stem from different facts. Hoston's own recitation of the facts acknowledges that the assault was factually unnecessary to prove the rape. In his briefing, Hoston recounts the bathtub and choking incidents described by Miller, and states that Miller's testimony shows that he forced oral and anal intercourse on her when she regained consciousness after being choked. Clearly, from this description and the facts as presented at trial, the second degree assault reflects the choking and near drowning in the bathtub. The second degree rape charge stems from the forcible intercourse. While the charges stem from a continuous series of events beginning with the assault and culminating with the rape, the State could prove rape without the assault. The choking and drowning were unnecessary to complete the rape; the rape was unnecessary for the choking and drowning that served as the basis for the assault. Factually, the convictions punish separate and distinct behavior and do not violate double jeopardy.
B. Assault, Rape, Felony Harassment, and Promoting Prostitution
Hoston also argues that his conviction on two counts of second degree rape, one count each of second degree assault, felony harassment, and first degree promotion of prostitution violate double jeopardy. According to his claim, this violation occurs because promoting prostitution in the first degree requires threat or use of force and the State did not prove any force or threat apart from the other charged offenses. But, this claim does not succeed after application of the same evidence test.
As stated above, to violate double jeopardy the offenses must be the same in law and fact. Vladovic, 99 Wn.2d at 423. Second degree rape, assault, felony harassment, and promoting prostitution clearly differ in law, since each offense requires an element not included in the other. To prove assault, the State must show reckless infliction of bodily harm, but rape, harassment and promotion of prostitution do not include this proof. Rape requires proof of forcible sexual intercourse, while harassment, promotion of prostitution and assault do not. Felony harassment includes a threat to kill, which is not included in the other offenses. Finally, promoting prostitution requires proof of advancing prostitution, unnecessary to proving the other offenses. Since each offense clearly includes at least one different element that must be proved, the offenses do not violate double jeopardy.
First degree promotion of prostitution requires that a person, "knowingly advances prostitution by compelling a person by threat or force to engage in prostitution or profits from prostitution which results from such threat or force." RCW 9A.88.070(1). The force/threat component elevates promoting prostitution from second to first degree. RCW 9A.88.080(1).
Hoston claims that the incidents underlying the rape, assault, and harassment charges were the sole evidence of the use of force to promote prostitution. But, Hoston ignores Miller's testimony regarding the many instances of violence and threats. This testimony supports the first degree promotion of prostitution conviction. Just a few examples of Miller's testimony illustrate the substantial evidence supporting the elevation of the promotion charge to first degree. Hoston threatened "consequences" for failure to meet her assigned earnings for the night. Miller stated that every time she failed to make her assigned quota of profits for Hoston, he would inflict those "consequences" on her. Those consequences included beatings — whipping with a belt, closed-fist punching, and choking — which occurred three or four days each week for the duration of her time as a prostitute. These many threats and acts of violence provide the evidence for raising the promotion of prostitution to first degree, without the threats that served as the basis for the felony harassment charges, or the actions underlying the assault and rape charges.
C. Promoting Prostitution and Kidnapping
Finally, Hoston contends that because his conviction of first degree kidnapping required proof that he abducted Miller with the intent to facilitate the promotion of prostitution, the kidnapping and promotion charges violate double jeopardy. Once again, Hoston ignores that the charges differ in law, each requiring proof of facts not required for the other.
A kidnapping becomes a first degree offense if committed with the intent to facilitate another felony. Hoston correctly notes that the elevation of kidnapping to first degree in this case relies on felony promoting prostitution. But, Hoston incorrectly asserts that proof of the kidnapping requires proof of promotion of prostitution. The proof of kidnapping only requires a showing of intent to promote prostitution. The jury could have acquitted Hoston on the promotion of prostitution charge but still convicted of first degree kidnapping.
Factually, the proof of kidnapping with intent to promote prostitution arose on March 19, when Hoston took control of Miller's car, beat her, and drove away with her in the car. He told her "You are going to work the streets for me, you are going to prostitute. You are my bitch, you have no way out of it except to die. You are in the game now." This single incident establishes an intentional abduction with intent to promote prostitution. The additional evidence of Miller's life as a prostitute and Hoston's role as her pimp proved the promotion of prostitution. He established her geographical boundaries, set the price for services and daily quotas, told her where she could take her "dates," and gave her a name to use. Hoston required constant communication with Miller about her "dates." She had to use her cellular phone to send him a text message with information before every encounter — the price, service, time it would take, as well as the license plate, make, and model of the car — so he could keep track of her whereabouts and earnings. Miller also testified about Hoston's other prostitutes, including a woman he bought from another pimp for $100. The many factual details given in support of the promotion charge were unnecessary to prove the intent to commit the felony promotion of prostitution used to elevate the kidnapping to a first degree offense. The two convictions differ in fact.
None of Hoston's convictions are the same in law and fact — neither in the statutory elements or the factual underpinnings. Therefore, none of the convictions constitute multiple punishments for the same offense. Double jeopardy is not violated.
II. Unanimous Jury Verdict
Hoston argues a violation of his right to a unanimous jury verdict because the State did not elect one of his acts to serve as the basis for the promotion of prostitution charge and the court did not provide a unanimity instruction. The right to a unanimous verdict derives from the fundamental constitutional right of trial by jury. State v. Gooden, 51 Wn. App. 615, 617, 754 P.2d 1000 (1988). Generally, to protect unanimity, the State must elect the act it relies upon for conviction or the court must instruct the jury that all jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. Id. at 618. But, these alternative requirements are not required when a continuing course of conduct forms the basis of the charge. State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984). Determination of whether one continuing offense may be charged requires evaluation of the facts in a common sense manner. Id.
This court has previously determined that promoting prostitution is a continuing course of conduct which falls within this exception to Petrich. Gooden, 51 Wn. App. at 620. "Although the statute regarding promoting prostitution in the first degree permits conviction for each distinct act, it also contemplates a continuing course of conduct: instituting, aiding, or facilitating a prostitution enterprise." Id. at 618. In Gooden, the evidence showed that the defendant used his prostitutes to promote an enterprise that was a continuing course of conduct over a 10-day period in which he constantly associated with his girls. Id. at 620. Similarly, in State v. Barrington, 52 Wn. App. 478, 482, 761 P.2d 632 (1988), this court found evidence of a promotion of prostitution over a 3 month period of time, not "separate distinct acts occurring in a separate time frame and identifying place as in Petrich." The testimony about various incidents of prostitution was "primarily illustrative of the nature of the enterprise rather than solely descriptive of separate distinct acts or transactions." Id. at 481. Given this course of conduct, neither an election nor unanimity instruction was required. Id. at 482.
In this case, both the charging document and trial testimony demonstrate that the charge relates to a continuing course of conduct, rather than distinct acts. The information charges Hoston with the crime of promoting prostitution in the first degree based on conduct between March 17, 2006, and May 9, 2006. The to-convict instruction for promotion of prostitution also instructs the jury to consider that period of time, not a single date or incident. According to Miller, the details of her daily life during this time period reflect Hoston's ongoing promotion of prostitution. Seven days a week, he told her where to go, set her quota, required constant communication about her work, and inflicted consequences for failure to earn enough money. These occurrences were not isolated incidents, but an ongoing course of conduct.
Because the promotion of prostitution charge related to a continuing course of conduct, no election of an act as the basis for the charge or special unanimity instruction was necessary. Unanimity was only required as to Hoston's course of conduct, not a particular action. Gooden, 51 Wn. App. at 620.
III. Testimony about the Pimp/Prostitute Subculture
The trial court admitted the testimony of vice detective Draper to provide background on the pimp/prostitute relationship and subculture. The prosecution wanted Draper to testify only on the general rules and terminology of the pimp/prostitute world. Draper did not know the defendant and would not opine on the defendant, witnesses or facts of the case. The court found the evidence helpful to the trier of fact and not unduly prejudicial. "It's a subculture that neither the Court nor the jury is really familiar with, and to the extent that it's helpful to understand these relationships, I think it should come in." But, the court expressly ruled that Draper would not testify as an expert. "I'll simply allow you to ask the witness questions, but there's no way I'm going to say in front of a juror that this person's an expert."
Hoston contends that Draper gave improper opinion and profile testimony. Evidentiary rulings are reviewed for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999) cert. denied, 120 S. Ct. 285 (1999). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
According to current case law, Draper's testimony was not improper opinion testimony. In State v. Simon, 64 Wn. App. 948, 964, 831 P.2d 139 (1991), this court upheld similar testimony. The court determined, "the testimony did not constitute an opinion as to [the defendant's] guilt . . . [the detective] testified in general terms about the nature of the pimp/prostitute relationship." Id. As in Simon, Draper's testimony was limited to statements about his knowledge of pimps and prostitutes — information that he learned through investigations and interviews during his years as a vice detective. He did not express any opinions about the case, Hoston, or Miller. He did not provide testimony about Hoston's guilt or Miller's credibility. Simon is on point and controls. Draper did not provide improper opinion or profile testimony.
IV. Witness Unavailability
Washington Evidence Rule 804(b)(1) allows for the admission of prior testimony of an unavailable witness. A witness may be unavailable if she "[i]s absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance . . . by process or other reasonable means." ER 804(a)(5). Here, the trial court admitted the pre-trial testimony of witness Danielle Beckwith after finding her unavailable under ER 805(a)(5). Hoston contends the trial court wrongly admitted the prior testimony after improperly finding Beckwith unavailable. According to Hoston, the State did not make a good faith effort to procure Beckwith's testimony. A finding of unavailability is within the discretion of the trial court and will not be reversed absent abuse of that discretion. State v. Whisler, 61 Wn. App. 126, 137, 810 P.2d 540 (1991). The proponent of the testimony has the burden of proving unavailability. Id.
Hoston does not raise issues concerning his confrontation rights or reliability of the admitted testimony.
Before a witness is considered unavailable for the purposes of ER 804, the proponent must make a good faith effort to procure the witness' presence at trial. State v. Sweeney, 45 Wn. App. 81, 85, 723 P.2d 551 (1986). "A good faith effort to obtain the presence of the witness at trial requires that the proponent use the means available to compel attendance of the witness at trial." Id. at 86. The party offering the evidence must represent to the court that this effort was made. State v. Goddard, 38 Wn. App. 509, 514, 685 P.2d 674 (1984). The good faith effort requirement "generally demands at least asking the witness to attend and subpoenaing the witness if refused." Whisler, 61 Wn. App. at 137.
In this case, Danielle Beckwith proved herself an extremely reluctant witness. Detectives and a prosecutor subpoenaed her twice; the last subpoena was served on November 30, 2006. Upon service of the subpoena, Beckwith informed the detective that she could not appear on the specified date and indicated her reluctance to testify. On December 1, Beckwith told a detective that she would not testify because of her fear of Hoston. She was also eight months pregnant at the time of her scheduled testimony. To secure the testimony, the court issued a material witness warrant on December 1, 2006.
When Beckwith testified at the pre-trial proceeding she was an adverse witness, refusing to answer most of the questions of both the prosecution and defense. In response to most of the questions, she replied that she did not have anything to say and wanted to go home. Beckwith professed her fear and said she was testifying against her will. In an attempt to convince her to answer the questions, the judge threatened her with a night in jail. The court excused Beckwith so she could compose herself, think about the situation, and prepare to testify the next day. Beckwith returned to testify two days later. She talked about Hoston forcing her to sign a contract to be his prostitute.
The trial court quashed the material witness warrant after Beckwith testified. The terms of the order required Beckwith to maintain daily contact with the case detective, provide updated contact information, and appear for trial. Beckwith did not comply with these conditions. During the trial, the State informed the court that Beckwith had disappeared despite the subpoena and order from the court. Beckwith could not be contacted through the information she provided the prosecutor. The case detective also went to Beckwith's address but could not find her. Beckwith's apartment manager told the detective that she had only paid partial rent and had been served with a notice of eviction. The detective also went to the hospital to determine if Beckwith had been admitted to deliver her baby, but she was not registered as a patient. A few days later, the detective again visited the apartment and the hospital and remained unable to locate Beckwith. During trial, and here, Hoston maintains that the State should have acted sooner and worked harder to find Beckwith. He also argues that the State should not have allowed Beckwith to become unavailable.
The court determined that the State had acted with due diligence. The court was unsurprised by Beckwith's disappearance. "I think it was somewhat expected that there may be a problem because of a baby or otherwise." In fact, after her initial testimony, the trial court suggested the parties consider videotaping a deposition to ensure her testimony. The court also expressed its reluctance to allow her to testify at trial. "Given what I saw here, she was in bad shape for whatever reason. It doesn't matter. I'm not sure how comfortable I am putting her through that again without advice from a doctor." In this way, the court had suggested that Beckwith might not be available to testify at trial.
Given the extreme difficulty securing Beckwith's pre-trial testimony, her medical condition, and the State's efforts to locate her, the trial court did not abuse its discretion by ruling Beckwith unavailable and admitting her prior testimony.
None of Hoston's arguments prevail. We affirm.
We Concur: