Opinion
No. 28061-6-III.
October 21, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whitman County, No. 08-1-00105-3, David Frazier, J., entered April 17, 2009.
Affirmed in part and remanded by UNPUBLISHED OPINION per Korsmo, A.C.J., concurred in by Sweeney and Brown, JJ.
Fousseyni Kone was convicted of first degree rape and harassment after voluntarily giving a DNA sample to officers who already had a search warrant for his DNA. He primarily challenges the validity of his consent to the sample. We affirm the rape conviction, strike the harassment charge, and remand to correct the judgment.
FACTS
M.L.M., a young woman, travelled to Pullman to visit her friends. She got separated from them after closing time at a Pullman bar. Unfamiliar with the area, she began walking around the neighborhood looking for her friends. A young man approached, asking if he could help her. She explained where she thought her friends would be, and he offered to help her get there. First, however, he needed to stop at his nearby apartment to pick up his cell phone.
When they got there, he invited her in because it was cold outside. Once she was inside, he attacked her and pulled her pants off over her boots. He held her arms with one hand and beat her with his other hand. He then raped her even though she continued to struggle. When the sexual penetration occurred, M.L.M. started to scream for help. He told her to "[s]hut the F up or I'm going to kill you," and "[y]ou need to shut up. I'm going to kill you." He started suffocating her and she stopped yelling.
After a time, he relented on the pressure against her throat and she resumed speaking and convinced him to try a different position. When he moved off her, she ran for the door and out into the night, leaving her pants behind. She fell and scraped herself, before running out into the street. A passing car stopped and drove her to the police department. She was then taken to the hospital and treated. Samples were obtained for DNA testing; lime green carpet fragments also were found in her hair and on her clothing.
Police began immediately checking the neighborhood with the assistance of the occupants of the car who had rescued the victim. M.L.M. had described the assailant as a short black male. An officer saw Mr. Kone enter his apartment and spoke briefly with him. The officer later came back with another officer and received Mr. Kone's permission to search the apartment. Nothing of evidentiary value was noted.
The police showed M.L.M. a photo montage; she picked out Mr. Kone as the second most likely person. Officers then obtained a search warrant for Mr. Kone's apartment and a second search warrant to obtain a DNA swab from Mr. Kone.
Detectives went to the apartment to serve the two warrants. Mr. Kone and his girl friend, Ashley Stickman, allowed them in. The officers announced their purpose and handcuffed Mr. Kone, although they did not arrest him. A detective then noted that the apartment seemed more furnished than the victim had described. He repeatedly tried calling the judge to see if this fact altered the warrants. Unable to reach the judge, the detectives decided not to serve the warrants. Mr. Kone was released from the handcuffs.
The detectives began speaking with Mr. Kone and Ms. Stickman. A detective asked Mr. Kone if he would consent to give a DNA sample in an effort to clear his name. Ms. Stickman supported the request. Eventually, both Mr. Kone and Ms. Stickman signed the consent to search card and he gave a sample to the detectives.
Mr. Kone's DNA matched sperm found in the victim on the night of the attack. Mr. Kone ultimately was charged with first degree rape, second degree assault with sexual motivation, and felony harassment with sexual motivation. He moved to suppress the results of the DNA test, arguing that his consent was not valid. His counsel did not challenge the search warrant and admitted that it was facially valid. The trial court found that the consent was validly given and denied the motion to suppress. The validity of the warrant was not addressed.
The jury acquitted on the assault charge, but convicted on first degree rape and harassment counts. The jury also determined that the harassment was committed with sexual motivation.
The trial court treated the two offenses as the same criminal conduct; it imposed concurrent top-end standard range sentences on both counts using an offender score of zero. The trial judge expressly stated that it was the most violent rape he had ever seen and that Mr. Kone needed to be imprisoned for the maximum sentence in order to protect society.
The judgment and sentence form, however, does not indicate that the two crimes constituted the same criminal conduct.
This timely appeal followed.
ANALYSIS
Mr. Kone presents three arguments in this appeal. All present questions of law. Appellate courts review legal issues de novo. Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003). The arguments will be addressed in the order presented in the briefing.
DNA Sample
Mr. Kone argues that his consent to give the DNA sample was invalid due to the circumstances surrounding the police visit to his apartment. We agree with the trial court that the consent was validly given, although the existence of the search warrant arguably makes this issue moot.
This court can affirm a trial court on any basis supported by the record. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986). While officers did not execute the warrant, they could have. Defense counsel agreed at trial that the warrant was facially valid, and no challenge has been presented in this appeal to that document. The concern about the condition of the apartment did not detract from the second warrant which expressly directed the detectives to obtain a DNA sample from Mr. Kone. This is similar to an officer who has probable cause to arrest for one crime arresting for another crime for which there is no probable cause. E.g., State v. Huff, 64 Wn. App. 641, 646, 826 P.2d 698, review denied, 119 Wn.2d 1007 (1992). Objectively viewed, the arrest is still valid. Id. Similarly here, the officers had a valid warrant authorizing them to obtain the DNA swab. The fact that they obtained the sample in another manner does not detract from that authority. The sample was validly obtained.
Nonetheless, the parties and the trial court understandably focused on the issue of consent and that is the issue presented to this court. The trial court concluded that under the totality of the circumstances, the consent was valid.
Consent to search is valid if (1) it is voluntary, (2) is granted by a person having authority to consent, and (3) the search does not exceed the scope of the consent. State v. Reichenbach, 153 Wn.2d 126, 132, 101 P.3d 80 (2004). The State bears the burden of proving voluntary consent. State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990). An appellate court reviews the factual findings from a suppression hearing for "substantial evidence." State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994). "Substantial evidence" is evidence sufficient to convince a fair-minded person of the truth of the finding. Id. at 644. The trial court's legal conclusions are reviewed de novo. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
The only consent element at issue in this appeal is whether the consent was voluntary. Appellant argues that the fact that officers had already told him that a search warrant existed was a factor that should preclude a finding of voluntariness. He claims that Bumper v. North Carolina, 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968), compels that conclusion. We disagree. Bumper involved officers who received permission to search after falsely telling a suspect that they already had a warrant. In that circumstance, the Court concluded that mere acquiescence to lawful authority did not amount to consent. 391 U.S. at 391-546. The Court did not rule that the existence of a warrant could not be considered by a suspect who is weighing the decision to consent or not. In Bumper, the consent calculus was skewed by the falsehood concerning the existence of the warrant. Here, truthful information was conveyed.
That information allowed for an informed decision to consent. It did not coerce the decision. It is more respectful of the dignity of the individual for police to ask permission to take a sample that they could force the person to give. It serves no useful societal purpose to penalize officers for seeking voluntary cooperation; they should be encouraged to do so.
Mr. Kone, unlike Mr. Bumper, was provided with truthful information to inform his decision whether to voluntarily provide a sample. His consent was voluntary.
Mr. Kone also argues that he was not advised of his Miranda rights. The trial court, while noting that the evidence was "weak" on that point, found otherwise. The evidence supported that determination. Mr. Kone read the Miranda warnings and also read the consent to search card and discussed it with his girl friend before both of them signed it. The totality of the circumstances supported the trial court's determination that Mr. Kone voluntarily consented to the DNA swab.
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
The trial court correctly denied the motion to suppress.
Double Jeopardy
Mr. Kone next argues that the harassment conviction and the rape conviction constituted double jeopardy as both arose out of the same behavior. In light of the jury's finding, we agree.
Double jeopardy can arise in three different circumstances. As relevant here, double jeopardy prohibits multiple criminal convictions for one crime, absent evidence that the Legislature intended multiple convictions. In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004); State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). When multiple convictions have been entered when only one is permitted, the remedy is to vacate the lesser offense. State v. Weber, 159 Wn.2d 252, 265, 149 P.3d 646 (2006), cert. denied, 551 U.S. 1137 (2007). The lesser offense is the lesser included offense or the one that carries the lesser punishment. Id. at 269.
Whether or not multiple punishments are permitted for the same criminal act is largely a question of legislative intent. Calle, 125 Wn.2d at 776. Courts apply the test of Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), to determine whether or not multiple punishments are authorized. That test determines whether two crimes are the same offense by seeing if each crime requires proof of elements not found in the other offense. 284 U.S. at 304. In effect, then, the Blockburger test prohibits multiple convictions when one crime is a lesser offense of the greater crime. In addition to comparing elements of the offenses, Washington courts also look at whether the evidence proving one crime also proved the second crime. Orange, 152 Wn.2d at 820-820. Elements are compared by looking to the charging theories of the case rather than merely examining the statutory elements. Id. at 819-820.
As charged in the final information and instructed to the jury, the offense of first degree rape required the prosecution to establish that Mr. Kone had engaged in sexual intercourse with M.L.M. by forcible compulsion and inflicted serious physical injury. RCW 9A.44.040(1). "`Forcible compulsion'" is "physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury." RCW 9A.44.010(6).
Harassment, as charged in this case, required proof that Mr. Kone without lawful authority threatened to kill M.L.M. and that she reasonably believed he would do so. RCW 9A.46.020. The sexual motivation allegation required proof that Mr. Kone committed the crime for the purpose of his own sexual gratification. RCW 9.94A.835.
The first Blockburger inquiry is whether the elements are the same "in law." Mr. Kone argues that the threat to kill which constituted the harassment count also satisfied the definition of forcible compulsion, which likewise can consist of a threat of death. He is correct. The two offenses share the common element of a death threat; that threat is essentially the totality of the harassment charge. That offense was a constituent part of the forcible compulsion element under these instructions. Thus, we believe the first prong of the Blockburger inquiry is satisfied. As charged and instructed in this case, the two offenses were the same in law.
It need not have been. The charging documents repeatedly described the forcible compulsion as consisting of the physical violence perpetrated by Mr. Kone against M.L.M. However, the unchallenged definition of "forcible compulsion" submitted to the jury used the entire statutory definition of the term, which includes threats of violence, instead of merely the physical violence used to overcome M.L.M.'s resistance. Thus, the jury was permitted to consider the threats in addition to the assaultive conduct in determining whether forcible compulsion was present.
The prosecution primarily argues that the second Blockburger prong, which requires that the same evidence be used to prove the two crimes, is not satisfied. The prosecutor contends that the rape had already been accomplished because of the forcible intercourse which occurred before the threats to kill were uttered. Thus, the two offenses were not the same "in fact" because they occurred sequentially even though the rape was still in progress at the time of the death threats.
While we do not doubt that sequential acts may in some circumstances fail the same evidence component of Blockburger, this case does not present that situation because the prosecutor alleged, and the jury found, that the harassment was committed with sexual motivation. This finding required the jury to determine that the threats to kill were made for the sexual gratification of Mr. Kone. In this factual circumstance, that means the threats were for the purpose of completing the act of intercourse rather than serving as an additional form of terror. This evidence was available to the jury for proving the forcible compulsion element of rape and the sexual motivation finding is compelling evidence that the jury so used the evidence. Under these circumstances, we believe that the same evidence could have proved both offenses. Thus, the second Blockburger element is also met.
The unique facts presented here require us to conclude that the harassment conviction and the rape conviction are the same in law and in fact. The harassment conviction, being the lesser offense, must be stricken. Weber, 159 Wn.2d at 269. In light of the fact that the harassment conviction did not impact the sentence range for the rape offense and the trial court's comments concerning the extreme violence against the victim, we are convinced the trial court would maintain the same sentence even though the harassment conviction no longer exists. Compare, State v. Post, 118 Wn.2d 596, 616-617, 826 P.2d 172, 837 P.2d 599 (1992) (even though one basis for an exceptional sentence has been overturned, an appellate court need not remand for resentencing if it is convinced the trial court would again impose the same sentence). Accordingly, the trial court is not required to conduct a new sentencing proceeding, but has the discretion to do so.
Sufficiency of the Evidence
Mr. Kone also argues that the evidence, excluding the DNA results, did not support the verdict. Well-settled law holds otherwise.
In his statement of additional grounds, Mr. Kone pro se argues that the evidence was not sufficient and that his counsel was ineffective. Both claims are without merit. The sufficiency argument is subsumed in our discussion of this issue and the ineffective assistance argument is dependent upon facts outside the record. It must be considered, if at all, in a personal restraint petition. E.g., State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159, review denied, 117 Wn.2d 1018 (1991).
In reviewing a challenge to the sufficiency of the evidence, the question is whether there was evidence from which the jury could find each element of the offense was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980).
We have already determined that the DNA evidence was properly admitted. Even without that evidence, the sufficiency challenge would fail. M.L.M. described a first degree rape — a stranger ripped her pants off, repeatedly struck her, and sexually penetrated her without her consent. She further identified Mr. Kone as the perpetrator. This evidence permitted the jury to conclude that he engaged in sexual intercourse by forcible compulsion while inflicting serious physical injury. RCW 9A.44.040(1)(c).
The evidence supported the jury's determination.
CONCLUSION
The conviction for first degree rape is affirmed. The harassment conviction is remanded to superior court with directions to strike.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
SWEENEY, J., BROWN, J., concur