Opinion
No. 56279-7-I.
June 12, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-09150-7, Richard A. Jones, J., entered May 16, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Cheryl Lee Lott (info Only) (Appearing Pro Se), Wcc-Women, Doc #877074, 9601 9601 Bujacich Rd NW, Gig Harbor, WA 98335-0017.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Cheryl Lott appeals her conviction and sentence of one count of second degree rape of a child and one count of third degree rape of a child. The trial court erred by rejecting Lott's proposed jury instruction on her defense to the second degree child rape count, and that conviction is accordingly reversed. The State also correctly concedes error in Lott's sentencing conditions. Lott's pro se claims of error are without merit. We remand for retrial of the second degree child rape charge and resentencing of the third degree child rape conviction.
FACTS
Twelve-year-old C.H., his fourteen-year-old cousin, J.H., and other juvenile males often visited thirty-nine-year-old Cheryl Lott's apartment, where they could drink alcoholic beverages and smoke marijuana. After one such visit, C.H. expressed concern to his mother about what could happen if he had had sex with a woman who was menstruating. A few weeks later, after he complained of pain in his penis, he told his mother and a doctor he had had oral and vaginal sex with Lott. They called police. Officers were later referred to J.H. by the prosecutor's office, and J.H. reported he had also had oral sex with Lott.
Lott was charged with second degree child rape of C.H. and third degree child rape of J.H. At trial, Lott denied consciously having sexual intercourse with C.H., testifying that she was drunk and passed out on her bed and C.H. must have had intercourse with her without her knowledge or consent. Lott's children, Jam. H. and D.H. each testified that they entered Lott's bedroom and saw C.H. on top of Lott, moving up and down and that Lott had her eyes closed and appeared to be asleep or passed out. Lott's counsel proposed a set of jury instructions to support her defense. Among those were instructions listing the elements of second degree rape by means of having sexual intercourse with a person incapable of consent because they were physically helpless and an additional instruction providing Lott's theory of her defense: 'It is a defense to the charge of rape of child, in any degree, that the child had intercourse with the adult without the knowledge or consent of the adult, as defined in these instructions.' The trial court allowed defense counsel to argue the proposed defense, but declined to give Lott's instructions. Counsel did so, but Lott was convicted.
Lott received a standard range sentence including a term of community custody, conditions of which included prohibitions on Lott having contact with any minor children or possessing or viewing any pornographic materials as defined by her community corrections officer. Lott appeals.
DECISION
Lott first contends the trial court erred in failing to give her proposed instructions. Jury instructions are sufficient if, when viewed as a whole, they are adequate to explain the law and to enable the parties to argue their theory of the case. State v. Schulze, 116 Wn.2d 154, 168, 804 P.2d 566 (1991). A defendant is entitled to instructions defining a defense only when substantial evidence in the record supports every element of that defense. State v. Bell, 60 Wn. App. 561, 566, 805 P.2d 815 (1991). In denying Lott's proposed instructions, the trial court commented that Lott had not provided either sufficient law or facts to support them. On appeal, Lott cites State v. Utter, 4 Wn. App. 137, 479 P.2d 946 (1971), as legal authority for instructing the jury as she proposed. The State does not now dispute that Lott's proposed instructions were legally accurate and, indeed, does not even discuss Utter, arguing instead that giving the instructions would have been improper because there was no factual support for Lott's theory that C.H. had intercourse with her without her knowledge or consent.
Lott testified that on the day C.H. described, before he came to her house, she had consumed three double-sized cans of beer, which, in combination with a bad hangover from excessive drinking the day before, caused her to become drunk and pass out on her bed. She had no memory of having sexual intercourse with C.H. and did not believe she had voluntarily done so. Lott's son Jam. H. testified that when he got home that day, he knew Lott had been drinking because he saw empty beer bottles. He wanted to ask Lott permission to go to a friend's house, but she was passed out on the bed and did not wake up when he talked to her and shook her. He went to his room to play video games. Later, his sisters told him to look at his mom because C.H. was on top of her. He went to the bedroom and saw C.H. moving up and down on top of Lott, who he believed was still passed out drunk and gave no indication of being aware what was happening. He tried to push C.H. off Lott, but C.H. was bigger and stronger than he was. D.H. testified that she had briefly opened and closed the door and saw C.H. moving up and down on top of Lott, after which she told her sister and aunt what she saw. D.H. described Lott as motionless, as if passed out. The State contends that this evidence is insufficient because Lott had no memory of the events and neither D.H. nor Jam. H. testified that C.H. and Lott were unclothed. But in determining if the evidence at trial was sufficient to support the giving of an instruction, the court must view the evidence in the light most favorable to the party who requested the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). As Lott points out, J.H. and Jam. H.'s observations were consistent with C.H. having sexual intercourse with Lott with his pants on but unzipped. Drawing reasonable inferences from the evidence in favor of Lott, as we must, we conclude a finder of fact could have reached the conclusion C.H. had intercourse with Lott without her consent, knowledge, or awareness, and Lott was thus not guilty of rape of a child.
While the State also points out that Jam. H. and D.H. were inconsistent in describing who was with them during their observations, this does not affect the resolution of the issue before us because we must view the evidence in the light most favorable to Lott and leave questions of credibility for the jury.
The State also points out that the trial court allowed Lott to argue her theory to the jury. But the law must be clearly stated in the instructions so that it is not necessary for counsel to argue what the law is. State v. Acosta, 101 Wn.2d 612, 621, 683 P.2d 1069 (1984). Defense counsel is only required to argue to the jury that the defense version of the facts fits the law. Acosta, 101 Wn.2d at 612.
The offense of child rape in Washington state is a strict liability offense. Christensen v. Royal Sch. Dist., 156 Wn.2d 62, 67-68, 124 P.3d 283 (2005). Without Lott's proposed instruction, under the standard pattern instructions given by the court, it was logically possible for the jury to believe Lott's defense and nonetheless convict her. Failure to give instructions on a party's theory of the case is prejudicial error if there is evidence to support the theory. State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997); State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986). The State makes no argument here that error is or could be harmless. We must reverse Lott's second degree child rape conviction. Lott also contends that her second degree rape conviction is defective because Detective Kyle Kizzier, who interviewed C.H., improperly vouched for C.H. during his testimony. Because there was no objection, the State argues that any error was not manifest such that it can be raised for the first time on appeal. See RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995). In light of our resolution of the first issue, it is unnecessary to resolve this dispute. But given the possibility of retrial, we observe generally that what one witness thinks of the credibility of another witness is irrelevant and potentially prejudicial and objectionable on that basis. State v. Wright, 76 Wn. App. 811, 821-22, 888 P.2d 1214 (1995).
We do not imply that courts must normally instruct on the elements of offenses the defense claims were committed by an alleged victim or witness. Nor do we hold that the trial court must do so in this case on remand. Here, the problem was the court's denial of the instruction providing a defense if the jury found C.H. had intercourse with Lott without her knowledge or consent, an instruction that was correct under the rule stated in Utter.
Lott challenges two aspects of the community custody portion of her sentence. She argues that the limitations on contact with her own children impermissibly invade her right to raise her children. She also contends that the court's prohibition on her viewing or possession of pornography is impermissibly vague and an unlawful delegation of judicial authority. To the extent the conditions of Lott's sentence prevent her from contact with her own children, the State concedes error under State v. Letourneau, 100 Wn. App. 424, 438, 997 P.2d 436 (2000). We accept the concession because, as in Letourneau, the evidence does not show that Lott is a pedophile or otherwise presents a danger to her own children. Letourneau, 100 Wn. App. at 439-42.
Relying on State v. Sansone, 127 Wn. App. 630, 111 P.3d 1251 (2005), Lott also challenges the following condition of her community custody: 'Do not possess or peruse pornographic materials unless given prior approval by your sexual deviancy treatment specialist and/or Community Corrections Officer. Pornographic materials are to be defined by the therapist and/or Community Corrections Officer.'
Although Richard Sansone's challenge to his sentence for violating a similar condition as unconstitutionally vague was technically moot, in light of the State's concession that the pornography condition was improperly applied to his conduct, we addressed the argument because it was a matter of continuing and substantial public interest. Sansone, 127 Wn. App. at 636. In Sansone, we held that without further definition, the term "pornography" was unconstitutionally vague and thus incapable of an as-applied analysis.
Here, Lott does not argue that the condition was applied to her conduct, but contends that she was not provided with fair warning of what conduct she must avoid or ascertainable standards of guilt to protect against arbitrary enforcement, as due process requires. "While a person generally must be charged with violating a statute before it can be challenged on vagueness grounds, a potentially vague community placement condition involves different considerations." State v. Riles, 86 Wn. App. 10, 17, 936 P.2d 11 (1997). Because Lott's conviction under count I is reversed, she must be resentenced on her conviction under count II. To avoid future difficulties, the trial court should amend the condition to provide a more specific definition consistent with Lott's treatment status and goals. One approach would be to set forth a list of illustrative nonexclusive examples of the type of material she is not to possess.
Finally, Lott raises several challenges to her conviction and sentence in a pro se statement of additional grounds for review. These are all without merit.
Lott's claim of error based on amendments of the information as to the dates of the offenses fails because the record reflects no prejudice. See State v. DeBolt, 61 Wn. App. 58, 62, 808 P.2d 794 (1991) (Even after the State rests, an amendment to an information changing the date of the offense is within the court's discretion absent a defense claim of alibi or other prejudice.).
Her similar claim regarding joinder of the counts for trial likewise fails because, given the overlapping evidence, ordering a joint trial was well within the court's discretion. State v. Bythrow, 114 Wn.2d 713, 723, 790 P.2d 154 (1990). Lott's contention that the prosecutor's sentence recommendation after trial constituted vindictive prosecution fails because the mere fact that a prosecutor offers a shorter sentence recommendation or fewer counts for a plea before trial does not establish vindictiveness if the recommendation increases afterward. State v. Lee, 69 Wn. App. 31, 35, 847 P.2d 25 (1993).
Lott's claim that the State knowingly presented perjured testimony fails because she has not shown the prosecution was aware C.H.'s testimony constituted 'a materially false statement which he knows to be false . . .' RCW 9A.72.020(1). The jury heard C.H. testify and could weigh his credibility accordingly. Lott's contention that the prosecutor's references to the well-known case of Mary Kay Letourneau were improper fails because the record discloses an evidentiary basis to do so: A police officer testified without objection that Lott's aunt said Lott bragged about supplying sex and alcohol to young males and described herself as 'another Mary Kay Letourneau.' Report of Proceedings (Nov. 16, 2004) at 30. And Lott's final pro se claim of offender score error is rendered moot by our resolution of the other issues in this appeal.
We reverse Lott's conviction of second degree rape of a child and remand that charge for retrial consistent with this opinion. We affirm Lott's conviction of third degree rape of a child and remand that conviction for resentencing.
COLEMAN, SCHINDLER and COX, JJ., Concur.