Opinion
No. 26758-0-III.
February 26, 2009.
Appeal from a judgment of the Superior Court for Benton County, No. 07-1-00170-4, Robert G. Swisher, J., entered December 13, 2007.
Affirmed in part and remanded by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Sweeney, J.
Jonathan James McLane appeals his three first degree rape convictions and one third degree child molestation conviction, contending (1) insufficient evidence supports one of his first degree rape convictions, (2) the prosecutor violated his equal protection rights when exercising peremptory challenges, and (3) that sentencing errors occurred. The State concedes the sentencing errors and we reject Mr. McLane's first two contentions. Accordingly, we affirm Mr. McLane's convictions, and remand for sentencing corrections.
FACTS
Because one of the issues is sufficiency of the evidence, the facts are stated in the light most favorable to the State. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (stating, "[w]hen the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant"). Mr. McLane's evidence insufficiency challenge is limited to count I relating to M.M. Thus, we do not fully develop the facts related to the other counts relating to M.M. and her sister, C.M.
On February 5, 2007, C.M. and M.M. disclosed to their mother, Laura McLane, that their father, Mr. McLane, had sexually abused them. According to M.M., whose date of birth is September 19, 1997, the sexual abuse started when she was seven years old until she was nine years old. M.M. identified one incident where Mr. McLane inserted his penis in her vagina, and stated he attempted to do so on numerous occasions. In addition, M.M. identified an incident, a couple of weeks prior to her disclosure to Ms. McLane, where Mr. McLane inserted his finger in her vagina. M.M. also identified several other instances of sexual contact by Mr. McLane, including oral contact.
The State charged Mr. McLane with five counts of first degree rape of a child, four counts against M.M., and one count against C.M. The counts against M.M. included count I, with alleged dates of June 1, 2006 to September 1, 2006; count II, with alleged dates of September 19, 2006 to September 30, 2006; count III, with alleged dates of December 1, 2006 to December 31, 2006; and count IV, with alleged dates of January 1, 2007 to January 31, 2007. The final count, count V, was against C.M., with alleged dates of January 1, 1998 to December 31, 2000. In count VI, the State charged Mr. McLane with one count of third degree child molestation against C.M., occurring between March 26, 2005 and March 26, 2006.
During jury selection, the State exercised six of its eight peremptory challenges, striking Juror Nos. 2, 19, 25, 26, 37, and 39. All of the stricken jurors were male. Defense counsel did not object to any of these challenges based on gender.
The State asked Juror No. 2 to state his definition of reasonable doubt. The State questioned Juror No. 19 regarding his ability to listen to children testify about sexual acts. In addition, the State questioned Juror No. 25 regarding the possibility of delayed disclosure of sexual abuse by children and distrust of adults. The State recognized Juror No. 26 as a witness for a defendant in an unrelated criminal case. The State questioned Juror No. 26 regarding his feelings from that case, and whether they could enter into his thoughts in the present case. Juror No. 37 stated his son was investigated for indecent liberties, but never charged with the crime. The State questioned Juror No. 37 regarding his ability to set aside his feelings from that investigation, and whether he was frustrated with the criminal justice system. The State did not question Juror No. 39.
Twelve women and two men were jurors. Before deliberations, two women were selected as alternates, leaving the final make-up of the jury as 10 women and two men.
C.M., M.M., Ms. McLane, Detective Larry Smith of the Benton County Sheriff's Office, and Dr. Sara Zirkle testified for the State. M.M. was 10 years old at trial. M.M. testified Mr. McLane inserted his finger in her vagina a couple of weeks prior to her disclosure to Ms. McLane. M.M. described the look of Mr. McLane's penis, including that "white stuff" would come out of it when he rubbed it. 3 Report of Proceedings (RP) (Oct. 31, 2007) at 359. M.M. testified regarding oral contact by Mr. McLane, including kissing her vagina and "[l]ick[ing] around it." 3 RP (Oct. 31, 2007) at 362. When questioned regarding when Mr. McLane would kiss her vagina, M.M. testified, "[s]ometimes when he would touch me on the weekend . . . [i]t started from [age] seven till [sic] nine." 3 RP (Oct. 31, 2007) at 361.
M.M. further testified Mr. McLane attempted to insert his penis in her vagina "[a] lot of times," and was successful on one occasion. 3 RP (Oct. 31, 2007) at 364. M.M. testified before Mr. McLane "would try to make his private go into mine" he would put "oil," which he stored in his nightstand, on his hands, and then "on my private and his private, too." 3 RP (Oct. 31, 2007) at 362-63. M.M. identified a red bottle of K-Y personal lubricant, which was found in Mr. McLane's home in the location specified by M.M., as the "oil" he used. Id. Regarding the time period when Mr. McLane inserted his penis in her vagina, M.M. testified:
[Question:] Were there times when your dad's private would go inside your private?
[Answer:] Yes.
[Question:] And how far would it go in?
[Answer:] Not that far.
. . . .
[Question:] And when did — do you remember when this started happening?
[Answer:] When I was seven.
. . . .
[Question:] . . . So how often then — you said it started when you were seven and up till [sic] you were nine; that's correct?
[Answer:] Yes.
[Question:] How often — would this happen every time you saw [Mr. McLane] on the weekends?
[Answer:] No.
[Question:] Okay. But it happened on the summer break?
[Answer:] Yes.
3 RP (Oct. 31, 2007) at 427, 429.
Dr. Sara Zirkle, a pediatrician specializing in developmental pediatrics, testified she examined M.M. in February 2007. After completing a vaginal exam, Dr. Zirkle concluded M.M. had "nonspecific finding[s]," meaning there is more than one thing that could have caused the minor inflammation she found. 3 RP (Oct. 31, 2007) at 440. Dr. Zirkle testified it would be possible for a tear to occur, and heal without any scarring. She further testified an injury is less likely when a lubricant is used.
Detective Smith testified he executed a search warrant at Mr. McLane's home. He located a red bottle of K-Y personal lubricant, in a cabinet on the left side of the headboard on Mr. McLane's bed, which was the location specified by M.M.
The State called one rebuttal witness, Anna Hahn, a licensed mental health counselor. In addition, Mr. McLane called one surrebuttal witness, Jonathan Carollo, a licensed independent clinical social worker. Both witnesses testified regarding behaviors in response to sexual abuse.
Jury instruction 6 instructed the jury, in order to convict Mr. McLane of first degree rape of a child as charged in count I, it had to find the following elements were proven beyond a reasonable doubt:
(1) That between the date of June 1, 2006 and September 1, 2006, [Mr. McLane] had sexual intercourse with [M.M.];
(2) That [M.M.] was less than twelve years old at the time of the sexual intercourse and was not married to [Mr. McLane];
(3) That [M.M.] was at least twenty-four months younger than [Mr. McLane]; and
(4) That this act occurred in the State of Washington.
Clerk's Papers (CP) at 68. Further, jury instruction 11 defined "sexual intercourse" as "any penetration of the vagina or anus however slight, by an object, including a body part, when committed on one person by another, whether such persons are of the same or opposite sex." CP at 73. Defense counsel did not object to either jury instruction.
Regarding the sexual intercourse definition, the State argued in closing: "Sexual intercourse: Any penetration of the vagina or anus, however slight, by an object, including a body part. Intercourse doesn't just have to be a penis in a vagina . . . it also can be a finger . . . [i]t can also be a tongue." 6 RP (Nov. 5, 2007) at 931. Defense counsel did not object.
The jury found Mr. McLane guilty of counts I, IV, V, and VI. The jury found the existence of three aggravating factors alleged by the State. On counts I, IV, and V, the trial court sentenced Mr. McLane to a minimum term of confinement of 340 months, with a maximum term of life, pursuant to RCW 9.94A.712. On count VI, the trial court sentenced Mr. McLane to a term of confinement of 60 months, and community custody for 36 to 48 months, "or for the period of earned release awarded pursuant to RCW 9.94A.728(1) and (2), whichever is longer." CP at 11. Mr. McLane appealed.
ANALYSIS A. Peremptory Challenges
The issue is whether the State's peremptory challenges violated Mr. McLane's rights under the Equal Protection Clause of the Fourteenth Amendment. Mr. McLane contends, for the first time on appeal, that the State violated his right to equal protection by exercising its peremptory challenges to exclude six men from the jury.
We review constitutional challenges de novo. Fusato v. Wash. Interscholastic Activities Ass'n, 93 Wn. App. 762, 767, 970 P.2d 774 (1999). Further, claims of gender discrimination in jury selection may be raised for first time on appeal. See State v. Burch, 65 Wn. App. 828, 838-39, 830 P.2d 357 (1992); State v. Beliz, 104 Wn. App. 206, 214, 15 P.3d 683 (2001).
In contrast, when a trial court rules on a Batson challenge, "[t]he determination of the trial judge is accorded great deference on appeal and will be upheld unless clearly erroneous." State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831, cert. denied, 129 S. Ct. 278, 172 L. Ed. 2d 205 (2008) (internal quotation marks omitted) (quoting State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995)). See also Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Here, the trial court did not rule on the gender discrimination issue.
In Batson v. Kentucky, the Supreme Court held, "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The equal protection guaranty was later extended to prohibit the State from using its peremptory challenges against potential jurors based upon their gender. See Burch, 65 Wn. App. at 833-36 (extending the reasoning of Batson to the use of peremptory challenges based upon a juror's gender); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (confirming "the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender").
Determining whether an equal protection violation occurred during jury selection involves a three-part process. Batson, 476 U.S. at 96-98; see also Beliz, 104 Wn. App. at 213. First, the defendant must "establish a prima facie case of purposeful discrimination." State v. Evans, 100 Wn. App. 757, 763-64, 998 P.2d 373 (2000) (citing State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995)). Second, "[o]nce a prima facie case is shown to exist, the burden shifts to the party exercising the peremptory challenge to give a neutral explanation related to the particular case to be tried." Id. at 764 (citing Luvene, 127 Wn.2d at 699). Third, the trial court must "consider the proffered explanation to determine whether there is a discriminatory purpose behind the exercise of the peremptory challenge." Id. (citing State v. Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149 (1996)). In addition, "if no prima facie case exists, the proponent of the strike is not required to offer a neutral explanation." Id. at 769 (citing State v. Wright, 78 Wn. App. 93, 100-01, 896 P.2d 713 (1995)).
A prima facie case of purposeful discrimination requires first showing "the peremptory challenge was exercised against a member of a constitutionally cognizable group." Burch, 65 Wn. App. at 840. "Second, the defendant must demonstrate that this fact 'and any other relevant circumstances raise an inference' that the prosecutor's challenges of a venire person was based on group membership." Id. (quoting Batson, 476 U.S. at 96). And, "'relevant circumstances' may include a pattern of strikes against members of the group or the particular questions asked during voir dire." Evans, 100 Wn. App. at 764 (citing Rhodes, 82 Wn. App. at 196).
Here, the State exercised six of eight peremptory challenges against a sole gender, male, satisfying the first step in establishing a prima facie case. See J.E.B., 511 U.S. at 129-31, 140-41 (gender discrimination). But, Mr. McLane has not satisfied the second step, that "'other relevant circumstances raise an inference' that the prosecutor's challenge of a venire person was based on group membership." Burch, 65 Wn. App. at 840 (quoting Batson, 476 U.S. at 96). Nothing in the State's questioning of the struck jurors during voir dire suggests a concern with their gender. The fact that the State exercised its peremptory challenges against males, without more, is insufficient to establish a prima facie case of purposeful discrimination. See, e.g., Evans, 100 Wn. App. at 770-71 (declining to find a prima facie case of racial discrimination based solely on the exercise of peremptory challenge against a juror of color).
This case is distinguishable from those cases where gender discrimination in the State's use of its peremptory challenges was found, when raised for the first time on appeal. See Burch, 65 Wn. App. at 828; Beliz, 104 Wn. App. at 206. In both of those cases, the prosecutors justified their exercise of peremptory strikes against jurors in racial minorities by informing the court their intent was to remove women from the jury. Burch, 65 Wn. App. at 832, 841-42; Beliz, 104 Wn. App. at 210, 213-14. Here, in contrast, the State did not indicate it intended to exclude men from the jury. Mr. McLane fails to establish a prima facie case of gender discrimination in jury selection.
B. Evidence Sufficiency, Count I
The issue is whether the evidence presented at trial was sufficient to support Mr. McLane's conviction for first degree rape of a child against M.M., as charged in count I. Mr. McLane contends M.M. did not testify a particular incident of sexual intercourse occurred during the time frame charged in count I, June 1, 2006 to September 1, 2006.
Also, for the first time in his reply brief, Mr. McLane raises ineffective assistance of counsel. Reply Br. at 2. However, Washington appellate courts will not consider arguments raised for the first time in a reply brief. Lewis v. City of Mercer Island, 63 Wn. App. 29, 31, 817 P.2d 408 (1991).
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). "When the sufficiency of the evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Salinas, 119 Wn.2d at 201. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id.
Mr. McLane contends the evidence was insufficient to support his conviction for first degree rape of a child against M.M. as charged in count I. Specifically, Mr. McLane argues M.M. did not testify a particular incident of sexual intercourse occurred during the time frame charged in count I, June 1, 2006 to September 1, 2006. We disagree. Viewing the quoted portion of 3 RP (Oct. 31, 2007) at 427, 429 recited in the facts, a jury could reasonably find Mr. McLane put his private inside M.M.'s private each summer break from when M.M. was age seven through age nine, including the summer break in 2006. While Mr. McLane argues other testimony is ambiguous or conflicting, the jury decides what weight is given to admissible testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (fact finder makes credibility determinations, not appellate court).
Mr. McLane tangentially contends in connection with his evidence insufficiency arguments that jury instruction 11 gave an incomplete definition of sexual intercourse and compounded the alleged evidence sufficiency problem. But he did not object to this instruction in the trial court and the State contends the instruction cannot be challenged for the first time on appeal.
RAP 2.5(a)(3) precludes review of an issue for the first time on appeal unless the trial court committed a "manifest error affecting a constitutional right." See, e.g., State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999). With respect to jury instructions challenged for the first time on appeal, "[a]s long as the instructions properly inform the jury of the elements of the charged crime, any error in further defining terms used in the elements is not of constitutional magnitude." State v. Stearns, 119 Wn.2d 247, 250, 830 P.2d 355 (1992).
Mr. McLane concedes the "to-convict" instruction for count I, jury instruction 6, included all of the elements of that crime. See Appellant's Br. at 17. We agree that jury instruction 6 properly set forth the elements of first degree rape of a child. See RCW 9A.44.073(1) (first degree rape of a child). Because Mr. McLane's claim does not implicate a constitutional error, we decline review. See Stearns, 119 Wn.2d at 250.
Also intertwined with his sufficiency of the evidence argument, Mr. McLane contends the following portion of the State's closing argument exceeded the definition of sexual intercourse set forth in jury instruction 11: "Sexual intercourse: Any penetration of the vagina or anus, however slight, by an object, including a body part. Intercourse doesn't just have to be a penis in a vagina . . . it also can be a finger . . . [i]t can also be a tongue." 6 RP (Nov. 5, 2007) at 931. Mr. McLane did not object to this argument below.
"'To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct by the prosecutor and prejudicial effect.'" State v. O'Donnell, 142 Wn. App. 314, 327, 174 P.3d 1205 (2007) (quoting State v. Munguia, 107 Wn. App. 328, 336, 26 P.3d 1017 (2001)). "[T]he defendant bears the burden of proof on both issues." Id. at 328 (citing Munguia, 107 Wn. App. at 336). Further, "'[a]bsent a proper objection, a defendant cannot raise the issue of prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that no curative instruction would have obviated the prejudice it engendered.'" Id. (quoting Munguia, 107 Wn. App. at 336). Statements made by the prosecutor to the jury regarding the law "must be confined to the law as set forth in the instructions given by the court." State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984) (citing State v. Estill, 80 Wn.2d 196, 199, 492 P.2d 1037 (1972)).
Mr. McLane shows no improper prosecutor conduct. The State properly argued the law as it was given in jury instruction 11, by clarifying that penetration by "an object, including a body part" encompasses penetration by a finger or a tongue. 6 RP (Nov. 5, 2007) at 931. Thus, the State's argument was confined to the law as stated in the jury instructions. See Davenport, 100 Wn.2d at 760 (citing Estill, 80 Wn.2d at 199). Accordingly, Mr. McLane's prosecutorial misconduct argument fails.
C. Sentencing Issues
The first issue is whether the sentence imposed for count V, first degree rape of a child, was erroneous. Mr. McLane contends the sentence was incorrectly imposed pursuant to RCW 9.94A.712, because this statute was not in effect on the date of the offense, January 1, 1998 to December 31, 2000. The State concedes Mr. McLane should not have been sentenced pursuant to RCW 9.94A.712. We accept this concession as a matter of law under our de novo standard of review. See State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007); State v. Murray, 118 Wn. App. 518, 521, 77 P.3d 1188 (2003).
"When determining defendants' potential sentences, trial courts apply the statute in effect at the time the defendant committed the current crimes." State v. Failey, 144 Wn. App. 132, 142, 181 P.3d 875, review granted, 164 Wn.2d 1034 (2008) (citing State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004)). RCW 9.94A.712 was not enacted until 2001. See Laws of 2001, 2d Spec. Sess., ch. 12, § 303. Accordingly, the trial court erred in imposing sentence on count V pursuant to RCW 9.94A.712. We remand for resentencing under the statute in effect at the time of the crime, January 1, 1998 to December 31, 2000. See former RCW 9.94A.120 (2000), recodified as RCW 9.94A.505 by Laws of 2001, ch. 10, § 6.
The second issue is whether the trial court erred in imposing community custody on count VI, third degree child molestation. Mr. McLane contends because the trial court imposed the statutory maximum on count VI, it could not also impose community custody. The State concedes the sentence as stated in the judgment and sentence exceeds the statutory maximum, but contends the proper remedy is remand for clarification of the sentence. "'We review a sentencing court's application of the community custody provisions of the Sentencing Reform Act of 1981, chapter 9.94A RCW, de novo.'" State v. Torngren, ___ Wn. App. ___, 196 P.3d 742, 747 (2008) (quoting State v. Motter, 139 Wn. App. 797, 801, 162 P.3d 1190 (2007), review denied, 163 Wn.2d 1025 (2008)).
On count VI, the court sentenced Mr. McLane to 60 month's confinement, and community custody of 36 to 48 months, "or for the period of earned release awarded pursuant to RCW 9.94A.728(1) and (2), whichever is longer." CP at 11. Third degree child molestation is a class C felony. RCW 9A.44.089(2). The statutory maximum is 60 months. See RCW 9A.20.021(1)(c) (setting forth the maximum sentence for a class C felony). Further, a sentence for this crime must include community custody "for the community custody range established under RCW 9.94A.850 or up to the period of earned release awarded pursuant to RCW 9.94A.728(1) and (2), whichever is longer." RCW 9.94A.715(1). The community custody range for third degree child molestation is 36 to 48 months. WAC 437-20-010 .
"[A] trial court may sentence a defendant to the statutory maximum, including community custody." Torngren, 196 P.3d at 748 (citing State v. Hibdon, 140 Wn. App. 534, 538, 166 P.3d 826 (2007)). "The sentence is valid when the judgment and sentence 'set[s] forth the statutory maximum and clearly indicate[s] that the term of community [custody] does not extend the total sentence beyond that maximum.'" Id. (alterations in original) (quoting Hibdon, 140 Wn. App. at 538). "Where the judgment and sentence does not so indicate, an appropriate remedy is to remand for clarification of the sentence." Hibdon, 140 Wn. App. at 538 (citing State v. Sloan, 121 Wn. App. 220, 224, 87 P.3d 1214 (2004)). An alternative remedy is a remand for resentencing. Id. (citing State v. Zavala-Reynoso, 127 Wn. App. 119, 124, 110 P.3d 827 (2005)).
Mr. McLane was sentenced to the statutory maximum on count VI, plus community custody, but the judgment and sentence does not indicate the community custody term does not extend the sentence beyond the statutory maximum of 60 months. Accordingly, the case is remanded for sentencing clarification. See Hibdon, 140 Wn. App. at 538. On remand, the judgment and sentence must be amended to indicate the community custody term on count VI does not extend the total sentence beyond the statutory maximum of 60 months. See Torngren, 196 P.3d at 748 (quoting Hibdon, 140 Wn. App. at 538).
Affirmed, remanded for resentencing on count V and sentencing clarification of count VI.
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 2.06.040.
SCHULTHEIS, C.J. and SWEENEY, J., concur.