Opinion
No. 27104-4-II.
Filed: January 3, 2003. PUBLISHED IN PART. DO NOT CITE UNPUBLISHED PORTION. SEE RAP 10.4(h).
John F. Raymond, for appellant (appointed counsel for appeal).
Juelie B. Dalzell, Prosecuting Attorney, and Michael E. Haas, Deputy, for respondent.
Charles H. Robinson appeals his conviction for first degree child molestation and his sentence to life imprisonment without the possibility of parole. He argues that the trial court erred in excluding testimony of a jail acquaintance and in finding him to be a persistent offender under former RCW 9.94A.030(29) (1999). Finding no reversible error, we affirm.
FACTS
A jury convicted Robinson of first degree child molestation. At sentencing, the State presented evidence of Robinson's previous California conviction for a lewd and lascivious act with a child under the age of 14, contrary to California Penal Code sec. 288(a) (Deering). Specifically, Robinson performed fellatio or fondled the genitalia of a six-year old or had the six-year old fondle him for purposes of Robinson's sexual gratification. The sentencing court found this prior California conviction comparable to felony child molestation in the state of Washington.
In their briefs and at sentencing, the parties refer to the defendant's violation of California Penal Code sec. 288(a) as a "conviction"; the Clerk's Papers show that a Charles H. Robinson, presumably the defendant, pled guilty. It appears that the California documents in the Clerk's Papers (CP) at 34-50, use the terms "plea" and "conviction" interchangeably.
California Penal Code sec. 288(a) provides: Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.
Based on this prior California conviction, the sentencing court found Robinson to be a "Persistent offender" under former RCW 9.94A.030(29)(b)(i)-(ii) and sentenced him to life in prison without the possibility of parole.
ANALYSIS PERSISTENT OFFENDER STATUS
Robinson argues that his California conviction for lewd and lascivious acts with a child under 14 should not count as a prior conviction in Washington for purposes of persistent offender status under former RCW 9.94A.030(29)(b) because former RCW 9.94A.030(29)(b)(i) does not expressly include "lewd and lascivious acts with a child" among the enumerated crimes. We disagree.
Former RCW 9.94A.030(29) provided in relevant part: "Persistent offender" is an offender who:
. . . .
(b)(i) Has been convicted of: (A) Rape in the first degree, rape of a child in the first degree, child molestation in the first degree, rape in the second degree, rape of a child in the second degree, or indecent liberties by forcible compulsion; . . . .
(ii) Has, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection.
Division One has specifically rejected this reading of the same version of Washington's "two strikes" law in State v. Lawrence, 108 Wn. App. 226, 31 P.3d 1198 (2001), review denied, 145 Wn.2d 1037 (2002). Just as Robinson argues here,
Lawrence claim[ed] that whether an out-of-state conviction constitutes a strike turns, not on the acts committed, but on the name assigned to the offending conduct by the foreign jurisdiction.
The statute does not require such an absurd result. The statute lists certain substantive crimes and counts the convictions for those crimes whether committed in Washington or elsewhere. Whether an out-of-state conviction is equivalent to a crime listed in the statute requires a factual inquiry into the elements. Lawrence's crime involves both threat and use of actual force, and a resulting injury. Thus, Lawrence's prior conviction was for a crime with elements the same as those of a crime named in Washington's statute. It is a strike under Washington law.
Lawrence, 108 Wn. App. at 241. The Lawrence court held that whether an out-of-state conviction counts as a "strike" depends, not the name of the crime committed in another state, but rather on a "factual inquiry into the elements." Id.
Division One reiterated this holding while considering a more recent version of the statute, RCW 9.94A.030(31)(b): "It is consistent with [the statute's purpose] that the applicability of the two strikes statute turn on the comparability of criminal conduct rather than nomenclature . . . ." State v. Delgado, 109 Wn. App. 61, 67, 33 P.3d 753 (2001), review granted in part, 146 Wn.2d 1008, 52 P.3d 520 (2002).
We decline Robinson's invitation to adopt a strict test whereby we compare the enumerated statutory elements of an out-of-state-conviction to see if they match the statutory elements in the Washington analogue. Cf. State v. Russell, 104 Wn. App. 422, 442-43, 16 P.3d 664 (2001). Rarely will courts find a perfect, one-to-one match between the statutory elements of different states' corresponding crimes. Rather, we, like Division One, read the persistent offender statute and its purpose as articulating the Legislature's intent that the underlying conduct or facts of the crimes be compared. Accordingly, we adopt Division One's reasoning in Lawrence.
In Russell, we advanced a three-part test for determining the sentencing consequences of an out-of-state conviction for "three-strikes" persistent offender status under former RCW 9.94A.360(3). But as we noted in that case, "[T]he effort is to ensure that the out-of-state court found each element of the Washington counterpart crime, just as a Washington court would have if the defendant had been prosecuted here." Russell, 104 Wn. App. at 443.
The underlying facts of Robinson's California conviction involved performing felatio on a six-year-old boy and fondling the boy's genitals. The statutory elements of California Penal Code sec. 288(a) (lewd and lascivious acts upon a child) and Washington's child rape and molestation statutes differ. Nonetheless, performing fellatio on a six-year-old (14-year-old statutory threshold) in California is clearly comparable to at least first degree child molestation in Washington (12-year-old statutory threshold). And first degree child molestation is a prior strike under Washington's former persistent offender statute, RCW 9.94A.030(29)(b)(i).
In addition to the facts in the presentence report, Deputy Godsey testified that Robinson admitted to being a convicted sex offender and that Robinson told him, "'To be honest with you,'" or 'To be blunt with you, I let him f**k me, and then I sucked him off.'" Report of Proceedings (RP) at 60.
See n. 2 for the text of California Penal Code sec. 288(a).
Washington's child rape and molestation statutes are RCW 9A.44.073, .076, .079, .083, .086, and .089.
RCW 9A.44.083 defines first degree child molestation as follows: (1) A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim. (2) Child molestation in the first degree is a class A felony.
Accordingly, we hold that the trial court correctly classified Robinson as a persistent offender and committed no error in sentencing him to life in prison without the possibility of parole. Thus, we affirm.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and QUINN-BRINTNALL, JJ., concur.
Petition for review granted, decision of the Court of Appeals vacated, and case remanded to the trial court for resentencing at 149 Wn.2d 1032 (2003).
ADDITIONAL FACTS
The State charged 36-year-old Robinson with molesting four-year-old W.B. on or between May 15, 2000, and July 27, 2000. W.B. did not testify at trial. The trial court admitted W.B.'s out-of-court child hearsay statements indicating that Robinson had made sexual contact with him. W.B. made these statements to his mother, Christina Garner; Jefferson County Sheriff's Deputy Hyram Godsey and Detective Sherie Dills; and Cheryl Graf, a nurse with the Sexual Assault Nurse Examiner's program.
The original information charged "June 2000," later amended to July 27, 2000. RP at 273.
Garner testified that in July 2000, W.B. told her that Robinson had touched his genitals; that W.B. had nightmares about Robinson; and that W.B. began attempting to have sex with his younger sister. Garner replied, "No," when the State asked her whether she was fabricating her testimony. On cross-examination, Robinson did not ask Garner about any conflicting conversations she might have had with Barry Wang.
Apparently, Wang was an acquaintance of Garner's who was in jail at the time of the trial. During the child hearsay/capacity hearing, defense counsel asked Garner if she knew a Barry Wang, Jr. Garner stated that she did not.
Later, during the defense case, Robinson attempted to offer Wang's testimony to impeach Garner. During an offer of proof outside the presence of the jury, Garner testified that she had met Wang twice and that she had never discussed Robinson with Wang. The State did not cross-examine Garner.
During a second defense offer of proof, Wang testified that Garner had told him that she was angry with Robinson and that the molestation allegations against him were untrue. The trial court ruled Wang's testimony inadmissible, primarily because Robinson failed to lay an adequate foundation during his cross-examination of Garner. Robinson now asserts that this ruling was incorrect.
ANALYSIS
(Pertaining to Exclusion of Wang's Testimony)
We review a trial court's decision to exclude evidence for an abuse of discretion. State v. Ellis, 136 Wn.2d 498, 504, 963 P.2d 843 (1998). An abuse of discretion occurs when a trial court decision is manifestly unreasonable or based on untenable grounds. State v. Harris, 97 Wn. App. 865, 869, 989 P.2d 553 (1999). Trial court discretion is limited by a defendant's right to confrontation, guaranteed by the federal and state constitutions. See U.S. Const. Amend. VI; Wash. Const. art. I, § 22.
A defendant's right to confrontation includes the right to impeach the State's witnesses with evidence of bias or prior inconsistent statements. State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998) (citing Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)); State v. Dickenson, 48 Wn. App. 457, 470, 740 P.2d 312, review denied, 109 Wn.2d 1001 (1987). Bias evidence includes the testimony of independent witnesses. See State v. Jones, 25 Wn. App. 746, 751, 610 P.2d 934 (1980).
We have previously held that "[i]t is reversible error to deny a defendant the right to establish the chief prosecution witness's bias by an independent witness." State v. Spencer, 111 Wn. App. 401, 408, 45 P.3d 209 (2002). Nonetheless, the harmless error rule may apply even when the error is constitutional, but only if the error was harmless beyond a reasonable doubt. State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980).
Alternatively, under the "untainted evidence test," we examine only the untainted evidence to determine "if it is so overwhelming that it necessarily leads to a finding of guilt." State v. Dickenson, 48 Wn. App. at 470. This determination "is made from an examination of the record from which it must affirmatively appear the error is harmless." Stephens, 93 Wn.2d at 191 (quoting State v. Burri, 87 Wn.2d 175, 182, 550 P.2d 507 (1976). Assuming, without deciding, that excluding Wang's testimony about Garner's possibly biased and inconsistent statements was error, such error was harmless beyond a reasonable doubt.
Here, Robinson admitted to Deputy Godsey that he had twice felt W.B's penis between his fingers, at which point Robinson said, "I told myself, 'I can't do this.' I pulled my hand out, I put my fingers together, put my hand back in, and zipped up his pants." Report of Proceedings at 186. W.B. also told Deputy Godsey that Robinson had touched his private area. Additionally, W.B. gave multiple statements to Detective Dills and Graf about having had sexual contact with Robinson.
The only contradictory testimony was that (1) W.B. initially said, "No," in response to a question about whether Robinson had touched him where he did not like, RP at 233; and (2) W.B. was sitting on his mother's lap during part of his physical examination by Graf. But these two relatively minor discrepancies do not create reasonable doubt even when combined with an attempt to impeach Garner with Wang's testimony.
While Wang's testimony arguably could have impeached Garner, Robinson offered no affirmative evidence to impeach the credibility of any of the State's other witnesses. Nor did Robinson recant his own confession, which is strong corroborating evidence of his molestation of W.B. The evidence presented by these other witnesses and Robinson's testimony is more than sufficient to support the conviction. Therefore, any error in excluding Wang's arguably impeaching testimony was harmless beyond a reasonable doubt.
We affirm Robinson's conviction for first degree child molestation.