Opinion
83322-7-I
05-22-2023
THE STATE OF WASHINGTON, Respondent, v. RANDY LEE ROYAL, Appellant.
BOWMAN, J.
Randy Lee Royal appeals his jury conviction for second degree rape. Royal argues the State failed to prove his prior convictions in calculating his offender score. He also claims that the trial court erred by denying his motion to sever an additional second degree rape charge. In the published portion of our opinion, we hold that when a defendant affirmatively presents his criminal history to the trial court in a presentence memorandum for the purpose of calculating his offender score, he acknowledges those convictions under RCW 9.94A.530(2) and relieves the State of its burden to prove them. In the unpublished portion of our opinion, we conclude that the trial court did not abuse its discretion by denying Royal's motion to sever. We affirm.
We discuss only those facts presented to the trial judge at the motion to sever.
On October 4, 2019, B.T. was homeless and living in White Center. Late that evening, she was sitting in a stairwell behind a strip mall. At some point, Royal approached B.T., asking if she wanted to smoke methamphetamine (meth). B.T. knew Royal and agreed to smoke with him. Royal hung blankets around the area to shield them from public view. B.T. and Royal then smoked meth together.
Without warning, Royal punched B.T. in the face and told her that if she resisted, he would hit her again. He then pulled off B.T.'s pants and raped her for several hours. During the assault, Royal instructed B.T. to hold a pipe to his mouth so that he could smoke meth while raping her. In the early morning of October 5, Royal allowed B.T. to put on her clothes. As Royal put on his shoes, B.T. fled. She ran to a nearby Starbucks and used the barista's cell phone to call the police. When they arrived, B.T. told the police that Royal assaulted her. Officers interviewed B.T. and photographed the area where the assault occurred.
Late in the evening on January 28, 2020, Royal approached S.W. while she waited at a bus stop in White Center. S.W. recognized Royal but knew him only as "R&R." Royal asked if she wanted to" 'smoke some drugs.'" S.W. agreed, and they went to a nearby vacant townhome still under construction. They entered one of the unfinished rooms and Royal put up pieces of drywall to block the opening. After they smoked meth, Royal removed his pants and told S.W. to" 'suck his dick.'" She refused, and Royal punched her in the face, breaking her glasses and cutting the bridge of her nose. Royal then told her that if she resisted, he would kill her. Royal forced S.W. to undress and raped her for several hours. During the assault, Royal took several breaks so that he could smoke meth. Early the next morning on January 29, S.W. fled and ran to her aunt's house nearby. She reported the assault to police the next day on January 30.
The bus stop is in front of the Department of Social and Health Services (DSHS) White Center Community Services Office.
On April 28, 2020, officers arrested Royal after an incident with E.C. On May 1, 2020, the State charged Royal with one count of second degree rape of S.W. On February 26, 2021, the State amended the information, adding one count of second degree rape of B.T. and asserting all charges were part of a common scheme or plan.
The State also charged Royal with one count of second degree assault of E.C. with sexual motivation and one count of false imprisonment of E.C. Those charges are not at issue in this appeal.
The State also added one count of second degree assault of Z.M. That charge is not at issue in this appeal.
Before trial, Royal moved to sever the charges. He argued that he could not have a fair trial if the jury heard evidence from both counts. The State responded that the jury would hear evidence from each case regardless because it was cross admissible to show a common scheme or plan. The trial court denied Royal's motion, determining that the rapes "appear to have been carried out in the same manner. . . . [S]o, . . . B.T. and S.W. can be tried together."
The court severed the charges involving E.C. and Z.M.
At trial, B.T. testified that after speaking to police, she went to Harborview Medical Center to complete a sexual assault examination. A police detective testified that law enforcement did not process the rape kit in time for trial. During cross-examination of B.T., defense counsel attacked her credibility and elicited several statements inconsistent with her earlier statements to the police.
After B.T.'s testimony, Royal renewed his motion to sever. He made no substantive argument and referred the court to his pretrial severance motion. The court again denied the motion to sever.
S.W.'s testimony mostly aligned with her earlier statements to police. She testified that she also completed a sexual assault examination, which included a vaginal swab. DNA analysis confirmed the presence of Royal's DNA. During cross-examination of S.W., defense counsel also attacked her credibility.
Deoxyribonucleic acid.
At the close of trial, defense counsel argued that B.T. was not credible because of the multiple inconsistent statements in her testimony. And he argued that S.W. consented to sex with Royal in exchange for drugs. The jury acquitted Royal of second degree rape of B.T. but convicted him of second degree rape of S.W.
Before sentencing, Royal moved for arrest of judgment and a new trial. The court denied the motion. In his sentencing memorandum, Royal represented that his "offender score is 9+ based on his criminal history." He then listed these 10 adult and 2 juvenile felony convictions as his criminal history:
[C]ontrolled substance distribution, theft in the first degree, attempt to elude a police vehicle, theft in the first degree, escape in the
second degree, conspiracy to deliver cocaine, promoting prostitution in the second degree, taking a motor vehicle without permission, possession of stolen property in the first degree and possession of stolen property in the second degree. . . . Royal also has juvenile felony convictions for theft in the second degree and robbery in the first degree.
Royal asserted that his "sentencing range . . . is 210 to 280 months."
At his sentencing hearing on October 8, 2021, Royal again agreed to the calculation of his offender score and standard range:
[PROSECUTOR:] Before we move forward, I'll ask - well, the State calculates his offender score as a 14. This crime has a seriousness level of 11, a standard range of 210 to 280 months on indeterminate sentence, maximum term of life in prison, and/or $20,000. I'll ask [defense counsel] if he agrees with that. [DEFENSE COUNSEL]: Yes, that's correct.
The trial court sentenced Royal to a mid-range, indeterminate sentence of 245 months to life. Royal appeals.
ANALYSIS
Offender Score
Royal argues that "[t]here was insufficient evidence to establish [his] criminal history and offender score." We disagree. Because Royal affirmatively agreed to all but two of his prior convictions, he relieved the State of its obligation to prove them. And excluding the two unproved convictions from Royal's offender score does not change his standard range, so that error is harmless and does not warrant resentencing.
Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the trial court determines a standard sentencing range using a grid based on a crime's seriousness and a defendant's offender score. RCW 9.94A.505, .510, .520, 525. An offender score is the sum of points accrued for prior and current convictions. RCW 9.94A.525.
The State must prove the existence of a defendant's prior convictions by a preponderance of the evidence. State v. Cate, 194 Wn.2d 909, 912-13, 453 P.3d 990 (2019). Bare assertions of a defendant's criminal history are not enough. State v. Hunley, 175 Wn.2d 901, 910, 287 P.3d 584 (2012). The State must provide some kind of evidence to satisfy its burden. Id. "This reflects fundamental principles of due process, which require that a sentencing court base its decision on information bearing 'some minimal indicium of reliability beyond mere allegations.'" State v. Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009) (quoting State v. Ford, 137 Wn.2d 472, 481, 973 P.2d 452 (1999)). Such evidence may include certified copies of prior judgments, comparable documents of record, or transcripts of prior proceedings. State v. Wilson, 113 Wn.App. 122, 136, 52 P.3d 545 (2002). A sentencing court must "specify the convictions it has found to exist," and all of this information "shall be part of the record." RCW 9.94A.500(1). Whether a prior felony exists" 'is a question of fact.'" State v. Arndt, 179 Wn.App. 373, 378, 320 P.3d 104 (2014) (quoting In re Pers. Restraint of Adolph, 170 Wn.2d 556, 566, 243 P.3d 540 (2010)).
Emphasis and internal quotation marks omitted.
We review a sentencing court's calculation of an offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816 (2007). But we review underlying factual determinations for abuse of discretion. In re Pers. Restraint of Toledo-Sotelo, 176 Wn.2d 759, 764, 297 P.3d 51 (2013). A court abuses its discretion when its decision is unreasonable or exercised on untenable grounds or for untenable reasons. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
While the burden to prove criminal history generally rests with the State, a court may rely on information "admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing" to determine a defendant's sentence. RCW 9.94A.530(2). The State's burden to prove prior convictions is relieved "only if the defendant affirmatively acknowledges the alleged criminal history." Hunley, 175 Wn.2d at 917. A defendant's "mere failure to object" to State assertions of criminal history at sentencing does not result in an "acknowledgment." Id. Nor does a defendant affirmatively acknowledge his prior convictions by agreeing to the State's sentencing recommendation, the standard sentencing range, or the offender score. Mendoza, 165 Wn.2d at 928; State v. Ramirez, 190 Wn.App. 731, 734, 359 P.3d 929 (2015).
Royal argues that "[w]ithout certified copies of [his] prior convictions, it was impossible for the court to accurately determine [his] offender score." But Royal presented his criminal history to the court in his presentence memorandum for the purpose of calculating his offender score. Royal's assertion of his criminal history amounts to an affirmative acknowledgment of facts and information introduced for the purpose of sentencing. See Mendoza, 165 Wn.2d at 928. So, the trial court could rely on those facts and information in calculating his offender score. See RCW 9.94A.530(2).
Even so, the judgment and sentence shows the trial court included in his offender score two prior adult convictions that Royal did not affirmatively acknowledge-possession of stolen property in the second degree and conspiracy to deliver a substance in lieu of a controlled substance. Because the State failed to prove the existence of those convictions by a preponderance of the evidence, the trial court erred by counting them in Royal's offender score.
Generally, the remedy for an incorrect offender score is resentencing using a corrected score. State v. Schwartz, 194 Wn.2d 432, 438, 450 P.3d 141 (2019). But a recalculated offender score that does not affect a defendant's standard range is harmless unless the trial court conveyed a desire to impose a sentence at the low end of the standard range. State v. Argo, 81 Wn.App. 552, 569, 915 P.2d 1103 (1996); State v. Kilgore, 167 Wn.2d 28, 41-42, 216 P.3d 393 (2009); see, e.g., State v. Derri, 17 Wn.App. 2d 376, 411 n.14, 486 P.3d 901 (2021) (error in offender score was harmless when the State failed to prove a juvenile conviction, resulting in an offender score of 16 instead of 17), aff'd, 199 Wn.2d 658, 511 P.3d 1267 (2022). Royal's recalculated offender score reduces from 14 to 12. The recalculated score does not impact his standard range. And the record here does not show that the trial court wanted to sentence Royal to the low end of the standard range. As a result, the trial court's error was harmless and we need not remand for resentencing.
We recognize that another panel from this court relied on McCorkle to hold that an offender score error that does not affect the standard range is not harmless when the" 'record does not clearly indicate that the sentencing court would have imposed the same sentence' without the erroneous offender score." State v. Griepsma, 17 Wn.App. 2d 606, 621, 490 P.3d 239 (quoting State v. McCorkle, 88 Wn.App. 485, 499-500, 945 P.2d 736 (1997), aff'd, 137 Wn.2d 490, 973 P.2d 461 (1999)), review denied, 198 Wn.2d 1016, 495 P.3d 844 (2021). But McCorkle relies on Parker, which held that "[w]hen the sentencing court incorrectly calculates the standard range . . ., remand is the remedy unless the record clearly indicates the sentencing court would have imposed the same sentence anyway." McCorkle, 88 Wn.App. at 499; State v. Parker, 132 Wn.2d 182, 189, 937 P.2d 575 (1997) (emphasis added). Because the incorrect offender score here did not affect Royal's standard range, the analysis in McCorkle does not apply.
Because we conclude that the trial court properly relied on Royal's affirmative acknowledgment of his criminal history in calculating his offender score, we do not address the State's argument that Royal invited the error.
The panel has determined that the rest of this opinion has no precedential value and should not be published in accordance with RCW 2.06.040.
Severance
Royal argues that the trial court erred by denying his motion to sever because he was "unduly prejudiced by the prosecution of both rape counts in a single trial." We disagree.
We review an order denying severance for manifest abuse of discretion. State v. Thanh Pham Nguyen, 10 Wn.App. 2d 797, 814, 450 P.3d 630 (2019). "Severance" refers to "dividing joined offenses into separate charging documents." State v. Bluford, 188 Wn.2d 298, 306, 393 P.3d 1219 (2017). Under CrR 4.3(a)(1), the trial court has considerable discretion to join two or more offenses of "the same or similar character, even if not part of a single scheme or plan." State v. Eastabrook, 58 Wn.App. 805, 811, 795 P.2d 151 (1990). Still, under CrR 4.4(b), the court "shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." A defendant seeking severance must show that a single trial on both counts" 'would be so manifestly prejudicial as to outweigh the concern for judicial economy.'" State v. Moses, 193 Wn.App. 341, 359-60, 372 P.3d 147 (2016) (quoting State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990)).
To determine whether potential prejudice warrants severance, the trial court must consider
"(1) the strength of the State's evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial."Thanh Pham Nguyen, 10 Wn.App. 2d at 815 (quoting State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994)). The court must also weigh any potential prejudice against the judicial economy of a joint trial. Id.
1. Strength of the Evidence
The first severance factor concerns the relative strength of the State's evidence on each count. Russell, 125 Wn.2d at 63. Severance may be proper when the evidence on one count is "remarkably stronger" than the other. State v. MacDonald, 122 Wn.App. 804, 815, 95 P.3d 1248 (2004). Evidence is strong enough on each count if it would allow a rational jury to find the defendant guilty of each charge independently. See State v. Bryant, 89 Wn.App. 857, 867, 950 P.2d 1004 (1998); Bythrow, 114 Wn.2d at 721-22.
Here, both cases largely turned on credibility. And both victims detailed the allegations of sexual assault. B.T. knew Royal and immediately identified him as the person who raped her. S.W. was less familiar with Royal but was able to identify him as "R&R." The evidence on both counts would allow a rational jury to find Royal guilty of each charge independently, and there was no significant difference in the strength of the State's evidence on each count.
Royal argues the State's evidence as to B.T. was "relatively weaker" because DNA evidence supported S.W.'s case and B.T. damaged her credibility on cross-examination. But this information was not before the court when it denied severance. And we review "only the facts known to the trial judge at the time" of the pretrial motion. Bluford, 188 Wn.2d at 310. While Royal renewed his motion to sever after B.T.'s testimony, he made no argument that the relative strength of each count changed during trial. Instead, he referred the trial court back to the argument in his pretrial brief.
2. Clarity of Defenses
The second severance factor is whether joinder prejudiced the clarity of the accused's defenses to each count. Russell, 125 Wn.2d at 64. A trial court must sever counts if "the defendant makes a convincing showing . . . that he has both important testimony to give concerning one count and a strong need to refrain from testifying about the other." State v. Weddel, 29 Wn.App. 461, 468, 629 P.2d 912 (1981). But "a defendant's mere desire to testify only to one count is an insufficient reason to require severance." Id. at 467.
Royal claims joinder prejudiced him because he had a "strong need to testify" about S.W.'s alleged consent "but not about his denial of [B.T.'s] count." But Royal does not identify what testimony he planned to offer in defense of S.W.'s allegations or why joinder precluded him from testifying. He states only that his defense "would have been enhanced by his own testimony." Royal fails to show he had important testimony to offer in one case and a strong need to refrain from testifying in the other.
It is likely Royal chose not to testify in S.W.'s case to avoid being impeached by his own statements. When police arrested Royal in April 2020, he told them that he met S.W. at a "trap house" and that "they didn't meet at DSHS." He said they smoked meth and S.W. performed oral sex on him in a "port-a-potty" at the construction site. And he denied assaulting her. The trial court determined that Royal's statements were admissible under CrR 3.5, but the State did not offer them at trial. In his motion for arrest of judgment, Royal argued that he "could have been impeached with these statements if he chose to testify" and that the court's refusal to exclude those statements "affected [his] decision not to testify on [S.W.'s] Count."
3. Jury Instructions
The third severance factor is whether the trial court properly instructed the jury to consider each count separately. Russell, 125 Wn.2d at 66. Royal concedes that the court properly instructed the jury. And the record shows the court told the jury that "[a] separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." We presume the jury followed the court's instructions. Id. at 84.
4. Cross Admissibility
The fourth severance factor asks whether evidence of each count would likely be cross admissible under ER 404(b) if the court granted severance. Russell, 125 Wn.2d at 66. Under ER 404(b),
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Here, the State argued evidence of each count would be cross admissible to show that Royal acted under a common scheme or plan.
There are two categories of common scheme or plan evidence: (1) "[W]here several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan" and (2) where "an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes." State v. Lough, 125 Wn.2d 847, 854-55, 889 P.2d 487 (1995). The State argued and the court agreed that the evidence here would satisfy the second category.
Evidence of a common scheme or plan is not offered to show the defendant's propensity to commit a crime. See State v. Gresham, 173 Wn.2d 405, 422, 269 P.3d 207 (2012). Instead, the evidence is offered to show that the defendant developed a plan to commit the alleged crime and acted in conformity with that plan. Id. To admit evidence of such a plan "requires substantial similarity between the prior bad acts and the charged crime." State v. DeVincentis, 150 Wn.2d 11, 21, 74 P.3d 119 (2003). And "a common plan or scheme may be established by evidence that the defendant 'committed markedly similar acts of misconduct against similar victims under similar circumstances.'" Id. at 27 (Chambers, J., concurring) (quoting Lough, 125 Wn.2d at 852); see, e.g., Gresham, 173 Wn.2d at 422-23 (defendant's prior acts were similar enough to demonstrate a common plan when they showed that he "took a trip with young girls and at night, while the other adults were asleep, approached those girls and fondled their genitals"); State v. Slocum, 183 Wn.App. 438, 455, 333 P.3d 541 (2014) (defendant's prior acts were similar enough to demonstrate a common plan when they showed that he invited both victims to sit with him in his recliner so that he could touch their privates).
Here, the allegations against Royal were similar enough to support the trial court's determination that they would likely amount to a common scheme or plan. In each case, Royal approached homeless women late at night. He lured them with the offer of drugs and secured privacy with each victim by moving objects to conceal his actions from public view. And he gained compliance by suddenly punching each victim in the face and threatening further violence. The trial court did not abuse its discretion by concluding that the evidence on each charge would likely be cross admissible to show a common scheme or plan.
Royal is about six feet five inches tall and weighs over 200 pounds. B.T.'s defense counsel described him as "twice her size." S.W. told police that Royal is "much bigger than her in stature" and testified at trial that he is "a lot stronger than I am."
Citing Bluford, 188 Wn.2d at 312-13, Royal argues that the trial court abused its discretion because the evidence was not distinct enough to show modus operandi. But Royal confuses the concept of modus operandi with common scheme or plan. The purpose of modus operandi evidence is to" 'corroborate the identity of the accused as the person who likely committed the offense charged.'" State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984) (quoting State v. Irving, 24 Wn.App. 370, 374, 601 P.2d 954 (1979)). Evidence is admissible to prove modus operandi
"only if the method employed in the commission of both [the prior act and the charged offense] is 'so unique' that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged."State v. Foxhoven, 161 Wn.2d 168, 176, 163 P.3d 786 (2007) (quoting Vy Thang, 145 Wn.2d at 643) (quoting Russell, 125 Wn.2d at 66-67)). But Royal's identity was never at issue. And the record shows that the trial court's determination rested on common scheme or plan, not modus operandi.
At the severance motion hearing, the State argued that evidence for each charge was cross admissible to show a common scheme or plan. The trial court determined that "B.T. and S.W. look like part of the same [modus operandi]. . . . And it really shows a similar method between the two alleged victims." But the court determined that the evidence was cross admissible because "these rapes allegedly appear to have been carried out in the same manner." And later, the court clarified that "I believe, my ruling was that this was [ER] 404(b) evidence of a common scheme or plan."
5. Judicial Economy
Finally, we balance any residual prejudice resulting from a joint trial against the need for judicial economy. Russell, 125 Wn.2d at 63. "A single trial obviously only requires one courtroom and judge. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is significantly reduced when the offenses are tried together." Bythrow, 114 Wn.2d at 723. "Furthermore, the reduced delay on the disposition of the criminal charges, in trial and through the appellate process, serves the public." Id. Here, the balance in favor of judicial economy is clear because Royal fails to show prejudice under any of the severance factors.
Royal's acquittal on B.T.'s charge also evidences a lack of prejudice.
Because Royal affirmatively acknowledged his criminal history in his presentence memorandum for the purpose of calculating his offender score, the trial court did not err in relying on that information. And including two unproved convictions in his score resulted in harmless error. Finally, the court did not abuse its discretion by denying Royal's motion to sever. We affirm his conviction and sentence.