Opinion
No. 31207-7-II
Filed: March 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 03-1-01412-9. Judgment or order under review. Date filed: 12/09/2003. Judge signing: Hon. Richard D Hicks.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
James Steven Saldecke appeals his convictions of second degree rape, second degree attempted rape, and indecent liberties. We affirm.
FACTS I. Day One
In July 2003, Tina Nelson came from Alaska to visit her cousin, Christine Eddy, in Olympia, Washington. While staying at Eddy's home, Ms. Nelson met James Saldecke. Ms. Nelson testified that Saldecke came to Eddy's residence and the three of them began watching a movie. Eddy fell asleep, and Saldecke bit Ms. Nelson's neck and touched her breast, leg, and vagina. She told him to stop but he continued touching and biting her throughout the movie.
Eventually, Ms. Nelson got up and went into her bedroom, and Saldecke followed her. She testified that she did not invite him into her room. Once inside, Saldecke repeatedly told Ms. Nelson to remove her clothes. She refused twice and then removed her clothing. Saldecke began kissing Ms. Nelson, touching her breasts, biting her neck, and then proceeded to have intercourse with her. Ms. Nelson told Saldecke to stop touching her, and she attempted to push him away but could not because he was holding her hands behind her head. In response, Saldecke stated, 'Stop it. You know you like it.' 2 Report of Proceedings (RP) (Oct. 28, 2003) at 22. Ms. Nelson testified that she did not report the rape or tell anyone what had happened because she 'didn't know what to do.' 2 RP at 23.
II. Day Two
Saldecke remained at Eddy's home throughout the following day. While Saldecke and Ms. Nelson were sitting on the couch, he touched her inside her vagina and on her breast, and she again told him to stop. Saldecke told her to 'just sit there,' so she moved Saldecke's hand and got up from the couch. 2 RP at 25. That evening, Saldecke again followed Ms. Nelson into her bedroom and instructed her to take off her clothes. Ms. Nelson refused, and he attempted to take off her pajamas. She kept 'pulling them back up,' but eventually took them off. 2 RP at 26. Saldecke began having intercourse with Ms. Nelson. She testified that she told him to 'get off' of her and that she could not break away because he was holding her hands down. 2 RP at 26.
Saldecke then asked Ms. Nelson to perform oral sex on him. When she refused, he yelled at her, 'smacked' her in the face, pulled her hair, and shoved his penis into her mouth. 2 RP at 48. Ms. Nelson attempted to move her head and later testified that Saldecke became frustrated and eventually gave up. Saldecke fell asleep in Ms. Nelson's bed; she could not wake him so she 'just kind of lay [sic] weird on the bed and went to sleep.' 2 RP at 27.
III. Day Three
Saldecke again remained in Eddy's home the following day. He continued biting Ms. Nelson on the neck, kissing her, and touching her inside her vaginal area and on her breast. Saldecke told Ms. Nelson that he wanted to go into her bedroom. Ms. Nelson testified that she said, 'No. My baby's awake,' and he grabbed her arm and pushed her toward the bedroom. 2 RP at 28. Once inside, Saldecke partially undressed and then attempted to take off Ms. Nelson's pants. He told Ms. Nelson to perform oral sex on him but she refused. Saldecke 'tried shoving [her] head down there toward his thing anyway' but was interrupted when Eddy's caretaker entered the room. 2 RP at 29.
After they left the bedroom, Saldecke told Ms. Nelson that he had 'errands to run' and asked her for a ride. 2 RP at 30. Ms. Nelson testified that she agreed because 'that way he would have at least left.' 2 RP at 30. As she dropped him off, he threatened her, stating, 'I better not catch you with another guy, or any guy, and I will check up on you and I will know.' 2 RP at 30.
When Ms. Nelson returned to Eddy's home, she told Eddy what had happened. She testified that she was scared of Saldecke because he had threatened her. The police were notified, and they took pictures of bruises on Ms. Nelson's face, neck, and arm. Ms. Nelson was then taken to the hospital for a sexual assault examination. During the exam, Ms. Nelson told Trudy Lyons, the sexual assault nurse examiner, what had happened.
The State charged Saldecke with three counts of second degree rape (counts I-III), one count of second degree attempted rape (count IV), and one count of indecent liberties (count V). Count I concerned the penile-vaginal intercourse occurring on day one; count II concerned the penile-vaginal intercourse occurring on day two; count III concerned the oral intercourse occurring on day two; count IV concerned the attempted oral intercourse occurring on day three; and count V concerned Saldecke sexually touching and biting Ms. Nelson.
IV. Trial Sentencing
During trial, Saldecke moved to exclude testimony by Lyons relating Ms. Nelson's statements during her sexual assault examination because Ms. Nelson's statements were not made for purposes of medical diagnosis or treatment as required by ER 803(a)(4). The court denied this motion.
After taking the stand, Lyons testified that she had no memory of Ms. Nelson's statements during her examination and that she needed to refer to her notes. In response, the trial court stated, 'Now we've moved from Evidence Rule 803(a)(4) to Evidence Rule 803(a)(5). Any objections Mr. Reed?' 3 RP (Oct. 29, 2003) at 16. Saldecke's counsel replied, 'No, your Honor, other than what we had discussed previously on a different subject.' 3 RP at 16. The trial court permitted Lyons to read her notes as a prior recorded recollection under ER 803(a)(5), and it did not permit the State to admit the notes into evidence.
Lyons testified that Ms. Nelson told her that Saldecke had 'touched [her] down the front of [her] pants' and that she 'told him to quit' and pushed his hand away. 3 RP at 17. Ms. Nelson also stated that after Saldecke had forced her to have intercourse with him, he grabbed her head and put his penis into her mouth. Saldecke threatened her that if she told anyone, he would 'take care of [her] in his own way.' 3 RP at 18. Lyons further testified that Ms. Nelson's external genitalia was very red, dry, and painful to the touch. Ms. Nelson had several bruises on her neck and arms, and she had a break in the skin consistent with a bite mark.
Additionally, Saldecke sought to introduce testimony by both Eddy and her friend, Jennifer Rowe, regarding Ms. Nelson's reputation for truthfulness in the community. Rowe testified that she had been friends with Eddy for a 'couple of years' and that she met Ms. Nelson when she was staying with Eddy 'some time in June, may be July, 2003. 2 RP at 81. When asked whether she was familiar with Ms. Nelson's family members or friends in the community, Rowe testified that she did not know Ms. Nelson's family and further stated, 'I know a couple of her other boyfriends, but that's about all.' 2 RP at 91. Rowe further testified that her boyfriend had gone over to Eddy's residence numerous times. Ms. Nelson testified that she knew who Rowe was but did not consider Rowe to be her friend.
Eddy testified that she had known Ms. Nelson and her family '[a]ll [her] life.' 2 RP at 98. Ms. Nelson grew up in Washington but had resided in Alaska for the past 10 years, and she generally visited either her mother or Eddy in Washington for three or four weeks each summer. During the summer of 2003, Ms. Nelson came to visit Eddy twice and had remained in Washington for about three months. Eddy further testified that she knew Ms. Nelson's general reputation for truthfulness in the community. The proffered 'community' consisted of Ms. Nelson's mother, Eddy's mother, their Aunt Mary, and several of Eddy's friends, whom she had known for periods ranging from a few months to three or four years. The court denied Saldecke's motion, finding that he had failed to establish a neutral and general community.
Saldecke admitted that he had sexual intercourse with Ms. Nelson on three separate occasions two incidences of penile-vaginal intercourse and one incidence of oral intercourse but testified that the acts were consensual. Saldecke further testified that Ms. Nelson had consented to any other sexual contact that he had with her.
The jury convicted Saldecke of counts III-V but acquitted him on counts I and II. The court sentenced him to consecutive exceptional sentences of 360 months on each count, finding that his offender score of 16 was 'well over the maximum 9 points accounted for in the SRA' and consequently, that his standard range sentences were 'clearly too lenient.' CP at 73. Additionally, the court found that Saldecke had demonstrated a lack of remorse for his crimes and had continued to engage in criminal behavior pending trial, demonstrating a threat to the community. The court stated that any of these factors was sufficient to justify an exceptional sentence. Saldecke appeals.
ANALYSIS I. Ms. Nelson's Reputation for Truthfulness
Saldecke first contends that the trial court erred in denying his motion to present testimony under ER 608(a) as to Ms. Nelson's reputation for truthfulness. In response, the State argues that Saldecke failed to establish a valid community from which Ms. Nelson's reputation for veracity could be drawn. The State is correct.
ER 608(a) allows the admission of testimony as to a witness's reputation for truthfulness. A witness offering reputation testimony must first lay a foundation establishing that the subject's reputation is based on perceptions in the community; the witness may not testify as to his or her personal opinion regarding the subject's reputation for veracity. State v. Callahan, 87 Wn. App. 925, 935, 943 P.2d 676 (1997). We review the trial court's decision regarding the sufficiency of foundation to support the admission of reputation testimony for abuse of discretion. Guijosa v. Wal-Mart Stores, Inc., 101 Wn. App. 777, 785, 6 P.3d 583 (2000), aff'd, 144 Wn.2d 907 (2001). A trial court abuses its discretion when it acts in a manner that is manifestly unreasonable or based on untenable grounds. Guijosa, 101 Wn. App. at 785.
ER 608(a) provides in relevant part:
The credibility of a witness may be attacked or supported by evidence in the form of reputation, but subject to the limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.
To establish a valid community, the party seeking to admit the reputation evidence must show that the community is both neutral and general. Guijosa, 101 Wn. App. at 787. Some relevant factors might include the frequency of contact between members of the community, the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community. Guijosa, 101 Wn. App. at 787. In addition, the proffered community need not be the community within which the subject resides, but it must be a 'substantial community of people among whom [the subject] is well known.' State v. Land, 121 Wn.2d 494, 499, 851 P.2d 678 (1993) (quoting 1 Charles T. McCormick, Evidence sec. 43, at 159 (John W. Strong ed., 4th ed. 1992)). In short, it is 'best to restrict evidence concerning a person's reputation to that group of people who [know] the witness best.' Land, 121 Wn.2d at 498.
Here, Rowe had just met Ms. Nelson in June or July 2003 while Ms. Nelson was staying at Eddy's home and had spoken to her on few occasions. Ms. Nelson testified that she knew only of Rowe. Further, Rowe testified that she did not know Ms. Nelson's family and that she only knew a 'couple of her other boyfriends.' 2 RP at 91. This testimony was insufficient to establish a general, neutral community among whom Ms. Nelson was well known Rowe barely knew Ms. Nelson and clearly did not know of a substantial community from which Ms. Nelson's reputation for truthfulness could be garnered.
Moreover, although Eddy testified that several of her friends were also friends with, or at least knew Ms. Nelson, neither she nor Rowe testified to their own frequency of contact with these friends or members of the proffered 'community.' More importantly, we reiterate that there was no testimony to the frequency of contact between members of this 'community' and Ms. Nelson during the brief periods that she had visited Washington over the past 10 years. And any contact between Ms. Nelson and these members during the time period in which she lived in Washington prior to moving to Alaska is insufficient to establish a valid 'community.' See Guijosa, 101 Wn. App. at 786 (the reputation at issue must not be remote in time from the time of the trial). Thus, Saldecke failed to establish a sufficiently broad, neutral, and general community among whom Ms. Nelson's reputation for veracity was well known. The trial court did not abuse its discretion in denying Saldecke's motion.
II. Admission of Lyons' testimony
Saldecke next asserts that the trial court erred in admitting Lyons' testimony relating Ms. Nelson's statements during her sexual assault examination. He argues that the statements were inadmissible under ER 803(a)(4) because they were not made for purposes of medical diagnosis or treatment.
ER 803(a)(4) provides that hearsay statements are admissible where the declarant made the statements
for purposes of medical diagnosis or treatment and [the statements] describ[e] medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
But Ms. Nelson's statements were not admitted under ER 803(a)(4). Saldecke initially moved to exclude Lyons' testimony regarding these statements because they were not made for purposes of medical diagnosis or treatment. However, at trial the court admitted Ms. Nelson's hearsay statements to Lyons as a past recorded recollection under ER 803(a)(5), an entirely different rule of evidence. Moreover, Saldecke did not object to the admission of Lyons' testimony as a past recorded recollection; when asked whether he objected he stated, 'No your honor, other than what we had discussed previously on a different subject.' 3 RP at 16 (emphasis added). Thus, while it is not entirely clear what 'different subject' Saldecke was referring to, it is clear that Saldecke failed to object to the admission of Lyons' testimony under ER 803(a)(5), the issue was not preserved, and we need not consider this issue any further. See RAP 2.5(a).
III. Sufficiency of the Evidence
Saldecke also contends that insufficient evidence supports the jury's finding that he committed second degree rape, second degree attempted rape, and indecent liberties. Specifically he argues that the evidence was insufficient to establish the element of 'forcible compulsion' in each of his three convictions. Br. of Appellant at 18. We disagree.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). 'A claim of insufficiency admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact regarding a witness' credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
In order to establish second degree rape and indecent liberties, the State must prove that the defendant engaged in sexual intercourse and sexual contact by forcible compulsion, respectively. RCW 9A.44.050(1)(a), .100(1)(a). And to establish second degree attempted rape, the State must prove that the defendant intended to engage in sexual intercourse by forcible compulsion. RCW 9A.28.020(1). 'Forcible compulsion' means 'physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.' RCW 9A.44.010(6).
'Forcible compulsion' requires more than the force normally used to achieve sexual intercourse or sexual contact; rather the force must be 'used or threatened to overcome or prevent resistance by the [victim].' State v. Ritola, 63 Wn. App. 252, 254-55, 817 P.2d 1390 (1991) (quoting State v. McKnight, 54 Wn. App. 521, 527, 774 P.2d 532 (1989)). In McKnight, the court found that the evidence was sufficient to establish 'forcible compulsion' where the defendant pushed the victim to the couch and took her clothes off while she told him to stop, even though the victim offered no physical resistance. McKnight, 54 Wn. App. at 526-27. The court held that that 'whether the evidence establishes the element of resistance is a fact sensitive determination based on the totality of the circumstances, including the victim's words and conduct.' McKnight, 54 Wn. App. at 526 (citing 65 Am. Jur. 2d Rape sec. 6, at 765 (1972)).
Saldecke argues that, as to his second degree rape conviction, his act of holding Ms. Nelson's hands at her sides while she attempted to push him away and then remained passive during penile-vaginal intercourse 'constitutes nothing more than physical acts necessary to engage in sexual activity.' Br. of Appellant at 20. But the act that Saldecke refers to relates to the second degree rape charged in count II; the jury acquitted Saldecke on this count. Rather, Saldecke was convicted of count III, which concerned the oral intercourse occurring on day two. Moreover, sufficient evidence supports the jury's finding that Saldecke committed second degree rape by forcing Ms. Nelson to engage in oral intercourse.
Ms. Nelson testified that Saldecke asked her to perform oral sex on him and she refused. Saldecke responded by yelling at her, 'smack[ing]' her in the face, pulling her hair, and then shoving his penis into her mouth. 2 RP at 48. She further testified that while Saldecke's penis was in her mouth, she attempted to move her head away. A reasonable juror could find that Ms. Nelson attempted to resist Saldecke's advancements, both orally and physically, and that Saldecke used force in order to overcome and prevent that resistance.
Likewise, sufficient evidence supports the jury's finding that Saldecke committed second degree attempted rape and indecent liberties. Ms. Nelson testified that she had been sitting on the couch when Saldecke told her that he wanted to go into her bedroom. She told him no because her baby was awake, and he grabbed her arm and pushed her into the bedroom. He then partially undressed and attempted to take off her pants. He again told Ms. Nelson to perform oral sex on him and when she refused, he 'tried shoving [her] head down there toward his thing anyway' just as Eddy's caretaker entered the room and interrupted him. 2 RP at 29.
In addition, Ms. Nelson testified that on several occasions, Saldecke bit her neck and arms, fondled her breast, and reached down her pants to touch inside her vagina. Each time she told him to stop, moved his hands, and/or got up from the couch to avoid his advances, but he continued touching and biting her. On one occasion, Saldecke told her to 'shut up and just sit there.' 2 RP at 25. And Lyons testified that Ms. Nelson told her that Saldecke had touched her down the front of her pants and that she told him to stop and pushed his hand away. These actions i.e., grabbing Ms. Nelson by the arm and pushing her into the bedroom; attempting to take off her pants; shoving her head toward his penis; and repeatedly biting her and touching her breast and vagina after she told him to stop and pushed his hands away sufficiently support a finding that Saldecke intended to engage in sexual intercourse and had sexual contact by exercising force directed toward overcoming and preventing resistance by Ms. Nelson.
Saldecke argues that the biting was merely 'rough foreplay' and that Ms. Nelson had only asked him not to bite her so hard. Br. of Appellant at 20. Further, he testified that Ms. Nelson had made advances toward him and that any sexual intercourse or contact between Ms. Nelson and him was consensual. However, Ms. Nelson testified that she told Saldecke to stop biting her because it hurt, and Lyons testified that Ms. Nelson had numerous bruises on her neck and arms and a break in the skin consistent with a bite mark. This evidence supports a reasonable inference that Saldecke was exerting force beyond that which is normally used to achieve sexual contact. Ms. Nelson also testified that she did not consent to any sexual acts with Saldecke. The jury ultimately found Ms. Nelson more credible; this determination is not reviewable. See Camarillo, 115 Wn.2d at 71.
IV. Prosecutorial Misconduct
In addition, Saldecke contends that the prosecutor committed misconduct during closing arguments. He argues that she made an improper 'golden rule' argument and invited the jury to determine Saldecke's guilt based on sympathy for Ms. Nelson rather than by evaluating the evidence. Br. of Appellant at 25. In response, the State argues that the prosecutor was merely arguing how the jury should interpret Ms. Nelson's demeanor and evaluate her credibility. The State is correct.
The prosecutor stated:
Now, you are the sole judges of the credibility of the witnesses in this case, and again, I'm going to read part — this is actually part of instruction one that deals with that . . . and it states, 'You are the sole judges of the credibility of the witnesses and of what weight is to be given the testimony of each. In considering the testimony of any witness, you may take into account . . . the witness's memory and manner while testifying, any interest, bias or prejudice the witness may have, the reasonableness of the testimony of the witness considered in light of all the evidence and any other factors that bear on believability or weight.'
And when you're doing this — let's take a look at Ms. Nelson. Ms. Nelson had to come in here. She had to get up there and she had to tell you, all of you, plus everyone else who was in the courtroom, what had happened to her. She has to describe for you in graphic detail what the defendant did to her. She has to describe not only one, but five different acts involving sexual assault, involving very intimate, private things.
Let's remember when we — back when we were selecting a jury and the questions that were asked and the responses of the people in the jury panel about how hard it would be for a person to describe their last sexual experience in front of a group of people, and one person responded I couldn't do that. I wouldn't be able to do that. There were responses like, I would be humiliated. That would be so embarrassing. I wouldn't want to do that.
So when considering her testimony and how she appears, remember that. Take that into account. Take into account that she is up here having to describe some very, to her, traumatic things that have occurred to her, very private, very embarrassing things that have happened to her in front of a room full of strangers.
3 RP at 97-99 (emphasis added). Saldecke did not object.
In order to establish prosecutorial misconduct, Saldecke must establish both that the prosecutor's conduct was improper and that the prosecutor's conduct prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established only where "there is a substantial likelihood the instances of misconduct affected the jury's verdict." Dhaliwal, 150 Wn.2d at 578 (quoting State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal, 150 Wn.2d at 578; State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).
Saldecke did not object to the prosecutor's statements below. A defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so 'flagrant and ill intentioned' that it causes enduring and resulting prejudice that a curative instruction could not have remedied. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
The biblical 'golden rule' states a standard of conduct to do unto others as you would have them do unto you. Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 139, 750 P.2d 1257 (1988). In general, urging jurors to place themselves in the position of one of the parties to the litigation or to grant a party the recovery they would wish themselves if they were in the same position, constitutes improper 'golden rule' argument. Adkins, 110 Wn.2d at 139. In Adkins, our Supreme Court held that 'an argument in a civil case is improper which appeals to the jurors to place themselves in the position of a litigant and to decide the case based upon what they would then want under the circumstances.' Adkins, 110 Wn.2d at 140. The court reasoned, '[i]t is the nature of the argument itself which establish its impropriety: the jury is invited to decide the outcome of the case based on sympathy, prejudice or bias, rather than on the evidence and the law.' Adkins, 110 Wn.2d at 142. We have similarly disapproved of 'golden rule' arguments in criminal cases.
The prosecutor's statement, when considered in the context of the total argument, was not asking the jury to determine Saldecke's guilt based on sympathy for Ms. Nelson. Rather, the prosecutor was asking the jury to consider the sensitive nature of the matters to which Ms. Nelson was testifying about in evaluating her demeanor and credibility.
The comment was made in the context of a discussion about how the jury should evaluate each witness's credibility, and the prosecutor specifically stated that the jury should consider the other jurors' remarks when considering Ms. Nelson's testimony and how she appeared while testifying. And the prosecutor followed the comment by telling the jury to take into account the fact that Ms. Nelson was describing very private and embarrassing sexual details. In conclusion, the prosecutor was asking the jury to find Ms. Nelson credible; she was not asking the jury to go beyond the evidence and determine what result it would desire under similar circumstances. Furthermore, even if we found that the prosecutor had committed misconduct, her comment was not 'flagrant and ill intentioned' and a curative instruction could have remedied any prejudice to Saldecke.
Saldecke further argues that he received ineffective assistance of counsel because his defense counsel failed to object to the prosecutor's comment or to request a curative instruction or move for a mistrial. In order to prove a claim for ineffective assistance of counsel, a defendant must show both that trial counsel's performance was deficient based on the entire record and that the deficient performance prejudiced the defense. Tilton, 149 Wn.2d at 784. Because we find that the prosecutor's remark was not improper, Saldecke's claim fails.
V. Cumulative Error
Saldecke also claims that he is entitled to a new trial under the cumulative error doctrine. The cumulative error doctrine applies only when several trial errors occurred which, standing alone, may not be sufficient to justify a reversal, but when combined together, may require a new trial. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). This doctrine has no application here, as Saldecke has failed to establish any prejudicial error.
VI. Blakely
Finally, Saldecke contends that his exceptional sentence is unconstitutional under Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Specifically, he argues that the court imposed an exceptional sentence based on a judicial finding of fact i.e., that his standard range sentence under the SRA's multiple offense policy was 'clearly too lenient' not charged nor found by a jury beyond a reasonable doubt. Supp. Reply Br. of Appellant at 7. Saldecke is incorrect.
In Blakely, the United States Supreme Court addressed former RCW 9.94A.390 (2000), recodified as RCW 9.94A.535, which provides: 'The court may impose a sentence outside the standard sentence range for an offense if it finds . . . that there are substantial and compelling reasons justifying an exceptional sentence.' The Court applied the rule from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), that, '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' Blakely, 124 S. Ct. at 2536. And it explained that the 'statutory maximum' is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely, 124 S. Ct. at 2537. Thus, the court held that a defendant has a constitutional right to have a jury determine whether the facts supporting an exceptional sentence have been proven beyond a reasonable doubt. Blakely, 124 S. Ct. at 2533.
Here, the calculation of Saldecke's offender score was based upon both prior convictions and his three current convictions. At sentencing, he agreed to the accuracy of the State's recitation of his criminal history. Based on this undisputed history, Saldecke's offender score was 16: 10 points were based on his prior convictions and 6 were based on his current convictions. The sentencing court ruled that Saldecke's presumptive sentence under the SRA's 'multiple offense policy' was 'clearly too lenient' and imposed consecutive exceptional sentences of 360 months on each count. Clerk's Papers at 73. Additionally, the court found that an exceptional sentence was warranted because Saldecke had demonstrated a lack of remorse for his crimes and had continued to engage in criminal behavior pending trial. It concluded that any of these factors was sufficient to justify an exceptional sentence.
Saldecke's prior convictions include the following:
1992 Under the Influence of a Controlled Substance, Nevada
1994 Second Degree Malicious Mischief
1994 Second Degree Theft
1994 Second Degree Assault
1995 Third Degree Assault
1997 Second Degree Burglary
1998 Possession of a Controlled Substance
2000 Second Degree Theft
2002 Custodial Assault
2003 Possession of a Controlled Substance.
Saldecke did object to the State's calculation of one point each for his convictions of second degree theft and second degree malicious mischief (which would make his offender score 17) because they constituted the 'same criminal conduct.' 4 RP (Dec. 9, 2003) at 5. The State conceded, for purposes of calculating Saldecke's offender score, that these convictions would count as only one point, making Saldecke's offender score 16.
The State concedes that two of the factors, a demonstrated lack of remorse and continued criminal behavior, would fall under the rule of Blakely and require a jury finding beyond a reasonable doubt in order to impose an exceptional sentence. However, if we are satisfied that the trial court would have imposed the same sentence based upon a factor that is upheld, we may uphold the exceptional sentence rather than remanding for resentencing. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003). Here, the court plainly stated that the sentence was 'clearly too lenient' and that this factor would be sufficient in itself to justify an exceptional sentence above the standard range. Thus, we are satisfied that the trial court would have imposed the same sentence based solely upon this factor.
Hence, the only issue before this court is whether a finding that a sentence is 'clearly too lenient' is a factual determination for the jury. We have recently held in State v. Van Buren, 123 Wn. App. 634, 98 P.3d 1235 (2004), that it is not. See also State v. Alkire, 124 Wn. App. 169, 100 P.3d 837 (2004).
If a defendant commits multiple offenses that are sentenced together, the offenses are counted as current offenses, and the offender score calculation for each crime includes the others, thereby increasing the offender score and, in consequence, increasing the standard range for each current offense. Alkire, 124 Wn. App. at 173; RCW 9.94A.589. Recognizing this, the standard range contemplates that sentences for current offenses will be served concurrently, with the offender score serving as the vehicle for ensuring accountability on each offense. Alkire, 124 Wn. App. at 173; RCW 9.94A.589. This scheme is known as the 'multiple offense policy.' Alkire, 124 Wn. App. at 173.
Under RCW 9.94A.535(2)(i), a court may impose an exceptional sentence where the 'operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter.' Because the highest offender score accounted for the sentencing grid is nine, the highest standard range reflects only that level of criminal history — it does not reflect additional convictions. Alkire, 124 Wn. App. at 174. Thus, the sentencing court's inquiry as to whether substantial and compelling reasons justify an exceptional sentence is 'automatically' satisfied whenever an offender score greater than nine is combined with multiple current offenses because "a standard sentence would result in 'free' crimes — crimes for which there is no additional penalty." Alkire, 124 Wn. App. at 174; Van Buren, 123 Wn. App. at 652-53 (quoting State v. Smith, 123 Wn.2d 51, 56, 864 P.2d 1371 (1993)).
Given that Saldecke was beyond the top of the standard range grid, the standard range for each of his current offenses was not impacted by including the other current offenses in his offender score; a standard range sentence would have meant that he received no punishment for two of his crimes. For this reason, the court found that his sentence would be 'clearly too lenient.'
In Van Buren, we held that Blakely does not require a jury finding of a defendant's criminal history or offender score; rather, these findings are properly determined by the sentencing court. Van Buren, 123 Wn. App. at 645-46. We then held that 'free crime' analysis, or a determination that a sentence is 'clearly too lenient,' is a function of determining the defendant's offender score from the record of his prior and current criminal convictions. It does not require weighing evidence, determining credibility, or making a finding of disputed facts. Thus, it is not affected by the Blakely requirement that factual issues used to impose an exceptional sentence must be pleaded and proved to a jury beyond a reasonable doubt.
Van Buren, 123 Wn. App. at 653 (footnote omitted).
In conclusion, the only relevant fact here was Saldecke's offender score; that score was based solely on the jury's finding that Saldecke had committed three new crimes and on the undisputed existence of his prior convictions. Blakely requires no more. And in determining whether Saldecke's offender score presented a substantial and compelling enough reason to impose an exceptional sentence, i.e., whether it resulted in a sentence that was clearly too lenient the court was making a legal, not a factual, judgment. Van Buren, 123 Wn. App. at 653. Saldecke's Sixth Amendment rights were not violated, and we affirm his sentence.
Saldecke also contends that prior convictions should no longer be excluded from the Apprendi rule, and he invites use to abandon the 'crumbling foundation' of Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). Supp. Reply Br. of Appellant at 6. But the Apprendi Court affirmed Almendarez-Torres and nothing in Blakely purports to modify the prior conviction exception. Apprendi, 530 U.S. at 489-90. Thus, Almendarez-Torres remains good law and we do not question its validity.
VII. Statement of Additional Grounds
Saldecke has also filed pro se a Statement of Additional Grounds (SAG). He contends that he received ineffective assistance of counsel because his defense counsel withheld witness statements and other information from him. However, who these witnesses were, what their statements might be, and the circumstances surrounding how the statements were allegedly withheld from Saldecke is outside our record; the proper avenue for bringing claims based on evidence outside the record is through a personal restraint petition (PRP), not an appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
See RAP 10.10.
In addition, Saldecke argues that he can now present exculpatory testimony by eight witnesses who were out-of-state during the trial and at least 17 new witnesses. Presumably he is asserting the right to a new trial based on newly discovered evidence. A claim based on 'newly discovered evidence' may be considered only when a petitioner establishes that the evidence: (1) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. In Re Pers. Restraint of Stenson, 150 Wn.2d 207, 217, 76 P.3d 241 (2003). Again, there is no evidence in the record regarding whether these eight witnesses were actually out-of-state or whether they could not be located before trial with the exercise of due diligence. See State v. Slanaker, 58 Wn. App. 161, 166-67, 791 P.2d 575, review denied, 115 Wn.2d 1031 (1990). Furthermore, the record is silent as to whether the 17 or more 'new' witnesses were unavailable and could not be present at trial with due diligence or what the content of their testimony might be. Thus, Saldecke's claims fail.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., Concur.