Opinion
No. 29862-7-II (consolidated with) 29879-1-II
Filed: January 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-1-02431-1. Judgment or order under review. Date filed: 01/10/2003. Judge signing: Hon. Sergio Armijo.
Counsel for Appellant(s), Mary Katherine Young High, Attorney at Law, 109 Tacoma Ave N, Tacoma, WA 98403-2631.
Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Jason M. Smith challenges his conviction for first degree kidnapping, his two convictions for first degree rape, and his convictions for first degree attempted rape. Vincent Edward Roper challenges his convictions for first degree kidnapping, first degree rape, and third degree rape. Roper and Smith dispute (1) the trial court's evidentiary rulings; (2) the sufficiency of the evidence; (3) the trial court's rulings on whether their crimes constitute the same criminal conduct; and further assert that cumulative error precluded a fair trial. Smith independently asserts that (1) his exceptional sentence was unjustified; (2) the prosecutor argued facts not in evidence; (3) one of the charges against him was improperly amended; and (4) he was prejudiced by his inability to recall a witness. Roper independently asserts that (1) the verdict against him was inconsistent; (2) the court lacked jurisdiction; and (3) he had ineffective counsel. We affirm Roper's convictions and sentence. And we affirm Smith's convictions but reverse and remand for resentencing on Count
III. FACTS
On May 18, 2002, Sonia Stead met Vincent Edward Roper and Jason Michael Smith at a friend's apartment. While at the apartment, Smith and Stead consumed alcohol. Between 10 p.m. and 11 p.m., the hostess told everyone to leave because the gathering was getting too loud. Stead was confrontational and yelling when she was told to leave.
Stead accepted Smith's offer to drive her home. Roper had already left to walk home, but he called Smith to ask for a ride when he realized that he was still several miles from his residence. Smith then drove Stead to Fort Lewis to pick up Roper, but Roper refused to get into the car when he noticed an open container of alcohol in the car. An argument ensued, during which Smith hit Stead in the face, and both Roper and Smith kicked her. Stead 'curled up in a ball' on the ground to protect herself. Report of Proceedings (RP) at 240. Roper and Smith then drove away and left Stead on the side of the road.
Stead testified that she tried to find help at nearby buildings, but they were vacant, and her cell phone was dead. After a few minutes, Roper and Smith came back and 'grabbed' Stead and 'stuffed' her into the car. RP at 242. While Roper drove, Smith got into the back seat with Stead and he removed her shirt and bra. Smith also took her cell phone, keys, credit cards and identification. Roper drove off base toward Tillicum.
Smith told Stead to perform oral sex on him. Stead testified that she 'didn't want to do it, but then it became more physical, like, 'Okay. You're going to do it or else.'' RP at 253. Roper stated that he observed Smith and Stead engage in vaginal sex during the drive to Tillicum. Stead testified that Roper and Smith passed her back and forth, and forced her to perform oral sex 'at least ten' times throughout the evening. RP at 262. Roper parked the car in a secluded area of Tillicum and all three exited the car. Stead performed oral sex on Roper. Smith then vaginally raped, and attempted to anally rape Stead. She did not try to get away because she felt that she would put herself in even more physical danger.
Roper then drove to Tacoma while Smith forced Stead to again engage in oral and vaginal sex in the back seat of the car. When she was not performing sexual acts, Roper and Smith required Stead to cover her face with her jacket so she could not be seen and so she could not see where they were going.
Smith telephoned his friend, Sharon Commandest, and told her he had 'really fucked up' and that he was 'going to go to prison.' RP at 445. Commandest told Smith that they could come to her house. At Commandest's home, Commandest got into the back seat of the car with Smith. Commandest noticed a shirt, bra, ID card, and some keys on the floor of the car. Stead was in the front seat with Roper. Commandest testified that she could not get a good look at Stead because Stead had a jacket hood on and she was leaning against the passenger door.
The foursome then drove to a store for beer. While Roper was driving, Commandest heard him tell Stead to 'suck [his] dick.' RP at 451. Stead told Roper that she did not want to, but Roper replied, 'No, you're going to.' RP at 452. Commandest also heard Smith 'command' Stead not to 'speak unless spoken to.' RP at 456.
When they returned to Commandest's house, she helped Stead out of the car because she could not get out on her own. Once they were inside the house, Roper told Stead to suck his dick, but Commandest interjected and said, 'None of that nasty shit is going on in my house.' RP at 462. Commandest also noticed that Smith had blood on his shirt and he did not know if it was Stead's or his but he had Commandest's roommate, Falisity Hughley, wash the shirt.
Hughley testified that Stead appeared scared, looked like she had been beaten up, and was wearing only a coat and pants. Hughley heard Smith tell Stead, 'Don't say nothing, don't talk.' RP at 411. She also testified that Smith asked her to beat up Stead, and that Smith said he wanted to kill Stead. Commandest heard Roper ask Stead, 'You want me to give you another bloody nose?' RP at 462. At some point, Stead was offered the use of the telephone in the living room, but Stead refused because '[s]he was scared.' RP at 425.
Smith and Commandest eventually took Roper home and left Stead at the house with Hughley. On the way to Roper's home, Roper, Smith, and Commandest stopped at a Motel 6 and threw Stead's belongings from the car into a dumpster. Meanwhile, Stead fell asleep at Commandest's house.
The next morning, Hughley offered Stead the use of a telephone, and Stead called her boyfriend, Noel Blades, who picked her up near Commandest's house. Blades took Stead to a hospital for a rape exam, which Janice Wick conducted. Wick testified that Stead told her two men, 'Vince and Jay,' had offered her a ride home and then drove her around demanding sexual acts, including oral sex, vaginal intercourse, and attempted anal intercourse. RP at 385. DNA testing indicated that semen found in Stead's vagina and anus belonged to Smith.
The jury convicted Smith of first degree kidnapping, two counts of first degree rape, and one count of first degree attempted rape. Roper was convicted of first degree kidnapping, two counts of first degree rape, and one count of third degree rape. The jury also returned a special verdict indicating that the rapes were committed during the course of a kidnapping.
On appeal, Roper and Smith assert that: (1) the trial court erred by excluding evidence of Stead's prior domestic violence charge; (2) the trial court erred by admitting Wick's testimony naming 'Vince and Jay' as the perpetrators; (3) the first degree rape convictions should be considered the same criminal conduct; (4) insufficient evidence supported their convictions; and (5) cumulative error precluded a fair trial.
Smith also argues that (1) the trial court erred in admitting testimony by Detective Berg and the trial court's curative instruction was inadequate; (2) his exceptional sentence was unjustified; (3) there was prosecutorial misconduct; (4) he was prejudiced by his inability to recall a witness; and (5) the trial court erred by permitting the State to amend the charges against him.
Roper independently contends that the verdicts returned against him are inconsistent, that the court did not have jurisdiction for all counts against him, and that his counsel was ineffective.
ANALYSIS I. Evidentiary Errors
Roper and Smith argue that the trial court erred in admitting or suppressing evidence throughout the trial. We will not overturn the trial court's ruling to admit or exclude evidence absent an abuse of discretion. State v. Redmond, 150 Wn.2d 489, 495, 78 P.3d 1001 (2003). A trial court abuses its discretion when its decision is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State v. McDonald, 138 Wn.2d 680, 696, 981 P.2d 443 (1999) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
A. Domestic Violence Charge and Treatment
Roper and Smith allege that the trial court erred when it excluded evidence of Stead's past domestic violence charge. They argue that the charge was relevant character evidence under ER 404 and 405 and admissible to impeach her testimony that she was not the type of person to yell or become physically confrontational.
Stead was charged with domestic violence against Blades approximately one year before the events of May 18 and 19, 2002. The case was continued, pending successful anger management treatment.
Under ER 404(a)(2), evidence of a victim's pertinent character trait when offered by an accused is admissible to show conformity on a particular occasion. '[A] pertinent character trait is one that tends to make the existence of any material fact more or less probable than it would be without evidence of that trait.' State v. Eakins, 127 Wn.2d 490, 495-96, 902 P.2d 1236 (1995).
Roper and Smith contend that Stead's domestic violence charge shows an absence of forcible compulsion, which the State must prove to establish a rape. "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 . . . or in fear that she . . . will be kidnapped.' RCW 9A.44.010(6).
But Roper and Smith do not persuasively articulate how the year-old charge proves or disproves forcible compulsion on the night of May 18, 2002. The domestic violence charge has no bearing on whether Roper and Smith used physical force that placed Stead in fear of physical injury, death, or kidnapping. Even assuming that Stead was the aggressor in the earlier argument and that she provoked Roper and Smith, it is clear that they overcame any force she exerted. Information about Stead's prior charge would not alter this evidence. Thus, the court did not abuse its discretion when it concluded that the charge was inadmissible under ER 404(a)(2).
Roper and Smith next argue that the domestic violence charge should have been admitted under ER 405. ER 405 permits evidence about a person's reputation or about a character trait of a person where it is 'an essential element of a charge, claim, or defense.' ER 405(b). But Stead's domestic violence charge is a specific instance of conduct that is not admissible under ER 405(b). The charge does not address any specific element of a charge, claim, or defense in this case. Thus, the trial court correctly excluded the evidence under ER 405.
Roper and Smith also argue that the evidence of Stead's domestic violence charge and the related requirement that she attend anger management classes are admissible to impeach her testimony that she rarely yells or gets upset. Under ER 608(b) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may . . . in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . .
Stead testified on direct examination that she is 'not a very loud person.' RP at 236. On cross-examination, Stead stated that she was not the type of person who would yell or use racial slurs. Roper and Smith sought to attack Stead's credibility by impeaching these statements through use of her domestic violence charge and the required anger management treatment.
The trial court determined that this evidence would be more prejudicial than probative. This conclusion was within the trial court's sound discretion. The court had very little information about the facts underlying the charge, the charge was almost a year old in May 2002, and it did not involve either Roper or Smith or any of the events that transpired on May 18 or 19, 2002. And defense counsel, not the State, elicited many of Stead's statements that Roper and Smith then sought to impeach through use of the domestic violence charge.
Furthermore, substantial evidence did impeach Stead's assertions that she is typically a passive person. During cross-examination, Stead admitted that she 'was probably yelling' at Smith. RP at 313. Three other witnesses testified Stead was 'very loud,' angry, 'confrontational,' yelling, and calling people 'nigger' before she left the gathering with Smith. RP at 519, 525, 588. And once, as here, counsel has successfully impeached a witness, there is less need to admit other evidence for the purpose of impeachment. State v. Clark, 143 Wn.2d 731, 766, 24 P.3d 1006 (2001).
Roper and Smith also claim that the trial court erred by refusing to require the State to provide the defense with the police report on Stead's domestic violence case.
CrR 4.7 requires the State to disclose 'any record or prior criminal convictions known to the prosecuting attorney of . . . persons whom the prosecuting attorney intends to call as witnesses at the . . . trial' if the record is in the State's possession or control. CrR 4.7(a)(1)(vi). The State's duty to disclose includes informing the defense of any known pending charge against a state witness. State v. Cardenas, 146 Wn.2d 400, 413, 47 P.3d 127 (2002).
The State provided the defendants with all the information it had on the domestic violence charge. It did not have control or possession of the police report, and it was under no obligation to seek out the report from the Lakewood Police Department for the defendants. State v. Copeland, 89 Wn. App. 492, 497, 949 P.2d 458 (1998).
Roper and Smith could have specifically requested the information under CrR 4.7(d), but the record does not indicate whether they made this request. See RP at 335 ('But if [the court] feel[s] [it] need[s] to look at the reports and everything, then I'd ask the prosecutor be required to provide those to us so that we can give [the court] additional information.'). The court resolved that it did not need any additional information to exclude Stead's charge, and Roper and Smith made no further request for the State to provide the police report.
B. Identification of Roper and Smith During Medical Examination
Roper and Smith challenge the court's admission of Janice Wick's testimony under ER 803(a)(4). Wick, a registered nurse, examined Stead. Wick testified that during this examination, Stead identified the assailants as 'Vince and Jay.' RP at 385.
The State acknowledges that identification of a perpetrator is not typically admissible under ER 803(a)(4), but it responds that Roper and Smith waived the right to appeal this issue by failing to object at trial. State v. Butler, 53 Wn. App. 214, 217, 766 P.2d 505 (1989). Roper and Smith respond that they did object to this testimony.
The record indicates that Roper and Smith only objected to testimony that was not in Wick's written notes. But Wick's written notes indicated that Stead referred to her assailants as 'Vince and Jay,' and the defendants had these notes prior to Wick's testimony. RP at 385. Roper and Smith did not specifically object to Wick's testimony. And in any event, such an error would be harmless in the context of this case. The identity of the assailants was not an issue. Thus, we do not consider this assignment of error. RAP 2.5(a); State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
Testimony from Roper, Stead, Commandest, Hughley and others establishes the identity of Smith and Roper as the perpetrators of the kidnapping and rapes against Stead.
C. Smith's Post-Rape Statements
Smith asserts that the trial court erred by admitting Hughley's testimony that he wanted her to 'beat [Stead] up' and that he wanted to 'kill [Stead].' RP at 412. The court admitted the testimony, reasoning that the statements were 'prejudicial, but they're also very probative.' RP at 87. Smith claims this was improper ER 404(b) evidence.
ER 404(b) allows '[e]vidence of other crimes, wrongs, or acts [to show] . . . motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident' but prohibits such evidence to show conformity with the prior act. ER 404(b) applies to evidence of other crimes, wrongs, or acts. It does not preclude the State from admitting evidence of acts related to the crime at issue. State v. Jeffries, 105 Wn.2d 398, 412, 717 P.2d 722 (1986). Thus, the trial court did not abuse its discretion.
D. Comment on Smith's Silence
Smith argues that the trial court violated his right to remain silent when it permitted Detective Berg to testify that she asked Smith for a statement.
The Fifth Amendment provides that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.' U.S. Const., Fifth Amend. 'A police witness may not comment on the silence of the defendant so as to infer guilt from a refusal to answer questions.' State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996).
The State asked Berg, 'On May the 21st, what was the nature of your contact with Jason Smith?' RP at 179. Berg testified that Smith 'was brought to the precinct . . . and [she] met with him and asked him for a statement.' RP at 179. Berg did not testify about whether Smith provided a statement or whether he chose to remain silent.
The trial court instructed the jury to disregard Berg's testimony. At the close of all evidence, the court also instructed the jury that they could not consider Smith's failure to testify as evidence of guilt. When an officer indirectly comments on a defendant's silence, we ask three questions to determine the appropriate standard of review. State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002). First, could the comment reasonably be considered purposeful? Romero, 113 Wn. App. at 790 (citing State v. Curtis, 110 Wn. App. 6, 13-14, 37 P.3d 1274 (2002)). Second, could the comment reasonably be considered unresponsive? Romero, 113 Wn. App. at 790. And third, 'was the indirect comment exploited by the State during the course of the trial, including argument, in an apparent attempt to prejudice the defense offered by the defendant?' Romero, 113 Wn. App. at 791 (citing State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996)).
Because the answer to each of these questions here is no, we apply a nonconstitutional error standard of review. Romero, 113 Wn. App. at 791. A trial court's ruling will be upheld where there is no reasonable probability the error affected the trial outcome. State v. Johnson, 42 Wn. App. 425, 432, 712 P.2d 301 (1985).
In Lewis, our Supreme Court noted that testimony does not violate Fifth Amendment protections where an officer does not indicate that a defendant 'refused to talk with the police, nor is there any statement that silence should imply guilt.' 130 Wn.2d at 706 (citing Parkhurst v. State, 628 P.2d 1369 (Wyo. 1981) (a mere reference to silence which is not a 'comment' on the silence is not reversible error absent a showing of prejudice)).
Berg's comment did not indicate Smith's guilt or even suggest whether or not he made a statement to the police. Further, jurors will not typically derive an implication of guilt from a defendant's silence. Lewis, 130 Wn.2d at 706.
And the court instructed the jury to disregard Berg's comment. The jury is presumed to follow the court's instructions, and a 'curative instruction will often cure any prejudice that has resulted from an alleged impropriety.' State v. Pastrana, 94 Wn. App. 463, 479, 972 P.2d 557 (1999). Thus, any error did not likely prejudice the trial outcome.
II. Insufficient Evidence
Roper and Smith argue that the evidence was insufficient to prove they committed multiple counts of first degree rape and kidnapping. They specifically argue that the evidence did not support a finding of forcible compulsion on the rape counts, or abduction and restraint that indicate kidnapping.
When challenging the sufficiency of the evidence, the challenger admits the truth of the State's evidence and any reasonable inferences from them. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We review this evidence to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Goodman, 150 Wn.2d at 781.
A. First Degree Rape
A person commits first degree rape when he kidnaps a victim and engages in sexual intercourse with that person by forcible compulsion. RCW 9A.44.040.
Evidence supporting a finding of forcible compulsion must be 'sufficient to show that the force exerted was directed at overcoming the victim's resistance and was more than that which is normally required to achieve penetration.' State v. McKnight, 54 Wn. App. 521, 528, 774 P.2d 532 (1989). To prove forcible compulsion by threat, the State must present evidence from which the jury could infer that the victim perceived a threat, along with evidence that the defendant communicated an intention to inflict physical injury to coerce compliance. State v. Weisberg, 65 Wn. App. 721, 726, 829 P.2d 252 (1992).
The evidence shows that Roper and Smith hit and kicked Stead, and left her on the side of the road. When they returned, they 'grabbed [her] and stuffed [her] in the back seat of the car' and took her shirt, bra, and other personal belongings. RP at 242. Despite her resistance, Roper and Smith drove Stead to a remote area and commanded that she perform sexual acts. Roper and Smith also required Stead to cover her face while they drove so she would not know where they were.
Stead testified multiple times that she feared noncompliance would put her in further danger. She stated that she did not feel she had a choice when she was stuffed back into Smith's car on Fort Lewis and that she was not allowed to get out of the car at various stops. When she told Roper and Smith that she did not want to perform oral sex, 'it became more physical, like, 'Okay. You're going to do it or else.'' RP at 253.
When Roper ordered Stead to perform oral sex and Stead said she did not want to, Roper said, 'No, you're going to.' RP at 452. Hughley testified that Smith told Stead not to 'speak unless spoken to.' RP at 456. She testified further that Roper 'said something like '[y]ou want me to give you another bloody nose?'' RP at 462.
This evidence is sufficient to establish that any rational trier of fact could have found beyond a reasonable doubt that Smith and Roper forcibly compelled Stead to engage in sexual intercourse.
B. First Degree Kidnapping
First degree kidnapping occurs where a person intentionally abducts another person with intent to inflict bodily injury on that person. RCW 9A.40.020(1)(b),(c). "Abduct' means to restrain a person by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly force.' RCW 9A.40.010(2). 'Restrain' means 'to restrict another person's movements . . . [by physical force, intimidation or deception], in a manner which interferes substantially with his liberty.' RCW 9A.40.010(1).
In the light most favorable to the State, the evidence indicates that Smith and Roper: (1) initially indicated they were going to take Stead home; (2) beat and kicked her in a remote area in Fort Lewis; (3) 'grabbed' Stead and 'stuffed' her into the back of Smith's car; (4) drove her to a remote location in Tillicum where it was unlikely they would be seen raping Stead; (5) required her to cover her face so she could not see where they were and no one could see her; and (6) 'commanded' Stead to stay in the car and not 'speak unless spoken to.' RP at 242, 456. Smith also indicated that he did not want to leave Stead alone, and Stead testified that she felt that she would be in danger if she tried to leave or 'do anything.' RP at 284.
Any rational trier of fact could find beyond a reasonable doubt that Roper and Smith kidnapped Stead by abduction and restraint; thus, sufficient evidence supports the verdict.
III. Same Criminal Conduct
Roper and Smith argue that their first degree rape convictions, and Smith's first degree attempted rape conviction, should have been considered the same criminal conduct for sentencing purposes. We do not disturb a trial court's conclusion on same criminal conduct absent a showing of 'clear abuse of discretion or misapplication of the law.' State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000) (quoting State v. Elliott, 114 Wn.2d 6, 17, 785 P.2d 440 (1990)).
The jury found Smith guilty of first degree rape for vaginal intercourse (Count II) oral sex (Count III), and attempted anal rape (Count IV). The trial court found that the vaginal rape and the attempted anal rape were the same criminal conduct because they both occurred in Tillicum over a short period of time. But it concluded that Count III was 'separate and distinct.' RP (Jan. 10, 2003) at 88. The testimony was unrefuted that Stead was forced to perform oral sex on Smith numerous times throughout the evening and the State did not charge Smith with any particular incident of oral sex.
Roper's two convictions for first degree rape were based on acts of oral sex. Roper acknowledged that he had oral sex with Stead two times, once outside the car in Tillicum, and once in the car on the way to the store in Tacoma. The court declined to adopt Roper's argument that the rapes were the same criminal conduct, noting that the rapes were not at the same time or place, and Roper formed a new criminal intent for each incident of rape. The court concluded that each rape was separate and distinct from the others.
'Same criminal conduct' occurs where there are two or more crimes that (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. RCW 9.94A.589(1)(a); State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). The legislature intended that courts construe same criminal conduct narrowly, and if any of the three elements is missing, the crimes are not the same under RCW 9.94A.589(1)(a). State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).
Under RCW 9.94A.589(1)(a),
whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535.
'[I]n deciding if crimes encompass the same criminal conduct, trial courts should focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next.' State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987). This analysis includes a determination of whether one crime furthered the other and whether the crimes took place at a single time and place. Dunaway, 109 Wn.2d at 215.
In State v. Tili, the court found that Tili's three rapes of his victim were the same criminal conduct because they were 'nearly simultaneous in time.' 139 Wn.2d 107, 123, 985 P.2d 365 (1999). They were 'continuous, uninterrupted, and committed within . . . approximately two minutes.' Tili, 139 Wn.2d at 124.
In State v. Grantham, the defendant raped the victim, after which the victim began kicking and yelling, and she asked to be taken home. 84 Wn. App. 854, 932 P.2d 657 (1997). Grantham then forced her to perform oral sex. The court resolved that the second act was not the same criminal conduct as the first rape because he had formed a new objective intent: he 'had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act.' Grantham, 84 Wn. App. 859. The court specifically found that the two counts of rape were not the 'same criminal conduct' because (1) one rape was finished before the other began; (2) the defendant threatened the victim between rapes; (3) the defendant used new physical force to obtain compliance; and (4) the defendant used different and distinct methods to accomplish the rapes. Grantham, 84 Wn. App. at 859.
The evidence shows that the rapes by Roper and Smith took place between 11 p.m. and 2 a.m., while Roper drove from Fort Lewis to Tillicum, and then to and around Tacoma. Stead testified that she was passed back and forth between Roper and Stead and was forced to perform oral sex at least ten times. In Tillicum, Smith vaginally raped Stead and attempted to anally rape her. Roper forced Stead to perform oral sex in Tillicum. While they drove to Tacoma, Stead was forced to have vaginal intercourse with and perform oral sex on Smith again. In Tacoma, Roper again forced Stead to perform oral sex while they drove with Commandest to the store for beer.
These facts are similar to those in Grantham. Roper and Smith had a significant amount of time to pause, reflect, and form a new objective intent before committing each separate rape. The rapes took place over the course of three hours; they took place in different cities; and they took place outside and inside the car. The trial court did not err in finding that Count III against Smith was not the same criminal conduct as Counts II and IV, nor did it err in finding that Roper's two rape convictions were not the same criminal conduct.
III. Smith's Exceptional Sentence
Smith argues that the Supreme Court's decision in Blakely v. Washington, 542 U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), invalidates the trial court's imposition of a minimum term sentence that exceeds the statutory maximum for first degree rape. We agree.
The United States Supreme Court recently decided that our statutory scheme that permits a judge to impose an exceptional sentence without factual determinations being charged, submitted to a jury, or proved beyond a reasonable doubt does not comply with the Sixth Amendment. Blakely, 124 S.Ct. at 2538; see also RCW 9.94A.535. Therefore, facts supporting an exceptional sentence must be admitted by a defendant or found by a jury beyond a reasonable doubt. Blakely, 124 S. Ct. at 2537.
The standard range sentence for Smith's first degree rape convictions (Counts II and III) was 93-123 months. The standard range sentence for Count IV, first degree attempted rape, was 69.75-92.25 months. RCW 9.94A.515. The maximum term for each conviction is life imprisonment pursuant to RCW 9.94A.712.
The court sentenced Smith to the top of the standard range on one count of first degree rape (Count II) and on the attempted rape conviction (Count IV), to be served concurrently, for a total of 123 months. The court sentenced Smith to an exceptional sentence of 160 months on Count III to run consecutively to the sentences on Counts II and IV, for a total minimum sentence of 283 months.
The sentencing court's reasons for imposing the exceptional sentence were: (1) deliberate cruelty; (2) multiple incidents per victim; (3) and the operation of the multiple offense policy results in a presumptive sentence that is clearly too lenient. The trial court made factual findings to support the sentence on Count III; Smith did not stipulate to those facts.
Because rape and attempted rape are violent sex offenses, RCW 9.9A.712 governs Smith's sentences. Under the statute:
[T]he court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.
RCW 9.94A.712(3). And State v. Borboa, No. 30330-2-II, 2004 WL 2796586 (Wash.Ct.App. Dec. 7, 2004), recently established that a sentence imposed under RCW 9.94A.712 is subject to the Sixth Amendment right to jury trial as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely.
Under RCW 9.94A.712, the end of the minimum sentence imposed by the trial court establishes the point at which the Indeterminate Sentence Review Board (ISRB) conducts 'a hearing to determine whether it is more likely than not that the offender will engage in sex offenses if released.' RCW 9.95.420(3)(a). If the ISRB determines by a preponderance of the evidence that the offender will re-offend, it may extend the minimum term up to two years. RCW 9.95.420. The ISRB continues to hold hearings at the end of the imposed term to determine eligibility for parole. This process may continue up to the 'maximum' term life imprisonment. RCW 9A.20.021(1)(a).
[N]o person convicted of a classified felony shall be punished by confinement or fine exceeding the following:
(a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine.
Blakely precludes a sentencing court from imposing a sentence above the statutory maximum based on its own factual findings: i.e. not found by a jury beyond a reasonable doubt and not stipulated to by the defendant. 124 S.Ct. 2531. The court stated that 'the relevant statutory maximum for Apprendi purposes is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant.' 124 S. Ct. at 2533. It 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.' Blakely, 124 S.Ct. at 2538.
Furthermore, in Blakely, the court specifically addressed indeterminate sentencing statutes, noting that these statutes increase judicial discretion 'but not at the expense of the jury's traditional function of finding the facts essential to lawful imposition of the penalty.' 124 S. Ct. at 2540.
RCW 9.94A.712 directs the sentencing court to impose a minimum term within the standard range sentence for the violent sex offense and to impose the maximum term of life imprisonment. Under the statute, when a court sets the minimum term, any deviation above the standard range must be based on RCW 9.94A.535. But this runs afoul of both Apprendi and Blakely because it requires additional judicial fact finding. RCW 9.94A.535 is the precise statute that Blakely found invaded the province of the jury because it allows a judge to find facts to support an exceptional sentence by a preponderance of the evidence. The provisions of RCW 9.94A.712 that allow a sentencing judge to impose a minimum term in excess of the standard range have the same constitutional infirmities as RCW 9.94A.535.
Here, based solely on the jury's verdict, the sentencing court could not sentence Smith to a minimum term between the top of the standard range and life imprisonment. Borboa, 2004 WL 2796586 at * 3.
Thus, under both Apprendi and Blakely, the judicial fact-finding that increased Smith's sentence beyond the top of the standard range violated Smith's Sixth Amendment right to a jury trial.
Smith's sentence on Count III is reversed and remanded for resentencing consistent with Blakely, which, absent stipulation, requires a jury to determine whether factual circumstances supporting an exceptional sentence exist beyond a reasonable doubt.
IV. Smith's Statement of Additional Grounds (SAG) A. Prosecutorial Misconduct
RAP 10.10.
Pro se, Smith argues that the prosecutor continually made unsubstantiated assertions. Smith contends that there was no evidence of him 'beating' Stead, of her fear of further physical harm, or of the reasons she was tired at the end of the evening.
There is no merit to these allegations. Evidence indicated that Smith hit and kicked Stead. Stead testified numerous times that she feared fleeing because she might be subject to further harm. And the prosecutor was entitled to infer that Stead eventually fell asleep because she was exhausted from the physical abuse she had suffered throughout the night.
B. Inability to Effectively Cross-Examine
Smith argues that he was prejudiced by defense counsel's inability to recall Officer Grant to impeach Stead's statement that the defendants forced her into Smith's car.
Stead testified that Smith and Roper 'grabbed [her] and stuffed [her] in the car.' RP at 242. But in a prior statement to Grant, Stead stated that the defendants 'drove back, asked me for a ride, and I got in the car.' RP at 344-45. The jury heard both of these statements.
Stead's statement to Grant was admitted into evidence to impeach her statement that she had been forced into the car. Stead acknowledged making the statement to Grant and stated that her memory was different now. And Officer Lake testified that Stead did not indicate that the defendants used any force to get her into the car. Thus, Smith was able to impeach Stead's testimony without recalling Grant. United States v. Greer, 806 F.2d 556 (5th Cir. 1986).
C. Amendment of Information
After the close of the State's evidence, the State moved to amend the charges against Smith to reduce one count of first degree rape to one count of attempted first degree rape. Smith argues that this was untimely and prejudicial.
CrR 2.1(d) allows a court to amend an information 'at any time before verdict or finding if substantial rights of the defendant are not prejudiced.' 'A criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense.' State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987).
Here, the State amended the charge of first degree rape to a lesser included offense of attempted rape. RCW 10.61.010. Such an amendment does not prejudice Smith because he has already been informed of the nature and cause of the accusation against him through the original charge. Thus, the amendment was not prejudicial and was within the court's discretion.
V. Inconsistent Verdicts
Roper argues that his convictions for first degree rape and third degree rape are inconsistent. To convict Roper of first degree rape, the jury had to conclude that he raped Stead by forcible compulsion during a kidnapping. RCW 9A.44.040(b). The special verdict indicated that Stead was kidnapped during all of the rapes. Roper therefore contends that his third degree rape conviction is inaccurate because it would also constitute first degree rape.
A more reasonable explanation for the jury's third degree rape conviction is that the jury did not find the element of forcible compulsion on this oral sex charge and, thus, the crime did not constitute first degree rape. Instead, the jury likely concluded that Stead did not consent and Smith did not use physical force to compel her to perform oral sex.
To convict Roper of third degree rape, the jury only had to conclude that under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person, not married to the perpetrator:
(a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct. . . .
RCW 9A.44.060.
And inconsistent verdicts may be upheld despite an inconsistency '[w]here the jury's verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt.' State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988). There is no question that the evidence supports a finding of third degree rape and, thus, the trial court did not err.
VI. Roper's Statement of Additional Grounds
Pro se, Roper claims that the acts alleged for two of the three rape charges against him occurred on the Fort Lewis military base and, therefore, the trial court did not have jurisdiction.
The evidence was that Stead entered Smith's car while Roper was driving on base at Fort Lewis. Roper then drove off the military base, at which time Roper committed the acts for which he was charged. Stead testified that throughout the night she was forced to have oral sex with the Roper and Smith at least 10 times. Evidence established that Roper and Stead engaged in oral sex in a secluded area of Tillicum and again in the car while driving to get beer in Tacoma. None of these acts took place on military property. Under these circumstances, the trial court had jurisdiction over Roper.
Roper further argues that his counsel was ineffective for failing to require the State to identify specific instances of rape with each charge against him. Roper has the burden of showing that his counsel's representation was deficient and that he was prejudiced as a result of this deficiency. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Counsel's failure to request that the State identify each rape charge with a specific time or place was not deficient representation. This may have been trial strategy to blur the specifics of each alleged incident. And this omission was not prejudicial. Evidence supported the conclusion that Stead performed oral sex on Roper at least two specific times. Thus, counsel's assistance was not ineffective.
VII. Cumulative Error
Roper and Smith argue that cumulative error deprived them of a fair trial and, consequently, their convictions should be reversed and a new trial ordered.
A defendant may be entitled to a new trial or a reversal of his conviction where errors cumulatively produced an unfair trial. In re Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994). Where the defendants have not successfully shown prejudicial error, no cumulative error exists. In this case, Roper and Smith have not shown trial court error, except in regard to Smith's sentencing on Count III. Any other errors were not unduly prejudicial. Thus, cumulative error does not provide an avenue of relief for either Roper or Smith.
With the exception of Smith's sentence on Count III, which we reverse and remand for resentencing consistent with Blakely, we find no error and affirm.
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.
ARMSTRONG, P.J., Concur.
I concur in the majority opinion in all regards except for the application of Blakely v. Washington, 342 U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to RCW 9.94A.712 for Smith in what the majority terms 'Smith's Exceptional Sentence.' I respectfully dissent and disagree with the holding in State v. Borboa, Wn. App., No. 30330-2-II, 2004 WL 2796586 at *1, (Wash.Ct.App. Dec. 7, 2004), upon which the majority relies for the proposition that a sentence imposed under RCW 9.94A.712 is subject to the Sixth Amendment right to jury trial under Blakely.
In Blakely, the United States Supreme Court addressed former RCW 9.94A.390, recodified as RCW 9.94A.535 (2001), which provides: '[t]he 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 (quoting Apprendi, 530 U.S. at 2362-63). 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 factors permitting an exceptional sentence have been proven beyond a reasonable doubt. Blakely, 124 S. Ct. at 2533. The statutory maximum for first degree rape is life in prison (Smith's count III). RCW 9A.44.040.
Here, in accordance with RCW 9.94A.712(3), the trial court set Smith's sentence range for count II at life in prison, with a minimum term of 123 months; and for count IV at life in prison, with a minimum of 92.75 months to be served concurrently, for a total of 123 months. There is no challenge to this sentence because the minimum set is within the standard range of sentence for such offenses under RCW 9.94A.515. However, the challenge comes with respect to count III for which Smith received a life term, with a minimum sentence of 160 months, which was outside the standard range. RCW 9.94A.712 provides: 'the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.' RCW 9.94A.712(3) (emphasis added).
RCW 9.94A.712 employs a different sentencing structure from the SRA 'determinate sentences.' The SRA sets determinate sentences for offenses, using criminal histories and certain additors (permissible consecutive sentences for multiple convictions) to arrive at the standard ranges for the offenses. RCW 9.94A.510, .589. Other factors may add to the potential 'period of confinement' (e.g. firearm possession) and then, of course, there is the potential for additional time to be added to the potential period of confinement for aggravating factors (discretionary exceptional sentences based upon prior convictions and exceptional sentences based upon factors that must be proved beyond a reasonable doubt or admitted by the defendant). RCW 9.94A.535, .602. Although the period of confinement can be reduced by 'earned release,' the sentence is a 'determinate sentence' under the Sentencing Reform Act (SRA) once the defendant has served the maximum of the determinate sentence, his obligation cannot be extended to the maximum possible under the statute he violated.
RCW 9.94A.712 is distinctly different. First, it concerns a set of crimes that are sexual in nature e.g., rape in the first or second degree, rape of a child in the first or second degree, etc., and certain crimes that occur with sexual motivation, e.g., murder, kidnapping, assault, etc. RCW 9.94A.712(1)(a)(i)-(ii). For these crimes, the sentencing court is without discretion and there is no sentencing under any grid in the SRA for establishing the maximum sentence imposed. The sentencing court must sentence to the maximum under the particular statute. In Smith, as in Borboa, the court sentenced to life imprisonment, then set a minimum term. Borboa, Wn. App., 2004 WL 2796586 at *2. Thus, no fact increased the maximum imposed by the court, and the threshold for Blakely simply is not met. RCW 9.94A.712(3) mandates only that a minimum term be set by the court using the standard range or exceeding the standard range under RCW 9.94A.535. For this reason, I do not think that Blakely is implicated.
In effect, RCW 9.94A.712 changes the sentencing structure to one which is 'indeterminate'; this is why the Indeterminate Sentence Review Board (ISRB) is referenced. RCW 9.94A.712(5), (6). Once a defendant is sentenced under RCW 9.94A.712, he or she is subject to the authority of the ISRB up to his or her life term. RCW 9.94A.712(5); RCW 9.95.420(3).
Chapter 9.95 RCW made the former 'parole board' the 'ISRB,' and its function was originally to deal with those cases that were not sentenced under SRA and to set terms for confinement. RCW 9.95.001. It was to consider the standards, ranges, and purposes of the SRA when setting the terms of confinement, and in 1984 the legislature explicitly directed the ISRB to apply this to those persons serving life sentences. RCW 9.95.009. This system withstood challenge in In Re Stanphill, 134 Wn.2d 165, 949 P.2d 365 (1998). Our Supreme Court affirmed in Stanphill, as it had in In Re Powell, 117 Wn.2d 175, 193-94, 814 P.2d 635 (1991), that there was no vested interest in a release date. Stanphill, 134 Wn.2d at 173. The court also held that an additional ISRB obligation under this system is to insure 'rehabilitation' of offenders. Stanphill, 134 Wn.2d at 172. Thus, Smith's term can be periodically extended in two-year increments the minimum is only set to establish a parole review date.
A quote from Stanphill illuminates the system of indeterminate sentencing:
Even after the adoption of the SRA, the indeterminate sentencing scheme retains the premise of rehabilitation. The insertion of SRA sentencing ranges does not change the goal; it merely standardizes the process and places a tangible date on parole eligibility. However, the SRA ranges do not guarantee release and pre-SRA offenders may still establish parolability. For this reason, any inmate serving an indeterminate life sentence can never establish more punishment is being imposed under whatever SRA guideline the Board applies.
Stanphill, 134 Wn.2d at 172.
Additional authority concerning the procedures of the ISRB when setting minimum terms is also helpful. In In Re the Personal Restraint of Locklear, 118 Wn.2d 409, 413-14, 823 P.2d 1078 (1992), the court held that the Board was not bound to mirror the SRA criteria, but only had to be reasonably consistent with it. And in In Re Ecklund, 139 Wn.2d 166, 175, 985 P.2d 342 (1999), the court noted that the SRA is not superimposed upon the indeterminate system. Ecklund dealt with the standard of review for release and the resetting of an additional minimum. Ecklund, 139 Wn.2d at 170. The court held that the redetermination of a minimum is within the discretion of the ISRB. Ecklund, 139 Wn.2d at 170. The court also addressed the ISRB's additional duty to ensure that there is not a community threat upon release. Ecklund, 139 Wn.2d at 174. Ecklund's sentence had been extended several times and the court stated that his sentence was the equivalent of an exceptional sentence. Ecklund, 139 Wn.2d at 176. Nonetheless, these cases illustrate the difference between the SRA 'determinate' sentences and the 'indeterminate' sentence under RCW 9.94A.712. And although the determination of the minimum under RCW 9.94A.712 is superimposed from the SRA, there is no doubt that a sentence under RCW 9.94A.712 is an indeterminate sentence. Any redetermination of a sentence by the ISRB would include rehabilitation of the defendant.
Here the majority would extend Blakely. Under our prior case law and the sentencing scheme utilizing the ISRB, that extension would be inappropriate. The facts relied upon and found by the court affected only Smith's minimum term. Blakely requires only that facts increasing the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury. Blakely 124 S. Ct. at 2536. Because RCW 9.94A.712(3) mandates that Smith's maximum sentence term for these counts is life imprisonment, the statutory maximum under the SRA, Smith's sentence comports with Blakely and should be affirmed.