Opinion
No. 52024-5-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 94-1-00679-1. Judgment or order under review. Date filed: 03/11/2003. Judge signing: Hon. Linda C Krese.
Counsel for Appellant(s), Douglas Dwight Phelps, Phelps Associates, 2903 N Stout Rd, Spokane, WA 99206-4373.
Stuivenga — Informational only, Doc # 848535, Wsp, 1313 North 13th Street, Walla Walla, WA 99362.
Scott R. Staab, Law Office of Scott Staab, 430 W Indiana Ave, Spokane, WA 99205.
Counsel for Respondent(s), Rebecca Jane Quirk, Attorney at Law, Pr Aty of Miss Bldg Ms504, 3000 Rockefeller Ave, Everett, WA 98201-4046.
Ronald Stuivenga was convicted in Snohomish County of four sexual offenses involving his young daughter which occurred from the time she was 4 to 9 years old. Stuivenga had previously admitted to having sexual contact with this same daughter in Oregon when she was 11 years old. We find that the trial court here did not err in admitting this evidence of subsequent sexual contact under ER 404(b). Nor did the trial court err in rejecting Stuivenga's argument that some of the convictions constituted the same criminal conduct or in imposing an exceptional sentence without submitting the aggravating factors to the jury. Finally, the trial court properly denied Stuivenga's motion for a new trial.
FACTS
J.S., Stuivenga's daughter, testified that her father sexually abused her several times a week from the time she was 4 years old until she was 11 years old, when she told her mother about the abuse. The Stuivenga family lived in Lynnwood and Mount Vernon in Snohomish County and then moved to Oregon City, Oregon, when J.S. was nine. When J.S. disclosed the abuse, Stuivenga was arrested and charged in Oregon. In 1993, he pleaded guilty to having sexual contact with J.S. in 1992.
The jury was not told that Stuivenga was arrested, charged and convicted in Oregon. Nor were they informed of his subsequent escape from prison in Oregon, which prevented Snohomish County from pursuing the charges filed against him until he was apprehended seven years after the escape.
In this case, Stuivenga was charged with indecent liberties, first degree child molestation, statutory rape and first degree rape of a child. The charges were divided by date because the relevant statutes were amended effective July 1, 1988. Thus, the charging period for counts I and III was August 1, 1985 through June 30, 1988, when J.S. was 4 to 7 years old, and for counts II and IV July 1, 1988 through July 14, 1990, when J.S. was 7 to 9 years old. The jury convicted on all four counts.
DECISION Evidence Rule 404(b)
The trial court did not err in permitting the jury to consider the following statement Stuivenga made in the Oregon proceeding.
On September 30, 1993, in a court document in a separate proceeding in Oregon, the defendant admitted that, [in] . . . 1992 . . . the defendant had sexual contact with [J.S.] by touching her genital area and vagina.
Our courts have consistently recognized that evidence of collateral sexual misconduct may be admitted under ER 404(b) when it shows a defendant's lustful disposition toward the same victim as the offenses charged. But Stuivenga contends the evidence was inadmissible for such purposes because the admitted conduct occurred after the offenses charged here and was too remote in time. ER 404(b) applies whether the crime or misconduct occurred before or after the conduct for which a defendant is currently charged, as long as the trial court finds the evidence relevant. And whether the evidence was too remote is a decision within the trial court's sound discretion.
State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991).
State v. Brown, 132 Wn.2d 529, 576, 940 P.2d 546 (1997).
State v. Ray, 116 Wn.2d at 547.
J.S. testified that Stuivenga's abuse began when she was 4 and continued until she was 11. In his statement, Stuivenga admitted to sexual contact with J.S. when she was 11. The trial court acted within its discretion in finding that the two-year gap in charging periods did not make the admitted conduct remote and in finding the evidence of abuse subsequent to the Snohomish County charging periods relevant. The trial court limited the evidence to the statement itself, did not identify the Oregon proceeding and carefully instructed the jury of the limited purpose of the evidence. There was no error.
Denial of New Trial Motion Possible Brief View of Defendant in Handcuffs
Stuivenga sought a new trial because a juror may have seen him in handcuffs. Outside the jury's presence, Stuivenga's counsel told the trial judge that a juror had looked out of the jury room while Stuivenga was being handcuffed for transportation on the previous day. Counsel stated he wanted to let the court know so everyone could be more careful in the future. Counsel specifically declined to question the juror or to request any remedy for the occurrence. Not until the post-trial motion did Stuivenga assert that the incident was sufficiently serious to require any remedy. By failing to establish the facts or to request a remedy, Stuivenga waived any error that may have occurred.
State v. Elmore, 139 Wn.2d 250, 273, 985 P.2d 289 (1999); State v. Rodriguez, 146 Wn.2d 260, 271, 45 P.3d 541 (2002).
Moreover, in a hearing on the new trial motion, the trial court heard testimony from Officer Ferguson who was handcuffing Stuivenga. Officer Ferguson testified that he was behind Stuivenga, who was facing the door to the jury room, when he saw the juror poke her head out the door. Ferguson quickly finished with the handcuffs and stepped between Stuivenga and the jury room door. The trial judge concluded that she could not find that a juror actually saw Stuivenga in handcuffs nor that Stuivenga was prejudiced thereby. The court did not err.
Prosecutorial Misconduct in Closing Argument
Stuivenga's new trial motion was also based on prosecutorial misconduct in closing argument. He claims that the prosecutor told the jurors that J.S. was being re-victimized by having to testify in court and claims that his objection to this remark was sustained. There is no such remark in the record. Stuivenga did object to a remark by the prosecutor when it appeared that she was going to argue that the jury would have to disbelieve J.S. in order to find Stuivenga not guilty. The court promptly sustained that objection and the prosecutor did not complete the sentence but properly rephrased her argument.
RP (11/1/02) at 11-12.
Stuivenga did object to an analogy the prosecutor used, that asking J.S. to remember all the details of years of abuse was like asking someone repeatedly run over by a car to supply details. Stuivenga promptly objected, the trial court immediately sustained the objection, struck the remarks and directed the jury to disregard the remarks. The prosecutor apologized and then explained what she had been trying to say. There was no further objection to this explanation.
A defendant bears the burden of establishing that a prosecutor's argument was improper and that he was prejudiced thereby. Stuivenga did not move for a mistrial or ask for any other remedy after the court sustained his objection. In denying the new trial motion, the court found that the prosecutor had not intended an argument that would have constituted misconduct and that the court's prompt action in sustaining the objection and directing the jury to disregard the remark, followed by the prosecutor's proper explanation of her argument, obviated any possible prejudice. The trial court did not abuse its discretion in denying the new trial motion.
State v. Brown, 132 Wn.2d at 563.
Sentencing Issues Same Criminal Conduct
Stuivenga contends that his Oregon conviction and counts I and III in this case all constitute the same criminal conduct for sentencing purposes. A court should find that two or more crimes constitute the same criminal conduct if the crimes (1) required the same criminal intent; (2) were committed at the same time and place; and (3) involved the same victim. But we construe the concept of same criminal conduct narrowly; there must be a showing of all three elements.
State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994); RCW 9.94A.589(1)(a).
State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997).
Stuivenga relies on State v. Dunaway in an apparent attempt to ignore the requirement that the acts occur at the same time and place. He reasons that, because the court in Dunaway declined to make retroactive the 1987 amendments to the SRA which spelled out those requirements, they do not apply to his case. Nonetheless, the Dunaway court specifically held that part of any analysis of objective intent, the test on which Stuivenga relies `will often include the related issues of whether one crime furthered the other and if the time and place of the two crimes remained the same.' There was no evidence that one crime furthered the other. And Stuivenga's 5 crimes against his daughter, over a period of 11 years in two different states cannot meet this test.
109 Wn.2d 207, 743 P.2d 1237 (1987).
Exceptional Sentence
The trial court imposed an exceptional 240-month sentence on Count IV for the following reasons:
1. The defendant was the natural father of J.S. (2/4/81) and lived with her.
2. The defendant committed numerous sexual offenses against J.S. over a period from 1985 to 1990.
3. The defendant began sexually offending against J.S. when she was four years old.
4. The defendant utilized his position as J.S.' father to facilitate the commission of his crimes.
I CP 14.
Stuivenga argues that his exceptional sentence violates the United States Supreme Court decisions in Apprendi v. New Jersey and Ring v. Arizona because the aggravating factors relied upon the trial judge were not pleaded and submitted to the jury. In Apprendi, the court held that any factor that could be used to increase the statutory maximum sentence that a defendant could face must be submitted to the jury and found by them beyond a reasonable doubt. And in Ring, the Court held that any aggravating factor that is the functional equivalent of an element of a greater offense must also be submitted to a jury.
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2002).
536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
Stuivenga does not contend that the aggravating factors found by the judge are the functional equivalent of an element of a greater offense nor that the judge was able to use the factors to impose a sentence beyond the statutory maximum. He nonetheless contends that the rationale of Apprendi applies to any aggravating circumstance that can be used to raise a sentence beyond the standard range. Our Supreme Court has rejected this argument. Indeed, the United States Supreme Court itself declined to retreat from McMillan v. Pennsylvania, where it held that facts that do not increase the statutory maximum sentence do not need to be submitted to the jury or proved beyond a reasonable doubt.
State v. Gore, 143 Wn.2d 288, 314-315, 21 P.3d 262 (2001).
477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).
The factors relied upon by the trial court here were in fact before the jury. Stuivenga did not contest that J.S. was his natural daughter and many family members so testified in his defense. J.S. testified she was abused from age 4 to 11. Her date of birth was in the to-convict instructions for counts II, III and IV. And it was clear from the testimony that Stuivenga used his position as J.S.'s father to spend time alone with her, bathe and shower with her, visit her bedroom at night and call her into his bedroom. Nothing in Apprendi or Ring requires these factors be submitted to the jury specifically for sentencing purposes. The trial court did not err in imposing an exceptional sentence.
This court is well aware that the United States Supreme Court has granted certiorari in State v. Blakely, 111 Wn. App. 851, 47 P.3d 149 (2002), review denied, 148 Wn.2d 1010 (2003). We decline to speculate upon the Court's reasons for accepting the case, the issues the Court will ultimately address or its future resolution of those issues. We also decline Stuivenga's invitation to follow a Kansas Supreme Court case instead of our own Supreme Court's decision.
CONCLUSION
Stuivenga's judgment and sentence are affirmed.
APPELWICK, KENNEDY, and COLEMAN, JJ.