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State v. Thomas

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1037 (Wash. Ct. App. 2007)

Opinion

No. 57471-0-I.

March 12, 2007.

Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-01416-9, Larry E. McKeeman, J., entered December 19, 2005.

County, No. 05-1-01416-9, Larry E. McKeeman, J., entered December 19, 2005. Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.

Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.

Leonard Thomas(info Only) (Appearing Pro Se), Trcc, Doc 118822, PO Box 888, Monroe, WA, 98272.

Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA, 98201-4061.


Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.


Following a jury trial, Leonard Thomas was found guilty of alternative counts of rape of a child in the first degree and child molestation in the first degree arising from one incident, and guilty of child molestation in the first degree arising from a second incident. Thomas appeals from the judgment entered on the verdicts, contending that the sentencing court violated his constitutional right to be free from double jeopardy when it did not vacate the first of his child molestation convictions, which he claims merged with his rape of a child conviction. Thomas also argues that the trial court erred by imposing a term of up to life imprisonment on the merged count, and that the offender score and total standard range on his judgment and sentence form reflect clerical errors. Finally, Thomas challenges the sufficiency of the evidence supporting his convictions. With the exception of Thomas' evidentiary sufficiency challenge, we agree with his contentions on appeal. Accordingly, we affirm in part, reverse in part, and remand to the trial court for proceedings consistent with this opinion.

FACTS

In February 2005, C.Q. informed her mother that C.Q.'s grandfather, Thomas, had been touching her between her legs. C.Q.'s mother immediately contacted the police. For each of two incidents of sexual contact, Thomas was charged with alternative counts of rape of a child in the first degree and child molestation in the first degree. For the first incident, the jury found Thomas guilty of both rape of a child in the first degree (count I) and child molestation in the first degree (count II). For the second incident, the jury found Thomas guilty only of child molestation in the first degree (count IV).

The two alleged incidents of sexual contact took place while C.Q. was seven years old. C.Q. was eight years old at the time of trial.

During the jury instruction colloquy, each counsel agreed that the counts were charged in the alternative, such that the jury could find Thomas guilty of either rape of a child or child molestation for each of the two alleged incidents. The State also asserted during closing argument that the jury should consider the counts of rape and child molestation in the alternative.

During the sentencing proceeding, the trial court orally ruled that the first count of child molestation (count II) merged with the rape of a child conviction, and stated that it was declining to impose a sentence for count II. However, the judgment and sentence form reflects a total of three convictions: one count of first degree rape of a child, and two counts of first degree child molestation. The judgment and sentence form also reflects that Thomas received a sentence of from "0" months in custody to life imprisonment on count II. The offender score and total standard range recorded on the judgment and sentence form are also inconsistent with the trial court's oral ruling.

DISCUSSION

I. Double Jeopardy

Thomas first contends that his constitutional right to be free from double jeopardy was violated because the judgment and sentence form reflects two convictions for a single offense that was charged in the alternative. Specifically, Thomas argues that the trial court erred because the judgment and sentence form references Thomas' conviction on count II, child molestation in the first degree, which merged with his conviction on count I, rape of a child in the first degree. As a result, Thomas asserts that he has received multiple punishments, in the form of multiple convictions, for a single incident. We agree.

The double jeopardy clause of the Fifth Amendment protects defendants from receiving multiple punishments for a single offense. State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). Accord Const. art. 1, §§ 9. Multiple convictions for a single offense constitute separate punishments within the meaning of that clause, even if only one sentence is imposed, because criminal convictions are accompanied by "societal stigma," and a defendant's potential sentence for any future offense might be increased under recidivist statutes. Ball v. United States, 470 U.S. 856, 861, 864-65, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985). See State v. Gohl, 109 Wn. App. 817, 822, 37 P.3d 293 (2001) (defendant's right to be free from double jeopardy was violated where defendant was convicted of two crimes that constituted the same offense, even though he received only one sentence, because "conviction, and not merely imposition of a sentence, constitutes punishment"). Accordingly, we consider the punitive aspects of multiple convictions, regardless of the sentence imposed, when reviewing convictions in light of the Fifth Amendment's double jeopardy clause. Calle, 125 Wn.2d at 774.

"The mere fact that sentences are concurrent will not shield multiple convictions from scrutiny under the double jeopardy clause." Calle, 125 Wn.2d at 773. As the Supreme Court also noted in that case, "[b]oth federal and state courts have cited Ball in concluding that double jeopardy concerns arise in the presence of multiple convictions, regardless of whether the resulting sentences are imposed consecutively or concurrently."

In a criminal proceeding, the State may charge separate offenses in the alternative when evidence may support a conviction for one or more offenses arising out of the same criminal transaction. State v. Markle, 118 Wn.2d 424, 437, 823 P.2d 1101 (1992). Where the State has charged a defendant in the alternative with separate crimes, and the jury returns guilty verdicts on both charges, the trial court should enter judgment only on the greater offense. State v. Trujillo, 112 Wn. App. 390, 411, 49 P.3d 935 (2002). To avoid double jeopardy when a jury returns guilty verdicts on each of two alternative charges, judgment should be entered and sentence imposed solely on the greater offense "without reference to the verdict on the lesser offense." Trujillo, 112 Wn. App. at 411. See, e.g., State v. Johnson, 113 Wn. App. 482, 54 P.3d 155 (2002) (defendant's right to be free from double jeopardy was not violated where the jury found defendant guilty of two alternative means of committing the same offense, but defendant's judgment and sentence form properly acknowledged only one conviction with a single sentence imposed).

As in Trujillo, Thomas was herein charged in the alternative with two separate crimes arising out of the same criminal transaction. The sentencing court stated that Thomas' conviction for first degree child molestation on count II merged with his first degree rape of a child conviction on count I. As a result, the court declared that it would not impose a sentence on count II. However, contrary to the sentencing court's assertions, Thomas' judgment and sentence form reflects all three convictions, including the "merged" child molestation conviction. The judgment also reflects that the trial court sentenced Thomas to a maximum term of life imprisonment on count II.

Because the jury convicted Thomas of two offenses for a single incident, and the offenses were charged in the alternative, under Trujillo the sentencing court should have entered judgment only on the greater offense of rape of a child in the first degree. This error violated Thomas' right to be free from receiving multiple punishments, in the form of multiple convictions, for a single offense. Ball, 470 U.S. at 861. Accordingly, both Thomas' conviction on count II, child molestation in the first degree, and the sentence imposed thereon must be vacated.

II. Clerical Mistakes

On appeal, the State and Thomas agree that the sentencing court's oral rulings regarding Thomas' offender score and total standard range calculations were correct. They also agree that the offender score and total standard range were improperly recorded on Thomas' judgment and sentence form.

Once a defendant's standard range for sentencing is determined according to the defendant's offender score and the offense seriousness score, a defendant's judgment and sentence form may indicate "that an enhancement is added to the standard range which results in the total standard range." State v. Brown, 139 Wn.2d 20, 36, 983 P.2d 608 (1999). The incorrect total standard ranges listed on his judgment and sentence form are 240 to 318 months on count I, and 149 to 198 months on counts II and IV. Although Thomas does not challenge the standard range listed on his judgment and sentence form, which was consistent with the trial court's oral ruling, he does assert that the form erroneously includes a range for count II, which must be vacated.

CrR 7.8(a) states, in pertinent part, that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." "A clerical mistake is one that when amended would correctly convey the intention of the court based on other evidence." State v. Priest, 100 Wn. App. 451, 455, 997 P.2d 452 (2000).

The sentencing court clearly expressed an intention to assign Thomas an offender score of three, rather than nine. The court also expressly stated that it would not sentence Thomas on count II, contrary to the maximum sentence of life imprisonment that appears on the document. In addition, the sentencing court did not articulate any kind of enhancement that would affect Thomas' total standard range. Thomas' total standard range on the judgment and sentence form should have been the same as his minimum standard range, i.e., 120 to 160 months for the rape of a child conviction on count I, and 67 to 89 months for the child molestation conviction on count IV. In light of these clerical mistakes, this case must be remanded so that the trial court may amend Thomas' judgment and sentence pursuant to CrR 7.8(a).

III. Sufficiency of the Evidence

Thomas next contends that the State presented insufficient evidence to prove that Thomas was guilty of either rape of a child in the first degree or child molestation in the first degree. Specifically, Thomas argues that the State failed to provide sufficient evidence of his age, which he claims was an element of both crimes charged.

When reviewing a claim of insufficient evidence to support a guilty verdict, we must determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the offense proved beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

The State has the burden of proving each element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Direct evidence as well as circumstantial evidence may be used to prove an element of the crime charged. State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992) (circumstantial evidence may be as probative as direct evidence). Circumstantial evidence is "evidence of facts or circumstances from which the existence or nonexistence of other facts may be reasonably inferred from common experience." 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 15.01, at 124 (2d ed. 1994), cited with approval in State v. Tucker, 32 Wn. App. 83, 87, 645 P.2d 711 (1982).

Contrary to Thomas' assertion, his age was not an element of either of the crimes charged. Rather, the rape of a child in the first degree statute required the State to prove a minimum age difference of 24 months between Thomas and C.Q. Thus, because C.Q. was 7 years old at the time of the offenses, the State had to prove that Thomas was at least 9 years old at that time. To convict Thomas of child molestation in the first degree, the State needed to prove that Thomas was at least 36 months older than C.Q., or at least 10 years old, at the time of the offense.

"A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim." RCW 9A.44.073(1).

"A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." RCW 9A.44.083(1).

The jury was provided with sufficient circumstantial evidence of Thomas' age to convict him of both rape of a child in the first degree and child molestation in the first degree. Viewing the evidence in the light most favorable to the State, there was sufficient evidence that Thomas was over the age of 9 or 10 at the time of the proven sexual contact, and was, thus, at least 24 or 36 months older than C.Q. C.Q. identified Thomas as her "grandpa," and no evidence was produced by Thomas to contradict that identification. Common experience suggests that, as C.Q.'s grandfather, Thomas was much older than 10 years of age. In addition, the jury had ample opportunity to observe Thomas' physical appearance during the trial. Therefore, the circumstantial evidence of Thomas' age was sufficient to support Thomas' convictions for rape of a child in the first degree and child molestation in the first degree.

Accordingly, because there was sufficient evidence to support the jury's verdict, Thomas' convictions for rape of a child in the first degree on count I and child molestation in the first degree on count IV are affirmed. We remand this case to the trial court to vacate Thomas' conviction on count II, child molestation in the first degree, to make clear that Thomas was not sentenced on count II, and to correct the clerical errors on the judgment and sentence form regarding Thomas' offender score and total standard range.

Affirmed in part, reversed in part, and remanded.

APPELWICK and BECKER, JJ., concur.


Summaries of

State v. Thomas

The Court of Appeals of Washington, Division One
Mar 12, 2007
137 Wn. App. 1037 (Wash. Ct. App. 2007)
Case details for

State v. Thomas

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. LEONARD THOMAS, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 12, 2007

Citations

137 Wn. App. 1037 (Wash. Ct. App. 2007)
137 Wash. App. 1037