Opinion
No. 25846-7-III.
February 26, 2008.
Appeal from a judgment of the Superior Court for Yakima County, No. 03-1-01435-0, Susan L. Hahn, J., entered January 18, 2007.
Affirmed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Stephens, J. Pro Tem.
Gerald Watson asserts two major bases in the appeal after his conviction on three counts of first degree rape of a child. First, he contends the jury instructions did not convey the unanimity requirement to the jury. Second, he asserts that his estranged wife was barred from testifying against him without his consent because, under his construction of RCW 5.60.060(1), the exception for testimony relative to crimes against the marital community's children applies only to secret communications and not to general communications protected by marital privilege. Finding no error, we affirm.
FACTS
In June 2003, eight-year-old B. told her godmother that her grandfather had been sexually molesting her. Mr. Watson was arrested and charged with three identical counts of first degree rape of a child, each occurring within the same time period — between January 2002 and December 2003.
At trial, B. explained that she began living with her grandmother and grandfather when she was three years old. Her grandmother started homeschooling her after first grade until she went back to school as a fifth grader. B. stated that she was sexually abused by Mr. Watson from the time she was six years old, but not past her eighth birthday.
She testified that on more than one occasion, Mr. Watson "would just go underneath my clothes" and "rub his fingers along my crotch and inside a little." Report of Proceedings (RP) at 42, 41. She was six years old the first time it occurred, after school, when her grandmother was at work. She was on the couch in the living room and her younger sister was watching television.
B. stated that Mr. Watson began taking her into his bedroom and "rubbed his private area along my crotch," and on two such occasions penetration occurred, which she described as painful. RP at 48. B. also described the "spinning game," where she put her legs on Mr. Watson's shoulders and he would spin her around, and then "lean over, and . . . put his tongue in my vagina and lick my vagina." RP at 46, 66.
The jury found Mr. Watson guilty on all three counts.
DISCUSSION
Unanimity
Jury instructions are adequate if they allow a party to argue its theory of the case and do not mislead the jury or misstate the law. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Whether the jury instructions state the applicable law is a question of law, which is reviewed de novo. State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002).
The court's instructions to the jury included three identical "to convict" instructions — one for each count. Each instruction informed the jury that the elements of the crime must be proven beyond a reasonable doubt and that the jury must unanimously agree that the same act of sexual intercourse had been proven beyond a reasonable doubt. The jury was also instructed that a separate crime was charged in each count and it must decide each count separately. The jury was also instructed these instructions ensured that a conviction of any given count would be predicated on the jury's unanimous agreement of the commission of the same criminal act. With these instructions, the right to jury unanimity was not violated. State v. Borsheim, 140 Wn. App. 357, 366, 165 P.3d 417 (2007).
In support of his unanimity argument, Mr. Watson relies on State v. Hayes, 81 Wn. App. 425, 914 P.2d 788 (1996). Hayes held that in sexual abuse cases where multiple identical counts are alleged to have occurred within the same charging period, the trial court must instruct the jurors "that they are to find 'separate and distinct acts' for each count." Hayes, 81 Wn. App. at 431 (quoting State v. Noltie, 116 Wn.2d 831, 846, 809 P.2d 190 (1991)). The "separate and distinct act" language is more applicable to a double jeopardy claim. Borsheim, 140 Wn. App. at 366.
Division Two of this court aptly described the fundamental differences between the two types of contentions: "[An argument] asserting that all jurors must agree on the same act underlying any given count has to do with jury unanimity and the right to jury trial. [An argument] asserting that the jury could not use the same act as a factual basis for more than one count has to do with the right against double jeopardy; at least in the context here, to use one act as the basis for two counts is to convict twice for the same crime." State v. Ellis, 71 Wn. App. 400, 404, 859 P.2d 632 (1993).
Nonetheless, we agree with the State, that the "separate and distinct" language approved in Hayes is not the definitive phraseology that must be used in every case. Here, there was a separate to-convict instruction for each count, and an ordinary juror would understand that each count required proof of a different act. Marital Privilege Under the rules of witness competency, RCW 5.60.060 addresses persons disqualified from testimony and those to whom privileged communications apply. One rule as to married persons provides:
A husband shall not be examined for or against his wife, without the consent of the wife, nor a wife for or against her husband without the consent of the husband; nor can either during marriage or afterward, be without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply . . . to a criminal action or proceeding for a crime committed by said husband or wife against any child of whom said husband or wife is the parent or guardian.
This subsection confers two distinct rights: marital privilege and confidential communications. The first and broader right of marital privilege provides that no spouse shall be examined as a witness for or against the other spouse without the consent of such other spouse. This right recognizes the "natural repugnance" of having one spouse testify against the other and prevents the testifying spouse from having to "'choose between perjury, contempt of court, or jeopardizing the marriage.'" State v. Burden, 120 Wn.2d 371, 375, 841 P.2d 758 (1992) (quoting State v. Wood, 52 Wn. App. 159, 163, 758 P.2d 530 (1988)). The marital privilege extends over the marriage, but ceases upon the end of the marriage by divorce or death. Swearingen v. Vik, 51 Wn.2d 843, 847, 322 P.2d 876 (1958).
The latter privilege for confidential communications provides that neither spouse can ever, without the consent of the other, be examined as to confidential communications made by one to the other during the marriage. Its purpose is to encourage a free interchange of confidences between husband and wife, which is necessary for mutual understanding and trust. Id. at 847-48.
Mr. Watson argues that under the last antecedent rule of statutory construction, the qualification in the second sentence as to criminal actions applies only to confidential communications between spouses, and the qualification does not apply to the rule barring one spouse from testifying against the other. Thus, he claims, while the confidential communications were subject to disclosure, the rule barring one spouse from testifying against the other prevented his wife from testifying against him.
Statutory interpretation is a question of law, subject to de novo review. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). Where the meaning of statutory language is plain on its face, we must give effect to that plain meaning as an expression of legislative intent. State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). In discerning the plain meaning of a provision, we consider the entire statute in which the provision is found, as well as related statutes or other provisions in the same act that disclose legislative intent. Dep't of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 11, 43 P.3d 4 (2002). "Of course, if, after this inquiry, the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history." Id. at 12.
A plain reading of the statute presents no ambiguity. Mr. Watson's interpretation of the statute is simply not reasonable. The qualifier is addressed in a completely different sentence. Also, it would not make sense to apply the exception to the specific confidential communications clause when the more general marital privilege clause embraces some of the same communications. If the statute is not ambiguous, no construction is necessary.
Under the last antecedent rule, "unless a contrary intention appears in the statute, qualifying words and phrases refer to the last antecedent." In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 781, 903 P.2d 443 (1995). But "the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one." Id. at 781-82. The separation of the exception by a period is just as conclusive. See Cameron v. Auto Club Ins. Ass'n, 476 Mich. 55, 71, 718 N.W.2d 784 (2006) ("the last antecedent rule does not apply where the modifying clause is set off by a punctuation mark, such as a comma or, in this case, a period"). See also In re Estate of Kurtzman, 65 Wn.2d 260, 264, 396 P.2d 786 (1964) ("The last antecedent is the last word, phrase or clause that can be made an antecedent without impairing the meaning of the sentence." (emphasis added)). The testimony of Mr. Watson's former wife did not violate the marital privilege statute. Statement of Additional Grounds
Mr. Watson asserts that the court erred in changing the pretrial evidentiary rulings of other judges ruling on the issues prior to his trial. The earlier evidentiary rulings are not in the record before the court. Factual allegations lying outside the record are more appropriately addressed in a personal restraint petition. RAP 16.11(b). Moreover, a trial judge is free during the course of the trial to alter previous pretrial evidentiary rulings. State v. White, 43 Wn. App. 580, 584, 718 P.2d 841 (1986).
Next, Mr. Watson asserts that the State frequently referred to him as B.'s grandfather, which is an incorrect description of their relationship. He points out that he is not a blood relative — B. is his wife's granddaughter from her previous marriage. He felt this reference was to enflame the jury because the jury would view him in a worse light if he raped his granddaughter than his step-granddaughter.
Even if the use of the pronoun grandfather was incorrect — and we do not hold that it was — because he did not object at the time of trial the issue of alleged prosecutorial misconduct is usually waived unless the misconduct was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997) (citing State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995)). Because he cannot meet this standard, Mr. Watson waived any objection.
Mr. Watson also asserts that the evidence should have been limited to the events that occurred within the charged period. The language "on or about" in an information is sufficient to admit proof of the act at any time within the statute of limitations, unless time is an element of the charge or the defendant asserts an alibi defense. Hayes, 81 Wn. App. at 432. Time is not an element of the offense and Mr. Watson did not assert an alibi defense. RCW 9A.44.073; Hayes, 81 Wn. App. at 433.
Finally, Mr. Watson claims that his right to a speedy trial was denied. He asserts that he was arrested on July 9, 2003 and trial was not held until three years later on September 13, 2006. It is unclear whether Mr. Watson's claim is based on the court rule or the constitution. CrR 3.3; U.S. Const. amend. VI; Const. art. I, § 22. Regardless of the basis of the claim, the record in this appeal does not provide information sufficient to determine the reasons for the delay, which is significant to both analyses. The record is therefore insufficient to address this issue on direct review.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Sweeney, C.J., Stephens, J. Pro Tem., concur.