Opinion
No. 25139-0-III.
September 4, 2007.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-00950-1, Salvatore F. Cozza, J., entered March 31, 2006.
Affirmed in part and remanded by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Schultheis, J.
Dallin David Fort appeals his two first degree child rape convictions. We agree with Mr. Fort that the court erred in refusing his same criminal conduct argument at sentencing. We reject his other error assignments and his pro se additional grounds for review. Accordingly, we affirm and remand for resentencing.
FACTS
In the summer of 2003, Mr. Fort helped care for his nine-year-old niece, A.W. In February 2005, A.W. told her mother Mr. Fort sexually abused her. According to A.W., Mr. Fort would wake her up almost every morning while it was still dark and "touch [her] in inappropriate areas and make [her] touch him in inappropriate areas." Report of Proceedings (RP) (Jan. 31, 2006) at 25. She testified that "sometimes" he had "[v]ibrators" and would put them inside her vagina, and "sometimes he would have [her] put [her] mouth on his [penis]." RP at 26, 29.
The State charged Mr. Fort in part with two counts of first degree child rape. At trial, the court instructed the jury it must unanimously agree on a single act to support each charge. During closing arguments, the State commented: "[Defense counsel] said that kids talk about these things. Apparently, they do. The Catholic [C]hurch is finding out, apparently, that kids tell exactly what happened right after it happened." RP (Feb. 3, 2006) at 439. Mr. Fort successfully objected, and the court directed the jury to disregard the comment. Mr. Fort did not move for a mistrial. The jury found Mr. Fort guilty on both charges.
At sentencing, Mr. Fort argued the convictions were the same criminal conduct. The State argued same criminal conduct did not apply since a unanimity instruction had been given. The court ruled the two offenses were not the same criminal conduct since the evidence "outlin[ed] different incidents, multiple incidents over a period of time," and since "the jury was specifically given [a unanimity] instruction." RP (March 31, 2006) at 17. Mr. Fort appeals both his convictions and his sentence.
ANALYSIS A. Prosecutorial Misconduct
The issue is whether the prosecutor's closing "Catholic Church" argument was prosecutorial misconduct denying Mr. Fort a fair trial.
We review a trial court's prosecutorial misconduct rulings for abuse of discretion. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995). A defendant bears the burden of establishing, first, prosecutorial misconduct, and second, its prejudicial effect. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). A prosecutor's statements are "viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." Id. Misconduct is prejudicial if "there is a substantial likelihood that the . . . misconduct affected the verdict." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Prosecutorial misconduct may be neutralized by a curative jury instruction. See id. Juries are presumed to follow the court's instructions. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983). "The absence of a motion for mistrial at the time of the argument strongly suggests to a court that the argument or event in question did not appear critically prejudicial to [the defendant] in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
Here, the prosecutor made no connection between Mr. Fort or A.W. and the Catholic religion or any Catholic Church incident. The comment was made in the context of children reporting misconduct. Mr. Fort immediately objected and the court instructed the jury to disregard the comment. Mr. Fort has not shown the comment was so prejudicial as to affect the jury's verdict and he has not shown any indication that the jury failed to abide by the court's instruction.
B. Same Criminal Conduct
The issue is whether the trial court erred in denying Mr. Fort's request to count his first degree rape convictions as "same criminal conduct" for sentencing purposes. Mr. Fort contends the State failed to show the crimes occurred during separate incidents.
We review a trial court's "same criminal conduct" determination for abuse of discretion or misapplication of the law. State v. Dolen, 83 Wn. App. 361, 364, 921 P.2d 590 (1996). A defendant's offender score may be reduced if the court finds two or more of the criminal offenses constitute same criminal conduct. RCW 9.94A.589(1)(a). Same criminal conduct "means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." Id. The State has the burden to prove the crimes did not occur as part of a single incident. Dolen, 83 Wn. App. at 365 ("If the time an offense was committed affects the seriousness of the sentence, the State must prove the relevant time.").
The "same criminal intent" element is determined by looking at whether the defendant's objective intent changed from one act to the next. Dolen, 83 Wn. App. at 364-65. The mere fact that distinct methods are used to accomplish sequential crimes does not prove a different criminal intent. State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 657 (1997). The "same time" element does not require that the crimes occur simultaneously. State v. Porter, 133 Wn.2d 177, 185-86, 942 P.2d 974 (1997); Dolen, 83 Wn. App. at 365. Individual crimes may be considered same criminal conduct if they occur during an uninterrupted incident. Porter, 133 Wn.2d at 185-86; Dolen, 83 Wn. App. at 365 (citing to State v. Walden, 69 Wn. App. 183, 188, 847 P.2d 956 (1983), where the court found a defendant's convictions for second degree rape and attempted second degree rape, committed by forcing the victim to submit to oral and attempted anal intercourse during one continuous incident, to be same criminal conduct).
The Dolen court looked at the evidence presented (six different incidents in which Mr. Dolen engaged in sexual intercourse and/or sexual contact with a child) and determined it was unclear from the record whether the jury convicted him of the two offenses in a single incident or in separate incidents. Dolen, 83 Wn. App. at 365. The court reasoned that if Mr. Dolen had been convicted of two offenses from a single incident, then they would have encompassed the same criminal conduct. Id. The court held: "the State failed to prove that [Mr.] Dolen committed the crimes in separate incidents[,] [c]onsequently, the trial court's finding that the two convictions did not constitute the same criminal conduct is unsupported." Id.
Our case is similar to Dolen. Although the testimony shows different means of committing rape and different dates, it is unclear whether the jury convicted Mr. Fort for committing two offenses in a single incident or in separate incidents. A.W. testified Mr. Fort inappropriately touched her and made her touch him inappropriately without specifying a separate time and place. The State's closing argument does not help. It merely argued A.W. was subjected to two different forms of sexual intercourse in support of the two charged offenses within the relevant charging period. It did not argue the different means of committing rape occurred on different days. Illustrating our problem, the jury, during deliberations, asked if it could find Mr. Fort guilty of any two incidents, including two instances of vaginal penetration or two instances of oral penetration. The evidence does not eliminate the circumstance of a vaginal and an oral penetration occurring during a single incident. Dolen, 83 Wn. App. at 365.
To avoid the same criminal conduct issue, the State needed to show the incidents occurred at different times. Id. The trial court ultimately ruled the two offenses were not same criminal conduct since the evidence "outlin[ed] different incidents, multiple incidents over a period of time" and since "the jury was specifically given [a unanimity] instruction." RP (March 31, 2006) at 17. Giving the unanimity instruction does not provide assurance that the offenses occurred at separate times. See State v. Petrich, 101 Wn.2d 566, 572-73, 683 P.2d 173 (1984).
In sum, "the record [here] does not tell us whether the jury convicted [Mr. Fort] of committing the two offenses in a single incident or in separate incidents." Dolen, 83 Wn. App. at 365. "[T]he State [then] failed to prove that [Mr. Fort] committed the crimes in separate incidents." Id. We hold that the trial court erred in failing to count Mr. Fort's two convictions as the same criminal conduct.
Pro Se Additional Grounds
1. Effective Assistance of Counsel: Mr. Fort contends he received ineffective assistance of counsel, arguing his counsel: (1) failed to object to juror 8 remaining on the panel since juror 8 previously worked as a victims advocate, (2) admitted at an appeal bond hearing that he only wanted to get Mr. Fort a Special Sex Offender Sentencing Alternative (SSOSA) sentence (rather than winning), which was evidenced by his lack of trial strategy and failure to properly address the State's exhibits, and (3) poorly delivered his closing argument, telling the jury that the alleged events happened.
We review a claim for ineffective assistance of counsel de novo. State v. Shaver, 116 Wn. App. 375, 382, 65 P.3d 688 (2003). We presume defense counsel's performance was reasonable. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). An appellant must first prove deficient performance by showing defense counsel's performance fell below the objective standard of reasonableness. Id. at 334-35. This must be shown based upon the trial record. Id. at 335. Strategic or tactical reasons do not support an ineffective assistance claim. Id. at 336. Second, an appellant must prove prejudice by showing "a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 335.
First, the court here questioned juror 8 in chambers, with counsel present, regarding her prior work history. Juror 8 stated she could be an objective juror. It was a legitimate trial strategy for defense counsel not to challenge juror 8. Second, the appeal bond hearing is not part of the record on appeal, and Mr. Fort has not shown defense counsel failed to zealously represent him. Third, Mr. Fort's counsel did not tell the jury Mr. Fort committed the alleged crimes. Based on this record, Mr. Fort has not shown any deficient performance.
2. Prosecutorial Misconduct: Mr. Fort contends the prosecutor improperly misled the jury during closing arguments. A prosecutorial misconduct claim may be raised for the first time on appeal if the misconduct is so prejudicial it could not have been cured by a jury admonition. Dhaliwal, 150 Wn.2d at 578. Mr. Fort has pointed to no specific instance of alleged misconduct that could not have been cured by a jury admonition and he has shown no evidence of A.W. being coached.
3. Evidence Sufficiency: Mr. Fort contends no evidence supports his convictions. We review evidence sufficiency challenges in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We accept the State's evidence as true and view all reasonable inferences in favor of the State. Id. Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact in matters of witness credibility and evidence weight. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). We will affirm if the trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Salinas, 119 Wn.2d at 201.
An individual is guilty of first degree child rape "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). Sexual intercourse means "any penetration of the vagina or anus however slight, by an object, when committed on one person by another" or "any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another." RCW 9A.44.010(1)(b)-(c).
Sufficient evidence supports Mr. Fort's convictions because A.W. testified Mr. Fort repeatedly sexually abused her, vaginally and orally. A.W. was nine-years-old, not married to Mr. Fort, and Mr. Fort was greater than twenty-four months older than A.W.
Affirmed, and remanded for further proceedings consistent with this opinion.
A majority of the panel has determined 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.
WE CONCUR:
SWEENEY, C.J.
SCHULTHEIS, J.