Opinion
No. 24935-2-III.
January 29, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 04-1-03118-5, Salvatore F. Cozza, J., entered February 10, 2006.
Affirmed by unpublished opinion per Schultheis, A.C.J., concurred in by Kulik, J., and Kato, J. Pro Tem.
RCW 9.94A.589(1)(a) provides for concurrent sentences for offenses that encompass the same criminal conduct. Same criminal conduct means two or more crimes that require the same objective criminal intent, committed at the same time and place, and involve the same victim. State v. Palmer, 95 Wn. App. 187, 190, 975 P.2d 1038 (1999). Donta L. Blackmon was convicted of second degree child rape and second degree child molestation. The primary issue on appeal is whether these crimes constitute the same criminal conduct. We conclude that the trial court exercised its discretion in finding that the crimes were not the same criminal conduct and we cannot say that this was an abuse of discretion. We therefore affirm.
FACTS
Mr. Blackmon was charged with one count of second degree rape for lack of consent due to helplessness (count I), one count of indecent liberties (count II), one count of second degree child rape (count III), and one count of second degree child molestation (count IV).
At trial, L.H. testified that on August 19, 2004, when she was 13 years old, she spent the night with her sister, Taryn Pritchard, in her sister's Spokane apartment. During the early morning hours of August 20, L.H., Ms. Pritchard, and others returned to Ms. Pritchard's apartment after visiting another family member. Mr. Blackmon was waiting for them. Ms. Pritchard went off to visit someone in another apartment. Mr. Blackmon, L.H., and others went into Ms. Pritchard's living room.
L.H. testified that she fell asleep on the loveseat and awoke to Mr. Blackmon lifting her off the couch and carrying her into a bedroom. She stated that she immediately fell back to sleep when he placed her on the bed. She next awoke to find Mr. Blackmon standing over her with his pants around his ankles. She was facedown and wearing no underwear. Her vagina was sore and there was semen on the inside of her thigh. She pulled on her underwear and went into the living room. She wiped her leg with a blanket. She then went into the master bedroom and slept with her sister's roommate, Dawn Davis, after telling her what occurred.
The next morning L.H. took a shower and reported the incident to her sister and her mother. Her mother took her to the hospital to be examined.
Mr. Blackmon testified that he engaged in mutual "fooling around" with L.H. both in the living room and in the bedroom. III Report of Proceedings (RP) at 251, 271. This included rubbing L.H.'s buttocks and legs and reaching up her skirt that approached her private areas. He told the jury that while in the bedroom, he masturbated and ejaculated on her inner thigh. He denied that penetration occurred.
Brian Reynolds, M.D., testified that he examined L.H. at Deaconess Medical Center. He stated that although L.H. complained of soreness, there was no vaginal trauma noted — which is not necessarily unusual in child sexual assault cases.
Matthew Gamette, a scientist at the state crime lab, testified that spermatozoa were detected by microscope from a vaginal sample collected from L.H., as well as from samples taken from her underwear and the blanket. Mr. Blackmon's DNA (deoxyribonucleic acid) was found in each of these samples.
Deborah Harper, M.D., testified that semen deposited on the inner thigh cannot transport sperm to the female genitalia. That is so because sperm need a moist environment to keep them alive and allow them to swim up the labia majora to reach the vagina. She said it is conceivable, however, for sperm to be transferred by fingers or by a "glob on [a] towel." III RP at 243.
Mr. Blackmon was convicted of second degree child rape (count III) and second degree child molestation (count IV). At sentencing, the trial court ruled that Mr. Blackmon's convictions did not constitute the same criminal conduct.
DISCUSSION
Mr. Blackmon asserts that the trial court miscalculated his offender score because it incorrectly determined that his convictions for second degree child molestation and second degree child rape did not constitute the same criminal conduct.
If the trial court enters a finding that two or more of the current offenses constitute the same criminal conduct, those current offenses are counted as one crime and the sentences are served concurrently. RCW 9.94A.589(1)(a). A trial court's determination of what constitutes the same criminal conduct will not be disturbed absent an abuse of discretion or misapplication of the law. State v. Tili, 139 Wn.2d 107, 122, 985 P.2d 365 (1999).
A "same criminal conduct" finding can be made when the crimes (1) have 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). RCW 9.94A.589(1)(a) is construed narrowly. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). If any one of the factors is missing, the multiple offenses do not encompass the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). Each offense must then be counted separately in calculating the offender score. Id.
When examining intent, the proper focus is "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, 749 P.2d 160 (1987). This often includes an examination of "whether one crime furthered the other and if the time and place of the two crimes remained the same." Id.
Here, the trial court pointed to the "distinctively different . . . circumstances" upon which the offenses occurred. RP (Feb. 10, 2006) at 41. The trial court essentially found that the second degree child rape and second degree child molestation were not committed at the same time (although close in time to one another) or in the same place (one act occurred in the living room and one in the bedroom).
Mr. Blackmon argues that this case is like State v. Dolen, 83 Wn. App. 361, 921 P.2d 590 (1996). In Dolen, the defendant was convicted on one count of second degree child rape and one count of second degree child molestation. The victim testified at trial to six different incidents of sexual conduct by the defendant. One specific incident involved inappropriate rubbing and touching that led to penetration of the child's vagina. The trial court counted each of the defendant's two convictions separately in determining his offender score.
Division Two of this court held that if the convictions were based on the same incident, they encompassed the same objective criminal intent of sexual gratification and therefore the same criminal conduct. Therefore, it vacated and remanded for resentencing because "[a]t sentencing, the State has the burden of proving the defendant's criminal history by a preponderance of the evidence. If the time an offense was committed affects the seriousness of the sentence, the State must prove the relevant time." Dolen, 83 Wn. App. at 365 (citations omitted).
We note that in Dolen, although the defendant was convicted of single counts of child rape and child molestation based upon testimony of six separate incidents, the verdict did not specify whether the jury convicted based upon the testimony of one incident or several. The Dolen court could not discern from the record whether the trial court sentenced on two separate incidents (which would not be the same criminal conduct) or the same incident (which could arguably be the same criminal conduct). Therefore, the issue was considered de novo on appeal. But here, the record shows that the trial court found two separate incidents. Thus, under the deferential standard of review, we cannot say that the court abused its discretion.
In his statement of additional grounds for review (SAG), Mr. Blackmon contends that in closing remarks the prosecutor wrongly argued a personal opinion of what the evidence showed. He points to the following argument:
The fact is the defendant left his mark on the inside of the vagina of [L.H.]. He had sexual intercourse with her. He is a rapist. He had sexual contact with her. He is somebody that is guilty of indecent liberties. He is somebody, because of her age, that is a child rapist and a child molester.
IV RP at 349.
A prosecutor commits error in closing argument if it is clear and unmistakable that he is not arguing an inference from the evidence, but rather is expressing a personal opinion. State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). The prosecutor did not argue such a personal opinion here.
Next, Mr. Blackmon contends that there is insufficient evidence to sustain the conviction for second degree child rape. The crime as charged here required proof of penetration of L.H.'s vagina or anus by any object or male sex organ by Mr. Blackmon and L.H. was between 12 and 14 years old and Mr. Blackmon was at least 36 months older than L.H. and not married to her. See RCW 9A.44.076. Mr. Blackmon asserts that the evidence of penetration "was marginal at best." SAG at 10, 13. But we review the evidence to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). And Mr. Blackmon's challenge to the sufficiency of the evidence requires him to admit the truth of the State's evidence and any reasonable inferences from it. Id.
Mr. Blackmon denied penetration and a State's expert testified that it was conceivable for sperm to be transferred by means other than penetration. But the State presented evidence of the presence of semen and Mr. Blackmon's DNA in the vaginal samples collected from L.H. The jury could reasonable infer that penetration occurred. This contention therefore fails.
Finally, Mr. Blackmon contends that he was denied effective assistance of counsel. To prevail on such a claim, Mr. Blackmon must show that (1) his counsel's performance was deficient and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Counsel's representation is deficient if it falls below an objective standard of reasonableness. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002) (citing Strickland, 466 U.S. at 693). Prejudice occurs when "there is a reasonable probability that, but for counsel's errors, the result of the [proceeding] would have been different." Hendrickson, 129 Wn.2d at 78. If either prong of the test is not satisfied, the inquiry ends. Id.
At trial, Mr. Blackmon complained that he had hired a specific attorney from a private firm and he wanted that lawyer to represent him, rather than a different attorney from that firm who was present to represent him at trial. The attorney whom Mr. Blackmon wanted to represent him informed the court that a number of attorneys in his firm worked on the case and that Mr. Blackmon acknowledged in the attorney/client contract that he was hiring the entire firm rather than a specific lawyer. Further, Mr. Blackmon had been aware for more than a week that a different attorney would likely take the case to trial. This attorney also stated that he could not participate in the trial due to scheduling and lack of preparation, while the attorney in court with Mr. Blackmon was prepared for trial. The court observed that the record reflected that yet another lawyer represented Mr. Blackmon earlier in the proceedings and Mr. Blackmon expressed dissatisfaction with that attorney as well. The court held that Mr. Blackmon's continued complaints required neither a continuance nor a change of counsel.
On appeal, Mr. Blackmon asserts that (1) his attorney was not prepared, (2) his attorney had never before met Mr. Blackmon, and (3) with the change of counsel Mr. Blackmon developed irreconcilable hard feelings.
As to the first claim, the record does not support the claim that counsel was not prepared. Because the argument relies on matters outside the record, this court cannot address it on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Regarding the second claim, even assuming the truth of the claim, see id., Mr. Blackmon does not assert that counsel was deficient or that he suffered prejudice. Counsel's representation is presumed effective. Id. Mr. Blackmon fails to rebut this presumption with evidence of either deficient representation or prejudice.
Regarding the final claim, a complete collapse of the attorney/client relationship can be the basis of an ineffective assistance of counsel claim. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 722, 16 P.3d 1 (2001). But "there is a difference between a complete collapse and mere lack of accord." State v. Cross, 156 Wn.2d 580, 606, 132 P.3d 80, cert. denied, 127 S. Ct. 559 (2006). No evidence can be found in the record to support a complete collapse of the relationship or even specific discord. See McFarland, 127 Wn.2d at 335. Mr. Blackmon also refers to his issue with trial counsel as a "conflict," as did the trial court. SAG at 17; I RP at 22. But this is not the type of conflict that implicates the Sixth Amendment. Cross, 156 Wn.2d at 606.
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.
Kulik, J., Kato, J. Pro Tem., concur.