Opinion
No. 22275-6-III.
May 23, 2006.
Appeal from a judgment of the Superior Court for Klickitat County, No. 02-1-00092-6, E. Thompson Reynolds, J., entered July 30, 2003.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Timothy Shane O'Neill, Klickitat Co Pros Atty, Ms-Ch-18, 205 S Columbus Ave, Goldendale, WA 98620-9289.
David Brian Trefry, Attorney at Law, 1011 S Perry St, Spokane, WA 99203.
Affirmed in part and reversed in part by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Brown, J.
Jason Allen Parks was convicted of one count of first degree rape as a principal. He was also found guilty as an accomplice to four counts of first degree rape, one count of first degree kidnapping, two counts of attempted first degree murder, and one count of rendering criminal assistance. He asserts multiple instances of error on appeal.
We conclude that the first degree rape in which Mr. Parks was charged as a principal is the only conviction unaffected by error. We find there was sufficient evidence presented to support this conviction, the trial court did not err in refusing to give a proffered jury instruction on serious physical injury, and the conviction is not tainted by juror misconduct.
However, we must vacate and dismiss the first degree kidnapping conviction since it merges with the first degree rape conviction. Further, because we cannot be assured that the first degree accomplice rape convictions are based on unanimous jury verdicts, we must reverse them. We also reverse the conviction for rendering criminal assistance for insufficient evidence of one of the multiple alternative means alleged because given the general verdict we cannot assume that the jury founded its verdict on appropriate means. Finally, we reverse the attempted first degree murder conviction as the creation of a grave risk of death cannot be attempted nor can it be imposed on a single victim.
FACTS
On the evening of August 7, 2002, 16-year-old C.L.G. visited her cousin and neighbors at the Rhine Village Apartments in White Salmon, Washington. James Webberly (21 years old), Jimmy Sampson (20 years old), and Jason Parks (26 years old) stopped by at about 10:30 p.m. Mr. Webberly invited C.L.G. to sneak away with his group to smoke marijuana. He told her to keep it a secret because he did not want to share his marijuana with her cousin. Mr. Webberly instructed her to wait five minutes after he departed, tell her cousin she was going home, and then meet him on the other side of the apartment complex.
The three men drove to the designated location and picked up C.L.G. Mr. Parks drove the car, Mr. Webberly was in the passenger seat, and Mr. Sampson was in the back seat. C.L.G. got into the back seat with Mr. Sampson. She thought all three were 'pretty drunk.' Report of Proceedings (RP) at 1257. They stopped to buy orange juice for C.L.G. because she did not want to drink straight vodka. C.L.G. asked Mr. Webberly to join her in the back seat. They initially planned to go to a party at a campground, but C.L.G. wanted to go to a less crowded location. Mr. Webberly suggested a view spot at Trout Lake. C.L.G. wanted to smoke some marijuana on the way but the men told her to wait. They drove up a mountain on a gravel road to a wooded area until they reached a dead end and then parked. They got out and mixed drinks.
Mr. Parks and Mr. Sampson walked off. C.L.G. asked Mr. Webberly about the marijuana. He said he did not have any and 'they just used that [as a ruse] to get [her] up there.' RP at 1260. C.L.G. was angry that she was tricked into going out with the men; the marijuana was the reason she went with them. Mr. Webberly then informed her that '[she] had two choices. That [she] could either sleep with all of them and they would take [her] home, or . . . they could beat [her] up and take what they wanted from [her].' RP at 1260. She initially did not take him seriously. But when he'tried making a move on [her]' and she pushed him away, he kneed her in the stomach, knocking the wind out of her. RP at 1261. He said she would get hurt if she did not do what they told her. He also threatened her at one point by saying that he had a gun and if she tried to get away, he would find her and kill her and he 'had a six-foot hole dug . . . so that nobody would find [her].' RP at 1267. She decided to comply.
Mr. Sampson appeared and led her up a trail where they had vaginal intercourse. She did not tell him 'no' because she did not want to get hurt. RP at 1262. When Mr. Sampson left, she started walking down the trail. She was intercepted by Mr. Webberly, who turned her around and walked her back up.
Mr. Webberly ripped off her shorts, pushed her down, and entered her from the rear, both vaginally and anally. He persisted even though she told him he was hurting her. After Mr. Webberly left, C.L.G. walked back down the trail. When she reached the group, she saw that Mr. Webberly and Mr. Sampson were engaged in conversation. Mr. Parks was standing alone.
Mr. Parks then took C.L.G. further up the trail than the others had. He told her that Mr. Webberly had a gun and that he did not think that she was going to make it home alive. He said he wanted to formulate a plan to get her home safe, but he said he did not know what to do. At one point, '[Mr. Parks] said . . . that [she] should hit him in the back of the head with a rock as hard as [she] could and take off running. . . . But [Mr. Webberly] had told [her] that if [she] ran, that they would find [her] because [the area] was like their backyard.' RP at 1267. She was not familiar with the area, it was dark, and far away from a safe place. She suggested that they ambush the others, i.e., 'you take James, and I'll take Jimmy.' RP at 1340. But Mr. Parks told her he could not overpower Mr. Webberly because Mr. Webberly had a gun. Unable to come up with a plan, she began to cry. Still, C.L.G. thought that Mr. Webberly would follow through on his promise to take her home in exchange for her compliance. She suggested that they join the others at the car.
When they returned, Mr. Webberly was sitting in the front passenger seat of the car. He demanded oral sex and C.L.G. complied.
Mr. Sampson again led her up the trail where they engaged in vaginal intercourse. C.L.G. also testified that 'he . . . tried to stick it in . . . my butt, but I told him no and I pushed him away, and he just stuck it back in my vagina.' RP at 1269-70.
When she returned to the car, Mr. Webberly walked her around to the back of the car and they engaged in vaginal intercourse.
She then joined the others in the car, but she was told to get out because they wanted to talk among themselves. When they allowed her back in the car, she asked to be taken home. Mr. Webberly said that they had a 'little problem' because they were worried she would report the incident. RP at 1272. She said that she would not. Mr. Parks started the car and began driving down the mountain. At some point, he turned down another gravel road on the mountain and stopped.
Mr. Webberly said that since both he and Mr. Sampson had 'got it twice' Mr. Parks should get 'another turn.' RP at 1273. Mr. Webberly and Mr. Sampson were both under the impression that Mr. Parks and C.L.G. had sex on the trail. Although Mr. Parks and C.L.G. had not had sex, each had told one of the other men that sex had occurred in order to account for their time when they were attempting to plan C.L.G.'s escape. But their stories were inconsistent; C.L.G. told Mr. Sampson the encounter involved oral sex and Mr. Parks had told Mr. Webberly that they had intercourse.
When C.L.G. and Mr. Parks got out of the car and walked away, C.L.G. was cold so Mr. Parks offered her his sweater. He asked her if he could have intercourse with her. She said yes '[b]ecause [she] thought he was helping [her] out' given that 'he told [her] he was going to [help].' RP at 1274, 1275. C.L.G. also 'felt like [she] owed it to him.' RP at 1274. She pulled down her shorts and they engaged in vaginal intercourse.
As they walked back to the car, he asked for his sweater and gave her a hug. Suddenly, Mr. Parks attacked her, knocking her to the ground, got on top of her, and began hitting her face. According to C.L.G., Mr. Parks said 'there was a problem and that he's a problem solver and that I'm the problem that needs to be solved. And that I messed up for saying that I only gave him head or something. 'Cause I guess I was supposed to say that we had sex.' RP at 1276. Mr. Parks then choked her. Mr. Sampson got out of the car and asked Mr. Parks if he needed help; Mr. Parks told him to 'go get his blade.' RP at 1277. When Mr. Sampson returned, he said he could not find it. By then, Mr. Webberly had approached and the men remarked that they did not know what to do 'because [C.L.G.] was still moving.' RP at 1277. Mr. Webberly instructed Mr. Parks to try to break her neck. Mr. Parks then put one hand on her chin and another on the back of her head and twisted 'really hard.' RP at 1278. She could hear popping in the back of her neck. Mr. Webberly approached, commenting that 'it didn't work,' and attempted the same maneuver with 'two really hard jerks.' RP at 1279. The men stood over her and discussed whether she was still alive. Mr. Parks placed his fingers on the pulse of her neck. He then mocked her heartbeat, saying, 'buh-boom, buh-boom, buh-boom, buh-boom.' RP at 1279.
Mr. Parks pulled her to her feet. Mr. Parks said that he would 'finish it,' and Mr. Webberly and Mr. Sampson returned to the car. RP at 1279. Mr. Parks then told C.L.G. that he was going to help her but she made it difficult when she mixed up their stories about having sex on the trail because the others knew they were lying. They talked for a while, and Mr. Parks told her to run away. C.L.G. insisted that she negotiate with Mr. Webberly to drive her home. When they returned to the car the others were asleep.
Mr. Webberly and Mr. Sampson woke up and looked surprised when she got into the car. Mr. Parks got into the front seat and C.L.G. got into the back, behind the driver's seat. Mr. Parks asked Mr. Sampson for a 10-inch spackling knife. Mr. Sampson found one in the rear compartment and handed it to Mr. Parks. Mr. Parks reached around, put the knife to C.L.G.'s neck and said to her, 'you know how many pieces I could cut you up into.' RP at 1281. Mr. Sampson also placed a knife to her throat. Mr. Webberly asked if she was frightened enough that she would not report the events of that evening. When she agreed she was afraid and would not tell anyone, Mr. Webberly said they would take her home. He then threatened to have her and her family killed if she went to the police. Then they took her home.
When she got out of the car, she said to Mr. Webberly, 'Let's do this again Friday night.' RP at 1345. She wanted him to think she would keep her end of the bargain and would not tell anyone. Mr. Parks, Mr. Webberly, and Mr. Sampson went to Mr. Parks' house and slept.
When C.L.G. reached her apartment at approximately 4:20 a.m., she initially told her father she was involved in a fight with a girl. After further prodding, she told him she was raped and assaulted. He took her to the hospital where a rape exam was performed and she spoke with police. When she gave her first statement to police, she denied having sexual contact with Mr. Parks because she believed at that time he was trying to help her and she was also concerned about the threat to her family.
By 10:30 a.m., Mr. Parks and Mr. Webberly were busy washing the car. Mr. Parks claims that Mr. Webberly wanted the car gone over with a fine-tooth comb. They vacuumed, washed the windows, and used a household cleaner on the interior.
Mr. Parks, Mr. Webberly, and Mr. Sampson then returned to the mountain to retrieve Mr. Sampson's wallet that he lost the prior evening. They also picked up cigarette butts, straightened out some bushes, and generally tried to make it appear as though nobody had been there. They returned to Mr. Webberly's house and they were arrested shortly thereafter.
On August 9, 2002, Mr. Parks was charged by information with attempted first degree murder and first degree rape. The State moved to amend the information on October 4 to add one count of first degree kidnapping. The trial court denied the motion because it was filed too close to the trial date and the State had not allowed the defense access to interview C.L.G., who had moved out of the state. Following a defense motion on October 9 to continue the trial date, the State renewed its motion on October 21 to amend the information. The court granted the motion. The amended information charged Mr. Parks with one count of first degree rape (count I), five counts of accomplice first degree rape (counts II through VI), one count of accomplice kidnapping (count VII), two counts of accomplice attempted first degree murder (counts VIII-IX), and one count of accomplice rendering criminal assistance (count X). Mr. Parks was found guilty after a 10-day trial on all charges except one count of accomplice first degree rape (count II). The defense filed a motion for a new trial or dismissal based on juror misconduct, instructional error, merger, and unanimity issues. The motion was denied. A judgment and sentence was entered on July 30, 2003.
ANALYSIS a. Sufficiency of the evidence — first degree rape and rendering criminal assistance
Evidence is sufficient to support a criminal conviction if, when viewed in the light most favorable to the State, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Myles, 127 Wn.2d 807, 816, 903 P.2d 979 (1995) (quoting State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993)). '[A]ll 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). Credibility determinations are for the trier of fact and will not be reviewed by the appellate court. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). First Degree Rape
To convict Mr. Parks of first degree rape as charged here, the State had to prove that (1) he engaged in sexual intercourse with C.L.G. by forcible compulsion and (2) C.L.G. either suffered serious physical injury or was kidnapped. RCW 9A.44.040(1)(b), (c). ''Forcible compulsion' means . . . a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person.' RCW 9A.44.010(6).
In this case when the parties initially reached the mountain, C.L.G. was threatened that she could either 'willingly' have sex with all three of the men or she would be beaten and raped. RP at 1260. Mr. Parks reinforced her fear by telling her that Mr. Webberly had a gun and Mr. Parks doubted that she would get off the mountain alive. It is reasonable to infer that when C.L.G. agreed to have sex with Mr. Parks she was under the threat of physical injury or death. See State v. Bright, 129 Wn.2d 257, 266-68, 916 P.2d 922 (1996) (finding sufficient evidence of an implied threat to use a deadly weapon to support a conviction of a police officer for first degree rape where the defendant did not use or expressly threaten to use a deadly weapon).
Mr. Parks argues that the sexual intercourse was purely consensual. This was an issue for the jury. State v. Thomas, 9 Wn. App. 160, 163, 510 P.2d 1137 (1973). The jury was properly instructed that consent must be 'freely given.' Clerk's Papers (CP) at 324. As noted, the State presented evidence that C.L.G. was threatened. 'A consent given out of apprehension or fear is not acquiescence by one amenable to the act.' Thomas, 9 Wn. App. at 163.
The jury was instructed that kidnapping is an abduction, which 'means to restrain a person by either secreting or holding the person in a place where that person is not likely to be found or using or threatening to use deadly force.' CP at 330. The evidence is sufficient to show that C.L.G. was kidnapped because she was secreted in an isolated location in the woods and her pleas to be returned home were denied. Before she was secreted in the woods, the restraint was initially carried out by deception — that the men said they had marijuana when they did not. See State v. Harris, 36 Wn. App. 746, 753, 754, 677 P.2d 202 (1984) (finding substantial evidence to support the kidnapping alternate for a first degree rape conviction upon proof of intentional restraint by deception and intimidation to a secluded place where the victim is not likely to be found). The evidence is sufficient.
Rendering Criminal Assistance
The jury was instructed:
To convict the defendant of the crime of rendering criminal assistance in the first degree, as an accomplice, as charged in Count X, each of the following elements of the crime must be proved beyond a reasonable doubt:
1. That on or about the 7th through 8th day of August, 2002, the defendant, as an accomplice, rendered assistance to another person by:
(a) providing that person with money, transportation, disguise, or other means of avoiding discovery or apprehension or
(b) preventing or obstructing, by use of force, deception or threat, anyone from performing an act that might aid in the discovery or apprehension of that person or
(c) concealing, altering or destroying any physical evidence that might aid in the discovery or apprehension of that person;
2. That the person to whom the defendant rendered assistance had committed rape in the first and/or second degree, attempted murder in the first degree, or kidnapping in the first degree;
3. That the defendant knew that the person had committed that crime;
4. That the defendant acted with intent to prevent, hinder, or delay the apprehension or prosecution of that person; and
5. That the acts occurred in the State of Washington. CP at 344.
The jury was also instructed that an accomplice is someone who 'with knowledge that it will promote or facilitate the commission of a crime, he or she either: (1) solicits, commands, encourages, or requests another person to commit the crime; or (2) aids or agrees to aid another person in planning or committing the crime.' CP at 320.
There was a general verdict on this count. 'If one of the alternative means upon which a charge is based fails and there is only a general verdict, the verdict cannot stand unless the reviewing court can determine that the verdict was founded upon one of the methods with regard to which substantial evidence was introduced.' State v. Bland, 71 Wn. App. 345, 354, 860 P.2d 1046 (1993).
Mr. Parks correctly notes that alternative (1)(c) of the jury instruction, based on RCW 9A.76.050(5), expressly requires that the evidence relate to the 'discovery or apprehension' of the person who aided. Nothing that was done to the car affected the ability to identify or catch the defendants, as they were driving the car from the time they cleaned it until the time they were arrested in it. The State argued all three alternate means in closing. There is no way to determine whether the jury founded its verdict on an appropriate means. This conviction must be reversed. Bland, 71 Wn. App. at 358.
RCW 9A.76.050 provides, '[A] person 'renders criminal assistance' if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime or juvenile offense or is being sought by law enforcement officials for the commission of a crime or juvenile offense or has escaped from a detention facility, he . . . (5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person.'
In its closing argument, the State also urged the jury to consider an alternative act to support this charge: cleaning up the crime scene. However, because Mr. Parks does not assign error to it in an unanimity context as he does other convictions infra, we decline to review it in that manner. The State does not argue to affirm the conviction on these facts. There is nonetheless insufficient evidence to support it. Police did not have an opportunity to visit the crime scene until Mr. Sampson took an officer there after the arrest. Since police did not come into contact with this ostensible evidence until after the arrest of all persons involved, the evidence could not have possibly aided in the discovery or apprehension of those persons.
b. Unanimity — first degree (accomplice) rape
Mr. Parks argues for the first time on appeal that the trial court's failure to give a unanimity instruction denied him the constitutional right to a unanimous jury verdict on the counts charging first degree rape as an accomplice. We reach this issue under RAP 2.5(a); State v. Ellis, 71 Wn. App. 400, 404, 859 P.2d 632 (1993). 'Jury verdicts in criminal cases must be unanimous as to the defendant's guilt of the crime charged.' State v. Rivas, 97 Wn. App. 349, 351, 984 P.2d 432 (1999). Mr. Parks argues the unanimity defect is based on proof of both alternative acts and alternative means. Because the alternative acts argument is dispositive, we need not discuss his alternative means claim.
A defendant's federal and state constitutional rights to a jury trial and a unanimous jury verdict are in jeopardy when the State presents evidence of several acts that could form the basis of a charged crime. State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988) (citing U.S. Const. amend. VI; Const. art. I, sec. 22; State v. Badda, 63 Wn.2d 176, 182, 385 P.2d 859 (1963)). To safeguard those rights, the State must make an election as to which act it is relying on for a conviction, or the trial court must instruct jurors that they must agree unanimously that the same underlying act has been proven beyond a reasonable doubt. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), modified on other grounds by Kitchen, 110 Wn.2d at 410. Under the Petrich rule, a unanimity instruction is required only when the jury could find from the evidence that the accused committed a single charged offense on two or more distinct occasions. State v. Simonson, 91 Wn. App. 874, 883, 960 P.2d 955 (1998). In other words, the rule applies only when the evidence presented indicates there are 'several distinct acts.' State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). Where the State and the trial court both fail, respectively, to make the election and to instruct the jury, there is constitutional error. Kitchen, 110 Wn.2d at 411. 'The error is not harmless if 'a rational trier of fact could have a reasonable doubt as to whether each incident established the crime beyond a reasonable doubt.' Bland, 71 Wn. App. at 351 (quoting Kitchen, 110 Wn.2d at 411).
The State argues that it did not present evidence regarding multiple acts that could constitute a single count of first degree rape as an accomplice. See Bland, 71 Wn. App. at 351. Instead, it argues that it presented evidence that Mr. Parks acted as an accomplice to five separate sex acts perpetrated by one of two principals that constituted first degree rape. The record suggests otherwise. In fact, when the trial judge denied Mr. Parks' motion to dismiss at the close of the State's case, he remarked, 'There is ample evidence to show there was [sic] at least six acts of intercourse with individuals not the Defendant in this case.' RP at 1398 (emphasis added).
In Bland, the State charged the defendant with two counts of second degree assault with a deadly weapon, one for each of two victims. Bland, 71 Wn. App. at 351-52. On appeal, he argued that because the assault convictions could have been based on three different acts — threatening one victim with a gun, shooting the gun and nearly missing another victim, and earlier hitting the first victim in the face — the trial court was required to give unanimity instructions. Division One of this court held that a unanimity instruction was not required because the State's closing argument, the charging document, and the special verdict forms, all mentioned that the charge dealt with a gun or deadly weapon. Since there was no doubt that the jury relied on the gun activity for the two assault counts, the jury could not have become confused into considering the defendant's hitting the victim as a charged activity. Id.
In this case, the amended information identically charged Mr. Parks with five counts of complicity to first degree rape on the same dates and places, and by the same means. But at trial, C.L.G. testified to at least six sex acts. The prosecutor purported to identify five sex acts in closing. RP at 1557. But his summary was so brief, out of sequence, and confusing in manner and context, it failed to provide clarity.
The 'to convict' instructions in this case did not help the jury differentiate the counts as the instructions were identical. CP at 315-19. The jury was instructed that '[a] separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.' CP at 313. Additionally, the jury was instructed 'to deliberate in an effort to reach a unanimous verdict' and it could only convict unanimously. CP at 311, 360, 363. "Normally, a general instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications form the basis of the guilty verdict." State v. Whitney, 108 Wn.2d 506, 512, 739 P.2d 1150 (1987) (quoting United States v. Payseno, 782 F.2d 832, 835 (9th Cir. 1986)). Such a general instruction on jury unanimity is insufficient in an alternative act case. State v. Kitchen, 46 Wn. App. 232, 235-36, 730 P.2d 103 (1986), aff'd, 110 Wn.2d 403, 756 P.2d 105 (1988).
The State argues that because the jury found Mr. Parks not guilty on one count that fact alone shows that it considered separate acts. Even if that is true, it remains impossible to determine which acts the jury considered so that we can be assured that it agreed on the same ones when there were at least six acts identified. The instruction should have been given.
The instruction error was not harmless. When considering harmless error, the question is whether 'no rational trier of fact could have entertained a reasonable doubt that each incident established the crime beyond a reasonable doubt.' Kitchen, 110 Wn.2d at 406. In light of the single failed charge together with the victim's inconsistent statements and attendant credibility issues, we cannot say that the error was harmless.
c. Erroneous jury instruction — attempted first degree murder
We note that Mr. Parks did not object to the instruction at trial that he now challenges on appeal. The State does not argue that the issue cannot be raised for the first time on appeal. We reach it on appeal as it bears on Mr. Parks' right to a unanimous jury. RAP 2.5(a); Wash. Const. art. I, sec. 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994); State v. Ashcraft, 71 Wn. App. 444, 859 P.2d 60 (1993).
Mr. Parks contends the trial court erroneously instructed the jury on an alternative means of committing attempted first degree murder where it is impossible to be an accomplice to an attempted first degree murder by creating a grave risk of death. In State v. Dunbar, 117 Wn.2d 587, 592-93, 817 P.2d 1360 (1991), the Washington Supreme Court held that first degree murder by creating a grave risk of death cannot be the basis for criminal attempt. The court reasoned that the mens rea element for that homicide (manifesting an extreme indifference to human life) does not require that the accused intend to accomplish the criminal result of death (a specific intent to kill). Thus, the mens rea for the homicide would be inconsistent with the attempt statute's intent requirement.
The State argues that because Mr. Parks was charged as an accomplice rather than a principal, the jury was properly instructed. The State relies on State v. Guzman, 98 Wn. App. 638, 646, 990 P.2d 464 (1999). The defendant in Guzman argued, based on Dunbar, that he could not be an accomplice to the crime of murder by extreme indifference because as an accomplice 'he could not 'know' he was committing a nonintent crime.' Guzman, 98 Wn. App. at 645. This court was not persuaded. Mr. Guzman was charged with the completed crime rather than attempt and 'it is well settled that accomplices and principals are equally culpable.' Id. at 646. Guzman does not support the State's position.
Further, Mr. Parks argues, and the State does not dispute, that the extreme indifference alternative does not apply because there was only one victim. 'Under this alternative, the State must show that the defendant acted recklessly and with extreme indifference to human life in 'general,' as opposed to simply endangering the life of a 'particular' victim or victims.' State v. Pettus, 89 Wn. App. 688, 694, 951 P.2d 284 (1998) (quoting State v. Berge, 25 Wn. App. 433, 437, 607 P.2d 1247 (1980)). Reversal is required where the evidence shows that the defendant's conduct was dangerous to the life of a single victim. Pettus, 89 Wn. App. at 694 (citing Berge, 25 Wn. App. at 437); State v. Anderson, 94 Wn.2d 176, 616 P.2d 612 (1980).
Either of Mr. Parks' arguments provides sufficient grounds for reversal. The jury's verdict cannot be shown to have been unanimous as to acceptable alternative means, so we cannot conclude that the erroneous instruction in no way affected the outcome of the case. State v. Bonds, 98 Wn.2d 1, 18, 653 P.2d 1024 (1982). Accordingly, the error was not harmless and the conviction cannot stand. State v. Roberts, 88 Wn.2d 337, 344, 562 P.2d 1259 (1977).
d. Merger — first degree kidnapping into first degree rape
Merger issues involve questions of law that we review de novo. State v. Zumwalt, 119 Wn. App. 126, 129, 82 P.3d 672 (2003), aff'd sub nom. State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005). We use the merger doctrine to determine when the legislature intends to apply multiple punishments to particular offenses. State v. Sweet, 138 Wn.2d 466, 478, 980 P.2d 1223 (1999). Merger applies if "the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed that crime (e.g., rape) but that the crime was accompanied by an act [that] is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping)." State v. Saunders, 120 Wn. App. 800, 820, 86 P.3d 232 (2004) (quoting State v. DeRyke, 110 Wn. App. 815, 823, 41 P.3d 1225 (2002), aff'd, 149 Wn.2d 906, 73 P.3d 1000 (2003)) (internal quotation marks omitted). We employ the rule 'only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code.' State v. Parmelee, 108 Wn. App. 702, 710, 32 P.3d 1029 (2001). Washington courts have repeatedly recognized that first degree rape is such a crime and that kidnapping may be a necessary element of the first degree rape conviction. See, e.g., State v. Johnson, 92 Wn.2d 671, 678, 681, 600 P.2d 1249 (1979), disapproved on other grounds by Sweet, 138 Wn.2d at 478-79; DeRyke, 110 Wn. App. at 823-24; State v. Ingham, 26 Wn. App. 45, 612 P.2d 801 (1980).
Courts consider the merger doctrine on a case-by-case basis and determine if the predicate offense is so intertwined with the charged offenses to warrant its application. Saunders, 120 Wn. App. at 821. The merger doctrine does not apply when the offenses committed have independent purposes and effects. State v. Freeman, 118 Wn. App. 365, 371-72, 76 P.3d 732 (2003), aff'd, 153 Wn.2d 765, 108 P.3d 753 (2005). In such a case, the predicate crime, in this case the kidnapping, will stand only if it involved 'some injury to the person or property of the victim or others, which is separate and distinct from and not merely incidental to the crime of which it forms an element.' Johnson, 92 Wn.2d at 680.
In Johnson, the defendant picked up two teenage hitchhikers and drove them to his cabin to drink wine and smoke marijuana. Id. at 672. The girls went to the cabin willingly. While the girls were distracted, he locked the doors. He summoned one girl to the bathroom with a note. Once there, he held a knife to her neck, told her he would rape her, removed her clothing, and bound her hands and mouth with adhesive tape. The note contained a threat to kill her if she did not do as she was told. He then approached the other girl, directed her to the bathroom, and told her what would happen if they did not follow his instructions. Then he tied them to the bedpost and had intercourse with each girl. One girl escaped when he went out to buy cigarettes for them. After the defendant returned and found the remaining girl, he took her into the woods and raped her again with the knife still in his hand. She persuaded him to take her to the home of friends. He was apprehended upon returning to his cabin. The defendant was convicted of two counts each of first degree rape, first degree kidnapping, and first degree assault. On appeal the defendant argued that the State should not have been permitted to charge him with kidnapping and assault, but only with rape in the first degree. The Washington Supreme Court agreed. The court first recognized that 'the legislature intended that punishment for first-degree rape should suffice as punishment for crimes proven in aid of the conviction, which are incidental to and elements of the central crime.' Id. at 678, 681.
The Johnson court also found three factors significant. See Saunders, 120 Wn. App. at 822. First, the crimes 'occurred almost contemporaneously in time and place.' Johnson, 92 Wn.2d at 681. Second, the 'sole purpose of the kidnap[p]ing and assault was to compel the victims' submission to acts of sexual intercourse.' Id. Third, the crimes 'resulted in no injury independent of or greater than the injury of rape.' Id.
Here, the rape and kidnapping were contemporaneous. The State argued in closing that the intent to abduct C.L.G. was 'obvious.' RP at 1562. 'It was their intent to facilitate a rape in this case. . . . That was their idea all along. . . .' RP at 1562. There was nothing in the kidnapping in this case that resulted in an additional or greater injury. The crimes merged. See also DeRyke, 110 Wn. App. at 823 ('when a defendant is convicted under the kidnapping provision of the first degree rape statute, the merger doctrine applies to the kidnapping offense'); State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.3d 853 (1983) (kidnapping merges with rape when proof of kidnapping is used to elevate the rape charge in the first degree).
The fact that Mr. Parks was charged and the jury was instructed as to alternate means of committing first degree rape as an accomplice does not change the result. DeRyke, 110 Wn. App. at 822. The kidnapping merged with the first degree rape. Dismissal of the kidnapping charge is appropriate. Ingham, 26 Wn. App. at 51; Johnson, 92 Wn.2d at 684-85.
e. Failure to instruct the jury on serious physical injury — first degree rape
Mr. Parks contends that the trial court erred by declining his proffered instructions or otherwise refusing to instruct the jury as to a definition for serious physical injury when the State alleged that Mr. Parks inflicted serious physical injury in the first degree rape count. See RCW 9A.44.040(1)(c); see also RCW 9A.40.020(1)(c) (requiring a showing of physical injury as one alternative means of first degree kidnapping). We review the trial court's refusal to give the instructions de novo. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
No statute defines serious physical injury — the disputed element of first degree rape. See RCW 9A.44.040(1)(c). Mr. Parks proffered boilerplate pattern jury instructions concerning injury, including those defining 'great personal injury,' 'great bodily harm,' and 'substantial bodily harm.' See 11 Washington Pattern Jury Instructions: Criminal 2.04.01, 2.04, 2.03.01 (Supp. 2005) (WPIC). The trial court properly refused all of these proposed WPIC definitions. A defendant is not entitled to an instruction that inaccurately states the law. State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994).
As Division Two of this court has held, 'The term [serious physical injury] speaks for itself.' State v. Welker, 37 Wn. App. 628, 638 n. 2, 683 P.2d 1110 (1984). '[I]t is neither necessary nor desirable' to create a jury instruction for that definition. Id. Following the decision in Welker more than 20 years ago, the legislature did not act to define the term serious physical injury as it relates to first degree rape. See State v. Tili, 139 Wn.2d 107, 116, 985 P.2d 365 (1999) ("The Legislature is presumed to be aware of judicial interpretations of its enactments.") (quoting Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wn.2d 488, 496, 825 P.2d 300 (1992)). 'The Legislature is deemed to acquiesce in the interpretation of the court if no change is made for a substantial time after the decision.' State v. Coe, 109 Wn.2d 832, 846, 750 P.2d 208 (1988). The court did not err by declining the instruction.
f. Juror misconduct
A trial court may grant a new trial based on juror misconduct when it affirmatively appears that a substantial right of the defendant was materially affected. CrR 7.5(a)(2). A new trial may be warranted based on juror misconduct if a jury considers information other than the evidence admitted at trial. State v. Brown, 139 Wn.2d 20, 24, 983 P.2d 608 (1999). 'A strong, affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury.' State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994). We review the trial court's decision to deny a new trial for abuse of discretion. Id. at 117. A trial court abuses its discretion when its decision is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.' State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). We afford great deference to the trial court's determination that no prejudice occurred, but greater weight is due its decision to grant a new trial than to a decision to deny a new trial. State v. Briggs, 55 Wn. App. 44, 60, 776 P.2d 1347 (1989); Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 204, 75 P.3d 944 (2003).
A jury's consideration of novel or extrinsic evidence is misconduct and can be grounds for a new trial. Balisok, 123 Wn.2d at 118. "Novel or extrinsic evidence is defined as information that is outside all the evidence admitted at trial, either orally or by document." Id. (emphasis omitted) (quoting Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990)). The evidence is deemed improper because 'it is not subject to objection, cross examination, explanation or rebuttal.' Id. Jurors may rely on their personal life experience to evaluate the evidence presented at trial during the deliberations. Richards, 59 Wn. App. at 274. 'In determining whether a juror's comments constitute extrinsic evidence rather than personal life experience, courts examine whether the comments impart the kind of specialized knowledge that is provided by experts at trial.' Breckenridge, 150 Wn.2d at 199 n. 3.
In Richards, a juror in a medical malpractice case with some medical knowledge suggested that the mother's flu caused the child's birth defects. Richards, 59 Wn. App. at 269. The defendant moved for a new trial, arguing that this constituted the introduction of extrinsic evidence. The trial court denied the plaintiffs' motion, ruling that the matters raised in the jurors' posttrial affidavits inhered in the verdict and no misconduct was established. The appellate court affirmed, concluding, '[u]ltimately the determination of whether juror misconduct in interjecting evidence outside of the record affected the verdict is within the discretion of the trial court.' Id. at 272.
Similarly, in Breckenridge, the Washington Supreme Court held that a juror's statements concerning his experience with his wife's migraine headaches to evaluate the evidence presented at trial was not misconduct, rather it was precisely what jurors are expected to do during deliberations. Breckenridge, 150 Wn.2d at 204.
Here, an affidavit was obtained from a juror that described life experiences the foreman shared with the panel. The foreman disclosed that as a retired commercial airline pilot, he had been trained to deal with hijacking and hostage situations. The foreman indicated that C.L.G.'s behavior could be consistent with 'Stockholm syndrome' as was discussed in the context of the Patty Hearst case. The fact that the foreman happened to come by at least some of this information at work is not particularly compelling. There is a difference between experience or practical knowledge gained by all jurors and the esoteric or special knowledge pertaining directly to a discrete topic upon which one could be deemed an expert. See, e.g., State v. Miller, 167 Or. App. 72, 1 P.3d 1047, 1050-51 (2000) (denying new trial where juror employed as a prison guard commented on her experiences with prisoners and prison life when evaluating credibility of witnesses because use of previous knowledge and experiences to evaluate evidence is not extrinsic information); Saenz v. State, 976 S.W.2d 314, 322-23 (Tex.Crim.App. 1998) (denying new trial where jurors with generalized knowledge of firearms discussed their experience with shell ejections in evaluating evidence because information represented generalized knowledge, not specialized expertise, and use of life experiences to evaluate evidence is permissible).
Stockholm syndrome is a 'hostage's sympathy for captor: a condition experienced by some people who have been held as hostages for an extended time in which they begin to identify with and feel sympathetic toward their captors.' http://encarta.msn.com/dictionary/stockholm%2520syndrome.html.
The juror raised the topic anecdotally; it was not 'evidence outside the realm of a typical juror's general life experience.' Briggs, 55 Wn. App. at 59. The subject matter is something that dominated the headlines in the 1970s; for most persons of a certain age knowledge of Stockholm syndrome is the product of everyday common experience, that is, an observation based on matters generally experienced by people in their everyday lives.
Moreover, as succinctly stated by the California Supreme Court: It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors' views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work.
In re Malone, 12 Cal. 4th 935, 50 Cal. Rptr. 2d 281, 911 P.2d 468, 486 (1996).
The affidavit filed in this case shows that the foreman struggled to make sense of C.L.G.'s incongruity. "The individual or collective thought processes leading to a verdict 'inhere in the verdict' and cannot be used to impeach a jury verdict." Breckenridge, 150 Wn.2d at 204-05 (quoting State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988)). The foreman evidently believed that the victim's conduct could be explained by a Stockholm syndrome-type relationship with her captors, and she could be viewed in a less critical and more credible light. This explains his mental process in reaching his conclusion, an aspect inhering in the verdict. Id. at 206; Cox v. Charles Wright Academy, Inc., 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967).
Even if the discussions did amount to misconduct, only instances of juror misconduct that cause prejudice warrant a new trial. State v. Lemieux, 75 Wn.2d 89, 91, 448 P.2d 943 (1968). Any reasonable doubt that the misconduct affected the verdict must be resolved against the verdict. Briggs, 55 Wn. App. at 55. The inquiry is an objective one rather than subjective. Id. The question is whether the alleged extraneous information could have affected the jury's determinations, not whether it actually did. Id. Here, we determine whether discussions of Stockholm syndrome could have affected the jury's verdict. We are now only concerned with the sole remaining conviction: the first degree principal rape. The issue for which Stockholm syndrome was ostensibly raised concerned an explanation for C.L.G.'s incongruous conduct. Any discussions relating to C.L.G.'s behavior would have no perceptible consequence on whether the elements of first degree rape were met. There was no prejudice.
g. Other issues
In light of our decision reversing the accomplice convictions, we need not address Mr. Parks' claim for prosecutorial vindictiveness for moving to amend the information to include the accomplice charges. Similarly, the cumulative error doctrine does not apply because there was reversible error. See State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984) (holding an accumulation of otherwise nonreversible errors may deny a defendant a fair trial).
CONCLUSION
We affirm the principal rape count. We vacate and dismiss the kidnap conviction. We reverse the attempted first degree murder, rendering criminal assistance, and rape convictions based on accomplice liability.
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. and BROWN, J., Concur.