[No. 25673-1-III. Division Three. February 21, 2008.]
[1] Courts Rules of Court Application Review Standard of Review. The application of a court rule to a particular set of facts is reviewed de novo. [2] Criminal Law Trial Time of Trial Waiver of Speedy Trial Objection Necessity In General. A criminal defendant's failure to object to the trial date set by the court constitutes a waiver of any challenge to the timeliness of the trial date under CrR 3.3, the time for trial rule. [3] Appeal Review Issues of Law Standard of Review. Questions of law are reviewed de novo. [4] Criminal Law Parties to Offenses Accomplices What Constitutes Causing Innocent or Irresponsible Person To Commit Criminal Act. Under RCW 9A.08.020, a person who causes an innocent or irresponsible person to engage in conduct that would constitute a crime if the defendant engaged in the same conduct can be guilty of the crime as an accomplice. [5] Sexual Offenses Rape Child Rape First Degree Rape of a Child Accomplice Liability Adult Causing Children To Have Sexual Intercourse. Under RCW 9A.08.020, an adult who causes two young children to have sexual intercourse can be guilty as an accomplice to first degree rape of a child under RCW 9A.44.073(1), even if the children are less than eight years of age and neither is 24 months older than the other. [6] Sexual Offenses Incest First Degree Incest Accomplice Liability Parent Causing Children To Have Sexual Intercourse. Under RCW 9A.08.020, a parent who causes his or her children to have sexual intercourse with each other can be guilty as an accomplice to first degree incest under RCW 9A.64.020. [7] Criminal Law Parties to Offenses Accomplices Charge As Principal Sufficiency. An information charging an accused as a principal adequately apprises the accused of potential liability as an accomplice. [8] Criminal Law Parties to Offenses Accomplices Charge As Principal Convicted as Accomplice Validity. An accused charged as a principal may be convicted of the crime as an accomplice so long as the trial court instructs the jury on accomplice liability. [9] Criminal Law Trial Verdict Unanimity Necessity In General. When a criminal case is tried to a jury, the defendant may be convicted of a charged offense only if a unanimous jury concludes that the defendant committed the criminal act underlying the charge. [10] Criminal Law Evidence Multiple Illegal Acts Election or Unanimity Instruction Necessity In General. When the State presents evidence of several acts that could form the basis of one charged count of an offense, either the State must elect the particular criminal act on which it will rely for conviction and on which the jury must rely in its deliberations or the court must instruct the jury to agree on a specific criminal act and be unanimous as to that act in returning a conviction. The defendant's constitutional right to a unanimous jury verdict is violated if the State does not make an election and the jury is not given a unanimity instruction. [11] Criminal Law Evidence Multiple Illegal Acts Unanimous Verdict Preservation for Review. A claim that the constitutional right to a unanimous jury verdict was violated alleges manifest constitutional error that may be raised for the first time on appeal. [12] Criminal Law Evidence Multiple Illegal Acts Election or Unanimity Instruction Absence of Election and Instruction Harmless Error Test. When the State presents evidence of several acts that could form the basis of one charged count of an offense but fails to elect the particular criminal act on which it will rely for conviction, the trial court's failure to give a unanimity instruction is harmless error and does not require reversal of the conviction if the evidence of each act is sufficient for a rational jury to find that the crime was proved beyond a reasonable doubt and the defendant offers no evidence to distinguish any of the acts supporting the crime. [13] Criminal Law Crimes Alternative Means of Committing Offense Definitional Statute Element Defined in Multiple Alternative Ways. A statute that defines an element of a criminal offense in multiple ways stated disjunctively does not create additional alternative means of committing the offense. [14] Sexual Offenses Rape Child Rape First Degree Rape of a Child Alternative Means Validity. The crime of first degree rape of a child under RCW 9A.44.073 is not an alternative means offense. The multiple different acts of penetration that may constitute "sexual intercourse" as defined by RCW 9A.44.010(1) are not alternative means of committing child rape. [15] Criminal Law Right to Counsel Effective Assistance of Counsel Test. A convicted defendant claiming ineffective assistance of trial counsel must show (1) that counsel's performance was deficient and (2) that the deficiency deprived the defendant of a reliable verdict. [16] Criminal Law Right to Counsel Effective Assistance of Counsel Presumption In General. A court's review of a claim of ineffective assistance of counsel begins with the presumption that counsel's assistance was effective. [17] Criminal Law Right to Counsel Effective Assistance of Counsel Trial Strategy In General. A legitimate trial strategy will not support a claim of ineffective assistance of counsel. [18] Criminal Law Trial Time of Trial Detention in Jail Unrelated Offense Effect. A criminal defendant incarcerated in jail on an unrelated charge or conviction is not "detained in jail" within the meaning of CrR 3.3(a)(3)(v) and does not, therefore, qualify for the 60-day time for trial period of CrR 3.3(b)(1). [19] Criminal Law Right to Counsel Effective Assistance of Counsel Trial Strategy Continuance of Trial.Defense counsel's successful request for a continuance of trial beyond the time for trial period established by CrR 3.3 so that counsel can more adequately prepare expert witnesses and review additional discovery constitutes a legitimate trial strategy and will not support a claim of ineffective assistance of counsel. [20] Criminal Law Punishment Sentence Criminal History "Same Criminal Conduct" Test. Under RCW 9.94A.589(1)(a), two or more offenses do not constitute the "same criminal conduct" for sentencing purposes unless (1) they were the product of the same criminal intent, (2) they were committed at the same time and place, and (3) they involved the same victim. All three prongs must be satisfied in order for multiple current offenses to be counted as one offense when calculating a defendant's offender score. [21] Criminal Law Punishment Sentence Criminal History "Same Criminal Conduct" Discretion of Court. The determination of whether multiple crimes committed by a defendant constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a) is somewhat discretionary with the trial court. [22] Criminal Law Punishment Sentence Criminal History "Same Criminal Conduct" Review Standard of Review. A trial court's ruling on whether multiple crimes committed by a defendant constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a) is reviewed for an abuse of discretion or misapplication of the law. [23] Criminal Law Punishment Sentence Criminal History Offender Score Miscalculation Harmless Error. A criminal defendant is not prejudiced by a miscalculated offender score if correction would not reduce the offender score below 9, which is the top of the range. [24] Criminal Law Punishment Sentence Outside Standard Range Aggravating Circumstances Determination By Jury Necessity. A criminal defendant has a right to have a jury find beyond a reasonable doubt those facts, other than the fact of prior conviction, that would increase the penalty for a conviction above the standard sentencing range. [25] Criminal Law Punishment Sentence Outside Standard Range Notice Form of Notice In General. RCW 9.94A.537(1), which requires the State to give a criminal defendant pretrial notice of the State's intent to seek a sentence above the standard sentencing range and of the aggravating factors the State will allege, does not specify any particular form of notice. [26] Criminal Law Punishment Sentence Outside Standard Range Notice Before Trial Sufficiency Letter Sent to Defense Counsel. The State's duty under RCW 9.94A.537(1) to provide pretrial notice to a criminal defendant of its intent to seek a sentence above the standard sentencing range and of the aggravating factors to be alleged is satisfied where the prosecutor on the case sends a letter to defense counsel containing the statutorily required information and defense counsel acknowledges, in writing, that the letter was received and was delivered to the defendant. [27] Criminal Law Punishment Sentence Indeterminate Sentence Exceptional Minimum Term Determination by Court Validity Minimum Term Not To Exceed Maximum Term. When a trial court is required to sentence an offender under former RCW 9.94A.712 (2004) to a minimum term of confinement and a maximum term that is consistent with the statutory maximum for the offense, the court may impose an exceptional minimum sentence based on aggravating factors as found by the court, not a jury, so long as the exceptional minimum sentence does not exceed the maximum sentence. [28] Criminal Law Punishment Sentence Conditions Community Placement Restriction on Freedom of Association Test. A convicted defendant's freedom of association may be restricted by a condition of community placement imposed under RCW 9.94A.700(5)(b) prohibiting contact with a specific class of individuals if the restriction is reasonably necessary to accomplish the essential needs of the State and the public order. [29] Criminal Law Punishment Sentence Conditions Community Placement Relationship to Crime Necessity. A condition of community placement imposed under RCW 9.94A.700(5)(b) need not be related to the crime of which the defendant was convicted. [30] Criminal Law Punishment Sentence Conditions Community Placement Restriction on Freedom of Association Fear of Retribution. A convicted defendant's freedom of association may be restricted by a condition of community placement imposed under RCW 9.94A.700(5)(b) prohibiting contact with a specific class of individuals where the restriction is based on a fear that the defendant will seek retribution against such individuals. Nature of Action: Prosecution for three counts of first degree rape of a child and two counts of first degree incest. The charges were based on the defendant's raping his son and forcing his son and daughter to have sexual intercourse with each other. Superior Court: The Superior Court for Asotin County, No. 05-1-00210-9, Robert L. Zagelow, J., on November 1, 2006, entered a judgment on a verdict of guilty. The court sentenced the defendant to an exceptional minimum term of confinement of 600 months on each rape count, to run concurrently. Court of Appeals: Holding that the defendant could lawfully be convicted of first degree rape of a child and first degree incest as an accomplice, that the trial court's failure to give a unanimity instruction was harmless error, that the defendant did not receive ineffective assistance of counsel, that any error in the trial court's determination that the defendant's conduct did not constitute the "same criminal conduct" for sentencing purposes was harmless error, that the trial court did not err by imposing an exceptional minimum sentence based on judicial factfinding, and that the trial court did not err by prohibiting the defendant from having contact with his children's former foster parents, the court affirms the judgment. Dennis W. Morgan-, for appellant. Benjamin C. Nichols-, Prosecuting Attorney, for respondent. Ά1 SWEENEY, C.J. This is an appeal from convictions for multiple counts of rape of a child and incest. The defendant forced his childrena son and a daughterto have sexual intercourse. And the defendant raped his son over a period of time. The court properly concluded that the defendant was guilty of incest as an accomplice. It was not necessary for the State to show that the defendant actually had sex with his children to prove incest; using his children to accomplish his crimes was sufficient. And the failure of the court to require a unanimous verdict was error but harmless because the jury had no way to discriminate between the two acts supporting the convictions for the child rapes. We affirm the convictions. We also affirm the defendant's exceptional minimum sentence as consistent with the constitutional limitations imposed by the Blakely FACTS Ά2 Phillip J. Bobenhouse forced his children, John Doe (age six to eight during the relevant period) and Jane Doe (age four to seven during the relevant period), to engage in sexual intercourse with each other. Mr. Bobenhouse also forced his son John to suck on his penis, and Mr. Bobenhouse also put his finger in John's anus. Child Protective Services referred the matter to the Asotin County Sheriff's Office in August 2005 after the two children reported that their father had sexually abused them. Ά3 Mr. Bobenhouse had pleaded guilty in January 2005 to third degree assault of a child and tampering with a witness. Following a bench trial in November 2005, a judge also found him guilty of two counts of second degree assault of a child and one count of second degree assault. All of these convictions were for assaults on his wife and children. The court sentenced him to a total of 102 months for the November 2005 convictions. Ά4 While he was serving his sentence on the 2005 convictions, the State charged Mr. Bobenhouse with two counts of first degree rape of a child and two counts of first degree incest. The State amended the information on the date of trial to include an additional count of first degree rape of a child. Ultimately the State charged Mr. Bobenhouse with: Count 1: First degree rape of a child: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with John Doe, who was less than 12 years old and not married to the defendant, who was at least 24 months older. Count 2: First degree rape of a child: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with John Doe, who was less than 12 years old and not married to the defendant, who was at least 24 months older. Count 3: First degree rape of a child: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with Jane Doe, who was less than 12 years old and not married to the defendant, who was at least 24 months older. Count 4: First degree incest: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with John Doe, known by the defendant to be related to him. Count 5: First degree incest: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with Jane Doe, known by the defendant to be related to him. Ά5 The jury found him guilty of all charges on August 1, 2006. The court found the necessary aggravating facts to support an exceptional minimum sentence and sentenced Mr. Bobenhouse to a minimum of 600 months on each rape count, to run concurrently. He appeals both his convictions and his sentence. DISCUSSION SPEEDY TRIAL Ά7 Mr. Bobenhouse did not object at any time to the dates set for trial. Accordingly, the last allowable date for his trial was August 29, 2006, the date set for trial after his last motion for a continuance. CrR 3.3(d)(4). And his trial began on that date. Mr. Bobenhouse then waived his right to object to a violation of the speedy trial rule. Mr. Bobenhouse also raises the question of speedy trial by claiming that his lawyer was ineffective for failing to raise the issue in the trial court. We take up that assignment of error along with his other claim of ineffective assistance later in this opinion. ACCOMPLICE LIABILITY FOR ACTS OF THE CHILDREN Ά8 Mr. Bobenhouse contends he was improperly charged with first degree rape of a child (counts 2 and 3) and first degree incest (count 5). He asserts the acts alleged in these counts did not constitute crimes because he did not have sexual intercourse with the children; the children had sexual intercourse with each other. He argues then that he cannot legally be an accomplice to a crime because no crime was committed. And he also argues that there was no crime he could be an accomplice to because the children, both under the age of eight, were incapable of committing crimes. And indeed, that is what RCW 9A.04.050 says. Ά11 But Mr. Bobenhouse's criminal culpability does not rest on a showing of actual sexual contact with these children, at least for these charges. The State claimed and proved that he effected the child rape and the incest as an accomplice. Ά12 "A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable." RCW 9A.08.020(1). A person is "legally accountable" when "[a]cting with the kind of culpability that is sufficient for the commission of the crime, he causes an innocent or irresponsible person to engage in such conduct." RCW 9A.08.020(2)(a). Ά13 Mr. Bobenhouse caused John to have sexual intercourse with Jane. Both children were innocent or irresponsible persons. RCW 9A.08.020(2)(a). He argues, nonetheless, that no crime was committed because the jury could not find beyond a reasonable doubt that the principal for the crimeJohn or Janewas 24 months older than the victim (the other child). And he says that these children were incapable of committing a crime, in any event, because they were under the age of eight. RCW 9A.04.050 (children under the age of eight are incapable of committing a crime). Ά14 Mr. Bobenhouse's culpability is based on forcing innocent people (his children) to engage in conduct that would constitute a crime if Mr. Bobenhouse engaged in the same conduct. RCW 9A.08.020(2)(a). See State v. B.J.S., 72 Wn. App. 368, 371-72, 864 P.2d 432 (1994) (although the defendant did not personally touch the victims, she was legally accountable for child molestation committed by one three-year-old against another), abrogated on other grounds by State v. Lorenz, 152 Wn.2d 22, 32, 93 P.3d 133 (2004). Mr. Bobenhouse used these children as instruments for his own criminal conduct. He effectively reduced the children to instruments that achieved the desired end: sexual intercourse with a child. The State proved the necessary elements of these crimes by accomplice liability. ADEQUACY OF THE CHARGING INFORMATION Ά15 Mr. Bobenhouse next contends that the elements instructions on counts 2 (rape), 3 (rape), and 5 (incest) outlined elements of accomplice liability that were not alleged in the information. UNANIMITY INSTRUCTION Ά17 John testified that Mr. Bobenhouse ordered him to suck Mr. Bobenhouse's penis every week from the time that John was five or six years old until he was seven or eight. He also testified that Mr. Bobenhouse put his finger in John's anus. Count 1 charged Mr. Bobenhouse with the first degree rape of John and count 4 charged him with incest with John. The trial court did not instruct the jury that it had to agree that the same underlying act constituted count 1 or count 4. Mr. Bobenhouse's lawyer did not propose a unanimity instruction. Mr. Bobenhouse nonetheless contends the lack of a unanimity instruction was an error requiring reversal of the convictions on these two counts. Ά19 The State contends there was no error at all because the two types of sexual intercourse alleged herefellatio and anal penetrationare merely alternative means of committing first degree rape of a child, rather than distinct acts for which a unanimity instruction is required. The State is mistaken. Ά20 The statute criminalizing first degree rape of a child does not contain alternative means for committing the crime. RCW 9A.44.073. Although sexual intercourse may be accomplished in multiple different acts of penetration (RCW 9A.44.010(1)), statutes that define in the disjunctive an element of a crime do not create alternative means of committing that crime. State v. Laico, 97 Wn. App. 759, 762, 987 P.2d 638 (1999). Each of the methods of sexual intercourse described by John constitutes a distinct criminal act, not an alternative means of committing child rape. State v. Williams, 136 Wn. App. 486, 498, 150 P.3d 111 (2007). Ά21 And the prosecutor did not elect which actfellatio or penetration of John's anusconstituted the crime in count 1 or count 4 during closing argument: Ah, the charge, itself [count 1], requires you to find that at least one instance of sexual intercourse happened, not that they all happened, not that the oral sex and the anal sex happened, any number of those things that you are convinced of is really not the point. The point is that one count of it is charged, meaning that one act of sexual intercourse needs to be proved beyond a reasonable doubt. Any one of those, if you are convinced beyond a reasonable doubt[,] should sustain a verdict of guilty as to Count I, once all of the other elements have been shown, as well. . . . . Now, on Count IV, it says the defendant had sex with John Doe, and all of the other elements I've described for incest in the first degree. . . . It also basically stands for the proposition that if the defendant is guilty in Count I, then in Count IV, as long as you find that the relationship is there between the father and the son, as blood relatives, then he is also guilty of Count IV. Report of Proceedings (RP) at 567, 569. And nothing in the jury instructions required the jury to find that the same underlying act was proved beyond a reasonable doubt. The failure then to require a unanimous verdict on either or both of these two acts was error. The next question is whether the error was harmless. FAILURE OF UNANIMITY INSTRUCTION HARMLESS ERROR Ά22 There was no contravening evidence to the events here, only a general denial by Mr. Bobenhouse. The victims' testimony is detailed. The acts committed on the children were similar. Our Supreme Court has concluded under similar circumstances that a rational juror would believe each incident occurred beyond a reasonable doubt. Camarillo, 115 Wn.2d at 71-72. And the jury would reasonably believe that if one incident happened, then all must have happened. Id. at 71. Indeed, in State v. Kitchen the court relied on a California case to conclude that the absence of a unanimity instruction was harmless. State v. Kitchen, 110 Wn.2d 403, 413-14, 756 P.2d 105 (1988) (citing People v. Deletto, 147 Cal. App. 3d 458, 473, 195 Cal. Rptr. 233 (1983)). There, as here, the jury had no means to discriminate "between the two incidents attested to by the victim. . . . [T]he evidence did not permit the jury to rationally discriminate between the two incidents." Id. Ά23 The court came to the same conclusion in Camarillo. There, the victim described three incidents that could support one count of indecent liberties: (1) the defendant sat the boy on his lap and rubbed the zipper area of the boy's pants; (2) the defendant lay down beside the boy on a bed and fondled the boy's penis; and (3) the defendant committed an act similar to the first incident. Camarillo, 115 Wn.2d at 62-63. Again, the defendant " 'offered no evidence upon which the jury could discriminate between the incidents.' " Id. at 70 (quoting State v. Camarillo, 54 Wn. App. 821, 828, 776 P.2d 176 (1989)). Camarillo held that the evidence supporting each incident established the crime beyond a reasonable doubt, citing the lack of conflicting testimony and the child's specific detailed testimony. Id. at 71. Ά24 The court in Camarillo cited State v. Allen Ά25 Allen held that the defendant's general denial and the victim's testimony that similar contact occurred on each occasion gave the jurors no rational basis to distinguish among the acts charged to support the one count. Allen, 57 Wn. App. at 139. The crucial point is that " 'proof of the substantially similar incidents relied upon a single witness' detailed, uncontroverted testimony.' " Camarillo, 115 Wn.2d at 70 (quoting Camarillo, 54 Wn. App. at 828). In other words, if a juror believed beyond a reasonable doubt that one act occurred, that juror would then necessarily believe that the others occurred as well. Id. Ά26 Moreover, a purpose of the jury instructions is to allow the defendant to argue his theory of the case. State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005). Mr. Bobenhouse easily argued his theory of the case without the required unanimity instruction. Ά27 We conclude that any error in failing to give a unanimity instruction was harmless. Camarillo, 115 Wn.2d at 72; Kitchen, 110 Wn.2d at 413-14; Allen, 57 Wn. App. at 139. INEFFECTIVE ASSISTANCE OF COUNSEL Ά31 The continuances sought by defense counsel were consistent with a sound trial strategy. There was no violation of Mr. Bobenhouse's right to a speedy trial. Mr. Bobenhouse shows, then, neither deficient performance nor prejudice. Ά32 Unanimity Instruction. We have already concluded that any error in failing to give a unanimity instruction was harmless. SAME CRIMINAL CONDUCT Ά33 Mr. Bobenhouse argued at his sentencing hearing that his rape and incest convictions were based on the same acts and should have constituted the same criminal conduct for sentencing purposes. He contends here that counts 1 and 4relating to sexual intercourse with John Doeconstitute the same criminal conduct, as do counts 3 and 5relating to sexual intercourse with Jane Doe. EXCEPTIONAL MINIMUM SENTENCE Ά40 The trial court determined that aggravating factors supported an exceptional minimum sentence. See CP at 221-22 (Findings of Fact and Conclusions of Law for an Exceptional Sentence). And the resulting concurrent minimum sentences of 600 months on each rape count were less than the statutory maximum of life. The exceptional minimum sentences did not then violate the rule in Blakely. Clarke, 156 Wn.2d at 890-91. FOSTER PARENTS NO-CONTACT ORDER Ά41 Mr. Bobenhouse's final challenge is to a postconviction no-contact order attached to his judgment and sentence. The domestic violence no-contact order prohibits him from contacting his three children, his former wife, and the former foster parents of his children. Mr. Bobenhouse contends the inclusion of the foster parents is improper because that restraint is not crime related. Ά43 At sentencing, the State reported that the former foster parents had asked to be included in the no-contact order. The presumption raised was that they feared retribution. Restricting Mr. Bobenhouse's contact with the former foster parents was reasonably necessary to protect them and the public order. Ά44 We affirm the convictions and sentence. SCHULTHEIS, J., and THOMPSON, J. PRO TEM., concur.