State v. Sutherby

• Decision Date: 09 April 2009
• Docket Number: No. 80169-0.,80169-0.
• Citation: 204 P.3d 916
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Randy J. SUTHERBY, Respondent.

204 P.3d 916

STATE of Washington, Petitioner, v. Randy J. SUTHERBY, Respondent.

No. 80169-0.

Supreme Court of Washington, En Banc.

Argued June 12, 2008.

Decided April 9, 2009.

Gerald R. Fuller, Grays Harbor Co. Pros. Office, Attorney at Law, Montesano, WA, for Petitioner.

James Elliot Lobsenz, Carney Badley Spellman, Seattle, WA, for Respondent.

STEPHENS, J.

¶ 1 A jury convicted Randy Sutherby of first degree child rape, first degree child molestation, and 10 counts of possession of depictions of minors engaged in sexually explicit conduct, also known as child pornography. At sentencing, the trial court consolidated five of the child pornography counts into two counts, on the ground that the proper unit of prosecution was per minor depicted, and some of the counts related to different images of the same minor. Sutherby appealed, arguing that he should be sentenced on only one count of possession of child pornography and that his attorney was ineffective in failing to seek a severance of the child rape and molestation charges from the child pornography charges. Sutherby subsequently filed a personal restraint petition raising the same claims of ineffective assistance of counsel, which the Court of Appeals consolidated with the appeal.

¶ 2 The Court of Appeals agreed with Sutherby that he should have been charged with only one count of possession of child pornography and held it was reversible error to allow the mother's testimony. The court ordered a new trial on the child rape and child molestation charges and remanded for resentencing on one count of possession of child pornography. The Court of Appeals did not address the severance issue.

¶ 3 We affirm the Court of Appeals, though in part on different grounds. We agree that the proper unit of prosecution is one for Sutherby's possession of child pornography and remand for resentencing on a single count. We further hold that it was ineffective assistance of counsel for Sutherby's trial attorney to fail to move for a severance. Accordingly, we reverse the convictions for child rape and child molestation and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 4 The State offered the following facts at trial. On December 20, 2004, five year old "L.K." stayed with her paternal grandfather, Randy Sutherby, and his wife in Grays Harbor for two nights. On December 27, L.K. told her mother that on the second night she stayed at Sutherby's, he crawled into her bed, got under the blankets, and poked his finger into her vagina. L.K.'s mother immediately took L.K. to the doctor's office, where the doctor found injuries that were consistent with L.K.'s description of the events, though the doctor noted the possibility of other causes of L.K.'s injuries. Soon after, L.K.'s mother contacted child protective services and L.K. recounted the same events to an interviewer for the Benton County Prosecuting Attorney's Office. Two weeks after the alleged assault, another healthcare professional examined L.K., but the results were inconclusive.

¶ 5 On March 2, 2005, Sutherby was arrested at his home. Sutherby waived his Miranda¹ rights and answered questions about the incident, denying any wrongdoing. With Sutherby's consent, officers seized and searched two personal computers from his home. Investigators found several files containing pictures of children engaged in sexually explicit conduct. Upon further questioning, Sutherby admitted that he looked at child pornography and had sexual fantasies about children, but said he never acted on those fantasies.

¶ 6 By amended information, Sutherby was charged with one count of first degree rape of a child, one count of first degree child molestation, and 10 counts of possession of depictions of minors engaged in sexually explicit conduct. At one point in the pretrial proceedings, the trial court inquired about the possibility of severing the two types of charges. The State argued that the counts were "intertwined" because proof that Sutherby viewed child pornography was probative of his sexual motivation in touching L.K. Report of Proceedings (RP) (June 6, 2005) at 153. Sutherby's attorney never moved for a severance.

¶ 7 At trial, L.K.'s mother testified without objection that she could tell when L.K. was lying because she "tries not to smile, but makes a half smile." RP (Nov. 1, 2005) at 34. She said L.K. did not smile when she talked about the incident involving Sutherby. During closing arguments, the prosecutor argued that Sutherby's possession of the pornographic material proved that he molested his granddaughter, stating that the child pornography "shows his motive; why he touched [L.K.] It shows his intent. He is a predator that went over the line and we are here to hold him responsible today." RP (Nov. 3, 2005) at 398.

¶ 8 The jury convicted Sutherby on all counts. At sentencing, the trial court determined that the unit of prosecution for possession of child pornography was per minor depicted. Accordingly, the judge combined the counts representing images of the same minor and those he could not clearly identify as depicting different minors, and sentenced Sutherby on seven counts of possession of child pornography. The trial court rejected defense counsel's argument that Blakely² required a jury to determine the number of minors depicted in the images.

¶ 9 Sutherby appealed, arguing that (1) his attorney's failure to move for a severance constituted ineffective assistance of counsel, (2) it was manifest constitutional error to allow testimony from the mother that her daughter was telling the truth about the rape, (3) his attorney's failure to object to the impermissible testimony constituted ineffective assistance of counsel, (4) the proper unit of prosecution on the possession charge is one count per possession, and (5) the trial judge violated Blakely by making factual findings as to which minors were depicted in each image in order to determine the unit of prosecution. Sutherby subsequently filed a personal restraint petition (PRP) raising the same claims of ineffective assistance of counsel, which the Court of Appeals consolidated with the appeal.

¶ 10 The Court of Appeals reversed Sutherby's convictions for child rape and child molestation, and remanded for retrial on those charges and resentencing on a single count of possession of child pornography. State v. Sutherby, 138 Wash.App. 609, 618, 158 P.3d 91 (2007). We granted review. State v. Sutherby, 162 Wash.2d 1018, 178 P.3d 1034 (2008).

ANALYSIS

¶ 11 Two issues are dispositive of this appeal: (1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney's failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges? Because these issues can be resolved on Sutherby's direct appeal, it is unnecessary to reach his PRP.³

Unit of Prosecution

¶ 12 Sutherby maintains that he should be sentenced on only one count of possession of child pornography, as the unit of prosecution is per possession, not per image or per minor. With respect to determining the proper unit of prosecution, our review is de novo. State v. Ose, 156 Wash.2d 140, 144, 124 P.3d 635 (2005) (citing State v. Graham, 153 Wash.2d 400, 404, 103 P.3d 1238 (2005)).

¶ 13 The Fifth Amendment to the United States Constitution and article I, section 9 of the Washington State Constitution protect a defendant from being punished more than once for the same offense. See State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995). Both double jeopardy clauses prohibit multiple convictions under the same statute if the defendant commits only one unit of the crime. Ose, 156 Wash.2d at 144, 124 P.3d 635 (quoting State v. Tvedt, 153 Wash.2d 705, 710, 107 P.3d 728 (2005)). We have previously noted that the state constitutional rule against double jeopardy provides the same scope of protection as the federal constitutional rule. Gocken, 127 Wash.2d at 107, 896 P.2d 1267.

¶ 14 Ultimately, analyzing the unit of prosecution is an issue of statutory construction and legislative intent. State v. Adel, 136 Wash.2d 629, 634, 965 P.2d 1072 (1998). To determine legislative intent, we look to the plain meaning of the applicable statute, which is derived from the language of the statute. State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002). We construe statutes to effect their purpose and avoid unlikely or absurd results. State v. Neher, 112 Wash.2d 347, 351, 771 P.2d 330 (1989). If a statute does not clearly and unambiguously identify the unit of prosecution, then we resolve any ambiguity under the rule of lenity to avoid "`turning a single transaction into multiple offenses.'" Adel, 136 Wash.2d at 634-35, 965 P.2d 1072 (quoting Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955)).

¶ 15 The first question is what act or course of conduct has the legislature proscribed? State v. Root, 141 Wash.2d 701, 706, 9 P.3d 214 (2000); Adel, 136 Wash.2d at 634, 965 P.2d 1072. Former RCW 9.68A.070 provided: "[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony." From the text of the statute it is clear that the proscribed conduct is the possession of child pornography. The statute's structure is similar to the Mann Act, 18 U.S.C. § 2421 (1949), at issue in Bell, which stated: "`Whoever knowingly transports ... any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose ... [s]hall be fined not more than $5,000 or imprisoned not more than five years, or both.'" Bell, 349 U.S. at 82, 75 S.Ct. 620 (second alteration in original) (quoting 18 U.S.C. § 2421). In Bell, the United States Supreme Court held that the Fifth Amendment double jeopardy clause allowed only a single...