In re Personal Restraint of Hoefler, 34684-6-III
| Decision Date | 19 December 2017 |
| Docket Number | 34684-6-III |
| Citation | 1 Wn.App.2d 1053 |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Personal Restraint of TERRY MICHAEL HOEFLER. |
UNPUBLISHED OPINION
Terry Michael Hoefler petitions for relief from personal restraint resulting from his conviction for attempted rape of a child in the first degree. He argues the State presented insufficient evidence for a jury to find that he intended to rape the victim. The State counters that Mr. Hoefler is precluded from raising a sufficiency of the evidence challenge because he raised a sufficiency of the evidence challenge on direct review. But because the argument he now raises is different than the argument he raised on direct review, we determine that Mr. Hoefler is not precluded from raising it now. We nevertheless reject his sufficiency challenge and dismiss his personal restraint petition (PRP).
The background facts were set forth in Mr. Hoefler's direct appeal, State v. Hoefler, 189 Wn.App. 1001, 2015 WL 4506619 (unpublished opinion). We mention some of those facts below so as to address the issue Mr. Hoefler asserts in his PRP.
Mr Hoefler entered a house late one night to burglarize it. After collecting several items, he entered a bedroom and encountered L.S., an 11-year-old girl, sleeping between her two younger cousins. Mr. Hoefler carried L.S. away from her sleeping cousins into an unoccupied room and set her on a couch. Mr. Hoefler told L.S. to bend down and to be quiet. He then put a plastic bag in her mouth and removed her shorts. L.S. removed the bag from her mouth, screamed, and ran to awaken her aunt. Shaking with fear, she reported " " 1 Report of Proceedings (RP) (Apr. 24-25, 2013) at 61.
Mr Hoefler fled and sought refuge in a nearby canal. He removed his clothing and put on a short skirt that belonged to the young girl. Law enforcement eventually located Mr. Hoefler. During a showup with L.S., Mr. Hoefler became visibly aroused. In an interview with law enforcement, Mr. Hoefler denied touching the young girl, but said he could have raped her because there were no adults around.
A jury heard the evidence and found Mr. Hoefler guilty of attempted first degree rape of a child. The trial court later entered a judgment of conviction and sentenced Mr. Hoefler. He then appealed.
In his direct appeal, Mr. Hoefler argued that the State had failed to prove certain facts alleged in the charging document. We held that the State was not required to prove anything beyond the essential elements, provided the to-convict instruction did not add anything beyond the essential elements. We noted that the to-convict instruction merely set forth the essential elements.
Mr Hoefler also argued that the State had failed to prove the substantial step element of attempt. We then reviewed the evidence and determined the State had presented sufficient evidence to prove that Mr. Hoefler's acts were a substantial step toward the commission of the charged crime.
Mr Hoefler timely brought this petition for relief from personal restraint.
Mr. Hoefler argues that he is unlawfully restrained because the State presented insufficient evidence that he intended to rape L.S. The State challenges Mr. Hoefler's ability to raise this argument on collateral review on the basis that he raised a sufficiency of the evidence argument on direct review.
A personal restraint petitioner may not relitigate an issue that was raised and rejected on direct appeal unless relitigation is required in the interests of justice. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013). "[Reexamination of an issue decided in a prior appeal is limited to cases where an intervening change in the law or some other circumstance justified the failure to raise a crucial argument on appeal." In re Pers. Restraint of Mines, 190 Wn.App. 554, 570, 364 P.3d 121 (2015), review denied, 186 Wn.2d 1001, 395 P.3d 997 (2016).
Mr. Hoefler cites In re Personal Restraint of Khan, 184 Wn.2d 679, 688-89, 363 P.3d 577 (2015) (plurality opinion) to support his argument that he may raise a different argument of evidentiary sufficiency on collateral review than he raised on direct review. There, Zahid Khan argued on collateral review that he was denied effective assistance of counsel because his trial counsel failed to obtain an interpreter for him. Id. at 684. The State challenged Mr. Khan's ability to raise that argument on collateral review on the basis that he had raised an ineffective assistance of counsel argument on direct review. Id. at 688. In rejecting the State's challenge, Khan explained: "But [Mr.] Khan did not argue on direct review that counsel was ineffective for failing to obtain an interpreter; he argued that his counsel was ineffective for failing to object to testimony that his stepdaughter would suffer adverse social consequences for coming forward with her allegations and for failing to object to alleged prosecutorial misconduct." Id. Khan determined that the argument before it was sufficiently distinct from the argument on direct review that the former constituted a new issue so that collateral review was proper. Id. at 689.
Khan is legally indistinguishable. On direct review, Mr. Hoefler argued the evidence was insufficient to establish the substantial step element, he did not argue the evidence was insufficient to establish he intended to rape L.S. Mr. Hoefler's argument here is sufficiently distinct from his argument on direct review that the former constitutes a new issue so that collateral review is proper.
In his PRP, Mr. Hoefler argues the evidence was insufficient to show that he intended to commit rape of a child in the first degree. He primarily relies on State v. Leach, 36 Wn.2d 641, 647-48, 219 P.2d 972 (1950). He additionally argues that language in State v. Jackson, 62 Wn.App. 53, 813 P.2d 156 (1991) is either dicta or is inconsistent with Leach. We disagree that Leach is controlling and conclude that Jackson was correctly decided.
Under both the federal and state constitutions, due process requires that the State prove every element of a crime beyond a reasonable doubt. U.S. Const, amend. XIV; WASH. CONST, art. I, § 3; State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d 507 (2017). For a claimed violation of constitutional rights, a petitioner bringing a collateral challenge to a judgment and sentence "must show with a preponderance of the evidence that he or she was actually and substantially prejudiced by a violation of constitutional rights." Mines, 190 Wn.App. at 562. For purposes of a collateral challenge, a conviction based on insufficient evidence contravenes the due process clause of the Fourteenth Amendment to the United States Constitution and thus results in an unlawful restraint. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011).
In reviewing a claim for insufficient evidence, this court considers "' whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This court draws all reasonable inferences from the evidence in favor of the State and interprets the evidence most strongly against the defendant. State v. Munoz-Rivera, 190 Wn.App. 870, 882, 361 P.3d 182 (2015).
To prove attempted rape of a child in the first degree, the State must establish that, with intent to have sexual intercourse with a child, the defendant took a substantial step toward having sexual intercourse with the child. RCW 9A.28.020(1); RCW 9A.44.073(1); State v. Chhom, 128 Wn.2d 739, 743, 911 P.2d 1014 (1996); State v. Johnson, 173 Wn.2d 895, 907, 270 P.3d 591 (2012). Criminal intent may be inferred from conduct, and circumstantial evidence is as reliable as direct evidence. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
Mr. Leach, a widower, lived with his 7-year-old daughter and 11-year old son. Leach, 36 Wn.2d at 642. He and his daughter sometimes slept in the same bed, with Mr. Leach wearing underwear and his daughter wearing pajamas. Id. at 643-44. On one occasion, Mr. Leach came home drunk and shared the bed with his daughter, both clothed in the manner in which they slept. Id. He told her that she would have to be the mother and then he rolled on top of her, pressing his private parts into her. Id. The State charged Mr. Leach with attempted carnal knowledge, and the jury found Mr. Leach guilty based on the above evidence. Id. at 642.
Leach discussed the standard of review that applied in those days:
The courts have recognized the principles set forth as a guide to assist them in determining whether or not there has been an attempt to commit a crime. But the cases and authorities are agreed that it is the duty of the courts to consider the facts in each individual case, and determine from them, by a practical and common sense application of these principles, whether or not, in fact, there was an attempt to commit the crime charged.
Id. at 647. After reviewing and weighing the evidence, Leach concluded that the proof was insufficient to sustain the conviction for attempted carnal knowledge and, at most, was sufficient for the uncharged crime of indecent liberties. Id. at 648.
The facts of Leach are dissimilar. In Leach, the father did not remove his daughter's...
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