State Of Wash. v. Williams

• Decision Date: 15 June 2010
• Docket Number: No. 27924-3-III,27925-1-III.,27924-3-III
• Parties: STATE of Washington, Respondent,v.Floyd Lee WILLIAMS, Appellant.
• Court: Washington Court of Appeals

156 Wash.App. 482

234 P.3d 1174

STATE of Washington, Respondent,v.Floyd Lee WILLIAMS, Appellant.

Nos. 27924-3-III, 27925-1-III.

Court of Appeals of Washington Division 3.

June 15, 2010.

COPYRIGHT MATERIAL OMITTED

David L. Donnan, Nancy P. Collins, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.

Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Andrew J. Metts III, Spokane County Pros. Offc., Spokane, WA, for Respondent.

SWEENEY, J.

¶ 1 This appeal follows a successful prosecution for two counts of first degree rape and one count of second degree assault with sexual motivation; the charges follow assaults on two separate victims. The defendant was sentenced to life imprisonment as a persistent offender based on these convictions and an earlier conviction for rape. The defendant claims on appeal that the assault should have merged with the rape since it was an element of the rape and had no independent purpose. We agree and reverse the conviction for second degree assault. But we reject his argument that the State was required to prove beyond a reasonable doubt and the jury was required to find the fact of an earlier conviction. And we, ultimately, affirm the judge's conclusion that the defendant was a persistent offender based on the convictions here and the earlier conviction for rape. We then affirm the remaining convictions and the sentence.

FACTS

¶ 2 On May 13, 2007, fourteen months after he had been released from prison on a 1995 rape conviction, Floyd Williams ran into KW on a Spokane street and asked if she would like to share a beer with him. KW was wandering the streets rather than return to an abusive husband. She drank a beer with Mr. Williams and went with him to a downtown apartment to get crack cocaine. They left the apartment and went behind a building to smoke the cocaine. KW turned to leave. Mr. Williams grabbed her from behind and put his forearm across her neck. He pushed her to the ground and began strangling her. KW blacked out. When she regained consciousness, Mr. Williams was gone. Her pants, underwear, and shoes had been removed. A man discovered her crying in a parking lot, gave her a shirt, and called police. She later identified Mr. Williams in a photomontage as her attacker.

¶ 3 Four nights later, AM accompanied Mr. Williams to a downtown U-Haul business, where they entered a rental truck to sleep for the night. AM is a transient. She met Mr. Williams soon after he was released from custody in 2006. She considered him her best friend. She later testified that they never had a romantic or sexual relationship, but that he frequently helped her with transportation, laundry, and meals. That night they shared a beer and she fell asleep in the truck. She awoke being strangled by Mr. Williams. She was able to hold her breath for a few minutes. She wet her pants. And she began to believe that she was near death. Mr. Williams released some of the pressure from her neck so she could pull down her pants, then raped her, and strangled her to unconsciousness during the act. Afterward, he apologized and took her to get coffee and breakfast. Eventually he left her and she went to a hospital to report the rape.

¶ 4 The State charged Mr. Williams with one count of first degree rape of AM in June 2007. The State charged him with one count of second degree assault with sexual motivation and one count of first degree rape of KW in October 2007. The court granted the State's motion to consolidate the two cases. Mr. Williams objected. The court also granted the State's motion to admit the testimony of MS, the victim in the 1995 rape conviction.

¶ 5 The jury found Mr. Williams guilty of all charges. The court denied his motions for arrest of judgment or for a new trial.

DISCUSSION

Evidence of Prior Rape Conviction

¶ 6 Mr. Williams assigns error to the trial judge's decision to admit evidence of his prior conviction for rape. He argues that it showed only his general propensity for criminal conduct and because of that should have been excluded. ER 404(b); State v. Halstien, 122 Wash.2d 109, 126, 857 P.2d 270 (1993); State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986). He argues that the trial court failed to identify how the 1995 rape supported an element of the crime. He notes that prior bad acts evidence is not admissible simply because it proves a common scheme or plan unless that helps prove some essential element of the crime charged. State v. Vy Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002). He also argues that the trial court failed to balance the probative value of this evidence against its potential prejudice. He argues that the court simply concluded that the facts were similar, and this is not enough. Finally, he argues that the failure of the court to instruct the jury on the limited purpose of the evidence permitted the jury to consider this as propensity evidence only.

¶ 7 MS testified that in May 1994 Mr. Williams offered her marijuana, grabbed her from behind by putting his forearm across her throat, and strangled her to unconsciousness four times while he raped her. The trial court concluded that MS's testimony met the requisites for admission of prior bad acts. We review the trial court's interpretation of a rule of evidence de novo. State v. DeVincentis, 150 Wash.2d 11, 17, 74 P.3d 119 (2003). But we review the court's discretionary decision to admit or exclude evidence for abuse of discretion. Vy Thang, 145 Wash.2d at 642, 41 P.3d 1159; State v. Scherner, 153 Wash.App. 621, 656, 225 P.3d 248 (2009) review granted, No. 84150-1 (Wash. June 1, 2010).

¶ 8 ER 404(b) prohibits evidence of other crimes to show that the defendant acted in conformity with that character-had a propensity to commit this crime. But evidence of prior crimes may be admitted for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). To admit evidence of prior convictions under ER 404(b), the court must (1) find by a preponderance of the evidence that the misconduct occurred; (2) identify, as a matter of law, the purpose of the evidence; (3) conclude that the evidence is relevant to prove an element of the crime charged; and, finally, (4) balance the probative value of the evidence against its prejudicial effect. Vy Thang, 145 Wash.2d at 642, 41 P.3d 1159.

¶ 9 The Washington legislature enacted RCW 10.58.090 effective June 12, 2008. Mr. Williams's case went to trial in October 2008, so the act applied to him. The statute authorizes the trial court to admit evidence of prior sex offenses in a criminal action in which the defendant is accused of a sex offense, notwithstanding ER 404(b). RCW 10.58.090(1). The statute does require that the trial court consider whether the evidence should be excluded under ER 403, based on the following considerations: (a) the similarity of the prior acts to the current charges, (b) the closeness in time of the prior acts, (c) the frequency of the prior acts, (d) the presence or lack of intervening circumstances, (e) the need for the prior acts testimony, (f) whether the prior acts resulted in a criminal conviction, and (g) whether the probative value is substantially outweighed by unfair prejudice or confusion of the jury. RCW 10.58.090(6).

¶ 10 Mr. Anderson argued that RCW 10.58.090 is unconstitutional. The trial court declined to rule on the constitutionality of the statute.¹ Instead, the court employed a traditional ER 404(b) analysis to decide whether MS's testimony should be admitted. And so that will be the focus of our analysis here.

¶ 11 Mr. Williams does not dispute the trial court's finding that the second degree rape conviction is supported by sufficient evidence. He assigns error to the court's ruling that the evidence was relevant to prove an element of the charged crimes. He also contends the trial court failed to properly weigh the probative value of this evidence against the prejudicial effect.

¶ 12 The trial court concluded that the evidence was relevant and appropriate since Mr. Williams claimed that his current victims consented to sexual intercourse. Report of Proceedings (RP) at 57. We agree. The evidence was relevant to the element of forcible compulsion. Id.; RCW 9A.44.040; see State v. Saltarelli, 98 Wash.2d 358, 368, 655 P.2d 697 (1982) (evidence of prior attempted rape admitted to prove defendant used force and the victim did not consent). The court concluded that the 1995 rape conviction showed a common scheme involving similar victims (women of a similar age, involved with drugs) and a similar method of attack (promise of drugs, attacked from behind with a forearm across the throat, strangled into unconsciousness during the rape). The trial court also noted that the current rapes occurred within days of each other and only 14 months after Mr. Williams was released from prison for the 1995 rape conviction.

¶ 13 Finally, the trial court balanced the probative value of the evidence against its likelihood of prejudice. Vy Thang, 145 Wash.2d at 642, 41 P.3d 1159. The court noted that two charges of rape against two separate victims were being tried together and that a level of prejudice attached. So the court concluded that any additional prejudice would be minimal. RP at 57.

¶ 14 Mr. Williams also assigns error to the court's failure to instruct the jury on the limited purpose of this evidence. The trial court is required to give the jury a limiting instruction if requested. State v. Foxhoven, 161 Wash.2d 168, 175, 163 P.3d 786 (2007); State v. Stein, 140 Wash.App. 43, 70, 165 P.3d 16 (2007). Mr. Williams did not request a limiting instruction and therefore waived any right to assign error here. Stein, 140 Wash.App. at 70, 165 P.3d 16. Moreover, the prosecutor effectively gave the jury a limiting instruction during closing argument. The prosecutor cautioned the jury that evidence of prior convictions should not be...