State v. Beatty, No. 34967-1-II (Wash. App. 8/21/2007)

• Court: Washington Court of Appeals
• Writing for the Court: Quinn-Brintnall
• Decision Date: 21 August 2007
• Docket Number: No. 34967-1-II,Consolidated with No. 35744-5-II,34967-1-II
• Citation: State v. Beatty, No. 34967-1-II (Wash. App. 8/21/2007), Consolidated with No. 35744-5-II, No. 34967-1-II (Wash. App. Aug 21, 2007)
• Parties: STATE OF WASHINGTON, Respondent, v. DELBERT EDWARD BEATTY, Appellant, W.E.C.,<SMALL><SUP>1</SUP></SMALL> Defendant. In re Personal Restraint Petition of DELBERT EDWARD BEATTY, Petitioner.

Page 1

Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. DELBERT EDWARD BEATTY, Appellant W.E.C.,¹ Defendant In re Personal Restraint Petition of DELBERT EDWARD BEATTY, Petitioner.

No. 34967-1-II

Consolidated with No. 35744-5-II

Court of Appeals of Washington, Division Two.

Filed: August 21, 2007.

Appeal from Lewis County Superior Court. Docket No: 05-1-00282-9. Judgment or order under review. Date filed: 06/09/2006. Judge signing: Honorable Nelson E Hunt.

Counsel for Appellant(s), David L. Donnan, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.

Vanessa Mi-jo Lee, Attorney at Law, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3647.

Delbert Edward Beatty (Appearing Pro Se), #889544, Twin Rivers Corr Cntr, P.O. Box 888, Monroe, WA, 98272.

Counsel for Petitioner(s), Delbert Edward Beatty (Appearing Pro Se), #889544, Monroe Correctional Center, P.O. Box 777, Monroe, WA, 98272.

Counsel for Respondent(s), Terri Janine Gailfus, Attorney at Law, Msc Add01, 360 Nw North St, Chehalis, WA, 98532-1925.

QUINN-BRINTNALL, J.

Following a bench trial, the trial court found Delbert Edward Beatty guilty of conspiracy to commit first degree child molestation and attempt to commit first degree child molestation. Beatty asserts that (1) the multiple convictions violated double jeopardy; and (2) the trial court erred when it ordered collection of a deoxyribonucleic acid (DNA) sample at sentencing. In a pro se statement of additional grounds (SAG) and a personal restrain petition (PRP), Beatty raises several additional issues, including the sufficiency of the evidence; mid-trial amendments to the charges; his inability to testify; his attorney's failure to present certain evidence and witnesses; and challenges his sentence. We affirm.

FACTS

The facts of this case are lurid and detailed. They are well known to the parties and will not be repeated here.

On April 6, 2005, the State charged Beatty with conspiracy to commit first degree child rape (Count I) and attempted first degree child rape (Count II) of his girl friend's daughter, C.E.C. Beatty was born on June 12, 1954. C.E.C. was born on May 14, 1994, and was 10 years old when the events that form the basis for the charges occurred.

On many occasions while Beatty was dating C.E.C.'s mother, W.E.C., W.E.C. and her two young daughters spent the night at Beatty's house in Chehalis, Washington. W.E.C.'s eldest daughter, C.E.C., testified at trial, that when she was 10 years old, Beatty and W.E.C. called her into Beatty's bedroom several times to talk about sex, how W.E.C. lost her virginity at age 12, and how Beatty and W.E.C. wanted C.E.C. to loose her virginity to Beatty.

C.E.C. testified that Beatty and W.E.C. bought her erotic lingerie, made her watch as they performed oral sex acts, and repeatedly fondled and rubbed her body and genitals trying to get her to agree to engage in sexual activity with them. C.E.C. held her legs tightly together and refused.

C.E.C. also testified to other instances where Beatty, alone, had touched her inappropriately or attempted to do so. Following C.E.C.'s testimony, which did not establish that Beatty had successfully penetrated her, the State moved to amend the information arguing that the reduced charges better conformed to the current evidence as presented by C.E.C.'s testimony. Beatty did not object to the amendment and the trial court granted the State's motion. The conspiracy to commit first degree child rape charge was amended to conspiracy to commit first degree child molestation. The attempt to commit first degree child rape charge was amended to attempt to commit first degree child molestation. The trial court found Beatty guilty of both counts as amended.

At sentencing, the trial court ruled that the two charges encompassed the same criminal conduct for the purposes of calculating the offender score and sentenced Beatty within the standard range to 51 months per count to run concurrently. Beatty filed a direct appeal and a PRP. We consolidated Beatty's PRP with his direct appeal.

ANALYSIS

Double Jeopardy

Beatty argues that his multiple convictions for "the same act" violated double jeopardy because both offenses required the State to prove that he took a substantial step and the evidence used was inextricable. Br. of Appellant at 11. We disagree. Article I, section 9 of the Washington State Constitution, and the Fifth Amendment² to the federal constitution provide the same protection against double jeopardy. State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995). Both state and federal double jeopardy clauses prohibit (1) multiple punishments for the same offense; and (2) subsequent prosecution for the same offense after acquittal or conviction. Gocken, 127 Wn.2d at 100. A double jeopardy claim may be raised for the first time on appeal; it is a question of law, which we review de novo. RAP 2.5(a); State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006) (citing State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005)).

To constitute the same criminal offense for purposes of double jeopardy, the offenses must be the same in both law and fact. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). Where an element of one offense is not included in the other, and proof of one offense would not necessarily prove the other, the double jeopardy clause allows separate punishment for both offenses. Jackman, 156 Wn.2d at 747 (quoting State v. Baldwin, 150 Wn.2d 448, 455-56, 78 P.3d 1005 (2003)); Calle, 125 Wn.2d at 777.

Here, while attempted child molestation and conspiracy to commit child molestation may be closely related in fact because both involved the same victim, the offenses are not the same in law. Calle, 125 Wn.2d at 777. The elements required to prove the offense of attempt to commit a crime differ from the elements required to prove the offense of conspiracy to commit a crime. Conspiracy to commit first degree child molestation requires proof that Beatty entered into an agreement with one or more persons (W.E.C., in this case) to engage or cause the performance of a crime (child molestation), and any one of them takes a substantial step in pursuance of such agreement. RCW 9A.28.040(1).

In contrast, attempt to commit first degree child molestation requires proof that Beatty had intent to touch C.E.C.'s sexual or other intimate parts for the purpose of gratifying sexual desire and that he took a substantial step toward the commission of that crime. RCW 9A.44.010(2); RCW 9A.28.020(1); Jackman, 156 Wn.2d at 747-50. Double jeopardy does not bar prosecuting Beatty for both conspiracy to commit child molestation and attempt to molest a child.

Order to Collect DNA Sample at Sentencing

Beatty next argues that the trial court's order to collect a DNA sample from him, pursuant to RCW 43.43.754, violated his federal and state constitutional privacy rights. We disagree.

Our Supreme Court has recently held that "the compelled collection of DNA from convicted felons does not invade a recognized private affair under the state constitution, nor is it prohibited under the Fourth Amendment." State v. Surge, 160 Wn.2d 65, 69, 156 P.3d 208 (2007). The Surge court further held that "while article I, section 7 does not expressly limit the right to privacy, not every asserted right qualifies as a `private affair.'" 160 Wn.2d at 73.

In Washington, a person's constitutional privacy rights, under article I, section 7, may vary (diminish) based on that person's status as "an arrestee, pretrial detainee, prisoner, or probationer." Surge, 160 Wn.2d at 74 (citing State v. Cheatam, 150 Wn.2d 626, 642, 81 P.3d 830 (2003)). There is "no distinction between [the] practice [of allowing the government to collect fingerprints from felons for identification purposes] and the collection of DNA" because the statute authorizing this collection limits the State's use of the DNA sample for identification purposes only. Surge, 160 Wn.2d at 74. Here, after Beatty was convicted, the trial court properly ordered the collection of Beatty's DNA sample for identification purposes.

SAG Issues

A. Witness Credibility

Beatty contends that the State's evidence was insufficient to support his convictions because C.E.C.'s statements were inconsistent and, therefore, call into question whether any touching had actually occurred. To support his argument, Beatty alleges that C.E.C. fabricated the touching incident and that this is evidenced by the facts that C.E.C. failed to run away from Beatty; that she returned to the bed; and that she fell asleep following the alleged incident. Beatty is essentially requesting that we re-assess C.E.C.'s credibility.

In this case, the trial court found that C.E.C. "is the single most credible witness I have ever seen. She was consistent in her detail as well as in almost a less-is-more situation or her lack of sophistication about what she saw occurring and what happened to her."³ Report of Proceedings at 329. We recognize that the trial court "is in a better position to assess the credibility of witnesses,[3] take evidence, and observe the demeanor of those testifying." State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994). Accordingly, the trier of fact makes all credibility determinations and we do not review them. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

B. Right to Testify (SAG and PRP)

Beatty next baldly contends in his SAG that he "never" got to testify on his own behalf. SAG at 4. A defendant who files a SAG need not cite to cases or the record, but he must provide details sufficient to inform the court of the objection for review. RAP 10.10(c).⁴

A defendant has a fundamental right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). Only the defendant has the authority to decide whether to testify or waive that right. In re Pers. Restraint of...