State v. Benitez

• Decision Date: 11 June 2013
• Docket Number: No. 42420–7–II.,42420–7–II.
• Citation: 302 P.3d 877,175 Wash.App. 116
• Parties: STATE of Washington, Respondent, v. Talyn K.J. BENITEZ, Appellant.
• Court: Washington Court of Appeals

175 Wash.App. 116

302 P.3d 877

STATE of Washington, Respondent,

v.Talyn K.J. BENITEZ, Appellant.

No. 42420–7–II.

Court of Appeals of Washington, Division 2.

June 11, 2013.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

Katherine Lee Svoboda, Grays Harbor Co. Pros. Ofc., Montesano, WA, for Respondent.

QUINN–BRINTNALL, J.

[175 Wash.App. 119]¶ 1 After Talyn Benitez waived his right to a jury trial, the trial court found him guilty of felony indecent exposure. Benitez argues that the charge could not have been elevated to a felony because his prior conviction was a juvenile offense rather than an adult felony conviction and that under the law of the case doctrine, the State was required to prove that Benitez exposed himself to another. Benitez also argues that under Gunwall,¹ the right to a jury trial under the Washington State Constitution is broader than the right under the United States Constitution and cannot be waived, rendering Benitez's bench trial unconstitutional or, alternatively, that his jury trial waiver was invalid because he was not fully informed of his right to a jury trial prior to waiving it. We hold that the plain language of the indecent exposure statute includes juvenile adjudications for sex offenses that are classified as felonies and there was sufficient evidence to support the trial court's guilty verdict. In addition, we hold that bench trials are constitutional and that Benitez's jury trial waiver was valid. We affirm.

FACTS

¶ 2 On March 27, 2011, Scott Miller was doing yard work with James Shawyer and Brian Smith. At one point, Miller went out to the public access alley behind his house. In the alley, Miller observed Benitez leaning against a tree and looking into the adjacent yard where two young children were playing. Miller could see Benitez “physically masturbating with his genitals in his hand.” Report of Proceedings (RP) (May 24, 2011) at 17–18. When Benitez began to leave the alleyway, Miller asked him to stop and wait on the porch step while he called the police. Officer Nicholas Fosse of the Montesano Police Department responded to Miller's call and arrested Benitez.

¶ 3 On May 9, 2011, the State filed an amended information charging Benitez with indecent exposure. The amended information alleged

[t]hat the said defendant, TALYN K.J. BENITEZ, in Grays Harbor County, Washington, on or about March 27, 2011, did intentionally make an open and obscene exposure of his person to another, knowing that such conduct was likely to cause reasonable affront or alarm and the defendant having previously been convicted of child molestation in the first degree, Grays Harbor Juvenile Court cause number 09–8–150–1; a sex offense as defined in RCW 9.94A.030.

Clerk's Papers (CP) (Oct. 6, 2011) at 1. Benitez's prior conviction elevated the indecent exposure charge from a misdemeanor to a felony. The State also alleged two aggravating factors: (1) The defendant committed the offense for the purpose of his sexual gratification and (2) the defendant committed the offense shortly after being released from incarceration.

¶ 4 On May 11, 2011, Benitez waived his right to a jury trial. The written waiver informed Benitez that he had the right to a jury of 12 citizens and that the State was required to “convince all of the twelve citizens (the jurors) of [his] guilt beyond a reasonable doubt.” Suppl. CP at 32. Benitez's defense counsel also signed the waiver that stated that he had discussed the right to a jury trial with Benitez and that he believed Benitez was waiving the right to a jury trial voluntarily, knowingly, and intelligently. The trial court reviewed the waiver with Benitez before accepting it.

¶ 5 A bench trial was held on May 24, 2011. Miller and Officer Fosse both testified. Shawyer also testified that he observed Benitez leaving the alleyway. The State introduced a certified copy of Benitez's juvenile adjudication for first degree child molestation. The State also introduced a certified copy of jail records documenting Benitez's release from jail on January 9, 2011.² Benitez testified that he was walking home from the bus station and had not been in the alleyway.

¶ 6 The trial court found Benitez guilty of felony indecent exposure. The trial court also found that Benitez committed the crime for the purpose of sexual gratification and shortly after he was released from incarceration. The trial court entered written findings of fact and conclusions of law on May 31, 2011. The trial court sentenced Benitez to an exceptional sentence of 36 months, which included the mandatory 12–month sexual motivation enhancement. Benitez timely appeals.³

ANALYSIS

Sufficiency of the Evidence

¶ 7 Benitez presents two arguments contending that insufficient evidence supports the trial court's guilty verdict. First, Benitez argues that the indecent exposure charge should not have been elevated to a felony because a juvenile adjudication of guilt for first degree child molestation is not a felony conviction. Second, Benitez argues that the law of the case doctrine requires the State to prove all elements alleged in the information. In this case, the information included the language “to another,” and Benitez alleges that the State failed to present sufficient evidence to prove that he exposed himself “to another.” Because the definition of “conviction” expressly includes juvenile adjudications, Benitez's juvenile adjudication for first degree child molestation elevates the indecent exposure charge to a felony. Furthermore, the law of the case doctrine does not apply to bench trials and the State presented sufficient evidence to prove the statutory elements of indecent exposure.

Juvenile Adjudication

¶ 8 Under RCW 9A.88.010(2)(c), an indecent exposure charge is elevated from a misdemeanor to a felony if the defendant “has previously been convicted ... of a sex offense as defined in RCW 9.94A.030.” Under former RCW 9.94A.030(45)(a)(i) (2010), a sex offense is defined as “[a] felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.132.” Benitez argues that because a juvenile offense is not a felony, Benitez's juvenile adjudication “does not qualify as a ‘sex offense’ for purposes of indecent exposure.” Br. of Appellant at 7. But Benitez misreads the indecent exposure statute and his claim fails.

¶ 9 Under RCW 9.94A.030(9), a conviction is “an adjudication of guilt pursuant to Title 10 or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of guilty.” Title 13 governs juvenile courts and juvenile offenders. When the definitions of both “conviction” and “sex offense” are used, the indecent exposure statute would read: Indecent exposure is a class C felony if the person has a previous adjudication of guilt pursuant to Title 10 or 13 RCW ... of a felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.132. RCW 9A.88.010(2)(c). Therefore, the State is required to prove that (1) Benitez had an adjudication of guilt under either Title 10 or 13 RCW and (2) the offense is classified as a felony under ch. 9A.44 RCW. RCW 9.94A.030(9); former RCW 9.94A.030(45)(a)( l ).

¶ 10 The State presented a certified copy of Benitez's juvenile adjudication which proves he pleaded guilty to first degree child molestation. First degree child molestation is a class A felony. RCW 9A.44.083(2). Therefore, Benitez's juvenile adjudication is a “conviction” under RCW 9.94A.030(9) and first degree child molestation is a “sex offense” under former RCW 9.94A.030(45)(a)(i). Accordingly, the State presented sufficient evidence to prove that Benitez's indecent exposure charge was elevated from a misdemeanor to a felony under RCW 9A.88.010(2)(c).

Law of the Case Doctrine

¶ 11 Benitez also challenges the sufficiency of the evidence proving that he exposed himself “to another.” Although the element of exposing oneself “to another” is not a statutory element of the crime of indecent exposure, Benitez argues that the State was required to prove this additional element because it was included in the information.⁴ But contrary to Benitez's assertion, the law of the case doctrine does not apply to bench trials. Therefore, the State is required to have presented sufficient evidence to prove only the statutory elements of the crime. Because Benitez challenges the sufficiency of the evidence proving that he exposed himself to another and the State was not required to prove this element, Benitez's second sufficiency of the evidence claim fails.

¶ 12 Benitez argues that based on State v. Hickman, 135 Wash.2d 97, 101–03, 954 P.2d 900 (1998), the information became the law of the case and the State was required to prove the additional element of exposing oneself to another. In Hickman,our Supreme Court held that if the parties do not object to jury instructions, the jury instructions become the law of the case. 135 Wash.2d at 102, 954 P.2d 900. In a criminal case, if the State adds an unnecessary element in the “to convict” instruction without objection, the State assumes the burden of proving the added element. Hickman, 135 Wash.2d at 102, 954 P.2d 900.

¶ 13 But the law of the case doctrine applies to jury instructions, not bench trials. State v. McGary, 37 Wash.App. 856, 860, 683 P.2d 1125,review denied,102 Wash.2d 1024, 1984 WL 287690 (1984). Division One of this court specifically addressed this issue in State v. Hawthorne, 48 Wash.App. 23, 27, 737 P.2d 717 (1987). In Hawthorne, the court rejected the contention that the law of the case doctrine applies to bench trials. 48 Wash.App. at 27, 737 P.2d 717. Therefore, the State was required to prove only the statutory elements of the crime charged. Hawthorne, 48 Wash.App. at 27, 737 P.2d 717;see also State v. Munson, 120 Wash.App. 103, 107, 83 P.3d 1057 (2004) (law of the case doctrine does not apply to bench trials, therefore the State is not required to prove all the alternatives alleged in the information)...