State v. Bobenhouse

• Decision Date: 21 February 2008
• Docket Number: No. 25673-1-III.,25673-1-III.
• Citation: 177 P.3d 209,143 Wn. App. 315
• Parties: STATE of Washington, Respondent, v. Phillip J. BOBENHOUSE, Appellant.
• Court: Washington Court of Appeals

177 P.3d 209

143 Wn. App. 315

STATE of Washington, Respondent, v. Phillip J. BOBENHOUSE, Appellant.

No. 25673-1-III.

Court of Appeals of Washington, Division 3, Panel Four.

February 21, 2008.

Dennis W. Morgan, Attorney at Law, Ritzvfile, WA, for Appellant.

Benjamin Curler Nichols, Asotin County Prosecutors Office, Asotin, WA, for Respondent.

SWEENEY, C.J.

¶ 1 This is an appeal from convictions for multiple counts of rape of a child and incest. The defendant forced his children—a son and a daughter—to have sexual intercourse. And the defendant raped his son over a period of time. The court properly concluded that the defendant was guilty of incest as an accomplice. It was not necessary for the State to show that the defendant actually had sex with his children to prove incest; using his children to accomplish his crimes was sufficient. And the failure of the court to require a unanimous verdict was error but harmless because the jury had no way to discriminate between the two acts supporting the convictions for the child rapes. We affirm the convictions. We also affirm the defendant's exceptional minimum sentence as consistent with the constitutional limitations imposed by the Blakely¹ decision.

FACTS

¶ 2 Phillip J. Bobenhouse forced his children, John Doe (age six to eight during the relevant period) and Jane Doe (age four to seven during the relevant period), to engage in sexual intercourse with each other. Mr. Bobenhouse also forced his son John to suck on his penis, and Mr. Bobenhouse also put his finger in John's anus. Child Protective Services referred the matter to the Asotin County Sheriffs Office in August 2005 after the two children reported that their father had sexually abused them.

¶ 3 Mr. Bobenhouse had pleaded guilty in January 2005 to third degree assault of a child and tampering with a witness. Following a bench trial in November 2005, a judge also found him guilty of two counts of second degree assault of a child and one count of second degree assault. All of these convictions were for assaults on his wife and children. The court sentenced him to a total of 102 months for the November 2005 convictions.

¶ 4 While he was serving his sentence on the 2005 convictions, the State charged Mr. Bobenhouse with two counts of first degree rape of a child and two counts of first degree incest. The State amended the information on the date of trial to include an additional count of first degree rape of a child. Ultimately the State charged Mr. Bobenhouse with:

• Count 1: First degree rape of a child: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with John Doe, who was less than 12 years old and not married to the defendant, who was at least 24 months older.

• Count 2: First degree rape of a child: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with John Doe, who was less than 12 years old and not married to the defendant, who was at least 24 months older.

• Count 3: First degree rape of a child: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with Jane Doe, who was less than 12 years old and not married to the defendant, who was at least 24 months older.

• Count 4: First degree incest: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with John Doe, known by the defendant to be related to him.

• Count 5: First degree incest: Between June 4, 2002 and November 11, 2004, the defendant engaged in sexual intercourse with Jane Doe, known by the defendant to be related to him.

¶ 5 The jury found him guilty of all charges on August 1, 2006. The court found the necessary aggravating facts to support an exceptional minimum sentence and sentenced Mr. Bobenhouse to a minimum of 600 months on each rape count, to run concurrently. He appeals both his convictions and his sentence.

DISCUSSION

SPEEDY TRIAL

¶ 6 Mr. Bobenhouse contends he was denied the right to a speedy trial guaranteed him by court rule. CrR 3.3. We review the application of the speedy trial rules de novo. State v. Nelson, 131 Wash.App. 108, 113, 125 P.3d 1008, review denied, 157 Wash.2d 1025, 142 P.3d 609 (2006). Objections to a trial date on speedy trial grounds must be made within 10 days after notice of the trial date is given. CrR 3.8(d)(3). And any party who fails, for any reason, to move for a trial date within the time limits of CrR 3.3 loses the right to object. CrR 3.3(d)(3); State v. Carney, 129 Wash.App. 742, 748, 119 P.3d 922 (2005).

¶ 7 Mr. Bobenhouse did not object at any time to the dates set for trial. Accordingly, the last allowable date for his trial was August 29, 2006, the date set for trial after his last motion for a continuance. CrR 3.3(d)(4). And his trial began on that date. Mr. Bobenhouse then, waived his right to object to a violation of the speedy trial rule. Mr. Bobenhouse also raises the question of speedy trial by claiming that his lawyer was ineffective for failing to raise the issue in the trial court. We take up that assignment of error along with his other claim of ineffective assistance later in this opinion.

ACCOMPLICE LIABILITY FOR ACTS OF THE CHILDREN

¶ 8 Mr. Bobenhouse contends he was improperly charged with first degree rape of a child (counts 2 and 3) and first degree incest (count 5). He asserts the acts alleged in these counts did not constitute crimes because he did not have sexual intercourse with the children; the children had sexual intercourse with each other. He argues then that he cannot legally be an accomplice to a crime because no crime was committed. And he also argues that there was no crime he could be an accomplice to because the children, both under the age of eight, were incapable of committing crimes. And indeed, that is what RCW 9A.04.050 says.

¶ 9 Mr. Bobenhouse's challenges to these convictions essentially argue the legal impossibility of satisfying the elements of first degree rape of a child or first degree incest because the actual perpetrators of the acts were children. And children cannot legally commit the crimes of rape or incest as charged here. His argument raises a question of law and so our review is de novo. State v. Womac, 160 Wash.2d 643, 649, 160 P.3d 40 (2007).

¶ 10 In counts 2 and 3, the State charged Mr. Bobenhouse with first degree rape of a child. The elements of this crime are (1) sexual intercourse with another (2) who is less than 12 years old and (3) not married to the perpetrator, and (4) the perpetrator is at least 24 months older than the victim. RCW 9A.44.073(1). John and. Jane were both younger than 12 and were not married. Mr Bobenhouse did not have sexual intercourse with either of them. And neither of them was 24 months older than the other. Incest, as charged in count 5, requires proof that a person engaged in sexual intercourse with a person he or she knew to be related by family. RCW 9A.64.020.

¶ 11 But Mr. Bobenhouse's criminal culpability does not rest on a showing of actual sexual contact with these children, at least for these charges. The State claimed and proved that he effected the child rape and the incest as an accomplice.

¶ 12 "A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable." RCW 9A.08.020(1). A person is legally accountable when "[a]cting with the kind of culpability that is sufficient for the commission of the crime, he causes an innocent or irresponsible person to engage in such conduct." RCW 9A.08.020(2)(a).

¶ 13 Mr. Bobenhouse caused John to have sexual intercourse with Jane. Both children were innocent or irresponsible persons. RCW 9A.08.020(2)(a). He argues, nonetheless, that no crime was committed because the jury could not find beyond a reasonable doubt that the principal for the crime—John or Jane—was 24 months older than the victim (the other child). And he says that these children were incapable of committing a crime, in any event, because they were under the age of eight. RCW 9A.04.050 (children under the age of eight are incapable of committing a crime).

¶ 14 Mr. Bobenhouse's culpability is based on forcing innocent people (his children) to engage in conduct that would constitute a crime if Mr. Bobenhouse engaged in the same conduct. RCW 9A.08.020(2)(a). See State v. BJS, 72 Wash.App. 368, 371-72, 864 P.2d 432 (1994) (although the defendant did not personally touch the victims, she was legally accountable for child molestation committed by one three-year-old against another), abrogated on other grounds by State v. Lorenz, 152 Wash.2d 22, 32, 93 P.3d 133 (2004). Mr. Bobenhouse used these children as, instruments for his own criminal conduct. He effectively reduced the children to instruments that achieved the desired end: sexual intercourse with a child. The State proved the necessary elements of these crimes by accomplice liability.

ADEQUACY OF THE CHARGING INFORMATION

¶ 15 Mr. Bobenhouse next contends that the elements instructions on counts 2. (rape), 3 (rape), and 5 (incest) outlined elements of accomplice liability that were not alleged in the information.

¶ 16 The State must inform Mr. Bobenhouse of the charges against him. State v. Kjorsvik, 117 Wash.2d 93, 101, 812 P.2d 86 (1991). But that right is not violated when the charging document fails to expressly charge accomplice liability. State v. McDonald, 138 Wash.2d 680, 688, 981 P.2d 443 (1999); State v. Davenport, 100 Wash.2d 757, 764-65, 675 P.2d 1213 (1984). It is constitutionally permissible to charge a person as a principal and convict him as an accomplice, as long as the court instructs the jury on accomplice liability. Davenport, 100 Wash.2d at 764-65, 675 P.2d 1213. And the jury here was instructed on accomplice liability. Mr. Bobenhouse was, accordingly, properly convicted of the charges against him.

UNANIMITY INSTRUCTION

¶ 17 John testified that Mr. Bobenhouse ordered him to suck Mr. Bobenhouse's penis...