State v. Bobenhouse

• Decision Date: 03 September 2009
• Docket Number: No. 81413-9.,81413-9.
• Citation: 214 P.3d 907,166 Wn.2d 881
• Parties: STATE of Washington, Respondent, v. Phillip J. BOBENHOUSE, Petitioner.
• Court: Washington Supreme Court

214 P.3d 907

166 Wn.2d 881

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

No. 81413-9.

Supreme Court of Washington, En Banc.

Argued June 9, 2009.

Decided September 3, 2009.

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Petitioner.

Benjamin C. Nichols, Asotin County Prosecutor's Office, Asotin, WA, for Respondent.

C. JOHNSON, J.

¶ 1 This case involves a challenge to the defendant's convictions for multiple counts of first degree rape of a child and first degree incest. A jury convicted Phillip J. Bobenhouse of five counts, as charged, based on evidence that he forced his two minor children to have sexual intercourse with each other and on evidence that he forced his son to perform fellatio on him regularly and at least once inserted his finger into his son's anus. Bobenhouse appealed, but the Court of Appeals affirmed the convictions and the exceptional minimum sentence imposed by the trial court. State v. Bobenhouse, 143 Wash.App. 315, 177 P.3d 209 (2008). Bobenhouse's petition to this court was granted. State v. Bobenhouse, 164 Wash.2d 1021, 195 P.3d 957 (2008). Bobenhouse argues (i) that since his children were statutorily incapable of committing a crime due to their young age, the charges based on that conduct should be dismissed; (ii) that he did not actually engage in sexual intercourse with his children with respect to at least four of the five counts charged; (iii) that the jury should have been instructed on unanimity with respect to the allegations regarding the acts he committed directly against his son; and (iv) that the trial court erred in calculating his offender score and, as a consequence, the trial court erred in imposing an exceptional sentence based on an "unpunished crimes" aggravating factor. The statutes and our cases do not support Bobenhouse's claims and, to the extent any error occurred, those errors were harmless. We affirm the Court of Appeals.

FACTS

¶ 2 In this case we are dealing with several counts, based on related but differing circumstances. The victims in this case are Bobenhouse's children, John Doe and Jane Doe. During the relevant period, John Doe was between six and eight years of age and Jane Doe was between four and seven years of age. John and Jane are less than 24-months apart in age. In 2005, the State charged Bobenhouse with two counts of first degree rape of a child and two counts of first degree incest. On the date of trial, the State amended the information to add an additional count of first degree rape of a child. The charges against Bobenhouse were set out as follows:

▄ Count 1, First degree rape of a child: Between June 4, 2002 and November 11, 2004, Bobenhouse engaged in sexual intercourse with John Doe. This count was based on allegations that Bobenhouse forced his son, John, to regularly perform fellatio on him and that Bobenhouse inserted his finger into John's anus on at least one occasion.

▄ Count 2, First degree rape of a child: Between June 4, 2002 and November 11, 2004, Bobenhouse engaged in sexual intercourse with John Doe. This count was based on allegations that Bobenhouse forced John Doe to engage in sexual intercourse with Jane Doe.

▄ Count 3, First degree rape of a child: Between June 4, 2002 and November 11, 2004, Bobenhouse engaged in sexual intercourse with Jane Doe. This count was based on allegations that Bobenhouse forced Jane Doe to engage in sexual intercourse with John Doe.

▄ 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. This count relates to the allegations in Count 1, described above.

▄ 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. This count relates to the allegations in counts 2 and 3, described above.

Bobenhouse entered a general denial to these charges and presented no testimony or evidence at trial.

¶ 3 At trial, the jury did not receive a unanimity instruction with respect to count 1, first degree rape of a child (acts committed by Bobenhouse directly against John). A jury convicted Bobenhouse as charged in each of the five counts. The trial court imposed a sentence of up to life with an exceptional minimum sentence of 600 months on each rape count, to run concurrently. The trial court, and not a jury, found aggravating factors that supported this exceptional sentence. Among others, Bobenhouse challenged these issues on appeal. The Court of Appeals affirmed the trial court, and Bobenhouse's appeal to this court was accepted.

ISSUES

1. Whether a person can be held accountable for committing child rape and incest by forcing his children to have sex with each other?

2. Whether failure to give a unanimity instruction on the specific act that constituted rape and incest requires reversal?

3. Considering Blakely¹ and the relevant Washington statutory amendments, whether the trial court can impose an exceptional minimal sentence based on its own findings?

ANALYSIS

A. Legal Impossibility

¶ 4 Bobenhouse first challenges, as improperly charged, his convictions for counts 2 (rape of John by forcing him to have sexual relations with Jane), 3 (rape of Jane by forcing her to have sexual relations with John), and 5 (charge of incest arising out of counts 2 and 3). Bobenhouse contends it was legally impossible, under the statute, for the State to prove the material facts necessary to convict him of these crimes. This issue presents a question of law, which we review de novo. State v. Womac, 160 Wash.2d 643, 649, 160 P.3d 40 (2007).

¶ 5 To satisfy the requirements of proving rape of a child in the first degree under RCW 9A.44.073(1), the State must establish that "the person [had] sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim." To satisfy the requirements of proving incest in the first degree under RCW 9A.64.020, the State must establish that the person "engage[d] in sexual intercourse with a person whom he or she knows to be related to him or her, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood." Additionally, Washington presumes that children less than eight years of age are incapable of committing a crime. RCW 9A.04.050. Bobenhouse's legal impossibility claim rests on the age requirements set out in our statutes for the crimes of rape and incest and committing crimes in general.

¶ 6 Bobenhouse argues that, since both of his children were less than eight years old, under RCW 9A.04.050, no crime occurred. Bobenhouse argues that, under the statute, it is not a crime for a person to force (and watch) two children to have sexual intercourse with each other where the child victims are unrelated to him, unrelated to each other, less than 24-months apart in age, and are less than eight years of age.² To argue as such, Bobenhouse relies on RCW 9A.04.050 (children presumed incapable of committing a crime). But this argument ignores the criminal culpability imposed under the statutes. A person can be charged and convicted in certain circumstances for acts committed by another. RCW 9A.08.020(1) provides that "[a] person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable." (Emphasis added.) 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) (emphasis added).

¶ 7 Under these statutes, the person can be convicted as a principal. RCW 9A.44.073(1) (rape of a child in the first degree) requires the State to establish that "the person [had] sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim." Implicit in this statute is that the perpetrator is defined as one who causes the other person to engage in the act amounting to rape of a child in the first degree.

¶ 8 That a person in Bobenhouse's position can be convicted as a principal is consistent with or supported by State v. BJS, 72 Wash. App. 368, 371-72, 864 P.2d 432 (1994). Although the case was dismissed for insufficient evidence, the Court of Appeals noted that a defendant can be held legally accountable for child molestation based on causing conduct by one three-year-old against another, even though the defendant did not personally touch the victims. In BJS, the court also noted that such a defendant is considered the "perpetrator" for purposes of satisfying the child molestation statute and the "perpetrator's" age is used to satisfy the 36-month age difference required between the victim and the perpetrator of child molestation. We agree with this analysis and conclusion.

¶ 9 Applied here, the jury found Bobenhouse forced his children to have sexual intercourse with each other. Had Bobenhouse engaged in this conduct himself, it would have constituted the crimes of rape of a child in the first degree and incest in the first degree. Put otherwise, because of his legal accountability for John and Jane, Bobenhouse was the "perpetrator"³ in this case and, therefore, was acting as an accomplice in committing first degree rape of a child and incest against John and Jane. It is Bobenhouse's age then, like the defendant in BJS, that satisfies the required 24-month age differential.

¶ 10 Bobenhouse next argues that legislative changes following BJS require us to hold it is legally impossible to convict him on the basis that he caused one minor to have sexual intercourse with another. After BJS, the legislature amended RCW 9A.44.083(1) (child...