State v. Borboa

• Decision Date: 01 June 2006
• Docket Number: No. 76547-2.,76547-2.
• Citation: 135 P.3d 469,157 Wn.2d 108
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Escolastico Casey BORBOA, Respondent.

Page 469

135 P.3d 469

157 Wn.2d 108

STATE of Washington, Petitioner, v. Escolastico Casey BORBOA, Respondent.

No. 76547-2.

Supreme Court of Washington, En Banc.

Argued October 18, 2005.

Decided June 1, 2006.

Scott Douglas Jackson, Clark County Prosecutor's Office, Vancouver, for Petitioner/Appellant.

David Schultz, Attorney at Law, Camas, for Appellee/Respondent.

Sheryl Gordon McCloud, Mark A. Larranaga, Walsh & Larranaga, Seattle, for Amicus Curiae Washington Association of Criminal Defense Lawyers.

FAIRHURST, J.

¶ 1 After a jury convicted Escolastico Casey Borboa of kidnapping in the first degree, assault of a child in the second degree, and rape of a child in the first degree, the sentencing court imposed a maximum sentence of life imprisonment as required by statute. The sentencing court also imposed an "exceptional minimum sentence," which is a sentence in excess of the standard range sentence for the crimes charged, based on two aggravating factors. Borboa challenges the constitutionality of his exceptional minimum sentence under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He also challenges his underlying convictions, alleging that the trial court improperly admitted child hearsay evidence and that the prosecuting attorney committed misconduct warranting a new trial. We hold that Blakely does not apply to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed. We also hold that the trial court's admission of the hearsay statements was not improper and that the prosecuting attorney did not commit misconduct warranting a new trial. Thus, we affirm Borboa's convictions and sentence and reverse the Court of Appeals in part.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 On August 16, 2002, Samuel Bernal Rivera and Maria Ramirez Valverdes visited Bagley Park in Vancouver, Washington, with their three children, including their two year old daughter, W.R. At about 9:00 p.m., Rivera and Valverdes realized they could not find W.R., who was last seen walking toward the parking lot. Rivera, Valverdes, and their friends searched for W.R., but when they could not find her they called the police and reported her missing.

¶ 3 About an hour later, W.R. appeared at the door of a house about three miles away from Bagley Park. W.R. was bleeding from her mouth and wearing no clothing. Police officers responded to the scene with Rivera, who identified W.R. The police took W.R. to Southwest Washington Medical Center, where emergency room physician Dr. Jeff McDonald examined W.R. and concluded that she "was struck forcefully on the right side of the face" by a "blunt object" consistent with a fist. 5B Report of Proceedings (RP) at 543. W.R. also saw Dr. John Stirling, a pediatrician specializing in child abuse cases. Dr. Stirling discovered an abrasion outside of W.R.'s hymen and inside of her labia. Based on his examination, Dr. Stirling concluded that "there was some penetration past the labia." 5BRP at 532.

¶ 4 Because neither W.R. nor her parents speak English, the hospital interpreter, Abigail Eden, was present with W.R. and her family at the hospital. At trial, Eden testified that W.R. made statements about the incident during her physical examination. W.R. stated that a man covered her eyes, hit her on the face, took her through some bushes, and put her in a car. Eden described W.R. as "just terrified" when she was at the hospital. 5BRP at 579. Eden also stated that W.R. "was clinging to her dad" and that "she had a really hard time letting people at first touch her or try to clean her up." Id. Eden testified that W.R. made her statements to her father, and that her statements were not in response to questions from authorities.

¶ 5 W.R.'s mother was also present when W.R. made statements at the hospital. Valverdes testified that W.R. stated that a stranger had covered her mouth, grabbed her by the hair, and hit her. W.R. also said that he removed her clothes and grabbed her private parts, using the word "poosha" for her vagina. 4RP at 189. Valverdes described W.R. as "affected emotionally" while she made the statements and testified that she was "crying and clinging on" and that "[s]he couldn't sleep." 4RP at 188. Valverdes also testified that W.R.'s behavior changed after the incident and that she became more "rebellious" and "angry," and that she had slapped one of her siblings. 4RP at 190, 192. Valverdes also testified that she observed W.R. simulating sexual intercourse with her dolls and then hit them and tell them that "children shouldn't cry." 4RP at 191-92.

¶ 6 Police officers investigating the incident located Borboa's vehicle about a block away from the home where W.R. was discovered. Inside the vehicle, officers found W.R.'s pants and panties. On a trail near the car, officers discovered several other items, including a broken pair of eyeglasses and a set of car keys for Borboa's vehicle. Further down the trail, officers located W.R.'s sweatshirt near droplets of her blood.

¶ 7 On the morning of August 17, 2002, a police officer arrested Borboa while he was walking near Bagley Park. After his arrest, Borboa admitted to detectives that the police had questioned him while he was sitting in his car in the area of Bagley Park at about 8:00 p.m. the previous evening, the evening of W.R.'s disappearance. Borboa told the detectives that after his encounter with the police, he had loaned his vehicle to an unknown woman who never returned it. He stated that he was looking for his vehicle at the time of his arrest. One of the detectives noted that Borboa had a scratch on his face and the palm of his hand that appeared "fairly recent." 6BRP at 779. The police seized the white t-shirt Borboa was wearing at the time of his arrest. The crime lab determined that traces of blood on the shirt had the same DNA (deoxyribonucleic acid) characteristics as W.R.'s blood.

¶ 8 The prosecuting attorney charged Borboa with kidnapping in the first degree with a sexual motivation enhancement (count I), assault of a child in the second degree (count II), and rape of a child in the first degree (count III). The prosecuting attorney also alleged alternative charges of attempted rape of a child in the first degree, child molestation in the first degree, and attempted child molestation in the first degree.

¶ 9 Prior to trial, the court conducted a hearing to determine W.R.'s competency and the admissibility of W.R.'s out of court statements to Valverdes. Both the prosecuting attorney and Borboa's counsel agreed that W.R. lacked competency to testify at trial. After hearing Valverdes' testimony at the hearing, the trial court determined that W.R.'s out of court statements were reliable and admitted the statements pursuant to RCW 9A.44.120 and as excited utterances.

¶ 10 A jury convicted Borboa of count I, including the sexual motivation enhancement, as well as of counts II and III. For all three counts, the sentencing court imposed sentences under RCW 9.94A.712, which required the court to impose a maximum sentence of life imprisonment as well as a minimum sentence. The standard sentencing range for count I was 77 to 102 months, for count II was 57 to 75 months,¹ and for count III was 138 to 184 months. The court imposed exceptional minimum sentences of 600 months on all three counts, to run concurrently. In addition to the aggravating factor of sexual motivation for count I, which was found by the jury, the court found the aggravating factors of deliberate cruelty and particular vulnerability based in part on the extreme youth of the victim for all three counts.

¶ 11 Borboa appealed his convictions and his exceptional minimum sentence to Division Two of the Court of Appeals. In June 2004, while Borboa's appeal was pending, the United States Supreme Court decided Blakely and the parties submitted supplemental briefing to the Court of Appeals on the exceptional minimum sentence issue. The Court of Appeals upheld Borboa's exceptional minimum sentence on count I because a jury found the aggravating factor of sexual motivation. State v. Borboa, 124 Wash.App. 779, 791, 102 P.3d 183 (2004). However, the court held that the trial court found the additional two aggravating factors in violation of the sixth amendment to the United States Constitution and reversed the exceptional minimum sentences on counts II and III. Id. In the unpublished portion of its opinion, the court held that the trial court properly admitted W.R.'s hearsay statements and that the prosecuting attorney did not commit misconduct warranting a new trial. State v. Borboa, No. 30330-2-II, slip op. (unpublished portion) at 27, 32-33 (Wash. Dec. 7, 2004). As a result, the court affirmed Borboa's convictions and remanded for resentencing on counts II and III. Id. at 41.

¶ 12 Subsequent to Division Two's decision in Borboa, Division One of the Court of Appeals reached the opposite conclusion and held that judicial fact-finding to support an exceptional minimum sentence imposed under RCW 9.94A.712 does not violate the Sixth Amendment if the minimum term does not exceed the maximum term imposed. State v. Clarke, 124 Wash.App. 893, 902, 103 P.3d 262 (2004). We accepted review to determine the applicability of Blakely to exceptional minimum sentences imposed under RCW 9.94A.712 and to resolve the conflict between the divisions of the Court of Appeals. State v. Borboa, 154 Wash.2d 1020, 116 P.3d 398 (2005); RAP 13.4(b)(2). This court heard Borboa as a companion case to Clarke.

II. ISSUES

A. Whether Blakely applies to an exceptional minimum sentence imposed under RCW 9.94A.712 that does not exceed the maximum sentence imposed.

B. Whether the trial court erred by admitting W.R.'s out of court statements under RCW 9A.44.120.

C. Whether the prosecuting attorney committed misconduct justifying a new trial.

III. ANALYSIS

A. Blakely does not apply to an exceptional minimum sentence imposed...