State v. Brown

• Citation: 780 P.2d 880,55 Wn.App. 738
• Decision Date: 18 October 1989
• Docket Number: No. 10712-1-II,10712-1-II
• Court: Court of Appeals of Washington
• Parties: The STATE of Washington, Respondent, v. Monte Orin BROWN, Appellant.

Page 738

55 Wn.App. 738

780 P.2d 880

The STATE of Washington, Respondent, v. Monte Orin BROWN, Appellant.

No. 10712-1-II.

Court of Appeals of Washington Division 2.

Oct. 18, 1989.

Curtis A. Shelton, Vancouver, for appellant.

Roger A. Bennett, Thomas C. Duffy, Deputy Pros. Atty., Vancouver, for respondent.

REED, Judge.

Monte Brown appeals his jury convictions on two counts of Indecent Liberties and four counts of Statutory Rape in the First Degree. Brown challenges: (1) the propriety of allowing an amendment of the information on the eve of trial; (2) the trial court's refusal to dismiss one count of indecent liberties and admitting evidence relating thereto; (3) the sufficiency of the evidence to convict and to support a unanimous verdict in light of the lack of specificity in the victim's testimony; (4) the court's authority to sentence him under the Sentencing Reform Act; (5) the exceptional sentence imposed; and (6) the court's refusal to give him credit for time served in California while fighting extradition. We affirm, except as to (6).

In the Fall of 1985, Julie Snyder contacted the Clark County Sheriff's Office after learning that Monte Brown was taking showers with his ten-year-old step-sister, Tammy. Snyder feared that Brown was sexually abusing Tammy, based upon his abuse of her beginning when she was Tammy's age and continuing to age 17.

Police and social workers contacted Tammy several times in their investigation. Initially, Tammy admitted that she had showered with Brown and that touching had occurred, but refused to provide further details. However, in later interviews Tammy gave police detailed information regarding the sexual contact she had experienced with Brown. Sheriff's deputies contacted Brown regarding these allegations, after which he left the State.

Based upon this information, Brown was charged with five counts of statutory rape in the first degree on October 3, 1985. The information originally alleged incidents occurring as early as 1982, but subsequent amendments (including a third amendment on the eve of trial, after jury selection) narrowed the focus to acts constituting either indecent liberties or statutory rape occurring "during the years 1984-1985."

When the original information was filed, based upon information given by the victim and her sister Julie, a warrant was obtained to search the defendant's residence for various items relating to the alleged crimes. A number of items were found, including a device known as a "penis enlarger," candles, a sexually explicit book, and two vibrators.

Several months after the information was filed, Brown was arrested in Sacramento, California, where he was discovered living under an assumed name. Brown spent 83 days confined in California jails while contesting his extradition to Washington, and made his first appearance in Clark County Superior Court on July 9, 1986.

After several delays, trial began on December 11, 1986. At trial, the State relied on Tammy's testimony, medical testimony, and the physical evidence seized from the defendant's home. Tammy's testimony included estimates of the number of times she was molested, and described the frequency of particular acts during the relevant time periods in general terms, such as "sometimes", "not very often", or "just about every day". For the most part, Tammy was not specific as to dates. ¹ Instead, she described the defendant's usual course of conduct in detail and tied particular kinds of abuse to events in her life occurring at that time. ²

The State sought to admit the "penis enlarger," a vacuum device, at trial over defense objections. Defendant argued, among other things, that the device was not relevant, and moved to dismiss Count 6, which alleged that the defendant committed indecent liberties by having the victim operate the "penis enlarger" device for his sexual gratification. He also argued that, if relevant, any probative value the device had was outweighed by its substantial prejudicial effect. The motion was denied, and the evidence was admitted.

Brown moved for dismissal at the close of the State's case, and again following the close of evidence, arguing that there was insufficient evidence to sustain a conviction. This motion was denied, and the jury was instructed that it must unanimously agree "that the same underlying criminal act has been proved beyond a reasonable doubt." See State v. Petrich, 101 Wash.2d 566, 572, 683 P.2d 173 (1984). The jury convicted the defendant on all counts.

The court determined Brown's presumptive sentencing range for each count, and after entering findings and conclusions pursuant to RCW 9.94A.120(2), imposed exceptional sentences for all but Count 6. The defendant was sentenced to 120 months for each count of indecent liberties, and 240 months for each count of statutory rape, to be served concurrently. This appeal followed.

I. AMENDMENT OF THE INFORMATION

We first consider Brown's contention that the trial court erred by allowing the prosecution to amend the information on the first day of trial, because the amended information charged a different crime. We find the defendant's argument unpersuasive.

The amended information changed one count of the information from statutory rape to indecent liberties, after the victim changed her story regarding whether the defendant penetrated her with a vibrator, and apparently dropped two other counts. The defendant objected to the amendment, but did not ask for a continuance, claim that he was misled or surprised, or otherwise make any showing of prejudice.

CrR 2.1(e) states: "Amendment. The court may permit any information ... to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced." The defendant has the burden of showing prejudice under this rule, and the fact that the defendant does not request a continuance is persuasive of lack of surprise and prejudice. State v. Gosser, 33 Wash.App. 428, 435, 656 P.2d 514 (1982); see also State v. Purdom, 106 Wash.2d 745, 748, 725 P.2d 622 (1986) (substantial rights of the defendant were violated when prosecutor was allowed to amend information on the day of trial, resulting in a different charge, without granting a continuance when one was requested, thus suggesting that failure to request a continuance may be fatal to a defendant's claim that amendment on the day of trial is error). "Where the principal element of the new charge is inherent in the previous charge and no other prejudice is demonstrated, it is not an abuse of discretion to allow amendment on the day of trial." State v. Gosser, 33 Wash.App. at 435, 656 P.2d 514.

Here, Brown did not ask for a continuance and has shown no prejudice; the amendment eliminated some charges and reduced others. The reduced charge involved the same evidence and presented no problems for the preparation of Brown's defense. The principal element of the new charge of indecent liberties, i.e., "sexual contact" (see RCW 9A.44.100), is inherent in the crime of statutory rape. Under these circumstances, it was not error to allow amendment of the information on the eve of trial.

II. REFUSAL TO DISMISS COUNT 6

Brown next challenges the trial court's admission of the "penis enlarger" into evidence, and its refusal to dismiss Count 6 of the third amended information. ³ Count 6 alleged that the defendant had Tammy operate the vacuum pump of the device to help him achieve sexual gratification. The defendant argues that because Tammy did not "touch" him during this activity, that his conduct does not establish the statutory requirement of "sexual contact" as set forth in RCW 9A.44.100(1) and (2).

Brown asserts that the crime of indecent liberties cannot be committed without direct physical contact between the perpetrator and victim. While conceding that his conduct could constitute indecent exposure involving a child under the age of 14 under RCW 9A.88.010 (a gross misdemeanor), Brown contends it cannot meet the definition of indecent liberties without necessarily elevating conduct constituting only indecent exposure to a Class B felony. We disagree.

Former RCW 9A.44.100 ⁴ provided, in relevant part:

(1) A person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

. . . . .

(b) When the other person is less than fourteen years of age;

. . . . .

(2) For the purposes of this section:

(a) "Sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party.

The crime of indecent liberties may be committed by touching through clothing. In re Adams, 24 Wash.App. 517, 519, 601 P.2d 995 (1979); see also State v. Johnson, 28 Wash.App. 459, 461, 624 P.2d 213 (1981) (although there was no evidence of direct contact between defendant's genitals and the victim, his exposure while the victim was on his lap established that such contact as occurred was sexual in character); State v. Gilpin, 756 P.2d 445, 451-52 (Mont.1988); State v. Peterson, 560 P.2d 1387, 1391 (Utah 1977). We see no reason to distinguish activity such as occurred here from these cases. In both, lack of direct contact is immaterial when the sexual nature of the contact that did occur is established.

The sexual contact between Brown and Tammy was achieved by an instrumentality which served as an extension of the person. We see no difference between such activity and fondling a child with a gloved hand. ⁵ We are satisfied that Brown's conduct is of the type the Legislature intended to proscribe. The court did not err by refusing to dismiss Count 6 of the information. Additionally, the evidence properly was admitted; the device was probative of the crime charged as it was the instrumentality of that crime, and it was corroborative of Tammy's testimony. ⁶

III. JURY UNANIMITY

We next consider Brown's contention that the...