State v. Bunker
| Decision Date | 13 January 2015 |
| Docket Number | 45006-2-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LEO BRITTON BUNKER, III, Appellant. |
UNPUBLISHED OPINION
A jury found Leo Bunker, III guilty of second degree rape (counts I and II), felony harassment (count III), and violation of no-contact orders (VNCO) (counts IV and V). Bunker appeals arguing that (1) the State violated his constitutional right to notice of the charges against him because the charging document failed to properly allege an essential element of the VNCO charges, counts IV and V, (2) he was denied his right to a unanimous jury, (3) the evidence was insufficient to convict him of the VNCO charges, counts IV and V, and to prove two separate acts of second degree rape, (4) the trial court erred by admitting evidence of Bunker's prior misconduct under ER 404(b), and (5) the trial court erred by imposing a community custody condition prohibiting contact with minors. We hold that the charging information was not constitutionally deficient, there was sufficient evidence to support Bunker's convictions for second degree rape in count II and VNCO in counts IV and V, and the trial court did not abuse its discretion by admitting evidence of Bunker's prior misconduct. But we accept the State's concession that the trial court violated Bunker's right to a unanimous jury for count IV and that it erred by imposing a community custody condition prohibiting contact with minors. Therefore, we vacate Bunker's conviction on count IV, affirm the remaining convictions, and remand for resentencing consistent with this opinion.
L.H.[1] has known Bunker since childhood. L.H. and Bunker lost touch for over 30 years, but reconnected in August 2011. Bunker and L.H. subsequently moved in together and commenced a dating relationship.
Shortly thereafter, Bunker exhibited controlling behavior. He became possessive, demanding, and aggressive physically and sexually towards L.H. Bunker reportedly told L.H. that she "had no choice" in anything he wanted to do to her sexually and regularly forced L.H. to engage in sexual acts against her will. 1 Report of Proceedings (RP) at 25. Bunker also threatened L.H., telling L.H. that she could not leave because she belonged to him and that if she did leave, he would kill her. L.H. believed that Bunker would carry out these threats because she knew that Bunker had previously assaulted and hospitalized his ex-wife.
Despite L.H.'s wishes to the contrary, Bunker and L.H. were married on October 8. A few days later, Bunker became enraged when he learned that L.H. had been on the phone with a man. Bunker shoved L.H. onto the bed and pinned her down. Bunker bit L.H. and grabbed her around the throat, making it difficult for her to breathe. L.H. told Bunker to stop, that "[she didn't] want to do this, " and that she was hurt. 1 RP at 56. Instead, Bunker removed L.H.'s pants and forced her to have vaginal intercourse.
L.H. testified that she had sex with Bunker nearly every day after the October 11 incident and that she would frequently tell Bunker to stop when he performed sexual acts that she did not like. L.H. described sex with Bunker after the October incident as "pretty much always forceful." 2 RP at 75. Specifically, L.H. claimed that she told Bunker to stop when they had oral sex, that Bunker would not stop, and that Bunker told L.H. that she "didn't have any choice what [sic] he wanted to do." 2 RP at 74.
After Bunker began serving a prison sentence in early November for an unrelated crime, L.H. called police to report that she had been raped. L.H. then obtained a temporary protection order prohibiting Bunker from having either direct or indirect contact with her. Bunker was served with a copy of the temporary order on November 8. The order remained in effect until November 21.
Subsequently, Bunker contacted Amy and Barbara Krahn and requested that they retrieve his belongings from L.H.'s home. L.H. testified that the Krahns called her as many as 10 times and that she called the Krahns back sometime around November 9 or 10. On at least one occasion on November 14, a police officer approached the Krahns as they left L.H.'s home. Furthermore, L.H. claimed that Bunker called and text messaged her frequently after he was incarcerated, [2] but that she stopped answering those calls because Bunker was often belligerent. Bunker also wrote a letter to L.H., which, by her recollection, she received sometime after November 10.
The Stated charged Bunker by fifth amended information with two counts of second degree rape (counts I and II), one count of harassment - threat to kill (count III), and two counts of VNCO (counts IV and V) occurring between November 8 and November 14. Before trial, the State moved to introduce evidence of several of Bunker's prior convictions for assault. The State argued that L.H.'s knowledge that Bunker had previously assaulted his former wife established that L.H.'s fear of Bunker was an objectively reasonable fear. After weighing the probative value of the evidence against its potential prejudicial effect, the trial court admitted evidence of Bunker's prior conviction for second degree assault under ER 404(b) for the limited purpose of establishing the "reasonable fear" element of the harassment charge.
The jury found Bunker guilty as charged and the trial court imposed an exceptional sentence. In addition, the trial court imposed community custody conditions that prohibited Bunker from having contact with minors, frequenting locations where minors are known to congregate, or occupying positions of trust or authority over minors. Bunker appeals.
Bunker argues that the State violated his constitutional right to notice of the charges against him because the information, by which he was charged was deficient as to counts IV and V, the two counts of VNCO. Specifically, Bunker contends that the information was deficient because it failed to allege the specific statute under which the protection order had been issued. We disagree.
The Sixth Amendment to the United States Constitution provides in part, "In all . . . prosecutions, the accused shall... be informed of the nature and cause of the accusation." Article I, section 22 of the Washington Constitution provides in part, "In criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation against him."
A charging document is constitutionally insufficient if it fails to list the essential elements of a crime. State v. Ziltyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (quoting State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991)). The essential elements of a crime are those '"whose specification is necessary to establish the very illegality of the behavior charged.'" Zillyette, 178 Wn.2d at 158 (internal quotation marks omitted) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). Requiring the State to list the essential elements in the charging document ensures the defendant's right to notice of the nature of the criminal accusation against him guaranteed by the United States and Washington State constitutions. Zillyette, 178 Wn.2d at 158. Where, as here, the defendant challenges the sufficiency of the information for the first time on appeal, this court construes the document liberally in favor of validity. State v. Brown, 169 Wn.2d 195, 197, 234 P.3d 212 (2010).
Under this liberal construction rule, we will uphold the charging document if an apparently missing element may be "fairly implied" from the document's language. Kjorsvik, 117 Wn.2d at 104. We ask, "(1) [D]o the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he was nonetheless actually prejudiced by the inartful language which caused a lack of notice?" Kjorsvik, 117 Wn.2d at 105-06. If the necessary elements are neither found nor fairly implied in the charging document, we presume prejudice and reverse without reaching the question of prejudice. State v. Goodman, 150 Wn.2d 774, 788, 83 P.3d 410 (2004). We read the charging document as a whole, according to common sense and including implied facts. State v. Nonog, 169 Wn.2d 220, 227, 237 P.3d 250 (2010).
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