State v. Corder, No. 23315-4-III (WA 1/12/2006)
| Decision Date | 12 January 2006 |
| Docket Number | No. 23315-4-III,23315-4-III |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. TOD SHELBY CORDER, Appellant. |
Appeal from Superior Court of Benton County. Docket No: 03-1-01191-0. Judgment or order under review. Date filed: 08/13/2004. Judge signing: Hon. Robert G Swisher.
Counsel for Appellant(s), James Edward Egan, Attorney at Law, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Counsel for Respondent(s), Terry Jay Bloor, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Ave, Kennewick, WA 99336-2341.
Tod Corder pleaded guilty to two counts of first degree rape of a child, one count of second degree rape of a child, one count of third degree rape of a child, and two counts of possession of depictions of minors engaged in sexually explicit conduct. The court imposed an exceptional sentence of 600 months. On appeal, Mr. Corder raises several issues. He contends that: (1) the information charging him with two counts of possession of depictions of a minor engaged in sexually explicit conduct failed to allege the essential element of knowledge; (2) the information lists the incorrect age for J.B. on the second count of first degree rape of a child, and this error should be strictly construed against the State to reduce this charge to second degree rape of a child; (3) the rule of lenity should be applied to the factual determination of when the second degree rape of J.C. occurred in order to preclude the application of RCW 9.94A.712; (4) the charges of first, second, and third degree rape of a child are unconstitutionally overbroad; (5) the charge of third degree rape of a child has an implied element of knowledge or intent; and (6) trial counsel provided ineffective assistance because of counsel's stipulation to all of the facts submitted to the trial court by the State in support of an exceptional sentence and the failure of counsel to inform Mr. Corder of his right to insist on specific performance of the plea agreement.
We affirm Mr. Corder's convictions and sentence for the charges of first, second, and third degree rape of a child; reverse and dismiss the charges of possession of depictions of a minor engaged in sexually explicit conduct without prejudice to the State's ability to refile; and remand this case to the trial court for correction of the scrivener's error in the listing of J.B.'s birth date in the information.
Tod Corder is the natural father of J.C., who was born on April 17, 1988. Mr. Corder gained full custody of J.C. when she was five years old. He first engaged in sexual contact with J.C. when she was about six years old. The sexual abuse escalated from initial touching, to oral sex, and culminated in sexual intercourse.
On December 9, 2003, when she was 15 years old, J.C. reported to a school counselor and an officer at the Richland Police Department that she was being sexually molested by her father. According to J.C., her father first initiated sexual intercourse in 2001, and the intercourse occurred continually two to three times a week thereafter. J.C. also told the law enforcement officer of a list generated by her father known as the `punishment/rewards' list. Clerk's Papers (CP) at 150-51. The police found the list in a computer file on Mr. Corder's home computer. The list required J.C. to perform sex acts in order to be granted ordinary privileges such as shopping or spending time with her friends.
The punishments/rewards list allocated a point value to various combinations of sexual acts that included forcing J.C. to expose herself to strangers, tying her up in restraints prior to intercourse, urinating on her, and anal intercourse. J.C. was required to complete a minimum of 20 points each week.
Further search of Mr. Corder's computer revealed thousands of images of child pornography. Many of these images were of J.C., some taken when she was as young as 10 years old. Police investigators discovered that at least one of the sexually explicit pictures of J.C. from Mr. Corder's computer was posted on an Internet Web site. Law enforcement officers also found numerous videotapes and photos of Mr. Corder and J.C. having sex. One of these tapes includes images of J.C. and J.B.1 engaging in sexual conduct with one another and then both performing oral sex on Mr. Corder.
Detective Roy Shepherd testified that J.B. was approximately 10 years old at the time the tape was made, and J.C. was about 11 years old. Based on the materials uncovered in Mr. Corder's home and on the statements given by J.C., the State charged Mr. Corder with two counts of first degree child rape (one count based on the rape of J.C. and one based on the rape of J.B.); one count of second degree child rape; one count of third degree child rape; and two counts of possession of depictions of minors engaged in sexually explicit conduct.
Mr. Corder pleaded guilty to all six counts. There was some dispute between the parties as to what constituted the maximum sentence for the charge of third degree rape of a child, but all of the parties agreed that the State's recommendation under the plea agreement was to be a sentence of 600 months. This is the sentence that the State did recommend to the trial court.
Mr. Corder was sentenced on August 13, 2004—the same day as his sentencing hearing. During the sentencing hearing, defense counsel stipulated on the record that the facts submitted by the State in support of an exceptional sentence were true beyond a reasonable doubt. Defense counsel reiterated this stipulation a second time, stating, `I'm not stipulating to the exceptional sentence, but the facts with which the Court could consider any sentence given to my client in this case, we're stipulating to those.' Report of Proceedings (RP) (Aug. 13, 2004) at 19.
The trial court entered findings of fact based upon the information provided by the State and imposed an exceptional sentence of 600 months for Mr. Corder's offenses. This was approximately double the standard range for first degree rape of a child, the most serious offense for which Mr. Corder was charged.
Mr. Corder contends that the information charging him with two counts of possession of depictions of a minor engaged in sexually explicit conduct omits the essential statutory element of knowledge. A challenge to the sufficiency of the charging document is a constitutional question that can be raised for the first time on appeal. State v. Holt, 104 Wn.2d 315, 321, 704 P.2d 1189 (1985).
Both the federal and state constitutions guarantee the accused the right to be informed of the nature and cause of action against him. U.S. Const. amend. VI; Const. art. I, sec. 22 (amend. 10). The requirement that the charging document contain all essential facts and elements is also known as the `essential elements' rule. State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991). The primary goal of the essential elements rule is to give notice to defendants of the nature of the accusations against them so that they can prepare an adequate defense. Id. at 101.
Due process requires that a guilty plea be knowing, voluntary, and intelligent.
In re Pers. Restraint of Mayer, 128 Wn. App. 694, 703, 117 P.3d 353 (2005). A guilty plea cannot be knowing and intelligent if the defendant has been misinformed about the elements of the offense. Id.
The court asks two questions when the sufficiency of the charging document is raised for the first time on appeal:
State v. Sims, 119 Wn.2d 138, 141, 829 P.2d 1075 (1992) (quoting Kjorsvik, 117 Wn.2d at 105-06). The first prong of the test looks to the face of the charging document itself. There must be some language in the document that provides an indication of the missing element. State v. Vangerpen, 125 Wn.2d 782, 788 n.10, 888 P.2d 1177 (1995). `An information {that} is not challenged until after the verdict is liberally construed in favor of validity.' State v. Ralph, 85 Wn. App. 82, 84, 930 P.2d 1235 (1997).
Mr. Corder was charged with two counts of possession of depictions of a minor engaged in sexually explicit conduct under RCW 9.68A.070:
A person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.
The knowledge element of this statute requires the State to prove that the defendant was not only aware that the materials were in his or her possession, but also knowledge of the general nature of the materials possessed. State v. Rosul, 95 Wn. App. 175, 181-82, 974 P.2d 916 (1999).
The information charging Mr. Corder with possession of depictions of a minor engaged in sexually explicit conduct gave Mr. Corder the following notice of the charges:
COUNT V
That the said TOD SHELBY CORDER in the County of Benton, State of Washington, on or about the 7th day of December, 2003, in violation of RCW 9.68.070 did possess a picture of a minor GIRL engaged in sexually explicit conduct, to-wit: SEXUAL INTERCOURSE, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.
COUNT VI
That the said TOD SHELBY CORDER in the County of Benton, State of Washington, on or about the 7th day of December, 2003, in violation of RCW 9.68.070 did possess a picture of a minor GIRLS AND A BOY engaged in sexually explicit conduct, to-wit: VARIOUS POSES IN STILL PHOTOS, VARIOUS EXHIBITIONS OF BREASTS WHILE GIRLS WERE ON A WEBCAM, ORAL SEX BETWEEN A BOY AND A GIRL, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.
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