State v. Ellison
| Decision Date | 14 June 2016 |
| Docket Number | No. 33215-2-III,33215-2-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Appellant, v. ROBERT RUSSELL ELLISON, Respondent. |
FEARING, C.J. — Robert Ellison pled guilty to sexual crimes committed at the earliest age of eleven. Neither a capacity hearing nor a finding of capacity to commit a crime preceded the conviction for the crimes. We address a question raised in other contexts but nonetheless a novel issue in our setting: whether Ellison's convictions can serve as predicate crimes for the crime of failure to register as a sex offender, despite the lack of a capacity hearing or finding? The trial court answered in the negative and dismissed the charge of failing to register. Because of the critical importance of conducting a capacity hearing before adjudging a child guilty of a crime and because of due process concerns over convicting one incapable of committing a crime, we agree with the trial court. We affirm dismissal of the charge of felony failing to register. This affirmation does not relieve Ellison from the obligation to register.
Robert Ellison was born on July 1, 1982. Between July 1, 1993 and May 25, 1995, Ellison allegedly raped two boys each who were eight years old. Ellison denies uttering any threats or using force on the victims. Ellison and the two boys lived in the same foster home. We lack precise dates for the alleged rapes, but the sexual contact may have occurred on many occasions.
On June 22, 1995, the State of Washington charged Robert Ellison with two counts of rape of a child in the first degree with the crimes occurring between July 1, 1993 and May 25, 1995. Ellison was eleven years old at the beginning of the charging period. On August 3, 1995, Robert Ellison, at age thirteen, pled guilty to two counts of first degree child rape.
The record does not show that the juvenile court, during the 1995 prosecution, performed a capacity hearing or made a determination of Robert Ellison's understanding of the wrongfulness of the criminal acts. The juvenile court found Ellison guilty and sentenced him to forty-two to fifty-six weeks in confinement and to register as a sex offender. In the statement of juvenile on plea of guilty, Ellison wrote that the crimes occurred "on or about between [sic] July 1, 1993 and May 25, 1995." Clerk's Papers(CP) at 28. The court entered no finding that Ellison engaged in a continuing course of criminal conduct.
On December 17, 1999, the State of Washington charged Robert Ellison with another crime, felony communication with a minor for immoral purposes on October 21, 1999. Ellison, at age seventeen, kissed an eleven-year-old girl and fondled her buttocks. The 1999 information alleged that Ellison had been previously convicted of felony rape of a child in the first degree. The previous felony rape convictions were critical to convicting Ellison of felony communication with a minor. Without a prior felony conviction, the State could convict Ellison only of gross misdemeanor communication with a minor. Ellison pled guilty to the felony charge of communication on December 23, 1999.
A state statute required that Robert Ellison register as a sex offender as a result of any of the three convictions. He thereafter repeatedly violated this requirement. The State of Washington serially convicted Robert Ellison for failure to register as a sex offender on November 6, 2001, May 22, 2002, July 11, 2003, February 18, 2005, October 2, 2007, January 20, 2009, and January 11, 2011. Also, on January 11, 2011, Ellison was convicted of escape from community custody. The latter convictions landed Ellison at the Airway Heights Corrections Center.
On September 29, 2013, the Airway Heights Corrections Center released Robert Ellison into community custody. Upon his release, Ellison listed his address as 327 1/2W. Second Street, Spokane. The next day, Ellison visited his community custody supervisor, Ginger Burk. The Department of Corrections then placed a global positioning system (GPS) monitor on Ellison's person. Despite several attempts in the following week to contact Ellison at the Second Street address and other locations, Burk could not thereafter locate Ellison. The GPS signal failed. Ellison failed to register his new address with the county sheriff within the required three days of release from incarceration.
The State of Washington charged Robert Ellison with felony failure to register as a sex offender in violation of RCW 9A.44.132 and escape from community custody in violation of RCW 72.09.310. Ellison pled guilty to the escape from community custody charge.
Failure to register can also constitute a gross misdemeanor, but the State has elected not to charge Ellison with a gross misdemeanor. This election bears importance to this appeal and complicates, if not confuses, our analysis. To sustain a prosecution for felony failure to register as a sex offender, the State must show a predicate felony led to the requirement of registration.
Robert Ellison moved to dismiss the felony failure to register as a sex offender charge. He argued that he had no duty to register as a sex offender because his 1995 convictions were void predicate sex offenses since a finding of his capacity to commit thecrimes did not precede the convictions. He further argued that his 1999 conviction could not serve as the predicate crime for felony failure to register because the State relied on his 1995 felony convictions to convict him in 1999 for felony communication with a minor. The trial court agreed and dismissed the charge. The State appeals.
The State of Washington assigns error to the trial court's dismissal of the felony failure to register as a sex offender charge. A trial court may grant pretrial dismissal of a criminal charge under CrR 8.3(c) for insufficient evidence when no reasonable trier of fact could find beyond a reasonable doubt the essential elements of the crime. State v. Knapstad, 107 Wn.2d 346, 349, 729 P.2d 48 (1986). The trial court must decide, viewing facts in the light most favorable to the State, whether the facts establish a prima facie case of guilt. Knapstad, 107 Wn.2d at 357; State v. Groom, 133 Wn.2d 679, 684, 947 P.2d 240 (1997). We conduct a de novo review of a trial court's decision to dismiss and again view the facts and inferences in the light most favorable to the State. State v. Newcomb, 160 Wn. App. 184, 188-89, 246 P.3d 1286 (2011).
The parties on appeal do not dispute the important facts. The appeal poses only questions of law.
The trial court's dismissal of the charge of felony failure to register as a sex offender must be reversed if either the 1995 convictions for felony first degree child rapeor the 1999 felony conviction for communication with a minor for immoral purposes suffice as predicate crimes for failure to register. We first address the validity of the 1995 convictions. Their legitimacy requires a discussion of a child's capacity to commit a crime and the repercussions of a court's failure to determine a young child's capacity to commit a crime before a conviction. Assuming we conclude the 1995 convictions to be erroneous, we later decide the ramifications of the defects in those convictions for purposes of the current charge of failure to register as a sex offender.
The State balks to the use of the term "invalidate" in the context of the propriety of the 1995 and 1999 convictions. The State notes that Robert Ellison does not attack any of the three convictions by direct appeal or by a personal restraint petition. Ellison instead limits his attack on the convictions to exploitation of the convictions as predicate crimes for purpose of the felony charge of failure to register as a sex offender. Regardless of the outcome of this appeal, the three convictions remain effective unless or until Ellison later seeks to vacate the judgments of conviction. While we recognize the State's concern with loose use of the word "invalidate," we will often use such word or related terms, but only in connection with determining whether the convictions are valid as predicate crimes for felony failure to register as a sex offender. Case law also employs such terminology.
Robert Ellison was age eleven and twelve during the charging period for rape of a minor. The State believes that Ellison engaged in more than two acts of rape, but theState only alleged two acts, and the court convicted Ellison of only two acts. We do not know the dates of the two rapes, for which the court convicted Ellison. To give Robert Ellison the benefit of the doubt, we assume that all acts occurred when Ellison was age eleven. Thus, we assume that the trial court should have conducted, but failed to conduct, an infant capacity hearing before any of the two convictions. When nothing in the trial court record suggests a capacity hearing, we may presume the proceeding did not take place. State v. Golden, 112 Wn. App. 68, 80, 47 P.3d 587 (2002).
RCW 9A.04.050 declares in part:
Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.
The statute codifies "the infancy defense." State v. Ramer, 151 Wn.2d 106, 114, 86 P.3d 132 (2004). The infancy defense shields from the criminal justice system those individuals of tender years who are less capable than adults of appreciating the wrongfulness of their behavior. State v. Ramer, 151 Wn.2d at 114; State v. Q.D., 102 Wn.2d 19, 23, 685 P.2d 557 (1984).
Sound reason lies behind excusing children from criminal culpability. The United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) addressed the issue of capital punishment for one under the age of...
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