State v. Fenney

• Decision Date: 17 August 2021
• Docket Number: 52061-3-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JEREMY BLAINE FENNEY, Appellant.

STATE OF WASHINGTON, Respondent, v. JEREMY BLAINE FENNEY, Appellant.

No. 52061-3-II

Court of Appeals of Washington, Division 2

August 17, 2021

UNPUBLISHED OPINION

Lee C.J.

Jeremy B. Fenney was convicted of over 40 crimes, including human trafficking, promoting prostitution, rape, assault kidnapping, robbery, felony harassment, unlawful imprisonment, unlawful possession of a firearm, possession of a stolen firearm, possession of a controlled substance violation of a court order, and tampering with a witness. Fenney appeals and argues that he is entitled to a new trial because the State introduced improper expert witness testimony, he received ineffective assistance of counsel, the trial court erred by denying his motion to sever, the trial court violated the appearance of fairness doctrine, the trial court erred by admitting evidence of gang affiliation, and he was denied a fair trial by an impartial judge. Fenney's arguments to support his claim for a new trial fail.

Fenney also challenges several of his individual convictions. Specifically, Fenney argues that the human trafficking charges were racially motivated. Fenney also argues that the charges for both first degree human trafficking and promoting prostitution were improper because the statutes are concurrent. And he argues that there is insufficient evidence to support his convictions for felony harassment, second degree assault, and robbery. Finally, Fenney argues that the three counts of kidnapping merge with his conviction for first degree human trafficking.

We decline to address Fenney's challenge based on racial bias. We hold that the first degree trafficking and promoting prostitution statutes are not concurrent, and sufficient evidence supports the convictions for felony harassment and second degree assault. We further hold that there is insufficient evidence to support the conviction for robbery and the three kidnapping convictions merge with the first degree human trafficking conviction. Accordingly, we reverse Fenney's conviction for robbery and we hold that the three convictions for kidnapping merge with Fenney's conviction for first degree human trafficking. We affirm the remainder of Fenney's convictions. We remand for the trial court to vacate Fenney's conviction for robbery and three convictions for kidnapping^[1] and for resentencing.^[2]

FACTS

A. Conduct and Charges

Fenney and B.C.^[3] were dating in March 2016, and lived together between March and November 2016. About a week after Fenney and B.C. began dating, Fenney told B.C. that he would leave the girl that he was then living with if B.C. would post on Backpage^[4] and go on prostitution calls to earn money. Fenney's plan was for B.C. to go on a certain number of calls per day for six months and give the money she earned to him. B.C. began posting ads the next day after Fenney told her his plan and began going on prostitution calls; she posted about 200 Backpage ads. B.C. gave the money she earned from her calls to Fenney.

Soon after B.C. became a prostitute, Fenney began to beat, burn cut, sexually abuse, imprison, and threaten to kill B.C. if B.C. did not do as Fenney said or if she tried to leave him. In addition to the acts of violence against B.C., Fenney committed acts of violence against K.W., another member of Fenney's household. Fenney robbed K.W., held a gun to her head, threatened to kill her, and forced her to have sex with him.

On January 22, 2018, the State charged Fenney by fourth amended information^[5] with 45 counts as follows:

B. Motion to Sever

Before trial began, Fenney filed a motion to sever the counts related to K.W. for trial. Fenney argued that the counts related to B.C. had been improperly joined with the counts related to K.W. because the victims were different. Fenney contended that B.C.'s allegations on the sex offenses had some level of independent verification, but K.W.'s claim of sexual violence was supported by no evidence other than K.W.'s word. Fenney also contended that the "[a]llegations that Fenney committed a rape against an additional victim other than [B.C.] would be prejudicial to his defense of [B.C.]'s claims." Clerk's Papers (CP) at 167.

The trial court denied the motion to sever. The trial court stated that the case was primarily a human trafficking case and the rapes and assaults would be relevant to human trafficking, and noted that an expert witness would testify about a pattern associated with human trafficking.

The trial court determined that K.W.'s testimony would be admissible under ER 404(b) because there was a common scheme or plan: "This is how pimps do their thing, if will you (sic). This is a common feature among traffickers and their victims." Verbatim Report of Proceeding (Dec. 11, 2017) at 10. The trial court found the evidence to be highly probative. The trial court acknowledged that there was a prejudicial effect because two women were alleging rape against the same man. However, that trial court explained:

[T]he prejudice is what happens because of the crime.

This is part of, in my humble estimation of how you get to human trafficking in the first degree.

It's like how you get to classic domestic violence.

If you have an expert who otherwise testifies about that. And I've been assured that you do.

So and a limiting instruction can easily take care of that.

VRP (Dec. 11, 2017) at 10-11.

C. Gang Affiliation Evidence

Also before trial began, the State filed a motion to admit gang affiliation evidence to show the victims' state of mind for the harassment charges. The State argued, "Evidence that the defendant is associated with a gang and that the defendant conveyed this information to the victims is directly relevant to B.C. and K.W.'s fear that the defendant would carry out the threats that he indicated." CP at 285. The State also argued that the evidence was "relevant for the jury to understand why K.W. and B.C. did not report these crimes to the police when they occurred. Both witnesses were afraid of retaliation from fellow gang members if they spoke to the police about the abuse they suffered at the hands of the defendant." CP at 285-86.

After hearing argument on the issue, the trial court stated:

The way that I analyze this is two-fold. One, is this relevant information in the first place; and secondly, does there need to be a foundation laid?

In the first course, the information would be relevant certainly probative of the alleged victims' . . . state of mind, their fear and their fear of reprisals if they were seen to be communicating with police or prosecutors or hanging out anywhere near the courthouse, et cetera.

That doesn't depend upon the truthfulness of their belief. It simply depends on whether there is a factual basis for their belief in terms of their credibility.

So in terms of their-that issue, the evidence certainly has probative value. It is more likely that people can be terrorized into not talking if they are afraid that not only the perpetrator, but also the perpetrator's allies, can affect a violent reprisal for speaking.

. . . .

The prejudicial effect is minimized in that event by virtue of two things. One, you don't have independent corroboration of the belief system, thus bootstrapping, if you will, the alleged victim's belief with independent evidence saying, yes, he, in fact, was a member of this gang; and secondly, the prejudice is minimized by a limiting instruction to the jury that allows the jury to use this evidence in the way in which it is intended, and that is simply to explain why these two people delayed their reporting of these crimes-the alleged crimes or why they may have given different statements at different times.

The second issue has to do with their reasonableness of the fear. That is an element of the crime that does not depend simply on the testimony but also depends on whether, from an objective standpoint, their fear was reasonable.

VRP (Jan. 22, 2018) at 63-65. The trial court ruled that no law enforcement witness could say that Fenney was in fact a member of a gang, but because the evidence would be highly relevant to the victims' state of mind and their fear, the alleged victims were free to testify as to what made them afraid. The trial court also ruled that the evidence would come in with a limiting instruction that would advise the jury that the evidence was admitted solely for the purposes of assessing the individual's credibility and state of mind.

D. Jury Trial

The following evidence was presented at Fenney's jury trial.

1. B.C.'s Testimony

B.C. met Fenney through Facebook in 2011, and they began dating right away. B.C. was aware that Fenney was a pimp; Fenney has a "True Northwest Pimp" tattoo across his chest. 5 VRP (Jan. 31, 2018) at 702. There was a period of time after they began dating in 2011 when they were not seeing each other, but they picked up their relationship again in late February or early March of 2016.

B.C. and Fenney began living together in March 2016. At first, they lived at Fenney's mother's house. While B.C. and Fenney were living at Fenney's mother's house, B.C. considered them boyfriend and girlfriend.

About a week after they began dating again in 2016, Fenney discussed with B.C. the idea of B.C. becoming a prostitute by suggesting she start posting ads on Backpage. Fenney stated that he would set a goal amount of money, and once they reached that goal, they would be done. B.C. began posting ads on Backpage the day after they first discussed it. B.C. gave the money she earned going on prostitution calls to Fenney. The money was supposed to be for both of them, but Fenney kept the money. During B.C.'s time at Fenney's mother's house, B.C. used methamphetamine. Fenney gave B.C. the drugs.

Fenney would not allow...