State v. Gooden

• Decision Date: 14 March 1988
• Docket Number: No. 18995-6-I,18995-6-I
• Citation: 754 P.2d 1000,51 Wn.App. 615
• Parties: STATE of Washington, Respondent, v. Loveless J. GOODEN, Appellant.
• Court: Washington Court of Appeals

Page 615

51 Wn.App. 615

754 P.2d 1000

STATE of Washington, Respondent, v. Loveless J. GOODEN, Appellant.

No. 18995-6-I.

Court of Appeals of Washington,

Division 1.

March 14, 1988.

Publication Ordered May 31, 1988.

Reconsideration Denied May 27, 1988.

Helen A. Anderson, Washington Appellate Defender, Seattle, for Loveless J. Gooden.

Katherine Flack, Deputy Pros. Atty., Seattle, for State.

WEBSTER, Judge.

Loveless J. Gooden appeals from his conviction of two counts of promoting prostitution in the first degree. He claims that he was denied his right to a unanimous jury. We do not agree and affirm his conviction on each of the two counts.

Statement of Facts

In November of 1984, "W" and her best friend "V", both 16 years of age, ran away from their homes in Black Diamond. In late November or early December of 1984, the girls met Gooden at a bus stop in Seattle. They stayed at Gooden's apartment for approximately 1 1/2 weeks. During their first night at Gooden's apartment, Gooden took all of W's money.

Gooden drove the girls to Aurora Avenue North and told them: "Let's get out there and make some money". He told them to charge $30 for oral sex and to ask for more if they had vaginal intercourse. W recalled Gooden instructing V to lie about her age and tell police, if questioned, that she was 18.

W described an incident where a man invited them in his car and requested them to perform oral sex with him for money. W was in the back seat as V had oral sex with the man; W saw the man give money to V for her services. W later saw V give the money to Gooden. On that same night, W performed oral sex with a male customer for $25. Upon his request, she gave the money to Gooden. After completing each act, the girls returned to a bus stop on Aurora Avenue and waited for Gooden; if he was not there, they engaged other customers.

W testified that she committed her last act of prostitution in December of 1984 when Gooden drove her and V to a motel in Chinatown where they were to wait in an entryway for potential customers. The following day, Gooden rented a motel room on Pacific Highway South. Gooden talked about making big money and said if they made enough he would take the girls to Spokane and Portland and California, buy them nice clothes, and buy a Cadillac. W called her mother from the motel room and said she wanted to come home; her grandmother picked her up from the motel the next morning.

At trial, a detective testified that Aurora Avenue North, Chinatown and Sea-Tac strip, including Pacific Highway South, were heavy prostitution areas in King County. V gave a statement to the detective; portions of that deposition corroborating W's testimony regarding their friendship, their leaving Black Diamond, and their meeting Gooden were read to the jury.

Unanimous Jury Verdict

The right to a unanimous verdict is derived from the fundamental constitutional right to a trial by jury; it may be raised for the first time on appeal. State v. Handyside, 42 Wash.App. 412, 415, 711 P.2d 379 (1985). State v. Gitchel 41 Wash.App. 820, 706 P.2d 1091 (1985); State v. Fitzgerald, 39 Wash.App. 652, 655, 694 P.2d 1117 (1985); State v. Russell, 101 Wash.2d 349, 678 P.2d 332 (1984). Thus, Gooden's appeal is proper despite his failure to request that the State elect which acts it relied upon for his convictions and despite his failure to request a unanimous jury instruction.

A unanimous verdict is assured if either (1) the State elects the act upon which it relies for the conviction, or (2) the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. State v. Petrich, 101 Wash.2d 566, 572, 683 P.2d 173 (1984); see also State v. Stark, 48 Wash.App. 245, 738 P.2d 684 (1987); Handyside, 42 Wash.App. at 415, 711 P.2d 379; Gitchel, 41 Wash.App. at 822, 706 P.2d 1091; Fitzgerald, 39 Wash.App. at 655-56, 694 P.2d 1117. When the State fails to make an election, the jury instruction must be given to ensure unanimity. Id. As long as the instruction is given, the jury need not specify the act upon which it agrees. Stark, 48 Wash.App. at 251-52, 738 P.2d 684. The Washington Supreme Court in Petrich carves out an exception for a continuing course of conduct. It states:

Under appropriate facts, a continuing course of conduct may form the basis of one charge in an information. But "one continuing offense" must be distinguished from "several distinct acts," each of which could be the basis for a criminal charge. To determine whether one continuing offense may be charged, the facts must be evaluated in a commonsense manner.

(Citations omitted.) Petrich, 101 Wash.2d at 571, 683 P.2d 173.

Although the statute regarding promoting prostitution in the first degree permits conviction for each distinct act, it also contemplates a continuing course of conduct: instituting, aiding, or facilitating a prostitution enterprise. A person promotes prostitution in the first degree if he knowingly "[a]dvances or profits from prostitution of a person less than eighteen years old." RCW 9A.88.070(1)(b). A person "advances prostitution" if ... he causes or aids a person to commit or engage in prostitution, procures or solicits customers for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.

(Emphasis added.) RCW 9A.88.060(1).

A person "profits from prostitution" if ... he accepts or receives money or...