State v. Hancock

• Decision Date: 08 April 2021
• Docket Number: No. 36978-1-III,36978-1-III
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Johnathon James HANCOCK, Appellant.

17 Wash.App.2d 113

484 P.3d 514

STATE of Washington, Respondent,

v.Johnathon James HANCOCK, Appellant.

No. 36978-1-III

Court of Appeals of Washington, Division 3.

FILED APRIL 8, 2021

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave., Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Larry D. Steinmetz, Brett Ballock Pearce, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent.

PUBLISHED OPINION

Pennell, C.J. ¶ 1 Johnathon Hancock appeals his convictions for first degree child rape and first degree child molestation. He argues convictions for both offenses violate his right to be free from double jeopardy and that the trial court should have excluded the child witness from testifying based on incompetence. We disagree. Mr. Hancock's two convictions were imposed under different statutes and were justified by different evidence. In addition, the trial court had a tenable basis for its competency decision. The judgment of conviction is affirmed.

FACTS

¶ 2 In 2016, four-year-old K.F.¹ reported being sexually assaulted by her mother's friend, an individual eventually identified as Johnathon Hancock. K.F. disclosed multiple instances of abuse occurring over a period of time. Some incidents involved penetration, others did not.

¶ 3 In 2018, the State charged Mr. Hancock with one count of first degree child rape and one count of first degree child molestation. Both counts covered the same time period: January 1, 2016 to September 1, 2016. Trial did not take place until 2019, when K.F. was seven years old.

¶ 4 At the outset of trial, the court held a hearing to determine K.F.’s competence and the admissibility of child hearsay statements. K.F. testified at the hearing, along with other witnesses. During her testimony, K.F. could not make an in-court identification of Mr. Hancock or recall any acts of sexual assault. However, she did recall other details about her life occurring during the time period in question. After hearing from the witnesses, the trial court ruled K.F. was presumed competent and the defense had not met its burden of showing otherwise. The court also admitted K.F.’s hearsay statements over Mr. Hancock's objection.

¶ 5 The jury convicted Mr. Hancock as charged. Mr. Hancock now appeals.

ANALYSIS

Double jeopardy

¶ 6 Mr. Hancock argues his two convictions encompass the same offense in violation of his right to be free from double jeopardy. We disagree.

¶ 7 Both the United States Constitution and Washington State Constitution protect the right of individuals to be free from double jeopardy. U.S. CONST. amend. V, XIV ; WASH. CONST. art. I, § 9. The three components of this protection are: (1) the right not to be prosecuted a second time for the same offense after acquittal, (2) the right to be free from a second prosecution for the same offense after conviction, and (3) the right not to be punished multiple times for the same offense. State v. Fuller , 185 Wash.2d 30, 33-34, 367 P.3d 1057 (2016). The third component is at issue here.²

¶ 8 The right to be free from multiple punishments is a unique constitutional protection. The State has broad authority to extract multiple punishments for the same conduct. State v. Villanueva-Gonzalez , 180 Wash.2d 975, 980, 329 P.3d 78 (2014). Double jeopardy provides no defense, so long as multiple punishments are consistent with legislative intent. Id . The question presented by a double jeopardy/multiple punishment challenge is, therefore, purely a matter of statutory interpretation. Id . The constitutional hook is that unlike other statutory rights, a double jeopardy challenge can be raised for the first time on appeal. See State v. Adel , 136 Wash.2d 629, 631-32, 965 P.2d 1072 (1998).

¶ 9 When analyzing legislative intent, our reference point is statutory language. State v. Freeman , 153 Wash.2d 765, 771-72, 108 P.3d 753 (2005). If the legislature has expressly authorized multiple punishments for the same offense, then our analysis ends; double jeopardy is no bar to multiple punishments. The prime example of express legislative intent is the anti-merger provision in Washington's burglary statute, RCW 9A.52.050. This provision "explicitly provides that burglary shall be punished separately from any related crime." Freeman , 153 Wash.2d at 772, 108 P.3d 753. Unfortunately, the legislature does not generally provide express intent. Thus, the double jeopardy analysis must go further.

¶ 10 Our courts have developed a multi-pronged, cyclical test for discerning legislative intent in the double jeopardy context. The test is complex and its components are frequently misapplied. A road map is in order.

¶ 11 The rules for analyzing legislative intent in the double jeopardy context depend on the type of claim at issue. When a defendant challenges multiple convictions under the same statute, double jeopardy turns on the unit of prosecution analysis. See, e.g. , Villanueva-Gonzalez , 180 Wash.2d at 980-81, 329 P.3d 78.³ But when, as here, a defendant is challenging convictions under more than one statute, double jeopardy looks to the same evidence test. In re Pers. Restraint of Borrero , 161 Wash.2d 532, 536-37, 167 P.3d 1106 (2007).

¶ 12 The same evidence test mirrors the test outlined by the United States Supreme Court in Blockburger v. United States , 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) ; State v. Louis , 155 Wash.2d 563, 569, 120 P.3d 936 (2005). The same evidence test asks, in a nonabstract manner, whether two offenses are the same in law and in fact. Freeman , 153 Wash.2d at 772, 108 P.3d 753. "If each offense includes an element not included in the other, and each requires proof of a fact the other does not, then the offenses are not constitutionally the same under this test." State v. Hughes , 166 Wash.2d 675, 682, 212 P.3d 558 (2009).

¶ 13 The results of the same evidence test create a strong presumption of the legislature's intent regarding multiple punishments. Louis , 155 Wash.2d at 570, 120 P.3d 936. But it is not dispositive. The presumption can be overcome "by clear evidence of contrary intent." State v. Calle , 125 Wash.2d 769, 780, 888 P.2d 155 (1995).

¶ 14 One way the same evidence presumption can be rebutted is under the doctrine of merger. See Louis , 155 Wash.2d at 570, 120 P.3d 936. "Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime." Freeman , 153 Wash.2d at 772-73, 108 P.3d 753.

¶ 15 The outcome of a formal merger analysis is also not dispositive. Even when two statutory violations appear to merge on an abstract level, "they may be punished separately if the defendant's particular conduct demonstrates an independent purpose or effect of each" offense. State v. Kier , 164 Wash.2d 798, 804, 194 P.3d 212 (2008).⁴

¶ 16 Here, Mr. Hancock was convicted of first degree rape of a child in violation of RCW 9A.44.073(1) and first degree child molestation in violation of RCW 9A.44.083(1). The legislature has not expressly stated whether child rape and child molestation should be punished separately when committed during the same charging period. Thus, we must engage in statutory interpretation to discern the legislature's intent.

¶ 17 Because Mr. Hancock's double jeopardy challenge involves violations of different statutes, we turn to the same evidence test.⁵ We begin by noting there are technical differences between the offense of child rape and child molestation. Child rape requires proof of sexual intercourse, child molestation does not; child molestation requires specific intent (acting with the purpose of sexual gratification), while child rape does not. State v. Wilkins , 200 Wash. App. 794, 807-08, 403 P.3d 890 (2017). But technical differences are not always sufficient to distinguish two crimes under the same elements test. See Hughes , 166 Wash.2d at 682-84, 212 P.3d 558. The real question is whether, under the circumstances of a case, each charged offense required proof of a fact that the other did not. Freeman , 153 Wash.2d at 772, 108 P.3d 753. We look to the entire record to make this determination. See In re Pers. Restraint of Knight , 196 Wash.2d 330, 341-42, 473 P.3d 663 (2020).

¶ 18 In Mr. Hancock's case, the State made clear the rape charge was factually distinct from the child molestation charge. The State did not argue Mr. Hancock committed the crimes of child rape and child molestation during the same specific act of abuse. The evidence at trial was Mr. Hancock sexually assaulted K.F. on multiple occasions. During summation, the prosecutor explained child rape referred to those instances where Mr. Hancock engaged in sexual intercourse. Child molestation occurred when the encounter "didn't rise to the level of sexual intercourse."⁶ 3 Report of Proceedings (June 24, 2019) at 601.

¶ 19 Mr. Hancock's two convictions were not based on the same evidence. We therefore invoke a strong presumption that double jeopardy does not bar his two convictions. Mr. Hancock has not attempted to rebut this presumption with any clear evidence of contrary legislative intent. Nor does the merger doctrine apply. We therefore affirm Mr. Hancock's judgment against his double jeopardy challenge.

Competency of child witness

¶ 20 Relying on State v. S.J.W. , 149 Wash. App. 912, 206 P.3d 355 (2009) ( S.J.W. I ), Mr. Hancock argues the trial court used the wrong standard to assess K.F.’s competence. According to Mr. Hancock, S.J.W. I stands for the rule that the party offering a witness's testimony—in this case the State—has the burden to prove competence. Mr. Hancock claims K.F.’s memory problems prohibited the State from meeting its burden. Thus, K.F. should not have been allowed to testify and her child hearsay statements should have been excluded.⁷

¶ 21 In S.J.W. I, Division One of this court ruled the proponent of a...