State v. Harp

• Decision Date: 21 April 1975
• Docket Number: No. 2520--I,2520--I
• Citation: 534 P.2d 842,13 Wn.App. 239
• Parties: The STATE of Washington, Respondent, v. Carl L. HARP, Appellant.
• Court: Washington Court of Appeals

Page 239

13 Wn.App. 239

534 P.2d 842

The STATE of Washington, Respondent, v. Carl L. HARP, Appellant.

No. 2520--I.

Court of Appeals of Washington, Division 1.

April 21, 1975.

Rehearing Denied June 30, 1975.

Hunter, Gates & Patterson (court appointed), Gerald R. Gates, Everett, for appellant.

Robert E. Schillberg, Snohomish County Pros. Atty., David G. Metcalf, Deputy Pros. Atty., Everett, for respondent.

WILLIAMS, Chief Judge.

Carl L. Harp was charged by information with two counts of assault in the first degree, rape, sodomy, and with being a person convicted of a crime of violence in possession of a pistol. The jury found that Harp was guilty of each crime and that he was armed with a deadly weapon during their commission. The court entered judgment which imposed life sentences for the rape and each of the two assaults, and also imposed the statutory maximum sentences of 10 years for the sodomy and being in possession of a pistol. The sentences upon the two assaults, sodomy, and the illegal possession of a pistol were ordered to run concurrently, and the sentence for rape consecutively. Harp appeals from the judgment. We affirm.

The facts which the jury was entitled to believe are these: On June 21, 1973, two co-ed camp counselors were hiking on a trail in the Snohomish County foothills near the town of Gold Bar. While returning to their car, which they had driven from camp and parked on an access road they came upon Harp, who was seated next to the trail with his pack open. The girls talked with him for a short time and then proceeded down the trail to the road. There, Harp came up with them and accompanied them to their car. When they arrived at the car, Harp pointed a pistol at both girls, ordered them to 'hold it', and told them to go into the woods. When they had walked about 30 yards into the woods, Harp had the girls take off their clothes and sit down. He then directed the first girl, Miss G., to an area 6 to 10 feet away from the second girl, Miss S., and required that she lie down and assume a coital position. Harp then turned to Miss S., tied her to a tree by placing her belt around her neck and, still pointing the pistol at her, ordered her to commit fellatio upon him, which she did. While this was going on, he was turned away from Miss G. When Harp finished the act of sodomy, he faced Miss G., pointed the pistol at her and told her that if anything happened, she was the first to go. He placed the pistol out of reach of either girl and had sexual intercourse with Miss G. During this episode, Harp had his back to Miss S. Following this, he untied Miss S. and let both girls go.

They drove back to camp and reported to the director, who immediately called the sheriff. Three officers from the sheriff's office and Deputy Town Marshal Ericks, of Gold Bar, came out. The girls told the officers what had occurred and described Harp and his possessions.

The next day, Harp was on the highway outside of Gold Bar when he was seen by Deputy Town Marshal Ericks, who recognized him from the description given by the girls. Ericks stopped, identified himself as a law enforcement officer, and placed Harp in the back of his patrol car. He then radioed the sheriff's office for help. Two sheriff's deputies arrived, formally arrested Harp, and searched him and his pack.

In his brief, Harp makes 15 assignments of error, which he discusses in eight arguments. We will follow the same arrangement.

First, Harp contends that the search and seizure of his pack and its contents, which included a .36 caliber cap and ball pistol, knives and clothing, were illegal because the Deputy Town Marshal, Ericks, was outside the boundary of the town of Gold Bar and, hence, outside of his jurisdiction when the initial detention was made. It is true that Ericks had no authority as a police officer outside of Gold Bar. However, as a private citizen, he could properly arrest Harp without a warrant because he had reasonable and probable cause to believe that Harp was guilty of a felony. State v. Jack, 63 Wash.2d 632, 388 P.2d 566 (1964); Jack v. Rhay, 366 F.2d 191 (9th Cir. 1966); 5 Am.Jur.2d Arrest § 36 (1962); E. Fisher, Laws of Arrest § 112, at 248 (1967). It should be noted that Ericks simply held Harp until the sheriff's deputies arrived. They, of course, had county-wide jurisdiction, and it was proper for them to continue the arrest procedures which included the search of Harp and seizure of those things which were under his immediate control. State v. Gluck, 83 Wash.2d 424, 518 P.2d 703 (1974); State v. Gibson, 76 Wash.2d 814, 459 P.2d 22 (1969). The pack and its contents were admissible in evidence.

Second, Harp contends that the court erred in refusing to dismiss the charge of first degree assault of Miss G., because the essential elements of the charge of rape are the same as those required to prove the charge of first degree assault with intent to commit rape. The theory is that the assault merged into rape which is, of course, itself an assault of an aggravated kind. 1 R. Anderson, Wharton's Criminal Law & Procedure § 77 (1957). Because he was sentenced to life for both the assault and the rape, Harp argues that he was twice put in jeopardy and is being punished twice for the same act.

Double jeopardy exists if the offenses charged are identical, or if a lesser offense can be said to be a constituent element in the perpetration of a greater offense. State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973); State v. Barton, 5 Wash.2d 234, 105 P.2d 63 (1940); State v. Waldenburg, 9 Wash.App. 529, 513 P.2d 577 (1973). Double jeopardy does not exist where a defendant stands charged with different offenses even though they may arise out of the same transaction. State v. Johnson, 60 Wash.2d 21, 371 P.2d 611 (1962); State v. Boren, 42 Wash.2d 155, 253 P.2d 939 (1953); State v. Barton, Supra. The criminal acts against Miss G. constituted two separate and distinct offenses. The assault with intent to commit rape terminated when Harp turned his attention to Miss S. The rape of Miss G. thereafter involved a new assault distinctive from the one initially made. State v. Smith, 9 Wash.App. 279, 511 P.2d 1032 (1973).

Third, Harp assigns error to the court's refusal to instruct the jury on the crime of second degree assault. The elements of first degree assault are that the assault be committed with an intent to commit a felony And with a firearm or any deadly weapon likely to produce death. Second degree assault is committed with intent to commit a felony but without a deadly weapon. RCW 9.11.010 and .020. An instruction on second degree assault may be given only where there is substantial evidence in the record upon which the jury can properly decide that the defendant committed the lesser included offense. State v. Johnston, 84 Wash.2d 572, 527 P.2d 1310 (1974); State v. Stationak, 73 Wash.2d 647, 440 P.2d 457 (1968). The attack upon Miss G. was either an assault in the first degree, that is, an assault with a firearm or deadly weapon accompanied by an intent to commit a felony, or no assault at all. Throughout the time that Harp and the girls were together after they left the car, Harp had the pistol in his hand or within his reach. There was no evidence that Harp was ever without his deadly weapon.

Next, Harp contends that he was twice placed in jeopardy because he was found guilty of the crime of being a person convicted of a...