State v. Hayes
| Decision Date | 29 April 1996 |
| Docket Number | No. 33580-4-I,33580-4-I |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Ralph Doyle HAYES III, Appellant. |
Superior Court, Snohomish County, No. 93-1-00311-5; Larry McKeeman, Judge.
Jeanetter Brinster, Northwest Defenders Assoc., Seattle, for appellant.
Seth Fine, David Thiele, Snohomish County Pros. Atty. Office, Everett, for respondent.
At issue in this case is the sufficiency of generic testimony to support the conviction of Ralph Hayes for raping his young daughter, K. The State charged Hayes with four counts of rape of a child during the period "on or about" July 1, 1990 through May 31, 1992. K. testified at trial that Hayes "put his private part in mine" some "[t]wo or three times a week" during the charging period. The State presented other evidence that was consistent with the charges. A jury convicted Hayes on all four counts. He appeals.
We conclude that (1) the evidence was sufficient to support Hayes' conviction on all four counts; (2) Hayes was not placed in double jeopardy or deprived of his right to present a defense by the State's use of the same language in the charging document and use of different evidence for each count; (3) Hayes did not receive ineffective assistance of counsel; and (4) there was no other error. Accordingly, we affirm.
K. was born in November 1981. She was 11 when she testified at trial in 1993.
In November 1985, K. was four when she began living with Hayes and Terri Vermaat. In May 1986, Vermaat and Hayes were married. Nine months later, Hayes left their home, but left K. in the care of Vermaat until July 1988. Hayes then assumed sole care of K., and they then lived together for a short time at the homes of various friends and relatives.
In September 1988, Hayes and K. began living with Diane and her daughter, Nicky. Hayes married Diane in September 1989. All four of them lived in an apartment on Fowler Street in Everett until May or June of 1990. They then moved to another apartment.
Sometime in 1991, Hayes and Diane separated. During the separation, Hayes and K. lived with Scott Donaldson in Everett for about three to six months. Diane and Nicky moved to Lynnwood. Hayes and Diane then got back together sometime later that year. They moved back to the Fowler Street apartments and lived there with K. and Nicky.
On June 18, 1992, authorities removed K. from the Hayes' home. That was done in connection with the charges in this case.
K. testified at trial that from the summer of 1990 until she was taken from Hayes' home in June 1992, Hayes "put his private part in mine" at least four times and up to "[t]wo or three times a week." She testified that these incidents occurred when she lived alone with Hayes before he lived with Diane; when she was living on Fowler Street with Diane and Nicky; and when they lived with Donaldson. She also testified that the last time it happened was two weeks before she was taken away from Hayes on June 18, 1992.
K. also testified that when Hayes "put his private part in mine" it would last about 30 minutes, and he would get on top of her and move his "private" in and out of her. She testified that she saw something "yellowish white" come out of Hayes' "private," and that he would use paper towels kept under the bed to wipe them both off. K. testified that it hurt once and that she bled once. She testified that it would happen in Hayes' bedroom during the day, in the afternoon, and when Nicky was away.
K. testified that the first time she told anyone about these incidents was when Hayes and Diane were "split up," and she and Hayes were living with Donaldson. At that time, she told her best friend, "Leah," and Leah's mother told Diane. Diane likewise testified that K. disclosed these allegations to Leah and her. But Diane added that K. fabricated the allegations because she no longer wanted to live with Hayes.
Nicky testified that K. disclosed to her that Hayes had been touching her. But Nicky stated only that K. told her that Hayes once took her pencil and pulled her into bed.
Karen Evans, the nurse practitioner who examined K., testified that K. told her that Hayes had put his private in her private two times a week for more than a year. She also testified that the condition of K.'s hymen was consistent with this frequency of intercourse.
Hayes first argues that the evidence is insufficient to support his convictions for four counts of rape of a child because there was no testimony that four separate and distinct acts of sexual intercourse occurred within the charging period. The State responds by citing testimony regarding seven different acts of alleged sexual intercourse and K.'s "generic" testimony that it occurred at least four times and up to two or three times a week. We hold that the evidence was sufficient to support the conviction.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 1 The reviewing court must defer to the trier of fact to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences therefrom. 2 Thus, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.' " 3
To convict a criminal defendant, a unanimous jury must conclude that the criminal act charged has been committed. 4 In cases where several acts are alleged, any one of which could constitute the crime charged, the jury must unanimously agree on the act or incident that constitutes the crime. 5 In such "multiple acts" cases, Washington law applies the "either or" rule:
either the State [must] elect the particular criminal act upon which it will rely for conviction, or ... the trial court [must] instruct the jury that all of them must agree that the same underlying criminal act has been proven beyond a reasonable doubt. [ 6]
In sexual abuse cases where multiple counts are alleged to have occurred within the same charging period, the State need not elect particular acts associated with each count so long as the evidence "clearly delineate[s] specific and distinct incidents of sexual abuse" during the charging periods. 7 The trial court must also instruct the jury that they must be unanimous as to which act constitutes the count charged and that they are to find "separate and distinct acts" for each count when the counts are identically charged. 8
Here, the evidence shows specific and distinct acts of sex abuse during the charging period. The trial court also complied with the requirement to properly instruct the jury. 9 Thus, our inquiry is whether the evidence was sufficiently specific as to each count charged. 10
Our review of the record shows that at least one act of sexual intercourse between Hayes and K. occurred while they lived with Donaldson in 1991. K. testified that during this time she told Leah, her friend, that Hayes had been touching her. Diane also testified that Leah's mother called and told Diane that "she [Leah] said that K. had told her that [Hayes] had been putting his private into hers." Diane then testified that when she asked K. why she never told her, "all she [K.] would tell me is it happened the other day ... [h]e's been doing it a lot." From this testimony, a rational trier of fact could infer that Hayes had sexual intercourse with K. at least once during this time. The reference to Hayes "doing it a lot" also implies that more than one act of intercourse occurred during that period. A rational juror could infer from this evidence that the State had proven beyond a reasonable doubt that Hayes had sexual intercourse with K. at least once in 1991 while they lived at Donaldson's house.
At trial, K. also testified that the last time Hayes "put his private part in mine" was two weeks before she was taken away from him. She was taken away on June 18, 1992. Thus, the last time Hayes abused her was about June 4, 1992. Hayes argues that this incident cannot be considered as proof of one of the four counts because it falls outside the charging period, which was "on or about the 1st day of July, 1990 through the 31st day of May, 1992." The State responds that the charging language "on or about ... the 31st day of May, 1992" should be construed to include this incident. We agree with the State.
A defendant may not be convicted for a crime with which he or she was not charged. 11 But where time is not a material element of the charged crime, the language "on or about" is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi. 12 Here, time is not an element of the crime charged. 13 The incident on June 4 also falls well within the seven-year statute of limitation period. 14 Finally, Hayes did not rely on a true alibi defense. On the omnibus application, the State specifically requested notice of intent to rely on an alibi defense. Hayes gave no such notice, but simply indicated that he was asserting the defense of "general denial/innocence."
Nor did his defense at trial amount to an alibi defense. Rather, he attacked the credibility of K.'s testimony that he had sexual intercourse with her. He defended against the charges by presenting evidence that K. had a motive to fabricate the allegations. In short, this was a credibility contest between Hayes and K. As the court observed in State v. Brown: 15
In cases where the accused child molester virtually has unchecked access to the victim, neither alibi [n]or misidentification is likely to be a reasonable defense. The true issue is credibility.
A rational juror could infer from this evidence that the State had proven beyond a reasonable doubt that Hayes had...
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