State v. Hentz, 5235-1-II

• Decision Date: 07 June 1982
• Docket Number: No. 5235-1-II,5235-1-II
• Citation: 32 Wn.App. 186,647 P.2d 39
• Parties: The STATE of Washington, Respondent, v. Leumal HENTZ, Appellant.
• Court: Washington Court of Appeals

Page 186

32 Wn.App. 186

647 P.2d 39

The STATE of Washington, Respondent, v. Leumal HENTZ, Appellant.

No. 5235-1-II.

Court of Appeals of Washington, Division 2.

June 7, 1982.

L. Frank Johnson, Tacoma, for appellant.

Michael Johnson, Deputy Pros. Atty., Tacoma, for respondent.

REED, Chief Judge.

Leumal Hentz appeals his convictions for rape in the first degree, robbery in the first degree, kidnapping in the second degree, taking a motor vehicle without permission and intimidating a witness. For the reasons that follow we affirm all convictions except for the first degree rape.

Although the facts are disputed, a jury reasonably could have concluded that the following events took place. On June 21, 1980, Hentz met victim 1 at a 7-11 store located in Lakewood. He told victim 1 that his car was disabled with a run-down battery and asked if she would provide a "jump" from her car. Victim 1 agreed and maneuvered her car into position in front of defendant's vehicle. Hentz then advised her that the jump would not work and asked her for a ride to Military Road. While en route Hentz announced, "This is a stickup," and stuck what felt, according to victim 1, like the end of a gun in her ribs. Defendant then took over operation of the vehicle and drove to an isolated area where he pushed victim 1 out of the car, tore off her clothes, and began to beat her. Victim 1 feigned unconsciousness and Hentz drove off in her car.

On July 2, 1980, victim 2 was walking home on South Tacoma Way. Hentz offered victim 2 a lift in his car. When victim 2 entered the vehicle, defendant drove instead to his own apartment, took victim 2 inside and forced her to perform fellatio at gunpoint. He also robbed her of money and jewelry. Victim 2 escaped and returned shortly with police. She identified a toy pistol found in defendant's apartment as the weapon Hentz used to threaten her.

Over defendant's objections, charges of kidnapping in the second degree and taking a motor vehicle without permission arising out of the first incident were joined with charges of rape in the first degree and robbery in the first degree arising out of the second occurrence. Hentz was also charged with intimidating a witness because of a telephone threat he allegedly made to victim 2. At trial Hentz asserted an alibi defense with respect to the first incident and a credibility defense with respect to the second. A jury returned guilty verdicts on all 5 counts.

We first address the joinder issue, keeping in mind that whether all 5 counts were properly joined under CrR 4.3 is a question of law subject to full appellate review. Cf. United States v. Werner, 620 F.2d 922 (2d Cir. 1980) (construing analogous Fed.R.Crim.P. 8). Moreover, if joinder was proper, the question of severance under CrR 4.4 is within the discretion of the trial court. State v. Thompson, 88 Wash.2d 518, 564 P.2d 315 (1977); State v. Weddel, 29 Wash.App. 461, 629 P.2d 912 (1981). Hentz argues that the two incidents were not sufficiently alike to permit joinder under "the same or similar character" provision of CrR 4.3(a)(1) urged by the State. ¹ We disagree.

Some courts and commentators express the view that a very narrow construction of the "same or similar character" provision is desirable. They reason that such joinder is inherently prejudicial. See e.g., United States v. Foutz, 540 F.2d 733 (4th Cir. 1976); 1 C. Wright, Federal Practice and Procedure § 143 at 317-18 (1969). We believe the better view is to permit a broad joinder. See State v. Thompson, supra. This position comports with the important public policy of conserving judicial and prosecutorial resources. United States v. Werner, supra. Where it appears that otherwise proper joinder will unduly prejudice a defendant, it is still possible for the trial court to order severance under CrR 4.4.

Here, contrary to defendant's assertions, there is sufficient similarity between the two incidents to justify joinder. Several common threads connect them. Both involved sexual assaults where a female victim was kidnapped from the same general locality. Both assaults occurred within a 2-week time span and involved the use of an automobile and the threatened use of a weapon.

Having established that joinder was proper under CrR 4.3, we turn now to defendant's contention that the trial court erred by refusing to grant severance under CrR 4.4. Although

joinder of counts should never be utilized in such a way as to unduly embarrass or prejudice one charged with a crime, or to deny him a substantial right(,)

Weddel, 29 Wash.App. at 464, we are mindful that it is the defendant who bears the heavy burden of demonstrating that the trial court's action was an abuse of discretion. See United States v. Ochs, 595 F.2d 1247 (2d Cir.), cert. denied 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328 (1979).

In support of his allegation of prejudice, defendant recites the usual litany of reasons why joinder of separate offenses may be prejudicial. ² These bare assertions do not satisfy defendant's burden of demonstrating substantial prejudice-especially where, as here, the jury was instructed to decide each count separately as if there had been a separate trial. The only specific allegation of prejudice made by defendant is his assertion that he felt compelled to testify concerning the first incident-something he claims he would not have done had there been a separate trial. Defendant's claim that he would not have taken the stand with respect to the first incident is not sufficient to require severance absent a showing that he had important testimony concerning the second incident and a strong reason for not testifying as to the first. See State v. Weddel, supra. Defendant made no such showing.

Defendant's next assignment of error concerns the toy pistol the State alleges was used to threaten victim 2. Hentz maintains that, as a matter of law, first degree rape cannot be committed by the brandishing of a toy pistol during the assault. The State contends that State v. Ingham, 26 Wash.App. 45, 612 P.2d 801 (1980), is dispositive. In Ingham, a rape victim was threatened with a knife she never actually saw. We held that "(f)irst-degree rape does not require use or display of the weapon. Threat of such use is sufficient." (Footnote omitted.) Ingham, 26 Wash.App. at 52, 612 P.2d 801. We adhere to our holding in Ingham ; the threatened use of an actual deadly weapon is sufficient to satisfy RCW 9A.44.040. ³ What the State apparently fails to recognize is that in Ingham there was evidence from which a jury could have concluded that the assailants were armed with an actual knife. Here, the toy pistol, relied on by the State, is simply not a deadly weapon. ⁴

We note from the record that Hentz allegedly told witness Colon that he had "fooled the cops"; that he had used a real pistol, not the toy pistol so positively identified by the rape victim. Thus, the State could have argued that there was evidence to fulfill the statute's requirement of an actual weapon. However, the State insisted that a toy weapon would suffice and argued thusly to the jury, after successfully resisting Hentz's request for an instruction defining "deadly weapon." See State v. Sorenson, 6 Wash.App. 269, 492 P.2d 233 (1972) (judge must, sua sponte, give jury a definition of deadly...