State v. Herzog
| Decision Date | 16 February 1994 |
| Docket Number | No. 14604-5-II,14604-5-II |
| Citation | 867 P.2d 648,73 Wn.App. 34 |
| Parties | STATE of Washington, Respondent, v. Gary Kenneth HERZOG, Appellant. |
| Court | Washington Court of Appeals |
R.A. Lewis, Camas (court appointed), for appellant.
Mark E. Beam, Deputy Pros. Atty., Vancouver, for respondent.
Gary Kenneth Herzog appeals convictions for first degree kidnapping, first degree rape, attempted first degree kidnapping, and second degree assault. We affirm.
At about 9 p.m. on March 16, 1989, a man grabbed S, a 12-year-old girl, while she was walking on the street in Vancouver. He forced her into a nearby pickup truck, the bed of which was covered by a canopy. He drove away with her sitting on the floor of the cab. He made her remove her clothing as they drove. After awhile, he stopped at an isolated location and forced her into the back of the truck, under the canopy. He partly covered her head with a towel, then raped her repeatedly. During this time, he told her he was putting cocaine in her vagina. After the rapes, he drove back to Vancouver, where he released her.
S immediately reported the attack to the police. She described the attacker as a white male, 30-40 years old, 5 feet 10 inches to 6 feet tall, short blonde hair, mustache, with a muscular build. She described a scar on his stomach and a two-heart tattoo on his left arm. She said he smoked cigarettes, and that he was wearing a short-sleeve shirt, blue jeans, and brown cowboy boots with a "chipped" heel. She described the pickup as tan in color, medium sized, with a four-wheel drive automatic transmission and an off-white canopy over the bed. She said the interior of the cab had bucket seats and "fuzzy" seat covers, cup holders between the seats, and something hanging from the rear-view mirror. She described the canopy as having windows and a blue stripe down each side. Underneath the canopy, the bed of the truck was carpeted, and there was a separately covered spare tire. The canopy had a dome light that was broken, and the man had written on the underside of the roof of the canopy with what appeared to be a felt-tip pen.
At about 10 p.m. on March 23, 1989, a man accosted C, a 22-year-old woman, as she walked on the street in Vancouver. Saying he had a handgun in his pocket, he forced her to get into a nearby pickup truck, the bed of which was covered by a canopy. As they drove, he forced her to remove her shoes. He also offered her cocaine. After crossing the Columbia River into Oregon, he parked at an isolated location and told her to move into the bed of the truck, under the canopy. When she refused, they stayed in the passenger compartment, where he raped her repeatedly. After the rapes, he handed her a towel. Then he drove back to Vancouver and released her.
C immediately reported the attack to the police. She described her attacker as a white male, approximately 40 years old, 5 feet 10 inches to 5 feet 11 inches, short, blonde hair, mustache, a good build, possibly two tattoos with heart designs, and a scar extending from his stomach to his chest. She said he was wearing a striped polo shirt, blue jeans, and white tennis shoes, and that he smoked during the abduction. She said his pickup was tan in color, medium sized, four-wheel drive, with an automatic transmission and an off-white canopy over the bed. She said the interior of the cab had bucket seats with imitation sheepskin covers, a gold chain hanging from the rear-view mirror, a pillow and towels.
At about 8:45 p.m. on March 31, 1989, a man approached B, a 19-year-old woman, in a parking lot in Vancouver. Grabbing her from behind, he said, 1 B responded by delivering an elbow to his ribcage. He was knocked to the ground, and she ran to her car. After she was in her car, she watched him drive away in a pickup truck.
B immediately reported the attack to the police. She described her attacker as a white male, 30-40 years old, 5 feet 9 inches, stocky, short, with light brown hair. She said he was wearing a tan sportcoat, blue jeans, and snakeskin boots with white stitching. She described his truck as a tan Ford Ranger pickup, with a light colored canopy that had windows and a dark, horizontal stripe running down each side.
At about 8:45 p.m. on April 13, 1989, N, a 20-year-old woman, was walking on a street in Portland, Oregon, when a man who said he had a gun grabbed her from behind and told her not to scream. When she screamed anyway, the man slapped her and shoved a handgun into her side. He then forced her to enter the cab of a nearby pickup truck. They drove to an isolated location, where the man forced her to get in the back of the truck and take off her clothes. He then raped her repeatedly. At one point, he offered her cocaine, which she refused. After the rapes, he gave her a towel. He then drove back to the Portland area, where he released her.
N immediately reported the attack to the police. She described the attacker as a white male, 30 years old, 5 feet 9 inches tall, blonde hair, mustache, and muscular build. She said he was wearing a striped polo shirt, blue jeans and white tennis shoes. She said the pickup was pale yellow, full-sized, with a white canopy that had windows. She said the interior of the cab had a gold chain hanging from the rear-view mirror. She said there was carpet under the canopy, and that towels and pillows were laying on the carpet.
At about 8:45 p.m. on April 19, 1989, T, an 11-year-old girl, was walking on a street in Hillsboro, Oregon when a man who said he had a gun forced her to enter the cab of a nearby pickup truck. As they drove, he made her to remove much of her clothing. Upon arriving at an isolated location, he parked and forced her to get in the back of the truck, where he raped her repeatedly. Then he drove back to Hillsboro and released her.
T immediately reported the attack to the police. She described her attacker as a white male, 30-40 years old, 5 feet 10 inches to 6 feet tall, blonde hair, mustache, muscular build, with a tattoo on his upper left arm. She said he was wearing a striped polo shirt, blue jeans and white tennis shoes, and that he smoked during the abduction. T described the pickup as a tan four-by-four with a canopy. She said the interior of the cab had bucket seats with sheepskin covers, cup holders, and pillows. She said the canopy was white, with a brown pin stripe running down each side. She said that the bed underneath the canopy was covered by carpet, that the light in the roof of the canopy was broken, and that the underside of the roof of the canopy appeared to have been written on with a felt-tip pen. She said that a spare tire and towels were on the bed of the truck, under the canopy.
At about 2 a.m. on May 6, 1989, A, a 56-year-old woman, was walking on the street in Vancouver when a man who said he had a gun grabbed her and forced her to enter the cab of a nearby pickup truck. As they drove, he forced her to remove her shoes and nylons, and to fellate him. When her mouth became numb, he explained he was high on drugs and had put cocaine on his penis. Upon arriving at an isolated location in Oregon, he forced her to get in the back of the truck, under the canopy. He raped her repeatedly, then gave her a towel that had been in the back of the truck. Ultimately, he drove to Jantzen Beach and released her.
A immediately reported the attack to the police. She described her attacker as white male, in his early 30's, 5 feet 9 inches, short blonde hair, mustache, stocky, with a muscular build. She said he was wearing a white and grey striped shirt, grey pants and white tennis shoes. She said his pickup truck was mustard yellow, full-sized, with a four-wheel drive shifter on the floor and a light colored canopy. She said the interior of the cab had bucket seats with velvet textured seatcovers, cup holders, a gold necklace hanging from the rear-view mirror, and pillows. She said there were towels under the canopy, and that the bed under the canopy was covered.
On May 8, 1989, Herzog's ex-stepson contacted the police. He said he had seen an artist's sketch of the attacker in the newspaper and believed it "could be [Herzog]." 2 He qualified his statement by saying the sketch was not a "good depiction" of Herzog. His description of Herzog matched that given by the six women, including the fact that Herzog sported a "double-hearted tattoo." He also said that Herzog drove a "1970 or early 1970's Chevrolet four-wheel-drive pickup truck, yellow in color". 3 He said he had been sexually molested by Herzog in the past.
The police obtained a photo of Herzog, which showed a person "distinct[ly] similar" to the description the six women had given. They confirmed through licensing records that Herzog owned a "four-wheel-drive Chevrolet", and through arrest records that Herzog previously had been charged with a sex crime in King County. His ex-stepson was the alleged victim, and the charge had ultimately been dismissed.
After ascertaining that Herzog worked at the Freightliner Corporation in Portland, the police went there to conduct further investigation. In Freightliner's parking lot, they saw a "four-wheel-drive Chevrolet pickup truck with a canopy that met the general description of what we were looking for...." 4 They also saw a chain hanging from the truck's rear-view mirror. They made these observations from the street, which was separated from the parking lot by 6 to 30 feet of landscaping.
The police sought permission from Freightliner's security department before entering Freightliner's parking lot. After permission was granted, several officers walked past the truck and looked through its windows. Although they did not enter the truck, or "even put [a] face against the window," they were able to see various items, including an automatic transmission, sheep skin seat...
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