State v. Hitt

• Decision Date: 22 December 2014
• Docket Number: No. 70291-2-I,70291-2-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. ROBERT D. HITT, Appellant.

STATE OF WASHINGTON, Respondent, v. ROBERT D. HITT, Appellant.

No. 70291-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

December 22, 2014

UNPUBLISHED OPINION

VERELLEN, A.C.J. — Robert Hitt was convicted by a jury of one count of first degree burglary with sexual motivation (count I), five counts of first degree kidnapping, one count of first degree kidnapping with sexual motivation (count III), and two counts of first degree robbery. Hitt challenges the admission of a prior rape conviction under ER 404(b) as evidence of a common scheme or plan. Hitt contends that the prejudice stemming from the admission of his prior rape conviction impacted not only the sexual motivation special verdicts but also his remaining convictions and deadly weapon sentence enhancements. We accept the State's concession that there were insufficient similarities to establish a common scheme or plan under ER 404(b). The sexual motivation special verdicts must therefore be reversed. But we affirm his remaining convictions and the deadly weapon sentence enhancements because there is overwhelming evidence of guilt.

Hitt challenges the reasonable doubt instruction containing "abiding belief language, contending that the instruction diluted the State's burden of proof. But our Supreme Court has expressly affirmed the use of such abiding belief language.

Hitt also challenges the sufficiency of the evidence supporting the "shield or hostage" alternative means of first degree kidnapping. Viewing the evidence and all reasonable inferences in the light most favorable to the State, there is sufficient evidence for a rational trier of fact to conclude that Hitt intended to use the victims as hostages. Hitt's other arguments do not support any relief on appeal.

Accordingly, we reverse the sexual motivation special verdicts, affirm the first degree burglary conviction, first degree kidnapping convictions, first degree robbery convictions, deadly weapon sentence enhancements, and remand for resentencing.

FACTS

Hitt broke a window and entered a house near the University of Washington campus. He encountered a young woman, E.H., and bound her wrists with tape. E.H. told Hitt that seven other women lived in the house. Hitt placed a knife to E.H.'s throat and took her room to room, coercing the other women to exit their rooms by threatening to kill E.H. Hitt took two of the women's cell phones. Hitt gathered six women in a room and ordered them to lie face down on the floor, binding their wrists with tape.¹ Hitt failed to locate two other women in the house. They called the police.

Hitt struggled to bind K.B.'s wrists because she wore bulky "onesie fleece pajamas" that unzipped from the front.² Hitt told K.B. to "take it off."³ K.B. wore nothingunder the pajamas. Hitt forced K.B. to unzip her pajamas while he bound her wrists with tape, exposing at least the top half of her body.⁴ Then the police arrived and found Hitt inside the house on the top floor landing. Hitt told the police that he was "just there to rob them."⁵ Police freed the women, who had been bound with tape. They found two of the women's cell phones, a knife, and drugs on Hitt's person.

Hitt was charged with multiple counts of kidnapping and robbery and one count of burglary. Hitt objected to the admission of evidence of his 2002 first degree rape conviction that the State offered as proof of a common scheme or plan under ER 404(b). The trial court permitted the rape victim's testimony. Notably, the court's oral limiting instruction and written limiting instruction differ. The oral limiting instruction restricted the rape victim's testimony to only "determining whether the State . . . met its burden of proof with regard to motive in counts I and III."⁶ The written limiting instruction allowed the jury to consider her testimony "only for the purpose of deciding whether the defendant's prior conduct is part of a common scheme or plan, or as evidence of the defendant's motive or intent with respect to conduct charged by the [S]tate in this case."⁷

The jury found Hitt guilty of one count of first degree burglary, six counts of first degree kidnapping, and two counts of first degree robbery.⁸ For each conviction, thejury entered a special verdict that Hitt was armed with a deadly weapon at the time of the commission of the crime.⁹ The jury also entered special verdicts that Hitt committed both first degree burglary (count I) and first degree kidnapping (count III) with sexual motivation. Hitt was sentenced to life imprisonment as a persistent offender based on the sexual motivation special verdicts and the 2002 rape conviction.¹⁰

Hitt appeals.

ANALYSIS

Hitt contends, and the State concedes, that his prior rape conviction and the current crimes have insufficient similarities to establish a common scheme or plan under ER 404(b). We accept the State's concession.

A finding of sexual motivation is an aggravating circumstance that can support an exceptional sentence.¹¹ "'Sexual motivation' means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification."¹² The State must prove beyond a reasonable doubt that the defendant committed the crime for sexual motivation, and "[i]t must do so with evidence of identifiable conduct by the defendant while committing the offense."¹³

Here, as requested by the State, the trial court admitted evidence of Hitt's 2002 rape conviction under ER 404(b) as evidence of motive, intent, and a common scheme or plan. ER 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

"ER 404(b) is a categorical bar to admission of evidence for the purpose of proving a person's character and showing that the person acted in conformity with that character."¹⁴ Evidence of prior misconduct is presumptively inadmissible, and courts must resolve any doubt about admissibility in favor of exclusion.¹⁵

One proper purpose for admitting evidence of prior misconduct is to show the existence of a common scheme or plan.¹⁶ Relevant here, a common scheme or plan includes occasions "where 'an individual devises a plan and uses it repeatedly toperpetrate separate but very similar crimes.'"¹⁷ There must be substantial similarity between the prior misconduct and the charged crimes; "more than merely similar results" are required.¹⁸

The State urged the trial court to accept the similarities between the 2002 rape conviction and the instant offenses. The trial court identified facts common to both cases. But the instant offenses and the 2002 rape conviction are not "markedly similar acts" and do not show substantial similarity that manifests a common scheme or plan.¹⁹ The State concedes that because neither of the events was well thought out and both appeared to be impulsive that a common scheme or plan is absent. Although both crimes occurred in residences, Hitt's 2002 rape conviction occurred in his own residence (an apartment), and the current incident occurred in the victims' residence (a house). The State now concedes that this is an insignificant similarity since most sex crimes occur in residences. And while in both incidents the victims were young, college-aged females, this also is of limited significance because no evidence suggests that Hitt knew that eight young, college-aged women occupied the residence.²⁰ In both events, the victims offered Hitt money in order to get away from him, but such aresponse to Hitt's criminal behavior does not relate to his common scheme or plan.

Moreover, in both incidents, Hitt ordered a victim to disrobe themselves, which they did. But the State concedes that ordering a victim to disrobe is a limited similarity. In Hitt's 2002 rape, disrobing was an immediate prelude to rape. And, at least as far as the current incident unfolded, ordering K.B. to disrobe so Hitt could bind her wrists had limited similarity to the 2002 rape. In both cases, Hitt also expressed repeated concern about being caught by police. But in the 2002 rape, this occurred after he completed the rape, and in the current incident, Hitt was preoccupied with the victims calling the police from the outset. The State now concedes that the similarities do not amount to "markedly similar acts of misconduct [committed] under similar circumstances"²¹ and "[su]fficient repetition of complex common features."²² We accept the State's concession that evidence of Hitt's 2002 rape conviction should not have been admitted. The sexual motivation special verdicts must therefore be reversed and this matter remanded for resentencing.

Hitt contends that we should also reverse his remaining convictions and remand for a new trial because the trial court allowed the jury to consider Hitt's 2002 rape conviction to show "motive or intent with respect to conduct charged by the [Sjtate in this case."²³ Hitt contends that the prejudice stemming from the admission of his 2002 rape conviction cannot be confined to the sexual motivation special verdicts. We disagree.

"Erroneous admission of evidence in violation of ER 404(b) is analyzed under the nonconstitutional harmless error standard."²⁴ We must ask whether there is a reasonable probability that, without the error, "'the outcome of the trial would have been materially affected.'"²⁵ "The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole."²⁶

"Evidence of prior felony convictions is generally inadmissible against a defendant because it is not relevant to the question of guilt yet very prejudicial, as it may lead the jury to believe the defendant has a [criminal] propensity."²⁷ We also acknowledge that the potential...