State v. Hodgson
| Decision Date | 23 July 1986 |
| Docket Number | 14718-8-I and 14762-5-I,Nos. 14610-6-,s. 14610-6- |
| Citation | 44 Wn.App. 592,722 P.2d 1336 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. James M. HODGSON, Appellant. STATE of Washington, Respondent, v. Dennis FIED, Appellant. STATE of Washington, Respondent, v. Brian T. BEHRLE, Appellant. |
Norm Maleng, King County Pros. Atty., Michael Schwartz and Jeffrey Baird, Deputy Pros. Attys., Seattle, for State of Wash. in Nos. 14610-6-I and 14718-8-I.
Dori Jones, Washington Appellate Defender, Seattle, for Dennis Fied and Brian Thomas Behrle.
Michael Schwartz and Jeffrey Baird, Deputy Pros. Attys., Seattle, for State of Wash. in No. 14762-5-I.
Appellants James Hodgson, Dennis Fied, and Brian Behrle appeal their multiple convictions for first degree statutory rape, second degree statutory rape, and indecent liberties. We affirm in part and reverse in part.
Because the factual and legal issues raised in these three appeals overlap, it is preferable, in the interest of judicial economy, to consolidate the cases for purposes of our opinion. Also, since the appeals involve numerous challenges to the sufficiency of the evidence supporting the various counts and convictions, the facts will be set forth in greater detail in our evaluations of the issues.
During the late 1970's and early 1980's, appellants Behrle, Fied, and Hodgson lived on Vashon Island in the Wesleyan church community.
Though the record is somewhat unclear, it appears that in 1983 the community became aware of sexual activities between appellants and certain children in the community. In March of that year, the adult community members held a meeting and decided to contact the police. The adults also contacted appellants Behrle and Fied and told them they could no longer visit the community except to make their peace and admit guilt. Appellant Hodgson had already been expelled from the community in January 1983.
On March 28, 1983, community members contacted the sex crimes unit of the King County police. Detective Spence Nelson subsequently went out to the community and commenced an investigation to determine the extent and duration of the alleged sexual abuse of children.
On October 14, 1983, the State charged Brian Behrle by amended information with 11 counts of statutory rape in the first degree, 3 counts of statutory rape in the second degree, and 2 counts of indecent liberties. Dennis Fied was charged by amended information with 11 counts of statutory rape in the first degree, 3 counts of statutory rape in the second degree, and 2 counts of indecent liberties. James Hodgson was charged with 7 counts of statutory rape in the first degree, 2 counts of statutory rape in the second degree, and 1 count of indecent liberties.
On December 21, 1983, the court held a hearing on appellant Hodgson's motion to suppress a statement made to Detective Nelson. The court denied the motion, and the matter came on for bench trial on January 10, 1984.
The testimony at trial generally established a long history of sexual abuse of children by appellants. Several children testified that they were sexually abused by either Behrle, Fied, or Hodgson prior to arriving in the Wesleyan community. Nearly all of the children testified that they were repeatedly abused by one or more of the appellants during the late 1970's and early 1980's. The children generally suffered the same types of abuse, including various types of sexual contact, oral/genital intercourse, penile/anal intercourse, penile/vaginal intercourse, digital/vaginal intercourse, and object/vaginal intercourse.
The court found appellant Fied guilty of 9 counts of statutory rape in the first degree, 3 counts of statutory rape in the second degree, and 2 counts of indecent liberties. The court found appellant Behrle guilty of 9 counts of statutory rape in the first degree, 2 counts of statutory rape in the second degree, and 2 counts of indecent liberties. The court found appellant Hodgson guilty of 4 counts of first degree statutory rape, 2 counts of second degree statutory rape, and one count of indecent liberties. This appeal followed.
Appellants first contend they were denied equal protection of the law because (1) the statutes relating to statutory rape, 1 indecent liberties, 2 and incest, 3 are "concurrent"; (2) the incest statute is more specific than the others; (3) equal protection is violated if a general statute is charged instead of a more specific statute; and (4) since the State charged appellants with statutory rape and indecent liberties instead of incest, their right to equal protection of the laws was violated.
For purposes of equal protection, two statutes are "concurrent" only if the general statute will be violated in each instance where the special statute has been violated. State v. Shriner, 101 Wash.2d 576, 580, 681 P.2d 237 (1984). Thus, this court must determine whether a violation of the incest statute will always constitute a violation of either the indecent liberties statute or the statutory rape statute.
With respect to the indecent liberties statute, Division Three of this court recently held that "incest is not a special statute which supersedes indecent liberties." State v. Farrington, 35 Wash.App. 799, 803, 669 P.2d 1275 (1983), review denied, 100 Wash.2d 1036 (1984). The Farrington court stated:
For Mr. Farrington's equal protection claim to have merit, incest and indecent liberties must have identical elements and a violation of the incest statute must necessarily violate the indecent liberties statute. The elements of the two crimes are not identical. Incest requires proof of sexual intercourse, while indecent liberties requires proof only of sexual contact. Of the three possible ways of committing indecent liberties, two require proof of lack of consent. Consent is not an issue in an incest charge. State v. Coffey, 8 Wn.2d 504, 112 P.2d 989 (1941). Moreover, it is possible to commit the crime of incest without committing the crime of indecent liberties. For example, a defendant could engage in consensual sexual intercourse with his adult sister and violate the incest statute, but not the indecent liberties statute. Thus, we hold incest is not a special statute which supersedes indecent liberties.
(Footnote omitted.) Farrington, at 802-03, 669 P.2d 1275. However, it should be noted that the incest statute was amended in 1982 to include a second degree incest charge based only on "sexual contact." Though the Farrington court based its holding on the former incest statute, the crucial distinctions noted by the court are still valid under the amended statute. Moreover, a comparison of the new second degree incest section and the indecent liberties statute shows that a violation of the former does not necessarily violate the latter. Commission of second degree incest does not necessarily violate sections (a) and (c) of the indecent liberties statute because the latter require lack of consent. Likewise, commission of second degree incest does not necessarily violate section (b) of the indecent liberties statute because the latter requires that the victim be under 14 years of age. Thus, the incest statute, as amended, is not a special statute which supersedes indecent liberties.
With respect to statutory rape, a comparison of the incest statute and the statutory rape statutes shows that those statutes are not concurrent. Violation of the second degree incest statute does not necessarily violate the statutory rape statutes because the three degrees of statutory rape 4 all require sexual intercourse, while second degree incest only requires sexual contact. Also, first degree incest, which requires sexual intercourse, may be committed without committing statutory rape. For example, an adult defendant could engage in sexual intercourse with his or her adult sibling and violate the incest statute, but not the statutory rape statutes. Thus, the incest statute is not a special statute which supersedes the statutory rape statutes.
The above analysis also disposes of appellants' argument that the prosecutor in this case had discretion to seek varying degrees of punishment by proof of identical criminal elements. Though prosecutorial discretion to seek varying punishments when proving identical elements does violate equal protection, State v. Danforth, 97 Wash.2d 255, 643 P.2d 882 (1982), the previous analysis demonstrates that the elements of the crimes at issue are not identical, and the prosecutor's discretion is controlled by the different proof requirements contained in the statutes. See Farrington, at 801-03, 669 P.2d 1275.
Under Washington law, in order for a particular offense to be a lesser included offense, " 'each of the elements of the lesser offense must be a necessary element of the offense charged.' " State v. Parker, 102 Wash.2d 161, 164, 683 P.2d 189 (1984) (quoting State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978)); State v. Partosa, 41 Wash.App. 266, 269, 703 P.2d 1070, review denied, 104 Wash.2d 1017 (1985). Appellants argue that indecent liberties is not a lesser included offense of statutory rape in the first degree. They contend that in order to prove the crime of indecent liberties, the State must prove an element which is not a necessary element of first degree statutory rape; i.e., that the perpetrator was not married to the victim.
The State argues, however, that while the nonmarriage element is not expressly set forth in the first degree statutory rape statute, it is logically implicit in the statute's requirements. The State points out that the first degree statutory rape statute requires that the victim be less than 11 years of age. Therefore, since RCW 26.04.010...
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... ... Warren asserts that the information charging first degree statutory rape here was constitutionally defective because it failed to allege the element of nonmarriage, an argument that rests on two recent conflicting Court of Appeals decisions, State v. Hodgson, 44 Wash.App. 592, 722 P.2d 1336 ... (1986),aff'd, 108 Wash.2d 662, 740 P.2d 848 (1987), and State v. Bailey, 52 Wash.App. 42, 757 P.2d 541, review granted, 111 Wash.2d 1019 (1988). To be successfully [779 P.2d 1166] challenged for the first time on appeal, an information must be so obviously ... ...
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