State v. Johnson

Decision Date04 October 1979
Docket NumberNo. 46023,46023
Citation92 Wn.2d 671,600 P.2d 1249
PartiesSTATE of Washington, Respondent, v. Gary L. JOHNSON, Appellant.
CourtWashington Supreme Court

John Strait, Tacoma, for appellant.

C. Danny Clem, Pros. Atty., Ronald A. Franz, Deputy Pros. Atty., Port Orchard, for respondent.


The appellant was found guilty of two counts each of first-degree rape, first-degree kidnaping, and first-degree assault. The jury made special findings that he was armed with a deadly weapon when committing the assaults and kidnapings. He was found not guilty of statutory rape. In a supplemental proceeding, he was adjudged to have the status of habitual criminal. Concurrent life sentences were imposed for each of the convictions for rape, kidnaping and assault.

At the trial, the appellant had been represented by counsel of his own choice, who withdrew at the appellant's request and with the approval of the court after arguing a motion for a new trial. The appellant's indigence being shown, the court appointed a public defender to represent him at the supplemental hearing and sentencing. The appellant grew dissatisfied with appointed counsel, and his present counsel was then appointed to represent him on appeal.

Before discussing the issues raised by present counsel, we will summarize the facts, as disclosed by the prosecution's evidence. The appellant, alone in his automobile, picked up two hitchhikers, girls 13 and 14 years of age, who willingly went with him to his home, a 3-room cabin, to drink wine and smoke marijuana. While the girls were engaged in these activities and amusing themselves in the living room, he locked the entrances and wrote a note, which he delivered to one of them when he summoned her to the bathroom. There, after holding a knife to her neck and declaring his intention to rape her, he removed her bib overalls and bound her hands and mouth with adhesive tape. The note contained a threat to kill her if she did not do as he told her.

Again carrying the knife, he approached the other girl, who was sitting in the living room dozing. He directed this girl to the bathroom, where the first girl was told to explain what would happen if his directions were not followed. He then dragged one of the girls to the bedroom and called the other to join them, which she did. He had them lie on the bed and used adhesive tape and jean material to secure one hand of each girl to a bedpost and their other hands together. He had intercourse with each girl, after which he left the house upon their request that he purchase cigarettes.

When he was gone, one of them managed to free herself, took the note and escaped to a neighboring house, where, in an obviously distraught state, she reported that she had been raped and that a man was raping her friend in the cabin and was going to kill her. The sheriff's office was contacted and deputies were dispatched to the scene. Before their arrival, however, the appellant had returned and, finding that one girl had fled and the other had managed to extricate herself, ordered the latter to go to his car. As they were leaving, two men arrived to inquire about the purchase of the automobile, which the appellant had advertised for sale that day. He told them to return an hour later. The girl did not communicate with the men but testified that she tried to whisper to them to get help. They noticed that she looked as though she had been crying.

The appellant took this girl to a wooded area, made her lie on a sleeping bag (he still had a knife in his hand, as well as a bottle of wine) and had intercourse with her. Afterwards, he sat on the ground crying until she persuaded him to take her to the home of friends. On the way he told her that he was going to commit suicide. He was arrested when he returned to his cabin, where sheriff's deputies were waiting for him.

The appellant's counsel, urging that his client is entitled to a new trial, advances a theory which admittedly was not raised in the trial court. He acknowledges the general rule to be that alleged errors which were not called to the attention of the lower court will not be considered on appeal. RAP 2.5(a). He contends, however, that his theory involves a "manifest error affecting a constitutional right", which the court will consider under RAP 2.5(a)(3). His theory is that the accumulation of charges in a case such as this was not intended by the legislature to unduly prejudice the jury, and operates to deny a defendant a fair trial; and, further, that it is forbidden under the double jeopardy clauses of the state and federal constitutions. (U.S.Const. amend. 5; Const. art. 1, § 9.) While we have not concluded that counsel is entirely correct in his evaluation of the impact of the claimed error, we find that it has sufficient substance to warrant consideration on appeal.

Counsel urges that the prosecutor should not have been permitted to charge the appellant with the crimes of kidnaping and assault, but only with the crime of rape in the first degree. The statutes defining these three crimes provide:

(Rape in the first degree.) (1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person not married to the perpetrator by forcible compulsion where the perpetrator or an accessory:

(a) Uses or threatens to use a deadly weapon; or

(b) Kidnaps the victim; or

(c) Inflicts serious physical injury; or

(d) Feloniously enters into the building or vehicle where the victim is situated.

RCW 9.79.170(1).

(Assault in the first degree.) (1) Every person, who with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, shall be guilty of assault in the first degree when he:

(a) Shall assault another with a firearm or any deadly weapon or by any force or means likely to produce death; or

(b) Shall administer to or cause to be taken by another, poison or any other destructive or noxious thing so as to endanger the life of another person. 1

RCW 9A.36.010.

(Kidnaping in the first degree.) (1) A person is guilty of kidnaping in the first degree if he intentionally abducts another person with intent:

(a) To hold him for ransom or reward, or as a shield or hostage; or

(b) To facilitate commission of any felony or flight thereafter; or

(c) To inflict bodily injury on him; or

(d) To inflict extreme mental distress on him or a third person; or

(e) To interfere with the performance of any governmental function. 2

RCW 9A.40.020(1).

It will be seen that in order to obtain a conviction under RCW 9.79.170, the prosecutor must prove not only that the defendant committed rape, but that the rape was accompanied by an act which is defined as a separate crime elsewhere in the criminal statutes. Even though it is not necessary to prove more than one such additional crime, and a particular accused may have committed two or more of the listed crimes in connection with a rape, counsel contends that it was the legislative intent that any such attendant crime should not be a subject for independent prosecution.

In support of this theory, he calls the court's attention to the fact that the former rape statute did not distinguish different degrees of rape, and a single penalty was provided no matter how aggravated the rape might have been. Where aggravating circumstances were present, prosecutors found it necessary to add charges in order to assure that the defendant would be given a punishment commensurate with his crime.

It was not uncommon that the use of this device resulted in excessive punishments. The practice of increasing the punishment by pyramiding the charges was particularly troublesome where broadly worded kidnaping statutes were employed. Such statutes carried heavy penalties. In order to subject the defendant to those penalties, a kidnaping would be charged where there was a rape, even though the abduction or restraint involved was merely incidental to the rape and involved no increased risk of harm. A number of courts perceived that such employment of kidnaping statutes was not within the legislative intent. See People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965); People v. Adams, 34 Mich.App. 546, 192 N.W.2d 19 (1971); People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677 (1969).

In enacting RCW 9.79.170 and the Washington Criminal Code, RCW Title 9A, the legislature has removed the necessity or occasion for the pyramiding of charges or the misuse of kidnaping charges by creating more clearly defined degrees of crimes, as in the rape and kidnaping statutes, and specifying the types of conduct incidental to the crime which will call forth more severe penalties.

As we read the statutes, the legislature intended that conduct involved in the perpetration of a rape, and not having an independent purpose or effect, should be punished as an incident of the crime of rape and not additionally as a separate crime.

While it is not expressly set forth in the statute, this construction of the legislative intent is nowhere negated. That the legislature was mindful of the question whether multiple punishments should be imposed for crimes incidental to a given offense is evidenced in RCW 9A.52.050. That section provides:

Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately.

If this section is read with RCW 9A.52.020 and .030, defining burglary in the first and second degrees, 3 it will be seen that, while subsection (1) of .020 includes assault as an element, subsection (1) of .030 involves no other offense. Both, however, have as an element the intent to commit another crime. It would appear, therefore, that RCW 9A.52.050 has reference to such other crimes, rather than to the assault which is an element of...

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