State v. Johnson

Decision Date15 January 1982
Docket NumberNo. 47794-9,47794-9
Citation96 Wn.2d 926,639 P.2d 1332
PartiesSTATE of Washington, Respondent, v. Clyde Otto JOHNSON, Petitioner.
CourtWashington Supreme Court

Byron Ward, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Robert S. Lasnik, Sr., Howard K. Todd, Deputy Pros. Attys., Seattle, for respondent.

HICKS, Justice.

Clyde Johnson was convicted of statutory rape in the first degree and indecent liberties. The Court of Appeals affirmed the convictions. We granted petition for review as we disagree with the reasoning of the Court of Appeals. We do, however, affirm both the trial court and Court of Appeals in the result.

Defendant's convictions were based on the following evidence:

A five-year-old girl went down the street to play with her friend. The friend was not home, but the man who lived with her mother, Clyde Johnson, was. Johnson took the girl into the bathroom and washed her "bottom" with a washcloth. Afterwards he had her perform fellatio upon him. They were in the bathroom when both acts took place.

According to the girl, they then went into the living room so he could "read some books" to her. She sat on his lap. While they were reading, "he put it out".

The girl's parents learned of the incident later that day when she asked her father if milk comes out of a penis. Both parents testified at trial, without objection, as to what she had related to them of the incident.

The girl, as the trial judge observed, is a bright child, but nevertheless had a great deal of difficulty discussing the incident. She testified that defendant told her it was "milk" that "came out of the penis", but she didn't think so "cause it tasted yucky". The information charged two counts, count 1-statutory rape, count 2-indecent liberties. According to the prosecutor's affidavit of probable cause, the latter charge was based on the incident in the bathroom when Johnson wiped the child's bottom.

When the jury returned guilty verdicts on both counts, the court sentenced Johnson to 20 years for rape and 10 years for indecent liberties, to run concurrently.

Johnson appealed and both convictions were affirmed by the Court of Appeals. State v. Johnson, 28 Wash.App. 459, 624 P.2d 213 (1980). However, the court substituted, as the factual underpinnings for the indecent liberties conviction, the latter incident when Johnson exposed himself to the child as he read to her on his lap.

The convictions are based on the following statutes:

RCW 9A.44.070 states:

(1) A person over thirteen years of age is guilty of statutory rape in the first degree when the person engages in sexual intercourse with another person who is less than eleven years old.

(2) Statutory rape in the first degree is a class A felony. No person convicted of statutory rape in the first degree shall be granted a deferred or suspended sentence except for the purpose of commitment to an inpatient treatment facility.

RCW 9A.44.010 states in part:

(1) "Sexual intercourse" (a) has its ordinary meaning and occurs upon any penetration, however slight, and

(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and

(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.

RCW 9A.44.100 states:

(1) A person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

(a) By forcible compulsion; or

(b) When the other person is less than fourteen years of age; or

(c) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless.

(2) For purposes of this section, "sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party.

(3) Indecent liberties is a class B felony.

Both defendant and the State on motion for reconsideration to the Court of Appeals and on petition for review to this court asserted that the conduct of defendant in the living room did not rise to the level of indecent liberties, at least as the evidence came in at trial.

Although the State later altered its approach on oral argument to this court, we agree with the parties' original positions that proof of the lap-sitting incident did not include the requisite element of "sexual contact". Thus there was not evidence to support the separate indecent liberties conviction. However, the two acts in the bathroom as originally charged by the State and argued to the jury do support both convictions.

On the issue of the competency of the child witness, we agree with the reasoning of the Court of Appeals. This was within the sound discretion of the trial court and the record demonstrates no abuse of discretion in finding her competent and allowing her testimony.

As to defendant's challenge to RCW 9A.44.100 as constitutionally overbroad, it is not well taken. In his petition he questions whether the indecent liberties statute "becomes unconstitutionally vague in its application to defendant" and asserts that "the statute becomes overly broad and constitutional problems are created." Then on oral argument, counsel argued that the term "intimate parts" was unconstitutionally vague.

An "as applied" vagueness challenge was rejected in In re Adams, 24 Wash.App. 517, 601 P.2d 995 (1979). See also State v. Galbreath, 69 Wash.2d 664, 419 P.2d 800 (1966), which rejected "facial" vagueness arguments concerning the former indecent liberties statute, RCW 9.79.080(2).

The bare quote with no citations is the extent of defendant's overbreadth argument, except for his remarks on oral argument of this matter. A governmental purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. However, in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Supreme Court emphasized a "substantial overbreadth" theme, and suggested that overbreadth invalidations were inappropriate when the allegedly impermissible statute affected "conduct" rather than "speech". In the instant case, defendant's conduct is admittedly within the power of the State to proscribe. He advances no "protected freedom" that he or any other person might have to counterbalance the State's interest. Therefore, even if the petition argued overbreadth in a more serious fashion, we do not believe that any argument that RCW 9A.44.100 is overbroad or unconstitutionally vague would be persuasive.

The last issue is whether defendant's convictions for both indecent liberties and statutory rape for the incidents in the bathroom violate the double jeopardy clauses, Const. art. 1, § 9 and the Fifth Amendment.

First, we note that the sentences for the two crimes were to run concurrently. The rule in this state has long been that where there are several charges against a person for the same act or transaction and convictions are obtained on all counts, if his sentences are made to run concurrently and do not exceed the penalty for one of the offenses of which he was properly convicted, he is being punished "but once for his unlawful act." In re Rice, 24 Wash.2d 118, 124, 163 P.2d 583 (1945). Although the rule was questioned in dictum in State v. Johnson, 92 Wash.2d 671, 600 P.2d 1249 (1979), it was not rejected.

In State v. Claborn, 95 Wash.2d 629, 628 P.2d 467 (1981), this court upheld against a double jeopardy challenge deadly weapon penalty enhancements attached to both a burglary conviction and a theft conviction for the same transaction. But we stated in footnote 7 at page 637, 628 P.2d 467:

We note with interest that this case does not actually involve multiple enhancement as a practical matter. Appellant was sentenced to a maximum term of not more than 10 years on count 2 (burglary in the second degree) and 10 years on count 3 (theft in the first degree) to run concurrently.

The federal courts also do not find multiple punishment where sentences run concurrently. In United States v. Nickerson, 211 F.2d 909 (7th Cir. 1954), the court held that where two indictments describing the same offense are tried at the same time, there is neither double jeopardy nor double punishment if the judgment provides that the sentences shall run concurrently and if the maximum time the defendant must serve is not more than the maximum sentence provided for one of the crimes. See Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699 (1925). See also Maxfield v. United States, 152 F.2d 593 (9th Cir. 1945).

The leading Supreme Court decisions in the area of double jeopardy and multiple punishment raise the issue only in the context of "cumulative" punishment through consecutive sentences. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); and most recently Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

Such a large policy change in the criminal law we decline to make, and counsel has set out no convincing reasons why we should. In our view, there is no multiple punishment, and no constitutional infirmity, where the sentences are imposed concurrently. However, the maximum must be no more than the maximum punishment defendant was in "jeopardy" of receiving had he gone to trial only on the single most serious crime that could be charged stemming from his criminal conduct.

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