State v. Landrum
| Decision Date | 23 February 2012 |
| Docket Number | No. 28985-1-III,Consolidated with No. 28986-9-III,28985-1-III |
| Parties | STATE OF WASHINGTON, Respondent, v. TAYLOR ROSS LANDRUM, Appellant. |
| Court | Washington Court of Appeals |
Sweeney, J. — This appeal follows convictions for one count of second degree rape, four counts of first degree solicitation of perjury, and one count of attempted indecent liberties. We affirm the convictions for second degree rape and attempted indecent liberties. We conclude that the unit of prosecution rule permits conviction on only one count of first degree solicitation of perjury and that the sentencing judge improperly ran the sentences consecutively. We therefore reverse three of those counts and remand for resentencing.
C.H. reported to the Kennewick police in October 2006 that Taylor Landrum made sexual advances toward her in his truck after he offered to give her and a girl friend a ride home from a bar. Her friend had passed out in the back seat of the truck; Mr. Landrum drove them to a remote location. Ms. H. reported that Mr. Landrum then leaned over, put his hands on her shoulders, pushed her down in the seat, and tried to kiss her on the neck. Ms. H. eventually struggled out from under Mr. Landrum and got herself and her intoxicated friend out of the truck and the two fled.
C.S. reported to the Richland police in October 2008 that Mr. Landrum raped her in his truck outside of a local bar. She met Mr. Landrum at the bar and later followed him to his truck to get a light for her cigarette. Ms. S. first hung her legs outside of the passenger door of his truck but put her legs in the truck after Mr. Landrum offered to turn the heater on. Mr. Landrum then sped off into an alleyway. He told her he had a knife. He grabbed her leg and shirt, tore off her undergarment, put his weight on her chest, and had sex with her against her will.
The State charged Mr. Landrum on July 18, 2008, by information with attempted indecent liberties with Ms. H.. The State charged Mr. Landrum on October 15, 2008, by separate information with second degree rape of Ms. S. The State moved to join the twocases. The trial court first denied joinder: "I think that trying to try these cases together I think would result in the very real possibility that the jury might look at these two matters together and say if they're charging him with two of these things then he must have committed these crimes." 1 Report of Proceedings (RP) at 82-83. The court agreed to revisit the ruling after an ER 404(b) hearing to resolve disputes over the admissibility of evidence of Mr. Landrum's prior bad acts. ER 404(b) ( ).
The State amended the information to charge Mr. Landrum with the rape of Ms. S. and to add four counts of first degree solicitation of perjury. The solicitation charges followed a series of letters or notes that Mr. Landrum passed to Robert Pyke. Mr. Pyke was a fellow inmate at the Benton County Jail. Mr. Landrum wanted Mr. Pyke to lie about Ms. S. and offered cash and a pickup truck in return for Mr. Pyke's help in discrediting Ms. S.
In September of 2009, the court held a hearing to hear argument on whether to admit the evidence of Mr. Landrum's prior bad acts. Several other women came forwardand reported that Mr. Landrum had made unwanted sexual advances, including an instance of intercourse. The court concluded that the testimony was admissible to show common scheme or plan:
Those cases, it appears to this Court, do seem to indicate a common scheme or plan where Mr. Landrum would find someone who was in somewhat of a vulnerable situation, either there is intoxication or being isolated, offering them either a ride or some other manner getting them into his vehicle and then going to someplace other than what is indicated would be the location, and then at least attempting to have sexual contact with those individuals. . . . There is at least indications of use of threat of harm to these individuals if they failed to comply.
3 RP at 448; Clerk's Papers (CP) at 149-52. The court also concluded that the evidence would be admissible in both of the separately charged counts (second degree rape/perjury and attempted indecent liberties) and therefore the counts would be joined for trial:
The Court is going to join these two cases for trial. I think having ruled that they are in fact cross-admissible, separating those counts I think would have no practical effect on the jurors' ability to render a fair and impartial verdict. So the Court is going to join those two. Certainly in the interest of judicial economy and interest in saving resource[s] for all involved, the evidence is going to be essentially cross-admissible.
4 RP at 462. The court entered appropriate findings of fact and conclusions of law and ordered the counts joined for trial. The court later denied a motion to sever the counts. The case proceeded to a jury trial.
At trial, the State presented testimony from Ms. S. and Ms. H., Mr. Pyke, investigating officers from both incidents, and the other women who had reported Mr. Landrum's unwanted sexual advances.
Officer Mary Buchan of the Kennewick Police Department testified about her investigation of the assault of Ms. H. She discussed the matter with Mr. Landrum by phone. The State then asked Officer Buchan if Mr. Landrum had been willing to come to the station to speak with her about the incident. Officer Buchan responded: 4 RP at 556. Defense counsel did not object.
Ms. S. testified that she had consumed several alcoholic beverages on the evening she was raped by Mr. Landrum. Counsel tried to ask whether Ms. S. was also taking medication at the time of the rape. The State objected. Counsel told the court that Ms. S. said during the defense interview that she was taking Diazepam and Lithium. The court ruled that counsel could not ask Ms. S. about contemporaneous use of medications, absent "some offer of proof as to how these medications that she was taking, or is taking, how that impacts her ability to either observe or to recall." 5 RP at 697.
Officer Christopher Lee of the Richland Police Department also testified about his investigation of the rape of Ms. S. The State asked Officer Lee, based on his experience, whether Ms. S. behaved consistently with victims of the type of crime she alleged, and Officer Lee responded that she did. Officer Lee had testified earlier on questioning from defense counsel that Ms. S. was very emotional, often crying uncontrollably. Defense counsel objected to the State's question and the court overruled the objection.
Mr. Pyke was the fellow jail mate of Mr. Landrum. He testified about the five notes he received from Mr. Landrum during a seven-month period starting from October 2008.
The court's instructions to the jury included the following elements instruction:
The jury found Mr. Landrum guilty of one count of second degree rape, fourcounts of first degree solicitation of perjury, and one count of attempted indecent liberties. The court sentenced Mr. Landrum to terms of 160 months for the attempted indecent liberties against Ms. H. and 280 months to life in prison for the rape of Ms. S. The court ordered that the 280-month sentence run consecutive to the 160-month sentence. The court also imposed terms of 40.5 months on each of the solicitation convictions. The trial court, then, on its own motion, sealed the juror questionnaires.
We review a court's decision to join separate offenses for abuse of discretion. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). A court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
Mr. Landrum argues that the joinder of the two cases and the related admission of evidence of the prior bad acts were unduly prejudicial. He argues that the jurors surely viewed him as a serial sex offender because he was charged with two separate sex offenses committed over a span of time. Mr. Landrum also contends that the evidence relating to the charged counts was not cross-admissible under ER 404(b) because the incidences involving Ms. S. and Ms. H. lack the similarity required to show a commonscheme or plan. Counsel refers to the judge's initial comments to suggest that the outcome here should have been severance. We do not read the record that way.
The court undertook the very kind of candid weighing and balancing that counsel and their clients should want a trial judge to do when faced with these discretionary decisions. And, of course, the test is not whether we would have made the same decision. We were not charged with the responsibility of trying this case in the first instance. Our job is to review for errors, here abuse of discretion, which may have resulted in insurmountable prejudice. State v. Williams, 156 Wn. App. 482, 500, 234 P.3d 1174, review denied, 170 Wn.2d 1011 (2010). The potential for prejudice that Mr. Landrum suggests...
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