State v. Markle

• Decision Date: 13 February 1992
• Docket Number: No. 57611-4,57611-4
• Citation: 823 P.2d 1101,118 Wn.2d 424
• Parties: STATE of Washington, Respondent, v. Frank L. MARKLE, Appellant.
• Court: Washington Supreme Court

Page 424

118 Wn.2d 424

823 P.2d 1101

STATE of Washington, Respondent, v.Frank L. MARKLE, Appellant.

No. 57611-4.

Supreme Court of Washington En Banc.

Feb. 13, 1992.

Washington Appellate Defender, Theresa B. Doyle, Seattle, for appellant.

Norm Maleng, Pros.Atty., and Theresa L. Fricke, Sr. Appellate Atty., Seattle, for respondent.

GUY, Justice.

Frank Markle challenges his convictions on three counts of indecent liberties with two female children.Mr. Markle contends the trial court erred on counts 1 and 2 by instructing the jury that indecent liberties under former RCW 9A.44.100(1) was a lesser included offense of statutory rape in the first and second degrees under former RCW 9A.44.070(1) and former RCW 9A.44.080(1).Mr. Markle further submits the trial court erred when it denied his motions to sever joinder of count 3, which involved a different victim from counts 1 and 2.Finally, Mr. Markle assigns error to the trial court's pretrial ruling which precluded the defense from questioning at trial the alleged victim in counts 1 and 2 regarding her earlier sexual abuse by Mr. Markle's son.We granted certification and reverse Mr. Markle's convictions on counts 1 and 2 and affirm on count 3.

PROCEDURAL HISTORY

Appeal was certified to this court pursuant to RCW 2.06.030 as it involves an issue "on which there is a direct conflict among prevailing decisions of panels of the court".RCW 2.06.030(e).That issue is whether the crime of indecent liberties is a lesser included offense of statutory rape in either the first or second degree under the former statutory scheme in this state.Certification was accepted for determination of this and all other issues on the merits.

Mr. Markle was charged by information filed and amended to allege three offenses.Count 1 alleged first degree statutory rape against his niece, Lisa, committed between April 15, 1981 and May 3, 1984.Count 2 alleged second degree statutory rape, also against Lisa, committed between May 4, 1984 and December 31, 1985.Count 3 alleged indecent liberties against another niece, Sonia, committed between April 25, 1983 and December 31, 1985.

During pretrial motions, the court discussed with defense counsel that the charges against Mr. Markle could be amended up until the end of the State's case.Counsel for the defendant moved to sever counts 1 and 2 from count 3, as count 3 involved a different child.The court denied the motion, stating that the charges were sufficiently similar and that charges and evidence could be separated in jury instructions.The State moved to exclude any evidence regarding sexual abuse of Lisa (the complainant in counts 1 and 2) by the defendant's son.Defendant Markle made an offer of proof, advancing the theory that Lisa was accusing the defendant of sexual molestation because he was unresponsive to her complaint about his son's actions.The court ruled that defense counsel could make no reference to this allegation in opening arguments and that the court would allow further argument to the bench on this motion.

At the close of the State's case, the defendant moved to dismiss counts 1 and 2, involving Lisa, for lack of evidence of penetration.The State sought to amend to the lesser included offenses of attempted statutory rape in the first and second degrees.The court refused to allow the proposed lesser included offenses of attempt to go to the jury, there being no testimony indicating the use of force.The court allowed the amendment of counts 1 and 2 to indecent liberties as lesser included offenses, also ruling that since one count of indecent liberties was already charged, there was no problem of notice to the defendant or need for altered discovery.The defendant specifically asked that the record reflect the State's motion to amend the charge, and the court granted the defendant's motion for continuance.

The trial court also denied renewed defense motions to sever.At the opening of the defendant's case, defense counsel made repeated objection to the amendment of counts 1 and 2 to indecent liberties.The State renewed its motion to exclude testimony regarding the sexual abuse of Lisa by Mr. Markle's son.Defense counsel advised the evidence would be offered as proof that Lisa had a motive to fabricate her accusations against Mr. Markle, as she had transferred her anger from the son to the father.The court excluded the testimony regarding the acknowledged prior sexual abuse of Lisa, stating it was "a complete tangent" from the evidence the State had presented, and that the evidence was potentially prejudicial to the defendant, as well as abusive of the complainant.Defense counsel moved for a mistrial, and the court denied the motion.No severance was granted on count 3.

A jury found Mr. Markle guilty on all three counts of indecent liberties.Mr. Markle's motion for a new trial was denied, and the trial court imposed an exceptional sentence of 48 months on each count, to be served concurrently.The presumptive range was 21-27 months.Defendant appealed and the Court of Appeals certified the appeal.

FACTUAL BACKGROUND

The State presented the following testimony: Lisa, the complainant in counts 1 and 2, was born May 4, 1973.She was the adopted daughter of Mr. Markle's sister-in-law and often spent time around the defendant with her other cousins, including Sonia, the complainant in count 3.Sonia was born April 25, 1974.Mr. Markle was formerly married to her aunt.

Sonia testified that she and some other cousins, including Lisa, once slept overnight at the defendant's trailer.That evening, with Mr. Markle, they watched a feature film on videotape entitled "Used Cars".The film included a sex scene and nudity.The next morning, as the children were asleep on the living room floor in sleeping bags, Sonia awoke and saw defendant Markle on his knees near Lisa.Lisa was in her sleeping bag and Sonia testified Mr. Markle "had his hand down in the sleeping bag and I can't really explain her expression".Sonia further testified that later in the day, she and Lisa went in the defendant's car.No one else was with them.Mr. Markle let both girls hold the steering wheel while seated on his lap.He rubbed Sonia's buttocks while she sat on his lap.After they returned to the trailer from the drive, Sonia said that while she was in her sleeping bag and seated on Mr. Markle's lap, he proceeded to place his hand inside the sleeping bag, inside her clothing, and against her vagina.She testified she did not think his hand penetrated her vagina, because it did not hurt.

Lisa testified that during the time around second and third grade she was around the defendant often, and continued to be over a period of several years.At the age of seven or eight, she stated, she went with Mr. Markle into the woods behind his house where he told her that if she was a real adult and loved him, she would kiss him like the people in a film they had seen kissed.Lisa testified that around the third or fourth grade she would go driving with the defendant, and that sometimes the defendant would place his hands inside her clothing, rub her stomach and then place his hand against her vagina.She was unable to recall whether or not there was any penetration.Lisa further testified that when she was about 10 years of age, she stayed overnight with other cousins at defendant Markle's house.She told the court that while she slept, Mr. Markle tried to put his hand into her pants, but stopped when she began to cry.There was further testimony that in August 1984, when Lisa was 11 years old, Mr. Markle picked her up at home, stopped at a liquor store and purchased a bottle of Black Velvet, and then went to a Safeway and bought "slurpies", drinks made of flavored blended ice.According to the testimony, when they arrived at the defendant's home, he told her that if she were a real adult she would drink a mix of the slurpie and the Black Velvet, and she did drink the mixture.When Lisa began to feel ill, Mr. Markle gave her pills.He then asked Lisa if she wanted to play darts like a big girl.He called the game "pussy darts" and rubbed the dart against her clothing in the vaginal area, then inside her clothing "for extra good luck".He then pulled her pants and underpants down and placed his penis against her vagina, saying it was for "private extra good luck".He then rubbed the dart against both their genitals and threw the dart.Lisa testified Mr. Markle performed this sequence twice, but she was not sure if there was any penetration, and that she began to cry, told Mr. Markle to leave her alone, and then ran.Mr. Markle then grabbed at her crotch, said he was going to "give it" to her and pushed her onto a bed where she passed out.Lisa testified she awoke in the shower, naked, where the defendant was rubbing her with soap.He told Lisa that her mother had called, that she was in big trouble and that he was taking her home.

Lisa's mother testified she and Lisa moved away eventually because Mr. Markle had picked Lisa up by car without permission, and when confronted, said he would continue to do so.Lisa testified that Mr. Markle had once told her that she shouldn't tell anyone about his touching her.

Lisa ultimately told a classmate of these matters, who spoke to a school counselor.Lisa subsequently spoke to this counselor and to a detective and a Child Protective Services worker about Mr. Markle's contact with her, and wrote some matters down because she said it made her nervous to talk about them.At trial she identified her written recollection.

ISSUES

FIRST, whether indecent liberties under former RCW 9A.44.100(1) is a lesser included offense of statutory rape in the first degree under former RCW 9A.44.070(1)(now recodified as RCW 9A.44.073, rape of a child in the first degree) or of statutory rape in the second degree under former RCW 9A.44.080(1)(recodified asRCW 9A.44.076, rape of child in the second degree).

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