State v. Randall
| Decision Date | 30 July 2013 |
| Docket Number | 41916-5-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JEFFREY LAMONT RANDALL, Appellant. |
UNPUBLISHED OPINION
Jeffrey Lamont Randall appeals his jury convictions of two counts of unlawful delivery of a controlled substance to a minor with sexual motivation and two counts of involving a minor in a drug transaction to deliver a controlled substance. Randall argues that the trial court violated his right to a unanimous verdict because the trial court did not give a Petrich[1] instruction, and failure to do so was not harmless. He also argues that (1) insufficient evidence supports the jury's finding of sexual motivation, (2) the jury returned inconsistent verdicts, (3) the State violated his right to be free from double jeopardy by failing to allege specific incidents to support the involving a minor in a drug transaction and unlawful delivery convictions, (4) the trial court gave an erroneous special verdict jury instruction that required the jury to be unanimous to answer "no" on the special verdict forms, and (5) the trial court should have given a missing witness instruction for the victims' parents. Randall makes various other arguments in his statement of additional grounds (SAG).
We hold that (1) the failure to give a Petrich instruction was harmless, (2) sufficient evidence supports the jury's sexual motivation findings, (3) the jury's verdicts were not inconsistent, (4) Randall's arguments regarding double jeopardy are hypothetical and not ripe for review, (5) the trial court's special verdict instruction was proper and (6) a missing witness instruction for the victims' parents was unnecessary. Randall's remaining SAG claims are not preserved for appeal, too vague, or reliant on matters outside the record; therefore we do not further consider them. Accordingly, we affirm.
In spring 2008, HT and VN[2] were 15-year-old female students at Tacoma high schools. Students, including HT and VN, commonly spent time at a particular bus stop near the school, smoking cigarettes and marijuana. Randall, a 40-year-old male known as "House" and "Weed Man, " had a reputation among the students for providing alcohol, marijuana, and transportation. 4 Verbatim Report of Proceedings (VRP) at 636-37, 642, 648, 5 VRP at 733, 8 VRP at 1334. HT and VN met Randall through friends and started regularly buying marijuana from him. HT and VN also desired to be seen with him to gain popularity at school.
From approximately March to early June 2008, Randall picked up HT and VN every day after school. They drove around Pierce County selling marijuana out of his car. But before Randall permitted HT and VN to sell marijuana, he put them through loyalty tests. These tests included talking about themselves while naked, kissing him, and taking their shirts off for him. Eventually, he required each girl to have sexual intercourse with him. Randall knew that HT and VN were only 15 at the time and that they did not want to engage in intercourse with him. After they passed the loyalty tests, HT and VN participated in Randall's sales by weighing the marijuana, collecting money, and taking marijuana to sell at school. They were often with Randall all afternoon and evening and would sneak out of their parents' homes to be with Randall at night.
Randall regularly gave HT and VN marijuana and alcohol for their own use and he sometimes gave them a portion of the sale proceeds as compensation. Randall called HT and VN "Mama" and "Little Mama" and made them call him "Papa." 4 VRP 665, 5 VRP at 733, 837. When he became irritated with either HT or VN, he treated them like they were "in trouble" and scared them by telling them about his "goons." 4 VRP at 664. HT and VN feared Randall's "goons" as dangerous men who would hurt people at his Command. 4 VRP at 664, 5 VRP at 802.
In late April or early May 2008, another high school student reported to police rumors that Randall had raped HT and VN. HT and VN initially denied knowing Randall, but they later admitted that they had lied because they feared for their safety. In June 2008, a Tacoma police officer arrested Randall on an unrelated warrant. In jail, Detective Steven Reopelle interviewed Randall about the rape and drug allegations.
During trial, the State filed a third amended information charging Randall with four counts of third degree child rape, two counts of involving a minor in a drug transaction, and two counts of unlawful delivery with sexual motivation. The information did not include specific dates for the offenses, stating that the offenses had occurred between March 1 and June 4, 2008. Randall acknowledged receipt of the amended information, waived formal reading, waived any objection to the amendment, and pleaded not guilty.
At trial, HT and VN testified consistently with the facts outlined above and admitted that they had lied during the initial police interviews, that they had lied to their parents, and that they could not remember specific dates or times of the events occurring nearly three years earlier. They testified that they had sold marijuana for Randall for about three months in spring 2008 and that he had separately raped them each twice. Randall called one witness, the house manager at the group home facility where Randall lived at the time of the allegations. The house manager testified about the facility in general, that there was always staff on site who performed room checks all hours of the day, and that Randall never caused problems for the staff. Randall did not testify.
Randall proposed a missing witness instruction for HT's and VN's parents and a Petrich unanimity jury instruction related to each charge. The trial court refused both, reasoning that a missing witness instruction was unnecessary and that the evidence established a continuing course of conduct involving an ongoing enterprise with a single objective; thus a Petrich unanimity instruction was not needed. Regarding the sexual motivation[3] special verdict, the trial court instructed the jury:
You will also be furnished with two special verdict forms for the crimes charged in Counts VII and VIII. If you find the defendant not guilty of these crimes, do not use the special verdict forms. If you find the defendant guilty, you will then use the corresponding special verdict form or forms and fill in the blank with the answer "yes" or "no" according to the decision you reach. In order to answer the special verdict forms "yes, " you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you have a reasonable doubt as to the question, you must answer "no."
Clerk's Papers at 304 (Jury Instruction No. 31).
During closing arguments, the State argued that the offenses occurred sometime during the charged time period and explained that the exact dates were not necessary because it was clear that the acts occurred "all the time." 11 VRP at 1822. Randall's counsel generally denied all allegations and argued that (1) HT and VN had picked Randall as an easy target to unfairly blame when their drug and alcohol use was revealed; and (2) HT and VN lacked credibility because their testimony lacked detail, they lied to their parents and police, and their memories were impaired from alcohol and drug use. Randall's counsel also pointed out inconsistencies between HT's and VN's testimony and the testimony from other witnesses and claimed that Randall was innocent and simply a lonely man who reached out to kids because he wanted to help them.
The jury acquitted Randall of the rape charges but found him guilty of two counts of involving a minor in a drug transaction, one count for each victim, and two counts of unlawful delivery of a controlled substance with sexual motivation, one count for each victim. Randall appeals.
First, Randall contends that the trial court violated his right to a unanimous verdict because the trial court did not give a Petrich instruction and the failure to do so was not harmless. Specifically, he argues that (1) HT's and VN's testimony was general in nature and could not have supported the jury's verdicts, and (2) the State presented insufficient evidence of unlawful delivery and involving a minor in a drug transaction. Assuming, without deciding, that both the unlawful delivery and involving a minor convictions involved multiple acts that required a Petrich unanimity instruction, [4] we hold that any error in failing to give such instruction was harmless and that HT's and VN's testimony was sufficient to support four convictions; one unlawful delivery charge per victim and one involving a minor charge per victim.
To convict a criminal defendant, a unanimous jury must conclude that the criminal act charged has been committed. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), modified in part by State v. Kitchen, 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988). In cases where several acts are alleged, any one of which could constitute the crime charged, the jury must unanimously agree on the act or incident that constitutes the crime. Kitchen, 110 Wn.2d at 411; Petrich, 101 Wn.2d at 572. In such '"multiple acts'" cases, Washington law applies the '"either or'" rule: '"[E]ither the State must elect the particular criminal act upon which it will rely for conviction, or . . . the trial court [must] instruct the jury that all of them must agree that the same underlying criminal act has been proven beyond a reasonable doubt.'" State v. Hayes, 81 Wn.App. 425, 430-31, 914 P.2d 788, review denied, 130 Wn.2d 1013 (1996) (alteration in original) (quoting Kitchen, 110 Wn.2d at 411).
We...
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