State v. Tili

• Decision Date: 07 October 1999
• Docket Number: No. 66695-4.,66695-4.
• Citation: 139 Wash.2d 107,985 P.2d 365
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondents, v. Fonotaga TILI, Appellant.

985 P.2d 365

139 Wash.2d 107

STATE of Washington, Respondents, v. Fonotaga TILI, Appellant.

No. 66695-4.

Supreme Court of Washington, En Banc.

Argued June 8, 1999.

Decided October 7, 1999.

Department of Assigned Counsel, Dino G. Sepe, Tacoma, for Appellant.

Barbara Corey-Boulet, Senior Deputy Prosecutor, John Ladenburg, Pierce County

Prosecutor, Kathleen Proctor, Deputy, Tacoma, for Respondents.

IRELAND, J.

This is a direct review from the trial court. A jury found the defendant, Fonotaga Tili, guilty of three counts of first-degree rape, one count of first-degree burglary, and one count of second-degree assault arising from events occurring at the same time and place and involving the same victim. At sentencing, the trial court imposed consecutive terms for the three rape convictions and concurrent terms for the burglary and assault convictions, resulting in a 417-month sentence. Tili claims the double jeopardy clause and the merger doctrine preclude him from being convicted and punished for all five offenses. Tili also claims the trial court erred in imposing consecutive terms for his three first-degree rape convictions. And finally, Tili asserts that certain jury instructions were erroneously given because they represented an improper comment on the evidence by the trial court. We uphold Tili's convictions, but find that his three rape convictions meet the criteria of same criminal conduct for sentencing purposes. Tili's sentence, therefore, is statutorily required to be served concurrently unless an exceptional sentence is imposed.

FACTS

On September 16, 1997, L.M. worked a double shift. After returning home from her second shift at approximately 11:15 p.m., L.M. ran the water in her bathtub, intending to take a bath. Out of habit, L.M. brought her cordless phone with her into the bathroom.

During her bath, L.M. heard what sounded like someone entering her apartment. Frightened, L.M. got out of the bathtub and locked the bathroom door. She waited in the locked bathroom for approximately four minutes, but eventually decided to investigate. Before leaving the bathroom, however, L.M. dialed "9" and "1" on her cordless phone without dialing the last "1" necessary to complete a 911 emergency call.

When L.M. entered the kitchen area, she saw Tili, who was wearing only a pair of underpants and holding a heavy metal pan.¹ Moments later, Tili violently struck L.M. in the head with the metal pan. As Tili began his attack, L.M. was somehow able to dial another "1" on her cordless phone, completing a 911 emergency call. The sounds of the ensuing physical and sexual assault, lasting approximately two minutes, were captured on the 911 system.²

After numerous blows with the metal pan, L.M. fell to her knees. She begged Tili to stop, telling him to take anything he wanted, but Tili ignored her pleas and continued his attack. He told L.M. to "shut up" and threatened to kill her. Report of Proceedings (RP) at 381. L.M. testified that after Tili beat her into submission, he instructed her to lie on her stomach and to keep her face to the floor. When L.M. attempted to reposition her face to a more comfortable position, Tili "mash[ed] [her] head into the ground." RP at 382. Tili then positioned L.M. with her buttocks raised, removed her robe to expose her nude body, and began to lick her backside.

Tili proceeded to use his finger to penetrate L.M.'s anus and vagina. Tili inserted his finger into these two orifices separately, not at the same time.³ Tili told L.M. to say she liked it. She complied. Tili then tried to penetrate L.M.'s anus with his penis, but stopped, and instead inserted his penis into her vagina.

At about this time, two deputies knocked on L.M.'s apartment door. Tili told L.M. to "shut up" or he would kill her. RP at 383; see also RP at 227, 288-89. When the deputies knocked again and announced "police," L.M. screamed. RP at 227-28, 288-89, 383. Tili then hit L.M. several more times before fleeing as the deputies kicked open the apartment door. Upon entering the apartment, the deputies caught a glimpse of Tili, wearing only his underwear, before he escaped through a bedroom window. The deputies pursued Tili, eventually finding him hiding underneath a parked truck in the parking lot outside L.M.'s apartment.

Tili was charged with one count of first-degree burglary, and one count of second-degree assault. The Information also charged Tili with three counts of first-degree rape for each independent penetration of a different bodily orifice or the same orifice with a different object. At trial, Tili conceded he was guilty of rape, but argued that he was guilty of only one count of rape, not three. However, a jury convicted Tili of all three counts of first-degree rape. The jury also convicted him of one count of first-degree burglary and one count of second-degree assault. Tili was sentenced to 417 months. The three counts of rape were sentenced to be served consecutively. The burglary and assault convictions were imposed concurrently with each other and with the three rape convictions.

ANALYSIS

First Issue: Do the defendant's convictions for three counts of rape in the first degree violate double jeopardy?

The double jeopardy clause of the fifth amendment to the United States Constitution and article I, section 9 of the Washington State Constitution prohibit the imposition of multiple punishments for the same offense. State v. Adel, 136 Wash.2d 629, 632, 965 P.2d 1072 (1998) (citing State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995); State v. Calle, 125 Wash.2d 769, 772, 888 P.2d 155 (1995)). Tili claims that if his three convictions for first-degree rape constitute just one criminal act, or one "unit of prosecution," then his rape convictions violate double jeopardy because he was punished three times for the same offense. See Adel, 136 Wash.2d at 632, 965 P.2d 1072. Tili is incorrect. Under the facts in this case, we hold that Tili's three separate rape convictions do not violate double jeopardy.

If a defendant is convicted of violating a single statute multiple times, the proper inquiry in a single statute case is "what `unit of prosecution' has the Legislature intended as the punishable act under the specific criminal statute." Adel, 136 Wash.2d at 634, 965 P.2d 1072 (citing Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955); State v. Mason, 31 Wash.App. 680, 685-87, 644 P.2d 710 (1982), superseded on other grounds as stated in State v. Elliott, 114 Wash.2d 6, 16, 785 P.2d 440 (1990)). "When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime." Adel, 136 Wash.2d at 634, 965 P.2d 1072 (citations omitted). And, if the statute is ambiguous because the Legislature has failed to denote the unit of prosecution, "the ambiguity should be construed in favor of lenity." Adel, 136 Wash.2d at 634-35, 965 P.2d 1072 (citing Bell, 349 U.S. at 84, 75 S.Ct. 620). Because Tili claims that his three convictions for rape in the first degree violate double jeopardy, this is a single statute case and the unit of prosecution analysis applies.

"The first step in the unit of prosecution inquiry is to analyze the criminal statute." Adel, 136 Wash.2d at 635,965 P.2d 1072. In Washington, there are three degrees of rape, which are defined in RCW 9A.44.040, .050, and .060. These three statutory provisions have parallel construction. Each statutory provision defining a degree of rape begins with a paragraph setting forth standard elements that must always be proved for that degree, followed by subparagraphs, only one of which needs to be proved in order to convict. Compare RCW 9A.44.040, .050,.060. The parallel construction of these statutes dictates that the "unit of prosecution" for rape remains the same from one degree to the next.

The language present in all three statutory provisions provides:

A person is guilty of rape ... when such person engages in sexual intercourse with another person ....

RCW 9A.44.040 (emphasis added); see also RCW 9A.44.050, .060. Each degree of rape consistently requires a standard element: "sexual intercourse." The unit of prosecution for rape, therefore, is the act of "sexual intercourse." Br. of Resp't at 15-16.

The relevant portion of RCW 9A.44.010(1) defines "sexual intercourse" as follows:

(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 ..., 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.

(Emphasis added.) The State maintains the Legislature was very clear in stating that sexual intercourse was complete upon any penetration, however slight, of the vagina or anus, or upon any act of sexual contact between the sex organs of one person and the mouth or anus of the other. Br. of Resp't at 16-17 ("predecessor statute to RCW 9A.44.010(1), stated `any penetration, however slight, is sufficient to complete sexual intercourse....'") (citing State v. Kincaid, 69 Wash. 273, 276, 124 P. 684 (1912)). Because the statutory definition of sexual intercourse indicates that any single act of penetration constitutes sexual intercourse, the State argues that two independent digital penetrations of L.M.'s anus and vagina, followed by penile penetration of her vagina, are three separate "units of prosecution." Br. of Resp't at 17.

In contrast, Tili argues the statute is ambiguous as to the proper unit of prosecution for rape. Tili asserts that this ambiguity must be resolved by "[t]he rule of lenity[,]... a well established rule of statutory...