State v. Trice

• Decision Date: 15 May 2012
• Docket Number: 37930-9-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. EDDIE LEE TRICE, Appellant.

STATE OF WASHINGTON, Respondent, v. EDDIE LEE TRICE, Appellant.

No. 37930-9-II

Court of Appeals of Washington, Division 2

May 15, 2012

UNPUBLISHED OPINION

Quinn-Brintnall, J.

A jury found Eddie Lee Trice guilty of three counts of first degree child rape, one count of first degree child molestation, and one count of first degree burglary. RCW 9A.44.073, .083; RCW 9A.52.020(1)(b). The sentencing court found that a 1995 Florida "conviction" was comparable to a Washington crime, and sentenced Trice as a "two strikes" offender under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, of the Sentencing Reform Act of 1981 ch. 9.94A RCW. Trice appeals, arguing that the evidence was insufficient to support his first degree burglary conviction or, alternatively, that the trial court erred in failing to give an alternative means unanimity jury instruction. Trice further appeals his other convictions, arguing that the prosecutor committed misconduct, his trial counsel's ineffective assistance was constitutionally deficient, and the trial court erred in admitting improper opinion testimony. In addition, Trice appeals his sentence, arguing that the sentencing court erred in finding the 1995 Florida "conviction" comparable to a Washington strike offense, a 1987 Arkansas conviction was erroneously included in his offender score calculation, and two community custody terms are either unconstitutional or not statutorily authorized. In his statement of additional grounds (SAG),^[1] Trice asserts his convictions either should have merged or violate double jeopardy protections the appellate record is incomplete under RAP 1.2, he was denied his right to confront a videotaped interview of the victim that took place in a room staged to look like a child's room, and exculpatory evidence was withheld at trial.

We hold that sufficient evidence supports Trice's first degree burglary conviction and that the trial court was not required to give the jury a unanimity instruction. Trice's prosecutorial misconduct and ineffective assistance of counsel claims fail because he cannot show prejudice. We also hold that the trial court did not abuse its discretion in admitting the allegedly improper opinion testimony. We accept the State's concessions that the 1995 Florida "conviction" was not comparable to a Washington strike offense and that both challenged community custody terms are improper. Accordingly, we affirm Trice's convictions but vacate his POAA sentence and remand for resentencing. Because we remand for resentencing, we do not reach the merits of Trice's unsupported challenge to the inclusion of the 1987 Arkansas conviction in his offender score.

FACTS

On May 8, 2006, A.L., an 11-year-old fifth grader, went home from school early because she felt sick. Her father, Bill Luedke and his girlfriend, Sandra Vogt, stayed with A.L. at their apartment for about an hour before leaving to run errands. A.L. lived with Luedke, Vogt, and Vogt's three children. A.L. testified that when she got home, she looked out of a window overlooking the apartment balcony and saw Trice, who lived and worked in her apartment building. A.L. had met Trice before when her father introduced them. Luedke testified that Trice had been inside the apartment a few times and that "the kids" would let him in to use the phone when Luedke and Vogt were not home. 7 Report of Proceedings (RP) at 203.

About five minutes after Luedke and Vogt left, Trice came to the apartment door and asked if he could use the bathroom. A.L let him into the apartment to use the bathroom. Trice left but returned sometime later, telling A.L. that he had left his keys in or near the bathroom. A.L. testified that she "let him in so he could get his keys." 7 RP at 158 A.L. testified Trice then offered her money to put on a bathing suit and, when she refused, offered her money to put on two pairs of underwear. Trice walked A.L. to her room and shut the door behind her. A.L. testified that she put on the underwear because she "was scared that if [she] didn't that he would do something." 7 RP at 159. She contemplated jumping out of the window but decided that it was too high to jump.

After A.L. put on the underwear, Trice asked if she was "ready." 7 RP at 159. A.L. said that she was and Trice entered the room. Trice told A.L. to take off the underwear, which she did, and to sit on the bed. A.L. testified Trice began "kissing and licking" her vagina despite her asking him to stop. 7 RP at 161. A.L. testified Trice told her to turn around and bend over, which she did. A.L. testified Trice then touched, rubbed, and inserted a finger into her vagina and anus. A.L. testified that she looked between her legs and saw Trice's ejaculate on the carpeted floor behind her. The incident lasted for about five minutes.

Trice left the apartment but called later to ask her not to tell anyone what had happened because he did not want to go to jail. Luedke, Vogt, and Vogt's three children returned to the apartment about an hour later. A.L. testified that she did not tell her father what had happened because she was scared he would blame her for letting Trice into the apartment. A.L. testified that she told M.V., Vogt's daughter, what had happened with Trice. The two girls decided that A.L. should tell a school counselor.

A.L. testified that the following day she told the school counselor, Carol Ramm-Gramenz, what had happened. Ramm-Gramenz testified that A.L. came to her office and told her about the incident and that A.L. was worried she would be in trouble because her father had told her not to let anyone into the apartment. Ramm-Gramenz reported the incident to the Tacoma Police Department. A.L. testified that after she spoke with Ramm-Gramenz, a police officer brought her home and she showed the officer where she thought Trice had ejaculated on the floor.

Tacoma Police Department Forensic Specialist Donovan Velez took photographs of the apartment. A.L. pointed to a dark stain on the carpet in her room and indicated to Velez that she believed the stain was from Trice's semen. Velez used an ultraviolet light and found a semen stain six inches from where A.L. had pointed. He cut out the piece of carpet.

Jennifer Knight, a forensic interviewer, also interviewed A.L. on May 9. Although the interview was audio and video recorded, the trial court did not admit the videotape, audio recording, or interview transcript as evidence at trial. Lynn Jorgenson, a nurse practitioner at the Child Abuse Intervention Department of Mary Bridge Children's Hospital, conducted a medical examination of A.L. A.L.'s genital examination was normal; Jorgenson testified that the finding was consistent with A.L.'s version of events because "[t]he vast majority of children that have just had digital penetration would have normal findings." 8 RP at 315.

Tacoma Police Department Detective Jeffrey Turner testified that Trice did not return to the apartment complex after May 9. A bench warrant was issued for Trice's arrest. After investigation, Turner discovered Trice was in Los Angeles, California. Turner contacted the Los Angeles Police Department and faxed a copy of the warrant. The Los Angeles Police arrested Trice on May 12.

Detective Turner and his partner, Tacoma Police Department Detective Keith Holden, flew to Los Angeles and interviewed Trice at the Los Angeles Police Department 77th Street Station, where they advised Trice of his Miranda^[2] rights. Turner testified that Trice said initially he knew the police were in Los Angeles to investigate Luedke because Trice knew that Luedke was "into drugs." 7 RP at 275. Trice also said that Luedke was often home alone with A.L. and that he thought Luedke was "doing some inappropriate things with her." 7 RP at 275. Trice told the detectives that he had been inside A.L.'s apartment only once to collect a key to another apartment from Luedke.

Detective Turner testified that when he asked Trice why he had moved to California, Trice said he had received a phone call from the apartment building owner who told him "that there was a warrant out for his arrest for raping a little girl at the apartment complex." 7 RP at 280. Trice then said, "If I put my stuff in that little girl, you would know it. I would have hurt it." 7 RP at 280. Turner told Trice that the police had information about what had happened to A.L., and relayed A.L.'s version of events to Trice. Trice's demeanor changed from "engaging" to "looking out, looking off, and tears began to well up in his eyes." 7 RP at 289. Turner told Trice that he thought Trice had been "compassionate" because he used his finger rather than penis but that it was only a matter of time before a deoxyribonucleic acid (DNA) analysis revealed that the semen on the carpet of A.L.'s room matched Trice. Trice next made a spontaneous statement: "I did it. I am sick. I did it. I did what you said I did, and you're right. I didn't want to hurt that little girl." 7 RP at 291.

Washington State Patrol Crime Laboratory Forensic Scientist Jeremy Sanderson tested a court-ordered blood sample taken from Trice and compared his DNA profile to the semen on the carpet. It matched Trice. Sanderson admitted he did not test the rape kit or clothing also submitted for DNA testing after he matched the semen on the carpet with Trice. Procedural History

On May 12, 2006, the State charged Trice with three counts of first degree child rape, one count of first degree child molestation, and one count of first degree burglary. RCW 9A.44.073, .083; RCW 9A.52.020(1)(b). The trial court held a CrR 3.5 hearing on June 4, 2007. Detectives Turner and Holden testified about their Los Angeles interview with Trice. The trial court ruled that Trice's statements to the detectives were...