State v. Woodard, 40293-9-II
| Decision Date | 13 September 2011 |
| Docket Number | 40293-9-II |
| Parties | STATE OF WASHINGTON, Respondent, v. GEORGE P. WOODARD, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
George Patrick Woodard appeals his convictions for first degree kidnapping with sexual motivation, second degree child rape and second degree child molestation. He argues that (1) his first degree kidnapping conviction merged with his child rape and child molestation conviction; (2) the jury instructions on second degree child molestation violated his constitutional right to a unanimous jury verdict and constitutional protection against double jeopardy; (3) the trial court improperly instructed the jury that its yes or no verdict on the special finding of sexual motivation had to be unanimous; (4) evidentiary errors violated his right to a fair trial; (5) the trial court improperly communicated with the jury during deliberations; (6) the sentencing court violated his constitutional right to equal protection of the laws by determining the existence of his prior convictions and (7) the trial court erred by failing to enter written findings of fact and conclusions of law following a CrR 3.5 hearing. We reverse Woodard's second degree child molestation conviction and affirm his remaining convictions.
In 2008, 12-year-old M.P. spent Christmas Eve with friends and family members at Woodard's home. M.P. wanted to go to the store to buy a snack, and Woodard agreed to drive her there.
According to M.P., Woodard drove directly to the store and waited in the parking lot while she purchased a snack. He then took a different route home, drove down a back road, and stopped the van. He ordered M.P. to get into the backseat and pull down her pants. He then licked her vagina, inserted his finger into her vagina, put his mouth on her breast over the outside of her sweatshirt, and inserted his penis into her vagina. He stopped after about 10 to 20 minutes and drove home.
The next day, M.P. told a friend what had happened. The State charged Woodard with first degree kidnapping, second degree child rape, and second degree child molestation.
Before trial, the court held a CrR 3.5 hearing to determine the admissibility of Woodard's statements to a deputy during interviews on December 25 and 26, 2008. The undisputed evidence showed that the deputy read Woodard his Miranda rights[1] before both interviews and Woodard agreed to answer questions on both occasions. But Woodard argued that the court should suppress his statements from the second interview because, according to Woodard, he had told a booking officer before that interview that he wanted an attorney. In a lengthy oral ruling, the trial court "conditionally" ruled that all of Woodard's statements were admissible. I Report of Proceedings (RP) at 197-99. The court stated that it would do some independent research on the issue of whether Woodard had successfully invoked his right to counsel: "I'll do some research on my own on the second issue and see what I can find as can counsel, so we can revisit this if we need to." I RP at 197-99. At trial, neither party contested the admissibility of Woodard's statements from the December 26 interview or presented additional authority to the court on that issue.
During a pretrial hearing on motions in limine, defense counsel expressed concern that two of the State's witnesses might testify that Woodard had told them he had sex with M.P. on six prior occasions. The State said that it did not intend to elicit testimony about uncharged prior sexual incidents, and the trial court directed the State to instruct its witnesses not to mention Woodard's alleged admissions. The parties also agreed not to elicit testimony regarding any of the witnesses' drug and alcohol use.
At trial, during defense counsel's cross-examination of James Barnes, defense counsel asked, "[Woodard] told you he didn't have sexual intercourse with [M.P.]?" IV RP at 68. Barnes replied, IV RP at 68. Defense counsel immediately moved for a mistrial, outside the jury's presence. The trial court denied the motion, ruling that defense counsel's question had invited the response. The court then recalled the jury and instructed them to disregard the previous question and answer.
Later, during direct examination of Jonathan Neff, the State asked, "Did [Woodard] ever indicate anything that he had done on Christmas eve of 2008?" IV RP at 78. Neff replied, "Well, he indicated he was at his house with some friends and his wife and they were smoking crack and he was asked—I can't say if he asked or if the victim had asked to go to the store to get some candy. . . ." IV RP at 78. Neff then related what Woodard had told him about what happened after he took M.P. to the store.
At the conclusion of Neff's testimony, defense counsel again moved for a mistrial. The trial court denied the motion, ruling that the State did not purposely elicit testimony regarding Woodard's drug use and that, within the context of Neff's testimony as a whole, the violation was not egregious enough to warrant a mistrial. The trial court offered to instruct the jury to disregard the question and answer, but defense counsel declined the offer.
Defense counsel did not object to any of the State's proposed instructions. During deliberations, the jury submitted a question to the trial court expressing confusion over the definition of "sexual contact:" Clerk's Papers (CP) at 52. The trial court responded, "Answer: Reread all your instructions." CP at 52. After further deliberations, the jury found Woodard guilty on all counts and found by a special verdict that he committed first degree kidnapping with sexual motivation.
At sentencing, the State alleged that Woodard had a prior conviction from 1989 for first degree child molestation and presented a certified copy of the judgment and sentence. Woodard contested the sufficiency of the State's evidence. Following testimony from several witnesses regarding fingerprint records, booking records, sex offender registration records, and testimony from the arresting officer for the prior crime, the trial court found that the State had proven Woodard's prior conviction by a preponderance of the evidence.
Based on this prior conviction and Woodard's current convictions for first degree kidnapping and second degree child rape, the sentencing court found that Woodard was a persistent offender and sentenced him to life without the possibility of parole. For the second degree child molestation conviction, the court sentenced Woodard to 41 months' confinement, to be served concurrently with his life sentence.
Woodard first contends that his multiple convictions for kidnapping, child rape, and child molestation violate the double jeopardy clauses of our state and federal constitutions. Woodard reasons that because his kidnapping conviction was elevated to the first degree based on his intent to facilitate child rape and child molestation, the underlying offenses should merge with the greater crime of first degree kidnapping. We disagree.
We review double jeopardy claims de novo. State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006). Our state and federal constitutions protect a defendant against multiple punishments for the same offense. U.S. Const. amend. V; Wash. Const. art. I, § 9; State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995). Under the merger doctrine, when a particular degree of a crime requires proof of another crime, "we presume the legislature intended to punish both offenses through a greater sentence for the greater crime." State v. Freeman, 153 Wn.2d 765, 772-73, 108 P.3d 753 (2005) (citing State v. Vladovic, 99 Wn.2d 413, 419, 662 P.2d 853 (1983)); State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d 1249 (1979), overruled on other grounds by State v. Sweet, 138 Wn.2d 466, 980 P.2d 1223 (1999). A separate conviction for the included crime will not stand unless it involved an injury to the victim that is separate and distinct from the greater crime. Johnson, 92 Wn.2d at 680.
The State charged Woodard with first degree kidnapping under RCW 9A.40.020(1)(b), which provides, "A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent . . . [t]o facilitate commission of any felony or flight thereafter. . . ." The trial court instructed the jury that to convict Woodard of first degree kidnapping, it must find "[t]hat the defendant abducted [M.P.] with intent to facilitate the commission of rape of a child in the second degree and/or child molestation in the second degree . . . ." CP at 35. Thus, Woodard's kidnapping conviction was elevated to the first degree based on his intent to commit rape and child molestation, not proof that he actually committed those crimes.[2]
In In re Personal Restraint of Fletcher, 113 Wn.2d 42, 776 P.2d 114 (1989), our Supreme Court held that the defendant's convictions for first degree kidnapping and first degree robbery did not merge because the kidnapping statute merely requires intent to commit another crime:
However, the [first degree kidnapping] statute only requires proof of intent to commit various acts, some of which are defined as crimes elsewhere in the...
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