State v. Zimmerman
| Decision Date | 09 August 2022 |
| Docket Number | 38259-1-III |
| Parties | STATE OF WASHINGTON, Respondent, v. SARAH B. ZIMMERMAN, Appellant. |
| Court | Court of Appeals of Washington |
UNPUBLISHED OPINION
Sarah Zimmerman appeals her conviction for promoting prostitution. At trial, the State's witnesses testified about several instances in which Ms. Zimmerman promoted prostitution of Jane D.[1] On appeal, Ms. Zimmerman argues the State failed to select which act it relied on to convict so the trial court committed reversible error by not providing the jury with a Petrich[2] instruction, which would require jury unanimity on a specific instance of criminal conduct. Ms. Zimmerman did not request such an instruction or otherwise raise unanimity at trial. Because promoting prostitution can be proved by evidence that the accused was engaged in an enterprise of prostitution, the claimed constitutional error is not manifest and we do not review it. We affirm Ms. Zimmerman's conviction.
Jane D grew up in Pennsylvania. She met Raymond Mays when she was around 18 years old and the two began dating. They later moved to Spokane, Washington, and began living with one of Mr. Mays's friends. Shortly thereafter, Mr. Mays set up several online profiles for Ms. D. where he posted pictures and listed the sexual acts she would perform for money.
While in Spokane, Ms. D. had over 200 sexual encounters under the direction of Mr. Mays; he kept most of the money she earned. When Ms. D. refused to make him money, Mr. Mays would choke her, throw her against walls, punch her, and lock her in rooms without food or water.
Ms D.'s activities came to the attention of law enforcement in May or June 2019. Agents in the human trafficking task force set up sting operations, but none were successful. In late July 2019, Mr. Mays was arrested and incarcerated.[3] After Mr. Mays's arrest, Mr Mays's friend told Ms. D. to leave his home.
Ms. D moved in with Sarah Zimmerman, whom she had met a few months earlier. Initially, they did not discuss financial obligations, but they later agreed that Ms. D would pay $300 per month in rent. Ms. D. continued prostitution after she moved in; she went on between 200 and 300 dates at Ms. Zimmerman's house.
In the fall of 2019, Ms. Zimmerman took Ms. D. with her on two trips. They first went to Oregon to see Ms. Zimmerman's "sugar daddy"[4] and get money for both of them. Report of Proceedings (RP) at 211. They later went to Wyoming where they engaged in escort work.
While Mr. Mays was incarcerated, he frequently called Ms. D. and sometimes spoke with Ms. Zimmerman afterward. Law enforcement monitored the jail calls and ultimately obtained a search warrant for Ms. Zimmerman's house. The search revealed Ms. D.'s social security card, clothing, and handbags. The police did not find any weapons on the premises.
On April 23, 2020, the State charged Ms. Zimmerman with promoting prostitution in the second degree. The information alleges "on or about between May 1, 2019 to April 1, 2020," Ms. Zimmerman "did knowingly advance the prostitution of" Ms. D. Clerk's Papers (CP) at 1.
The case proceeded to trial in May 2021. The following testimonies are relevant to this appeal.
Ms. D.
Ms. D. testified that Mr. Mays introduced her to Ms. Zimmerman because she needed "a big sister." RP at 112. Mr. Mays arranged for Ms. D. to live with Ms. Zimmerman after he went to jail. Ms. D. said she engaged in prostitution at Ms. Zimmerman's direction "because I would get threatened with a baseball bat, a gun and knives if I didn't work." RP at 113. Ms. Zimmerman told Ms. D. to "walk the streets" when Ms. Zimmerman's boyfriend was over or when Ms. D. did not get out of bed. RP at 117. Ms. Zimmerman directed Ms. D. to do this until she made the money she owed. When Ms. D. did not work, Ms. Zimmerman punished her by making her do household chores.
On the Wyoming trip, Ms. D. went on 10 or 20 dates at Ms. Zimmerman's direction. One evening, Ms. Zimmerman slapped Ms. D. across the face so she would "hurry up and get done smoking" her cigarette because a date was coming over. RP at 115. In Oregon, people were not responding to Ms. D.'s ads so she went on fewer dates-this angered Ms. Zimmerman. When they returned to Spokane, Ms. Zimmerman threw a bucket of water on Ms. D. and threatened her again with a knife, a bat, and a gun.
Ms. Zimmerman safeguarded most of Ms. D.'s earnings because, according to Ms. D., she would "buy stupid things that [she] didn't need." RP at 114. They also put Ms. D.'s earnings on Ms. Zimmerman's bank card and transferred money to Mr. Mays in jail that way.
Ms. Zimmerman gave Ms. D. Xanax, methamphetamine, and heroin. Ms. D. testified: RP at 118. Ms. D. was intoxicated for about one-half of the dates she went on.
Ms. Zimmerman and Ms. D. went on some dates where they both performed sexual acts with men; this was advertised as "duo sex" or a "two girls special." RP at 124. Ms. D. confirmed that Ms. Zimmerman posted "duo" ads for them both on June 28, August 10, August 24, and October 17. Ms. D. took and posted pictures of herself and Ms. Zimmerman wrote details about the services Ms. D. provided. Ms. D. never wrote her own ads. Ms. D. confirmed that in a September 19 ad, Ms. Zimmerman captioned Ms. D.'s photo: " " RP at 130. The private residence was Ms. Zimmerman's house.
Ms. D. perceived Mr. Mays's telephone conversations with Ms. Zimmerman to be secretive. Mr. Mays ultimately disclosed to Ms. Zimmerman that he had cheated on Ms. D. When Ms. D. learned of this, she stopped prostitution and left Ms. Zimmerman's house.
Special Agent Jason Benedetti works for the Federal Bureau of Investigation in the Spokane Child Exploitation and Human Trafficking Task Force. Agent Benedetti listened to hundreds of Mr. Mays's outgoing jail calls. The calls occurred in a similar manner: Mr. Mays called his father in Pennsylvania who would initiate a three-way call to either Ms. Zimmerman or Ms. D. Agent Benedetti took notes on the content of the calls and created a spreadsheet. He testified about the following calls:
On August 5, 2019, Ms. Zimmerman told Mr. Mays that Ms. D. had been "[']making her bread[5] and doing the right thing.[']" RP at 172. Mr. Mays said "he appreciated Ms. Zimmerman taking care of [Ms. D.]." RP at 172. Ms. Zimmerman replied that Ms. D. "was behaving and making money" and when asked whether she was saving, stated, "[Ms. D.] can't touch any more money." RP at 172-73. They discussed taking Ms. D. to a health clinic to get her tested for sexually transmitted diseases. Ms. Zimmerman said that when Ms. D. asked to stay with a friend, Ms. Zimmerman responded, "'Oh, hell, no, bitch.'" RP at 174. Mr. Mays said he supported Ms. Zimmerman, and stated: "if someone isn't about making money or bettering herself or putting someone in pocket[6] . . . 'What good is she?'" RP at 174.
On August 16, 2019, Mr. Mays asked Ms. Zimmerman, "[']How you doing, boss lady?[']" RP at 175-76. He "had heard that [Ms. D.] had been giving Ms. Zimmerman headaches." RP at 176. Ms. Zimmerman responded that Ms. D. "was being a 19-year-old girl, that she's learning." RP at 176. Ms. Zimmerman said she told Ms. D. to "[']step your game up[']" and threatened to leave her at a shelter. RP at 177.
On September 24, 2019, Ms. Zimmerman told Mr. Mays she was getting "[']tired of that shit[']" in reference to Ms. D., and complained that "['][i]t's been three months['] . . . [she] should know the routine." RP at 182. The routine was to "clean the house, make money, and go out and do their thing at night." RP at 182.
On October 2, 2019, Ms. Zimmerman told Mr. Mays that "the main problem with [Ms. D.] is she is not motivated and she doesn't want to make more money," which was irritating. RP at 183. Ms. Zimmerman told Mr. Mays they were going to Portland because she had "[']shit lined up[']" with her "[']sugar daddy[']" there. RP at 183-84.
On October 10, 2019, Ms. Zimmerman told Mr. Mays that "[Ms. D.] doesn't know how to [']respond to motherfuckers, talk to motherfuckers.[']" So Ms. Zimmerman said she had to do everything for Ms. D. to [']make anything happen.[']" RP at 186. When Ms. Zimmerman saw Ms. D. had seven missed calls, she told her: "[']There's all your dough[']" and "there is never a convenient time ...." RP at 187. Ms. Zimmerman told
Mr. Mays that she was "making racks"[7] while Ms. D. was "making change" and Ms. D. "needs to get up and get that money." RP at 187. Ms. Zimmerman told Ms. D., "[']Bitch, you got to push[']" and [']" RP at 188.
On November 4, 2019, Ms. Zimmerman told Mr. Mays that Ms. D. left. Mr. Mays asked what happened, and "wanted to be sure that [Ms. D.] didn't disrespect Ms. Zimmerman." RP at 190. Ms. Zimmerman said Ms. D. misbehaved in Wyoming by "not being down to business." RP at 190. Ms. Zimmerman complained that she "gave [Ms. D.] many opportunities to make money and improve her lifestyle but [Ms. D.] did not take advantage." RP at 191. They agreed that Ms. D. was "[']a kid.[']" RP at 191. Still, Ms. D. had "made a lot of money in Wyoming" and Ms. Zimmerman said she would send it to Mr. Mays but keep a few hundred dollars for herself. RP at 192.
Ms Zimmerman testified that Ms. D. tried to befriend her online. When Mr. Mays went to jail,...
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