Opinion
Nos. 34967-1-II; 35744-5-II.
August 21, 2007.
Appeals from a judgment of the Superior Court for Lewis County, No. 05-1-00282-9, Nelson E. Hunt, J., entered June 9, 2006, together with a petition for relief from personal restraint.
Judgment Affirmed and petition denied by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Penoyar, J.
Following a bench trial, the trial court found Delbert Edward Beatty guilty of conspiracy to commit first degree child molestation and attempt to commit first degree child molestation. Beatty asserts that (1) the multiple convictions violated double jeopardy; and (2) the trial court erred when it ordered collection of a deoxyribonucleic acid (DNA) sample at sentencing. In a pro se statement of additional grounds (SAG) and a personal restrain petition (PRP), Beatty raises several additional issues, including the sufficiency of the evidence; mid-trial amendments to the charges; his inability to testify; his attorney's failure to present certain evidence and witnesses; and challenges his sentence. We affirm.
FACTS
The facts of this case are lurid and detailed. They are well known to the parties and will not be repeated here.
On April 6, 2005, the State charged Beatty with conspiracy to commit first degree child rape (Count I) and attempted first degree child rape (Count II) of his girl friend's daughter, C.E.C. Beatty was born on June 12, 1954. C.E.C. was born on May 14, 1994, and was 10 years old when the events that form the basis for the charges occurred.
On many occasions while Beatty was dating C.E.C.'s mother, W.E.C., W.E.C. and her two young daughters spent the night at Beatty's house in Chehalis, Washington. W.E.C.'s eldest daughter, C.E.C., testified at trial, that when she was 10 years old, Beatty and W.E.C. called her into Beatty's bedroom several times to talk about sex, how W.E.C. lost her virginity at age 12, and how Beatty and W.E.C. wanted C.E.C. to loose her virginity to Beatty.
C.E.C. testified that Beatty and W.E.C. bought her erotic lingerie, made her watch as they performed oral sex acts, and repeatedly fondled and rubbed her body and genitals trying to get her to agree to engage in sexual activity with them. C.E.C. held her legs tightly together and refused.
C.E.C. also testified to other instances where Beatty, alone, had touched her inappropriately or attempted to do so. Following C.E.C.'s testimony, which did not establish that Beatty had successfully penetrated her, the State moved to amend the information arguing that the reduced charges better conformed to the current evidence as presented by C.E.C.'s testimony. Beatty did not object to the amendment and the trial court granted the State's motion. The conspiracy to commit first degree child rape charge was amended to conspiracy to commit first degree child molestation. The attempt to commit first degree child rape charge was amended to attempt to commit first degree child molestation. The trial court found Beatty guilty of both counts as amended.
At sentencing, the trial court ruled that the two charges encompassed the same criminal conduct for the purposes of calculating the offender score and sentenced Beatty within the standard range to 51 months per count to run concurrently. Beatty filed a direct appeal and a PRP. We consolidated Beatty's PRP with his direct appeal.
ANALYSIS
Double Jeopardy
Beatty argues that his multiple convictions for "the same act" violated double jeopardy because both offenses required the State to prove that he took a substantial step and the evidence used was inextricable. Br. of Appellant at 11. We disagree.
Article I, section 9 of the Washington State Constitution, and the Fifth Amendment to the federal constitution provide the same protection against double jeopardy. State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995). Both state and federal double jeopardy clauses prohibit (1) multiple punishments for the same offense; and (2) subsequent prosecution for the same offense after acquittal or conviction. Gocken, 127 Wn.2d at 100. A double jeopardy claim may be raised for the first time on appeal; it is a question of law, which we review de novo. RAP 2.5(a); State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006) (citing State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005)).
The Fifth Amendment applies to the states through the Fourteenth Amendment. State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995) (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969)).
To constitute the same criminal offense for purposes of double jeopardy, the offenses must be the same in both law and fact. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). Where an element of one offense is not included in the other, and proof of one offense would not necessarily prove the other, the double jeopardy clause allows separate punishment for both offenses. Jackman, 156 Wn.2d at 747 (quoting State v. Baldwin, 150 Wn.2d 448, 455-56, 78 P.3d 1005 (2003)); Calle, 125 Wn.2d at 777.
Here, while attempted child molestation and conspiracy to commit child molestation may be closely related in fact because both involved the same victim, the offenses are not the same in law. Calle, 125 Wn.2d at 777. The elements required to prove the offense of attempt to commit a crime differ from the elements required to prove the offense of conspiracy to commit a crime. Conspiracy to commit first degree child molestation requires proof that Beatty entered into an agreement with one or more persons (W.E.C., in this case) to engage or cause the performance of a crime (child molestation), and any one of them takes a substantial step in pursuance of such agreement. RCW 9A.28.040(1).
In contrast, attempt to commit first degree child molestation requires proof that Beatty had intent to touch C.E.C.'s sexual or other intimate parts for the purpose of gratifying sexual desire and that he took a substantial step toward the commission of that crime. RCW 9A.44.010(2); RCW 9A.28.020(1); Jackman, 156 Wn.2d at 747-50. Double jeopardy does not bar prosecuting Beatty for both conspiracy to commit child molestation and attempt to molest a child.
Order to Collect DNA Sample at Sentencing
Beatty next argues that the trial court's order to collect a DNA sample from him, pursuant to RCW 43.43.754, violated his federal and state constitutional privacy rights. We disagree.
Our Supreme Court has recently held that "the compelled collection of DNA from convicted felons does not invade a recognized private affair under the state constitution, nor is it prohibited under the Fourth Amendment." State v. Surge, 160 Wn.2d 65, 69, 156 P.3d 208 (2007). The Surge court further held that "while article I, section 7 does not expressly limit the right to privacy, not every asserted right qualifies as a 'private affair.'" 160 Wn.2d at 73.
In Washington, a person's constitutional privacy rights, under article I, section 7, may vary (diminish) based on that person's status as "an arrestee, pretrial detainee, prisoner, or probationer." Surge, 160 Wn.2d at 74 (citing State v. Cheatam, 150 Wn.2d 626, 642, 81 P.3d 830 (2003)). There is "no distinction between [the] practice [of allowing the government to collect fingerprints from felons for identification purposes] and the collection of DNA" because the statute authorizing this collection limits the State's use of the DNA sample for identification purposes only. Surge, 160 Wn.2d at 74. Here, after Beatty was convicted, the trial court properly ordered the collection of Beatty's DNA sample for identification purposes. SAG Issues
A. Witness Credibility
Beatty contends that the State's evidence was insufficient to support his convictions because C.E.C.'s statements were inconsistent and, therefore, call into question whether any touching had actually occurred. To support his argument, Beatty alleges that C.E.C. fabricated the touching incident and that this is evidenced by the facts that C.E.C. failed to run away from Beatty; that she returned to the bed; and that she fell asleep following the alleged incident. Beatty is essentially requesting that we reassess C.E.C.'s credibility.
In this case, the trial court found that C.E.C. "is the single most credible witness I have ever seen. She was consistent in her detail as well as in almost a less-is-more situation or her lack of sophistication about what she saw occurring and what happened to her." 3 Report of Proceedings at 329. We recognize that the trial court "is in a better position to assess the credibility of witnesses, take evidence, and observe the demeanor of those testifying." State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994). Accordingly, the trier of fact makes all credibility determinations and we do not review them. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
In Washington, "the direct and positive testimony of the complaining [sexual assault] witness, even though uncorroborated and denied by the accused, is sufficient to present a jury question." State v. Roller, 30 Wash. 692, 71 P. 718 (1903), superseded by statute as stated in State v. Birgen, 33 Wn. App. 1, 651 P.2d 240 (1982), review denied, 98 Wn.2d 1013 (1983).
B. Right to Testify (SAG and PRP)
Beatty next baldly contends in his SAG that he "never" got to testify on his own behalf. SAG at 4. A defendant who files a SAG need not cite to cases or the record, but he must provide details sufficient to inform the court of the objection for review. RAP 10.10(c).
RAP 10.10(c) states:
Reference to the record and citation to authorities are not necessary or required, but the appellate court will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in RAP 18.3(a)(2), the appellate court is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review.
A defendant has a fundamental right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). Only the defendant has the authority to decide whether to testify or waive that right. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 735, 16 P.3d 1 (2001) (quoting 3 Wayne R. LaFave, Jerold H. Israel Nancy J. King, Washington Practice: Criminal Procedure § 11.6(a), at 603 (2d ed. 1999)); Thomas, 128 Wn.2d at 558. Contrary to Beatty's allegation, the trial court informed Beatty of his right to either testify or not. Beatty indicated that he understood his rights and he did not testify.
C. Amendment of Child Rape to Child Molestation Charges (SAG and PRP)
Beatty next argues that the trial court erred when it permitted the State to amend the charges mid-trial. Beatty asserts that he was prepared to defend the original charges, conspiracy and attempt to commit first degree child rape, but did not have time to prepare to defend the amended charges.
An accused must be informed of the charge he is to meet at trial and cannot be tried for an offense not charged. State v. Carr, 97 Wn.2d 436, 439, 645 P.2d 1098 (1982); State v. Lutman, 26 Wn. App. 766, 767, 614 P.2d 224 (1980). A trial court may allow the amendment of the information at any time before the verdict as long as the "substantial rights of the defendant are not prejudiced." CrR 2.1(d). However, this court rule is limited by article 1, section 22 of the Washington State Constitution, which requires that the accused be adequately informed of the charge to be met at trial. State v. Markle, 118 Wn.2d 424, 437, 823 P.2d 1101 (1992); State v. Pelkey, 109 Wn.2d 484, 487-90, 745 P.2d 854 (1987). We review a trial court's decision to allow the State to amend the charge for an abuse of discretion. State v. Haner, 95 Wn.2d 858, 864, 631 P.2d 381 (1981).
In Pelkey, our Supreme Court addressed the issue of amendments after the conclusion of the State's case in chief and decided that a "criminal charge may not be amended after the State has rested its case in chief unless the amendment is to a lesser degree of the same charge or a lesser included offense." 109 Wn.2d at 491. An amendment of the information after the State has rested its case in chief is reversible error per se, and the defendant is not required to show prejudice. Markle, 118 Wn.2d at 437.
But our Supreme Court has specifically declined to expand Pelkey to embrace amendments filed during the State's case in chief. State v. Schaffer, 120 Wn.2d 616, 619-20, 845 P.2d 281 (1993); see also State v. Ziegler, ___ Wn. App. ___, 158 P.3d 647 (2007) (declining to extend the per se rule of Pelkey to apply before the State rests its case in chief). Here, without objection, the State amended the charges before it rested its case in chief and Pelkey does not apply. In addition, Beatty has not demonstrated prejudice resulting from the amendment. CrR 2.1(d); State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), aff'd on subsequent review, 113 Wn.2d 520 (1989); Pelkey, 109 Wn.2d at 490; State v. Hakimi, 124 Wn. App. 15, 26-27, 98 P.3d 809 (2004). See State v. Aho, 89 Wn. App. 842, 849-50, 954 P.2d 911 (1998), remanded on other grounds, 137 Wn.2d 736 (1999) ("the critical difference between the main charge of rape and the alternative charge of molestation was whether penetration occurred. We fail to see how [the amendment during the State's case in chief] either the lack of either additional discovery or a continuance adversely affected [the defendant's] defense" and thus, no prejudice.) (footnote omitted).
In addition, the amendment was filed immediately following the testimony of the State's first witness, C.E.C., and Beatty did not object to the amended charges or request a continuance. See State v. Murbach, 68 Wn. App. 509, 512, 843 P.2d 551 (1993) (absence of request for continuance indicated amendment to information was not prejudicial). Beatty has not demonstrated that he was prejudiced by the State amending the charges from child rape to the less serious charge of child molestation.
D. Sentencing (SAG and PRP)
Beatty next challenges the length of his sentence, asserting that 51 months to life, with community custody, was excessive and unfair. Specifically, Beatty contends that the trial court failed to consider his status as a first-time offender.
The Sentencing Reform Act of 1981 precludes challenges to sentences within the correct standard range. RCW 9.94A.585(1); State v. Mail, 121 Wn.2d 707, 710, 854 P.2d 1042 (1993). In addition, the first-time offender waiver does not apply to any felony classified as a sex offense. RCW 9.94A.650(1)(a). We note that Beatty did not raise any objections at sentencing and that he was sentenced within the standard range. Beatty also does not raise any constitutional issues5 regarding the sentence and he does not dispute the veracity of the facts relied upon by the trial judge at sentencing. Mail, 121 Wn.2d at 710. Beatty's standard range sentence is proper. Additional PRP Issues
We addressed Beatty's first four PRP issues with the SAG issues discussed above. In his PRP, Beatty also claims his trial counsel was ineffective for failing to (1) offer evidence showing that C.E.C. has lied before; and (2) offer witnesses who would have testified on Beatty's behalf.
In Washington, the appellate courts and the Supreme Court have original concurrent jurisdiction in PRPs where the death penalty has not been decreed. RAP 16.3(c). To be entitled to relief under a PRP, Beatty must establish a constitutional error resulting in actual and substantial prejudice or a non-constitutional error constituting a fundamental defect that inherently results in a complete miscarriage of justice. In Re Pers. Restraint of Breedlove, 138 Wn.2d 298, 304 n. 1, 979 P.2d 417 (1999) (quoting In Re Pers. Restraint of Cook, 114 Wn.2d 802, 811-12, 792 P.2d 506 (1990)).
Regardless of whether Beatty bases his challenges on constitutional or non-constitutional error, he must support his petition with facts or evidence on which his claims of unlawful restraint are based and not solely on conclusory allegations. Cook, 114 Wn.2d at 813-14. Beatty must present evidence that is more than speculation, conjecture, or inadmissible hearsay; and, if his claimed evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say, but must present their affidavits or other corroborative evidence. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992). Beatty does not offer any evidence to support his ineffective assistance of counsel allegations.
The trial court found C.E.C. a credible witness. We cannot assess C.E.C.'s credibility to determine if she was lying about the events to which she testified. Thomas, 150 Wn.2d at 874-75.
Beatty baldly asserts that his trial counsel refused to offer the testimony of several willing witnesses. But he does not provide any evidence to support this allegation and we cannot review it further. Grobe v. Valley Garbage Serv., Inc., 87 Wn.2d 217, 228-29, 551 P.2d 748 (1976); State v. Bugai, 30 Wn. App. 156, 632 P.2d 917, review denied, 96 Wn.2d 1023 (1981).
Attorney Fees
The State requests attorney fees and costs pursuant to RAP 14.2, RAP 14.3, RCW 10.73.160, and State v. Blank, 131 Wn.2d 230, 930 P.2d 1213 (1997). The State is the prevailing party and is entitled to fees the State incurred in defending Beatty's appeal and collateral attack on his criminal conviction and sentence.
We deny Beatty's PRP and affirm the conviction and sentence.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J., PENOYAR, J., concur.