Opinion
No. 33173-0-II.
November 14, 2006.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01765-1, Leila Mills, J., entered April 15, 2005.
Counsel for Appellant(s), Eric Michael Fong, Rovang Fong Associates, Port Orchard, WA.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Port Orchard, WA.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J.; Quinn-Brintnall, J., dissenting.
John Thomas Cote Jr. appeals his convictions for first degree burglary and communication with a minor for immoral purposes. Cote argues that (1) there was insufficient evidence to convict him of the charged offenses; (2) he received ineffective assistance of counsel when his trial attorney failed to request a jury instruction for a lesser included offense and failed to object to a misstatement of the law by the prosecution in closing argument; (3) the trial court abused its discretion when it denied his motion for a continuance on the first day of trial; and (4) the trial court's errors amounted to cumulative error. We reverse the burglary conviction for insufficient evidence, affirm his conviction for communication with a minor for immoral purposes, and remand for dismissal of the burglary charges and correction of the judgment and sentence.
FACTS A. Factual Background
During the evening of November 8, and the early morning hours of November 9, 2004, BLM, a 14-year-old female, was at home alone in Olalla. Her mother, Lori McGinnis, was at a friend's house in Gig Harbor. BLM locked the doors to the house before she went to sleep at 10:00 p.m. She was wearing pajama pants, a shirt, and a bra. BLM slept in McGinnis's room which was illuminated by a "really big fish tank." Report of Proceedings (RP) (Apr. 5, 2005) at 7.
The Report of Proceedings was prepared as four separately paginated volumes, dated April 4, 2005, April 5, 2005, April 5, 2005, and April 6, 2005. When we refer to RP (Apr. 5, 2005), we refer to the volume that contains trial testimony.
On the same evening, Cote, McGinnis's former boyfriend of a "couple weeks," RP (Apr. 5, 2005) at 49, had been out drinking in Purdy. A friend dropped Cote off at the Olalla exit off of Highway 16 and Cote walked two or three miles to McGinnis's house. Cote "originally went over to the house with the intent of having some sort of interlude (sexual encounter) with [McGinnis]." RP (Apr. 5, 2005) at 62. He climbed through a "tall skinny window just like a slider" next to the front door, which is usually unlocked for BLM's cat to enter. RP (Apr. 6, 2005) at 6.
Cote slept at McGinnis's residence while they were dating. McGinnis never gave Cote a key to the house, although she "probably" gave Cote permission to come over to her house when she was not present, but not when the doors were locked. RP (Apr. 5, 2005) at 56. She told Cote, Cote's sister, Dawn Howitz, and Howitz's boyfriend that "if there was ever any trouble . . . my door is open. My door is always open. If you need it, come over." RP (Apr. 5, 2005) at 50. Howitz testified that McGinnis said, "[I]f you guys are ever in need and I'm not here, the doors are always open," and that the cat door (the two front windows) and the back door were always left open. RP (Apr. 5, 2005) at 86.
McGinnis testified that she did not mean the "door is always open" comment to mean that they could come to her house when she wasn't there. RP (Apr. 5, 2005) at 54. She meant it as a neighborly gesture because she thought they were friends and trustworthy. But McGinnis never denied Cote permission to come over if she was not there. In closing argument, the prosecutor conceded that "the defendant had permission to come into [McGinnis's] home . . . even when she wasn't present." RP (Apr. 6, 2005) at 20.
After entering the house sometime between 4:30 and 5:00 a.m. on November 9, Cote went straight to McGinnis's room, "which is what I always do when I go into that house." RP (Apr. 6, 2005) at 6. Cote testified that he could not tell who was in the bed because it was dark. But during an interview with Kitsap County Sheriff Deputy Brian McEvoy, when McEvoy reminded him of the illuminated fish tank in the room, Cote said, "Oh, yeah, I could see, and I did realize it was [BLM]." RP (Apr. 5, 2005) at 61. Cote also told McEvoy that he was intoxicated.
BLM woke up when she felt an arm around her around 5:00 a.m. She "didn't really know who it was at first" and she was "startled" and "scared." RP (Apr. 5, 2005) at 8. BLM testified that a person was putting his fingers through her hair, touching her stomach under her shirt, and touching her leg. BLM moved her arm to stop the person from getting up her bra. She said that "[i]t was like he was moving in his sleep." RP (Apr. 5, 2005) at 8. BLM found the touching offensive and it made her feel uncomfortable. BLM sat up, faced Cote, and saw that he was wearing a turtleneck that was pulled up over his mouth and nose. She recognized Cote and said, "Hi. What are you doing here?" RP (Apr. 5, 2005) at 9. Cote answered, "I'm sorry if I startled you." RP (Apr. 5, 2005) at 9.
BLM testified that she went to her room and because she did not want to make Cote mad, she did not ask him to leave. She was in her room with the doors closed when, five minutes later, BLM saw that her door was cracked open and she saw Cote through the crack. Cote went into a bathroom off of BLM's bedroom, but did not enter BLM's room. BLM said, "Hello" twice and Cote answered that "he was looking for his backpack." RP (Apr. 5, 2005) at 12.
Later, Cote returned to McGinnis' room. Cote yelled from McGinnis's room that he had some "weed" and offered BLM some, but she declined. RP (Apr. 5, 2005) at 12-13. At some point, Cote told BLM that he was not attracted to McGinnis, that he was more attracted to her, and asked her if she wanted to lie back down.
Deputy Sheriff McEvoy testified that during their interview, Cote said that he had told "[BLM] that he liked her more than her mom because the mom wasn't a good parent and left the kids at home too often." RP (Apr. 5, 2005) at 62. Cote testified that he told BLM that he liked her and her sister and that he was "disappointed" with McGinnis because "she wasn't there for the children." RP (Apr. 6, 2006) at 8. Cote disputes that he asked BLM to lie down, that he was in the bathroom, that he offered BLM marijuana, and that he had any physical contact with her. He testified that he must have rolled over in bed because BLM jumped up and he also denied admitting to McEvoy and another law enforcement officer that he fondled BLM.
In the morning, BLM was in the kitchen, but then went into McGinnis's room to talk to her mother on the telephone while Cote remained in the same room. During the telephone conversation BLM told McGinnis that Cote was at their house and asked McGinnis to come get Cote and drive him home. McGinnis thought that it was unusual for Cote to be there, but she and BLM did not discuss what happened with Cote because he was there and BLM did not "want to make it appear as if I was scared" and did not "want to startle him." RP (Apr. 5, 2005) at 15. BLM handed the phone to Cote and returned to her room to quickly get dressed. Cote told McGinnis that BLM might tell her something about being startled by his lying next to her on the bed. Cote then fell asleep in McGinnis's room. When he woke up at 11:00 a.m. or 12 p.m., McGinnis's brother-in-law was in the house. Cote eventually got a ride home with a friend.
At school, BLM's friend noticed that she was "kind of shaky," asked what was wrong, and suggested that BLM talk to someone, causing BLM to talk to a teacher. RP (Apr. 5, 2005) at 17. That talk led to Deputy Sheriff McEvoy and a second deputy sheriff questioning Cote at his home later that day and to Cote's arrest.
B. Procedural Facts
On November 10, 2004, Cote was charged with one count of burglary in the second degree with a special allegation of domestic violence.
On April 4, 2005, defense counsel requested a continuance to secure witnesses from Child Protective Services (CPS) and stated he was "not ready to proceed." RP (Apr. 4, 2005) at 6. Counsel argued that, based on CPS reports, the victim had a motive to lie and was "trying to get her mother's attention." RP (Apr. 4, 2005) at 3. The court denied the request for continuance because it did not feel that the defense "made an adequate showing to suggest that the CPS testimony is linked with a motive." RP (Apr. 4, 2005) at 13.
On April 5, 2005, the State filed a fourth amended information charging Cote with one count of burglary in the first degree with a special allegation of sexual motivation and one count of communication with a minor for immoral purposes, a gross misdemeanor.
The jury found Cote guilty on both counts, but did not find that the burglary was sexually motivated. Cote was sentenced to fifteen months for the burglary conviction and 365 days with 365 days suspended for two years for the communication with a minor for immoral purposes conviction, with the sentences to run concurrently.
ANALYSIS
Cote first argues that the evidence was not sufficient for a rational finder of fact to find that he was guilty of burglary beyond a reasonable doubt because there was no evidence of illegal entry or unlawful remaining. The State asserts that Cote "exceeded the scope of his permission" by committing the assault on BLM. Br. of Resp't at 14.
A. Sufficiency of the Evidence
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). "With this standard as a guide, we have reviewed the record, keeping in mind the rule that `[w]hen the sufficiency of evidence is challenged in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.'" State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977) (quoting State v. Woods, 5 Wn. App. 399, 404, 487 P.2d. 642 (1971)) (citation omitted). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd 95 Wn.2d 385, 622 P.2d 1240 (1980)).
Lawful entry, even one accompanied by nefarious intent, is not by itself a burglary. "Unlawful presence and criminal intent must coincide for a burglary to occur." State v. Allen, 127 Wn. App. 125, 137, 110 P.3d 849 (2005).
Unlawful remaining occurs "when (1) a person has lawfully entered a building pursuant to invitation, license or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the building." Allen, 127 Wn. App. at 133 (citing State v. Thomson, 71 Wn. App. 634, 640-41, 861 P.2d 492 (1993)).
The trial court instructed the jury on the elements of burglary in the first degree:
To convict the defendant of the crime of Burglary in the First Degree as charged in count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or between November 8, 2004, through November 9, 2004, the defendant entered or remained unlawfully in a dwelling;
(2) That the entering or remaining was with the intent to commit a crime against a person or property therein;
(3) That in so entering or while in the dwelling or in immediate flight from the dwelling the defendant assaulted the person therein; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 93.
Our Supreme Court addressed implied limitations on or revocation of privileges (or permission) to be on premises and reached the conclusion that, depending on the facts of the case, a limitation on or revocation of the privilege to be on the premises may be inferred from the circumstances. State v. Collins, 110 Wn.2d 253, 261-62, 751 P.2d 837 (1988). This analysis neither renders part of the burglary statute superfluous nor converts all indoor crimes to burglaries, but absent direct or circumstantial evidence of all essential elements of burglary, indoor assaults are not burglaries. See Collins, 110 Wn.2d at 261-62.
Here, the State had no evidence that Cote had a criminal intent when he entered McGinnis's house lawfully with permission or that he unlawfully remained. Without evidence that there were express or implied limitations on Cote's privilege to enter or remain in McGinnis's house, the evidence viewed in the light most favorable to the State shows only that Cote entered the house with her permission, assaulted BLM in her mother's bedroom, went into a bathroom which had a door into BLM's room, offered BLM some marijuana, and asked her if she wanted to lie down again. When BLM refused the marijuana and declined to lie down, Cote fell asleep until well after BLM left for school. Because the State conceded that Cote lawfully entered McGinnis's house and there was no evidence of illegal entry or unlawful remaining, no rational trier of fact could have found Cote guilty of burglary beyond a reasonable doubt. Thus, the burglary conviction is vacated for insufficiency of the evidence.
Cote also argues that the evidence is insufficient to convict him of communication with a minor for immoral purposes because the jury's guilty verdict of communication with a minor for immoral purposes is inconsistent with the jury's finding that he did not commit burglary with sexual motivation. He further argues that the only evidence of the crime is the conflicting testimony of BLM and Cote. We disagree with Cote's argument.
In State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988), our Supreme Court dealt with the issue of whether "an apparent inconsistency between jury verdicts renders a challenged conviction void." State v. McNeal, 145 Wn.2d 352, 358, 37 P.3d 280 (2002).
In Ng, a defendant was charged with first degree assault and 13 counts of first degree felony murder. 110 Wn.2d at 34-35. The "to convict" jury instruction on each charge of felony murder required the jury to find that Ng participated in a robbery and caused a particular victim's death. Ng, 110 Wn.2d at 35-36. The jury instructions also allowed the jury to find Ng guilty of (1) first degree robbery as a lesser included offense of felony murder and (2) second degree assault as a lesser included offense of first degree assault. Ng, 110 Wn.2d at 36. The jury convicted Ng of the lesser included offenses. Ng, 110 Wn.2d at 36.
Ng argued that the jury's verdicts on the robbery charges should be reversed because they "were inconsistent with the jury's acquittal on the felony murder charges." Ng, 110 Wn.2d at 45. Our Supreme Court rejected Ng's challenge and stated that, although the verdicts were "inconsistent," the convictions can be upheld "where the jury's verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt." Ng, 110 Wn.2d at 48 (citing United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984)). It reached this conclusion to protect "considerations of jury lenity" and to avoid the "problems inherent in second-guessing the jury's reasoning," leaving intact "`the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons.'" Ng, 110 Wn.2d at 48 (quoting Powell 469 U.S. at 63) (citation omitted).
In McNeal, our Supreme Court treated an inconsistency between a special finding and a general verdict in the same way an inconsistency between two general verdicts is treated. 145 Wn.2d at 359. It upheld a jury verdict despite an inconsistency between a general verdict and a special finding where there was "abundant evidence" to support each verdict. McNeal, 145 Wn.2d at 359 (citing State v. Peerson, 62 Wn. App. 755, 766, 816 P.2d 43 (1991), review denied, 118 Wn.2d 1012, 824 P.2d 491 (1992)).
In determining whether evidence supports a jury verdict, we "view the evidence in the light most favorable to the State." McNeal, 145 Wn.2d at 359 (citing Salinas, 119 Wn.2d at 201). `"A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom."' McNeal, 145 Wn.2d at 360 (quoting Salinas, 119 Wn.2d at 201) (citing Theroff, 25 Wn, App. at 593).
"Credibility determinations are for the trier of fact and are not subject to review." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). We "must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
Despite BLM's and Cote's contradictory testimony, the evidence included Cote's admission that he fondled BLM by putting his fingers through her hair, touching her stomach, her leg, and attempting to get up in her bra. The jury also heard that Cote offered BLM marijuana, told her that he was more attracted to her than to her mother, and asked BLM if she wanted to lie down again. It was for the jury to resolve the conflict in the testimony and we do not review its credibility determinations.
We hold that the evidence was sufficient for conviction on the charge of communication with a minor for immoral purposes.
B. Motion for Continuance
Cote sought a continuance to "contact the CPS workers and obtain their testimony," Br. of Appellant at 12, to impeach McGinnis's and BLM's credibility. He argues that the trial court abused its discretion when it denied his continuance request because it "was the only evidence available to support [Cote's] version of the physical contact with [BLM]." Br. of Appellant at 12.
The original trial date was January 19, 2005. According to Cote, the trial was continued to March 14, 2005, so he could obtain McGinnis's CPS records. Cote received the records on March 25, 2005, and believed that they were relevant to his case. On April 4, 2005, the first day of trial, defense counsel stated that he had already subpoenaed CPS workers to testify about the "escalating pattern" of neglect of BLM by McGinnis. Br. of Appellant at 8. He wanted to establish that McGinnis and BLM had motives to lie about the incident involving Cote and needed additional time to prepare for trial in order "to contact the CPS workers who had handled the previous reports and obtain their testimony to show motive of [McGinnis and BLM] to lie about the incident with [Cote]." Br. of Appellant at 9. Cote argues on appeal that he was prejudiced by the denial of his continuance request, "particularly in light of the fact that the jury did not unanimously find that [Cote] committed the assault [sic] with sexual motivation." Br. of Appellant at 13.
There is nothing in the record before us as to why the trial did not begin on that date.
Apparently, the trial date was continued to April 4, 2005.
We review a trial court's decision to grant or deny a continuance under an abuse of discretion standard. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). The appellant must make `"a clear showing . . . [that the trial court's] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons."' Downing, 151 Wn.2d at 272-73 (quoting, State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)) (citation omitted).
"In exercising discretion to grant or deny a continuance, trial courts may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure." Downing, 151 Wn.2d at 273 (citing State v. Eller, 84 Wn, 2d 90, 95, 524, P.2d 242 (1974)). "When error is assigned to the denial of a continuance, the crucial question is whether the defendant was denied a fair trial because the defendant would not have been convicted had the witness testified." State v. Lane, 56 Wn. App. 286, 296, 786 P.2d 277 (1989) (citing Dearinger v. United States, 468 F.2d 1032, 1034 (9th Cir. 1972)).
Following Cote's argument for a continuance, the trial court stated that it did "not feel that based upon the presentation made that defense has made an adequate showing to suggest that CPS testimony is linked with a motive" and that the defense presented a "theory, and that theory is based upon speculation." RP (Apr. 4, 2005) at 13. The trial court determined that the CPS evidence was not material or relevant to the issues to be tried and, therefore, the trial need not be delayed to secure the presence of CPS witnesses. Subsequently, Cote did not call any CPS witnesses to testify.
We agree with the trial court that the record does not demonstrate that the CPS witnesses could offer relevant evidence about whether Cote had inappropriate criminal contact with BLM. Thus, the trial court acted within its discretion to deny the continuance and did not base its decision on unreasonable or untenable grounds. Accordingly Cote was not denied a fair trial because the CPS witnesses' testimony would have resulted in acquittal.
Furthermore, Cote does not demonstrate prejudice from the denial of his continuance request based on the jury's finding that he did not commit burglary with sexual motivation. To the contrary, the jury distinguished between the charge of communication with a minor for immoral purposes and the charge of burglary with sexual motivation.
Because we vacate Cote's burglary conviction for insufficiency of the evidence, we do not address his assignments of error on ineffective assistance of counsel and cumulative error.
We reverse and remand for dismissal of the burglary conviction and affirm Cote's conviction for communication with a minor for immoral purposes. We also remand for correction of the judgment 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., concur.
I concur with that portion of the majority opinion that affirms John Thomas Cote Jr.'s conviction for communication with a minor for immoral purposes. I dissent from the majority's holding that insufficient evidence supported Cote's burglary conviction. Taking the evidence in the light most favorable to the State, a reasonable jury could find that Cote unlawfully remained on the premises with the intent to assault BLM.
The jury could reach this conclusion in three ways. First, it could conclude that Cote exceeded the scope of BLM's mother's consent. In State v. Collins, 110 Wn.2d 253, 751 P.2d 837 (1988), our Supreme Court rejected the argument that someone giving consent must expressly restrict the scope of that consent in order to limit it and adopted a more pragmatic, fact-sensitive approach to evaluating the scope of consent. 110 Wn.2d at 260-61. Here, BLM's mother gave Cote consent to enter her home even if she was not present. But when evaluating the facts presented here, a jury could reasonably conclude that a mother's consent to enter the home is not so broad that it includes permission to lie in her bed, unsupervised and drunk, next to her sleeping 14-year-old daughter.
The unlawful remaining concept is intended primarily for situations in which the initial entry to a building is lawful, but the defendant (1) exceeds the scope of the license or privilege to enter or (2) the license is impliedly or expressly terminated. State v. Allen, 127 Wn. App. 125, 133, 110 P.3d 849 (2005) (interpreting State v. Collins, 110 Wn.2d 253, 751 P.2d 837 (1988), and State v. Thomson, 71 Wn. App. 634, 861 P.2d 492 (1993)).
A jury could also conclude that whatever the scope of the consent BLM's mother may have given Cote, after he molested BLM, she revoked it and fled to her own bedroom. In my opinion, a 14-year-old child who is home without her parents has the authority to refuse entry to one who seeks to remain in the home to molest her.
Moreover, BLM's mother lacked the authority to consent to the molesting of her daughter and a jury could conclude that Cote exceeded whatever consent BLM's mother had given him when he formed an intent to assault BLM. Cote knew that BLM was sleeping in her mother's bed. Nevertheless, he lay in that bed, pulled his turtleneck over his face, and fondled BLM. He told her that he was attracted to her and later tried to lure her into using elicit drugs and again reclining with him in bed.
Taken in a light most favorable to the State, the evidence is sufficient to support the jury's verdict that Cote remained unlawfully in the house and continued to assault BLM by creating in her the apprehension that she was in danger of being raped unless she kept her wits about her and mollified Cote until help could arrive.
I would affirm the jury's verdicts finding Cote guilty of communication with a minor for immoral purposes and first degree burglary.