Opinion
No. 55638-0-I.
May 1, 2006.
Appeal from a judgment of the Superior Court for King County, No. 02-1-06672-7, Anthony P. Wartnik, J., entered November 25, 2002.
Counsel for Appellant(s), Scott Dean Culp (Appearing Pro Se), 811 S Warsaw St, Seattle, WA.
David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Affirmed by unpublished opinion per Ellington, J., concurred in by Coleman and Baker, JJ.
Scott Culp was convicted of rape, assault, unlawful imprisonment, and felony harassment. He contends that double jeopardy bars all but the rape conviction and that his crimes constituted the same criminal conduct for sentencing purposes. His crimes were not the same offense for double jeopardy purposes, and the rape and assault were not the same criminal conduct. We therefore reject these and several other arguments and affirm.
BACKGROUND
On the evening of March 19, 2002, Scott Culp and Jeanine Groves went to the home of a mutual friend, William Spratley. Culp and Groves were involved romantically, though Groves had broken off the relationship several times in the past months because Culp had been physically abusive.
Culp, Groves, and Spratley began to argue, apparently in a proprietary fight over some beer. The argument became physical, and Groves was thrown to the floor. Culp covered her face with a pillow and struck her repeatedly, and Spratley hit her with a pair of crutches. Groves tried to leave, at which point Culp removed her socks and shoes. It was a cold day and there was snow on the ground, so the men reasoned Groves would not flee barefoot.
Spratley told Culp he was expecting company, and Culp and Groves should go into a bedroom. Groves again sought to leave, but Culp took her to the bedroom and demanded she have sex with him. When she refused, Culp threatened to kill her if she did not comply, and then had forcible intercourse with her. Spratley came in and asked Culp and Groves to move to the basement before his guests arrived. Groves again asked to leave, saying she needed to go to a hospital because her ribs were in pain from the earlier beating. Culp took her to a basement bedroom and pushed a heavy dresser in front of the door, telling Groves she could not leave. Over the course of the next hours, Culp forced Groves to have vaginal, anal, and oral sex. Throughout the ordeal, Groves insisted she did not want to have sex, that she was in pain and wanted to go to a hospital, and that she wanted to leave the basement. Culp fell asleep at one point and Groves tried to push the dresser aside to free herself, but she was unable to move the dresser and the noise awoke her captor.
Eventually, in the early morning hours, Groves persuaded Culp to leave the basement by offering to buy him beer. Once outside, Culp again refused to allow Groves to seek medical attention. At some point, however, the pair met a mutual acquaintance, who convinced Culp to allow Groves to go to the hospital. Groves took a bus to Harborview Hospital, where she reported the incident to police.
After a bench trial, Culp was convicted of first degree rape, third degree assault, unlawful imprisonment, and felony harassment. On Culp's first appeal, we remanded for clarification of the findings of fact and conclusions of law. Supplemental findings and conclusions were entered, and we now address the merits of Culp's appeal.
DISCUSSION
Double Jeopardy. The double jeopardy clauses of the United States and Washington constitutions prohibit courts from imposing more than one punishment for the same offense. State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991). Within the bounds of this constitutional protection, however, it is for the legislature to define criminal conduct and to determine appropriate punishments. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). "`Where a defendant's act supports charges under [multiple] criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense.'" State v. Freeman, 153 Wn.2d 765, 771, 9, 108 P.3d 753 (2005) (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). "If the legislature authorized cumulative punishments for both crimes, then double jeopardy is not offended." Id. at
10. We review the issue de novo. Id. at 770, 9.
Where, as here, the statutes do not expressly authorize multiple punishments for separate crimes, Washington courts employ the same evidence test to determine whether the multiple convictions may stand. Id. at 772, 12; Calle, 125 Wn.2d at 777. In this analysis, the elements of the crime are considered as charged and proven, not on an abstract level. Freeman, 153 Wn.2d at 777, 26. Offenses are the same in fact if they are proved by the same evidence. Calle, 125 Wn.2d at 777. They are the same in law if proof of one crime would always prove the other. Id. But if each offense, as charged and proved, includes an element not included in the other, or if the facts establishing one offense would not necessarily also prove the other, then the offenses are different. In re Fletcher, 113 Wn.2d 42, 47, 49, 776 P.2d 114 (1989). Failure under the same evidence test creates a strong presumption in favor of multiple punishments. Calle, 125 Wn.2d at 780.
Cf. RCW 9A.52.050 (explicitly permitting separate punishment for crime committed in the commission of a burglary in addition to punishment for burglary itself).
Culp contends that in light of his conviction for first degree rape, his convictions for felony harassment, unlawful imprisonment, and assault violate double jeopardy. We discuss each offense separately below. Harassment. Culp contends that under the same evidence test, the offenses of rape and harassment are legally identical because the threat to kill that constituted the basis for his harassment conviction is the legal equivalent of the threat that constituted forcible compulsion as an element of rape. But rape requires proof of sexual intercourse, forcible compulsion, and either kidnapping or serious physical injury. See RCW 9A.44.040. Felony harassment requires only threat to injure. RCW 9A.46.020. The crimes are not the same in law.
`Forcible compulsion' means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.' RCW 9A.44.010(6).
Moreover, rape and harassment as proven here are not the same in fact. Although forcible compulsion can be proved by threats such as those Culp made here, the court did not rely on Culp's threats to support its finding of forcible compulsion: "There was forcible compulsion . . . from the standpoint of her being restrained from leaving the home and being taken to the basement, having the basement door blocked so she couldn't voluntarily get out." Clerk's Papers at 53:15-17. The court emphasized that the element of forcible compulsion was based on Culp's use of physical force, not the threats: Ms. Groves refused but he forcefully had anal sex with her. . . . When Ms. Groves refused [oral sex], he forced her head down and made her do it." Clerk's Papers at 52:5-6. The findings make clear that the harassment and rape convictions did not arise from the same conduct.
Because the crimes are neither legally nor factually identical, multiple punishments are presumed proper. In some cases, that presumption is overcome by clear evidence of contrary legislative intent. State v. Frohs, 83 Wn. App. 803, 814, 924 P.2d 384 (1996); Calle, 125 Wn.2d at 780. There is, however, no such evidence here. Indeed, the two offenses are "directed to separate evils" — deterring acts of unlawful sexual intercourse and deterring threats designed to coerce or intimidate — and the offenses are defined in separate sections of the criminal code ("Sex Offenses" and "Harassment"). See RCW 9A.44.040; RCW 9A.46.010; Calle, 125 Wn.2d at 780-81 (finding legislative intent to punish a single act of intercourse as both rape and incest based in part on their location in different chapters of the criminal code, and the contrasting purposes of the statutes).
Culp's rape and harassment convictions were separate offenses and do not violate double jeopardy.
Unlawful Imprisonment. Unlawful imprisonment is knowing restraint of another person. RCW 9A.40.040. Restraint is "restrict[ing] a person's movements without consent . . . in a manner which interferes substantially with their liberty." RCW 9A.40.010(1). Rape is elevated to first degree when accompanied by infliction of serious physical injury or kidnapping. RCW 9A.44.040(c). Kidnapping is abducting a person by secreting her in a place she is not likely to be found. RCW 9A.40.010(2), .020. Culp contends that under the same evidence test, as well as under merger analysis, his unlawful imprisonment conviction is the same offense as the rape, because the restraint elevated the rape to first degree by way of the kidnapping element.
In the abstract, the restraint required to prove unlawful imprisonment could be part of the proof required for the kidnapping element of first degree rape. Here, however, the court found that the unlawful imprisonment "did not stem from the same act" as the kidnapping. Clerk's Papers at 53:12. The court found that the kidnapping did not occur until Culp took Groves to the basement and secreted her there overnight by blocking the door, whereas the unlawful imprisonment occurred upstairs, when Culp removed Groves' shoes and socks and physically restrained her from leaving. Culp contends his restraint of Groves was a single, continuing offense. The court found otherwise, and our review is limited "to determining whether a trial court's findings are supported by substantial evidence, and if so, whether those findings support the conclusion of law." State v. Graffius, 74 Wn. App. 23, 29, 871 P.2d 1115 (1994). Substantial evidence persuades "a fair-minded, rational person of the truth of the finding." State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999).
Culp's cites to In re Snow, Brown v. Ohio, and State v. Adel for the proposition that the two acts were part of a continuing offense. Certainly, the double jeopardy clause prohibits multiple convictions for charges derived from "arbitrary" or "spurious" distinctions such as "`dividing a crime into a series of temporal or spatial units.'" State v. Adel, 136 Wn.2d 629, 635, 965 P.2d 1072 (1998) (quoting Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)); In re Snow, 120 U.S. 274, 282, 7 S. Ct. 556, 30 L. Ed. 658 (1887). But the cited cases involved a single offense committed over time or in several locations, whereas Culp's distinct acts of removing Groves' shoes and socks and restraining her upstairs (where she was likely to be found by Spratley's guests), and secreting her in the basement overnight by barricading the door, are different in both quality and consequences.
Snow, 120 U.S. at 282 (three years of the continuing offense of bigamy charged as three offenses); Brown, 432 U.S. at 169 (nine-day joyriding spree prosecuted as two acts charged on different dates).
Adel, 136 Wn.2d at 636 (two separate stashes of marijuana charged as two offenses though the combined amount of the two stashes constituted a single misdemeanor possession).
The court's findings as to the chronology and location of events that evening are supported by testimony from Groves and Spratley, as well as Culp's own signed statement. The two crimes arose from different conduct and were established by different evidence. The court did not err in concluding they were different offenses.
For the same reasons, the crimes do not merge. Merger is another doctrine of statutory interpretation used to determine "whether the Legislature intended to impose multiple punishments for a single act which violates several statutory provisions." State v. Vladovic, 99 Wn.2d 413, 419 n. 2, 662 P.2d 853 (1983); State v. Eaton, 82 Wn. App. 723, 730, 919 P.2d 116 (1996). Merger applies only where a crime can be elevated to a higher degree by proof of conduct defined as a separate crime. Id.; Vladovic, 99 Wn.2d at 420-21.
Merger may apply to rape where second degree rape is elevated to first degree by any of several enumerated offenses, including kidnapping or infliction of serious physical injury. Id.; RCW 9A.44.040(1). Though in some cases unlawful imprisonment could be a lesser-included offense of a kidnapping which elevates a rape to first degree, this is not such a case. The crimes were committed separately and do not merge. See, e.g., State v. Atkins, 130 Wn. App. 395, 401, 123 P.3d 126 (2005) (unlawful imprisonment did not merge with rape, even where it was incidental to the rape, where separate evidence of forcible compulsion was present such that the restraint was not necessary proof for the crime of rape).
The rape and unlawful imprisonment convictions do not violate double jeopardy.
Assault. Culp next argues the rape and assault were the same offense because they stemmed from the same transaction. His theory is that Groves' continued pain from the assault, compounded with the force of the rape, constituted the serious physical injury that elevated the rape to first degree. This argument misunderstands the same in fact standard and ignores the court's findings. Groves was injured by the assault, but the injuries she sustained during the rape were different and additional. Because she had already been injured, the forced sex acts were particularly painful, and the rough treatment during the rape worsened her previous injuries. The additional injuries, not the assault, elevated the rape to first degree. The two crimes were not proved by the same evidence.
Culp's analogy to State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (1979) does not avail him. In Johnson, the defendant raped two hitchhiking teens. He threatened the girls with a knife to gain their submission. He also ordered one of the victims into his car in order to drive her to a second location where he raped her again. Id. at 672-73. The court ruled that the convictions for assault (threatening with a knife) and kidnapping (forcing victim into car) were "intertwined" with the rape, had no independent purpose, and caused no injury independent from the rape. Id. at 681.
Here, by contrast, Culp's assault on Groves was separate from the rape in time, place, purpose and consequence. The court so found, and the evidence supports these findings, which in turn support the conclusion that the physical assault was distinct from the sexual assault. See infra at 10-11. The assault and rape are not the same in fact, and Culp has not overcome the strong presumption in favor of multiple punishments.
Nor are the two crimes the same in law. Even if the rape and assault shared the same time, space, and purpose (which they do not), they do not merge because the assault-related injuries were not necessary to proving the rape conviction. The rape was elevated to first degree by either the exacerbation of injuries or the kidnapping.
Separate punishment for assault does not violate double jeopardy.
Same Criminal Conduct. The trial court found that the harassment, rape, and unlawful imprisonment all involved the same criminal conduct, but that the assault constituted separate conduct. Culp alleges this was error.
Two crimes constitute the same criminal conduct for sentencing purposes only if they involve each of three elements: "(1) the same criminal intent, (2) the same time and place, and (3) the same victim." State v. Maxfield, 125 Wn.2d 378, 402, 886 P.2d 123 (1994). The standard for determining the same intent prong is the extent to which the criminal intent, viewed objectively, changed from one crime to the next. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994). The fact that one crime furthered commission of the other may indicate the presence of the same intent. Id. We will not reverse a trial court's determination of whether two offenses constitute the same criminal conduct except for abuse of discretion or misapplication of the law. Maxfield, 125 Wn.2d at 402. Culp argues that the same intent prong is the only question here, because all his crimes involved the same victim and were committed at the same general time and place. He asserts that because the assault constituted the infliction of serious physical injury element of first degree rape, the assault furthered the rape, and thereby satisfies the same intent prong. Preliminarily, we note that as previously discussed, the rape and assault did not occur at the same time or in the same place. Groves was assaulted upstairs, while the rapes took place in the basement and in a bedroom. The assault occurred in the early evening, whereas the rapes occurred throughout the night and into the early morning. Spratley participated in the assault, but played no part in the rapes. This evidence supports the court's conclusion that the assault was separate and distinct from the rape.
Further, the crimes do not share the same objective intent. The objective intent of the assault was to injure and frighten Groves, and was accomplished when Culp beat Groves, well before the rapes occurred. The objective intent of rape is sexual intercourse. Culp did not assault Groves in order to rape her. Indeed, Groves testified that nothing about the assault led her to connect the physical assault with the sexual assault, and that she did not feel Culp had physically assaulted her in order to increase the likelihood she would submit to his sexual demands. Nor were the injuries inflicted in the assault the basis for the serious physical injury finding required to elevate nonconsensual intercourse to rape in the first degree. First, as noted above, the court found Culp kidnapped Groves in addition to causing her serious bodily injury.
Culp quotes the prosecutor's statement during closing arguments that the rape and assault were `absolutely intertwined.' App. Br. at 19. But as a judge in a bench trial is well aware, an attorney's closing argument is not evidence. State v. Ford, 137 Wn.2d 472, 483 n. 3, 973 P.2d 452 (1999); State v. Lougin, 50 Wn. App. 376, 383, 749 P.2d 173 (1988).
Kidnapping also elevates a sexual assault to rape in the first degree, so that serious bodily injury was not a necessary element of proof. Second, the court identified a new injury inflicted during the rape: "Due to the injuries that had already been inflicted upstairs, the defendant inflicted `serious physical injury' on Ms. Groves . . . by forcing her to perform sexual acts even though she was in severe pain, particularly in her ribs." Clerk's Papers at 53:20-21. The fact that the rape exacerbated the injuries caused by the assault does not show that the assault furthered the rape. The argument does not lend support to Culp's same intent argument. The trial court did not abuse its discretion in finding the two crimes did not involve the same criminal conduct.
Pro Se Arguments. Culp raises multiple additional grounds for relief, none of which warrant reversal.
Right to Jury Trial. Culp asserts that he did not waive his right to a jury trial. Though the record on appeal does not include a signed waiver, Culp's statement of additional grounds for relief supplies an affidavit from his trial attorney, Walter Peale, in which Mr. Peale states that "against [Mr. Peale's] advice the appellant waived his right to a jury and requested trial to the judge." SAGR at 34. The record also amply evidences Culp's valid waiver, as well as the court's warning that You do have a right to waive the jury, but if you do, you should understand that should I find you guilty after trial, that you would have the right to appeal on any basis that might be available to you except that you were deprived of a jury. Do you understand that?
Report of Proceedings (Sept. 24, 2002) at 6-7. There is no basis for Culp's contention. There is also no basis for Culp's contention that his speedy trial rights were violated because no jury trial occurred within the time required by Criminal Rule 3.3 (Culp's trial occurred 58 days after his arraignment).
Incomplete Trial Record. Culp lists "Incomplete Trial Record" among his stated additional grounds for relief, but provides no argument or factual statement to support the claim. We cannot consider arguments that rest on facts outside the record on direct appeal. RAP 16.4(c)(3); RAP 10.10; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Delayed Entry of Findings of Fact and Conclusions of Law. Culp challenges the court's failure to enter findings of fact and conclusions of law, and apparently contends that his conviction should be vacated and his charges dismissed with prejudice based on the unnecessary delay caused by the remand for supplemental findings and conclusions after his first appeal. The purpose of written findings and conclusions is to enable an appealing defendant to identify and focus on meritorious claims, and to enable the appellate court to review the issues raised. State v. Head, 136 Wn.2d 619, 622-23, 964 P.2d 1187 (1998). Where findings are missing or inadequate, we will remand but we do not infer prejudice from the delay. Id. at 624-25. The findings and conclusions were sufficient for Culp to identify issues for appeal, and he identifies no prejudice flowing from the delay. Indeed, the issues Culp raises through his attorney on this appeal appear to be the same as those raised in the first appeal. See State v. Culp, 2004 Wash. App. LEXIS 1318 (Wash.Ct.App. July 6, 2004). Culp has shown no prejudice from the delay in entering adequate findings of fact and conclusions of law.
Groves' Prior Inconsistent Statements. Culp next challenges portions of Groves' testimony that conflict with statements she made to police on the day she reported the rape. Culp highlights portions of testimony by police officers Lora Alcantara and Carl Anderson who described Groves' initial descriptions of the assault and rape, and emphasizes two inconsistencies between Groves' statements to the officers and her testimony at trial. Culp apparently believes that Groves either should not have been permitted to present inconsistent testimony or was not adequately impeached. Both arguments fail. To the extent that Groves contradicted her earlier statements to police, the court heard both statements and, in making its credibility determination, was able to consider both Groves' capacity for truthfulness and her ability to accurately describe the events. To the extent that defense counsel could have used the inconsistencies to impeach Groves, that failure does not rise to the level of ineffective assistance of counsel, as is discussed further below.
Ineffective Assistance of Counsel. To establish a claim of ineffective assistance of counsel, Culp must prove both that his trial attorney's representation was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). To establish the first prong, Culp must show that counsel's conduct fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687; Thomas, 109 Wn.2d at 225-26. The second prong requires the defendant to show a reasonable probability that the outcome of the trial would have been different absent the attorney's deficient performance. Thomas, 109 Wn.2d at 226 (citing Strickland, 466 U.S. at 693).
First, Culp contends his attorney was ineffective for missing the deadline for filing a notice of appeal. Though Culp's trial counsel did not file a timely notice of appeal, Culp's late appeal was accepted and has been permitted to proceed. Thus Culp was not prejudiced by his attorney's error.
Second, Culp argues trial counsel was ineffective for failure to consult Culp until two days before trial, and failure to arrange for a private investigator in preparing Culp's defense. Except for Culp's assertions, there is nothing in the record as to his attorney's preparation for trial. We therefore cannot address this argument on direct review. RAP 16.4(c)(3).
Third, Culp claims his attorney was ineffective in failing to raise a variety of objections, among them (1) failure to object to Jeanine Groves' absence from the courtroom on the first day of trial and to request dismissal based on her absence, (2) failure to object to a bench trial or to mention Culp's waiver of jury trial on the record, (3) failure to object to Detective Sharon Stevens' characterization of Culp's statement to police as a lie, (4) failure to object to Groves' testimony about Culp threatening and kicking her, and (5) failure to impeach Groves on the basis of her prior inconsistent statements to police when she reported the crimes. A defendant is not prejudiced by counsel's failure to raise an issue if the issue would not have been decided in his favor. McFarland, 127 Wn.2d at 337 n. 4. Culp's belief that a criminal case cannot proceed without the victim's presence in the courtroom is incorrect. In fact, witnesses are frequently excluded from the courtroom prior to testifying. As discussed above, it appears clear that Culp waived his right to trial by jury. Culp has not articulated a substantive evidentiary basis for his proposed objections to Stevens' and Groves' testimony, and therefore shows no likelihood that these objections or motions would have been granted. He thus cannot demonstrate resulting prejudice. See State v. Lord, 117 Wn.2d 829, 923, 822 P.2d 177 (1991); State v. Harris, 106 Wn.2d 784, 791, 725 P.2d 975 (1986).
Culp next argues counsel was ineffective for failing to seek and conduct a competency hearing and failing to raise Culp's diminished capacity as a defense. Again, failure to raise an issue that would not have been decided in Culp's favor does not constitute prejudice. A person is not competent at the time of trial if he is incapable of properly appreciating his peril and of rationally assisting in his own defense. State v. Harris, 114 Wn.2d 419, 427-28, 789 P.2d 60 (1990). The record is wholly devoid of evidence raising doubts as to Culp's competence to stand trial, nor was there evidence on which counsel could have based a defense of diminished capacity.
Finally, Culp argues his trial counsel was ineffective for failing to have tape recordings of Culp's confession excluded. The Sixth Amendment guarantees effective assistance of counsel, not successful assistance. State v. Garcia, 45 Wn. App. 132, 141, 724 P.2d 412 (1986). Trial counsel litigated the admissibility of Culp's statements in a suppression hearing. His ultimate failure in excluding the statements does not constitute ineffective performance. Culp has not demonstrated ineffective assistance of counsel.
Affirmed.
COLEMAN, J. and BAKER, J., concur.