Opinion
No. 30168-7-II
Filed: April 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 01-1-01136-1. Judgment or order under review. Date filed: 03/31/2003. Judge signing: Hon. Gary R Tabor.
Counsel for Appellant(s), Lenell Rae Nussbaum, Attorney at Law, Market Pl Two Ste 200, 2001 Western Ave, Seattle, WA 98121-2163.
Counsel for Respondent(s), Steven Curtis Sherman, Thurston County Pros Ofc, 2000 Lakeridge Dr SW, Olympia, WA 98502-6045.
Jerry D. Wiatt, Jr. appeals his 18 convictions that include second and third degree rape, sexual exploitation of a minor, voyeurism, and furnishing liquor to a minor. He also appeals his exceptional sentence. We reverse and remand five counts based upon an unlawful search, and we affirm the remainder of the convictions. Because we have reversed and remanded, we do not address the sentencing issue.
FACTS
Because Wiatt has raised sufficiency of the evidence as to the counts involving Ms. Cruz and Ms. Rankis, we have set forth in detail the facts underlying these counts.
In December 1999, Wiatt purchased a house in Olympia, Washington. Wiatt was 26 years old. Wiatt shared his house with roommates to help pay the mortgage. Parties were held regularly at the house, and Wiatt and his roommates frequently provided alcohol to underage guests.
I.A. Cruz
On July 9, 2001, A. Cruz contacted police and reported that she had been raped by Wiatt. She stated that she had not reported the incident earlier because she did not want any `drama' in her life and because she would soon be leaving Olympia to attend college. Clerk's Papers (CP) at 219. But the previous day, her friend, Nicole Smith, informed Ms. Cruz that she was on a videotape being `tag teamed' by two guys. CP at 219. Ms. Smith had learned this information from Nick Deor. Ms. Cruz stated that she was shocked. Later that evening, Ms. Cruz's friend, Huyn Thoong, called her and informed her that she had also heard about the videotape. Thoong told Ms. Cruz that an individual named Barry had viewed a videotape of her having intercourse `dogg[y] [style].' CP at 219. At trial, Ms. Cruz testified that she then confided in her aunt, who took her to the emergency room and encouraged her to notify the police. Ms. Cruz further testified that she had not had consensual intercourse, was unaware that she had been videotaped, and had not granted anyone permission to tape her.
During separate pre-trial police interviews, Ms. Cruz, Thoong, and Annlee Hoy, another of Ms. Cruz's and Thoong's friends, provided information about the videotape. Each of them told police that their friends had informed them that Wiatt had either shown the tape to, or discussed it with, an individual named Barry. Based on this information, the police filed an application and affidavit for a search warrant to search Wiatt's home. The affidavit stated that Ms. Cruz informed police that Thoong told her that `Barry' had viewed a videotape of her having sexual intercourse; Hoy informed police that her friend, Ryan Carlson, told her that `Barry' had discussed the video with Wiatt; and Thoong informed police that she had `heard' that an individual named `Barry' had seen the video.
The court granted the search warrant, permitting police to search for and seize, bedding, clothing, lubricant, video recording equipment, videotapes, photographs, and any other evidence that a crime was committed. Detective Kenneth Clark executed the warrant and found a video camera inside a dresser in Wiatt's bedroom. A videotape was inside the camera. Detective Clark turned the camera on and observed a video recording of Wiatt and Ms. Cruz engaged in intercourse. Detective Clark also found other videotapes and a jar of lubricant in Wiatt's bedroom. Detective Clark seized all of these items.
Prior to trial, Wiatt moved to suppress the evidence obtained from the search of his residence. He argued that the affidavit did not establish probable cause for the search because the information about the videotape provided by Ms. Cruz, Thoong, and Hoy was based on hearsay and not first-hand knowledge. In addition, none of the women had provided Barry's last name, Specht. The court denied the motion, holding that, when taken as a whole, the information provided by the informants was reliable because each of their statements regarding the videotape corroborated the others' statements.
At trial, Ms. Cruz testified that on the evening of June 29, 2001, she and Thoong went to a party at Wiatt's home. At the time, Ms. Cruz was 17 years old and Thoong was 18 years old. Wiatt's younger brother, Jeff Wiatt, had invited them to the residence. Wiatt was not home when Ms. Cruz and Thoong arrived. Jeff, Ms. Cruz, and Thoong began playing a `drinking game.' CP at 7. Thoong told detectives that over the course of the evening, Ms. Cruz consumed at least 10 shots of vodka and a mixed alcoholic drink. Thoong also saw Ms. Cruz taking a drink directly from a bottle of vodka. Ms. Cruz told detectives that she had eaten very little during the day before the party and that she was taking medications with warnings not to consume alcohol.
Around 2:00 a.m., Wiatt; his sister, Tammy Wiatt; his cousin, Johan Lo; and several others arrived at Wiatt's residence. At trial, Ms. Cruz testified that when Wiatt returned home, she was `heavily intoxicated.' 1 Report of Proceedings (RP) (Oct. 23, 2002) at 81. Shortly thereafter, Tammy, Ms. Cruz, and Thoong decided to go into Wiatt's hot tub. Ms. Cruz testified that after that point, her memory of the evening is `blurry.' 1 RP at 81. Thoong testified that Ms. Cruz entered the hot tub wearing all of her clothing. They remained in the hot tub for approximately 15 minutes. Thoong got out of the hot tub first and then went to Ms. Cruz's car to check her cell phone messages and make some calls. A short time later, Tammy and Ms. Cruz left the hot tub. By then, Ms. Cruz was wearing only a shirt and bra. Wiatt brought her a white robe to put on. Ms. Cruz testified that she did not remember taking off her pants in the hot tub.
When Thoong returned, she did not see Ms. Cruz. Thoong asked where Ms. Cruz had gone and was told that she was upstairs in Wiatt's bedroom. Thoong went upstairs and found Wiatt's door locked. She began knocking on the door, yelling that Ms. Cruz was only 17 years old and demanding that Ms. Cruz leave the room. Thoong heard Ms. Cruz say her name twice, but Ms. Cruz did not come out of the room. Ms. Cruz testified at trial that she did not remember anything that occurred while she was in Wiatt's bedroom. After 20 minutes had passed, Thoong became very upset and called Hoy for help.
Hoy informed detectives that she was awakened by Thoong's call at 3:00 a.m. Thoong was `crying hysterically.' 4 RP (Oct. 28, 2002) at 664. Thoong told her that Ms. Cruz was drunk and would not come out of Wiatt's bedroom. Thoong wanted to leave and she `[didn't] know what to do.' CP at 225. Hoy informed Thoong that she would come pick them up. When Hoy arrived at Wiatt's residence, she saw Ms. Cruz standing outside in a white robe. Hoy went into the house to confront Wiatt. She told him that Ms. Cruz was only 17, that he had raped her, and that he was a `sick perverted f___.' CP at 227. During the confrontation, Wiatt's female friends began threatening to `beat' her up if she did not leave. CP at 227. She left the residence and went back outside to meet Ms. Cruz and Thoong. She told Ms. Cruz to get into her car, but Ms. Cruz refused to do so and went back into the house.
Hoy and Thoong waited in Hoy's car for approximately 15 minutes. They called Ms. Cruz's cell phone several times, asking her to leave the house and meet them outside. Each time Ms. Cruz told them that she was coming. Eventually they saw Wiatt's sport utility vehicle (SUV) pull up behind them. The SUV drove a short distance and then returned back to the house. Moments later, they saw Ms. Cruz drive past them in her Honda Accord. Hoy called Ms. Cruz and asked her to pull over, but Ms. Cruz continued driving. At trial, Hoy testified that Ms. Cruz was `swerving all over the road' and Thoong testified that her driving `was really scary.' 4 RP at 676; 2 RP (Oct. 23, 2002) at 251. Hoy followed Ms. Cruz on I-5 until they reached Ms. Cruz's exit. They continued to talk on their cell phones during the drive. Ms. Cruz's home is approximately 20 minutes from the Wiatt residence.
Hoy testified that as they approached Ms. Cruz's exit, Ms. Cruz called her and asked her not to pull into her driveway because she was worried that her mother would be `suspicious' if two cars pulled up. 4 RP at 676. Hoy left Ms. Cruz at her exit and drove back to her own home with Thoong. Ms. Cruz testified that she only vaguely remembered driving to her exit. She further testified that she remembers taking her off-ramp and someone calling her on her cell phone, telling her that she could not go into her home wearing a robe with no pants on.
The next thing Ms. Cruz remembered was waking up naked in Wiatt's bed, with Wiatt lying next to her. She testified that she had one memory of the previous evening: she remembered someone on top of her having sexual intercourse. She indicated to the person that she was in pain, and he mentioned something about using lubricant. Ms. Cruz also told detectives during an interview that she vividly remembered being `in so much pain' and that it `hurt so bad.' CP at 217. Ms. Cruz testified that when she woke up, she felt `numb' and that she was still slightly feeling the effects of the alcohol she had consumed the previous evening. 1 RP at 93. She got up, found her clothes and keys, and left.
Thoong told detectives that Ms. Cruz called her the following morning at about 8:30 a.m. Ms. Cruz told her that she had fallen asleep in her driveway. But Thoong and Hoy soon learned from another friend that Ms. Cruz had returned to Wiatt's residence. Thoong stated that she believed that Ms. Cruz `was scared to tell [them] . . . she went back.' CP at 238. Later that afternoon, Ms. Cruz told Hoy that she woke up in Wiatt's bed and that she remembered someone having intercourse with her. She said that it hurt `really bad' and that she kept blacking out. CP at 231.
Wiatt testified that throughout the evening on June 29, 2001, he and Ms. Cruz were kissing and hugging each other. Wiatt further testified that after Ms. Cruz got out of the hot tub, they both agreed to go into his bedroom. He entered the bedroom before Ms. Cruz. Lo was in the bedroom. Lo testified that Wiatt handed him a video camera, indicated that he wanted Lo to tape him and Ms. Cruz, and told Lo to get down on the floor. Ms. Cruz entered the bedroom. She and Wiatt began kissing, and Wiatt engaged in foreplay and performed oral sex on Ms. Cruz. Lo taped their interaction. Wiatt believed that she understood what they were doing in the bedroom because she was interacting with him and kissing him. Wiatt and Ms. Cruz left the bedroom when Ms. Cruz's friends began knocking at the bedroom door.
Wiatt testified that Ms. Cruz did not want to leave his house. And while Hoy and Thoong waited outside for her, Ms. Cruz and Wiatt began planning how to `allude [sic] her friends so she could somehow trick them' and return to the house. 10 RP (Nov. 4, 2002) at 1940. Wiatt and Ms. Cruz got into Wiatt's SUV to give the impression that Ms. Cruz was leaving. When Ms. Cruz's friends continued to call her, she decided to drive home in her own vehicle. Wiatt stated that Ms. Cruz's driving was `fine' and that she told him she would come back. 10 RP at 1946.
Wiatt testified that Ms. Cruz was gone for about an hour, and then she called him and asked if she could return. She returned and they began kissing. Ms. Cruz then went up to Wiatt's room while he went to get a drink. When Wiatt came into his bedroom, he saw Ms. Cruz and Lo talking on his bed. Wiatt testified that Ms. Cruz was `putting the moves' on Lo. 10 RP at 1951. He came onto the bed and he and Ms. Cruz began having sexual intercourse. Lo remained on the bed and taped the interaction. Wiatt stated that Lo was approximately one foot away from them on the bed, and he believed that Ms. Cruz was aware that Lo was taping them. Wiatt also testified that he believed Ms. Cruz consented to their intercourse and that she had moved her body with his while they were engaging in intercourse. Lo testified that when Ms. Cruz entered the bedroom she saw him on the bed, and he believed that she was aware of what was happening when she and Wiatt engaged in sexual intercourse.
Wiatt testified that he could tell that Ms. Cruz had been drinking and was not entirely sober, but her motor skills and speech were normal. Lo's testimony was similar to Wiatt's. He testified that Ms. Cruz and Wiatt were `flirting' all evening and that, when he spoke with Ms. Cruz while she was in the hot tub, Ms. Cruz was coherent and could `hold a conversation.' 2 RP at 371, 3 RP (Oct. 24, 2002) at 429. However, Ms. Cruz told detectives that at the party, she was `the most intoxicated [she'd] ever been,' and at trial, she testified that she was `heavily intoxicated' that evening. CP at 221; 1 RP at 81. Thoong testified that she had never seen Ms. Cruz that intoxicated before and that it was the most she had seen Ms. Cruz drink. In addition, Hoy testified that when she arrived at Wiatt's residence, Ms. Cruz was extremely intoxicated and appeared to be in an `extremely different' state of mind. 4 RP at 670. Hoy also told detectives that Ms. Cruz `didn't look like [her] friend at all,' her speech was slurred, and she was using expressions that she had never used before. CP at 230.
During the trial, the jury also viewed the videotape, which had been converted to digital video disk (DVD). The DVD depicted both incidents that occurred while Ms. Cruz was in Wiatt's bedroom.
Wiatt was charged with two counts of second degree rape for engaging in sexual intercourse when the victim is incapable of consent by reason of being physically helpless or mentally incapacitated; two counts of sexual exploitation of a minor with sexual motivation; and two counts of voyeurism. After Ms. Cruz reported the incident, the news media reported that there may have been another video. Several additional young women came forward and reported that they, too, had been raped by Wiatt. One of these women, R. Rankis, reported an incident that occurred in 2000.
II. R. Rankis
In late July or early August 2000, at 10:00 p.m., R. Rankis, a 17-year-old female, went to a party at Wiatt's house with her friend, Alicia Cochran. Wiatt was serving drinks. Over a period of about two hours, Ms. Rankis consumed two to three mixed alcoholic drinks and four shots of liquor. In addition, Ms. Rankis and Cochran ingested a few lines of cocaine. Ms. Rankis testified that she and Cochran ingested the cocaine in Wiatt's bathroom so that no one at the party would see them using the drug.
Ms. Rankis testified that throughout the evening, Wiatt flirted with her and told her that she was pretty. She felt flattered. At one point, Wiatt asked her if she would like to see something in his bedroom. Ms. Rankis agreed and they went upstairs to his room. They laid down on his bed and he began kissing her. Ms. Rankis testified that she did not think that she had any reaction when Wiatt kissed her and did not know whether the kissing was mutual. She further testified that she did not feel `normal' and that she felt relaxed and uninhibited. 4 RP at 734. She vaguely remembered Wiatt taking off her clothes and she may have giggled. Wiatt then began engaging in sexual intercourse with her, and she became alert. Ms. Rankis testified that when Wiatt `started having sex with [her] [she] said no, no, no,' but Wiatt continued penetrating her and said `something like you want to do this, you like it.' 4 RP at 735. Ms. Rankis stated that she felt like she could not move her body and that she felt `more intensely drunk' than she usually felt after consuming alcohol. 4 RP at 735.
Ms. Rankis next remembered someone `banging' on Wiatt's door. 4 RP at 735. She saw Cochran standing over her. Cochran helped her find her clothes and they left Wiatt's house. Ms. Rankis had no memory of walking to Cochran's car, and felt `dazed' while Cochran was driving. 4 RP at 737. Ms. Rankis testified that she did not believe that she was coherent when she and Wiatt were engaging in sexual intercourse. She did not contact police to report the incident until she learned that similar charges had been filed against Wiatt because she felt that it was `maybe . . . [her] fault' for not `fight[ing] it off' and because she `[went] upstairs in the first place.' 4 RP at 785, 738-39.
After Ms. Rankis and Cochran left Wiatt's residence, Cochran drove to a party at another friend's home. Ms. Rankis testified that she realized that Cochran wanted to use more cocaine, and that once she was inside the house, she went upstairs to lie down. Ms. Rankis does not remember whether she ingested more cocaine at the second party.
Wiatt testified that Ms. Rankis had been to his house several times prior to the night in question. On that night, Wiatt and Ms. Rankis were on his couch kissing, when they decided to go up to his bedroom. Inside the bedroom, they started undressing and Ms. Rankis asked him to put on a condom. Wiatt testified that they engaged in consensual intercourse and that Ms. Rankis never expressed that she did not want to participate.
During intercourse, Cochran came to the door and asked Ms. Rankis if she wanted to leave. Ms. Rankis replied that she was `fine' and did not want to leave. 10 RP at 1964. Additionally, Wiatt testified that Ms. Rankis was giggling `like it was funny.' 10 RP at 1964. After Wiatt and Ms. Rankis finished, Cochran came in and helped Ms. Rankis find her clothes. Wiatt asked Ms. Rankis why she was leaving so fast, and she replied that she wanted to go get more cocaine.
Wiatt testified that he was aware that Ms. Rankis had used cocaine during the evening and that she was acting like `Superwoman running around.' 10 RP at 1965. He further testified that she did not appear to be incapacitated and that she had no trouble moving or understanding what was happening. In addition, Wiatt stated that he and Ms. Rankis engaged in consensual sexual intercourse after that evening once more in his bedroom and once in his vehicle. She consented each time.
Crystal Phillips, a friend of Ms. Rankis, also testified. She stated that she had seen Ms. Rankis at Wiatt's house approximately four different times. On one of these occasions, Ms. Rankis told Phillips that Wiatt was `hot' and that she wanted to `sleep' with him. 10 RP at 1986. Phillips testified that when Ms. Rankis told her this, Ms. Rankis appeared clumsy and her speech was slurred. Additionally, Justin Allison, a friend of Wiatt, testified that Ms. Rankis told him that she was interested in having sexual relations with Wiatt.
Wiatt was ultimately charged with five counts of second degree rape, one count of third degree rape of a child, two counts of third degree rape, four counts of sexual exploitation of a minor, four counts of voyeurism, one count of communication with a minor for immoral purposes, one count of unlawful imprisonment with sexual motivation, and eight counts of furnishing liquor to a minor. These charges involved 10 different women. The court severed 18 counts from the others for trial. These 18 counts, which are the subject of this appeal, involve four women H. Kalmikov, K. Hoskins, Z. Hawkins, and J. Bowles in addition to Ms. Cruz and Ms. Rankis. Wiatt pleaded guilty to one count of voyeurism and to the count of communication with a minor for immoral purposes. The remaining charges were dismissed.
Johan Lo was also charged with two counts of sexual exploitation of a minor and two counts of voyeurism. Lo pleaded guilty to one count of attempted voyeurism in exchange for his testimony against Wiatt.
III. Trial Motions
During Wiatt's trial, the State moved to prohibit the defense from asking Lo any questions regarding whether he also had sexual contact with Ms. Cruz or whether he had erased any portion of the videotape showing that contact. The court granted the motion, holding that no evidence existed to show that Lo engaged in sexual contact with Ms. Cruz and that such a line of questioning would be irrelevant as to whether Wiatt raped Ms. Cruz.
In addition, Wiatt moved to prohibit the State and any witness from referring to or suggesting that Wiatt had possessed or used `date rape drug[s].' CP at 54. Wiatt argued that the State did not discover any evidence that he had ever possessed or provided date rape drugs. The State agreed not to present any evidence of or question any witnesses about date rape drugs.
IV. Closing Arguments
Near the end of the trial, the jury again viewed the DVD of Wiatt and Ms. Cruz. Both the State and the defense made closing arguments to the jury regarding the DVD. During the State's argument, the prosecutor made the following argument:
[A]t any point if she loses consciousness, if she passes out, then what might have even been a consensual act to start with becomes a rape because she no longer has the ability to make the decision, to make the choice, and to articulate that.
12 RP (Nov. 5, 2002) at 2369.
After the arguments, defense counsel moved the court to instruct the jury that the prosecutor's statements were improper. Defense counsel argued that the prosecutor had misstated the law by arguing that, if a sexual partner consents to having sex and then falls asleep during intercourse, the other partner is guilty of rape. The court declined to give a jury instruction, finding that it might be commenting on the evidence if it instructed the jury to decide anything regarding Ms. Cruz's mental capacity to consent based on the DVD. Rather, the court ruled that the State was prohibited from repeating its argument during closing arguments and that the defense could argue that the prosecutor had misstated the law.
During closing arguments the prosecutor also argued:
So let's say you were to come out from your deliberation and say, well, we've found that we believe these girls, we believe what they said, but we had reasonable doubt. Well, I submit to you, that those are legally incompatible statements, they are legally incompatible statements because if you believe these girls, then you believe the truth of the charge.
13 RP (Nov. 6, 2002) at 2415-16. Defense counsel did not object to these remarks.
V. Jury Deliberations
During deliberations, the jury sent the court the following inquiries: Question re: Instruction No. 11 `Freely given'
If when a person of age enters into an agreement, and it can be demonstrated that this same person is in an altered state of mind at the time of said agreement;
Does this meet the test, i.e. legal definition of having FREELY entered into the agreement?
CP at 95.
In the definition of `physically helpless' a person is deemed helpless if they are physically unable to communicate unwillingness to act.
Question 1: Does this mean that at any point in time during an incident if a person becomes unconscious than [sic] they meet the criteria of being `physically helpless'[?]
Question 2: Same question as above except apply it to the definition of `mental incapacity.' If a person meets the definition of `mental incapacity' at any point in time during an incident, is that all that is required in finding a person guilty of rape in the second degree [?]
CP at 94.
In response to the jury's questions, Wiatt requested that the court give the jury additional instructions that helplessness or incapacity must exist at the time an interaction begins and that, as to the meaning of `freely given,' the jury re-read instructions 9 and 10. Clerk's Minutes (11/12/02) (see spindle). The court denied Wiatt's request and instructed the jury to re-read the jury instructions.
Also during deliberations, members of the jury discussed date-rape drugs. After Wiatt's trial had concluded, juror no. 6 informed Larry Freeman, an investigator for Wiatt's defense counsel, that the `subject of date rape drugs came up' during deliberations because he and other members of the jury felt there `must be another reason to explain the physical condition of the victims, given the fact that if they only had a few drinks they would not have been incapacitated as they described.' CP at 133. Juror no. 6 stated that he had seen shows describing date-rape drugs on various television programs, including `America's Most Wanted,' `The New Detectives,' and a program on The Learning Channel. CP at 133. He informed the jury about information he had learned from the programs: date-rape drugs dissolve completely in drinks, they do not have an aftertaste or leave a film or milkiness in a drink, and some date-rape drugs do not `show up' in blood tests. CP at 134. He also told the jury that `it was possible for someone to have put a date[-]rape pill in a victim's drink without the victim's knowledge.' CP 134.
In addition, juror no. 10 informed Mr. Freeman that the jury had considered date-rape drugs. She told the jury that she thought date-rape drugs might have been involved because `some of the girls . . . testified that they had drunk alcohol before but had never felt the way that they did at the Wiatt house.' CP at 134. She also stated that Wiatt might have had a `system' and that it would only take a second to put a drug into a drink. CP at 134. Juror no. 3 informed Mr. Freeman that the jury had discussed the fact that a drink the girls described, called `Sex on the Beach,' was a `colorful drink that could mask any milky appearance' and that the drink had a `fruity taste that could hide a date rape drug.' CP at 135.
Other jurors confirmed these discussions, and most expressed a belief that at least some of the victims had been given date-rape drugs. The jury discussed whether it could consider the possibility that date-rape drugs were involved, given that there had been no evidence of any date-rape drugs at trial. The jury concluded that information regarding the use of date-rape drugs was circumstantial evidence that it was permitted to consider in determining Wiatt's guilt.
Upon discovering this information, Wiatt moved for a new trial based on juror misconduct. He argued that the jury had improperly considered extrinsic evidence in determining its verdict. The court denied the motion, holding that information about date-rape drugs is within common knowledge, and the jury could infer the use of these drugs based upon common experience.
The jury convicted Wiatt on all counts but count I, second degree rape of Ms. Cruz (the first incident between Wiatt and Ms. Cruz), and count XI, unlawful imprisonment with sexual motivation of H. Kalmikov. In addition, the jury found Wiatt not guilty of count X, third degree rape of H. Kalmikov, but it convicted him of the lesser included charge of attempted third degree rape of H. Kalmikov.
VI. Sentencing
In Wiatt's plea agreement on counts XXII, voyeurism, and XXIV, communication with a minor for immoral purposes, the State agreed to dismiss the remaining five charges against Wiatt. Additionally, the State agreed to recommend no more than 12 months incarceration to run concurrently with sentences on all other counts. In total, Wiatt was convicted of, or pleaded guilty to, 10 felonies and 8 gross misdemeanors.
At sentencing, the prosecutor recommended that the court impose an exceptional sentence under former RCW 9.94A.390(2)(i) (2000), recodified as RCW 9.94A.535(2)(i) (2001), arguing that most of Wiatt's sex offenses could not be considered in calculating his standard range and would essentially constitute `free crimes.' RP (March 31, 2003) at 21. Additionally, the prosecutor argued that, because misdemeanor convictions are not counted in determining a defendant's offender score, Wiatt's gross misdemeanor convictions would also become `free crime[s].' RP (Mar. 31, 2003) at 14. The prosecutor further recommended that the court run Wiatt's sentence for the gross misdemeanor convictions concurrently with his sentence for the felony convictions and that it impose a sentence of 560 months incarceration.
Under former RCW 9.94A.390(2)(i) (2000), a court may impose an exceptional sentence if the operation of the `multiple offense policy' of former RCW 9.94A.400, recodified as RCW 9.94A.589 (2001), results in a presumptive sentence that is `clearly too lenient.'
The court sentenced Wiatt to one year for each of his eight gross misdemeanor convictions, to run consecutively with his felony convictions. In addition, the court imposed an exceptional sentence, finding that the operation of the SRA's `multiple offense policy' would result in a sentence that is `clearly too lenient.' CP at 292. The court reasoned that, under the maximum standard range possible under the SRA, only Wiatt's first four felony sex convictions would be punished; thus, an exceptional sentence was justified. In its findings of fact, the court indicated that it had only considered Wiatt's felony sex charges in imposing an exceptional sentence. Further, the court stated at the sentencing hearing that it had disregarded count XXII, voyeurism, in imposing an exceptional sentence because Wiatt had pleaded guilty to this offense. Wiatt's timely appeal follows.
ANALYSIS I. Motion to Suppress
Wiatt first contends that the trial court erred in denying his motion to suppress evidence obtained during the search of his home. Specifically, he argues that the videotape depicting Ms. Cruz and him was improperly admitted because neither Ms. Cruz, Thoong, or Hoy had any basis of knowledge that the tape existed. In response, the State argues that the warrant was properly issued because each of the informants provided the same ultimate source of the information: Wiatt. Wiatt is correct.
We review the validity of a search warrant for abuse of discretion, giving great deference to the issuing magistrate. State v. Jacobs, 121 Wn. App. 669, 676, 89 P.3d 232, review granted in part, 152 Wn.2d 1036 (2004). Abuse of discretion is shown where a court's decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 271, 796 P.2d 737 (1990), review denied, 116 Wn.2d 1014 (1991). Generally, a warrant is valid if a reasonable, prudent person would understand from the facts contained in the officer's affidavit that a crime has been committed and that evidence of the crime is located at the place to be searched. State v. Wible, 113 Wn. App. 18, 21, 51 P.3d 830 (2002). As long as the basic requirements are met, we review an affidavit in a commonsense, not hyper-technical manner. Wible, 113 Wn. App. at 21. Doubts should be resolved in favor of the warrant. Wible, 113 Wn. App. at 21-22.
Washington applies the two-pronged Aguilar-Spinelli test to determine whether information provided by an informant establishes probable cause to issue a search warrant. Jacobs, 121 Wn. App. at 677; Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). The affidavit must sufficiently identify the basis for the informant's information and establish the informant's credibility. Jacobs, 121 Wn. App. at 677. If an informant's tip fails under either prong, the warrant fails unless independent police investigation corroborates the tip to such an extent that it supports the missing elements of the test. State v. Bauer, 98 Wn. App. 870, 875, 991 P.2d 668, review denied, 140 Wn.2d 1025 (2000). Here, Wiatt concedes that Ms. Cruz, Thoong, and Hoy, all named, citizen informants, are credible. But he contests the reliability of the persons these three mentioned: Nicole Smith, Nick Deor, Ryan Carlson, `Barry', and Wiatt, because they did not inform the police about the videotape nor did they permit their identities to be disclosed. Therefore, Wiatt argues that their veracity is not established, and they are not reliable as citizen informants, citing State v. Tarter, 111 Wn. App. 336, 340, 44 P.3d 899 (2002).
We must determine whether a sufficient basis exists to support the statements made by Ms. Cruz, Thoong, and Hoy regarding the videotape. To satisfy the `basis of knowledge' prong, an informant must declare that he or she personally has seen the facts asserted and is passing on first-hand knowledge. State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984). In addition, where an informant's information is based on hearsay, this hearsay-upon-hearsay is acceptable so long as both levels of hearsay satisfy the Aguilar-Spinelli test. 2 Wayne R. La Fave, Search and Seizure sec. 3.3(d) (1978).
Here, each of the informants' information regarding the videotape was hearsay. Ms. Cruz told detectives that Nicole Smith told her that she had been informed by Nick Deor that Ms. Cruz was `caught on videotape and . . . was tag teamed by two guys.' CP at 219. In addition, Ms. Cruz informed detectives that Thoong told her that she had heard that Wiatt had showed `Barry' a videotape of himself and a girl doing it `dogg[y] [style]' and that `they' had figured out that it was Ms. Cruz. CP 219. Thoong told detectives `some guy named Barry' had seen a videotape of Ms. Cruz and Wiatt doing it `doggy style.' CP at 240. Hoy told detectives that her friend, Ryan Carlson, had informed her that he spoke with `Barry Speck,' and `Barry' had told Ryan that Wiatt told him about a video that Wiatt filmed of himself and Ms. Cruz. CP at 232. Hoy further told detectives that `Barry' had not actually seen the video. CP at 233. In the affidavit for search warrant, Detective Louise Adams restated the information given to her from each of the informants.
Hoy told detectives that she thought `Barry's' last name was Speck, but she was not really sure.
This information is insufficient to demonstrate that any of the three informants (Ms. Cruz, Hoy, or Thoong) had a basis of knowledge that such a tape existed. None of them had first-hand knowledge of a videotape; none of them professed to have seen the tape or even to have seen video equipment at Wiatt's home. Additionally, none of them had first-hand knowledge of Ms. Cruz having sex with two men, or in the positions described. Further, the hearsay itself that an individual named `Barry' had either seen the video or discussed it with Wiatt lacks a sufficient basis of knowledge. Thoong simply `heard' that a `guy named Barry' had seen a video of Ms. Cruz and Wiatt having intercourse; Ms. Cruz was simply told by Ms. Smith that such a video may exist. And while Hoy was told by her friend, Ryan, that he had been told by Barry that Barry had discussed the video with Wiatt, Ryan lacked any personal, first-hand knowledge that the video existed. Moreover, none of the information given by the informants could lead a reasonable person to believe that the videotape would be found at Wiatt's house. None of the informants had heard where Barry had viewed the video or that the video and other video equipment was being stored at Wiatt's residence.
In addition, the affidavit contains no facts showing how a detached magistrate could conclude that each level of hearsay was reliable. An informant's veracity is established when the informant provides firsthand details and is a named citizen. Tarter, 111 Wn. App. at 340. Even conceding that Ms. Cruz, Hoy, and Thoong were reliable as citizen informants, their naming of individuals does not imbue those named with veracity or reliability. One of the primary purposes for the Court's ruling in Spinelli was to ensure that the issuing magistrate is `relying on something more substantial than a casual rumor circulating in the underworld.' Spinelli, 393 U.S. at 416. Without any showing of first-hand knowledge or reliability for each of the persons who passed on information about the video, the affidavit established nothing more than a rumor that Wiatt either showed or discussed with Barry a video involving him and Ms. Cruz. Thus, the reliability prong requirement of Aguilar-Spinelli is also not satisfied for the chain of information provided to Ms. Cruz, Hoy, and Thoong.
Furthermore, although Detective Adams clearly did some independent investigation, as she correctly identified Barry's last name, Specht, in her affidavit, she provides absolutely no information to the court as to how she obtained this information. And there is no other evidence that Detective Adams conducted any further investigation regarding whether Wiatt had taped Ms. Cruz or even possessed video equipment. Thus, the informants' information lacks a sufficient basis of knowledge regarding the existence of the videotape, and the affidavit fails to demonstrate the reliability of the persons named by three informants or a nexus between the tapes and Wiatt's home. The trial court erred in granting the police a warrant to search for video equipment and tapes at Wiatt's house.
But as the State correctly points out, the affidavit did establish probable cause to search Wiatt's bedroom for evidence of the rape of Ms. Cruz, irrespective of the information about the videotape, because Ms. Cruz reported that she had been raped in Wiatt's bedroom and that he had mentioned using a lubricant. See State v. Johnson, 104 Wn. App. 489, 501, 17 P.3d 3 (2001) (holding that where a warrant validly permitted police to search for evidence of a rape, but invalidly permitted police to search for videotapes, the warrant was severable it was valid as to evidence of the rape but invalid as to the videotapes). The State contends that, even if the affidavit lacked probable cause to permit a search for video equipment and tapes, the police properly seized the videotape under the doctrines of plain view and inevitable discovery.
First, the State argues that in searching Wiatt's room for evidence of a rape and lubricant, the police validly discovered and seized the video camera and tapes under the plain view doctrine. At trial, Detective Clark testified that upon entering Wiatt's bedroom, he began searching for a video camera, lubricant, and other evidence of a rape. Inside Wiatt's dresser drawers, Detective Clark found a video camera and `Slippery Stuff' lubricant. 3 RP at 492. Detective Clark seized the video camera and discovered that it contained a videotape. He turned the camera on and observed a recording of Wiatt and Ms. Cruz engaging in sexual acts. When asked whether he had photographed the camera inside the dresser, Detective Clark responded, `Yes. I eventually, once I discovered it was evidence, I then placed it back where I found it and then took a picture of it.' 3 RP at 485.
The plain view doctrine allows officers to seize an item without a warrant, if while acting in the scope of an otherwise authorized search, they acquire probable cause to believe that the item is evidence of a crime. Johnson, 104 Wn. App. at 501. The doctrine does not allow an additional, unauthorized search; police must have "immediate knowledge" that they have incriminating evidence before them. Johnson, 104 Wn. App. at 501 (quoting State v. Murray, 84 Wn.2d 527, 534, 527 P.2d 1303 (1974), cert. denied, 421 U.S. 1004 (1975)). Johnson is instructive.
In that case, two minors reported that the defendant had raped them, and one of the victims stated that the defendant had used a vibrating massager to sexually assault her. Johnson, 104 Wn. App. at 492. A magistrate granted a warrant permitting police to search inside the defendant's home for evidence of `sex toys,' including a vibrating massager and `movies . . . depicting nudity and/or sexual activity.' Johnson, 104 Wn. App. at 493. During the search, the police discovered an unmarked videotape in the defendant's bedroom, placed the tape into a video cassette recorder to view, and watched what appeared to be a male hand fondling a sleeping child's genitalia. Johnson, 104 Wn. App. at 495. The police seized the tape and other tapes, and the defendant was ultimately convicted of unlawfully possessing pictures of a minor engaged in sexually explicit conduct. Johnson, 104 Wn. App. at 496.
We held that the warrant improperly authorized the police to search for videotapes and that the police had illegally seized and viewed the video unless the evidentiary nature of the tape appeared in plain view during a search for the massager. Johnson, 104 Wn. App. at 501. We found that, even though the police were legally in the defendant's home under the warrant, and even if they had discovered the videotapes while they were searching for the massager, the plain view doctrine did not justify their conduct in seizing and viewing the tape because they did not have immediate knowledge that the videotape was evidence of a crime. Johnson, 104 Wn. App. at 501-02. The exterior of the unmarked videotapes did not give probable cause to believe that the tapes might be evidence of a crime, and when the police viewed the incriminating tape to acquire probable cause, they engaged in an additional unauthorized search. Johnson, 104 Wn. App. at 502.
Similarly, in this case, the video camera, while properly discovered in Wiatt's dresser along with lubricant, did not give probable cause to believe that it was evidence of a crime. As stated by the trial court during Wiatt's suppression hearing, `simply having a video camera is not illegal.' RP (Oct. 4, 2002) at 112. But the State argues that this case is distinguishable from Johnson because here, Ms. Cruz, Thoong, and Hoy made statements to detectives that they had heard that Wiatt had shown or discussed taping Ms. Cruz with Barry Specht. The State contends that based on these statements, Detective Clark could immediately recognize the video camera as evidence of a crime. This argument fails in two respects. First, no one, including the informants, suggested to the police that Wiatt actually owned video equipment that he stored in his home. Second, the police did not have probable cause based on the informants' statements to believe that Wiatt had taped himself and Ms. Cruz engaging in sexual activity.
During a police interview that occurred after the police had searched Wiatt's home, Barry Specht informed detectives that Wiatt owned a video camera that he used to tape parties and his vacations.
As in Johnson, Detective Clark did not have probable cause to seize the video camera and the unlabeled videotape contained inside of it until he viewed the tape. Detective Clark testified at trial that `once [he] discovered it was evidence,' he took a picture of the camera. 3 RP at 485 (emphasis added). Presumably then, Detective Clark did not immediately know that the camera was evidence of a crime, but discovered that it was after viewing its contents. And in doing so, Detective Clark engaged in an additional unauthorized search. Thus, Detective Clark's illegal search and seizure of Wiatt's video camera and videotape does not fall under the plain-view exception to the warrant requirement, and these items should have been suppressed at trial.
None of the evidence in the record shows that the tape was unlabeled. However, during the hearing on Wiatt's motion to suppress, the court accepted as an offer of proof Wiatt's argument that the tape was unlabeled. The State did not object.
In addition, the State contends that the video camera and videotapes were properly admitted by the trial court because police would have inevitably discovered these items during the course of their investigation. But the State provides no argument on appeal to support this contention. At the suppression hearing, the State argued that even if the warrant had not permitted the police to search for video equipment and videotapes, they would have inevitably discovered the camera while searching for lubricant in Wiatt's dresser. This argument also fails.
Evidence obtained through illegal means is admissible under the inevitable discovery doctrine if the State proves by a preponderance of the evidence that the police did not act unreasonably or in an attempt to accelerate discovery and that the evidence would have been inevitably discovered under proper and predictable investigatory procedures. State v. Avila-Avina, 99 Wn. App. 9, 17, 991 P.2d 720 (2000). The State must show that the legal means of obtaining the evidence would have been "truly independent" of the illegality and that the discovery by those means would have been "truly inevitable." Avila-Avina, 99 Wn. App. at 18 (quoting United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986)). The rule allows neither speculation as to whether the evidence would have been discovered nor speculation as to how it would have been discovered. Avila-Avina, 99 Wn. App. at 18.
Here, at the suppression hearing, the State merely argued that police would have discovered the video camera and tapes in the same illegal manner that the camera and videotapes were actually discovered. As previously discussed, the police were not permitted to seize the video camera under the plain view doctrine. Moreover, the State provided no evidence that, regardless of the defective warrant, the police were in the process of conducting investigations that likely would have given them probable cause to search and seize Wiatt's video equipment and videotapes. Thus, the State has failed to prove by a preponderance of the evidence that the police would have inevitably discovered Wiatt's video camera and videotapes through constitutional means independent of the illegal search of these items.
In conclusion, the search warrant was erroneously issued as to the video recording equipment and videotapes, and the trial court erred by admitting these items into evidence at trial. We must remand counts II through VI for re-trial without this evidence. Wiatt argues that this court must also reverse all remaining counts due to the `prejudice inherent in trying the multiple counts together.' Br. of Appellant at 94. This argument is without merit, as the videotape only depicted Ms. Cruz and was not associated with the counts involving the other victims. Moreover, the jury acquitted Wiatt of count I, second degree rape of Ms. Cruz, despite having viewed the incident on the tape. Thus, it is not probable that the jury convicted Wiatt for the crimes against any other victim based on this videotape.
These counts are as follows: count II, second degree rape of Ms. Cruz; counts III and IV, sexual exploitation of a minor with sexual motivation involving Ms. Cruz; and counts V and VI, voyeurism involving Ms. Cruz.
Where we reverse a conviction and remand for a new trial, the double jeopardy clause is ordinarily not offended. State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982). If the reversal is not for insufficiency of evidence, the defendant may be retried for the convicted offense and any lesser included offenses. Anderson, 96 Wn.2d at 742. As noted later in this opinion, we do not reverse the counts involving Ms. Cruz for insufficiency of the evidence.
II. Juror Misconduct
Wiatt next asserts that he is entitled to a new trial due to juror misconduct. He argues that no evidence of date-rape drugs was presented at trial and, in discussing date-rape drugs, the jury impermissibly injected extrinsic evidence into its deliberations. The State responds that knowledge about date-rape drugs is within common knowledge and that, based on some of the victims' testimony, it was reasonable for jurors to infer from their common experience the possibility of date-rape drugs being used in the commission of the rapes. In addition, the State argues that Wiatt invited the jury to consider the possibility of date-rape drugs. We agree.
Here, although neither party presented direct evidence that date-rape drugs may have been involved in the rapes, the jury could reasonably infer, based on common knowledge about alcohol and date-rape drugs, the possibility of these drugs as circumstantial evidence. K. Hoskins testified that, despite having consumed one alcoholic beverage at Wiatt's home, she had no memory of having sexual intercourse with Wiatt. And Z. Hawkins testified she had only consumed two to three alcoholic beverages and that, although she was cognizant of what was happening, she could not move her body while Wiatt engaged in sexual intercourse with her. Based on this testimony, the jury could rationally infer that the use of date-rape drugs may have been an alternative reason for some of the victims' sudden incapacitation.
Moreover, during closing arguments Wiatt invited the jury to consider alternate explanations for the victims' incapacitation. In discussing the charges involving Ms. Cruz, Wiatt challenged her inability to recall certain details, referring to it as `selective blackouts,' and invited the jury to `consider this selective loss and question whether alcohol works that way.' 13 RP at 2503 (emphasis added). Similarly, in discussing Ms. Hoskins' testimony that she was incapacitated after having only one drink, Wiatt argued, `[t]here's absolutely no explanation about her lack of memory.' 13 RP at 2552 (emphasis added). Wiatt also challenged the credibility of Ms. Hawkins' testimony that she was incapacitated after consuming only two to three bottles of beer. Finally, in reference to several of the victims, Wiatt argued, `how can we have the selective memory as these women have?' 13 RP at 2566. In short, while Wiatt urged the jury to question the credibility of these women, he also invited it to inquire into the possible effects of alcohol and to consider whether something else might have caused the victims' memory loss and incapacitation. Having invited the jury to so inquire, Wiatt is now barred from complaining of that inquiry on appeal.
III. Sufficiency of the Evidence
Wiatt contends that insufficient evidence supports the jury's finding that he committed rape in the second degree of Ms. Cruz as charged in count II and rape in the third degree of R. Rankis as charged in count XVI. We address sufficiency as to count II, even though we reversed the conviction, because we remand the issue for trial, which is appropriate under State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982). Sufficient evidence exists to support both Wiatt's conviction of second degree rape and his conviction of third degree rape.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). `A claim of insufficiency admits the truth of the State's evidence and all inferences that can be drawn therefrom.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact regarding a witness's credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A. Count II
Wiatt was charged with second degree rape pursuant to RCW 9A.44.050(1)(b), which requires the State to prove that, under circumstances not constituting rape in the first degree, the defendant engaged in sexual intercourse with another person when the victim is incapable of consent by reason of being physically helpless or mentally incapacitated. `Mental incapacity' is that condition existing at the time of the offense that prevents a person from understanding the nature or consequences of the act of sexual intercourse, whether that condition is produced by the influence of a substance, illness, defect, or from some other cause. RCW 9A.44.010(4). `Physically helpless' means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act. RCW 9A.44.010(5).
Here, Thoong testified at trial that over the course of the evening of June 29, 2001, Ms. Cruz consumed at least `six or more' shots of vodka and a mixed alcoholic drink. 2 RP at 235. Ms. Cruz testified that she has very little memory of what occurred that evening; however, she remembers a person on top of her, having sexual intercourse at one point during the evening. She indicated to the person that she was in pain and he said something about using lubricant. She next remembers waking up in Wiatt's bed, completely naked. In addition, Ms. Cruz testified that she was `heavily intoxicated' on the evening she was raped, 1 RP at 81; Thoong testified that she had never seen Ms. Cruz this intoxicated before and that it was the most she had seen Ms. Cruz drink; and Hoy testified that when she arrived at Wiatt's residence, Ms. Cruz was extremely intoxicated and appeared to be in an `extremely different' state of mind. 4 RP at 670.
In contrast, Wiatt testified that he could tell that Ms. Cruz had been drinking and was not entirely sober but that her motor skills and speech were normal. Lo testified that Ms. Cruz and Wiatt were `flirting' all evening and that, when he spoke with Ms. Cruz while she was in the hot tub, Ms. Cruz was coherent and could `hold a conversation.' 2 RP at 371, 3 RP at 429. In addition, Wiatt testified that he believed that Ms. Cruz consented to having sexual intercourse and that she had moved her body with his while they were engaging in intercourse. Lo testified that, based upon his observation of Wiatt and Ms. Cruz, he believed Ms. Cruz was aware of what was happening when she and Wiatt engaged in sexual intercourse.
Wiatt argues that that Ms. Cruz's behavior during their first encounter in his bedroom shows that she understood the nature and consequences of her actions. But Wiatt was not convicted on count I involving this initial incident, and Ms. Cruz's statements or actions at that time are irrelevant as to whether the evidence is sufficient to support a finding that Wiatt raped her during their second encounter. Wiatt further argues that Ms. Cruz's actions in driving 20 minutes to her home to `appease or deceive' her friends and then driving back to Wiatt's home, making numerous cell phones during the trip, demonstrated her physical ability and mental willingness to rejoin him. Br. of Appellant at 64. This argument is without merit.
Here, there was a direct conflict in the evidence regarding Ms. Cruz's state of mind and ability to consent to sexual intercourse; credibility was thus the central question. Despite hearing testimony that Ms. Cruz was a coherent and willing sexual partner, the jury ultimately found Ms. Cruz's testimony that she was heavily intoxicated and remembered very little about her evening including having sexual intercourse with Wiatt to be more credible. This determination is not reviewable. See Camarillo, 115 Wn.2d at 71. Ms. Cruz's testimony alone, without consideration of the videotape, is sufficient to support Wiatt's conviction of second degree rape. Even if Ms. Cruz made a 40-minute, round-trip drive, made several phone calls, and returned to Wiatt's home, her testimony supports a reasonable inference that she was so intoxicated, she did not and could not truly understand the nature and consequences of either her own or Wiatt's actions.
B. Count XVI
Wiatt was charged with third degree rape pursuant to RCW 9A.44.060(1)(a). Under that statute, a person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degree, such person engages in sexual intercourse with another person, and the victim did not consent to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct. RCW 9A.44.060(1)(a). `Consent' means that, at the time of the sexual contact, there are actual words or conduct indicating freely given agreement to have sexual intercourse. RCW 9A.44.010(7).
Wiatt argues that Ms. Rankis did not express a lack of consent by words or conduct until after they were engaged in sexual intercourse. He further argues:
Once intercourse is begun without saying `no,' merely saying `no' does not clearly express a lack of consent. In the throes of sexual intercourse, `no' becomes ambivalent at best. It may be an exclamation, or feedback as passion builds to the `yes' of climax.
Br. of Appellant at 81.
In addition, Wiatt contends that once Ms. Rankis expressed her lack of consent, he was not committing rape by continuing intercourse because the law must permit an `appreciable amount of time in which a sexual partner can perceive and understand such a communication, and physically respond.' Br. of Appellant at 82. These arguments are entirely without merit.
First, as previously discussed, RCW 9A.44.010(7) requires that, for an individual to consent to sexual intercourse, he or she must use actual words or conduct indicating freely given agreement at the time of the sexual contact. There is no language in the statute indicating that consent, or lack thereof, must be communicated prior to commencement of sexual intercourse, and Wiatt offers no legal authority for this proposition. Second, Ms. Rankis testified that she said `no' when Wiatt `started having sex' with her; thus, she and Wiatt were not in the `throes of sexual intercourse,' such that it might be difficult for Wiatt to determine whether she truly meant to express a lack of consent. 4 RP at 735 (emphasis added); Br. of Appellant at 81. Finally, Ms. Rankis testified that when she told Wiatt `no,' he responded by staying `something like you want to do this, you like it.' 4 RP at 735. This evidence demonstrates that Wiatt perceived and understood Ms. Rankis' communication that she did not want to have sex, and he chose to continue having intercourse with her despite her clearly expressed lack of consent.
Here again, the jury was presented with conflicting testimony. Ms. Rankis testified that Wiatt continued engaging in sexual intercourse with her after she clearly expressed a lack of consent to him, while Wiatt testified that he and Ms. Rankis had engaged in consensual intercourse and that Ms. Rankis never expressed that she did not want to have sex. The jury ultimately found Ms. Rankis to be more credible, and this determination is not reviewable. See Camarillo, 115 Wn.2d at 71.
IV. Trial Court Error
Wiatt next asserts that the trial court committed several reversible errors. He argues that the trial court erred when it (1) failed to correct the prosecutor's misstatement of law; (2) commented on the evidence in its jury instructions; (3) instructed the jury as to uncharged alternative means of committing sexual exploitation of a minor; and (4) gave erroneous jury instructions regarding `FREELY GIVEN' consent. Br. of Appellant at 75. We address each argument in turn.
Wiatt first contends that the prosecutor misstated the law during closing arguments prior to the jury's second viewing of the DVD when he essentially stated that, even if an individual initially consents to sex, if he or she loses consciousness at any point during intercourse, the other partner begins committing rape. Because this issue only pertains to the count involving Ms. Cruz and because we reverse all convictions regarding Ms. Cruz, we do not address this argument.
Second, Wiatt argues that the court impermissibly commented on the evidence in its instructions to the jury. Specifically, he objects to the term `offense' in instructions 9, 13, and 22; the term `victim' in instructions 6 and 29; and the term `perpetrator' in instruction 29. Wiatt argues that by instructing the jury in this language, the court conveyed an opinion that a crime had occurred: there was an `offense,' a `perpetrator,' and a `victim.' Br. of Appellant at 75. Because these instructions may be used in a subsequent trial, we analyze the issue.
The instructions are as follows:
INSTRUCTION NO. 6
A person commits the crime of rape in the second degree when that person engages in sexual intercourse with another person when the victim is incapable of consent by reason of being physically helpless or mentally incapacitated.
CP at 104 (emphasis added).
INSTRUCTION NO. 9
Mental incapacity is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse. . . .
CP at 105 (emphasis added).
INSTRUCTION NO. 13
It is a complete defense to a charge of rape in the second degree as charged in counts I, II, XII, and XIV, that at the time of the offense the defendant reasonably believed that the complainant was not mentally incapacitated or physically helpless.
CP at 106 (emphasis added).
INSTRUCTION NO. 22
It is not a defense to the charge of sexual exploitation that the defendant did not know the alleged victim's age. However, it is a complete defense to a charge of sexual exploitation as charged in counts III and IV, that at the time of the offense, the defendant made a reasonable[,] bona fide attempt to ascertain the true age of [A.] Cruz.
CP at 110 (emphasis added).
INSTRUCTION NO. 29
A person commits the crime of rape in the third degree when that person engages in sexual intercourse with another person not married to the perpetrator when the victim did not consent to sexual intercourse with the perpetrator, and such lack of consent was clearly expressed by the victim's words or conduct.
CP at 114 (emphasis added).
The Washington Constitution forbids a judge from conveying to a jury the court's opinion about the merits or facts of a case. Wash. Const. art. 4, sec. 16. But an instruction that states the law correctly and is pertinent to the issues raised in the case is not a comment on the evidence. State v. Johnson, 29 Wn. App. 807, 811, 631 P.2d 413, review denied, 96 Wn.2d 1009 (1981).
Wiatt's claims regarding jury instructions 9, 13, and 22 fail because he proposed similar jury instructions using the term `offense.' CP at 273, 274, 277. Under the doctrine of invited error, even where constitutional rights are involved, we are precluded from reviewing jury instructions when the defendant has proposed an instruction or agreed to its wording. State v. Bradley, 141 Wn.2d 731, 736, 10 P.3d 358 (2000); In re Detention of Gaff, 90 Wn. App. 834, 845, 954 P.2d 943 (1998); State v. Alger, 31 Wn. App. 244, 249, 640 P.2d 44, review denied, 97 Wn.2d 1018 (1982).
Jury instructions 6 and 29 are the definitions of second and third degree rape. Nothing in the language of these instructions suggests that the jury should assume that a crime was committed. In giving these instructions, the court was not commenting on the evidence, but was merely defining the elements of these crimes.
Third, Wiatt contends that the trial court erred in giving jury instructions 15, 16, and 21, regarding the crime of sexual exploitation of a minor. Counts III and IV of the information charge Wiatt with `aid[ing], invit[ing] or caus[ing] a minor to engage in sexually explicit conduct knowing that such conduct could be photographed.' CP at 18. Wiatt claims that the jury instructions permitted him to be convicted under uncharged alternatives: that he committed the crime of sexual exploitation of a minor by `aid[ing], invit[ing], employ[ing], authoriz[ing], or caus[ing] a minor to engage in sexually explicit conduct, knowing that such conduct will be photographed.' Br. of Appellant at 70; CP at 107 (emphasis added). The State concedes the errors but argues they were harmless. These errors are of constitutional magnitude and may be challenged for the first time on appeal. State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996).
When a charging document alleges a statutory alternative means of committing a crime, it is error to instruct the jury on uncharged alternatives, regardless of the strength of the trial evidence. State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003). A defendant cannot be tried for an uncharged offense. Chino, 117 Wn. App. at 540. Where the instructional error favored the prevailing party, we presume it is prejudicial unless it affirmatively appears that the error was harmless. Chino, 117 Wn. App. at 540. Error may be harmless if other instructions `clearly and specifically define the charged crime.' Chino, 117 Wn. App. at 540. In addition, courts have found harmless error where there was no possibility that the defendant was impermissibly convicted on an uncharged alternative. See State v. Nicholas, 55 Wn. App. 261, 273, 776 P.2d 1385, review denied, 113 Wn.2d 1030 (1989) (finding harmless error where the jury returned a special verdict finding that the defendant was `armed with a deadly weapon' at the time of the commission of the crime, the charged means of committing the crime). We have recently held in State v. Spiers, 119 Wn. App. 85, 94, 79 P.3d 30 (2003), that where no evidence was admitted regarding an alternative method of conviction, instructional error in the `to convict' instruction was mere surplusage, and the conviction did not need to be reversed.
Here, no evidence was offered at trial to show either that Wiatt employed Ms. Cruz to be in the video or that Wiatt had some type of authority that would permit him to authorize Ms. Cruz's appearance in the video. Thus, there was no possibility that the jury convicted Wiatt based on alternative means of committing sexual exploitation of a minor and the error was harmless.
Finally, Wiatt contends that the trial court erred in giving instruction 11. The instruction states: ``Consent' means that at the time of the sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse.' CP at 105. Wiatt argues that it was error to give this instruction because `[f]reely given consent' was not at issue in his charges of second degree rape and because the instruction misled the jury regarding his charges of third degree rape. Br. of Appellant at 76, 78. Defense counsel objected to the instruction at trial, arguing that the instructions for second degree rape adequately addressed the issue of consent by defining mental incapacity and physical helplessness.
We review jury instructions in their entirety and find them sufficient if they permit each party to argue its theory of the case, are not misleading, and when read as a whole, properly inform the trier of fact of the applicable law. Capers v. Bon Marche, 91 Wn. App. 138, 142, 955 P.2d 822 (1998), review denied, 137 Wn.2d 1002 (1999). Here, Wiatt was charged with second degree rape by engaging in sexual intercourse when the victim was incapable of consent by reason of being physically helpless or mentally incapacitated. Additionally, Wiatt was charged with third degree rape by engaging in sexual intercourse with another who did not, in words or conduct, indicate freely given agreement to have sexual intercourse and such lack of agreement was clearly expressed by the victim's words or conduct. Thus, the State was required to prove, as an element of these crimes, that each victim was incapable of consenting or did not freely consent to sexual intercourse, respectively. RCW 9A.44.050, .060. In giving an instruction on the meaning of `consent' as that term is defined in RCW 9A.44.010, the trial court was properly informing the jury of the applicable law regarding Wiatt's charges of second and third degree rape.
V. Right to Confrontation
Wiatt contends that the trial court violated his right to confrontation by limiting his cross-examination of Lo. At trial, the State moved to prohibit the defense from asking Lo any questions about whether he also had sexual contact with Ms. Cruz or whether he had erased any portion of the video showing that contact, and the court granted the motion. Wiatt argues that the court denied him the ability to question Lo regarding his `greater involvement' in the case and, thus, `the extent of his need to cooperate with the [S]tate to convict Mr. Wiatt.' Br. of Appellant at 96. This argument is without merit.
The Sixth Amendment to the United States Constitution and article I, section 22, of the Washington Constitution, guarantee criminal defendants the right to confront and cross-examine witnesses against them. But the right to cross-examine adverse witnesses is not absolute. State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). A court may, within its sound discretion, deny cross-examination if the evidence sought is vague, argumentative, speculative, or irrelevant. Darden, 145 Wn.2d at 620-21. Here, there is no evidence in the record showing either that Lo engaged in sexual contact with Ms. Cruz or that he erased portions of the videotape depicting such contact. Moreover, such a line of questioning would be irrelevant and highly prejudicial to the question of whether Wiatt raped Ms. Cruz. The court did not err.
VI. Prosecutorial Misconduct
Wiatt next asserts that the prosecutor committed misconduct during closing arguments when he essentially argued that `believing these girls' is `legally incompatible' with having a reasonable doubt as to Wiatt's guilt. Br. of Appellant at 87-88. Wiatt is in error.
In order to establish prosecutorial misconduct, Wiatt must prove that the prosecutor's conduct was improper and that the prosecutor's conduct prejudiced his right to a fair trial. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Prejudice is established only where `there is a substantial likelihood the instances of misconduct affected the jury's verdict.' Dhaliwal, 150 Wn.2d at 578 (citing State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996)). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal, 150 Wn.2d at 578; State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991).
Wiatt did not object to the prosecutor's statements below. A defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so `flagrant and ill intentioned' that it causes enduring and resulting prejudice that a curative instruction could not have remedied. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Here, the prosecutor's remarks were not `flagrant' or `ill intentioned,' and a curative instruction could have remedied any prejudice to Wiatt.
VII. Violation of Plea Agreement
Wiatt also contends that the prosecutor violated the terms of their plea agreement and, consequently, this court must remand for him to choose whether to withdraw his guilty plea or to enforce the State's agreement. Specifically, Wiatt argues that, contrary to the plea agreement, the prosecutor recommended that the court run his misdemeanor sentences consecutively to his felony sentences. The record does not support this claim. Although the prosecutor argued that the court had the option of running Wiatt's misdemeanor sentences consecutively to his felony sentences, the prosecutor recommended that the misdemeanor charges be sentenced concurrently and that the court impose an exceptional sentence because those charges would not be included in his offender score.
VIII. Exceptional Sentence
Finally, Wiatt contends, both through counsel and pro se in a statement of additional grounds for review (SAG), that his exceptional sentence is unconstitutional under Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Specifically, he argues that the court issued an exceptional sentence based on a judicial finding of fact not charged nor found by a jury beyond a reasonable doubt. Because we reverse five counts and remand for trial, the matter of sentencing is not ripe.
RAP 10.10.
IX. Statement on Additional Grounds for Review
Wiatt raises two issues in his SAG. His claims are meritless.
A. Jury Instructions
Wiatt first contends that the trial court erred in giving jury instructions 13, 14, and 33. He argues that instructions 13 and 14 `shift the burden of proof as to the state of mind of the plaintiffs at the time of the alleged Rape, from the State to the defendant.' SAG at 1. The court's instructions are as follows:
No. 13
It is a complete defense to a charge of rape in the second degree as charged in counts I, II, XII, and XIV, that at the time of the offense the defendant reasonably believed that the complainant was not mentally incapacitated or physically helpless. This defense must be established by a preponderance of the evidence. If you find that the defendant has established this defense, it will be your duty to return verdicts of not guilty.
CP at 106-107.
No. 14
When it is said that the defendant has the burden of proof on any proposition by a `preponderance' of the evidence, it means that you must be persuaded, considering all the evidence in the case, that the proposition on which the defendant has the burden of proof is more probably true than not true.
CP at 107.
Instructions 13 and 14 did not impermissibly shift the burden of proof as to the victims' state of mind. In order to obtain a conviction for second degree rape, the State, not Wiatt, was required to prove that Wiatt engaged in intercourse when the victims were `incapable of consent by reason of being physically helpless or mentally incapacitated.' CP at 104. Instructions 13 and 14 define an affirmative defense to this charge, which requires the defendant to prove his, not the victims', state of mind at the time of the offense.
Wiatt also challenges instruction 33. He argues that the court improperly instructed the jury that it could find him guilty of a crime `in which [he] had not been charged.' SAG at 2. The instruction states:
INSTRUCTION NO. 33
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, the defendant may be found guilty of any lesser crime, the commission of which is necessarily included in the crime charged, if the evidence is sufficient to establish the defendant's guilt of such lesser crime beyond a reasonable doubt.
CP at 117.
In general, the crimes charged in an information are the only crimes for which the defendant may be convicted and on which a jury may be instructed. State v. McJimpson, 79 Wn. App. 164, 171, 901 P.2d 354 (1995), review denied, 129 Wn.2d 1013 (1996). However, the defendant may be convicted of, and the jury instructed on, a crime that is an inferior degree to the one charged. McJimpson, 79 Wn. App. at 171. Here, Wiatt was charged with count X, second degree rape, or in the alternative, third degree rape of H. Kalmikov. Instruction 33 pertained to these charges and properly instructed the jury that it could find Wiatt guilty of the lesser-included crime of attempted third degree rape. The trial court did not err.
B. Sufficiency of the Evidence
Wiatt also contends that insufficient evidence supports his convictions of counts XII, second degree rape of K. Hoskins; count XIV, second degree rape of Z. Hawkins; count XVI, third degree rape of R. Rankis; and count VIII, third degree rape of J. Bowles.
As to counts XII and XIV, Wiatt argues that K. Hoskins and Z. Hawkins were not mentally incapacitated because they had graduated from high school and were not `mentally retarded or severely mentally ill.' SAG at 4. Additionally, Wiatt argues that these victims were previously acquainted with him and had accepted an invitation into his home. These claims are entirely without merit. RCW 9A.44.050(1)(b) does not require any showing of the victim's relation to the defendant or how the victim came to be in proximity to the defendant at the time of the rape. Nor does it require a showing that the victim is mentally ill or handicapped; under RCW 9A.44.010(4), `[m]ental incapacity' may be caused by the influence of a substance, illness, defect, or from some other cause.
Wiatt further contends that the evidence was insufficient to support a finding that K. Hoskins and Z. Hawkins were mentally incapacitated because they testified that they had only consumed one to three alcoholic beverages prior to the alleged rapes and other witnesses testified that these two possessed mental capacity throughout the evening. Nevertheless, K. Hoskins and Z. Hawkins each testified that they were mentally incapacitated and physically helpless at the time of the rapes K. Hoskins testified that she consumed one drink and then only remembers waking in Wiatt's bed the following morning and Z. Hawkins testified that she was aware that Wiatt was raping her, but she was unable to physically resist him due to the effects of the alcohol. As noted, we defer to the trier of fact on issues of witness credibility and conflicting testimony. See Camarillo, 115 Wn.2d at 71.
Finally, because Wiatt fails to inform the court of the nature and occurrence of the errors involving counts XVI and VIII, we need not address this issue. See RAP 10.10(c).
Reversed and remanded as to counts II through VI. Affirmed as to all other counts.
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, P.J., concur.
I respectfully dissent from that portion of the majority's opinion which reverses counts II through VI based on the conclusion that the videotape found in Wiatt's bedroom must be suppressed. In my opinion, while the portion of the warrant authorizing seizure of the videotape was invalid, the tape was properly seized under the `plain view' rule.
If Washington applied the `totality of the circumstances' test set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), it would be clear that the search warrant in this case validly authorized the seizure of the videotape found in Wiatt's dresser. The Gates test requires the issuing magistrate to make `a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.' Gates, 462 U.S. at 238. Here, the affidavit in support of the warrant contained the following: Cruz reported being raped by Wiatt in his bedroom; Cruz reported that, a week after the rape, she was `confronted' by friend Smith who had been told that Cruz was caught on videotape being `tag teamed' by two guys; at the time that Smith `confronted' Cruz, Cruz had disclosed the rape only to an aunt; Thoong reported that on the night of the rape, she was told when looking for Cruz, that Cruz had gone into a bedroom with Wiatt and another male; Thoong reported that `she had heard that a guy named Barry said there was a video of [Cruz and Wiatt] doing it `doggy style;'' and Hoy reported that `Ryan CARLSON told her a couple days after the incident that Jerry WIATT had told another friend, Barry SPECHT, that he had made a video . . . show[ing] WIATT and another male having sexual intercourse with CRUZ.' Each of these pieces, when considered together, more than provided a fair probability that a videotape might be found in Wiatt's home.
CP at 190.
CP at 187-88.
But Washington follows the Aguilar-Spinelli test to determine whether an informant's information establishes probable cause to issue a search warrant. State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984). This test requires that the affidavit sufficiently establish each informant's credibility and the basis for that informant's information. Jackson, 102 Wn.2d at 435.
Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
Under the Aguilar-Spinelli test, the affidavit was insufficient to support the portion of the warrant authorizing the seizure of the videotape. The information in the affidavit concerning the videotape was through hearsay chains reported by Cruz, Thoong, and Hoy. An informant's information is satisfactory when based on hearsay or several layers of hearsay only if both prongs of the Aguilar-Spinelli test are met at every link in the hearsay chain. People v. Ketcham, 93 N.Y.2d 416, 421, 712 N.E.2d 1238 (N.Y. 1999); 2 Wayne R. LaFave, Search and Seizure sec. 3.3(d), at 151-52 (2004). As the majority correctly concludes, the affidavit failed to set forth information which would validate each link in any of the hearsay chains upon which Cruz, Thoong, or Hoy's respective knowledge of a videotape was based.
But, in my opinion, the warrant's invalidity does not require suppression of the videotape. Under the `plain view' rule, items not listed in a search warrant may be seized if the officer has probable cause to believe the item is evidence of a crime. Arizona v. Hicks, 480 U.S. 321, 326, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987). Thus, an item not named in the warrant may be seized when, `considering the surrounding circumstances, the police can reasonably conclude that the substance before them is incriminating evidence.' State v. Hudson, 124 Wn.2d 107, 118, 874 P.2d 160 (1994); see also United States v. Castorena-Jaime, 285 F.3d 916, 924 (10th Cir. 2002) (`A seizing officer need not `know' or have an `unduly high degree of certainty' as to the incriminatory character of the evidence under the plain view doctrine;' `[a]ll that is required is a `practical, nontechnical probability that incriminating evidence is involved.'') (quoting Texas v. Brown, 460 U.S. 730, 741-42, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (plurality)).
The requirement that the officer have probable cause to believe that an item is evidence has also been called, as the majority does, the `immediate knowledge' or `immediately apparent' requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (The `plain view' doctrine `is legitimate only where it is immediately apparent to the police that they have evidence before them.'). But as the United States Supreme Court has explained: `[T]he use of the phrase `immediately apparent' was very likely an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the `plain view' doctrine.' Brown, 460 U.S. at 741. The Court has repeatedly explained that the `plain view' rule requires only a showing of probable cause. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993); Brown, 460 U.S. at 742.
The issuing magistrate, the trial court, and the reviewing members of this court all agree that probable cause supported the warrant's authorization to search Wiatt's home and bedroom for evidence of Cruz's rape. This evidence included bedding, clothing, and the lubricant which Wiatt told Cruz he was using as he raped her. When the police executed the warrant and searched the room where Cruz reported being raped, the police opened a dresser drawer where they discovered the lubricant. Next to the lubricant was a video camera. The question at this point is whether the police, at that moment, had probable cause to believe that the camera, and the tape lying inside, could be evidence of Cruz's rape. Or, to put it another way, could the police have obtained a warrant to seize the video camera and videotape in light of (1) where they found it; (2) what it was in close proximity to; and (3) the hearsay chains reported by Cruz, Thoong, and Hoy. I think the answer to this question is very clearly yes.
What undermined the warrant's authorization to seize the video camera and videotape was the police's inability to set forth the reliability and basis of knowledge for each link in either Cruz, Thoong, or Hoy's reported hearsay chains. But, in such circumstances, the informant's information may still be considered if independent police investigation corroborates the tip to such an extent that it supports the missing elements of the Aguilar-Spinelli test. Jackson, 102 Wn.2d at 438. The independent police work is sufficient if it `tends to give substance and verity to the report that the suspect is engaged in criminal activity.' Jackson, 102 Wn.2d at 438. This corroboration may be through incriminating or innocuous activity: `[T]he relevant inquiry is not whether particular conduct is `innocent' or `guilty,' but the degree of suspicion that attaches to particular types of non-criminal acts.' Gates, 462 U.S. at 245 n. 13.
The majority and the trial court correctly stated that `simply having a video camera is not illegal.' Majority at 23 (quoting RP (Oct. 4, 2002) at 112). But innocuous activity may ripen to probable cause when the surrounding circumstances are considered. Gates, 462 U.S. at 245 n. 13; Hudson, 124 Wn.2d at 118. Here the police discovered the video camera lying in the room where Cruz reported being raped, next to the lubricant Wiatt told Cruz he used as he raped her. And three separate hearsay chains each indicated that Wiatt had made a video recording of his sexual encounter with Cruz. These reports, while failing the Aguilar-Spinelli test, need not be ignored by the investigating officer when given `some further support.' Spinelli, 393 U.S. at 418. The further support in this case was the presence of a camera reportedly used to film the alleged crime, sitting next to an item which the police undisputedly had probable cause to seize as evidence of that crime.
In this respect, the facts of this case are quite like those in State v. Bussard, 114 Idaho 781, 787-88, 760 P.2d 1197 (Idaho Ct.App. 1988). There, officers were executing a search warrant in a burglary case when they came across jewelry which the warrant did not lawfully authorize them to seize. Although the jewelry was nondistinctive, the officers could believe that it was `probably related to criminal activity' because it was sitting next to other stolen property listed in the warrant and the officers had reason to believe that jewelry was taken in the burglary. Bussard, 114 Idaho at 788.
The surrounding circumstances of a crime and the search for evidence of it may be considered in assessing the suspicion that attaches to an otherwise innocuous item. The majority relies on this court's decision in State v. Johnson, 104 Wn. App. 489, 17 P.3d 3 (2001). While Johnson may be `instructive,' I do not believe it compels the result the majority reaches.
In Johnson, an officer obtained a warrant to search the defendant's home after two children reported that they had been sexually abused by the defendant. The warrant authorized a search for a vibrator, which the defendant had allegedly used on one of the children. But the warrant also authorized a search for pornographic materials, even though the children's allegations made no reference to such materials. The officer sought these materials because, in her experience, pornography was often used as an aid in committing sex crimes against children.
This court suppressed two unmarked tapes found in the defendant's home which contained child pornography. In so ruling, we first concluded that the warrant lacked probable cause to search the defendant's home for pornographic materials. This was so because there had been no reference to such material in the case and the officer's general statements regarding the common habits of child abusers was insufficient to establish probable cause. Johnson, 104 Wn. App. at 500. We then declined to apply the `plain view' rule because `nothing about the exterior of the tapes gave probable cause to believe the tapes were evidence of a crime.' Johnson, 104 Wn. App. at 502.
Johnson does not require that probable cause must be established solely on the item's face. Such a holding would be contrary to controlling authority mandating that we consider the items' `surrounding circumstances.' Hudson, 124 Wn.2d at 118. In Johnson, there was no information in the case (other than the officer's generalized predictions about child abusers) which would lead the police to believe that the tape was evidence before they viewed it. The police in this case, however, were aware that Cruz, Thoong, and Hoy reported the existence of a video of the crime. In my view, they had probable cause to believe the tape was evidence when they discovered it sitting next to the lubricant.
The majority cites only Detective Clark's testimony that he was not certain that the tape was evidence until he viewed it. But probable cause, which is the predicate for invoking the `plain view' rule, does not require certainty that an item is evidence. Brown, 460 U.S. at 741-42. More importantly, whether an officer subjectively believes that he did or did not have probable cause is irrelevant. The determination of whether probable cause exists is not governed by the officer's subjective intent, but by an objective review of the facts. State v. Harrell, 83 Wn. App. 393, 400, 923 P.2d 698 (1996); State v. Brantigan, 59 Wn. App. 481, 486, 798 P.2d 1176 (1990).
Under Aguilar-Spinelli, Cruz, Thoong, and Hoy's hearsay chains were insufficient to support the warrant's authorization to search Wiatt's home for a video camera. But they ripened to create probable cause when they were corroborated by what the officer found when they discovered the videotape. Finding that a videotape, which had been described in three separate reports, sitting at the scene of a crime and next to an item which had been used in the commission of that crime, corroborated the informant's accounts and they ripened into probable cause to believe that videotape was evidence of the crime described in the search warrant. It can surely be said that the police seized the tape `relying on something more substantial than a casual rumor circulating in the underworld.' Spinelli, 393 U.S. at 416. Because I would affirm Wiatt's convictions on counts II through VI, I dissent.