State v. TiliState v. Tili
This is a direct review from the trial court. A jury found the defendant, Fonotaga Tili, guilty of three counts of first-degree rape, one count of first-degree burglary, and one count of second-degree assault arising from events occurring at the same time and place and involving the same victim. At sentencing, the trial court imposed consecutive terms for the three rape convictions and concurrеnt terms for the burglary and assault convictions, resulting in a 417-month sentence. Tili claims the double jeopardy clause and the merger doctrine preclude him from being convicted and punished for all five offenses. Tili also claims the trial court erred in imposing consecutive terms for his three first-degree rape convictions. And finally, Tili asserts that certain jury instructions were erroneously given because they represented an improper comment on the evidence by the trial court. We uphold Tili‘s convictions, but find that his three rape convictions meet the criteria of same criminal conduct for sentencing purposes. Tili‘s sentence, therefore, is statutorily required to be served concurrently unless an exceptional sentence is imposed.
FACTS
On September 16, 1997, L.M. worked a double shift. After returning home from her second shift at approximately 11:15 p.m., L.M. ran the water in her bathtub, intending to take a bath. Out of habit, L.M. brought her cordless phone with her into the bathroom.
During her bath, L.M. heard what sounded like someone entering her apartment. Frightened, L.M. got out of the bathtub and locked the bathroom door. She waited in the locked bathroom for approximately four minutes, but eventually decided to investigate. Before leaving the bathroom, however, L.M. dialed “9” and “1” on her cordless phone without dialing the last “1” necessary to complete a 911 emergency call.
When L.M. entered the kitchen area, she saw Tili, who was wearing only a pair of underpants and holding a heavy metal pan.1 Moments later, Tili violently struck L.M. in the head with the metal pan. As Tili began his attack, L.M. was somehow able to dial another “1” on her cordless phone, completing a 911 emergency call. The sounds of the ensuing physical and sexual assault, lasting approximately two minutes, were captured on the 911 system.2
After numerous blows with the metal pan, L.M. fell to her knees. She begged Tili to stop, telling him to take anything he wanted, but Tili ignored her pleas and continued his attack. He told L.M. to “shut up” and threatened to kill her. Report of Proceedings (RP) at 381. L.M. testified that after Tili beat her into submission, he instructed her to lie on her stomach and to kеep her face to the floor. When L.M. attempted to reposition her face to a more comfortable position, Tili “mash[ed] [her] head into the ground.” RP at 382. Tili then positioned L.M. with her buttocks raised, removed her robe to expose her nude body, and began to lick her backside.
Tili proceeded to use his finger to penetrate L.M.‘s anus and vagina. Tili inserted his finger into these two orifices separately, not at the same time.3 Tili told L.M. to say she liked it. She complied. Tili then tried to penetrate L.M.‘s anus with his penis, but
At about this time, two deputies knocked on L.M.‘s apartment door. Tili told L.M. to “shut up” or he would kill her. RP at 383; see also RP at 227, 288-89. When the deputies knocked again and announced “police,” L.M. screamed. RP at 227-28, 288-89, 383. Tili then hit L.M. several more times before fleeing as the deputies kicked open the apartment door. Upon entering the apartment, the deputies caught a glimpse of Tili, wearing only his underwear, before he escaped through a bedroom window. The deputies pursued Tili, eventually finding him hiding underneath a parked truck in the parking lot outside L.M.‘s apartment.
Tili was charged with one count of first-degree burglary, and one count of second-degree assault. The Information also charged Tili with three counts of first-degree rape for each independent penetration of a different bodily orifice or the same orifice with a different object. At trial, Tili conceded he was guilty of rapе, but argued that he was guilty of only one count of rape, not three. However, a jury convicted Tili of all three counts of first-degree rape. The jury also convicted him of one count of first-degree burglary and one count of second-degree assault. Tili was sentenced to 417 months. The three counts of rape were sentenced to be served consecutively. The burglary and assault convictions were imposed concurrently with each other and with the three rape convictions.
ANALYSIS
First Issue: Do the defendant‘s convictions for three counts of rape in the first degree violate double jeopardy?
The double jeopardy clause of the fifth amendment to the United States Constitution and article I, section 9 of the Washington State Constitution prohibit the imposition of multiple punishments for the same offense. State v. Adel, 136 Wash.2d 629, 632, 965 P.2d 1072 (1998) (citing State v. Gocken, 127 Wash.2d 95, 100, 896 P.2d 1267 (1995); State v. Calle, 125 Wash.2d 769, 772, 888 P.2d 155 (1995)). Tili claims that if his three convictions for first-degree rape constitute just one criminal act, or one “unit of prosecution,” then his rape convictions violate double jeopardy because he was punished three times for the same offense. See Adel, 136 Wash.2d at 632, 965 P.2d 1072. Tili is incorrect. Under the facts in this case, we hold that Tili‘s three separate rape convictions do not violate double jeopardy.
If a defendant is convicted of violating a single statute multiple times, the proper inquiry in a single statute case is “what `unit of prosecution’ has the Legislature intended as the punishablе act under the specific criminal statute.” Adel, 136 Wash.2d at 634, 965 P.2d 1072 (citing Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955); State v. Mason, 31 Wash.App. 680, 685-87, 644 P.2d 710 (1982), superseded on other grounds as stated in State v. Elliott, 114 Wash.2d 6, 16, 785 P.2d 440 (1990)). “When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime.” Adel, 136 Wash.2d at 634, 965 P.2d 1072 (citations omitted). And, if the statute is ambiguous because the Legislature has failed to denote the unit of prosecution, “the ambiguity should be construed in favor of lenity.” Adel, 136 Wash.2d at 634-35, 965 P.2d 1072 (citing Bell, 349 U.S. at 84, 75 S.Ct. 620). Because Tili claims that his three convictions for rape in the first degree violate double jeopardy, this is a single statute case and the unit of prosecution analysis applies.
“The first step in the unit of prosecution inquiry is to analyze the criminal statute.” Adel, 136 Wash.2d at 635, 965 P.2d 1072. In Washingtоn, there are three degrees of rape, which are defined in
The language present in all three statutory provisions provides:
A person is guilty of rape ... when such person engages in sexual intercourse with another person ....
The relevant portion of
(1) “Sexual intercourse” (a) has its ordinary meaning and occurs upon any penetration, however slight, and
(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex ..., and
(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
(Emphasis added.) The State maintains the Legislature was very clear in stating that sexual intercourse was complete upon any penetration, however slight, of the vagina or anus, or upon any act of sexual contact between the sex organs of one person and the mouth or anus оf the other. Br. of Resp‘t at 16-17 (“predecessor statute to
In contrast, Tili argues the statute is ambiguous as to the proper unit of prosecution for rape. Tili asserts that this ambiguity must be resolved by “[t]he rule of lenity[,]... a well established rule of statutory construction which provides that any ambiguity in a criminal statute must be resolved in favor of the accused and against the state.” Br. of Appellant at 27. Tili argues that when the rule of lenity is properly applied to the present case, “it cannot be said that
The meaning of a plain and unambiguous statute must be derived from the wording of thе statute itself. See Paulson v. Pierce County, 99 Wash.2d 645, 650, 664 P.2d 1202 (1983). While a statute is ambiguous if it is susceptible to two or more reasonable interpretations, it is not ambiguous merely because different interpretations are conceivable. State v. Hahn, 83 Wash.App. 825, 831, 924 P.2d 392 (1996) (citing State v. Sunich, 76 Wash.App. 202, 206, 884 P.2d 1 (1994)). Without a threshold showing of ambiguity, the court derives a statute‘s meaning from the wording of the statute itself, and does not engage in statutory construction or consider the rule of lenity. Geschwind v. Flanagan, 121 Wash.2d 833, 840-41, 854 P.2d 1061 (1993); see also Paulson, 99 Wash.2d at 650, 664 P.2d 1202.
Tili fails to make a threshold showing that the statute is ambiguous. The unit of prosecution for rape is “sexual intercourse,” which the Legislature has defined as complete upon ”any penetration of the vagina or anus, however slight....”
Opposing a conclusion that sexual intercourse is complete upon any penetration, Tili refers to this court‘s recent opinion in State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998). In Adel, this court analyzed the possession of marijuana statute and concluded that the language “any person found guilty of possession of forty grams or less of marihuana shall be guilty of a misdemeanor” created one unit of prosecution based solely upon the quantity of drug found where the statute did not reference spatial or temporal aspects of possession. Adel, 136 Wash.2d at 635, 965 P.2d 1072 (quoting
Adel is easily distinguished from the instant case because the unit of prosecution in Adel was the possession of 40 grams or less of marijuana, and not an act of sexual intercourse. Nonetheless, Tili likens Adel‘s reasoning to the present case. Tili argues that if he can be charged and convicted for three counts of first-degree rape based on three separate penetrations, then a defendant could also be charged and convicted for every punch thrown in a fistfight without violating double jeopardy. Tili‘s argument, however, ignores key differences between the crimes of rape and assault. Unlike the rape statute, the assault statute does not define the specific unit of prosecution in terms of each physical act against a victim. Rather, the Legislature only defined “assault” as that occurring when an individual “assaults” another. See
Under the facts in this case, double jeopаrdy is not violated by Tili‘s conviction for three counts of first-degree rape. See Harrell v. Israel, 478 F.Supp. 752, 754 (E.D.Wis. 1979) (if the statute prohibits individual acts and not simply a course of conduct, then each offense is not continuous and several convictions do not violate double jeopardy). Tili committed three independent acts of rape. He penetrated L.M.‘s anus with his finger. He then used his finger to penetrate L.M.‘s vagina. Tili inserted his finger into these orifices separately, and not at the same time. After forcing L.M. to say she liked these violations, Tili then inserted his penis into her vagina. Each penetration in this case clearly constitutes an independent unit of prosecution. Each penetration was an independent violatiоn of the victim‘s personal integrity. As one Wisconsin court aptly stated:
Repeated acts of forcible sexual intercourse are not to be construed as a roll of thunder, an echo of a single sound rebounding until attenuated. One should not be allowed to take advantage of the fact that he has already committed one sexual assault on the victim and thereby be permitted to commit further assaults on the same person with no risk of further punishment for each assault committed.
Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462, 469 (1979). Tili was properly charged and convicted for three counts of first-degree rape. See People v. Harrison, 48 Cal.3d 321, 768 P.2d 1078, 1085-88, 256 Cal.Rptr. 401 (1989) (defendant convicted of three digital penetrations of the victim‘s vagina, even though offenses werе committed over a 7 to 10 minute period and the defendant‘s sole aim was to achieve sexual gratification); State v. Eisch, 96 Wis.2d 25, 291 N.W.2d 800, 806 (1980) (genital intercourse, anal intercourse, fellatio, and inserting a beer bottle into the victim‘s genitals, were not “so similar in nature that they merged one into the
Finally, relying on State v. Johnson, 92 Wash.2d 671, 676-77, 600 P.2d 1249 (1979), Tili claims the Legislature was mindful of the question of whether multiple punishments should be imposed for crimes incidental to a given offense. In Johnson, this court noted that the burglary anti-merger statute,
Tili‘s argument concerning the anti-merger statute fails to recognize the same criminal conduct sentencing statute, which requires multiple convictions to be treated as a single offense under certain circumstances.
Based on the above, we hold that the unit of prosecution for rape is “sexual intercourse” with another individual. Because sexual intercourse is definеd in
Second Issue: Did the trial court err when it concluded that Tili‘s three counts of rape in the first degree did not constitute the “same criminal conduct”5 for the purpose of sentencing under
Tili asserts that even if his three first-degree rape convictions do not violate double jeopardy, the trial court erred in concluding that these rape convictions were not part of the “same criminal conduct” as defined in
RCW 9.94A.400(1)(a) provides in part:[W]henever a person is to be sentenced for two or more current offenses, the sentence range for each current offenses shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the sаme criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions.... “Same criminal conduct,” as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim....
Accordingly, under subsection (a)(1), the offender score for each current conviction is determined by using all other current convictions as if they were prior convictions. The process is repeated in turn for each current conviсtion. The resulting offender score is used to determine the sentence range applicable for each conviction. Under this subsection, a sentence is then imposed for each current conviction, which are served concurrently unless an exceptional sentence is imposed. See David. Boerner, Sentencing in Washington §§ 5.8(a), 5.16 (1985).
[w]henever a person is convicted of two or more serious violent offenses, as defined in
RCW 9.94A.030 , arising from separate and distinct criminal conduct ....
(Emphasis added.) Thus, under subsection (1)(b), the sentences are served consecutively instead of concurrently as provided in subsection (1)(a). State v. Salamanca, 69 Wash.App. 817, 827-28, 851 P.2d 1242 (1993).
The State asserts that Tili‘s three first-degree rape convictions should be treated as “separate and distinct criminal conduct” pursuant to
Tili, on the other hand, argues
It is undisputed that Tili‘s three rape convictions are “serious violent offenses” under
Although the meaning of the unambiguous language is derived from the statutes actual language, State v. Smith, 117 Wash.2d 263, 270-71, 814 P.2d 652 (1991), the court may resort to various tools of statutory construction where the language is unclear. Everett Concrete Prods., Inc. v. Department of Labor & Indus., 109 Wash.2d 819, 822, 748 P.2d 1112 (1988) (citations omitted); see also Morris v. Blaker, 118 Wash.2d 133, 142-43, 821 P.2d 482 (1992).
As originally drafted, both subsections (1)(a) and (1)(b) left their respective terms undefined. In 1987, subsection (1)(a) was amended by Laws of 1987, section five, chapter 456, to include a definition of “same criminal conduct.” See State v. Farmer, 116 Wash.2d 414, 427, 805 P.2d 200, 13 A.L.R.5th 1070 (1991). However, a similar definition regarding “separate and distinct criminal conduct” was not similarly added at that time, or when subsection (1)(b) was revisited by thе Legislature in 1990. See State v. Wilson, 125 Wash.2d 212, 219-20 n. 2, 883 P.2d 320 (1994) (citing Laws of 1990, ch. 3, § 704).
Based on the absence of a clear statutory definition for “separate and distinct criminal conduct,” and in light of the legislative history and absence of sufficient guidance to the contrary, we look to the factors defining “same criminal conduct” to determine whether Tili‘s criminal conduct was not “separate and distinct.” See Weyerhaeuser Co. v. Tri, 117 Wash.2d 128, 133, 814 P.2d 629 (1991) (“[E]ach provision of a statute should be read in relation to the other provisions, and the statute should be construed as a whole.” (citation omitted)).
“A trial court‘s determination of what constitutes the same criminal conduct for purposes of calculating an offender score will not be reversed absent an abuse of discretion or misapplication of the law.” State v. Walden, 69 Wash.App. 183, 188, 847 P.2d 956 (1993) (citations omitted). In the present case, the trial court imposed consecutive sentences for Tili‘s three first-degree rape convictions after concluding that these rape convictions were not part of the “same criminal conduct” as defined in
For multiple crimes to be treated as the “same criminal conduct” at sentencing, the crimes must have (1) been committed at the same time and place; (2) involved the same victim; and (3) involved the same objective criminal intent. State v. Palmer, 95 Wash.App. 187, 190, 975 P.2d 1038 (1999) (citing
The relevant inquiry for the intent prong is to what extent did the criminal intent, when viewed objectively, change from one crime to the next. Palmer, 95 Wash. App. at 191, 975 P.2d 1038 (citing State v. Williams, 135 Wash.2d 365, 368, 957 P.2d 216 (1998)). The State relies on State v. Grantham, 84 Wash.App. 854, 932 P.2d 657 (1997), to support its argument that the three rapes involved three different criminal intents. Grantham, however, is factually distinguishable from the present case.
Grantham affirmed the trial court‘s finding that two rapes were not the “same criminal conduct” for sentencing purposes. Grantham, 84 Wash.App. at 860-61, 932 P.2d 657. The evidence in Grantham supported a conclusion that the criminal episode had ended with thе first rape: “Grantham, upon completing the act of forced anal intercourse, had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act.” Grantham, 84 Wash.App. at 859, 932 P.2d 657. After raping his victim, Grantham stood over her and threatened her not to tell. He then began to argue with and physically assault his victim in order to force her to
In contrast to the facts in Grantham, Tili‘s three penetrations of L.M. were continuous, uninterrupted, and committed within a much closer time frame-approximately twо minutes. This extremely short time frame, coupled with Tili‘s unchanging pattern of conduct, objectively viewed, renders it unlikely that Tili formed an independent criminal intent between each separate penetration. Grantham, therefore, is factually distinct. The present case, on the other hand, is more factually similar to State v. Walden, 69 Wash. App. 183, 847 P.2d 956.
In Walden, the defendant was convicted of rape involving fellatio, as well as attempted rape. Both occurred in short succession. Walden, 69 Wash.App. at 184-85, 188, 847 P.2d 956. In determining whether the two acts involved the “same criminal conduct” under
As in Walden, Tili‘s unchanging pattern of conduct, coupled with an extremely close time frame, strongly supports the conclusion that his criminal intent, objectively viewed, did not change from one penetration to the next. This conclusion is consistent with both Walden and Grantham. We hold that the trial court, having failed to articulate any other viable basis to find Tili‘s conduct “separate and distinct,” abused its discretion in failing to treat Tili‘s three first-degree rape convictions as one crime under
Third Issue: Was the double jeopardy clause or merger doctrine violated based on defendant‘s conviction of second-degree assault as well as first-degree rape?
Tili also argues that his conviction and sentences for first-degree rape and second-degree assault violate the constitutional prohibition against double jeopardy. Tili argues that under Washington State‘s “same evidence” test, these two crimes are the same in law and in fact. Traditionally, this court has applied the “same evidence” test to determine whether a defendant was improperly punished multiple times for the same criminal offense in violation of double jeopardy. The “same evidence” test, which “mirrors thе federal `same elements’ [test] adopted in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932),” provides that “double jeopardy is violated if a defendant is convicted of offenses which are the same in law and in fact.” State v. Adel, 136 Wash.2d 629, 632, 965 P.2d 1072 (1998) (citations omitted). According to Tili, “[i]t is unlikely that a person can commit rape in the first degree without committing assault given the fact that rape in the first degree requires forcible compulsion and one of the aggravating factors needed to elevate the rape to first[-]degree is to inflict serious physical injury.” Br. of Appellant at 38.
While the State concedes that the language used in the charging document causes Tili‘s second-degree assault conviction to merge with his first-degree rape conviction, the State argues that “when sentеncing on the burglary, both the assault and the rape may be separately punished because of the burglary antimerger statute.” Br. of Resp‘t at 45-46.7 To support this proposition, the State relies on State v. Collicott, 118 Wash.2d 649, 657-58, 827 P.2d 263 (1992).
Fourth Issue: Did the triаl judge instruct the jury without improperly commenting on the evidence?
Instructions satisfy the requirement of a fair trial when, taken as a whole, they properly inform the jury of the applicable law, are not misleading, and permit the defendant to argue his theory of the case. State v. Theroff, 95 Wash.2d 385, 389, 622 P.2d 1240 (1980). However, a trial court is forbidden from commenting on the evidence presented at trial.
Tili claims the trial court commented on the evidence when it gave instruction 10. While this instruction defined penetratiоn consistent with WPIC 45.01, the trial court added the following language:
The phrase “any penetration of the vagina or anus, however slight, by an object” does not necessarily mean an inanimate object and includes a finger.
CP at 50. According to Tili, there was a factual issue during the victim‘s testimony about whether it was defendant‘s finger or some other object that penetrated her anus or vagina,10 and by instructing the jury that the penetration of an object can include a finger, the trial court improperly implied to the jury its belief that the victim was penetrated by Defendant‘s finger. Br. of Appellant at 40. Tili‘s argument is without merit.
The trial court‘s addition to WPIC 45.01 in Instruction No. 10 was a correct statement of law. See State v. Cain, 28 Wash.App. 462, 464-65, 624 P.2d 732 (1981) (a finger is an “object” under
Tili also claims error in instructions 7, 8, and 9 because “each instruction exceeded what is required in WPIC 40.02 and
As with instruction 10, instructions 7, 8, and 9 do not indicate the trial court‘s opinion concerning evidence presented at trial. Rather, the description in the instructions of the type of sexual intercourse alleged in each count simply assured that the jury would consider each count distinctly. These instructions did not convey the trial judge‘s personal beliefs or attitudes to the jury. Defendant was unfettered in arguing the merits of the allegations. Consequently, we find the trial court also did not improperly comment on the evidence in instructions 7, 8, and 9.
CONCLUSION
Although Tili was properly convicted of three counts of first-degree rape, the trial court abused its discretion in failing to count Tili‘s rape convictions as part of the “same criminal conduct” and, therefore, as one crime for sentencing purposes. Because first-degree rape is the only “serious violent offense” for which Tili was convicted, he is properly sentenced under
In sentencing for the rape conviction, Tili‘s offender score should include his first-degree burglary conviction, which is subject to the burglary anti-merger statute. Tili‘s offender score for the rape conviction, however, should not include his second-degree assault conviction because the State concedes it merges with the rape conviction. Tili‘s current criminal history for his second-degree assault conviction should include the first-degree burglary conviction, but not the rape conviction. Additionally, Tili‘s current criminal history for the burglary conviction includes both the assault, as well as the three first-degree rape counts which, as noted above, are scored as one conviction because Tili‘s rape convictions are part of the “same criminal conduct.” This case is remanded for resentencing consistent herewith.
GUY, C.J., SMITH, JOHNSON, MADSEN, ALEXANDER, TALMADGE, and SANDERS, JJ., concur.
Notes
“Serious violent offense” is a subcategory of violent offense and means:
(a) Murder in the first degree, homicide by abuse, murder in the second degree, manslaughter in the first degree, assault in the first degree, kidnapping in the first degree, or rape in the first degree, assault of a child in the first degree, or an attempt, criminal solicitation, or criminal conspiracy to commit one of these felonies....
(Emphasis added.)