No. 34350-9-II.The Court of Appeals of Washington, Division Two.
July 24, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-03534-3, Rosanne Buckner, J., entered January 27, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater, J.; Quinn-Brintnall, J., concurring in the result only.
Van Deren, A.C.J.
A jury convicted Donald Betts of two counts of second degree rape and one count each of first degree burglary and fourth degree assault. Betts appeals, claiming that: (1) the prosecutor committed prejudicial misconduct during closing argument by attacking the witnesses’ credibility; (2) the trial court erred in denying his motion to strike the jury panel and in admitting his out-of-court statement; (3) he is entitled to a new trial under the cumulative error doctrine; and (4) the trial court erroneously sentenced him to life without the possibility of parole under the Persistent Offender Accountability Act (POAA)[1]
because it found a prior Colorado conviction comparable to attempted second degree rape in Washington. Because attempted first degree sexual assault in Colorado and attempted second degree rape in Washington are not comparable, we affirm Betts’ convictions but remand for resentencing within the standard range.
FACTS[2]
Donald Betts was arrested on June 6, 2004, and charged with rape, burglary and assault on Heather Burns. Burns and Betts were acquaintances who met each other at the home of Burns’ close friend and neighbor, Michael Smith, approximately one year before the attack occurred. At the time they met, Betts lived next door to Smith, but he and his family moved away a short time later.
Burns first noticed Betts back in the neighborhood in May 2004, when he pulled into her driveway, honked his horn to attract her attention, and asked her whether she knew if Smith was at home. Two or three days later, Betts again pulled into her driveway and asked if she “wanted a boyfriend” and if she “wanted to go to lunch.” Report of Proceedings (RP) (Nov. 9, 2005) at 307. Burns declined.
Over the following week, Betts repeatedly pulled into Burns’ driveway and honked. Burns went outside when Betts honked, but she never invited him into her house. She felt that “it was kind of weird” that he continued to come by.[3] RP (Nov. 9, 2005) at 308. At one point, however, Burns gave Betts her telephone number, thinking he would stop coming by her house so often if he had her number. Later, when she saw that he had called her twelve times, Burns blocked Betts’ telephone number so that he could not get through on her telephone.
On Saturday, June 5, Betts walked across the street from Smith’s home while Burns was in her front yard. He was upset that Burns had blocked his calls and told her that “nobody disrespects him that way.” RP (Nov. 9, 2005) at 312. Betts then asked her what she was doing that night. Burns lied and told him that she was going to Seattle for the evening when she actually went to a local bar with her cousins.
Burns testified that, at the bar, she had four rum and coke drinks over the course of five hours and had “a little bit of a buzz.” RP (Nov. 9, 2005) at 315. After one of her cousins dropped her off at her home, Mandy Joyner, Smith’s girlfriend, invited her to Smith’s house. When Burns entered Smith’s house around 1:30 to 2:00 am, Betts was there. Seeing Betts, Burns immediately asked Joyner to walk her back to her home.
Two or three minutes after Burns returned to her home with Joyner, Betts and Smith came over. When Burns, Betts, and Smith were standing in the kitchen, Burns asked Betts to leave. Betts “back-handed” her on her face, RP (Nov. 9, 2005) at 320, telling her that “no bitch disrespects him like that.” RP (Nov. 9, 2005) at 321. She fell to the floor from the blow. Burns then asked Smith to get Betts out of her home and Betts started chasing Burns around the kitchen table. Smith finally managed to get Betts out of Burns’ home. Joyner came into the house; Burns was crying but was able to explain what happened.
Terry Chase, a neighbor, came to Burns’ home when she heard Betts say that “[he] had just knocked this bitch out.” RP (Nov. 14, 2005) at 432. Chase testified that Burns was hysterical and that “[h]er face was really red” and “had a hand print on the left side.” RP (Nov. 14, 2005) at 433. Smith also testified that he saw marks on the right side of Burns’ face after Betts hit her. Ten minutes later, Betts returned and knocked on Burns’ door. Burns telephoned Joyner and asked her to come back over. Betts told Joyner that he hit Burns because she “disrespected him.” RP (Nov. 9, 2005) at 326. Betts left with Joyner, but returned 10 to 15 minutes later and again pounded on the door.
Burns testified that she did not call the police because Betts had said earlier that “nobody calls the cops on him” and because she “wasn’t going to let him back in.” RP (Nov. 9, 2005) at 329. She opened the front door, but kept her screen door shut. Betts told her that he wanted to apologize for hitting her. When she told him to leave, he asked to shake her hand. She said no, but he kept saying that he would leave if she would shake his hand. She eventually unlocked her screen door and opened it enough to get her hand out. He then pulled the door open and came into her home.
Once inside, he said he wanted to have sex with her. She refused, but he told her that “[she could] either give it to him willingly or he was going to take it.” RP (Nov. 9, 2005) at 332. She retreated to her kitchen because she hoped to escape through a small garage door connected to the kitchen, but he followed her and told her to take her pants off. When she refused, he forcibly pulled her pants down and removed her shirt. Bending her over the kitchen counter, he grabbed her arms from behind and penetrated her vagina with his penis for about ten minutes. Afterwards, he threatened to hit her again and then told her to take him to her bedroom. Instead she took him to a spare bedroom where he told her to get on top of him. He penetrated her vagina for about five minutes.
Burns told Betts that she had to use the bathroom and, after putting on her pajamas in the bathroom, she came out and told him that she wanted a cigarette. He told her to make it quick because he was not done with her. She smoked a cigarette outside her backdoor with Betts standing naked right inside the door as “[i]t was starting to get light outside.” RP (Nov. 9, 2005) at 348.
When Betts told Burns to get back in the house, she replied that “you are not going to do this to me anymore.” RP (Nov. 9, 2005) at 348. She then ran through her backyard and climbed over a metal cyclone fence. She snagged herself on the fence, but was able to run to the home of Stanley Lehman, three or four houses away. Lehman testified that she was “[s]cared, shaking, near tears” when he opened the door for her. RP (Nov. 14, 2005) at 464. From there, she called 911 and then called her mother.
When Smith saw Betts’ car parked in Burns’ driveway, he became concerned and was preparing to go to her house when he saw Betts’ car “come? flying down the road.” RP (Nov. 15, 2005) at 624. Smith went to Burns’ home to check on her and found the door open and the house empty. Twenty minutes later, Betts telephoned Smith and told him that Burns was asleep, that he had had sex with her, and that he stole $200 from her. Smith told Betts that there were police cars on the road; Betts asked him to not reveal where he lived. When Burns returned to her home, she noticed that her wallet was outside her purse and that $60 was missing from it.
Her mother took her to Tacoma General Hospital. Dr. Kevin Callahan, who examined her, testified that he saw no swelling or bruising on her face, acknowledging that his observations were not “necessarily inconsistent with the history [he] obtained from [her].” RP (Nov. 15, 2007) at 518. Patsy Pitts, the nurse who performed a sexual assault examination on Burns, testified that she saw discoloration on Burns’ right jaw.
Deputy Sheriff Mark Fry took Betts into custody the same day. AlthoughBetts denied hitting or raping Burns, or stealing money, he admitted that he had sex with her and asserted that it was consensual. The State charged Betts with two counts of second degree rape (counts I and II) and one count each of first degree burglary (count III), third degree theft (count IV), and fourth degree assault (count V). The information was later amended to increase count IV to second degree robbery. The trial court conducted a Criminal Rule (CrR) 3.5 hearing and found that “the statements made by [Betts] on June 6?, 2004, are admissible into evidence.” RP (Nov. 7, 2005) at 50.
During trial, when Fry testified that Betts had “claimed to have a prior sexual relationship with [Burns],” the State asked, “Did you ask [Betts] if he was aware of why ? Burns might be making [the] allegation [in this case]?” RP (Nov. 15, 2005) at 560. Betts objected to this question, but the trial court overruled the objection, stating, “The question as to why she would make the statement involves the alleged victim herself and direct contact between the two of them. That would be appropriate.” RP (Nov. 15, 2005) at 563. The following questioning ensued:
[Fry]: He claimed that there was another individual that had been bugging her and maybe that was why. [The State]: Did he say who that individual was and the age of the individual? [Fry]: A white male named Terry, about 19.RP (Nov. 15, 2005) at 566.
Burns did not testify about any visitors while Betts was at her home, but Joshua Smith,[4] one of Betts’ witnesses, testified that he went over to Burns’ home on the night of the incident. There, he saw Burns “in the background” when Betts opened the door. RP (Nov. 16, 2007) at 717. According to Joshua, Burns did not say anything. He talked with Betts for a minute, then returned to Smith’s house.
A jury found Betts guilty of two counts of second degree rape (counts I and II) and one count each of first degree burglary (count III) and fourth degree assault (count V), and it found him not guilty of second degree robbery or the lesser included crime of third degree theft (count IV).
The trial court sentenced Betts to life without the possibility of parole on counts I and II, 89 months on count III, and 365 days on count V. It imposed a sentence of life without the possibility of parole on his two rape counts because his “prior conviction for attempted sexual assault first degree in Colorado is comparable to attempted rape second degree in the State of Washington.”[5] RP (Jan. 27, 2006) at 892-93. Betts appeals.
ANALYSIS
I. Prosecutorial Misconduct/Ineffective Assistance of Counsel
Betts contends that the prosecutor, in his closing argument, committed prejudicial misconduct by “tell[ing] the jury it had to find that ? Burns and all of the friends who testified were lying and indeed perjuring themselves in order to acquit.” Br. of Appellant at 18. He also asserts that it was prejudicial misconduct for the prosecutor to emotionally appeal to the jury by “exhorting the jury to have the `courage and strength and the fortitude’ to find ? Betts guilty, and telling them that failing to convict if they were convinced he was guilty was `allowing him to steal’ not just money from ? Burns but also `justice to the community as well.'” Br. of Appellant at 26 (quoting RP (Nov. 17, 2005) at 848).
To establish prosecutorial misconduct, Betts must show “that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record.” State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681
(2003). A prosecutor commits error in closing argument if it is clear and unmistakable that “he is not arguing an inference from the evidence, but is expressing a personal opinion.” State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983). We view the allegedly improper statements “within the context of the prosecutor’s entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions.” State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). And “[a] defendant’s failure to object to a prosecutor’s improper remark constitutes a waiver of such error, unless the remark is deemed so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have neutralized by an admonition to the jury.” State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).
A prosecutor may not argue that “in order to acquit a defendant, the jury must find that the State’s witnesses are either lying or mistaken.”State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). I Fleming, a second degree rape trial, the prosecution stated in closing argument: “for you to find the defendants . . . not guilty of the crime of rape . . . you would have to find either that [the victim] has lied about what occurred . . . or that she was confused; essentially that she fantasized what occurred.” Fleming, 83 Wn. App. at 213 (emphasis omitted). Division One of this court held that the prosecution’s argument constituted flagrant and ill-intentioned misconduct because two years earlier the court had held such arguments improper in State v. Casteneda-Perez, 61 Wn. App. 354, 810 P.2d 74 (1991). Fleming, 83 Wn. App. at 213-14.
But a prosecutor may properly draw inferences “from the evidence as to why the jury would want to believe one witness over another.” State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995); see also State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). Furthermore, “where a jury must necessarily resolve a conflict in witness testimony to reach a verdict, a prosecutor may properly argue that, in order to believe a defendant, the jury must find that the State’s witnesses are mistaken.”State v. Wright, 76 Wn. App. 811, 826, 888 P.2d 1214 (1995) (emphasis omitted).
Here, the prosecutor’s argument was intended to help the jury determine the credibility of the witnesses because Betts’ sole defense to the rape charges was that he had consensual sex with Burns. The prosecutor argued that “[Burns] has no reason to lie about being raped by this defendant” and that she was telling the truth about the incidents that happened. RP (Nov. 17, 2005) at 797. The prosecutor stated:
When you begin your deliberations, you will see that the light of truth has cast away the shadows of the presumption of innocence, and what you will be left with hopefully is a picture of the real truth. And that truth is that this defendant is guilty. What I’m going to ask you to do is to have the courage and strength and the fortitude to look this defendant in the eye and tell him he is guilty.
RP (Nov. 17, 2005) at 816-17. Also, in his rebuttal closing, the prosecutor made the following argument: “If her friends are going to come in and perjure themselves, get their stories straight, conspire, there are a lot of details that they have to get. They have to get together. They have to keep them straight. And I submit to you they would come up with more information than they have provided.” RP (Nov. 17, 2005) at 843.
In making his initial closing argument, the prosecutor did no more than discuss why the witnesses were credible based on the evidence and argue that the jury would have to examine the testimony to determine whether Betts was guilty. With regard to the prosecutor’s rebuttal arguments, they were made to rebut Betts’ closing arguments of why “there [is] reason to doubt Heather Burns” and his attack on Burns’ friends’ credibility. RP (Nov. 17, 2005) at 824.
A prosecuting attorney’s remarks, even if they are improper, are not grounds for reversal if they were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective.
State v. Gentry, 125 Wn.2d 570, 643-44, 888 P.2d 1105 (1995).
Even if we assume that the prosecutor suggested that Burns’ defense could be reasonably credible only if the State’s witnesses were lying or mistaken, the focus of the prosecutor’s arguments was on witness credibility. That is, the prosecutor merely drew inferences from the evidence about why the jury should find the witnesses’ testimony truthful. See State v. Fiallo-Lopez, 78 Wn. App. 717, 729-31, 899 P.2d 1294 (1995) (not misconduct for the prosecutor to argue that facts support the conclusion that the State’s witnesses were being truthful).
Because Betts attacked the credibility of the witnesses and because the prosecutor’s responses to his attack were not so flagrant or ill-intentioned as to constitute a miscarriage of justice, the prosecutor’s rebuttal arguments about the credibility of the witnesses are not grounds for reversal. As for the prosecutor’s exhortation to the jury to convict, which was perhaps somewhat emotional, the exhortation focuses on convicting Betts only if the jurors were convinced that he was guilty. This is not an improper argument and, thus, the prosecutor’s closing arguments are not grounds for reversal. Betts’ prosecutorial misconduct argument fails.
Alternatively, Betts claims that his counsel was ineffective because his counsel failed to object to the prosecutor’s arguments. To establish ineffective assistance of counsel, Betts must show that his counsel’s performance was deficient and this deficient performance prejudiced him State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel’s performance “[falls] below an objective standard of reasonableness.” State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). There is a strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Because the prosecutor’s closing arguments were not improper, Betts fails to prove that his counsel was deficient. Thus, he fails to overcome the strong presumption of his counsel’s effectiveness.
II. Motion to Strike the Jury Panel
Betts next contends that the trial court violated his due process rights because it “refused to dismiss the jury panel after the lead investigator, a witness in the case, actively participated in selecting the very jury which would be evaluating not only his credibility but the investigation he led.” Br. of Appellant at 27. He asserts that “it was so clearly a violation of ? Betts’ due process rights, fundamental fairness, and mandates against prosecutorial bolstering of witnesses.” Br. of Appellant at 30. The issue, therefore, is whether the detective’s involvement in the selection of jurors deprived Betts of due process.
This is an issue of first impression in Washington, although federal courts have considered the issue under the similar Federal Rule of Evidence (FRE) 615. Our Evidence Rule (ER) 615 provides:[6]
At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be reasonably necessary to the presentation of the party’s cause.
“Questions concerning the exclusion of witnesses and the violation of that rule are within the broad discretion of the trial court and will not be disturbed, absent manifest abuse of discretion.” State v. Schapiro, 28 Wn. App. 860, 867, 626 P.2d 546 (1981). “[T]he court’s decision will not be overturned unless the defendant can show that he has been prejudiced by an abuse of discretion.” State v. Adams, 76 Wn.2d 650, 659, 458 P.2d 558 (1969), reversed on other grounds, Adams v. Washington, 403 U.S. 947, 91 S. Ct. 2273, 29 L. Ed. 2d 855 (1971).
Similarly, in United States v. Cueto, the United States Court of Appeals for the Fifth Circuit stated:
In proceedings such as these, a Government’s case agent fits the rule 615(2) exception for a party’s representative. Although the Government should properly have designated Cavanaugh as the Government’s representative at the time the defendant moved to sequester witnesses, we cannot overturn a conviction because of a rule 615 violation unless the objecting party demonstrates substantial prejudice. Cueto has made no showing of prejudice. The two witnesses who preceded Cavanaugh to the stand were the bank teller and the Boynton Beach police officer who discovered the abandoned Volare behind the Pizza Hut restaurant. Both of these witnesses testified about events occurring before Cavanaugh came onto the scene and about which Cavanaugh gave no testimony. Cavanaugh’s exposure to their testimony resulted in no prejudice to Cueto. For this reason, Cueto’s claim of error must fail.
611 F.2d 1056, 1061 (5th Cir. 1980) (citations omitted).
Here, relying on ER 615 and Cueto, the trial court denied Betts’ motion to strike the panel, ruling, “Rule 615 excludes witnesses at the request of the parties except for a representative of a party which is not a natural person. . . . [W]e have case law from the Federal Fifth Circuit which says that the rules would allow for the inclusion of investigative agents designated to assist the prosecution.” RP (Nov. 9, 2005) at 278.
Relying heavily on Anderson v. Frey, 715 F.2d 1304 (8th Cir. 1983), Betts asserts that “[o]ther courts have recognized the inherent prejudice caused by permitting a witness to select jurors which will be evaluating him or others from his office, as well as the serious risk of bias such association with the prosecution will cause.” Br. of Appellant at 31. Th Anderson court held:
The fact that the sheriff may have limited the exercise of discretion by the selecting officials by specifying neutral and objective selection criteria, such as residency and availability, does not address the constitutional defect at issue: the selection of bystander jurors by an interested official or his or her subordinates or professional associates. It is the participation of an interested official in the juror selection process that is fundamentally unfair. . . . We are concerned with the integrity and fairness of the method used to select the bystander jurors.
715 F.2d at 1309 (footnote omitted.) But Anderson is distinguishable because, there, a law enforcement agent, a sheriff, was “in charge of or supervise[d] the selection of bystander jurors upon order of the county circuit court.” 715 F.2d at 1306. The sheriff “would contact the deputy sheriff’s and city marshals by radio and direct them to select a certain number of persons for jury service.” Anderson, 715 F.2d at 1306. The deputy sheriff’s and city marshals then “selected bystander jurors within [the sheriff’s] general guidelines.” Anderson, 715 F.2d at 1306. Unlike in Anderson, here, the prosecutor merely consulted with the detective during jury selection. Thus, Betts’ reliance on Anderson is misplaced. Because Betts fails to show prejudice, the trial court properly denied his motion to strike the jury panel. His argument fails.
III. Admission of Out-of-Court Statement
Betts also contends that the trial court erred in admitting his statement made during police interrogation about why he thought that Burns might be making up the rape allegation. He asserts that his out-of-court statement was “irrelevant, highly prejudicial evidence.” Br. of Appellant at 34.
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401. Even “relevant? evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice.” ER 403; State v. Norlin, 134 Wn.2d 570, 583-84, 951 P.2d 1131 (1998). We accord a trial court’s determination of relevance a great deal of deference and will overturn it only for a manifest abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001).
Here, when the State asked Detective Fry “if [Betts] was aware of why ? Burns might be making this allegation,” RP (Nov. 15, 2005) at 560, the trial court allowed Fry to reply: “He claimed that there was another individual that had been bugging her and maybe that was why.” RP (Nov. 15, 2005) at 566. Fry then added that Betts believed the other individual was “[a] white male named Terry, about 19.” RP (Nov. 15, 2005) at 566.
Betts asserts that “it [was] entirely improper for the [S]tate to ask a defendant, at trial, whether a victim was `making up’ their claim or why a victim would be doing so.” Br. of Appellant at 34 (citation omitted). But Betts mistakes the facts. The trial court admitted the statement Betts made when he was arrested. The State did not question him about Burns’ motive to fabricate this claim during trial. Thus, Betts’ reliance on authority for this purpose is misplaced. Moreover, the statement may be relevant in demonstrating the relationship between Betts and Burns. The trial court did not abuse its discretion in allowing Fry to answer the State’s question.
IV. Cumulative Error
Betts also argues that the cumulative effect of the trial court’s errors deprived him of his right to a fair trial under both the state[7]
and the federal constitutions.[8] Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors, even though individually not reversible errors, cumulatively produced a trial that was fundamentally unfair. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390
(2000); In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835
(1994). The defendant bears the burden of proving an accumulation of errors that would make a retrial necessary. Lord, 123 Wn.2d at 332.
Here, Betts fails to prove an accumulation of trial errors that could, taken together, mandate reversal. Thus, he is not entitled to a new trial under the cumulative error doctrine.
V. Sentencing
Finally, Betts contends that the trial court erred in sentencing him to life without the possibility of parole under the POAA because his Colorado conviction for attempted first degree sexual assault is not comparable to attempted second degree rape in Washington. Betts argues that the crimes are not comparable because Colorado’s attempt statute: (1) allowed for an omission to constitute a substantial step, while Washington’s did not, and (2) required the same state of mind as the underlying crime while Washington’s did not. While we disagree with Betts that Colorado’s substantial step requirements were broader than ours, we hold that his Colorado conviction for attempted first degree sexual assault is not comparable to attempted second degree rape in Washington.
“An offender who has been convicted of two strike offenses must be sentenced to life without parole upon conviction for a third such offense. . . . Foreign convictions count as strikes if they are comparable to a Washington strike offense.” In the Matter of the Personal Restraint of Lavery, 154 Wn.2d 249, 254, 111 P.3d 837 (2005) (citations omitted). In order “[t]o classify an out-of-state conviction according to Washington law, the sentencing court must compare the elements of the out-of-state offense with the elements of comparable Washington offenses” in effect at the time of the out-of-state crime. State v. Jackson, 129 Wn. App. 95, 104, 117 P.3d 1182 (2005), review denied, 156 Wn.2d 1029 (2006). If the out-of-state statute defined the offense more broadly than the Washington statute, the trial court can review the record of the out-of-state conviction to determine whether the defendant’s conduct would have satisfied the comparable Washington statute. Lavery, 154 Wn.2d at 255; Jackson, 129 Wn. App. at 104-05. However, “[a]ny attempt to examine the underlying facts of a foreign conviction, facts that were neither admitted or stipulated to, nor proved to the finder of fact beyond a reasonable doubt in the foreign conviction” can prove problematic. Lavery, 154 Wn.2d at 258.
A. Substantial Step
Betts contends that attempted first degree sexual assault in Colorado was not comparable to attempted second degree rape in Washington because the Colorado attempt statute employed a broader standard for a substantial step. The applicable Washington and Colorado criminal attempt statutes employed the following language:
Specifically, Betts asserts that the Washington attempt statute “did not provide liability for an `attempt’ based upon conduct” that was an `”omission,'” Br. of Appellant at 46, whereas the Colorado attempt statute did. We disagree.
In Washington, case law defined “substantial step” for purposes of criminal attempt. Washington required that, in order for conduct to constitute a substantial step, it must have been an overt act that is “strongly corroborative of the actor’s criminal purpose.” State v. Smith, 115 Wn.2d 775, 782, 801 P.2d 975 (1990). In State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), superseded by statute on other grounds by State v. Adlington-Kelly, 95 Wn.2d 917, 631 P.2d 954 (1981), the Washington Supreme Court stated that “[w]e find it appropriate to adopt the Model Penal Code approach to the definition of a substantial step.”Workman, 90 Wn.2d at 452. In doing so, the Court noted the Model Penal Code Section 5.01, which contemplates an omission as “constituting a substantial step.” Workman, at 451, 584 P.2d 382 (quoting Model Penal Code § 5.01(1)(c) (Proposed Official Draft, 1962)). Therefore, so long as a purposeful omission was an overt act strongly corroborative of a criminal purpose, it would constitute a substantial step for purposes of criminal intent in Washington. Thus, Betts’ assertion that Colorado’s attempt statute was broader than Washington’s is without merit.
B. Intentionally versus Knowingly
Betts also asserts that “the Colorado attempted first degree sexual assault did not require proof that the defendant had the specific [intent] . . . as was required for Washington’s attempted second?degree rape.” Br. of Appellant at 50. Betts’ assertions about specific versus general intent are correct. The definition of attempted first degree sexual assault in Colorado was broader than attempted second degree rape in Washington because the former required only general intent, whereas the latter required specific intent.
The applicable Washington and Colorado statutes employed the following language:
In Washington, to be found guilty of an attempt to commit a crime, the defendant must have the specific intent to commit a crime. Former RCW 9A.28.020. In contrast, the Colorado Supreme Court held in Palmer v. People,
If the underlying offense is a specific intent crime, then the culpable mental state for the crime of attempt will be “intentionally;” if the underlying offense is a general intent crime, then the culpable mental state will be “knowingly.” See People v. Krovarz, 697 P.2d 378, 381
(Colo. 1985). Thus . . . punishment for attempt “is not confined to actors whose conscious purpose is to perform the proscribed acts or to achieve the proscribed results.” Krovarz, 697 P.2d at 381. Instead, it is enough that the accused knowingly engages in the risk producing conduct that could lead to the result. It is possible to be convicted of attempt without the specific intent to obtain the forbidden result.
964 P.2d 524, 527-28 (Colo. 1998).[9] The culpable mental state for the underlying crime — first degree sexual assault — was “knowingly.” Former Colo. Rev. Stat. 18-3-402 (1985). Therefore, in Colorado, this mental state was also required for attempted first degree sexual assault. People v. Vigil, 43 Colo. App. 121, 122, 602 P.2d 884, 885 (1979). But in Washington, “[a]ttempted rape requires the specific intent to rape.”State v. Geer, 13 Wn. App. 71, 74 n. 1, 533 P.2d 389 (1975). Thus, it is clear that this conviction from Colorado is not comparable to second degree attempted rape in Washington because knowingly committing conduct that is a substantial step toward the commission of a rape was not comparable to intentionally taking a substantial step toward the commission of a rape as was required in Washington. In other words, behavior that constitutes attempted first degree sexual assault in Colorado may not have created culpability or constituted attempted second degree rape in Washington. The trial court erred in finding that Betts’ Colorado conviction was comparable for purposes of applying the POAA in sentencing him. Accordingly, the trial court improperly sentenced him as a persistent offender.[10]
We affirm his conviction but vacate his sentence and remand for resentencing.
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.
Van Deren, A.C.J. I concur:
I concur:
Bridgewater, J., I concur in the results only:
Quinn-Brintnall, J.
In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases.
and Smith, both of which held that the trial court can decide whether the prior convictions exist. Smith, 150 Wn.2d at 143, Wheeler, 145 Wn.2d at 121.