STATE v. LINDMARK, 28578-9-II (Wash.App. 9-9-2003)

No. 28578-9-II.The Court of Appeals of Washington, Division Two.
Filed: September 9, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Mason County. Docket No: 01-1-00048-9. Judgment or order under review. Date filed: 03/21/2002.

Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, P.O. Box 7269, Tacoma, WA 98406-0269.

Counsel for Respondent(s), Carol L. Case, Mason Co Pros Office, P.O. Box 639, Shelton, WA 98584-0639.

HUNT, C.J.

John A. Lindmark appeals his convictions for first degree child molestation, attempted child molestation, second degree rape, and first degree child rape. He argues that (1) the evidence is insufficient for six of the child molestations; (2) the court improperly imposed an exceptional life sentence; (3) he was denied a prompt arraignment; and (4) his trial counsel was ineffective. The State concedes error as to the exceptional sentence. Finding no other error, we affirm the convictions and remand for resentencing.

FACTS I. Mason County Molestations
On several occasions, Lindmark videotape recorded himself slowly undressing sleeping boys, stroking various parts of their bodies, fellating them, and masturbating. Some of the boys were identified; others were not.

The boy shown in the stipulated `representative’ sample, Exhibit 1, supports the trial court’s finding that the unidentified boys in the challenged molestation counts were less than 12 years old.

II. Arraignment
On or about February 1, 2001,[1] the Mason County Prosecutor charged Lindmark with ten counts of first degree child molestation, four counts of attempted child molestation, two counts of second degree rape, and one count of first degree child rape.[2] At that time, Lindmark was in Thurston County’s custody on similar charges from Thurston and Lewis Counties.

Lindmark contends that on April 6, 2001, he wrote a letter to the Mason County Courthouse requesting that he be transported from Thurston County to face the Mason County charges.[3] The court forwarded Lindmark’s request to the Mason County Prosecutor’s Office, but the prosecutor did not prepare a transport order.

On May 11, 2001, Lindmark pleaded guilty to the Lewis County charges. On May 15, 2001, he pleaded guilty to the Thurston County charges.

On May 16, 2001, Lindmark was arraigned on the Mason County charges. He moved to dismiss the Mason County charges, arguing that (1) his arraignment was untimely because the State had ignored his request to transport him to Mason County to face the charges at an earlier time; and (2) the State had breached its duties of good faith and due diligence to arraign him in a timely manner. The trial court denied the motion.

III. Plea and Bench Trial
On January 25, 2002,[4] Lindmark pleaded guilty to three of the molestation charges, one second degree rape charge, and one attempted molestation charge in Mason County. He waived his right to a jury on the other charges, and he agreed that the bench trial would consist of a `reading of the record’:

MR. SCHUETZ: There is a stipulation that Detective Pfitzer . . . can recite into the record the facts supporting the balance of the charges in the Amended Information, and for purposes of illustrative example of the supporting documentation vis-a-vis the video tapes that are now marked as Exhibits, will be showing the court the one scene relative to Count Two as a representative example of what the balance of the tapes show as far as touching and molestation as opposed to Rape, and he will also make a record of, through his notes, what the balance of the counts are supported by on the video tapes.
THE COURT: Mr. Sergi?
MR. SERGI: Your Honor, that’s correct. In discussing this case with Mr. Lindmark, we went from jury trial to bench trial to a reading of the record, and I explained to him that this is — will work, and this is for the record as well. This is kind of a hybrid proceeding we are having today because normally it is on paper and a judge makes a finding and the defendant is not present, but because Detective Pfitzer is going to be testifying about evidence, the court was more comfortable with Mr. Lindmark being here.
And I explained to {Lindmark} that it was a stipulated proceeding, that we wouldn’t be objecting, and that the court would make findings based on the evidence presented in the remaining counts.

Report of Proceedings (RP) at 65-66.

The trial court confirmed that Mr. Lindmark understood and agreed to this arrangement:

THE COURT: Now it is being suggested that instead of having a trial in which witnesses would come to testify and you could hear what they had to say, and Mr. Sergi could ask them questions. You could bring in witnesses also to testify and you could testify also, but instead your trial be pared down again to what is called a reading of the record. And that the court listen to a presentation of what the record shows, or reflects, but without any input from your attorney or yourself in terms of calling witnesses. And normally that is done in order to preserve issues that you want to take on to the Court of Appeals that have already occurred, motions that have been ruled on, and you have not been successful on so that you are able to preserve those for a later day of argument at the Court of Appeals.
First of all, is it your request that we have a reading of the record rather than a trial?
MR. LINDMARK: Ah, it is, Your Honor.

RP at 66-67. Lindmark then confirmed that he would be able to preserve his pretrial issues for appeal but would not `be able to have any input’ in this proceeding.

Next, lead investigator Detective Pfitzer recounted the content of all the videotapes specific to the charges at issue. The State offered into evidence the videotapes and three still photos extracted from them.[5]
The State then played an excerpt of the videotapes for the court and submitted Detective Pfitzer’s written summary of the tapes into evidence. The defense offered no evidence. Nor did Lindmark challenge the sufficiency of the evidence, not even with respect to the victims’ ages. The trial court found Lindmark guilty as charged.

III. Exceptional Sentence
At sentencing, the State requested a sentence of life in prison on all charges, noting that if offender scoring could continue above nine, Lindmark would have an offender score of 60. The State argued that Lindmark’s large number of victims, grooming, position of trust as a `foster parent,’ and ongoing pattern of sexual abuse of the same and multiple victims over a prolonged time justified an exceptional sentence of life.

The trial court expressed concern about the indeterminacy of a `life’ sentence:

THE COURT: While the maximum possible penalty for these types of crimes is life in prison, do you have any concern about the fact that we are working under the SRA which is a determinate sentencing situation, and I don’t know that life in prison is actually a determinate sentence the way that that phrase is used.
MR. SCHUETZ: My view is that when you can go above the range and impose an exceptional sentence for purposes of the . . . and there are aggravating factors that justify an exceptional sentence, then life has to be necessarily a potential determinate sentence in that it is the maximum range possible.

RP at 115-16. The trial court then imposed a life sentence for the reasons the State argued.

Lindmark appeals. The State now concedes that the life sentence was improper and agrees that the case should be remanded for resentencing.

ANALYSIS I. Timeliness of Arraignment
Lindmark argues that he was untimely arraigned because 115 days elapsed between the filing of the information and his arraignment in Mason County, despite his written request for transport from Thurston County to face the Mason County charges. The State contends that: (1) CrR 3.3(g)(2) excludes the time that Lindmark was incarcerated outside Mason County awaiting resolution of other charges pending in Thurston and Lewis Counties; and (2) it was not required to arraign Lindmark in Mason County before the other counties’ proceedings were resolved. We agree.

A. CrR 3.3
Generally, a defendant must be arraigned on new charges within 14 days of the information filing or his first appearance, depending on whether he is detained in jail on the same charges. CrR 3.3(c)(1); State v. Huffmeyer, 145 Wn.2d 52, 56-57, 32 P.3d 996 (2001). But the time during which a defendant is incarcerated for `{p}reliminary proceedings and trial on another charge’ are `excluded in computing the time for arraignment’ on the new charges. CrR 3.3(g); (g)(2).[6] Taking into account such exclusions, Mason County timely arraigned Lindmark.

When Mason County filed its information on February 1, 2001, Lindmark was in Thurston County custody, awaiting trial on similar charges from Thurston and Lewis Counties. Those other proceedings concluded when Lindmark pleaded guilty in Lewis County on May 11, 2001, and in Thurston County on May 15, 2001.

Mason County arraigned Lindmark on the new Mason County charges on May 16, 2001. Because when computing the time for arraignment, we exclude the period that Lindmark was incarcerated in Thurston County on other charges, CrR 3.3(g)(2), Lindmark was timely arraigned on his Mason County charges, only one day after his May 15 Thurston County plea. Thus, there was no CrR 3.3 violation.

B. `Good Faith and Due Diligence’
Lindmark also argues that the State’s duty of `good faith and due diligence’ required the State to arraign him on the Mason County charges when it received his request for transportation to Mason County, even though the Thurston and Lewis County charges were still pending. To support this argument, Lindmark cites dicta from State v. Anderson, 121 Wn.2d 852, 859, 855 P.2d 671 (1993), which references State v. Pacheco, 107 Wn.2d 59, 64-65, 726 P.2d 981 (1986).

But Pacheco does not mention CrR 3.3(g)(2) in its timely-arraignment analysis, perhaps because that rule was not in issue where `Pacheco was arraigned 2 days after the information was filed.’ Pacheco, 107 Wn.2d at 64.[7] Nor do we find Lindmark’s other citations persuasive. Rather, we agree with the trial court’s explanation that, although the due diligence requirement has been imposed in CrR 3.3(g)(6) situations where the defendant has been incarcerated out-of-state or in federal prison, the due diligence requirement does not extend to CrR 3.3(g)(2) situations where the defendant has been incarcerated in-state for charges pending in other counties:

A person that is simply being held and is . . . serving out time in a Federal institution or an out-of-state institution, or any other place, for that matter, is not going to be being required in multiple courts at a single period of time.
On the other hand, if you have multiple jurisdictions that are attempting to, in fact, try an individual who is accused of criminal act, you then have multiple attorneys, multiple judges, multiple investigators, all pulling and tugging on the same individual.

RP at 30.

In such cases, there is a clear public interest in judicial economy and in avoiding: (1) multiple discoveries, investigations, and court appearances in multiple counties simultaneously; (2) inconveniences to attorneys, judges, experts, and other witnesses; and (3) problems inherent in transporting or scheduling a defendant in multiple Washington jurisdictions simultaneously. Accordingly, we agree with the State that the due-diligence requirement did not impose an obligation on the State to transport Lindmark to Mason County for arraignment before his charges in the other two counties had been resolved.

Thus, we hold that Lindmark was timely arraigned in Mason County.

II. Sufficiency of Evidence
Lindmark next argues that the evidence was insufficient to prove that (1) his unidentified, videotape-recorded victims were under age 12; (2) count XV occurred during the charging period; and (3) his contact with the victims was for the purpose of sexual gratification.

A. Standard of Review
Evidence is sufficient to sustain a conviction if, viewing it in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). We draw all reasonable inferences in favor of the State and `most strongly against the defendant,’ who is deemed to have admitted `the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Criminal intent may be inferred from conduct `where it is plainly indicated as a matter of logical probability.’ State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). `Credibility determinations are within the sole province of the jury and are not subject to review.’ State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997).

B. Molestation of Victim Under Age 12
RCW 9A.44.083(1) provides:

A person is guilty of child molestation in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.

“Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party.’ RCW 9A.44.010(2).

Lindmark stipulated that (1) Detective Pfitzer could `recite into the record the facts supporting the . . . charges’; (2) the videotape shown in open court was a `representative example of what the balance of the tapes show’; and (3) Detective Pfitzer’s notes accurately record the facts the tapes display. RP at 65-66. Detective Pfitzer stated that the victims shown on the videotapes appeared to be `well under the age of twelve.’ RP at 74.

The trial court then viewed the excerpted videotape and saw the `representative’ boy. A trial court may infer the age of a child from viewing a videotape or listening to lay testimony.[8] Drawing all inferences in favor of the State, and having reviewed the representative tape on appeal (Exhibit 1), we hold that a rational trier of fact could have concluded from the detective’s testimony and from viewing this `representative’ tape that the boys were under age 12. Green, 94 Wn.2d at 221.

C. Count XV Charging Period
The charging period for Count XV was February 1995 through August 1996. Although the videotape forming the basis for this count apparently displayed the camera’s date-setting of December 11 and had a Christmas tree in the background, the detective testified that the scene of the molestation appeared to be the apartment that Lindmark had rented during the charging period. Moreover, the detective had carefully viewed over 35 videotapes and had visited the apartment where all the charged incidents were alleged to have occurred.

The trial court, as the judge of witness credibility, was entitled to believe the detective, in spite of the Christmas tree and camera date. Myers, 133 Wn.2d at 38. We hold that it was reasonable for the trial court to infer from the evidence that the detective was very familiar with the apartment and could identify it from viewing the videotape of Count XV. Salinas, supra.

D. Nature of the Charges
Lindmark also argues that the evidence of child molestation in counts VI, VII, VIII, X, XI, and XV is insufficient because the description of his conduct is virtually identical to that in other counts that charged only attempted molestation. This argument also fails.

Prosecutors have broad discretion in making charging decisions. See, e.g., State v. Lidge, 111 Wn.2d 845, 850, 765 P.2d 1292 (1989). The record indicates that the State chose to charge some of the incidents as attempted molestations, `even though the facts themselves would have supported the full charge of actual Child Molestation.’ RP at 111. That the State chose a more lenient charge for some counts does not entitle Lindmark to similar lenient charges for other substantially similar fact patterns in other counts.

Moreover, the videotapes show Lindmark engaging in sexual contact that constitutes actual child molestation. A fact finder may infer touching for the purpose of sexual gratification from evidence that an unrelated adult with no caretaking function has touched a child’s intimate parts.[9] State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86
(1991), review denied, 118 Wn.2d 1013 (1992).

Lindmark does not deny that the videotapes show him pulling down sleeping boys’ underwear, or that the stipulated summary of the videotapes’ contents relating to Counts VI, VII, VIII, X, and XI describes Lindmark baring the buttocks of sleeping boys. Count XV describes Lindmark lying on the floor with a boy, pulling up the boy’s shirt, and stroking the boy’s back and face while masturbating. This evidence shows that Lindmark, who was neither a relative nor a caretaker, at least touched the victim’s buttocks, or areas in close proximity, while masturbating, giving rise to a reasonable inference that the contact was for sexual gratification. Powell, 62 Wn. App. at 917.

Even where Lindmark’s touching was through the victims’ underwear, the videotapes depict touching that is sexual in that Lindmark was clearly trying to remove clothes from the boys’ private areas. From this evidence, a reasonable finder of fact may infer a purpose of sexual gratification.

III. Effective Assistance of Counsel
Lindmark next argues that his counsel was ineffective in failing (1) to view the videotapes with him to determine if duplicated scenes had formed the basis for separate charges; (2) to question Detective Pfitzer; and (3) to present evidence in Lindmark’s defense. The State replies that these decisions were trial tactics or strategies that do not support an ineffective assistance of counsel claim. We agree.

A criminal defendant has a constitutional right to effective assistance of counsel. U.S. Const. amend. VI; Wash. Const. art. I, sec. 22; State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). To show ineffective assistance of counsel a defendant must prove (1) deficient performance by counsel, and (2) resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We strongly presume that counsel’s representation was effective. McFarland, 127 Wn.2d at 335. Reasonable trial tactics will not amount to deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563
(1996).

Here, there appear to have been valid tactical reasons for counsel’s decision not to review the tapes with Lindmark. For example, had Lindmark viewed the tapes and identified a boy as being 12 or older, it could have led the State to identify another potential witness against Lindmark. Second, it was a legitimate tactic for the defense simply to challenge the sufficiency of evidence of sexual contact.

Refraining from questioning Detective Pfitzer or putting on evidence during the reading of the stipulated record also appears to have been a considered defemse trial tactic. Defense counsel and Lindmark together elected a `reading of the record,’ which involved stipulating to Detective Pfitzer’s testimony. Before considering the stipulation, the trial court made sure that Lindmark understood that there would be no State witnesses, no defense cross-examination, and no defense presentation of testimony. Such `{a} decision not to call a witness is a matter of trial tactics that generally will not support a claim of ineffective assistance of counsel.’ State v. Krause, 82 Wn. App. 688, 697-98, 919 P.2d 123 (1996), review denied, 131 Wn.2d 1007 (1997). Lindmark’s argument that his counsel should have interrogated Detective Pfitzer or put on witnesses thus contravenes Lindmark’s own stipulation in open court.

Lindmark has failed to show ineffective assistance of counsel.

IV. Sentence
Lindmark asks us to remand his life sentence for resentencing because (1) the sentencing court clearly erred in failing to give him a `determinate sentence,’ specifying the number of months of incarceration; (2) the sentencing court clearly erred in finding that he was a `foster parent’ during the charging period; and (3) his victims’ vulnerable ages cannot justify an exceptional sentence as a matter of law because age is a factor already inherent in his offenses. We focus first on the exceptional sentence factors.

A. Exceptional Sentence Factors
We review de novo whether a sentencing court has justified an exceptional sentence with a `substantial and compelling’ reason. Former RCW 9.94A.120(2) (1996) (recodified as RCW 9.94A.505 by Laws of 2001 ch. 10, sec. 6); State v. Nordby, 106 Wn.2d 514, 518, 723 P.2d 1117 (1986). If some of the trial court’s articulated reasons are invalid, we may uphold the exceptional sentence only if we can determine from the record that the trial court would have imposed the same sentence even without the invalid reasons. State v. Cardenas, 129 Wn.2d 1, 12, 914 P.2d 57
(1996).

1. Foster parent status — position of trust
The trial court found at sentencing that `{t}he defendant violated his position of trust and confidence as a foster parent in committing these offenses.’ Clerk’s Papers (CP) at 19 (emphasis added). But the record shows and the State concedes that Lindmark was not a foster parent at the time of or prior to these offenses;[10] rather, he did not become a foster parent until the year 2000, sometime after the charged offenses. Thus, the record does not support the trial court’s articulation of `foster parent’ status as a reason for imposing an exceptional sentence for Lindmark.

Although the trial court articulated other valid factors that support the exceptional sentence (multiple acts, grooming, vulnerability of sleeping victims), there is no corresponding conclusion of law indicating that the trial court would still have imposed a life sentence without the foster-parent abuse-of-trust factor, based on one or more of the other factors. Accordingly, we must remand for resentencing without reference to the unsupported foster parent factor. We do not intend in so holding, however, that the trial court may not consider the abuse-of-trust factor in light of Lindmark’s neighbor and baby-sitter status.

2. Victims’ ages
A trial court may impose a sentence above the standard range where `{t}he offense was part of an ongoing pattern of sexual abuse of the same victim under the age of eighteen years manifested by multiple incidents over a prolonged period of time.’ Former RCW 9.94A.390(2)(g) (1996) (emphasis added) (recodified as RCW 9.94A.535(2)(g) by Laws of 2001 ch. 10, sec. 6). Here, the sentencing court listed two reasons under this statutory provision for increasing Lindmark’s sentence as follows:

I. The defendant{‘}s offenses were part of an ongoing pattern of sexual abuse of the victims manifested by multiple incidents over a prolonged period of time.
II. The defendant{‘}s offenses included an ongoing pattern of sexual abuse of the same or individual victims who were under 18 years of age.

CP at 19 (emphasis added).

Lindmark suggests that focusing on the victims’ ages alone to enhance his sentence was improper. The State responds that the trial court gave Lindmark the RCW 9.94A.390(2)(g) enhancement for having multiple victims and offenses over a period of time, not merely because of his victims’ ages.

Here, the challenged sentences for child molestation, attempted child molestation, and child rape all relate to offenses requiring a child victim. RCW 9A.28.020, 9A.44.073, 9A.44.083. Although a `victim’s extreme youth may constitute an aggravating factor even if the victim’s age is an element of the crime,’[11] the trial court made no finding of `extreme youth,’ nor does the record suggest extreme youth of Lindmark’s victims.[12]

Although it does not appear that the trial court here used extreme youth as a factor for imposing an exceptional sentence upward, had it done so, it would have been improper in the absence of evidence that the victims were under the age of seven. But because we remand for resentencing without reference to Lindmark’s non-existent foster-parent status, the trial court will have an opportunity to clarify its reasons for an exceptional sentence if it chooses to reimpose one.

B. Determinate Sentence
We accept the State’s concession that Lindmark is entitled to a determinate sentence that provides `with exactitude’ the number of months Lindmark is to be confined. Former RCW 9.94A.120(3) (1996) (recodified as RCW 9.94A.505 by Laws of 2001 ch. 10, sec. 6) provides, `A sentence outside the standard range shall be a determinate sentence.’ RCW 9.94A.030(17) (1996) further provides that a `{d}eterminate sentence’ must `state{} with exactitude the number of actual years, months, or days of total confinement.’ Here, however, rather than setting a determinate period specifying `with exactitude’ the actual months of Lindmark’s total confinement, the court imposed a sentence of `life.’

As we have previously noted, because the SRA generally requires that sentences be determinate, `the only way to impose a life sentence for the myriad crimes for which life is the maximum penalty is to determine what the defendant’s life expectancy is likely to be.’ State v. Ross, 71 Wn. App. 556, 573-74, 861 P.2d 473 (1993) (approving use of actuarial life expectancy tables as `a reasonable method of translating’ an indeterminate `life sentence’ into `one that satisfies the determinate sentence requirement of the SRA’), review denied, 123 Wn.2d 1019 (1994). See also, e.g., State v. Scott, 72 Wn. App. 207, 866 P.2d 1258 (1993) (900-month sentence is determinate when crimes carried maximum sentence of life), aff’d sub nom. State v. Ritchie, 126 Wn.2d 388 (1995). The trial court did not determine Lindmark’s life expectancy.

Accordingly, we affirm Lindmark’s convictions and remand to the trial court for resentencing to impose a determinate sentence, without reference to foster parent status, and to clarify the reasons for imposing an exceptional sentence if it chooses to reimpose one.

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.

BRIDGEWATER, J. and QUINN-BRINTNALL, J., concur.