No. 21989-5-IIIThe Court of Appeals of Washington, Division Three. Panel Six.
Filed: June 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-03276-2. Judgment or order under review. Date filed: 04/07/2003. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Cynthia Ann Jordan, Attorney at Law, 921 W Broadway Ave Ste 201, Spokane, WA 99201-2119.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
ORDER GRANTING MOTION FOR RECONSIDERATION AND WITHDRAWING THE OPINION FILED JUNE 9, 2005.
KENNETH H. KATO, Chief Judge.
THE COURT has considered respondent’s motion for reconsideration, and is of the opinion the motion should be granted. Therefore,
IT IS ORDERED, the motion for reconsideration of this court’s decision of June 9, 2005 is hereby granted.
IT IS FURTHER ORDERED, the court’s opinion filed June 9, 2005 shall be withdrawn. Further, these proceedings are stayed pending the decisions and mandates in State v. Borboa, 124 Wn. App. 779, 102 P.3d 183 (2004), petition for review filed (Wash. Jan. 20, 2005) (No. 76547-2); State v. Clarke, 124 Wn. App. 893, 103 P.3d 262 (2004), petition for review filed (Wash. Jan. 31, 2005) (No. 76602-9); State v. Brundage, 126 Wn. App. 55, 107 P.3d 742
(2005), petition for review filed (Wash. Mar. 17, 2005) (No. 76798-0); and State v. Monroe, 126 Wn. App. 435, 109 P.3d 449
(2005), petition for review filed (Wash. Apr. 18, 2005) (No. 76926-5).
SCHULTHEIS, J.
John Edward Mines Jr. appeals his guilty verdicts for rape, kidnapping, and assault. Through counsel, he claims the evidence was not sufficient to support the verdict and the trial court erred in imposing an exceptional sentence. In his statement of additional grounds for review, he repeats counsel’s insufficient evidence argument, complains he did not receive effective assistance of defense counsel, and contends prosecutorial misconduct occurred. Although we find the evidence supports the verdict and Mr. Mines’ pro se arguments are without merit, according to the recent Supreme Court holding in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004) regarding exceptional sentences, the case must be remanded for resentencing.
FACTS
J.R. is a self-confessed drug addict. In November 2002, she went to a drug house in Spokane County where she smoked cocaine and ingested heroin. She apparently passed out for a period of time and woke up around midnight. She then left the drug house and began to walk toward her residence in north Spokane.
A blue van approached her as she walked. A man sitting in the passenger seat asked her if she wanted a ride. She accepted the offer and got into the van. It was then she noticed a third man was sitting in the back of the van. She asked the men if they had drugs. The man in the back, later identified as Mr. Mines, asked Ms. R. to perform oral sex. She refused and demanded to be let out of the van. When the van did not stop, Ms. R. tried to escape. She was severely beaten and lost consciousness for a short period of time. When she awoke she was threatened with death several times by Mr. Mines. He told her he was going to kill her, cut her up into little pieces, and throw her into the woods. Objects were inserted into her anus and vagina — specifically, a plastic pop bottle and a screwdriver. At some point Ms. R. was thrown out of the van in an isolated, wooded area. Although in severe pain, she crawled to a residence and reported the rape.
Ms. R. was taken to the hospital where she was examined and treated for her injuries. The emergency room physician noted that she had contusions on her forehead, cheeks, and eyes. She also had a number of bruises, abrasions, and contusions on her back and arms. It also appeared to him that someone had attempted to strangle Ms. R. Additionally, grass, leaves, and dirt were removed from Ms. R.’s rectum after which a laceration was found. Although her genitals were red, the physician honored Ms. R.’s request not to examine the area due to the extreme pain she was suffering. The physician informed police officers that Ms. R. had been raped and severely beaten.
Ms. R. was able to pick out Mr. Mines’ picture from a photo montage presented to her while she was still hospitalized. At the conclusion of an investigation by the Spokane Police Department, Mr. Mines was arrested and charged in the Spokane County Superior Court with rape, kidnapping, and assault. He received a jury trial after which he was found guilty of all three charges. He was given an exceptional sentence upward after the court found the crimes were committed with deliberate cruelty. This timely appeal resulted.
ANALYSIS 1. Sufficiency of the Evidence
Mr. Mines first contends the evidence was insufficient to support his convictions on the rape, kidnapping, and assault charges. The State carries the burden of proving every element of each of the crimes charged beyond a reasonable doubt. State v. McCullum, 98 Wn.2d 484, 489, 656 P.2d 1064 (1983). When reviewing a sufficiency of the evidence claim, we apply a standard of review that is deferential to the jury verdict, drawing all reasonable inferences from the evidence in favor of the State and interpreting it most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).
To convict Mr. Mines of first degree rape, five elements had to be proven: (1) the date of the crime, (2) that it occurred within the state of Washington, (3) that sexual intercourse occurred, (4) by forcible compulsion, and (5) the victim suffered serious physical injury. Mr. Mines claims there was no evidence the intercourse occurred by forcible compulsion. He is mistaken.
Ms. R.’s testimony revealed she fought as hard as she could to get out of the van and away from the men until she was beaten unconscious. While in the van she was repeatedly told that Mr. Mines would kill her if she resisted. Finally, testimony elicited at trial by the victim and other witnesses reveals that several items, including a screwdriver and a pop bottle, were inserted into her anus and vagina, which caused the serious injury to the pelvic region reported by the emergency room physician at the hospital. The evidence supports the rape charge and conviction.
Mr. Mines also complains the evidence was not sufficient to support the kidnapping conviction. He claims that because Ms. R. voluntarily entered the van on the date in question she could not have been abducted. He is incorrect.
The jury was instructed that in order to convict Mr. Mines of kidnapping, it had to find that he abducted Ms. R. with the intent to facilitate the commission of a felony. Abduction was defined as restraining a person by either secreting or holding them: (1) in a place they were not likely to be found, or (2) by using or threatening to use deadly force. Because Ms. R. was held in the van under threat of death and was later dumped in a remote area of the county, the evidence supports the conclusion that she was abducted. Another witness testified that on the night in question, the three men planned to pick up a prostitute and steal her money, which was the requisite felony that elevated the crime to kidnapping. The evidence supports Mr. Mines’ conviction on the kidnapping charge.
Mr. Mines also maintains the evidence does not support the second degree assault conviction. The jury was instructed that assault means to knowingly inflict bodily harm, which, by design, causes such pain or agony as to be the equivalent of torture. At trial, Ms. R. recounted the details of how she was injured on the night in question. In addition, the jurors were shown photographs of Ms. R. that were taken at the hospital. This allowed them to visualize the brutality of the attack. The evidence presented more than satisfies the jury’s conviction of Mr. Mines for second degree assault.
2. Exceptional Sentence
Mr. Mines next claims the trial court erred when it imposed an exceptional sentence upward. Pursuant to Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and the recent Washington Supreme Court decision in State v. Hughes, ___ Wn.2d ___, 110 P.3d 192 (2005), we agree.
Under Blakely, any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutory sentencing range, must be proved to a jury beyond a reasonable doubt. 124 S. Ct. at 2536. The trial court here imposed an exceptional sentence based on the aggravating factor of deliberate cruelty. However, the jury did not determine beyond reasonable doubt that Mr. Mines’ commission of the crimes constituted deliberate cruelty toward Ms. R. Blakely specifically held that a trial court’s finding of deliberate cruelty is unconstitutional if it is not based on facts admitted in a guilty plea or found by the jury. Id. at 2537. Because Mr. Mines’ sentence violates the Supreme Court’s Blakely decision, the case must be remanded for resentencing within the standard range. Hughes, 110 P.3d at 211.
3. Statement of Additional Grounds for Review a. Sufficiency of the evidence
In his statement of additional grounds for review Mr. Mines first renews appellate counsel’s claim that the evidence does not support the guilty verdicts on the rape, kidnapping, and assault charges, either as the perpetrator or as an accomplice. These issues were fully discussed above and need not be repeated here. Mr. Mines’ statement that the State coached witness Clinton Cramer cannot be supported on the record. The same holds true with Mr. Mines’ claim that another participant on the date in question, David McKibben, committed the acts upon the victim’s person.
b. Ineffective assistance of counsel
Next, Mr. Mines argues that he did not receive effective assistance of counsel at trial since he and assigned defense counsel often argued about the defense theory of the case. To establish ineffective assistance of counsel, Mr. Mines must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563
(1996). The first element is met by showing counsel’s performance was not reasonably effective under prevailing professional norms. The second test is met by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different. A strong presumption exists that counsel’s performance was reasonable. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Mr. Mines is unconvincing when he states that defense counsel’s representation was ineffective merely because counsel and client disagreed about trial strategy and closing arguments. Nor are we convinced defense counsel was ineffective merely because he chose not to object to the court’s jury instructions. As a general rule, when counsel’s conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as the basis for a claim of ineffective assistance. Hendrickson, 129 Wn.2d at 77-78. Mr. Mines presents no facts that show he was not well represented at trial by defense counsel nor are any apparent upon review of the record.
c. Prosecutorial misconduct
Finally, Mr. Mines claims the prosecutor committed misconduct by withholding vital information from the jury regarding the identity of the person that actually committed the crimes against the victim in this case. A defendant alleging prosecutorial misconduct must show both improper conduct and resulting prejudice. State v. Henderson, 100 Wn. App. 794, 800, 998 P.2d 907 (2000). Prejudice is established by demonstrating a substantial likelihood that the prosecutor’s misconduct affected the jury’s verdict. Id.
Mr. Mines claims the prosecutor had information that a second person who was present in the van, Mr. McKibben, admitted to being the person who committed the rape, kidnapping, and assault on the victim. Mr. Mines claims Mr. McKibben allegedly told the prosecutor that Mr. Mines had nothing to do with the current crimes. Mr. Mines contends this exculpatory information should have been disclosed to the jury at trial. He maintains the failure to do so is evidence of prosecutorial misconduct. However, again, he fails to cite to the record where it can be seen that the State had the information he claims it had. A thorough review of the record does not reveal such information exists.
It appears Mr. Mines is attempting to make the same type of argument set forth in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (violation of due process if prosecution suppresses evidence favorable to defendant that is material to guilt or defendant’s punishment). The problem with Mr. Mines’ claim is that he had the same ability as did the State to introduce the alleged confession into evidence or to call Mr. McKibben as a witness at trial if there was exculpatory evidence the jury needed to hear. Contrary to the facts in Brady, here, the State was not in sole possession of any statements Mr. McKibben made to police officers that would have proven Mr. Mines had nothing to do with the rape, kidnapping, and assault of the victim. Accordingly, Mr. Mines’ allegation of a Brady violation necessarily fails. In re Pers. Restraint of Benn, 134 Wn.2d 868, 916, 952 P.2d 116 (1998) (no Brady violation if defendant could have obtained information through reasonable diligence).
Convictions affirmed; remanded for resentencing.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and KURTZ, J., Concur.