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Washington v. Foster

filed: May 6, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
JAMES G. FOSTER, APPELLANT.



Superior Court County: King. Superior Court Cause No: 93-1-01304-0. Date filed in Superior Court: March 25, 1994. Superior Court Judge Signing: Hon. Jim Bates.

Written by: Judge Coleman, Concurred by: Judge Agid, Judge Cox

Author: Coleman

COLEMAN, J. -- James Foster appeals his conviction on five counts of indecent liberties, primarily arguing that prosecution of these charges was barred by the statute of limitation and that he was denied effective assistance of counsel. We hold that the statute of limitation did not bar

prosecution of these offenses because the Legislature increased the limitation period applicable to indecent liberties committed against children under the age of fourteen before Foster's acts would have been time barred under the previous limitation period. We further find that any deficiencies in defense counsel's performance had no prejudicial effect on the outcome of the case. Foster also raises a multitude of issues pro se, many of which lack legal support or cannot be determined on the record. He correctly asserts that the judgment and sentence misstated the statute under which he was convicted and improperly ordered him to submit to HIV testing. Accordingly, we affirm in part and reverse in part.

Foster and Sally Jolly were married in 1971. The following year they adopted BS, who was born on September 20, 1972. Foster and Jolly dissolved their marriage in 1990. After the dissolution, BS alleged that Foster had sexually abused her as a child. On February 22, 1993, Foster was charged with three counts of indecent liberties pursuant to former RCW 9A.44.100(1)(b). The information was amended five months later to add two counts of indecent liberties and four counts of first degree incest. The five counts of indecent liberties were alleged to have occurred between May 13, 1982, and September 19, 1986, during which time BS was nine to thirteen years old. The trial court dismissed the incest charges as barred by the statute of limitation. Foster waived a jury trial, and the court found him guilty of five counts of indecent liberties.

We first address Foster's contention that he was not charged within the statutory limitation period. The Legislature has extended the statute of limitation for sexual crimes committed against children several times in the past fifteen years because "experience had shown that due to fear, lack of understanding or manipulation of the victim by the offender, victims of child abuse sometimes did not report it within the shorter limitation periods." State v. Hodgson, 108 Wash. 2d 662, 666, 740 P.2d 848 (1987)

(footnote omitted) (citing Final Legislative Report, 47th Legislature (1982), at 154 (SSB 4461); House Bill Report, 47th Legislature (1982) (SSB 4461); Final Legislative Report, 49th Legislature (1985), at 273 (SB 3393)), cert. denied, Fied v. Washington, 485 U.S. 938, 99 L. Ed. 2d 277, 108 S. Ct. 1117 (1988). Originally, sexual crimes against children came within the general three-year felony statute of limitation. The limitation period pertaining to these crimes was increased to five years in 1982 and further extended to seven years in 1985. Hodgson, 108 Wash. 2d at 665-66. Each of these legislative extensions of the limitation period applied to all crimes not already time barred by the former limitation period on the date the amendments became effective. Hodgson, 108 Wash. 2d at 666-67.

Thus, during the years for which Foster was charged, the statute of limitation applicable to sexual crimes committed against children was seven years from commission of the crime. Former RCW 9A.04.080(1986) provided:

Prosecutions . . . may be commenced . . . for violations of RCW 9A.44.070 [first degree statutory rape], 9A.44.080 [second degree statutory rape], and 9A.44.100(1)(b), within seven years after their commission[.]

(emphasis added) Laws of 1986, ch. 85, § 1 (increasing limitation period from five to seven years); Former RCW 9A.04.080 (1986). During the charging period, the referenced statute under which Foster was charged, former RCW 9A.44.100(1)(b), provided:

A person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another:

(b) When the other person is less than fourteen years of age[.]

The Legislature rewrote this statute in 1988. The criminal act of sexual contact with minors was removed from the indecent liberties statute and recodified as first and second

degree child molestation in RCW 9A.44.083 and -.086.*fn1 Laws of 1988, ch. 145, §§ 5, 6, 10. RCW 9A.44.100(1)(b) no longer addressed sexual contact with minors. That subsection of the indecent liberties statute was amended to cover sexual contact

(b) When the other person is incapable of consent by reason of being mentally defective, mentally incapacitated, or physically helpless[.]

Laws of 1988, ch. 145, § 10; Former RCW 9A.44.100(1)(b) (1989).

When the Legislature recodified the crime of sexual contact with children under the age of fourteen in 1988, it also amended the applicable statute of limitation. The statute of limitation no longer mentioned RCW 9A.44.100(1)(b) and referred instead to the newly created statutes--first and second degree child molestation. In 1989, the Legislature enacted further amendments to the limitation statute, making two changes pertinent here. The 1989 amendments restored the reference to the former indecent liberties statute and increased the limitation period, effective May 11, 1989. Laws of 1989, ch. 317, § 3. After these amendments, the statute of limitation provided:

Violations of the following statutes shall not be prosecuted more than three years after the victim's eighteenth birthday or more than seven years after their commission, whichever is later: RCW 5 Sadler 268, 9A.44.073, 9A.44.076, 9A.44.083, 9A.44.086, 9A.44.070, 9A.44.080, or 9A.44.100(1)(b)[.]

RCW 9A.04.080(1)(c) (emphasis added). Under Hodgson, the extended limitation period applies to all crimes not already time barred by the previous limitation period on the date the extension took effect.

In State v. Horn, 59 Wash. App. 664, 801 P.2d 245 (1990), review denied, 116 Wash. 2d 1016 (1991), the defendant was charged in 1988 with having committed statutory rape in the first degree and indecent liberties for events that allegedly occurred from 1984 through 1986. Horn argued that by eliminating RCW 9A.44.100(1)(b) from the statute of limitation in the 1988 amendments, the Legislature intended the 3-year default limitation period to apply to indecent liberties committed against children under former RCW 9A.44.100(1)(b). The court rejected this argument, relying in part on the Legislature's explanation that omission of RCW 9A.44.100(1)(b) from the statute of limitation in 1988 had been inadvertent.

The legislature further finds that the enactment of chapter 145, Laws of 1988, which deleted specific reference to RCW 5 Sadler 268, 9A.44.070, 9A.44.080, and 9A.44.100(1)(b) from RCW 9A.04.080 and also deleted those specific referenced provisions from the laws of Washington, did not intend to change ...


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