Appeal from Superior Court of Spokane County. Docket No: 93-1-02050-4. Date filed: 10/28/94. Judge signing: Hon. Richard J. Schroeder.
Petition for Review Denied June 3, 1997,
Authored by Dennis J. Sweeney. Concurring: John A. Schultheis, Ray E. Munson.
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J. William Gentry was a City of Spokane Police Sergeant. In January 1992, he met U.A. U.A. is developmentally disabled and deaf. She began visiting the substation where Mr. Gentry worked. By January 1993, Mr. Gentry believed he was in love with U.A. On November 2, 1993, Mr. Gentry took U.A. to a motel and had sexual intercourse with her.
Early the next morning, U.A.'s mother and Mr. Gentry's wife filed missing persons reports. Mr. Gentry's captain, Roger Bragdon, told Sergeant Earl Ennis to question Mr. Gentry about the reports. When Mr. Gentry reported for work, he was ordered to go to Lieutenant Terry LaLiberte's office. There, Mr. Gentry told Sergeant Ennis and Lieutenant LaLiberte that he had last seen U.A. about 3 p.m. on November 2. Sergeant Ennis told Mr. Gentry that someone saw him with U.A. about 3:30 p.m. Mr. Gentry admitted that Sergeant Ennis was correct. Sergeant Ennis told Mr. Gentry to wait in the office. As Sergeant Ennis was walking out, he asked Mr. Gentry whether they could search his pickup. Mr. Gentry said no. He said if they got to that point he wanted an attorney.
Lieutenant LaLiberte had remained in the office. He asked Mr. Gentry if there was anything else he had to say. Mr. Gentry said they should find Sergeant Ennis. When Sergeant Ennis returned, Mr. Gentry told them he spent the night at a motel with U.A. Mr. Gentry was immediately given Miranda *fn1 warnings. He waived his rights. He then told how he took U.A. to a motel where they had intercourse.
Mr. Gentry also met D.P. in his role as a police officer. D.P. is also developmentally disabled. In October 1993, D.P. came into the police substation while Mr. Gentry was working. She wanted to enter a back room but Mr. Gentry barred her. Eventually she became upset and began hitting Mr. Gentry who took her "to the ground[.]" Mr. Gentry handcuffed D.P. but eventually released her.
The State charged Mr. Gentry with second degree rape of U.A., and attempted indecent liberties and unlawful imprisonment of D.P. Before trial, Mr. Gentry moved to suppress his confession, sever the rape charge from the other charges, and to exclude opinion testimony about whether U.A. understood the nature or consequences of sexual intercourse. The court denied Mr. Gentry's motions.
After the State rested, the court dismissed the charge of unlawful imprisonment. A jury convicted Mr. Gentry of second degree rape and acquitted him of indecent liberties. Mr. Gentry appeals.
Severing of Counts. Mr. Gentry first argues that the court erred in failing to sever the second degree rape count from the counts for indecent liberties and unlawful imprisonment. We must determine if the court abused its discretion. State v. Cotten, 75 Wash. App. 669, 686-87, 879 P.2d 971 (1994), review denied, 126 Wash. 2d 1004 (1995).
Factors which tend to mitigate the prejudice of joining counts include: (1) the strength of the State's evidence on each count, (2) the clarity of defenses on each count, (3) whether the court properly instructed the jury to consider the evidence of each crime separately, and (4) the cross-admissibility of the evidence of the other crime. 75 Wash. App. at 687; State v. Watkins, 53 Wash. App. 264, 269, 766 P.2d 484 (1989).
Applying the first factor, the State's evidence on each count was strong. Mr. Gentry admitted having intercourse with U.A. Numerous witnesses testified about U.A.'s developmental and mental disabilities and her inability to understand the nature and consequences of sexual intercourse. For the other counts, at the time of the motion to sever, the State mentioned several witnesses that would testify as to Mr. Gentry's commission of indecent liberties and unlawful imprisonment, including the victim. D.P., in fact, testified about how Mr. Gentry had inappropriately touched her at the substation. The evidence of each count was substantial.
Mr. Gentry's defenses to each count were clear. He denied committing indecent liberties or unlawfully imprisoning D.P., and he claimed that U.A. did not suffer from a mental disability for the second degree rape count. Mr. Gentry contends the defenses differed in character and presentation. But a general denial of two counts and affirmative defense that the victim had the capacity to consent are neither inconsistent nor mutually exclusive. See Id. at 269 (defenses of duress and mistaken identity not mutually exclusive). Even if we agreed with Mr. Gentry and assume the jury ...