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State v. Roswell

December 4, 2008


The opinion of the court was delivered by: Chambers, J.

En Banc

Washington has enacted certain criminal statutes that raise the level of a crime from a misdemeanor to a felony based upon the defendant's prior criminal convictions. These prior convictions are elements of the charged crime that the State must prove beyond a reasonable doubt. We held in State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002), that a trial court did not abuse its discretion in bifurcating the "to convict" instruction with respect to prior criminal offenses in order to protect a defendant from possible prejudice. We are asked to extend our holding in Oster and hold that a defendant charged with one of these crimes may waive his right to a jury trial on a prior conviction element and effectively bifurcate the trial so that the judge would decide the criminal history element and the jury would decide the other elements. We decline to do so and affirm the Court of Appeals.


In 2005, Johnathon Roswell was charged with various felony sex offenses. The charges arose out of conduct that Roswell, then 21 years old, directed toward three minor female victims, DMW, CMP, and LB, in the early summer of 2005.*fn1 At the time, DMW was 14 years old and CMP and LB were both 16 years old. Trial testimony established that the three girls "hung out" at a park near where they lived and that Roswell began going to the park several times a week, usually by himself. DMW and Roswell began talking and "hanging out" together at the park, but soon DMW began to feel uncomfortable with the relationship. DMW described that Roswell touched her "boobs" and "down below," which she described as below her waist and above her crotch. Report of Proceedings (RP) (Dec. 7, 2005) at 25. DMW also testified that Roswell asked her to have sex with him, which she declined. CMP gave similar testimony that Roswell touched her in a way that made her uncomfortable and talked about sex, including asking her to have sex with him. Testimony also revealed that Roswell carried a "little black book" that he asked the girls to sign indicating they would have sex with him when they turned 18 years old. Both DMW and CMP signed the book. They also describe observing Roswell talk about sex with and touch a third girl.

Roswell was charged with child molestation in the second degree (count I), child molestation in the third degree (count II), and three counts of felony communication with a minor for immoral purposes (counts III, IV, and V). Under RCW 9.68A.090(1) a person who communicates with a minor for immoral purposes is guilty of a gross misdemeanor. However, if the defendant has been previously convicted of a felony sexual offense, he may be convicted of a class C felony. RCW 9.68A.090(2). Roswell was convicted in 2001 as a juvenile for third degree rape, and in 2003 he was convicted as an adult for third degree child molestation-both felonies. He was incarcerated for his 2003 conviction and released January 4, 2005. His charged offenses with DWM, CMP, and LB were alleged to have occurred during May and June 2005.

In a motion in limine, Roswell requested that he be allowed to stipulate to the existence of the prior sexual offense convictions and waive his right to a jury on that issue in order to prevent the jury from being informed of the prior convictions. During argument, there was confusion among the parties as to whether the prior conviction was an aggravating factor or an element of the charged crime. Roswell argued that even if the prior conviction was an element, the trial should be bifurcated so that a jury would decide whether there had been communications with a minor for immoral purposes, but the judge would make a determination on the prior conviction element. The State argued the prior conviction was an element and that the bifurcation request should be denied because it would prevent the State from being allowed to prove all elements to the jury.

After hearing argument, the trial judge declined to bifurcate but held that the information presented to the jury would be limited to "eliciting that it was a prior sexual offense" and that the State would not be allowed to show that the prior offense was in fact for child molestation.*fn2 RP (Dec. 5, 2005) at 30-31. Although Roswell stipulated to the prior conviction, he noted his continuing objection to the denial of his request for bifurcation. Immediately prior to closing arguments, the stipulation was read to the jury. The jury found Roswell guilty on one count of second degree child molestation and two counts of felony communication with a minor for immoral purposes.

In its information, the State had alleged rapid recidivism as an aggravating factor, which would have allowed the trial court to sentence Roswell beyond the standard range. RCW 9.94A.535(3)(t). Unlike Roswell's motion regarding his prior convictions, the trial court did order bifurcation on a determination of this issue. Only after the jury found Roswell guilty of counts I, II, and IV was the jury given a special verdict form which asked, "[d]id the defendant commit the current offense as convicted in [each count] shortly after being released from incarceration?" The jury answered, "No Unanimous Agreement" on all counts. Clerk's Papers at 108-09.

The Court of Appeals affirmed the convictions in an unpublished opinion. State v. Roswell, noted at 139 Wn. App. 1090 (2007). We granted review. State v. Roswell, 163 Wn.2d 1022, 185 P.3d 1194 (2008).


A trial court's decision on bifurcation is generally reviewed for an abuse of discretion. State v. Monschke, 133 Wn. App. 313, 335, 135 P.3d 966 (2006) (citing State v. Jeppesen, 55 Wn. App. 231, 236, 776 P.2d 1372 (1989)). However, Roswell argues that he has a right to a bifurcated trial under the law. We review questions of law de novo. State v. Benn, 161 Wn.2d 256, 262, 165 P.3d 1232 (2007).

1. Elements and Aggravators

The legislature may define the elements of a crime when it enacts a criminal statute. State v. Williams, 162 Wn.2d 177, 183, 170 P.3d 30 (2007). Each element of a crime must be proved beyond a reasonable doubt. Oster, 147 Wn.2d at 146 (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed. 2d 368 (1970)). Unlike an aggravator, which elevates the maximum punishment that may be imposed for a crime, an element is an essential component of the underlying offense. For example, here, if Roswell had had no prior felony sex offense convictions, he could not have been charged or convicted of felony communication with a minor for immoral purposes. If all other elements had been proved he could have been convicted of only a misdemeanor. See RCW 9.68A.090(1). Despite the similarities between an aggravating factor and a prior conviction element, under RCW 9.68A.090(2), a prior sexual offense conviction is an essential element that must be proved beyond a reasonable doubt. The prior conviction is not used to merely increase the sentence beyond the standard range but actually alters the crime that may be charged.

The distinction between an aggravating factor, which raises the statutory range of permissible punishments for the offense, and an actual element of the charged crime has prompted much confusion surrounding this case. It is clear from the record that at the time of trial Roswell believed that the prior conviction should be treated like an aggravating factor rather ...

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