Oral Argument: February 20, 2014.
Date filed: 06/15/2012.
Appeal from Pierce County Superior Court. Docket No: 12-1-00508-9. Judge signing: Honorable Frederick Fleming.
Jennifer M. Winkler (of Nielson Broman & Koch PLLC ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor, Deputy, for respondent.
Authored by J. Robin Hunt. Concurring: Thomas R Bjorgen, Bradley A. Maxa.
[183 Wn.App. 110] ¶ 1 -- David Clyde Daniels appeals his jury trial convictions for promoting commercial sexual abuse of a minor (PCSAM), second degree promoting prostitution, and fourth degree assault. He argues that his convictions for PCSAM and second degree promoting prostitution constitute double jeopardy because the offenses are the same in law and fact. In the unpublished portion of this opinion, we address Daniels' statement of additional grounds for review (SAG), where he asserts that (1) his trial counsel ineffectively assisted him by failing to call defense witnesses, failing to impeach the victim on
cross-examination, and failing to object to the second degree promoting prostitution charge on double jeopardy grounds; (2) the evidence was insufficient to support his convictions; and (3) he was subject to vindictive prosecution by the State. Holding that there is no double jeopardy because the legislature intended separate punishments for PCSAM and promoting prostitution, and rejecting Daniels' SAG claims, we affirm all three convictions.
[183 Wn.App. 111] FACTS
¶ 2 In early January 2012, David Clyde Daniels stopped and spoke with 15-year-old NJ as she walked home from a gas station. N.J. intimated that she was 19 years old and gave Daniels her phone number. Some days later, Daniels called her, and they agreed to meet at Daniels' cousin's home. Daniels believed N.J. to be 19 years old. He taught her how to post an ad on Backpage.com and recruited her as a prostitute. Over the next several weeks, Daniels had N.J. prostitute herself on his behalf, including one full day on Seattle's Aurora Avenue in King County. While N.J. " walk[ed]"  Aurora that night, however, Daniels learned from a friend that N.J. had lied about her age, which she later admitted was 15. 2 Verbatim Report of Proceedings (VRP) at 30.
¶ 3 Despite then knowing that N.J. was underage, Daniels continued to prostitute her around Tacoma. He drove her to and from the areas she would " walk," shadowed her on the street, rented motel rooms for her and her " dates," and kept all of the money she earned. 2 VRP at 33, 34.
¶ 4 On February 7, Daniels drove N.J. to the Spanaway Loop area of Pierce County for a " date" with a " John" who [183 Wn.App. 112] had contacted her through Backpage.com. 2 VRP at 41-42. After performing the sex act and receiving payment, N.J. called Daniels to pick her up. Daniels arrived with another minor female, FN, in his car. N.J. gave Daniels only half of her $90 earnings and did not tell him about the other $45, which she kept. When N.J. got into the car, Daniels demanded her phone. When N.J. refused, Daniels grabbed the phone from her, removed the battery, told FN to drive, got into the backseat with NJ, and ordered her to remove her clothes (apparently worried that she was " wired" ). 2 VRP at 46. When N.J. again refused, Daniels tore off her jacket, pinned her to the floor of the car, and hit her several times in the jaw. Daniels later let N.J. out of the car and drove off with FN.
¶ 5 The next morning, N.J. went to her former high school and reported to the assistant principal that another student had taken her cell phone. Tacoma Police Department School Resource Officer Gerald Turney interviewed NJ, who said that FN was in possession of NJ's cell phone, that David Daniels had been with FN when it was taken, and that they had been in a red Lincoln town car. Turney observed injuries on NJ, including bruising of her jaw and a cut on her lip.
¶ 6 Based on this information, Turney issued a countywide message advising law enforcement that probable cause existed for the arrest of Daniels for robbery, kidnapping, pimping, and unlawful imprisonment. That afternoon, Tacoma Police Department Officer Randy Frisbie detained Daniels after a felony traffic stop of his red Lincoln town car.
¶ 7 The State charged Daniels with PCSAM (count 1), second degree robbery (count 2), unlawful imprisonment [183 Wn.App. 113] (count 3), fourth degree assault (count 4), and second degree promoting prostitution (count 6).
¶ 8 Officers Turney and Frisbie testified to the facts previously set forth. CH testified that he had attended high school with N.J. during the 2009-10 school year. In " November(ish)" 2011, CH had seen a light-skinned girl he believes was N.J. with Daniels in a white truck at a gas station. 1 VRP at 55. In January 2012, he spoke with Daniels on the phone and informed him that N.J. was no older than 15 or 16, which revelation seemed to have surprised Daniels.
¶ 9 In addition to the facts previously set forth, N.J. testified that she was 15 years old when Daniels stopped her to talk outside a gas station in January 2012. She admitted having lied when she told him that she was 19 years old. She had agreed to meet Daniels at his cousin's house where Daniels and another male took pictures of her in her underwear, which Daniels helped N.J. post on Backpage.com with a description of herself and his contact information. ...