Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Wilkins

Court of Appeals of Washington, Division 2

October 10, 2017

STATE OF WASHINGTON, Respondent,
v.
EDWARD JAMES WILKINS, Appellant.

          JOHANSON, J.

         Edward Wilkins appeals his first degree child rape and first degree child molestation convictions. He contends that the convictions violate double jeopardy principles and that the State is judicially estopped from arguing otherwise. He further argues that the trial court should have redacted the victim's video statement, he was denied effective assistance of counsel, and he was denied a fair trial based on prosecutorial misconduct during closing argument. We affirm.

         FACTS

         In 2008, after living together for several months, Wilkins and NH's mother married. Wilkins cared for NH while NH's mother was at work.

         In March 2008, when NH was three years old, NH reported stomach pains to her mother. A week later, NH reported that her "privates hurt." 2B Report of Proceedings (RP) at 370. On March 16, 2008, accompanied by Wilkins, NH's mother took NH to the hospital. Wilkins was asked to leave the examination room. At this time, the medical staff informed NH's mother that there were signs of penetration and that NH had a blister on her genitalia. NH tested positive for herpes simplex virus 2, also known as genital herpes. Genital herpes is passed on by genital-to-genital contact. NH's mother tried to discuss the matter with Wilkins, but he would change the subject and get angry. Wilkins eventually moved out of the home, and NH's mother relocated to Idaho with NH.

         In 2011, NH began having nightmares about Wilkins and would wet her bed. NH's mother took NH to see a counselor. NH was interviewed by a forensic interviewer in Idaho in 2011. When the interviewer asked about inappropriate touching, NH stated that she did not '"want to talk about that.'" 2BRP at 407.

         A different interviewer met with NH in 2014, when NH was almost 10 years old. During the videotaped interview, NH was reluctant to speak, told the interviewer she was embarrassed, and cried. The interviewer asked NH about Wilkins. NH stated, "Well, he is a bad, bad, bad, bad person. ... He does bad things to kids, very bad things to kids." 2A RP at 301-02. NH then stated that Wilkins had "probably done it to littler kids ... or bigger. That's all I know about him." 2A RP 303-04.

         NH then described an incident when Wilkins and her mom were still married where she was playing in the living room with her siblings and Wilkins took her into his bedroom. NH disclosed that Wilkins then told her to take off her pants and underwear. Wilkins then had NH get on the bed, and he got on top of her. NH disclosed that Wilkins then '"humped"' her; NH explained that by this she meant his "bad spot . . . [w]ent up mine." 2B RP at 415, 421. NH identified Wilkins's "bad spot" as his penis. 2B RP at 423. NH then indicated that '"up mine'" referred to her vagina. 2B RP at 424.

         Detective Charles Meadows reviewed Wilkins's medical records. The records showed that Wilkins had been diagnosed with genital herpes.

         The State charged Wilkins by amended information with first degree child rape and first degree child molestation. During the hearing on the motion to amend the information, the prosecutor stated, "I think if the jury were to find him guilty on both counts, then the Court would then throw out the lower count. I think that's how it's done." 2A RP at 233. The prosecutor continued, "I think if you have two . . . then the lesser one goes away. So we do that with the understanding that if they find him guilty of both, the Court would be dismissing the child molest in the first degree at some point, or -." 2A RP at 233. The trial court then asked another question, and the prosecutor did not finish his sentence.

         When the judge questioned the prosecutor more about the amendment, the prosecutor stated, "The - especially in light of the testimony at the Ryan[1] hearing, I think the Child Molest 1 charge is appropriate. I think the evidence would definitely support that, as well as Rape of a Child 1. And so, I think because of that, this is an appropriate amendment to the charge." 2A RP at 234.

         After a pretrial Ryan hearing, the trial court granted the State's motion to allow the jury to view NH's videotaped 2014 interview. The trial court ordered that the entire interview be played so that the jury would be given the opportunity to fully evaluate NH's credibility.

         During trial, Detective Meadows testified that when he questioned Wilkins about his genital herpes, Wilkins stated that the diagnosis "wasn't enough evidence." 2B RP at 515. NH also testified. She testified that Wilkins got on top of her in the bed, his "bad spot" touched hers, and then his "bad spot" went inside her. 2A RP at 349.

         The State filed a motion to admit evidence of Wilkins's prior child rape and child molestation convictions under ER 404(b). The trial court denied the State's request, finding that the evidence did not possess the substantially high degree of similarity required for admission as a common plan or scheme.

         Wilkins then pointed out that NH's comments about Wilkins doing bad things to children during the forensic interview "may be contradictory" to the trial court's ER 404(b) ruling. 2A RP at 267. Wilkins agreed that "admissibility" may depend on how the trial court classifies the statements. The trial court distinguished NH's statements from the previously excluded prior bad act evidence by explaining that it was understandable that a child her age who believed she was hurt by a person would also believe that person would be a bad person, who did bad things to others.

         During closing, the prosecutor argued, without objection, that Wilkins made an incriminating statement to Detective Meadows. The prosecutor told jurors that saying "' [t]hat's not enough evidence'" is different than saying '"I didn't do it.'" 2C RP at 558. The prosecutor continued, "A detective is talking to you about an investigation and he points this fact out, and your response ... is, 'That's not enough evidence.' That's a pretty incriminating statement." 2C RP at 558-59.

         In rebuttal closing, the prosecutor addressed Wilkins's reliance on NH telling the interviewer in 2011 that she did not want to discuss Wilkins. The prosecutor stated, "It's not really a fair fight for a defense attorney to parse out a child's words with such great specificity. . . . She's only in the fifth grade." 2C RP at 600-01. The prosecutor went on to argue that asking NH more questions would be difficult because "[y]ou know, [NH] had to get in here and testify, at ten years old, about being raped, in front of the man who did it. How difficult would that be? So [d]efense complains we didn't ask her about her nightmares she was having about it. I think she was in here for long enough." 2C RP at 606. Wilkins did not object to these statements.

         The jury found Wilkins guilty as charged. At sentencing, the prosecutor stated, "The parties agree, we did at the time and we continue to, that that was same criminal conduct, it was based on one act that the victim testified to, so they should not count against each other on the offender score. He should be sentenced for both, he was convicted of both, but they're same criminal conduct." 2C RP at 631. The trial court agreed with both parties that the two offenses comprised the same criminal conduct, calculated Wilkins's offender score by counting the offenses as one crime, and sentenced him to 300 months on the rape conviction and 198 months on the molestation conviction, to be served concurrently. Wilkins appeals.

         ANALYSIS

         I. Double Jeopardy

         A. Judicial Estoppel

         We first address whether the State is judicially estopped from arguing that the rape and molestation convictions do not violate double jeopardy principles based on the prosecutor's statements at the hearing to amend the information.[2] The State asserts that the judicial estoppel elements have not been established. We agree.

         When deciding the applicability of judicial estoppel, we focus on three factors: (1) whether the party's later position is clearly inconsistent with its earlier position, (2) whether accepting the new position would create the perception that a court was misled, and (3) whether a party would gain an unfair advantage from the change. Miller v. Campbell, 164 Wn.2d 529, 539, 192 P.3d 352 (2008).

         During the hearing on the motion to amend the information, the prosecutor stated, "I think if the jury were to find him guilty of both counts, then the Court would then throw out the lower count. I think that's how it's done." 2ARPat233. The prosecutor continued, "I think if you have two . . . then the lesser one goes away. So we do that with the understanding that if they find him guilty of both, the Court would be dismissing the child molest in the first degree at some point, or -." 2A RP at 233. The trial court then asked another question, and the prosecutor did not finish his sentence.

         1. Clearly Inconsistent

         The prosecutor stated twice "I think" the molestation would be dismissed. 2A RP at 233. The prosecutor also stated that if the jury finds Wilkins guilty of rape and molestation, "the Court would be dismissing the child molest in the first degree at some point, or -" 2A RP at 233. The judge then asked another question, and the prosecutor did not finish his sentence. These less-than-certain statements show that the prosecutor was not certain of the result if the jury found Wilkins guilty of both offenses. As such, Wilkins cannot show that the prosecutor took a later position that was '"clearly inconsistent'" with his earlier position. Miller, 164 Wn.2d at 539 (internal quotation marks omitted) (quoting Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007)).

         2. Misleading the Trial Court

         For the same reasons that Wilkins cannot show that the prosecutor took a '"clearly inconsistent'" statement, his statements do not create the perception that the trial court was misled. Miller, 164 Wn.2d at 539 (internal quotation marks omitted) (quoting Arkison, 160 Wn.2d at 538). As the State points out, judicial estoppel is available only when the trial court adopted the inconsistent claim or position, either as a preliminary matter or as part of a final disposition. Taylor v. Bell, 185 Wn.App. 270, 282-83, 340 P.3d 951 (2014). Here, the trial court did not adopt the State's statement and dismiss the lesser charge; rather, the trial court chose not to dismiss the molestation conviction and instead counted the rape and molestation convictions as one point for offender score calculation purposes.

         3. Unfair Advantage

         The unfair advantage factor may weigh in favor of Wilkins. The State was able to receive a favorable ruling from the trial court potentially based on its argument that it believed one of the convictions would be dismissed. Ultimately, the trial court allowed both convictions. While the trial court counted them as one point for sentencing purposes, the molestation conviction is still included in Wilkins's criminal history. In this sense, the inclusion of the molestation conviction in Wilkins's criminal history could be disadvantageous to Wilkins. Nevertheless, a judicial estoppel claim requires a showing of all elements. Miller, 164 Wn.2d at 539. Since all judicial estoppel elements are not established, judicial estoppel does not preclude the State from arguing on appeal that the convictions do not violate double jeopardy principles.

         B. Double Jeopardy is Not Violated

         Wilkins next argues that his first degree child rape and first degree child molestation convictions violate the prohibition against double jeopardy because the convictions constitute the same offense. We disagree.

         "The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 9 of the Washington Constitution prohibit the imposition of multiple punishments for a single offense." State v. French, 157 Wn.2d 593, 612, 141 P.3d 54 (2006). "The legislature is tasked with defining criminal offenses, and the prohibition on double jeopardy imposes '[f]ew, if any, limitations' on that power." State v. Villanueva-Gonzalez, 180 Wn.2d 975, 980, 329 P.3d 78 (2014) (quoting Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)). "A 'defendant's double jeopardy rights are violated if he or she is convicted of offenses that are identical both in fact and in law.'" State v. Fuentes, 179 Wn.2d 808, 824, 318 P.3d 257 (2014) (quoting State v. Calk, 125 Wn.2d 769, 777, 888 P.2d 155 (1995)). If, however, each charged offense includes elements not included in the other, then the offenses are different and there is no double jeopardy violation. Fuentes, 179 Wn.2d at 824. We review double jeopardy claims de novo. Villanueva-Gonzalez, 180 Wn.2d at 979-80.

         We begin by addressing the distinction between merger and same criminal conduct. Merger is a doctrine that courts use to avoid violating a defendant's double jeopardy rights. "Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime." State v. Freeman, 153 Wn.2d 765, 772-73, 108 P.3d 753 (2005). Therefore, at sentencing, trial courts merge crimes to avoid doubly punishing behavior. State v. Whittaker, 192 Wn.App. 395, 410-11, 367 P.3d 1092 (2016).

         "Same criminal conduct" is a doctrine sentencing courts use when calculating a defendant's offender score. State v. Graciano, 176 Wn.2d 531, 535-36, 295 P.3d 219 (2013). Under former RCW 9.94A.589(1)(a) (2002), two or more crimes encompass the same criminal conduct if they entail "the same criminal intent, are committed at the same time and place, and involve the same victim." If a sentencing court makes a finding that some or all of the current offenses encompass the same criminal conduct, "then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently." Former RCW 9.94A.589(1)(a). Accordingly, the sentencing court's finding that Wilkins's rape and molestation convictions are the same criminal conduct for calculating Wilkins's offender score is distinct from the question of whether the two offenses merge. But merger and same criminal conduct doctrines do not affect the underlying convictions' validity. See State v. Tili, 139 Wn.2d 107, 128, 985 P.2d 365 (1999); former RCW 9.94A.589(1)(a).

         To determine whether multiple convictions violate the prohibition against double jeopardy, we first examine the language of the applicable statutes. State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009). If the statutes do not expressly allow for multiple convictions arising from the same act, we next determine whether two statutory offenses are the same in law and in fact. Calle, 125 Wn.2d at 777. If each offense includes elements not included in the other, the offenses are different and a presumption arises that the legislature intended to allow multiple punishments for the same act. Calle, 125 Wn.2d at 777.

         An individual is guilty of first degree child rape "when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim." RCW 9A.44.073(1). An individual is guilty of first degree child molestation "when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim." RCW 9A.44.083(1). '"Sexual contact'" is "any touching ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.