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State v. Sage

Court of Appeals of Washington, Division 1

December 18, 2017


          VERELLEN, C.J.

         Jonathan Sage was convicted of four counts of second degree rape of a child. The trial court did not instruct the jury that it must find each count required a "separate and distinct" act. But because the State clearly elected separate acts for each count in closing argument, testimony supported those separate acts, and the court gave a unanimity instruction, it was manifestly apparent to the jury that the State was not seeking multiple punishments against Sage for the same act. There was no double jeopardy violation.

         Sage's challenge to the admission of "other bad acts" evidence fails because the court performed a detailed ER 404(b) analysis and properly concluded the evidence of other bad acts was relevant to the charges.

         One victim glared at Sage as he entered the courtroom, and the trial court properly instructed the jury to disregard the behavior. Sage does not establish prejudice, and the trial court did not err when it denied Sage's motion for mistrial.

         The State concedes the community custody conditions restricting Sage's daily travel, prohibiting him from possessing drug paraphernalia, prohibiting Internet access, and requiring him to participate in substance abuse treatment are unconstitutionally vague or insufficiently crime related and thus should be stricken. We agree.

         After the jury entered special verdict forms unanimously finding the alleged aggravating circumstances were established beyond a reasonable doubt, the trial court concluded those aggravating circumstances were a substantial and compelling reason for imposing an exceptional sentence. Because the judge has no fact-finding role, the sentencing judge was not required to enter any additional findings of fact or conclusions of law.

         Therefore, we affirm the conviction and remand with instructions to strike the disputed community custody conditions.


         Between 2011 and 2014, Jonathan Sage engaged in sexual acts with J.M. and E.M.[1] Sage came into contact with the two brothers because he owned a company at which J.M. and E.M.'s mother worked.

         Sage took the mother and her two sons into his home after the mother and her husband divorced. They lived with Sage for a few months when the boys were eight and nine years old, and again in 2010. When Sage moved to a home on Cattail Lane in Langley, Washington, the mother, J.M., and E.M. moved into their own home on Whidbey Island. Sage continued his relationship with J.M. and E.M., including hikes and dinners. Sage bought food and clothing for them and took them to doctor's appointments.

         In 2011, after J.M. started seventh grade, he and Sage started spending more time together. Around that same time, E.M. began spending more time at Sage's house than at his mother's house. When E.M. was around 11 years old, he often slept over at Sage's house, and Sage would take him to school. E.M. said that by age 12, he and Sage began to drink alcohol together. During that time, E.M. would drink "almost every night."[2]

         E.M. testified about his first sexual encounter with Sage at the Cattail Lane house. E.M. was "more inebriated than usual, " and he and Sage were watching pornography together.[3] E.M. and Sage touched each other and then went into Sage's bedroom, where Sage had sexual intercourse with him. The first encounter with E.M. happened when he was 12 years old, toward the end of his sixth grade school year. E.M. said after that first time "it was fairly frequent, but I can't remember specifically."[4] E.M. testified, "Alcohol had to be involved really in order to [ ] get me to comply with it, I guess you could say."[5] "[I]n most cases, " the sexual encounters between E.M. and Sage involved E.M. sexually touching Sage's dog.[6] Sage instigated those contacts with the dog. E.M. testified that Sage made videos of some of their sex acts, recording them on E.M.'s phone and on Sage's digital camera. The videos would end up on Sage's laptop computer.

         By the time J.M. was in seventh grade, he started staying at the Cattail Lane house more often. J.M. testified that around that time, he had sexual intercourse with Sage for the first time. One evening, J.M. saw E.M. drinking alcohol, and J.M. said he also wanted some. It was the first time J.M. had consumed alcohol, and a single drink made him "drunk."[7] Later in the evening, J.M. and Sage went into Sage's home office, where J.M. discussed issues he was having "fitting in" at school.[8] That discussion led to Sage having sexual intercourse with J.M.

         Days later, J.M. and Sage had intercourse again. J.M. testified that for the next year, he and Sage had intercourse "a few days a week."[9] During that time, at the Cattail Lane house, J.M. walked in while Sage was having intercourse with E.M. when E.M. was 12 years old.

         For most of the 2012-13 school year, Sage lived on Bercot Road in Freeland, Washington with the mother, J.M., and E.M. J.M. was in ninth grade that year, and he testified that he continued to have intercourse with Sage. E.M., who was in eighth grade, testified that he and Sage regularly had intercourse.

         Next, Sage moved to a house on Coles Road, where he continued to have intercourse with J.M. and E.M. J.M. also walked in on E.M. and Sage having intercourse at the Coles Road house. E.M. said that when he first started to resist intercourse with Sage, "he would get angry at that."[10]

         E.M. testified that during the later period of abuse, he became unhappy.

At that point, I wouldn't say I was happy. I mean, at that time I started to contemplate suicide more. There was a Smith and Wesson M&P 9, 9 millimeter polymer framed pistol, and there was a very loose lock on it. It's a very tall lock, and I could open the case while the lock was still on it and reach in and pull out the handgun, and the ammunition was there, too. So I knew at any time I could kill myself and I could take him with me, but I decided against it because I was thinking of my own family, biological family.[11]

         The father of J.M. and E.M. had limited interaction with Sage and "thought everything was all good and well."[12] In the summer of 2014, the mother asked the father to take custody of J.M. and E.M. because she was being evicted from her home. E.M. and J.M. moved into their father's home. He allowed J.M. and E.M. to continue visiting Sage and allowed E.M. to occasionally spend weekends with him. The father felt Sage was a good mentor and role model for J.M. and E.M.

         On December 5, 2014, Sage picked up E.M. from the father's house for a sleepover. That evening, J.M. told his father about the sexual conduct with Sage. The father testified that he decided not to call Sage or drive to Whidbey to retrieve E.M. that evening. He explained, "I didn't think it would be smart to call the police and have them either [ ] pull him over in a traffic stop or come to his house. I knew he owned a firearm and I thought it may result in a hostage situation."[13]

         When confronted, Sage justified the sexual abuse, telling the father "people had been doing this for a long time" and it was "strange that it's looked down upon as far as a relationship between a man and a boy."[14] Sage told the father, "You could call the police and have me arrested. But that wouldn't do anyone any good, and a lot of people would lose their jobs."[15]

         The State charged Sage with four counts of rape of a child in the second degree. Counts 1 and 2 each alleged that Sage raped J.M. between September 1, 2011 and June 30, 2012. Each count included allegations of two aggravating circumstances that would justify an exceptional sentence under RCW 9.94A.535(3)(g) and RCW 9.94A.535(3)(n).

         Counts 3 and 4 each alleged Sage raped E.M. between December 19, 2011 and December 19, 2012. Those counts included the same aggravating factors as counts 1 and 2 and that Sage "knew that the victim of the current offense was a youth who was not residing with a legal custodian and the Defendant established or promoted the relationship for the primary purpose of victimization, contrary to RCW 9.94A.535(3)G)."[16]

         The court gave separate to convict instructions for each count. After each to convict instruction, the court gave a corresponding unanimity instruction requiring that "one particular act" of the charged crime must be proven for each count.[17]

         The jury was also instructed "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count."[18] But the jury was not instructed that each count required a separate and distinct act.

         The jury convicted Sage on all four counts and, by special verdict, found the alleged aggravating circumstances had been established. The court concluded the aggravating circumstances were substantial and compelling reasons to impose an exceptional sentence under RCW 9.94A.535.

         Sage appeals his conviction and his exceptional sentence.


         Double Jeopardy

         Sage contends the jury instructions violated his right to be free from double jeopardy because they exposed him to multiple punishments for the same offense.

         We review a double jeopardy claim de novo, and it may be raised for the first time on appeal.[19] The constitutional guarantee against double jeopardy protects a defendant against multiple punishments for the same offense.[20] We "may consider insufficient instructions 'in light of the full record' to determine if the instructions 'actually effected a double jeopardy error."'[21]

         Where multiple counts charge the same crime against the same victim occurring during the same time period, juries should be instructed that each count requires proof of a separate and distinct act.[22] But the absence of a separate and distinct act instruction is not fatal; it only creates the potential for a double jeopardy violation.[23]

         There is no double jeopardy violation where the information, instructions, testimony, and argument make it "'manifestly apparent'" to the jury that the "'State [was] not seeking to impose multiple punishments for the same offense."'[24] "A defendant charged with multiple counts is adequately protected from any risk of double jeopardy when the evidence is sufficiently specific as to each of the acts charged."[25] Courts have also looked to whether the jury was instructed that it must be unanimous on each count and whether "different evidence is introduced to support each count."[26] Courts have acknowledged that a single instruction encompassing multiple counts rather than separate to convict instructions for each count can compound double jeopardy concerns.[27]

         Sage contends it was not manifestly apparent that his conviction was based on separate and distinct acts.[28]

         Here, the sexual acts occurred at three different houses, sometimes many times per week. J.M. testified in detail about the first time he had intercourse with Sage in the office of the Cattail Lane house. J.M. was almost 13 years old.[29] J.M. testified the second time they had sexual intercourse was in the garage of the same house several days later. J.M. also described having intercourse with Sage in the living room, Sage's bedroom, and his truck.

         In closing argument, the State identified count 1 and walked the jury through the evidence presented at trial:

And Count I is focusing on [J.M.J's first sexual intercourse with Jonathan Sage. And what did you hear about that from [J.M.]? You heard [J.M.] describe how he was having trouble at school. He was emotional. He saw [E.M.] and the defendant drinking. He drank. He became emotional. The defendant was there to console him. They went in the office. They hugged. Things happened in the chair. They went to the floor. And [J.M.] described how Jonathan Sage, the defendant, had anal intercourse with [J.M.]... That was the first time he had ever had sex. He said he lost his virginity then. That's Count I. That's what I want you to consider to be Count /.[30]

         The State then discussed count 2, describing it as the same elements, same actors, but a distinct event:

[J.M.] said the second time was roughly a week later, about that much time, in the defendant's finished heated garage, kind of like a room but it was a garage. He talked about that. They again had .. . intercourse in that garage. Again, he was drinking.[31]

         E.M. also testified about his first time having sexual intercourse with Sage at the Cattail Lane house. E.M. described how he and Sage were watching pornography together, which led to Sage having intercourse with E.M. E.M. testified the first time stood out in his mind and it was "fairly frequent" after that.[32] E.M. described incidents where sexual contact with Sage's dog was initiated as a prelude to the sexual intercourse with E.M. E.M. said he also had intercourse with Sage at the Coles Road and Bercot Road houses.

         In closing argument, the State discussed counts 3 and 4 and referred to E.M.'s testimony, emphasizing details of his first time having sex with Sage: "At age 12, [E.M.] describes that the first time they ever had sexual contact or intercourse with each other they were sitting on the futon. Mr. Sage suggested] they watch some pornography together."[33] And for count 4, the State noted: "And count IV is again [E.M.]. [E.M.] described that they had sex often in the beginning after it first started. Sometimes multiple times a week but at least every week."[34]

         Sage counters that J.M. and E.M. had "fuzzy memories" and gave "ambiguous evidence" about the timing and detail of the encounters.[35] But the State presented different evidence to support each count and walked the jury through that evidence in closing: count 1, J.M.'s first encounter in the office, count 2, J.M.'s encounter one week later in the heated garage, and count 3, E.M.'s first encounter on the futon. Even if E.M. vaguely described his subsequent sexual encounters with Sage, none could be confused with E.M.'s first encounter. As argued by the State in closing, E.M.'s first encounter on the futon, count 3, was necessarily separate and distinct from any of his subsequent encounters "after it first started"[36] which the jury may have relied on to support count 4.

After each elements instruction, the court instructed:
The State of Washington alleges that the defendant committed acts of Rape of a Child in the Second Degree on multiple occasions. To convict the defendant on Count [I, II, III, IV] of Rape of a Child in the Second Degree, one particular act of Rape of a Child in the Second Degree must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of Rape of a Child in the Second Degree.[37]

         The trial court did not give a separate and distinct act instruction, but it did instruct the jury to decide each count separately: "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count."[38]

         In view of the prosecutor's election of separate and distinct events in closing, the victim's supporting testimony, the unanimity instructions given, together with separate to convict instructions for each count and the separate consideration instruction, we conclude it was manifestly apparent to the jury that the State was not seeking multiple convictions based on a single act. Sage does not establish a double jeopardy violation.

         Evidentiary Challenges

         (i) Uncharged Conduct

         Sage contends the court improperly admitted allegations of uncharged acts, including uncharged acts occurring after the charging periods.

         Before trial, the State moved to admit uncharged incidents of sexual behavior under ER 404(b). The State also moved to admit evidence that Sage and E.M. had sexual contact with Sage's dog.

         We review the trial court's interpretation of ER 404(b) de novo as a matter of law.[39] If the trial court interprets ER 404(b) correctly, we review the ruling to admit or exclude evidence of misconduct for an abuse of discretion.[40] "A trial court abuses its discretion where it fails to abide by the rule's requirements."[41]

         "ER 404(b) is a categorical bar to admission of evidence for the purpose of proving a person's character and showing that the person acted in conformity with that character."[42]

         The trial court must

"(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect."[43]

         One proper purpose for admission of evidence of prior misconduct is to show a common scheme or plan.[44]

There are two instances in which evidence is admissible to prove a common scheme or plan: (1) "where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan" and (2) where "an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes."[45]

         Here, the trial court found by a preponderance of the evidence the misconduct in the form of sexual acts beyond the charging period actually occurred, identified the purpose of admitting the evidence, determined the relevance of the evidence to prove an element of the crime, and weighed its probative value against its prejudicial effect. Specifically, the court found the evidence to be "highly probative" because it went to "the heart of the nature of the State's case."[46] The court noted the jury would not likely "give undue prejudicial effect to this evidence."[47]

         Sage also argues the trial court erred when it allowed testimony about the uncharged sexual activities with his dog. But the court acknowledged the potential for prejudice and admitted the evidence with specific limitations: "I first will exclude any evidence concerning the defendant having sexual contact with the dog that did not occur in the context of the defendant also having sexual contactwith [E.M.J."[48] The court found by a preponderance of the evidence that the sexual contact with the dog did occur. The court concluded the limited evidence was admissible under the res gestae exception because it occurred in the immediate time frame of ...

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