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.
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.
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
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.
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.
we affirm the conviction and remand with instructions to
strike the disputed community custody conditions.
2011 and 2014, Jonathan Sage engaged in sexual acts with J.M.
and E.M. Sage came into contact with the two
brothers because he owned a company at which J.M. and
E.M.'s mother worked.
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
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."
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. 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." E.M. testified, "Alcohol had to be
involved really in order to [ ] get me to comply with it, I
guess you could say." "[I]n most cases, " the
sexual encounters between E.M. and Sage involved E.M.
sexually touching Sage's dog. 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.
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." 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. That discussion
led to Sage having sexual intercourse with J.M.
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." 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.
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.
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
testified that during the later period of abuse, he became
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
father of J.M. and E.M. had limited interaction with Sage and
"thought everything was all good and
well." 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.
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
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." 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
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).
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
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
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." But the jury was not instructed that
each count required a separate and distinct act.
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.
appeals his conviction and his exceptional sentence.
contends the jury instructions violated his right to be free
from double jeopardy because they exposed him to multiple
punishments for the same offense.
review a double jeopardy claim de novo, and it may be raised
for the first time on appeal. The constitutional guarantee
against double jeopardy protects a defendant against multiple
punishments for the same offense. We "may consider
insufficient instructions 'in light of the full
record' to determine if the instructions 'actually
effected a double jeopardy error."'
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. But the absence of a separate and
distinct act instruction is not fatal; it only creates the
potential for a double jeopardy
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."' "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." 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." Courts have acknowledged that a single
instruction encompassing multiple counts rather than separate
to convict instructions for each count can compound double
contends it was not manifestly apparent that his conviction
was based on separate and distinct acts.
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. 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
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 /.
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.
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. 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
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." 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
counters that J.M. and E.M. had "fuzzy memories"
and gave "ambiguous evidence" about the timing and
detail of the encounters. 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" 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.
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
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.
contends the court improperly admitted allegations of
uncharged acts, including uncharged acts occurring after the
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
review the trial court's interpretation of ER 404(b) de
novo as a matter of law. 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. "A trial court abuses its
discretion where it fails to abide by the rule's
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
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
proper purpose for admission of evidence of prior misconduct
is to show a common scheme or plan.
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
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." The court noted the jury would not
likely "give undue prejudicial effect to this
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." 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 ...