State v. Chavis , 31 Wash. App. 784 ( 1982 )

Roe, J.

(concurring in part in the result and dissenting in part)—Defendant Chavis was convicted of third degree statutory rape, RCW 9A.44.090, the elements of which require the defendant to be a person over 18 years of age who engaged in sexual intercourse with another person, not married to the perpetrator, who is 14 years of age or older but less than 16. Mr. Chavis represented himself at the bench trial, having waived his right of a jury trial and refused the services of an attorney after questioning by two judges.

In my view it is inappropriate to decide if there was any error in accepting the waiver of counsel because the case should be reversed and dismissed in the interests of justice since an element of the crime, that is that the defendant was not married to the victim, was neither proved at the trial nor was there such a finding of fact made by the trial court. The deputy prosecutor never asked either the complaining witness or the defendant if they were married to each other. The only testimony touching upon this was a few questions by the judge regarding how long they had known each other. The answer given would not preclude a hasty marriage in a nearby state which, as is well known, sometimes happens. Apparently the prosecutor attached no significance to this element of the crime since it was never included in the findings of fact prepared by her and presented to the judge for signature. Although this was not urged on appeal, nevertheless, it is the duty of this court in its solicitude for justice and to avoid injustice not to affirm a conviction when one of the elements is neither proved nor found.

A comment should also be made as to the following: Since statements of the defendant made to a policewoman were introduced at trial, CrR 3.5 provides for a hearing before the statement of the accused is to be offered. In the verbatim report it appears this hearing was delayed to the date of trial, which is an acceptable procedure, but the record is silent that the court complied with CrR 3.5 which refers to the duty of the court (b) to inform the defendant of certain rights, and (c) to make a record as to the undisputed facts, the disputed facts and the conclusions. A reading of the verbatim report would indicate that the statement of the accused came in through the testimony of the policewoman after she stated the Miranda warnings were given and waived. If the court did comply with CrR 3.5, it should have been made a part of the record, particularly in this case where the defendant represented himself so we could be assured the rules were followed.