State Of Washington, V Joel R. Alexander ( 2014 )


Menu:
  •                                                                                                                       FILED-
    N_
    APAt:S
    tilVISION
    2014 DEC                   AM 10: 29
    T NN
    S TAa
    kF
    k'
    li
    BY
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                                            No. 44351- 1- 11
    Respondent,
    v.
    JOEL RYAN ALEXANDER,                                             PUBLISHED IN PART OPINION
    Appellant.
    LEE, J. —   Ajury found Joel Ryan Alexander guilty of attempted first degree rape of a child.
    Alexander appeals, arguing that ( 1) the criminal attempt statute violates the Washington State
    Constitution'   s single- subject and subject -in   -title   rule contained   in   article   II,   section   19; ( 2) the trial
    court' s " substantial step" jury instruction relieved the State of its burden to prove all the essential
    elements of the crime; and ( 3) the trial court erred in finding by a preponderance of the evidence
    that Alexander had two prior most serious offenses that counted as two strikes under the Persistent
    Offender Accountability Act (POAA). 1
    In the published portion of the opinion, we hold that the criminal attempt statute codified
    in RCW 9A.28. 020 does not violate article II, section 19. In the unpublished portion of the opinion,
    we address Alexander' s remaining claims and affirm his conviction and sentence.
    1
    RCW 9. 94A. 570.
    No. 44351- 1- II
    FACTS
    In 2012, Sunshine Beerbower called the Elma police after .discovering alarming online
    correspondence on the family computer between her 10- year -old son and 34- year -old Joel
    Alexander. Elma police officers responded to Beerbower' s call and coordinated an investigation
    with the Washington State Patrol. Law enforcement took over the 10- year -old' s Facebook and e-
    mail accounts and continued to communicate with Alexander. Alexander, believing that he was
    communicating with the 10- year -old boy, arranged a meeting at a park near the boy' s home to
    have sexual contact. When Alexander arrived, he was arrested.
    Alexander      was charged with attempted        first degree   rape of a child.   The trial court' s jury
    instructions included the following:
    INSTRUCTION No. 4
    To convict the defendant of the crime of attempted rape of a child in the
    first degree, each of the following elements of the crime must be proved beyond a
    reasonable doubt:
    1) That on or about April 15, 2012, the defendant did an act that was a
    substantial step toward the commission of rape of a child in the first degree.
    INSTRUCTION No. 10
    A substantial step is conduct that strongly indicates a criminal purpose and
    that is more than mere preparation.
    Suppl. Clerk'   s   Papers ( SCP)   at   38 -39.   A jury found Alexander guilty of attempted first degree
    rape of a child.
    At sentencing, the State presented evidence of Alexander' s two prior convictions of second
    degree rape   of a child.     Alexander neither objected nor stipulated to the admission of his prior
    2
    No. 44351- 1- II
    convictions.        The trial court found by a preponderance of the evidence that Alexander had
    committed two prior most serious offenses and ruled that the current offense was a most serious
    offense that counted as a strike. Accordingly, under the POAA, the trial court sentenced Alexander
    to life in prison without the possibility of parole. Alexander appeals.
    ANALYSIS
    CONSTITUTIONALITY OF THE CRIMINAL ATTEMPT STATUTE, RCW 9A.28. 020
    The Washington State Constitution               article   II, section 19    states, "   No bill shall embrace more
    than   one subject, and        that   shall   be   expressed   in the title."   Article II, section 19 established two
    specific rules: (     1) the   single- subject rule, and (      2) the   subject -in   -title   rule.   Amalgamated Transit
    Union Local 587 v. State, 
    142 Wash. 2d 183
    , 206 -07, 
    11 P.3d 762
    , 
    27 P. 3d
    . 608 ( 2000).
    Alexander argues that the criminal attempt statute2 violates the Washington State
    Constitution' s single -subject and subject -in -title rule contained in article II, section 19. Alexander
    argues that because the criminal attempt statute is unconstitutional, his conviction must be vacated
    and    the   charge   dismissed       with prejudice.     Because the criminal attempt statute does not violate
    article II, section 19, Alexander' s claim fails.
    We   review allegations of constitutional violations               de   novo.       State v. Vance, 
    168 Wash. 2d 754
    , 759, 
    230 P.3d 1055
    ( 2010).              We presume that statutes are constitutional; a party challenging
    the constitutionality of a statute bears the burden of proving the statute' s unconstitutionality
    beyond a reasonable doubt. State v. Hunley, 
    175 Wash. 2d 901
    , 908, 
    287 P.3d 584
    ( 2012).
    2 RCW 9A.28. 020.
    3
    No. 44351 - 1 - II
    The criminal attempt statute was amended in 2001 as part of the Third Engrossed Substitute
    Senate Bill ( ESSB) 6151.              ESSB. 6151 is titled: " AN              ACT Relating to the management of sex
    offenders         in the   civil commitment and criminal          justice      systems."      LAWS OF 2001, 2d Spec. Sess.
    ch.   12,    at   2196.    Among other things, the act amended the criminal attempt statute to reclassify
    some attempted sex offenses as class             A felonies. LAWS OF 2001, 2d Spec. Sess.,                         ch.   12, § 354, at
    2251.
    A.          Single- subject rule
    Article II, section 19' s first requirement is that no bill shall embrace more than one subject.
    The single- subject requirement seeks to prevent grouping of incompatible measures as well as
    pushing through            unpopular   legislation   by   attaching it to       popular or     necessary legislation." Pierce
    County       v.    State, 144 Wn.   App.   783, 819, 
    185 P.3d 594
    ( 2008).                  If the bill has a general title, it
    may constitutionally include all matters that are reasonably connected with it and all measures
    that may facilitate the          accomplishment of         the   purpose stated."          Pierce 
    County, 144 Wash. App. at 821
    ( citing Amalgamated 
    Transit, 142 Wash. 2d at 209
    ).     Conversely, " a restrictive title expressly
    limits the scope of the act to that expressed in the title" and " provisions not fairly within it will not
    be    given       force." Amalgamated 
    Transit, 142 Wash. 2d at 210
    .
    The first step in addressing the single -subject requirement is to determine whether the title
    of    the   bill is   general or restrictive.   Pierce     County,         144 Wn.   App.      at   819 -20. "'    A general title is
    3
    broad,      comprehensive, and generic[,]        as opposed           to   a restrictive   title that   is   specific and narrow, "'
    3 Pierce 
    County, 144 Wash. App. at 820
    ( quoting City ofBurien v. Kiga, 
    144 Wash. 2d 819
    , 825, 
    31 P.3d 659
    ( 2001)).
    No. 44351- 1- II
    and that " selects a particular part of a subject as the subject of the legislation" or subsets of an
    overarching subject. Pierce 
    County, 144 Wash. App. at 820
    .
    Alexander      states without argument               that ESSB 6151'         s    title   is   restrictive.    Br. of Appellant
    at 12. We disagree.
    To be    considered a general           title, the title need             not "   contain a general statement of the
    subject of an act; [     a] few well- chosen words, suggestive of the general subject stated, is all that is
    necessary."     Amalgamated 
    Transit, 142 Wash. 2d at 209
    ; see also Pierce 
    County, 144 Wash. App. at 820
    .   Here, the title of ESSB 6151 broadly relates to sex offenders in both the civil commitment
    system and the criminal justice system, and does not focus on a specific aspect of sex offenders.
    4
    Therefore,    we   hold that ESSB 6151'          s   title    is   general.       Because ESSB 6151'            s   title is   general, " great
    liberality will be indulged to hold that any subject reasonably germane to such title may be
    embraced within         the   body   of   the bill."    Amalgamated 
    Transit, 142 Wash. 2d at 207
    .
    The second step in addressing the single- subject requirement is to determine whether a
    rational unity exists among the subjects addressed in the bill. Amalgamated 
    Transit, 142 Wash. 2d at 209
    ; Pierce   County,      144 Wn.      App.      at    821. "   Rational unity requires that [the bill' s] subjects be
    reasonably     connected       to each other     and        to [ the bill' s] title.    Pierce 
    County, 144 Wash. App. at 821
    .
    4 See Citizens for Responsible Wildlife Mgmt. v. State, 
    149 Wash. 2d 622
    , 632, 636, 
    71 P.3d 644
     2003) ( holding title " Shall it be a gross misdemeanor to capture an animal with certain body -
    gripping traps,    or   to   poison an animal with sodium                  fluoroacetate      or    sodium     cyanide ?" was a general
    title);   
    Kiga, 144 Wash. 2d at 825
    ( holding title " Shall certain 199 tax and fee increases be nullified,
    vehicles exempted from property taxes, and property tax increases ( except new construction)
    limited to 2% annually ?" was a general title); Amalgamated 
    Transit, 142 Wash. 2d at 193
    , 217
    holding title " Shall voter approval be required for any tax increase, license tab fees be $ 30 per
    year for motor vehicles, and existing vehicle taxes be repealed" was a general title).
    5
    No. 44351- 1- 11
    Alexander argues that the bill is unconstitutional because it embraces many subjects, and
    that the criminal attempt statute is unrelated to transitional facilities for sex offenders or the
    classification of assault with sexual motivation. We disagree.
    Here, a rational unity exists because ES SB 6151 amended the criminal attempt statute to
    reclassify some attempted sex offenses as class A felonies. LAws OF 2001, 2d Spec. Sess., ch. 12,
    354,   at   2251.      The   amendments   to the    criminal attempt statute are      reasonably   connected to the
    other subjects relating to the management of sex offendersthe amendment creates greater
    penalties for offenders who attempt to commit sex offenses. Also, a rational unity exists because
    the subjects addressed in the bill are reasonably connected to each other ( all related to sex
    offenders) and to the bill' s title (management of sex offenders in the criminal and civil systems).
    Therefore, Alexander fails to prove beyond a reasonable doubt that ESSB 6151 violated article II,
    section 19. Accordingly, his argument that the criminal attempt statute violates the single- subject
    rule fails.
    B.        Subject -in -title rule
    The second requirement of article II, section 19 is that a bill' s subject must be stated in its
    title.   Amalgamated 
    Transit, 142 Wash. 2d at 217
    ; Pierce   County,   144 Wn.   App.   at   822.   This
    requirement seeks to provide notice of the bill' s contents to the public and to legislators.
    Amalgamated 
    Transit, 142 Wash. 2d at 217
    . " This requirement is satisfied if the title of the act gives
    notice that would lead to an inquiry into the body of the act or indicates the scope and purpose of
    the   law to   an   inquiring    mind."   Pierce 
    County, 144 Wash. App. at 822
    ( citing Amalgamated 
    Transit, 142 Wash. 2d at 217
    ).   A title does not need to provide details or be an exhaustive index.
    Amalgamated 
    Transit, 142 Wash. 2d at 217
    . "   Any objections to a title must be grave, and the conflict
    6
    No. 44351 - 1 - II
    between it and the constitution palpable, before we will hold an act unconstitutional for violating
    the   subject -in   -title   requirement."    Pierce 
    County, 144 Wash. App. at 822
    .
    To the extent that Alexander argues that ESSB 6151 violates the subject -in -title rule, his
    argument is meritless. Here, the full title of the act reads:
    AN ACT Relating to the management of sex offenders in the civil
    commitment and criminal justice systems; amending RCW 71. 09. 020, 36.70A. 103,
    36. 70A.200, 9. 94A.715, 9. 94A.060, 9. 94A. 120, 9. 94A. 190, 9. 94A.390, 9. 94A.590,
    9. 94A.670, 9. 95. 005, 9. 95. 010, 9. 95. 011, 9.95. 017, 9. 95. 020, 9. 95. 032, 9. 95. 052,
    9. 95. 055, 9. 95. 064, 9. 95. 070, 9. 95. 080, 9. 95. 090, 9. 95. 100, 9. 95. 110, 9. 95. 115,
    9. 95. 120, 9. 95. 121, 9. 95. 122, 9. 95. 123, 9. 95. 124, 9. 95. 125, 9. 95. 126, 9. 95. 130,
    9. 95. 140, 9. 95. 190, 9. 95. 250, 9. 95. 280, 9. 95. 290, 9. 95. 300, 9. 95. 310, 9. 95. 320,
    9. 95. 340,        9. 95. 350,   9. 95. 360,    9. 95. 370,   9. 95. 900,     9A. 28. 020,   9A.36. 021,
    9A.40. 030, 9A.44. 093, 9A.44. 096, 9A.44. 100, 9A. 76.—                    and 72. 09. 370; reenacting
    and amending RCW 9. 94A.030, 9. 94A.320, 18. 155. 020 and 18. 155. 030; adding
    new sections to chapter 71. 09 RCW; adding new sections to chapter 72. 09 RCW;
    adding new sections to chapter 9. 94A RCW; adding new sections to chapter 9. 95
    RCW; adding a new section to chapter 4.24 RCW; creating new sections; repealing
    RCW 9. 95. 0011 and 9. 95. 145; prescribing penalties; providing an effective date;
    providing expiration dates; and declaring an emergency.
    LAws      OF   2001, 2d Spec. Sess.,          ch.   12,   at   2196.    The   subject   at   issue ( amendment of RCW
    9A. 28. 020) is clearly         expressed    in the title     of   ESSB 6151.    The bill has an overarching theme
    related to the management of sex offenders and the title references the criminal attempt statute.
    The title notifies an interested reader that the amendments to the criminal attempt statute relate to
    the management          of sex offenders.       Because the title gives notice of the subjects contained within
    the legislation, Alexander' s claim that the criminal attempt statute violates the subject -in -title rule
    fails.
    Accordingly, we hold that the criminal attempt statute codified in RCW 9A,28. 020 does
    not violate the Washington State Constitution' s single- subject and subject -in -title rule contained
    in article II, section 19.
    7
    No. 44351- 1- II
    A majority of the panel having determined that only the foregoing portion of the opinion
    will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
    record in accordance with RCW 2. 06. 040, it is so ordered.
    ANALYSIS
    JURY INSTRUCTION
    Alexander    argues    that the trial    court     erroneously defined "     substantial      step"   in its jury
    instruction, which relieved the State of its burden to prove all elements of the crime beyond a
    reasonable   doubt.     Br.    of    Appellant   at   15.    Specifically,   he   argues   that ( 1)    the instruction
    erroneously included the phrase " indicates a criminal purpose" instead of "corroborative of the
    actor' s criminal purpose" as stated in State v. Workman, 5 and ( 2) the instruction allowed the jury
    to convict based on intent to commit a crime, and not the specific crime charged. Br. of Appellant
    at 16.
    Alexander' s claim fails under our decision in State v. Davis, 
    174 Wash. App. 623
    , 635, 
    300 P.3d 465
    ( 2013).    In Davis, we considered and rejected the same arguments Alexander makes here.
    Davis specifically rejected the arguments that Workman requires the jury instruction to use the
    word " corroborate"     rather      than " indicate,"   and that the instruction allowed the jury to convict if
    the defendant' s     conduct   indicated the intent to       commit   any    crime.   
    Davis, 174 Wash. App. at 636
    that " the Supreme Court        has   not mandated use of    the   word `` corroborates, "'      and " there is
    holding
    no authority that the State must show independent evidence of intent ").
    5 State v. Workman, 
    90 Wash. 2d 443
    , 451, 
    584 P.2d 382
    ( 1978).
    8
    No. 44351- 1- II
    Alexander asks us to reconsider our decision in Davis. However, Alexander has not offered
    any authority for his interpretation of Workman or any authority to support his comment that Davis
    should      be    reconsidered.    Davis is controlling, and we reject Alexander' s assertion that the
    substantial step" jury instruction was erroneous because it relieved the State of its burden of
    proving all elements of the crime beyond a reasonable doubt.
    PRIOR OFFENSE
    Alexander argues that prior most serious offenses must be proved to a jury beyond
    a reasonable doubt because they elevate the seriousness of the current offense. Br. of Appellant at
    23. We disagree.          The United States Supreme Court in Apprendi v. New Jersey, relying on
    6
    Almendarez -Torres        v.   United States,       said   that "[   o] ther than the fact ofa prior conviction, any fact
    that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted
    to   a   jury,   and proved    beyond   a reasonable        doubt. "'      Apprendi v. New Jersey, 
    530 U.S. 466
    , 490,
    
    120 S. Ct. 2348
    , 2362, 
    147 L. Ed. 2d 435
    ( 2000) (                       emphasis added);   see United States v. Pacheco -
    9th
    Zepeda, 
    234 F.3d 411
    , 414 (                  Cir. 2000) (       noting that Apprendi " unmistakably carved out an
    exception for ``prior convictions' that specifically preserved the holding of Almendarez -Torres "),
    cert.     denied, 532 U. 
    532 U.S. 966
    ( 2001).            The Supreme Court in Blakely v. Washington reiterated
    the same exception for prior convictions. 
    542 U.S. 296
    , 301, 
    124 S. Ct. 2531
    , 2536, 
    159 L. Ed. 2d 403
    ( 2004).
    Alexander argues, however, that the most recent Supreme Court case of Alleyne v. United
    States     eliminates   the Apprendi exception             for   prior convictions.   
    133 S. Ct. 2151
    , 2160, 
    186 L. Ed. 6
    Almendarez- Torres v. United States, 
    523 U.S. 224
    , 
    118 S. Ct. 1219
    , 
    140 L. Ed. 2d 350
    ( 1998).
    9
    No. 44351- 1- 11
    2d 314 ( 2013).    But, Alleyne explicitly noted that the Apprendi exception for prior convictions was
    not raised and    the court was not addressing it.    
    133 S. Ct. 2160
    , n. 1.
    Further, our Supreme Court recently considered and rejected this issue in State v.
    Witherspoon, 
    180 Wash. 2d 875
    , 
    329 P.3d 888
    ( 2014). There, the Supreme Court                   said, "   Like Blakely,
    nowhere     in Alleyne did   the Court   question    Apprendi 's   exception    for   prior    convictions.     It is
    improper for us to read this exception out of Sixth Amendment doctrine unless and until the United
    States Supreme Court      says otherwise."   
    Witherspoon, 180 Wash. 2d at 892
    . The Witherspoon court
    went on to say that the " United States Supreme Court precedent, as well as [ Washington]' s own
    precedent, dictate that under the POAA, the State must prove previous convictions by a
    preponderance of the evidence and the defendant is not entitled to a jury determination on this
    issue."   
    Witherspoon, 180 Wash. 2d at 894
    .
    Witherspoon is controlling.    Thus, the trial court did not err in finding by a preponderance
    of the evidence that Alexander had two prior most serious offenses that counted as strikes under
    the POAA.
    We affirm Alexander' s conviction and sentence.
    We concur:
    0
    liVit.
    Worswick, P. J.
    10