State Of Washington, Res. v. Mark Anthony Stiller, App. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 68874-0-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
MARK ANTHONY STILLER,
Appellant. FILED: April 28, 2014
Appelwick, J. — Stiller was convicted of one count of child molestation and five
counts of child rape. He challenges the trial court's refusal to find same criminal
conduct for five of the six offenses, arguing that the evidence does not show they
occurred at separate and distinct times. Stiller also raises several issues in his
statement of additional grounds, including clerical errors in the judgment and sentence.
We affirm, but remand for correction of clerical errors in the judgment and sentence.
FACTS
On January 23, 2012, the State charged Mark Stiller by amended information
with one count of first degree child molestation (Count I), in violation of RCW 9A.44.083,
and five counts of first degree child rape (Counts ll-VI), in violation of RCW 9A.44.073.
The information alleged that between October 16, 2008 and October 15, 2010, Stiller
had sexual contact with A.J.B., a female under the age of 12 (Count I). The information
further alleged that, between the same dates, Stiller had sexual intercourse with A.J.B.
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by fellatio (Count II), cunnilingus (Count III), digital anal penetration (Count IV), penile
anal penetration (Count V), and digital vaginal penetration (Count VI).
At the time of trial in January 2012, A.J.B. was 10 years old. A.J.B.'s mother
explained that she had known Stiller for 10 years and A.J.B. had known him all her life.
A.J.B. frequently played at Stiller's home and often stayed there overnight.
AJ.B.'s mother testified that on October 12, 2010, A.J.B. came to her very upset,
complaining that it "hurt to pee" and said that she had been touched by a man. A.J.B.'s
mother immediately called 911.
That same night, A.J.B. told a child sexual assault nurse practitioner that Stiller
had touched her mouth, genital area, rectal area, and breasts "'lots of times'" over the
past two years. A.J.B. told the nurse about one particular incident in September 2010
where Stiller blindfolded her, told her to hold still, and in A.J.B.'s words, "'put his privates
into my butt.'" A.J.B. also mentioned another occasion where Stiller ejaculated in her
mouth.
On October 15, 2010, A.J.B. spoke with Detective Jana Bouzek, a state certified
child interviewer. A.J.B. told Bouzek that Stiller sexually abused her from the time she
was seven and a half until a month before the police investigation. A.J.B. explained to
Bouzek that Stiller "put his pee pee in her bottom hole." A.J.B. also described incidents
to Bouzek where Stiller would have her fellate him or masturbate him while wearing
white fuzzy gloves. She told Bouzek that Stiller used his hands to touch her private
parts and her butt, and that he had put his finger inside her vagina.
At trial, A.J.B. testified that Stiller taught her how to touch his "front" and
described times when he made her use white fuzzy gloves to masturbate him. She
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testified that white stuff came out of Stiller's front three or four times. A.J.B. described
how Stiller rubbed her front and that one time he put his finger part way in her front and
it hurt. She testified that Stiller would put his tongue on her front while she was lying
down on the bed or on the floor. A.J.B. also described incidents where Stiller held her
hands while "[a]ll sorts of touching" happened. She explained that Stiller made her
touch his front most often and second most often made her touch his front with her
mouth. A.J.B. testified that all these incidents happened in Stiller's room.
The trial court instructed the jury: "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." Each "to convict" instruction referenced a specific
count and the date range October 16, 2008 to October 15, 2010.
The jury returned a special verdict form finding Stiller guilty as charged on all six
counts.
In his sentencing memorandum, Stiller argued that his six convictions should be
counted as the same criminal conduct in calculating his offender score, because the
State failed to prove beyond a reasonable doubt that the six acts occurred at different
times. Stiller asserted that there was no evidence regarding specific dates or times of
any of the incidents except the penile anal penetration.
The trial court refused to count any of Stiller's six convictions as same criminal
conduct for the purposes of sentencing. The court explained:
The question before the Court is does fState v. Dolen, 83 Wash. App.
361, 921 P.2d 590 (1996), overruled by State v. Graciano. 176 Wash. 2d
531, 295 P.3d 219 (2013)], therefore, say that under these circumstances,
the fact that the jury was not asked to and did not determine which specific
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dates of these individual acts occurred means that they must all be treated
as same criminal conduct?
Now, the same course of criminal conduct cases involves,
generally, when there's a number of multiple acts, things that happen in
fairly short succession in a matter of an hour or two hours on a particular
incident. Some of the cases that have been cited involve situations where
a defendant and the victim are together for an hour or an hour and a half.
Numerous things occur during that same period of time. It's not like
something that happens over and over again over the course of a year or
two years.
The testimony in this case as I've gone back and reviewed my
notes and my recollection of the testimony was that, clearly, the one
incident, I believe it was in September, the penile/anal contact was
described as a separate event, but it was also my recollection that the
child described numerous instances in the same room and described
different things that happened at those instances without being able to say
what date they were and what sequence they happened, but they were
separate events, and I agree that some of these things may have
happened on more than one of those events, but the testimony was there
were numerous events.
The testimony I think clearly supports the jury finding that there
were separate events that involved separate behavior, and the intent for
those behaviors is different. There are multiple dates. There are multiple,
separate acts, and I think under those circumstances, the holding in Dolen
is not necessarily controlling to this Court.
So my feeling and my belief and my finding and my decision as to
how they should be treated is that each of these offenses has been found.
Each one relates to a specific act. Each specific act has its own specific
intent to perform the act, and therefore, they aren't to be counted as same
criminal conduct. They should be counted as separate criminal conduct.
The court then imposed a standard range sentence of 198 months on Count I and 318
months on Counts ll-VI.
Stiller appeals, challenging the trial court's refusal to find same criminal conduct.
He also raises several issues in his statement of additional grounds.
No. 68874-0-1/5
DISCUSSION
I. Same Criminal Conduct
Stiller argues that the trial court abused its discretion by refusing to find that five
of his six current offenses constituted same criminal conduct in calculating his offender
score. Stiller contends that the record is devoid of any evidence showing separate and
distinct incidents for five of the charges. He further argues that the jury verdicts do not
indicate whether some or all of the charges are based on the same incident or separate
incidents. Accordingly, he asserts that the trial court's refusal to find same criminal
conduct is untenable and unsupported by the evidence. He asks us to reverse his
sentence and remand to the trial court for resentencing with a corrected offender score.
A determination of same criminal conduct at sentencing affects the standard
range sentence by altering the defendant's offender score, which is calculated by
adding a specified number of points for each prior conviction. RCW 9.94A.525;
Graciano, 176 Wash. 2d at 535-36. For the purposes of this calculation, current offenses
are treated as prior convictions. RCW 9.94A.589(1)(a). However, "if the court enters 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." \± Crimes constitute same
criminal conduct when they "require the same criminal intent, are committed at the
same time and place, and involve the same victim." ]a\ RCW 9.94A.589(1)(a) is
generally construed narrowly to disallow most claims that multiple offenses constitute
the same criminal act. Graciano, 176 Wash. 2d at 540.
We review the sentencing court's determination of same criminal conduct for
abuse of discretion or misapplication of law. Icjl at 536-37. Under this standard, when
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the record supports only one conclusion as to whether crimes constitute same criminal
conduct, the sentencing court abuses its discretion in arriving at a contrary result, jd. at
537-38. But, where the record adequately supports either conclusion, the matter lies
within the court's discretion, jd at 538.
In Dolen. the jury convicted Earl Dolen of one count of child rape and one count
of child molestation based on evidence of six separate acts of child abuse. 83 Wash. App.
at 362-63. Under the evidence, Dolen could have committed both crimes in a single
incident or in separate incidents, jd, at 363. The verdict did not specify which incident
formed the basis for each conviction. jd. At sentencing, the trial court treated the two
convictions as separate and distinct. kL at 364. The appellate court reversed, holding
that the record did not support the trial court's finding that the crimes were not part of
the same criminal conduct, because the verdict did not specify whether the crimes
occurred in the same or separate incidents. Id, at 363. The court reasoned that the
State bore the burden of proving that Dolen committed the crimes in separate incidents,
which it failed to do. Id, at 365.
The Washington Supreme Court overruled Dolen recently in Graciano. 176
Wash. 2d at 538-39. There, the jury found the defendant guilty of four counts of child rape
and two counts of child molestation, jd. at 534. The trial court expressed confidence
that each of the four rapes was separate from the others, id. However, it noted that the
record was unclear whether the defendant once raped and twice molested the victim in
a single incident or on different occasions. Jd. at 534-35. Because the record failed to
establish that these incidents were separate, the court of appeals concluded that the
time and place of the crimes were the same, jd, at 538. Thus, the court of appeals held
No. 68874-0-1/7
that the two child molestation convictions and one of the child rape convictions
constituted same criminal conduct, jd. at 535.
The Washington Supreme Court reversed the court of appeals—and Dolen—for
improperly placing the burden of proof on the State, jd at 535, 538-39, 541. The
Supreme Court held that the defendant bears the burden of production and persuasion
for same criminal conduct, jd. at 540. Each of a defendant's convictions counts
towards his offender score unless he convinces the court that they involved the same
criminal intent, same time, same place, and same victim. \164 Wash. 2d 798, 811-12,
194 P.3d 212 (2008). The jury was instructed to that effect and found Stiller guilty of
each of the six counts as charged.
No. 68874-0-1/8
Under Graciano. Stiller failed to show that five of the crimes occurred at the same
time. Therefore, we hold that the trial court did not abuse its discretion in refusing to
enter a finding of same criminal conduct.
II. Statement of Additional Grounds
Stiller raises several issues in his statement of additional grounds.
Stillerfirst argues that the State failed to prove an element of both child rape and
child molestation: that he was not married to the victim. RCW 9A.44.073; RCW
9A.44.083. He also alleges prosecutorial misconduct, because the State argued in
closing that he was not married to the victim. However, testimony at trial established
that Stiller was married to a woman named Vanessa. The victim was also seven to nine
years old at the time of the charged offenses. Every marriage in Washington in which
either person is under 17 years old is void. RCW 26.04.010(2). Therefore, by law,
Stiller could not have been married to A.J.B.
Stiller contends that the A.J.B.'s testimony violated his due process rights,
because her testimony at trial changed from her initial story. Specifically, Stiller argues
that A.J.B. first told the nurse practitioner that there was no vaginal contact. But, A.J.B.
then testified at trial that Stiller touched her front. However, Stiller had the opportunity
to cross-examine A.J.B., as well as the nurse practitioner, about this discrepancy in
A.J.B.'s story. Credibility determinations are for the jury and not subject to review.
State v. Thomas. 150 Wash. 2d 821, 874, 83 P.3d 970 (2004). Thus, we defer to the jury
on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of
the evidence, jd at 874-75. We decline to reverse on this basis.
8
No. 68874-0-1/9
Stiller next argues that the trial court impermissibly instructed the jury that they
are officers of the court. He contends that this instruction improperly aligned the jury
with the prosecutor and the judge. Jury instructions are sufficient if they correctly state
the law, are not misleading, and allow each party to argue its theory of the case. State
v. Mark. 94 Wash. 2d 520, 526, 618 P.2d 73 (1980). It is well settled that jurors are sworn
officers of the court. State v. Vega. 144 Wash. App. 914, 917, 184 P.3d 677 (2008).
Therefore, the jury instruction correctly stated the law.
Stiller contends that the grand jury provision of the Washington Territorial Code is
still good law and requires indictments in all felony cases. However, under article I,
section 25 of the Washington Constitution, the State may prosecute offenses by
indictment or information. The Fifth Amendment right to a grand jury does not apply to
state prosecutions. State v. Ng. 104 Wash. 2d 763, 775, 713 P.2d 63 (1985). Additionally,
Washington courts have found that a grand jury indictment is not required to assure due
process of law. jd. The State was not required to indict Stiller by grand jury. His
argument fails.
Stiller lastly argues that he was improperly sentenced for convictions outside the
date range originally specified in the charging document. The information alleged that
all counts of child rape and child molestation occurred between October 16, 2008 and
October 15, 2010. The to convict jury instructions specified the same date range for all
counts. However, the judgment and sentence states that Count I (child molestation)
occurred on January 1, 2007 and Count III (child rape) occurred on January 1, 2006.
Stiller correctly points out a discrepancy in two errant dates in the judgment and
sentence. The record consistently references the October 16, 2008 to October 15,
No. 68874-0-1/10
2010 date range, including the charging document, the to convict instructions, the
State's presentence investigation report, and the defendant's sentencing memorandum.
We find no reference to the January 1, 2006 and January 1, 2007 dates aside from the
judgment and sentence. The State concedes that the dates listed for counts I and II, as
well as the date for count II (April 25, 2009), are clerical errors. We agree. Accordingly
we remand to the trial court for correction of these three clerical errors in the judgment
and sentence. In re Pers. Restraint of Mayer, 128 Wash. App. 694, 701-02, 117 P.3d 353
(2005); see CrR 7.8(a).
We affirm, but remand for correction of the clerical errors in the judgment and
sentence.
WE CONCUR:
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