State Of Washington, V. Antonio Pierce Godfrey ( 2023 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    THE STATE OF WASHINGTON,                          No. 85002-4-I
    Respondent,
    v.                                UNPUBLISHED OPINION
    ANTONIO PIERCE GODFREY,
    Appellant.
    BOWMAN, J. — Antonio Pierce Godfrey appeals his jury convictions for
    domestic violence (DV) second degree rape and DV first degree incest of his
    daughter. He argues that the trial court denied him his constitutional right to a
    unanimous jury verdict by failing to give a unanimity instruction. Because
    Godfrey’s actions were a continuing course of conduct, the court did not err, and
    we affirm his convictions. But we remand for the trial court to strike the $500
    victim penalty assessment (VPA) from his judgment and sentence under the
    recent amendments to RCW 7.68.035.
    FACTS
    A.G. is Godfrey’s biological daughter and one of his seven children. In
    about 2010, after graduating high school, she moved to Ohio and had limited
    contact with Godfrey. After a few years, A.G. resumed contact with him. Around
    2012, she started returning to Seattle regularly to visit her family and sometimes
    stayed with Godfrey in his one-room studio apartment. When she stayed with
    Godfrey, A.G. slept on a raised futon couch “in front of his bed.”
    No. 85002-4-I/2
    A.G. moved back to Seattle in January 2021. She stayed in hotels or with
    different family members and saw Godfrey for their weekly “dad-daughter day.”
    On June 24, Godfrey and A.G. spent the day together. They bought cannabis at
    a dispensary, which was common. But they also bought cocaine from one of
    A.G.’s brothers, which was “unusual.” A.G. and Godfrey smoked the cannabis
    throughout the day. A.G. also took a Benadryl allergy pill early in the afternoon.
    That evening, they returned to Godfrey’s apartment. A.G. was living with
    her nephew’s mother at the time. But because it was late, she decided to stay
    the night. Godfrey and A.G. smoked more cannabis and A.G. rubbed cocaine on
    her gums. They talked and watched movies. A.G. fell asleep on the futon at
    about 10:30 p.m. When she woke up around 1:00 a.m., Godfrey was “still up.”
    They talked more, listened to music, and smoked cannabis until about 4:00 a.m.
    A.G. then fell back asleep on the futon, which was covered with a blanket. She
    was fully clothed in her jeans and T-shirt and covered with a comforter.
    About an hour later, A.G. woke to find her shirt and bra “pushed up” and
    her “breasts completely . . . exposed.” Her jeans and underwear were at her
    ankles and her right leg was completely out of them. Godfrey was naked and
    “caressing” A.G.’s breasts. He was performing oral sex on her, and A.G. felt like
    Godfrey had also penally raped her. A.G. screamed, “ ‘What the [fuck]? Are you
    serious? . . . What did you do?’ ” Godfrey, who “was aroused,” ran to the kitchen
    area and repeatedly apologized.
    A.G. ran from Godfrey’s apartment while putting her clothes back on. She
    immediately called her oldest brother and told him what happened. Then she
    2
    No. 85002-4-I/3
    called her nephew’s mother to come get her. While she waited, Godfrey called
    her several times, but she did not answer. He then started texting her. A.G.
    texted back:
    “How could you do this to me, Dad? I trusted you. I trusted you
    with my life and you have sex with me in my sleep. I’m your
    daughter. I feel so disgusted. I just want to go home. I’m never
    coming back here.”
    Godfrey replied, “ ‘I [am] really sorry, I can’t lose you, I’m going to end my life. I
    didn’t do nothing.’ ” A.G. texted, “ ‘I know what you did, so do you, and you will
    have to live with this for the rest of your life.’ ” Godfrey replied, “ ‘I said I was
    sorry.’ ” After waiting about 10 minutes, A.G.’s family member arrived and took
    her home.
    A.G. showered when she got home and decided to call the police about an
    hour later. The next day, she underwent a sexual assault examination. The
    nurse swabbed A.G.’s vagina and other parts of her body. The Washington
    State Patrol Crime Laboratory (WSPCL) then tested the swabs. The swabs of
    A.G.’s vagina did not detect semen but they showed the presence of Godfrey’s
    DNA.
    The State charged Godfrey with one count of second degree rape and one
    count of first degree incest, both with DV designations. At the time of trial, A.G.
    was 30 years old. The jury convicted Godfrey as charged. At sentencing, the
    court imposed 34 months of confinement for the incest conviction and a
    concurrent, indeterminate sentence of 114 months to life for the rape conviction.
    The court found Godfrey indigent and waived all discretionary legal financial
    obligations (LFOs).
    3
    No. 85002-4-I/4
    Godfrey appeals.
    ANALYSIS
    Godfrey argues the trial court denied him his constitutional right to a
    unanimous jury verdict by failing to give a unanimity instruction. He also asserts
    a recent amendment to the LFO statute requires we strike the $500 VPA from his
    judgment and sentence.
    Unanimity Instruction
    Godfrey argues that the trial court violated his right to a unanimous jury
    verdict because “there were two distinct acts which could have been the basis for
    the guilty verdicts” and the court did not instruct the jury on unanimity. The State
    argues that a unanimity instruction was unnecessary because the acts
    constituted a continuing course of conduct. Whether or not a unanimity
    instruction was required in a particular case is a question of law we review de
    novo. State v. Lee, 12 Wn. App. 2d 378, 393, 
    460 P.3d 701
     (2020).
    Criminal defendants in Washington have a constitutional right to a
    unanimous jury verdict under article I, section 21. State v. Smith, 
    159 Wn.2d 778
    , 783, 
    154 P.3d 873
     (2007). If the State presents evidence of multiple acts of
    misconduct that could support conviction of a single count, either the State must
    elect which act it will rely on for a conviction, or the trial court instructs the jury
    that it must unanimously agree that the State proved a specific criminal act
    beyond a reasonable doubt. State v. Coleman, 
    159 Wn.2d 509
    , 511-12, 
    150 P.3d 1126
     (2007). But this rule applies only where the State presents evidence
    of “ ‘several distinct acts.’ ” State v. Handran, 
    113 Wn.2d 11
    , 17, 
    775 P.2d 453
    4
    No. 85002-4-I/5
    (1989)1 (quoting State v. Petrich, 
    101 Wn.2d 566
    , 571, 
    683 P.2d 173
     (1984)). In
    cases involving a “ ‘continuing course of conduct,’ ” the State need not elect
    which act proves a conviction, nor does the trial court need to provide a
    unanimity instruction. 
    Id.
     (quoting Petrich, 
    101 Wn.2d at 571
    ).
    In determining whether more than one act amounts to a continuing course
    of conduct, we consider such facts as the time between the criminal acts and
    whether they involved the same party, location, and ultimate purpose. State v.
    Love, 
    80 Wn. App. 357
    , 361, 
    908 P.2d 395
     (1996). And rather than rely on a
    steadfast rule, we evaluate these facts in a “commonsense manner.” Handran,
    
    113 Wn.2d at 17
    . So, while evidence that the charged conduct occurred at
    different times and places tends to show that several distinct acts occurred,
    evidence that a defendant engaged in a series of actions intended to secure the
    same objective supports a continuous course of conduct. State v. Fiallo-Lopez,
    
    78 Wn. App. 717
    , 724, 
    899 P.2d 1294
     (1995).
    Lee and Handran are instructive. In Lee, the defendant Lee strangled the
    victim K.H. in her living room and kitchen, then chased her to the bedroom where
    he removed her clothes and penetrated her with his penis. 12 Wn. App. 2d at
    384-85. When he could not stay aroused, Lee penetrated her digitally. Id. at
    385. We concluded that the acts amounted to a continuing course of conduct
    because the defendant’s “acts of sexual penetration involved the same victim,
    K.H., occurred in one place, K.H.’s bed, occurred within a brief period of time,
    1
    Internal quotation marks omitted.
    5
    No. 85002-4-I/6
    less than 10 minutes, and occurred for the single purpose of Lee’s sexual
    gratification.” Id. at 397.
    In Handran, the defendant climbed through his sleeping ex-wife’s
    apartment window and kissed her while he was nude. 
    113 Wn.2d at 12
    . She
    told him to leave, but the defendant pinned her down and hit her in the face. 
    Id.
    The State charged the defendant with one count of first degree burglary but did
    not elect which assault was the predicate for the charge, and the trial court did
    not give the jury a unanimity instruction. 
    Id. at 12-13
    . Our Supreme Court
    concluded, “Under a commonsense evaluation of these facts, the actions
    evidence a continuing course of conduct to secure sexual relations with [the
    victim] . . . rather than several distinct acts.” 
    Id. at 17
    .
    Here, A.G. fell asleep at 4:00 a.m. and woke to Godfrey performing oral
    sex on her around 5:00 a.m. She testified that she believed Godfrey had also
    penetrated her with his penis. The evidence shows that both acts occurred at
    nearly the same time, in the same place, with the same victim, and with the
    single ultimate purpose of Godfrey’s sexual gratification. Godfrey’s actions
    amount to a continuing course of conduct.2
    Godfrey argues that the acts do not amount to a continuing course of
    conduct because “there is no evidence they occurred within a relatively short
    time frame like the 5 minutes in Lee or within a few minutes like in Handran.” But
    case law shows there is no minimum amount of time between acts for them to be
    2
    Second degree rape and first degree incest are separate offenses, but the
    double jeopardy clause does not prevent convictions—and attendant penalties—for both
    offenses arising out of a single act of intercourse. State v. Calle, 
    125 Wn.2d 769
    , 782,
    
    888 P.2d 155
     (1995).
    6
    No. 85002-4-I/7
    continuous. Indeed, our Supreme Court found a continuing course of conduct
    when a defendant inflicted several fatal injuries over a 2-hour period on the same
    victim. State v. Crane, 
    116 Wn.2d 315
    , 330, 
    804 P.2d 10
     (1991). In State v.
    Craven, 
    69 Wn. App. 581
    , 588-89, 
    849 P.2d 681
     (1993), the trial court did not err
    in failing to give a unanimity instruction where the defendant abused the same
    victim over 3 weeks. And in State v. Marko, 
    107 Wn. App. 215
    , 220-21, 
    27 P.3d 228
     (2001), the defendant’s threatening statements to different people during a
    90-minute time period did not require a unanimity instruction to support a
    conviction of witness tampering.
    Here, a commonsense evaluation of the facts shows Godfrey engaged in
    a continuing course of conduct. The trial court did not err by failing to instruct the
    jury on unanimity.3
    VPA
    Godfrey argues we should remand for the trial court to strike the VPA from
    his judgment and sentence under RCW 7.68.035(4). The State concedes the
    issue. We accept the State’s concession.
    Courts may not impose discretionary LFOs on indigent defendants. State
    v. Ramirez, 
    191 Wn.2d 732
    , 747, 
    426 P.3d 714
     (2018). That prohibition applies
    prospectively when the legislature amends an LFO statute pending appeal. 
    Id. at 749
    . Here, when the trial court sentenced Godfrey in February 2023, the $500
    3
    In Godfrey’s statement of additional grounds for review, he argues that “no
    evidence [was] found at the [crime] scene or semen.” He also points out that law
    enforcement did not test the blanket that A.G. slept on during the rape and asks why
    A.G. “never woke up.” But WSPCL found his DNA on the swab of A.G.’s vagina, and
    she did eventually wake up during the assault. In any event, Godfrey offers no legal
    argument to support his contentions, so we do not address them. See RAP 10.3(a)(6).
    7
    No. 85002-4-I/8
    VPA was mandatory under former RCW 7.68.035(1)(a) (2018). But while
    Godfrey’s appeal was pending, the legislature amended the LFO statute to
    prohibit imposing a VPA “if the court finds that the defendant, at the time of
    sentencing, is indigent as defined in RCW 10.01.160(3).” RCW 7.68.035(4);
    LAWS OF 2023, ch. 449, § 1 (effective July 1, 2023). The parties do not dispute
    that the sentencing court found Godfrey indigent. Accordingly, we remand for the
    trial court to strike the $500 VPA from Godfrey’s judgment and sentence.
    We affirm Godfrey’s convictions but remand to strike the VPA.
    WE CONCUR:
    8
    

Document Info

Docket Number: 85002-4

Filed Date: 11/27/2023

Precedential Status: Non-Precedential

Modified Date: 11/27/2023