DocketNumber： No. 65376-3
Judges： Alexander, Madsen
Filed Date： 3/22/2001
Status： Precedential
Modified Date： 10/19/2024
Defendant Paul C. Gore challenges his convictions for two counts of first degree rape and two counts of attempted first degree rape. He contends that he
Facts
Defendant was convicted of two counts of first degree rape and two counts of attempted first degree rape. He was acquitted on a third count of attempted rape. The facts are briefly set forth here. Additional facts relating to Gore’s challenges will be set forth in the discussion of the issues.
Count 1. On February 17, 1993, 12-year-old A.O. was walking to school on a wooded trail. She saw a man she had seen the day before. He walked onto the trail, then turned and grabbed her. He dragged her off the trail and raped her. DNAfound in semen in A.O.’s underpants was tested by two laboratories, each of which found a match with Gore’s DNA. The FBI (Federal Bureau of Investigation) lab results showed that the likelihood of a random match using restricted fragment length polymorphism analysis was less than 1 in 90 million. The second lab conducted polymerase chain reaction tests, and determined the likelihood of a random match was 1 in 34,000 Caucasian Americans.
Count 2. In February 1994, K.S. was walking to catch a bus to work when she encountered a man on the street. A few days later, on February 11, she encountered the same man wearing a ski mask. He picked her up from behind and carried her into nearby woods. He stuck a knife in her back
Count 4. On April 13, 1995, 14-year-old C.C. was going to school using a trail through woods. A man grabbed her from behind, dragged her off the trail, and raped her. C.C. did not pick Gore’s picture out of a photomontage; instead she picked another person. This fact was not included in an affidavit in support of a search warrant issued July 5, 1995.
Count 5. On May 9, 1995, 13-year-old H.L. was walking home on a trail through woods when a man grabbed her, dragged her along the trail and threw her down. He apparently saw some people, and ran off. Kevin Craft lived nearby and at approximately the time of the attack saw a car parked in front of his house that was later traced to Gore. He saw a man jump from the car and run into the woods. Mr. Craft did not select anyone from a photomontage in which Gore’s picture appeared. This fact was not included in the affidavit in support of the July 5, 1995, search warrant.
The July 5, 1995, search warrant was based upon an affidavit signed by a Lake Stevens officer, but largely prepared by a Snohomish County officer. It authorized the seizure of blood and saliva samples, and photographs of Gore. A second search warrant was issued in December, again based in part on information supplied by the Snohomish County officer. Gore moved to suppress the evidence obtained under both of the warrants on the grounds that the supporting affidavits omitted material facts—including the fact that C.C. picked another person in the photomontage and the fact that Mr. Craft did not pick Gore’s picture out of the photomontage. As to the July 5, 1995, search warrant, the trial court, Judge Krese, held that omitted material was not material to the probable cause determination. As to the second search warrant, a different judge, Judge Castleberry, held an evidentiary hearing, at the conclusion of which he found that omitted material was not material and that the omissions were not made deliberately or with reckless disregard for the truth.
A seven-day pretrial hearing was held to determine admissibility of DNA evidence under Frye
Following Gore’s convictions, the trial court imposed consecutive sentences for the offenses as required by RCW 9.94A.400(1)(b) and RCW 9.94A.030(34).
Gore’s motion for direct review by this court was granted.
Analysis
I. Sufficiency of the affidavit in support of the search warrant
Gore contends that material facts were omitted from the affidavit in support of the July 5, 1995, search warrant. The July 5, 1995, search warrant for saliva, blood, and photographs of Gore was prepared following a meeting between Detective Terry Deverse of the Everett police, who was investigating the attack on H.L., Officer Ron Brooks of the Lake Stevens police, who was investigating the rape of
Gore contends that two material facts were omitted from the affidavit:
A search warrant may be issued only upon a determination of probable cause, which exists when an affidavit supporting the search warrant sets forth sufficient facts to lead a reasonable person to conclude that the defendant probably is involved in criminal activity. In re Pers. Restraint of Yim, 139 Wn.2d 581, 594, 989 P.2d 512 (1999); State v. Cord, 103 Wn.2d 361, 365-66, 693 P.2d 81 (1985). If a
defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.
Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). Allegations of negligence or innocent mistake are insufficient. Franks, 438 U.S. at 171; State v. Garrison, 118 Wn.2d 870, 872, 827 P.2d 1388 (1992). If the defendant makes this preliminary showing, and at the hearing establishes the allegations by a preponderance of the evidence, the material misrepresentation will be stricken from the affidavit and a determination made whether as modified the affidavit supports a finding of probable cause. Cord, 103 Wn.2d at 367. If the affidavit fails
The Franks test for material misrepresentations applies to allegations of material omissions. Cord, 103 Wn.2d at 367; Garrison, 118 Wn.2d at 873. If the defendant makes the required preliminary showing of intentional material omissions or material omissions made with reckless disregard for the truth, and establishes the allegations at a hearing by a preponderance of the evidence, the omitted material is included in the affidavit to make the determination whether the affidavit supports a finding of probable cause. Garrison, 118 Wn.2d at 873. If, as modified, the affidavit does not support a probable cause finding, the search warrant is invalid.
The biological samples and photographs named in the search warrant were sought as evidence that Gore committed the crime against C.C. However, the information in the affidavit concerns the crimes against both C.C. and H.L., with the facts tending to show that the same person committed both crimes. Information in the affidavit tended to establish probable cause to believe that Gore was the person who committed the crime against H.L. and, because the affidavit tended to show the same person committed both crimes, that evidence of the crime against C.C. would be found in and on Gore’s person.
The affidavit provides that on April 13, 1995, in Lake Stevens, C.C. was walking through the woods to school when attacked from behind by a man who dragged her back to a pile of boughs and raped her. He was wearing a nylon mask (lady’s hosiery) over his head which had an opening over his eyes either cut or torn into the nylon. C.C. did not recall any facial hair, and described the attacker’s jacket as a thin black coat, possibly Gortex, and said that he wore blue jeans, possibly Levis. C.C. said the attacker was taller than she was (she was about five feet tall), and was a white, strongly built male. He had little or no pubic hair.
On May 9, 1995, in Everett, H.L. was grabbed from behind by a man while she was walking home through
In the trial court’s findings and conclusions denying a Franks hearing, the court reasoned that as to H.L.’s case, the description of the attacker was consistent with the physical description of Gore. Also, witness Craft saw a car registered to Gore’s wife stop about a block from the attack site and a man jump from the car and run into the woods where H.L. was attacked at about the time she was at
The trial court concluded that the omissions asserted by Gore are not significant to a determination of probable cause, and therefore Gore did not make the requisite preliminary showing that a Franks hearing was required. In light of this conclusion, Judge Krese did not examine the issue of whether the asserted omissions were intentional or made with reckless disregard for the truth. Turning first to the failure to state that C.C. had not identified Gore in a photomontage, but instead had selected another person, Judge Krese said that omission of this fact is not significant because a mask covered the attacker’s face and the opportunity to observe was limited. As set forth in the affidavit, C.C. was attacked from behind and dragged back to the site of the attack. As to the second omitted fact, the judge said that the fact that witness Craft did not identify Gore in the photomontage as the person running from the vehicle and into the trail head where H.L. was attacked was not significant because of the limited opportunity for the witness to observe the man.
We agree that neither omitted fact is material to the determination of probable cause. The fact that C.C. did not pick Gore out of a photomontage is not material to the
As to both omitted facts, this case is similar to State v. Copeland, 130 Wn.2d 244, 277-79, 922 P.2d 1304 (1996), where the defendant asserted that the affidavit omitted the material fact that a witness who described a man in the vicinity of the crime failed to pick the defendant’s picture out of a photomontage. As the court noted, the information in the affidavit made clear that the witness did not see the defendant, and thus her failure to pick him out of a photomontage added nothing which was not already apparent from the affidavit—she did not see the defendant. Id. at 279. Here, the information in the affidavit makes it apparent that neither C.C. nor Mr. Craft had much opportunity to see the individual, and therefore the fact that neither picked him out of a photomontage is not material.
Gore contends, however, that the intent of the affidavit was to link him to the attack on C.C. by establishing (1) parallels between the two assaults, (2) that Gore was in the
As Gore contends, Detective Deverse largely prepared the affidavit and he knew that Mr. Craft did not identify Gore and that C.C. picked someone else, as he was the one who submitted the photomontages to them. If Mr. Craft and C.C. had identified Gore, it seems fair to conclude that Detective Deverse would have included these facts in the affidavit. However, the preliminary showing for a Franks hearing requires a showing of both intent (or reckless disregard) and materiality. As noted, the trial judge’s decision denying the hearing was based on lack of materiality, and thus the judge did not need to reach the issue of intent.
Gore complains, though, that Judge Krese’s conclusions about materiality are flawed because they are based on information that Deverse selectively included in the affidavit. He argues that under Franks he is entitled to a hearing to explore why the two facts were omitted. The difficulty with the argument is that regardless of whether Detective Deverse intentionally omitted the two facts to which Gore points,
Finally, we agree with the State that even if the omitted facts were material, their inclusion in the affidavit would not negate probable cause as to either offense. Thus, even if Gore were entitled to a Franks hearing, the warrant would
II. Admissibility of DNA evidence
Gore next contends that the trial court erred in admitting DNA evidence. DNA typing methods are designed to extract portions of DNA molecules and determine whether the genetic profile resulting from a forensic sample matches that of a suspect. Calculations are then made to determine the likelihood of a random match of the genetic profile in the human population. In this case, the challenged DNA typing involves polymerase chain reaction (PCR) based tests, i.e., the DQ-alpha, polymarker, and D1S80 systems, and the frequency calculations were made by determining the statistical frequency or product of the probabilities of each allele occurring in the population and then multiplying these frequencies by each other to calculate the probability of all of the alleles occurring together.
The trial court held a Frye-FIR 702 hearing. The primary goal of a Frye analysis is to determine whether the evidence offered is based on established scientific methodology. State v. Russell, 125 Wn.2d 24, 41, 882 P.2d 747 (1994). There must be both general acceptance in the relevant scientific community of the theory and of the technique used to implement the theory. Id.; State v. Cauthron, 120 Wn.2d 879, 889, 846 P.2d 502 (1993). Unanimity is not required. State v. Copeland, 130 Wn.2d 244, 270, 922 P.2d 1304 (1996). If there is a significant dispute among qualified scientists in the relevant scientific community, then the evidence may not be admitted. State v. Gentry, 125 Wn.2d 570, 585-86, 888 P.2d 1105 (1995). If the Frye test is satisfied, then the trial court must determine admissibility under ER 702. Copeland, 130 Wn.2d at 256. Here, the trial court ruled that both the typing techniques and use of the product rule are generally accepted in the scientific community and admissible.
Two laboratories tested DNA obtained from A.O.’s under
The second laboratory which tested a sample in A.O.’s case was Genelex Corporation, which conducted PCR testing using the DQ-alpha (described in Russell, 125 Wn.2d at 41), polymarker, and D1S80 systems. At trial, Dr. Vanora Kean, from Genelex, testified that Gore’s blood control matched the semen DNA found on A.O.’s underpants. Dr. George Riley, also from Genelex, testified that based on the results of the PCR tests, the estimated frequency of the occurrence of the DNA profile of the forensic sample (the sperm donor) was 1 in 34,000 among Caucasian Americans.
There is no controversy over the underlying scientific
The court’s review of a Frye ruling is de novo and involves a mixed question of law and fact. Copeland, 130 Wn.2d at 255; see Russell, 125 Wn.2d at 41. “The reviewing court will undertake a searching review which may extend beyond the record and involve consideration of scientific literature as well as secondary legal authority.” Copeland, 130 Wn.2d at 255-56; accord Cauthron, 120 Wn.2d at 887-88. Materials that become available after the Frye hearing may be considered. Copeland, 130 Wn.2d at 256.
The hearing in this case lasted seven days, although much of the testimony concerned ER 702 issues. Dr. John Brown, a forensic scientist with a Ph.D. in biology employed by the Washington State Patrol in its crime laboratory division, Dr. Ranajit Chakraborty, a professor of biological sciences for biometrics at the Human Genetics Center, University of Texas, School of Public Health at Houston, and Mr. Howard Coleman, the president of Genelex, testified for the State. Dr. Lawrence Mueller, a professor in the Department of Ecology and Evolutionary Biology at the University of California at Irvine, Dr. Randall Libby, a molecular geneticist serving as a research consultant to a pharmaceutical company, and Dr. Daniel Kane, a professor in the Department of Biology at Wright State University at Dayton, Ohio, testified for the defense.
Although Gore does not present substantial argument on the admissibility of DNA typing using the DQ-alpha, polymarker and D1S80 systems, we briefly address the admissibility questions. DNA admissibility issues recur with some frequency and, needless to say, often involve
Although Gore appears to complain about admissibility of the results using the DQ-alpha system, we have already found that test results using the DQ-alpha locus are generally accepted in the scientific community and are admissible. Russell, 125 Wn.2d at 41-51, 54; see Gentry, 125 Wn.2d at 587. The test at issue in Russell used probes that identify six different alleles of the DQ-alpha gene, and the procedure is described in some detail in Russell. Gore has not suggested any reason to disturb our holding in Russell.
As to the polymarker system, Mr. Coleman, who is the president of Genelex, testified that polymarker is a test that uses “basically identical methodology” to DQ-alpha, but it tests six different genes rather than one. Dr. Chakraborty’s testimony was in agreement, and defense expert Dr. Libby testified to the same effect. In that basically the same technique is involved as is involved when testing concerns the DQ-alpha locus, we conclude that admissibility of PCR-based results using the polymarker system was essentially determined in Russell and in Gentry.
As to D1S80, the experts agreed that testing uses techniques of both PCR and RFLP systems. Like other PCR testing, testing using the D1S80 locus involves copying a short segment of DNA millions of times, a process known as amplification. Dr. Chakraborty testified that the process then involves a technique like that of RFLP testing using electrophoresis to separate genes in a way that can be seen visually on autoradiograms. The differences between the latter part of the D1S80 testing and RFLP testing (see Cauthron) are that a different gel and a different stain are used, but the testing is “[biased on the same logic” and there is no “systematic difference in the procedure.” VRP
Although the D1S80 system involves techniques of both PCR and RFLP testing, the techniques involved are widely accepted in the scientific community.
We hold that the typing techniques used in this case were admissible without need for a Frye hearing, and that Frye hearings are no longer required as to admissibility of RFLP and PCR techniques like those used in this case.
Gore’s primary challenge to the DNA evidence is that the trial court erred in admitting evidence of genetic profile frequencies using the product rule.
In Copeland, 130 Wn.2d at 270, involving RFLP typing, we concluded that the product rule for establishing statistical probabilities of a genetic profile in the human population is generally accepted within the scientific community, and therefore the product rule is admissible for determining the probabilities of a random match.
*308 [T]he product rule (or “multiplication rule”) as applied in RFLP typing means that the probability of a genetic profile occurring in the population is the product of the probabilities of each individual allele’s occurrence in the population. Validity of the rule depends upon whether the individual alleles are actually statistically independent. ... Two assumptions underlie use of the product rule when calculating genetic profile frequencies: linkage equilibrium, which means that the alleles at different loci are inherited independent of each other, and Hardy-Weinberg equilibrium, which means that one allele at a locus is not predictive of the other allele at that locus (one allele is inherited from the mother, the other from the father). Hardy-Weinberg equilibrium depends upon an assumption of a large population in which there is random mating.
Copeland, 130 Wn.2d at 264-65 (citations omitted).
We have not previously addressed the issue whether the product rule is admissible for determining statistical probabilities where PCR testing is involved. The issue here is whether the rule may be used to multiply results of the three PCR testing results (DQ-alpha, polymarker, and D1S80) together to determine statistical probabilities.
The chief questions raised by Gore are whether linkage equilibrium and Hardy-Weinberg equilibrium have been established for the alleles at loci involved in the PCR testing in this case. Dr. Chakraborty, who presented the testimony on statistical methodology for the state, testified that independence has been established and the product rule can be used. He further testified that the scientific community as a whole agrees with this conclusion. The trial court found Dr. Chakraborty’s testimony “more persuasive than that of any of the other experts who testified to the contrary.” VRP (Oct. 16, 1996) at 21 (judge’s decision on admissibility). (This court has similarly noted that Dr. Chakraborty is a “preeminent expert in statistics and human genetics.” Copeland, 130 Wn.2d at 266.) Dr. Mueller, who testified on the statistical issue for the defense, testified to the contrary.
In addition to his experts’ testimony at the Frye hearing, Gore also relies upon a paper written by Dr. Mueller in 1999 where Dr. Mueller claims to show that a validation study conducted by Dr. Bruce Budowle of the FBI and others is flawed. Lawrence Mueller, DNA Typing Controversy and NRC II, Statistical Methods in the Health Sciences: Genetics (1999), quoted in Appellant’s brief, at 31-35. Dr. Mueller argues, among other things, that inaccurate results were reported, that the FBI database is too small, and that the results show departures from Hardy-Weinberg equilibrium. Dr. Libby offered similar testimony at the Frye hearing.
However, contrary to Gore’s experts and Dr. Mueller’s paper, a number of published articles have appeared in roughly the last five years which support use of product rule calculations using the PCR techniques at issue here. See, e.g., Bruce Budowle et al., D1S80 Population Data in African Americans, Caucasians, Southeastern Hispanics, Southwestern Hispanics, and Orientals, 40 J. Forensic
Moreover, the 1996 NRC report also states that the product rule may be used with PCR testing. Committee on DNA Forensic Science: An Update, The Evaluation of Forensic DNA Evidence 119 (National Academy Press 1996). The report specifically states, as to the newest of the typing methods used here, D1S80, that it has been evaluated for agreement with Hardy-Weinberg. Id. at 117.
Other courts have found use of the product rule admissible based on PCR results. People v. Wright, 62 Cal. App. 4th 31, 72 Cal. Rptr. 2d 246 (1998) (under Kelly-Frye standard); People v. Pope, 284 Ill. App. 3d 695, 672 N.E.2d 1321, 220 Ill. Dec. 309 (1996) (Frye; polymarker and DQ-alpha); State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998) (Frye-Houser; polymarker and DQ-alpha); Commonwealth v. Rosier, 425 Mass. 807, 685 N.E.2d 739 (1997) (modified Daubert; polymarker); State v. Harvey, 151 N.J. 117, 699 A.2d 596 (1997) (reliability standard; polymarker); United States v. Lowe, 954 F. Supp. 401 (D. Mass. 1996) (reliability; polymarker and D1S80). A few courts have qualified use of the product rule. Smith v. State, 702 N.E.2d 668 (Ind. 1998) (reliability; product rule admissible; polymarker, D1S80;
We conclude that use of the product rule for calculating probabilities of a random match of a genetic profile in the human population is generally accepted in the scientific community and is admissible to calculate frequencies where the PCR-based systems at issue in this case are involved.
Finally, Dr. Riley also testified at trial that the calculations for the PCR testing and the RFLP testing could be combined by applying the product rule. Gore contends that general scientific acceptance of this use of the product rule is lacking. However, if independence of individual alleles is established, there is little reason to conclude that the product rule may not be used in this manner. While Dr. Mueller testified for the defense that the product rule could not be used this way, State’s witness Dr. Chakraborty testified that it could be. The Committee on DNA Forensic Science: An Update, The Evaluation of Forensic DNA Evidence 119 (National Academy Press 1996), states that “it is quite proper to combine different systems ... in the product rule, provided, of course, that the loci are close to [linkage equilibrium].”
We conclude that the trial court properly admitted the DNA evidence at trial.
III. Standard of proof of factual basis for exceptional sentence upward
Gore maintains that the factual basis for an exceptional sentence upward must be charged, submitted to the jury, and proved beyond a reasonable doubt. He relies upon Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Apprendi, a New Jersey hate crime statute was at issue which authorized a judge to increase a
The Fifth Amendment due process clause requires that every fact necessary to conviction be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). However, not every fact relevant to sentencing is subject to this dictate. In McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), the Court upheld the constitutionality of a Pennsylvania statute which required the sentencing judge to impose a five year minimum sentence where the judge found by a preponderance of the evidence that the defendant “was visibly possessed of a firearm” when committing one of certain enumerated felonies. Key to the Court’s decision was that the Pennsylvania law “neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty;” instead, “it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.” McMillan, 477 U.S. at 87-88. In the course of also rejecting the defendants’ contention that a clear and convincing standard of proof should apply, if not the beyond a reasonable doubt standard, the Court observed: “Sentencing courts necessarily consider the circum
In Apprendi, 530 U.S. at 476-77, the Court said that
[a]t stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without “due process of law,” Arndt. 14, and the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” Arndt 6. Taken together, these rights indisputably entitle a criminal defendant to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995).
The Court noted that the historical foundation for its holding extended through several centuries, adding that any distinction between an element and a sentencing factor was unknown in the practice of criminal indictment, trial by jury, and judgment by a court as it existed when this country was founded. Apprendi, 530 U.S. at 470. The Court also said, though, that “nothing in this history suggests that it is impermissible for judges to exercise discretion— taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute.” Id. at 481 (emphasis omitted). The Court also acknowledged that trial practice could change through centuries and remain true to the right to a jury, but said that the practice must remain true “to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt.” Id. at 483-84.
Under the SRA, an exceptional sentence upward may be based upon statutory or nonstatutory aggravating factors. See RCW 9.94A.390. However, the sentencing judge
Gore makes an interesting, but unpersuasive argument based upon Justice Thomas’ concurrence in Apprendi. There, Justice Thomas retreats from the position he took in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), a case where the majority, including Thomas, held that a sentencing court may determine the existence of a prior conviction, even where that fact increases the statutory maximum. Justice Thomas said that he joined the Court’s opinion in Apprendi in full, but wrote because he believes an even broader rule should be adopted. Apprendi, 530 U.S. at 499 (Thomas, J., concurring). He said that “[i]f a fact is by law the basis for imposing or increasing punishment—for establishing or increasing the prosecution’s entitlement—it is an element” which must be proved beyond a reasonable doubt. Apprendi, 530 U.S. at 521 (Thomas, J., concurring).
Gore apparently reads Justice Thomas’ concurrence as altering the view of the Court as a whole, and seems to reason that a majority of the members of the Court would now conclude that factual determinations underlying exceptional sentences upward must be pleaded and proved beyond a reasonable doubt. However, the holding in
We hold that the factual basis for an exceptional sentence upward need not be charged, submitted to the jury, and proved beyond a reasonable doubt.
IV. Exceptional sentences
The trial court imposed exceptional sentences based on vulnerability of all of the victims and on preparation and planning by Gore. Gore contends that neither of these factors supports exceptional sentences because neither the victims’ vulnerability nor the degree of preparation and planning distinguish his crimes from the usual crimes of first degree rape and attempted first degree rape.
An exceptional sentence may be imposed only where the trial court finds substantial and compelling reasons, set forth in written findings and conclusions, which support an exceptional sentence. RCW 9.94A.120(2), (3); State v. Halgren, 137 Wn.2d 340, 345, 971 P.2d 512 (1999). In order to reverse an exceptional sentence, the reviewing court must find that (1) under a clearly erroneous standard there is insufficient evidence in the record to support the reasons for imposing an exceptional sentence, (2) as a matter of law an exceptional sentence is not justified by the reasons, or (3) under an abuse of discretion standard an exceptional sentence is clearly excessive. RCW 9.94A.210(4); Halgren, 137 Wn.2d at 345-46; State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986). A reason offered to justify an exceptional sentence can be considered only if it takes into account factors other than those which are used in computing the standard range sentence for the
Gore’s challenges relate to whether as a matter of law the reasons given by the trial court support the exceptional sentences.
a. Victim vulnerability
The first question is whether the trial court erred in holding that victim vulnerability justifies an exceptional sentence upward. Gore has not assigned error to any of the findings respecting vulnerability, and they are accordingly verities on appeal. State v. Earls, 116 Wn.2d 364, 372 n.3, 805 P.2d 211 (1991). The trial court’s findings are:
(1) Each of the defendant’s four victims were particularly vulnerable to the defendant’s attack. The defendant was aware of this vulnerability in each instance and used it as a substantial factor in allowing him to commit each crime.
Ct. I. A. The defendant was aware of [A.O.’s] small size, and young age. He had made brief contact with her the day before he raped her. [A.O.’s] size, and her young age were substantial factors enabling him to rape her.
Ct. II. B. [K.S.] was under 5 ft. tall and/or 90 pounds when attacked by the defendant. The defendant was aware of this, both from the day of the attack and a day prior to the attack when he saw [K.S.] on the same road. [K.S.’s] small stature made her particularly vulnerable, and was a substantial factor enabling the defendant to attack her.
Ct. IV. C. [C.CJ was only 14 years old when attacked. She was just over 5 ft. tall and 100 pounds. The defendant was aware of this vulnerability, and it was a substantial factor enabling him to commit the rape of [C.C.].
Ct. V. D. [H.L.] was only 13 years old and just over 5 ft. tall and 100 pounds when the defendant attacked her. The defendant was aware of her apparent approximate age and size when he attacked her. Her*317 particular vulnerability was a substantial factor enabling the defendant to attack [H.L.]
Clerk’s Papers (CP) at 900.
Particular vulnerability of the victim is a statutory aggravating factor that may justify an exceptional sentence. RCW 9.94A.390(2)(b) includes that “[t]he defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.” Small size is not one of the listed characteristics. Gore does not complain that small size cannot be the basis for a finding of vulnerability, and we note that RCW 9.94A.390’s lists are illustrative nonexclusive factors that the trial court may consider in exercising its discretion whether to impose an exceptional sentence. It follows that physical considerations other than those listed in RCW 9.94A.390(2)(b) may form the basis for a finding of vulnerability. However, given that vulnerability based on a nonlisted characteristic has its origins in the statutory factor, the statute’s requirement of particular vulnerability must still be satisfied.
The cases are in accord. E.g., State v. Sweet, 138 Wn.2d 466, 482, 483, 980 P.2d 1223 (1999) (trial court’s finding of particular vulnerability justified exceptional sentence for first degree assault where the defendant knew the victim was particularly vulnerable and unable to defend herself because of her age and stature; victim was a small woman five feet, two inches tall and 52 years old); State v. Sly, 58 Wn. App. 740, 748-49, 794 P.2d 1316 (1990) (trial court’s finding of particular vulnerability justified exceptional sentence for three counts of second degree robbery where victims were small in stature, strangers to American customs, and easily frightened), disapproved on other grounds by State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991); State v. Holyoak, 49 Wn. App. 691, 695, 745 P.2d 515 (1987) (trial court’s finding of particular vulnerability justified exceptional sentence for first degree assault where the victim
In order for the victim’s vulnerability to justify an exceptional sentence, the defendant must know of the particular vulnerability and the vulnerability must be a substantial factor in the commission of the crime. State v. Ross, 71 Wn. App. 556, 565, 861 P.2d 473 (1993); State v. Vermillion, 66 Wn. App. 332, 348, 832 P.2d 95 (1992).
Here, there is no question that the victims were small in stature. Gore argues, though, that their small size is not an “extraordinary vulnerability” in commission of first degree rape, and points out that the assailant in each instance tried to overpower the victim without using a weapon of a kind which would make all victims vulnerable to injury. While all of these victims may not have been exposed to potential knife wounds or gunshot wounds, as Gore argues, they cannot be said to have escaped injury. Moreover, their small size actually made it easier for Gore to overcome any resistance without the need for weapons.
Although the average size of victims of first degree rape and attempted first degree rape is not known, all of these victims were quite small and thus easily overpowered. The findings of vulnerability based on small stature support the imposition of the exceptional sentences. See Sweet, 138 Wn.2d at 483 (assault victim was a small woman five feet, two inches tall and 52 years old). We note this is especially true as to three of the counts where the sentencing judge also found that the victims were young as well as small in size, and thus particularly vulnerable. See Holyoak, 49 Wn. App. at 695 (assault victim was only 14 years of age, approximately five feet tall, and weighed about 100 pounds).
We uphold use of victim vulnerability as a reason for imposition of the exceptional sentence as to each count.
b. Preparation and planning
The trial court also held that exceptional sentences were justified due to preparation and planning. Again, Gore has
(2) Each of the defendant’s attacks and rapes showed evidence of planning and preparation beyond what is normally associated with the crimes charged. It is apparent that none of his attacks were random or “spur-of-the-moment,” but were the result of substantial planning, including selecting victims in advance.
Ct. I. A. The defendant saw [A.O.] the day before he raped her. He came back the next day to the same wooded trail. The defendant had observed the victim and the location the day before the rape. He used his knowledge of both as a substantial factor enabling to rape [A.O.], and escaped undetected.
Ct. II. B. The defendant had seen [K.S.] on a morning shortly before he attacked her. On the day he abducted her, he was prepared with a face mask and gag. His prior contact with victim and possession of mask and gag were all in preparation for the attack. The planning and preparation were substantial factors enabling the defendant to attack [K.S.], and escape undetected and unidentified.
Ct. IV. C.The defendant had worked on the street adjacent to [C.C.’s] house. He had seen her. He had a mask to wear. The defendant had to drive to Lake Stevens, and get there in time to intercept [C.C.] The defendant’s planning and preparation were substantial factors enabling him to rape [C.C.] and escape undetected.
Ct. V. D. When the defendant attacked [H.L.], he was able to quickly get into the woods, intercept her and get out quickly (by a different route) when spotted by passerby. His actions showed knowledge of the wooded area involved. The defendant had a full-faced mask which he carried in preparation for attacking the victim. His preparation was a substantial factor enabling him to attack [H.L.], and escape undetected and unidentified.
CP at 900-01.
In State v. Vaughn, 83 Wn. App. 669, 679-80, 924 P.2d 27 (1996), the court held that an exceptional sentence for first degree kidnapping and rape of a child was justified where the defendant spent a protracted period of time in the victim’s neighborhood watching children, learned the victim’s mother’s and siblings’ names, told many lies to facilitate the crime, identified in advance the place where the rape took place as a potential site if he acted on his fantasies, outfitted his car in a way which facilitated the rape (by carrying a foam pad and a sleeping bag), and took steps to hide what was in the car, his pornography, and his whereabouts at the time the crime was committed. In State v. Vermillion, 66 Wn. App. 332, 832 P.2d 95 (1992), the court held that an exceptional sentence for first degree possession of stolen property, indecent liberties by forcible compulsion, unlawful imprisonment, and first degree burglary was justified where the defendant sought out his victims, assumed a false identity and personal history, reviewed
The findings in this case do not show the same degree of sophistication or planning as in these cases, nor does the planning and preparation here distinguish these crimes from many other rapes and attempted rapes. Extrapolating from the statutory aggravating factors respecting economic and drug crimes, a high degree of sophistication or planning is necessary for the nonstatutory planning aggravator to justify an exceptional sentence, and the offenses here do not show a high degree of sophistication or planning.
We hold that preparation and planning do not support an exceptional sentence as to any of the counts.
c. Whether remand necessary
The next question is whether the exceptional sentences should be upheld on the basis of victim vulnerability alone or whether remand for resentencing is necessary. An exceptional sentence may be affirmed where only one of the trial court’s reasons for imposing an exceptional sentence is upheld; however, remand for resentencing is necessary where it is not clear whether the trial court would have imposed the exceptional sentence on the basis of the factor which is upheld. State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993).
Here, the trial court’s conclusions of law state as to each count that the particular vulnerability of each of the victims alone justifies an exceptional sentence. There are no contrary indications in the record. Accordingly, we conclude that the trial court would have imposed the exceptional sentences solely on the basis of victim vulnerability, and therefore Gore’s, exceptional sentences are affirmed on the basis of victim vulnerability.
We conclude that Gore was not improperly denied a Franks hearing on the sufficiency of the affidavit in support of probable cause to issue the July 5, 1995, search warrant for blood and saliva samples, and photographs of the defendant. DNA evidence involving PCR techniques was properly admitted, as was use of the product rule to calculate genetic profile frequency results. The factual basis for imposing exceptional sentences upward does not have to be charged, submitted to the jury, and proved beyond a reasonable doubt. Finally, although exceptional sentences are not justified by the preparation and planning of the offenses, they are justified based upon the victims’ vulnerability.
Affirmed.
Smith, Johnson, Ireland, and Bridge, JJ., and Guy and Talmadge, JJ. Pro Tern., concur.
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
The 2000 Legislature enacted Senate Bill 6223, which rewrote portions of the Sentencing Reform Act of 1981 (SRA) to clarify it, given that numerous prior amendments to the act had resulted in some sections becoming “unduly lengthy and repetitive.” Laws of 2000, ch. 28, § 1. The new amendments are not intended to effect any substantive changes in the law. Id.
Gore asserted to the trial judge that there were additional false or misleading material statements, but now challenges only the omission of the facts noted in the text.
With regard to the December search warrant, Judge Castleberry found that the omission of these same two facts from the affidavit in support of probable cause was not intentionally made or made with reckless disregard for the truth.
In State v. Jones, 130 Wn.2d 302, 308-11, 922 P.2d 806 (1996), we explained that the interim ceiling principle was recommended in Committee on DNA Technology in Forensic Science, DNA Technology in Forensic Science 92 (National Academy Press 1992) to account for the possibility of substructuring in human populations. It was never intended to be scientifically precise, but was intended to provide an interim, conservative method for calculating a random match probability. In Jones, 130 Wn.2d at 311, we noted that the method was “widely accepted, given its admitted limitations,” and rejected the defendant’s claim that the interim principle was not generally accepted in the scientific community. As we predicted in Jones, use of the interim ceiling principle has declined substantially (if not completely) in the wake of a new report, Committee on DNA Forensic Science: An Update, Tin: Evaluation of Forensic DNA Evidence (National Academy Press 1996), which concluded that product rule calculations are appropriate, id. at 122-23, and rejected the ceiling principles, id. at 156-59.
Dr. Riley also testified that with the most conservative calculation the lab used, the estimated frequency was 1 in 14,000.
Mr. Coleman testified that all three techniques used in this case are generally-accepted in the scientific community. Dr. Chakraborty testified that he had personally seen over 12 validation studies of polymarker testing, and about 15 validation studies for D1S80. Dr. Libby testified, however, that the polymarker and D1S80 techniques are not generally accepted. As the trial court noted in its oral ruling, though, the testimony of another defense expert, Dr. Krane, “clearly establishes that there are no real issues as to the acceptance” of polymarker testing. VRP (Oct. 16, 1996) at 15 (Judge’s decision on admissibility); see VRP (Oct. 10, 1996) at 113-14. Most of the experts acknowledged that many labs used both techniques at the time of the hearing.
In addition to the expert testimony at the Frye hearing, we note that the scientific literature supports the conclusion that polymarker and D1S80 systems have achieved general scientific acceptance. In prior cases, the National Academy of Sciences’ committee reports on use of DNA in forensic settings have been heavily relied upon by this court on the issue of general scientific acceptance. E.g., Copeland, 130 Wn.2d 244; Cauthron, 120 Wn.2d 879. The 1996 report states: “We believe that [PCR-based] systems are ready to be used along with VNTRs [RFLP typing], .. . We conclude that PCR-based systems should be used.” Committee on DNA Forensic Science: An Update, The Evaluation of Forensic DNA Evidence 119 (National Academy Press 1996). The report specifically describes use of DQ-alpha, polymarker and D1S80 systems. Id. at 71-72.
Published appellate court decisions overwhelmingly admit polymarker and D1S80 DNA evidence. See People v. Wright, 62 Cal. App. 4th 31, 72 Cal. Rptr. 2d 246 (1998) (under Kelly-Frye standard of admissibility; polymarker); People v. Pope, 284 Ill. App. 3d 695, 672 N.E.2d 1321, 220 Ill. Dec. 309 (1996) (Frye; polymarker); State v. Carter, 255 Neb. 591, 586 N.W.2d 818 (1998) (Frye-Houser more stringent standard than Frye alone); polymarker); Commonwealth v. Rosier, 425 Mass. 807, 685 N.E.2d 739 (1997) (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (variant; polymarker); State v. Harvey, 151 N.J. 117, 699 A.2d 596 (1997) (Daubert-like reliability standard; polymarker); United States v. Beasley, 102 F.3d 1440 (8th Cir. 1996) (Daubert; polymarker); Redding v. State, 219 Ga. App. 182, 464 S.E.2d 824 (1995) (reliability standard; D1S80); Brodine v. State, 936 P.2d 545 (Alaska Ct. App. 1997) (Frye; polymarker and D1S80); State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999) (Frye; D1S80 and polymarker); Smith v. State, 702 N.E.2d 668 (Ind. 1998) (reliability; polymarker and D1S80); Commonwealth v. Vao Sok, 425 Mass. 787, 683 N.E.2d 671 (1997), abrogated on other grounds by Case of Canavan, 432 Mass.
As to the experts, the trial court said that “I think it’s significant that both Dr.
Gore does not raise any state constitutional issues.