State v. Brown

STATE OF WASHINGTON, Respondent, v. WILLIE NATHANIEL BROWN, Appellant.

No. 54285-4-II

Court of Appeals of Washington, Division 2

April 19, 2022

UNPUBLISHED OPINION

CRUSER A.C.J.

Willie Brown was a father figure to his girlfriend's twin daughters. By the time the girls were in middle school, Brown was sexually assaulting the girls and paying them after the assaults. The abuse escalated as the girls got older and included encounters Brown initiated while the girls were sleeping. When one of the daughters was 19, she reported Brown's crimes to the police. Brown was arrested, and in recorded prison calls Brown admitted to being "guilty of something."^[1] At trial, Brown's recorded calls were played for the jury. During closing argument, the prosecutor incorrectly, claimed that Brown said he was "guilty of the rest" in the calls. Brown was convicted of multiple counts of rape second degree for each victim and multiple counts of rape of a child for each victim. Brown was also convicted of one count commercial sex abuse for each victim.

As it relates to his trial, Brown argues that two of his rape second degree convictions (those from count 6 (against TLW) and count 14 (against TAW)) that were based on inability to consent were not supported by sufficient evidence. Additionally, Brown argues that his child rape convictions for TLW (count 2 and count 3) violate double jeopardy because the time periods for those counts overlap with count 6 and they were based on the same underlying conduct as count 6. Further, Brown challenges all of his convictions on the grounds that the State engaged in prosecutorial misconduct when it misquoted his remark from the jail call and that his attorney provided ineffective assistance when he failed to object to the prosecutor's misconduct.

As it relates to his sentence, Brown argues that he should be resentenced because his commercial sex abuse convictions were erroneously classified by the trial court as class B felonies instead of class C felonies; that his previous convictions for unlawful possession of a controlled substance are unlawful; that the community custody provision prohibiting him from seeing his minor child violated his right to parent and that the community custody supervision fee must be stricken. Brown also raises additional claims of error in a statement of additional grounds (SAG).

With respect to Brown's convictions, we hold that there was insufficient evidence to sustain Brown's conviction for rape in the second degree in count 14, and his conviction in count 3 violates double jeopardy. However, although the prosecutor misquoting Brown was improper, there was not a substantial likelihood that the improper statement affected the jury's verdict. Similarly, Brown's ineffective assistance of counsel claim fails because Brown fails to show he was prejudiced by counsel's conduct.

With respect to Brown's sentence, we remand for the trial court to reclassify his commercial sex abuse convictions as class C felonies, strike Brown's convictions for unlawful possession of a controlled substance from his criminal history and offender score, and resentence Brown in light of his new offender score and criminal history. On remand, the trial court must conduct an inquiry on the record to determine whether Brown should be prohibited from having contact with his minor son. Finally, regarding the supervision fee, the trial court may reconsider whether to impose the fee in light of Brown's indigency, and we decline to consider any of the issues Brown raises in his SAG. Accordingly, we affirm in part, reverse in part, and remand to vacate count 3 and dismiss count 14 with prejudice and for resentencing.

FACTS

I. Underlying Events

In 2001, Willie Brown met Heidi Stevens. Stevens had twin daughters, TLW and TAW, born May 20, 1998, and a son, FW, who was three years older than his sisters. Brown and Stevens started dating, and although Brown always kept a separate residence, he would often stay at Stevens' house, except between March 2009 and February 2011 when he was away from the family and did not have contact with TLW and TAW. Brown had a parental relationship with the twins, and they referred to him as "dad" or "stepdad." 5 Verbatim Report of Proceedings (VRP) at 416, 535; 6 VRP at 653.

A. TLW

TLW first remembered Brown doing "something sexual to [her]" in either fifth or sixth grade. 5 VRP at 444. Brown continued to do "something sexual" to her every year he was staying at the house, but the encounters were sporadic. Id. at 472. When the abuse started, Brown touched "[her] area," which she described as her vagina, with his hands and mouth. Id. at 453. After TLW started going through puberty, and around when she was in eighth or ninth grade, Brown started using his penis as well. After every encounter, Brown offered or gave TLW money.

On one occasion, near the end of middle school or the start of high school, Brown came into TLW's room when Stevens was not home and TLW was on her bed reading a book. Brown took off TLW's pants and started licking her "area." Id. at 459. TLW tried unsuccessfully to push Brown away.

On another occasion, when TLW was doing the dishes and Stevens was out of the house, Brown came up behind TLW. Brown pressed up against TLW and put his hands under her clothes and inserted his fingers in her vagina. TLW tried to move away, but Brown grabbed her and pulled her back. Brown then pulled down her pants and put his penis inside her vagina. TLW was approximately in eighth, ninth, or tenth grade.

When TLW was in middle school, Brown entered TLW's room while she was sleeping and assaulted her on multiple occasions. TLW could not remember when these events occurred, but she knew it started in middle school and happened when she shared a room with her sister. In 2013, when FW moved out of the house approximately a month after he graduated from high school, TLW started staying in his room.

In middle school, TLW told Stevens what Brown was doing, but Stevens did not believe TLW and told TLW to apologize for lying. Early in 2017, TLW disclosed to a friend and her boyfriend, Luis Cantu, what Brown had done to her.

B. TAW

TAW suffered from developmental delays and took special education classes, but she progressed through school at the same rate as TLW and graduated at the same time. Brown was also sexually abusing TAW in middle school. The abuse happened "[o]nce in a while" and occurred when no one else was home. 5 VRP at 550. Brown had a sexual encounter with TAW at least once every year, and he would leave money for TAW after every encounter. The abuse became more frequent and "worse" as TAW got older. 6 VRP at 576.

On two occasions, Brown entered TAW's room while she was sleeping. On one occasion, when TAW was staying in FW's bedroom around the end of high school in 2016, TAW woke up to Brown touching her legs and felt his hands going up to her vagina. TAW tried to push and kick Brown, but was unable to get him off her. Despite TAW's efforts, Brown took off her pants and put his penis inside her. With respect to the other occasion, TAW could not remember any details of the assault other than at some point Brown put his penis inside her.

TAW also told Stevens what was happening, but her mother did not believe her. Like TLW, TAW told Cantu and a friend that Brown had abused her.

II. Legal Proceedings

A. Charges

In February 2018, Brown raped TLW while she and Brown were alone in the home. That same day, TLW reported Brown's crimes to the police. After TLW went to the police, TAW also disclosed that Brown had been raping her and that he had assaulted her the day before TLW went to the police. After speaking with the police, TLW and TAW went to the hospital and were examined by a sexual assault nurse examiner.

Brown was arrested the same day TLW reported Brown's crimes to the police, and he was charged with second degree rape and second degree rape of a child with TLW as the victim; he was also charged with second degree rape and third degree child molestation with TAW as the victim. The police obtained a search warrant for Brown's person, and while he was being booked at Pierce County jail, the police swabbed Brown's mouth and penis.

A forensic scientist, Jennifer Hayden, evaluated the sexual assault kits collected from TLW and TAW, the swabs from Brown, and a reference DNA sample obtained from Stevens. Hayden found DNA other than Brown's on his penis swab and ruled out that the DNA was Stevens' or TLW's. However, Hayden found it was 13 times more likely that the other person's DNA on Brown's penis was TAW's than a random person's.

While in custody, Brown made phone calls, which were recorded, to family members and to Stevens. In the calls, Brown tried to convince Stevens to get her daughters to change their statements.

Brown was ultimately tried and convicted on the following charges:

TLW

• Count 2 - Second degree child rape, between May 20 2010 and May 19, 2012.

• Count 3 - Third degree child rape, between May 20, 2012 and May 19, 2014.

• Count 4 - Commercial sex abuse of a minor, between May 20, 2008 and May 19, 2016.

• Count 5 - Second degree rape by force, between May 20, 2008 and May 19, 2013.

• Count 6 - Second degree rape by inability to consent, between May 20, 2008 and May 19, 2013.

• Count 7 - Second degree rape by force or inability to consent, between May 20, 2013 and February 20, 2018.

• Count 8 - Witness tampering.

TAW

• Count 10 - Second degree child rape, between May 20, 2010 and May 19, 2012.

• Count 11 - Third degree child rape, between May 20, 2012 and May 19, 2014.

• Count 12 - Commercial sex abuse of a minor, between May 20, 2008 and May 19, 2016.

• Count 13 - Second degree rape by force, between May 20, 2008 an

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