State v. Hylton

226 P.3d 246

154 Wn. App. 945

STATE of Washington, Respondent, v. Robin Douglas HYLTON, Appellant.

No. 38575-9-II.

Court of Appeals of Washington, Division 2.

March 9, 2010.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Appellant.

Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Douglas P. Ruth, Lewis County Pros. Office, Chehalis, WA, for Respondents.

PART PUBLISHED OPINION

ARMSTRONG, J.

¶ 1 Robin Douglas Hylton appeals his conviction for third degree child rape, arguing the trial court erred in (1) denying his jury waiver, (2) denying his right to present a defense by excluding certain evidence, (3) retroactively applying the statutory "abuse of trust" aggravating factor as the basis for an exceptional sentence, and (4) imposing an exceptional sentence following his second trial where the State had not alleged the aggravating factor in his first trial and offered no new factual basis, raising a presumption of vindictiveness.¹ Hylton also argues that the jury instruction on "abuse of trust" was unconstitutionally vague, and that the prosecutor committed prosecutorial misconduct by improperly vouching for witnesses. Finding no reversible error, we affirm.

FACTS

¶ 2 The State originally charged Robin Douglas Hylton with three counts of child rape stemming from a series of events that allegedly occurred in 2004. At a bench trial, the trial court convicted Hylton of one count of third degree child rape for an incident on or around Thanksgiving 2004. The court acquitted Hylton of the remaining counts. Before sentencing, the trial court vacated the conviction and granted Hylton a new trial based on newly discovered evidence from witnesses who placed Hylton in California at the time of the alleged rape in Lewis County.

¶ 3 On November 5, 2007, the State filed a fourth amended information alleging, in part, that "the defendant used his position of trust or confidence to facilitate the commission of the current offense as provided ... in RCW 9.94A.535(3)(n)." Clerk's Papers (CP) at 178-79, 187.

¶ 4 Before the new trial, the court, without inquiry or comment, denied Hylton's request to waive a jury trial.² The court also denied Hylton's motion to introduce evidence that Lisa Coward, the victim's mother and Hylton's ex-girlfriend, abused and manipulated both her daughters. The court ruled that Hylton had not established a connection between the alleged abuse-manipulation and any trial issue.

¶ 5 At trial, the State presented evidence that Hylton sexually assaulted A.A.A. around Thanksgiving 2004, including medical testimony that her hymen was torn sometime between April 2002 and May 2005. Hylton proposed to testify that A.A.A. told him she had been sexually active with at least one boy after April 2002, which would explain the tear in her hymen. The court rejected the testimony as hearsay and irrelevant.³ A.A.A. later testified that between her sexual assault exams in 2002 and 2005, only the defendant penetrated her vagina. In closing, the State argued there was no evidence to support that anyone other than Hylton penetrated her vagina between those dates.

¶ 6 Hylton called witnesses who testified they were with him in California during Thanksgiving 2004. Julie Miller testified she had spent an evening with him in Idyllwild, California during the Thanksgiving holiday in 2004. Hylton attempted to corroborate Miller's statement by introducing an entry from her journal that contained Hylton's name inside a hand drawn heart covering the dates of Thanksgiving and the following Friday. The court sustained the State's objection to Hylton's motion to admit the journal page into evidence on the grounds of hearsay, foundation, and relevance.

¶ 7 Coward testified that she picked up Hylton at the airport the day before Thanksgiving 2004, and that he stayed at her house for the holiday. She further testified that she bore no ill will toward Hylton and that she had no problem with him maintaining contact with her children after their break-up. Before her cross examination, Hylton informed the court that he intended to use a string of e-mails to show that "she was threatening me with something," and that it was "a pattern of behavior." Report of Proceedings (RP) (June 3, 2008) at 356-57. Hylton also claimed the e-mails were contrary to her testimony that she bore him no ill will and that she had no problem with his continued contact with the girls. After attempting to authenticate the first e-mail, Hylton moved to enter it into evidence. The court excluded this e-mail as hearsay and for lack of foundation. Hylton sought to establish the foundation for the remaining e-mails, but never offered them into evidence.

¶ 8 Hylton's defense focused on his California alibi, and each side presented family members and friends who supported or refuted the alibi. In addition, the State presented testimony from an airline employee that a Robin Hylton had flown from Ontario, California to Portland, Oregon on November 22, just before Thanksgiving, and returned from Portland to Ontario on November 28, just after Thanksgiving. The State also presented evidence of a taped phone conversation between A.A.A. and Hylton in which she accused him of the improper conduct ("a nightmare"), and he responded that blaming him was "a waste of time," that he had said he was sorry, and that he hoped she could forgive him; he never denied the rape during this conversation. RP (June 3, 2008) at 219-234.

¶ 9 During closing arguments, the prosecutor admonished the jury that they were the sole judges of credibility and they alone assessed the weight of the witnesses' testimony. In discussing A.A.A.'s testimony, the prosecutor stated, "You can tell, body language, what she [A.A.A.] was saying, the whole package, she was telling the truth." RP (June 4, 2008) at 563-64. He closed his final argument by stating that "she's telling us a true story."⁴ RP (June 4, 2008) at 570. The prosecutor described Detective Brown, who investigated the alleged sexual assault, as a "straight shooter, very credible, very believable," claiming that she would not do anything to "affect her job." RP (June 4, 2008) at 564. The prosecutor implied that the State's witness, Sandra Eschbach, recognized there could be criminal consequences if she lied. He also commented that while the jury would never know if the defendant lied, "if evidence came up that a State's witness lied in trial, you can imagine what the State might then do with that information. Leave that to you." RP (June 4, 2008) at 564-65.

¶ 10 The jury received a special verdict form, which asked, "Did the defendant, Robin Douglas Hylton, use his position of trust or confidence to facilitate the commission of the crime of Rape of a Child in the Third Degree as charged?" CP at 118. The jury instructions on the special verdict form did not define "position of trust or confidence," or describe any required nexus between the position of trust and the crime. CP at 135.

¶ 11 The jury convicted Hylton of third degree child rape, finding that he abused a position of trust to facilitate the commission of the crime. The judge imposed an exceptional sentence of 50 months' confinement and community custody for up to 48 months.

ANALYSIS

I. Aggravating Sentencing Factors

A. Retroactive Application of the Abuse of Trust Factor

¶ 12 Hylton argues that the aggravating factor for abuse of trust, statutorily enacted in 2005, cannot be retroactively applied to his crime under (1) RCW 10.01.040, also known as the savings clause and (2) the ex post facto clauses of the state and federal constitutions. We disagree.

i. Background

¶ 13 Before 2005, the Sentencing Reform Act's (SRA) aggravating factor for abuse of trust was limited to economic cases. Former RCW 9.94A.390(2)(d)(iv) (2000), recodified as RCW 9.94A.535 (Laws of 2001 ch. 10, § 6). Washington courts, however, justified exceptional sentences where the defendant utilized a position of trust to facilitate noneconomic crimes. State v. Harp, 43 Wash.App. 340, 343, 717 P.2d 282 (1986) (imposing exceptional sentence for second degree statutory rape and indecent liberties by forcible compulsion consistent with RCW 9.94A390(2)); State. v. Fisher, 108 Wash.2d 419, 425-26, 739 P.2d 683 (1987) (a sentencing judge may rely on this factor in cases involving noneconomic as well as economic offenses); State v. Jennings, 106 Wash.App. 532, 550, 24 P.3d 430 (2001) (recognizing RCW 9.94A.390(2)(d)(iv) as the basis for applying an aggravating factor for abuse of trust in noneconomic crimes); see also State v. Armstrong, 106 Wash.2d 547, 550, 723 P.2d 1111 (1986) (the nonexclusive and illustrative nature of SRA's list of aggravating factors justifies the use of such factors for noneconomic crimes). Thus, a sentencing court could find abuse of trust as an aggravating factor in noneconomic crimes at common law.

¶ 14 The legislature added abuse of trust to the SRA as an aggravating factor for all criminal offenses on April 15, 2005.⁵ Laws of 2005, ch. 68, § 3, codified as RCW 9.94A.535. The amendment's language is identical to RCW 9.94A.390(2)(d)(iv). See RCW 9.94A.535(n) ("[t]he defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense"). The legislature specifically stated its intention to "create a new criminal procedure for imposing greater punishment than the standard range or conditions and to codify existing common law aggravating factors, without expanding or restricting existing statutory or common law aggravating circumstances." Laws of 2005, ch. 68, § 1. The codified abuse of trust factor is, however, slightly narrower in scope than its common law predecessor. See State v. Chadderton, 119 Wash.2d 390, 398, 832 P.2d 481 (1992) (reckless abuse of trust may operate as an aggravating factor by analogy, rather than strictly under the statute, which by its literal language applies...