State v. Trevino

STATE OF WASHINGTON, Respondent, v. ALLEN ROBERT TREVINO, Appellant.

No. 30721-2-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

FILED: July 1, 2014

UNPUBLISHED OPINION

SIDDOWAY, C.J. — Allen Trevino was convicted of first degree rape of a child and communicating with a minor for immoral purposes. Based upon the jury's finding that Mr. Trevino used his position of trust to facilitate commission of the rape, the court imposed an exceptional sentence of 168 months.

Mr. Trevino challenges whether the State proved the element required to prove first degree child rape that the victim was under 12 years of age, claiming both that the jury instruction was flawed and that the evidence was insufficient. He also argues that his right to a unanimous verdict on the child rape charge was not safeguarded, that the 2-year statute of limitations on the communication with a minor charge ran before the time he was charged, and that the trial court lacked authority to impose an exceptional sentence given the unconstitutionality of the sentencing system in place when the crime was committed. We find no error and affirm.

FACTUAL BACKGROUND AND PROCEDURE

In early December 2010, B.A.,¹ who was by then 18 years old, told her grandmother that years earlier, Allen Trevino, who lived in Oregon but had maintained an off-and-on relationship in Washington with B.A.'s mother since B.A. was in the fourth grade, had sexually assaulted her. The grandmother, Lynnell Robertson, insisted that B.A. tell Ms. Robertson's daughter—B.A.'s mother—what Mr. Trevino had done. Ms. Robertson asked B.A.'s mother to come to her home, where she had B.A. repeat her allegations against Mr. Trevino. B.A.'s mother, upset by the allegations, returned to her own home and confronted Mr. Trevino, who was visiting her at the time. Ms. Robertson had accompanied her daughter back to speak with Mr. Trevino and called police when the situation escalated into an altercation.

Mr. Trevino was charged with rape of a child in the first degree, in the alternative with child molestation in the first degree, and with communicating with a minor for immoral purposes. The child rape charge required that the State allege and prove that the rape was committed when B.A. was less than 12 years old and, since B.A. was born on December 13, 1991, the State was required to prove that it occurred before December 13,2003. From the time of the first information, however, the State based its charges on acts it alleged had occurred between January 1, 2002 and December 12, 2004, rather than December 12, 2003,

At trial, B.A. testified that Mr. Trevino had subjected her to sexual conduct between her fourth grade and seventh grade years of school, during which she, her mother, and two sisters had changed residences several times—living first at a couple of locations in Richland, and then moving to Portland for a time before moving back to the Tri-Cities. She testified that her family had moved to Richland "[a]bout the middle of fourth grade" and that she attended the second half of fourth grade and all of fifth grade at Marcus Whitman Elementary School. Report of Proceedings (RP) (Dec. 13, 2011) at 105-06. She then transferred to Chief Joseph Middle School, also located in Richland, where she attended sixth grade. She testified that her mother moved her and her sisters to Portland in 2004, after her sixth grade year, and that they all lived for a time in Mr. Trevino's apartment. She attended the first part of seventh grade at Lane Middle School in Portland after which her mother returned with her daughters to Richland, where B.A. completed the end of her seventh and all of eighth grade at Chief Joseph Middle School.

B.A. testified to several incidents of abuse by Mr. Trevino. The first was when Mr. Trevino read to her a pornographic story about incest between a brother and sister. She testified that Mr. Trevino read the story to her when her family was living at a houseon Snow Street in Richland, which is where they lived when she was in the fourth and fifth grade.

She testified that the second incident occurred after the family had moved to a home on Jadwin Street in Richland. According to B.A., she was lying on her mother's bed watching a movie. She was wearing a top and a pair of shorts and was lying on her stomach because her back was sore. Mr. Trevino came into the room, sat beside her on the bed and, reaching under her top, began rubbing her back. He then ran his hand up the inside of her thigh and inserted his finger into her vagina. Shocked, she moved away. She stated that this incident occurred in the beginning of her sixth grade year, when she was 11 years old. She explained that she could place the incident in the fall of her sixth grade year because they were living on Jadwin Street at the time and "the leaves were orange." Id. at 114.

B.A. testified to two other incidents that occurred after she turned 12. The trial court allowed her to testify to the incidents, which it treated as uncharged (despite the breadth of the charging period) after engaging in an ER 404(b) analysis. The court concluded that the events were admissible as evidence of Mr. Trevino's lustful disposition toward B.A.

B.A. testified that in July 2004, while she was 12 years old and after she, her mother, and her sisters moved to Portland following her sixth grade year, Mr. Trevino approached her after she got out of a shower, wrapped in a towel, and had touched herbreast. She testified that in September 2004, while she, her mother, and sisters were still living at Mr. Trevino's Portland apartment, Mr. Trevino performed oral sex on her and made her perform oral sex on him one night while her mother was at work.

In B.A.'s December 2010 statement to police, she provided some dates that were inconsistent with her testimony at trial. Specifically, she told Detective Damon Jansen that nothing had happened until she was in the sixth grade in 2004-2005. A "2004-2005" time frame would have meant that she was 12 going on 13 during the school year in question—too old to be the victim of first degree child rape. Mr. Trevino's lawyer cross-examined her at trial about this statement made to Detective Jansen. While she admitted having made the statement, she explained that she had been confused.

On redirect examination, B.A. was shown the pertinent page of the transcript of her interview by Detective Jansen. She again admitted that she had initially told the detective she was in the sixth grade in 2004 and 2005 but elaborated on the source of her confusion when she spoke to Detective Jansen:

Q. Just read half of it . . . and I'm going to ask to refresh your memory how those 2004 and 2005 dates came about. So, after reading that, who is it that thought—that thought you were in the sixth grade in 2004 and 2005?

A. My mom.

Q. Is that what you told Detective Jansen?

A. Yes.

Q. But you're very clear this incident occurred in the sixth grade, in the beginning of the sixth grade?

A. Yes.

Q. And have always been clear about that?

A. Yes.

Q. Everybody asks you about all these different people that you've spoken to about this incident.

Is it fair to say that this has been a hard thing to talk about and remember?

A. Yes.

Id. at 153-54.

The discrepancy in her statement to Detective Jansen was further explored in recross-examination. B.A. repeated that her mother had thought that the incident occurred around 2004/2005. Mr. Trevino's lawyer then asked,

Q. But distinctly, the issue is that nothing happened until 2004 and 2005?

A. That's what I had thought until I had further—how do I say, further evaluated everything and thought about everything.

Q. So, you had believed that it happened maybe 2005/2006, and after talking with her—

A. No, my mom thought that. I was in sixth grade then.

Q. And your mom had thought nothing had happened until 2004?

A. My mom didn't know anything happened.

Id. at 155. Finally, in response to the State's questioning on further redirect, B.A. again testified that when she initially spoke with Detective Jansen she could not say which years she was in sixth grade, she just knew that she was in sixth grade when it happened.

The jury's instructions on the crime of first degree rape included instruction 9, defining first degree rape of a child, which advised the jury that to find Mr. Trevino guilty the State must prove that the victim was less than 12 years old at the time he committed the crime. The to-convict instruction, instruction 16, also set forth the required elementof a victim younger than age 12 but at the same time included the charging period, which extended beyond age 12:

To convict the defendant of the crime of rape of a child in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That during the time intervening between January 1, 2002 and the 12th day of December 2004, the defendant had sexual intercourse with [B.A.];

(2) That [B.A.] was less than twelve years old at the time of the sexual intercourse and was not married to the defendant;

(3) That [B.A.] was at least twenty-four months younger than the defendant; and

(4) That this act occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

Clerk's Papers (CP) at 185 (emphasis added). Mr. Trevino did not object to the instruction.

The jury found Mr. Trevino guilty of first degree rape of a child and communicating with a minor for immoral purposes. It also returned a special verdict finding that Mr. Trevino had "use[d] his position of trust to facilitate the commission of the crime." CP at 205. Based on the jury's finding of the aggravating factor, the court imposed an exceptional sentence of 168 months on the first degree rape of a child charge—21 months above the standard range. Mr. Trevino appeals.

ANALYSIS

Mr. Trevino challenges whether the State proved the element required to...