State Of Washington v. Willis Allen Whipple ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 68056-1-1
Respondent,
DIVISION ONE " ^§
v.
UNPUBLISHED OPINION . °" >.
WILLIS ALLEN WHIPPLE,
Appellant. FILED: May 6, 2013 ^ l;~
o
o
o ^r
Grosse, J. — A developmental^ delayed 12-year-old girl's generic
testimony of multiple sexual assaults may be sufficient to sustain multiple
convictions of a resident child rapist.1 Willis Whipple argues that the generic
testimony here was insufficient to support his convictions of four counts of first
degree rape of a child. He also argues that the prosecutor's improper arguments
demonstrate the insufficiency of the evidence. Whipple also challenges two
conditions of community custody imposed at sentencing. We affirm the
conviction but remand for the trial court to strike the challenged community
custody conditions.
FACTS
The State charged Whipple with four counts of first degree rape of a child,
ST., occurring on or about January 1, 2010 to July 31, 2010. At trial in
September 2011, ST. testified that she was 12 years old and in seventh grade
but she could not spell her last name, identify her school or town, or remember
1See State v. Haves. 81 Wn. App. 425, 438, 914 P.2d 788 (1996).
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her birthday.2 ST. identified Whipple as her uncle and testified that she stayed
in the same house with him when she and her sisters and brother spent
weekends with Whipple's "mom and dad."
ST. testified that the first time "something happened" with Whipple, she
was sleeping on a couch in the same room with her brother, her sisters, and her
father. Whipple woke her, told her to come to the bedroom, and "said he would
give [her] a treat after it." ST. testified that she went with Whipple to his bed,
where she took off her pajama pants and underwear. When asked why she took
off her clothes, ST. responded, "How else am I going to get the chocolate?" ST.
testified that Whipple touched her with his hand on "My penis, my butt, and my
boobies."3 ST. agreed that her "penis" is between her legs on the front of her
body. When asked whether she had another name for her "penis," ST. said,
"No." ST. testified that after Whipple stopped touching her, he gave her
chocolate, and she went back to her bed, ate the chocolate, and went to sleep.
ST. testified that she thought she should not tell other people in the house about
how she got the chocolate, "because then I have to share the chocolate."
ST. testified that the "next time" took place in the bathroom at night. ST.
testified that Whipple woke her up and came into the bathroom with her, she
used the toilet, and "[h]e told [her] to wipe." ST. initially refused to provide
additional details or explain her statements. Throughout her testimony, ST.
answered "I don't know," or "I don't remember," to several questions, and
2 ST.'s mother testified that ST. is "slow in school," "doesn't catch on to
schooling, like spelling, reading, writing," and was diagnosed as "[m]entally
retarded" when she was in third grade.
3 ST. testified that when he touched her, Whipple's fingers "[s]tayed outside" her
body.
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eventually admitted, "I just don't want to talk about it right now." In response to a
series of general questions, ST. agreed that "things happened" with Whipple
more than once in the bedroom, the laundry room, and the bathroom, but only
those three rooms. Ultimately, referring to the first incident in the bathroom, ST.
testified, "He started licking me." The prosecutor asked, "Where did he lick you?"
ST. answered, "In my pee-pee." The following exchange occurred:
Q: How many times do you think he licked you, how many different
days or nights?
A: A couple.
Q: What do you mean by "a couple"?
A: I don't know.
Q: Is that two, three, or more than three?
A: More than three.
ST. later testified that when he was licking her, Whipple was on his knees and
she was standing. ST. did not describe any other incidents or details, despite
her testimony that more than ten incidents occurred in each of the three rooms
she identified.
S.T.'s mother, Ronda Lee Snowden, testified that ST. had regular visits
every other weekend with her father, Luddly Thompson, at the home of
Thompson's mother, Anita Thompson, in Monroe, Washington, between
September 2009 and June 2010.
For the defense case, Anita Thompson testified that ST. usually stayed at
her house on alternating weekends during the fall of 2009 until June 2010, when
she stayed for approximately three weeks. Thompson testified that Whipple
stayed at her house "off and on" between Thanksgiving 2009 and January 2011.
When asked how many times she thought Whipple was at her house when ST.
No. 68056-1-1/4
was staying there between Thanksgiving 2009 and January 2010, Thompson
responded, "I'm assuming -- maybe 20 times."
In his closing argument, the prosecutor began by arguing that the jury
should assess S.T.'s credibility by focusing on the particular moment in S.T.'s
testimony when she responded to his question of why she took off her clothes
with "How else am I going to get the chocolate?" The prosecutor argued, "So I
ask you, what did you feel in your heart, what did you feel in your stomach, when
you heard that answer? At that moment in time, did you have any doubt
whatsoever that what she just said was the truth?" He asked the jury to start with
that moment in considering whether S.T. was confused or lied during her
testimony. He continued, "You can't ignore everything else, because you can't
find somebody guilty until you have analyzed all the evidence, or the lack of
evidence, and decide beyond a reasonable doubt that it's true and that you are
satisfied that all the elements have been proved." The prosecutor argued that
the jury should find Whipple guilty of the four charged counts under the third
definition of "sexual intercourse" referring to "any contact with the mouth and
genitals," based on S.T.'s testimony "with respect to the licking," which S.T.
testified occurred "[m]ore than three" times.
Defense counsel argued that even if the jury believed ST., her testimony
regarding the licking only supported one count of child rape because she did not
sufficiently distinguish other incidents. Defense counsel further argued that the
jury should not believe S.T. because she was suggestible, confused, or not
telling the truth, as demonstrated when she claimed during a defense interview
that Whipple touched her inappropriately hundreds of times in the laundry room,
4
No. 68056-1-1/5
bedroom, and bathroom, but later testified that nothing happened, or different
things happened, or she failed to describe any specific incident. Defense
counsel also directed the jurors to the instructions and argued that they were not
allowed to rely on what they knew in their hearts as suggested by the prosecutor.
In rebuttal, the prosecutor urged the jury to consider S.T.'s actual
testimony rather than defense counsel's characterization of the evidence. He
described his efforts to draw S.T. out when she failed to provide details or
explanations for her statements indicating that "things happened" with Whipple.
He stated, "She made clear there was a lot more that happened, but she didn't
describe it, so you don't have that evidence. But don't assume from that that it
didn't happen." The prosecutor suggested that the jury should determine
whether S.T.'s testimony that nothing happened in the laundry room negated her
testimony of other specific events. He argued, "[l]t all started because she told
us something happened in three different places, including the laundry room. So
you can't just assume that at one point when she says 'nothing,' that that means
nothing happened. Sometimes that might be the right conclusion, or sometimes
you might not know, which means there's reasonable doubt; or sometimes it
means, I don't want to talk about it; nothing happened." Finally, the prosecutor
clarified his argument regarding the jury's assessment of S.T.'s credibility:
This case comes down to [ST.], and that's why it comes down to
that moment. And when I said, you know in your heart of hearts, I
didn't mean to say use sympathy or passion or prejudice to reach a
verdict in this case, because that's absolutely right; you cannot do
that. When I said heart of hearts, I just meant the certainty. It's not
about rendering the verdict, it's about assessing credibility, because
first you have to assess the credibility before you can render a
verdict. And you should know beyond all doubt whatsoever, and
that's all I really meant by heart of hearts. I'm not asking you to
No. 68056-1-1/6
convict somebody based on passion or emotion. But you know, and
you knew right then, that it was the absolute truth.
The jury found Whipple guilty as charged and the trial court imposed a
standard range sentence.
Whipple appeals.
ANALYSIS
Evidence is sufficient to support a conviction if, after viewing the evidence
in the light most favorable to the State, any rational trier of fact could have found
a defendant guilty beyond a reasonable doubt.4 "A claim of insufficiency admits
the truth of the State's evidence and all inferences that reasonably can be drawn
therefrom."5 "Credibility determinations are for the trier offact and are not subject
to review."6 We must defer to the jury on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness ofthe evidence.7
The State charged Whipple with four counts of first degree rape of a child
under RCW 9A.44.073, which provides in pertinent part:
(1) A person is guilty of rape of a child in the first degree when the
person has sexual intercourse with another who is less than twelve
years old and not married to the perpetrator and the perpetrator is
at least twenty-four months older than the victim.
RCW 9A.44.010(1) provides:
"Sexual intercourse" (a) has its ordinary meaning and occurs upon
any penetration, however slight, and
(b) Also means any penetration of the vagina or anus however
slight, by an object, when committed on one person by another,
4 State v. Tilton. 149 Wn.2d 775, 786, 72 P.3d 735 (2003) (quoting State v. Joy.
121 Wn.2d 333, 338, 851 P.2d 654 (1993)).
5 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
6 State v. Thomas. 150 Wn.2d 821, 874, 83 P.2d 970 (2004).
7 Thomas. 150 Wn.2d at 874-75.
No. 68056-1-1/7
whether such persons are of the same or opposite sex, except
when such penetration is accomplished for medically recognized
treatment or diagnostic purposes, and
(c) Also means any act of sexual contact between persons
involving the sex organs of one person and the mouth or anus of
another whether such persons are of the same or opposite sex.
To convict the defendant of multiple acts, the jury must unanimously agree
on the act or incident constituting the crime.8 "In sexual abuse cases where
multiple counts are alleged to have occurred within the same charging period, the
State need not elect particular acts associated with each count so long as the
evidence 'clearly delineate[s] specific and distinct incidents of sexual abuse'
during the charging periods."9
After balancing the rights of the accused and the young victims of multiple
sexual assaults, this court concluded that "generic" testimony may be sufficient to
support a conviction for multiple counts of sexual assault, if it meets certain
minimum requirements:
First, the alleged victim must describe the kind of act or acts with
sufficient specificity to allow the trier of fact to determine what
offense, if any, has been committed. Second, the alleged victim
must describe the number of acts committed with sufficient
certainty to support each of the counts alleged by the prosecution.
Third, the alleged victim must be able to describe the general time
period in which the acts occurred.[10]
85tatev.Petrich. 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
9 State v. Haves. 81 Wn. App. 425, 431, 914 P.2d 788 (1996) (quoting State v.
Newman. 63 Wn. App. 841, 851. 822 P.2d 308. review denied. 119Wn.2d 1002,
832 P.2d 487 (1992)).
10 Haves. 81 Wn. App. at 438.
No. 68056-1-1/8
Whipple first contends that ST. failed to meet the first requirement
because she did not define her "pee-pee" or clarify that she was referring to her
genitals and "had no consistent language to describe her genitals."
Whipple fails to identify any authority suggesting that a developmentally
delayed 12-year-old girl's reference to her "pee-pee," without more, does not
allow a reasonable trier of fact to infer that "pee-pee" is a reference to her "sex
organs."11 And we defer to the trier offact on issues ofconflicting testimony and
persuasiveness of the evidence.12 When viewed in the light most favorable to
the State, S.T.'s testimony that Whipple "licked" her "pee-pee" describes an act
with sufficient specificity to allow the trier of fact to determine whether Whipple
committed rape of a child under RCW 9A.44.010(1)(c) by making oral-genital
contact with ST.13 S.T.'s description ofWhipple waking her up at night, following
her into the bathroom, telling her to wipe, and then kneeling to lick her "pee-pee"
while she was standing "add[s] to the specificity prong."14
Whipple next contends that S.T. failed to describe the number of acts with
sufficient certainty to support four counts of child rape. Whipple claims ST.
11 Whipple cites State v. A.M.. 163 Wn. App. 414, 421, 260 P.3d 229 (2011), to
support his claim that S.T.'s testimony did not establish penetration of her vagina
or anus "as required for sexual intercourse." A.M. is limited to the question of
whether penetration of the buttocks, but not the anus, constitutes "sexual
intercourse" under RCW 9A.44.010(1)(a), and is therefore irrelevant to the
question presented here of whether "pee-pee" sufficiently identifies "sex organs"
under RCW9A44.010(1)(c).
12 State v. Lonquskie. 59 Wn. App. 838, 844, 801 P.2d 1004 (1990).
13 See Haves. 81 Wn. App. at 438 (victim's testimony that defendant "put his
private part in mine" established required specificity of description of the acts).
14 Haves. 81 Wn. App. at 438 (victim's testimony that defendant "put his private
part in mine" "establishes the first prong of the requirement, specificity of
description of the acts. Her descriptions of how he did these acts add to the
specificity prong.").
8
No. 68056-1-1/9
testified that each interaction with Whipple was different but she failed to
describe where on her body she was licked on any other occasion. Whipple
points to S.T.'s testimony when the following exchange occurred:
Q: Was it always the same, like, the licking, or did different things
happen in the bathroom?
A: Different things.
Q: Can you tell us a little bit about some of the other things that are
different?
A: (Pause.) I don't want to talk about it.
But ST. did not testify to any innocuous incidents of licking such that the
jury would be unable to tell which occasions involved acts constituting a
particular offense.15 And viewed in the light most favorable to the State, S.T.'s
statement that "different things" happened in the bathroom suggests that other
additional things that she did not want to describe occurred in the bathroom but
does not contradict her testimony that Whipple "licked" her "in [her] pee-pee" on
"[m]ore than three" "different days or nights." This evidence describes a number
of acts committed with sufficient certainty to support the four counts alleged.16
Whipple also contends that ST. did not sufficiently describe the time
period in which the acts occurred, the third prong required to support a conviction
with generic testimony. He claims that S.T. did not indicate that any incident
occurred in the time frame of the charging document and the jury instruction.
15 Cf. State v. Jensen. 125 Wn. App. 319, 324, 104 P.3d 717 (2005) (reversing
one of three child molestation convictions where victim described two incidents
with particularity, testified defendant came into her room at night on two other
occasions, and detective testified victim reported a "few" incidents of touching,
because victim did not describe acts with sufficient specificity for jury to
determine which offenses, if any, defendant committed on the two additional
occasions he came into her room at night).
16 Haves. 81 Wn. App. at 439 (victim's testimony that defendant had intercourse
with her "at least 'four times' and up to 'two or three times a week'" supported
conviction on four counts).
No. 68056-1-1/10
But ST. testified that the incidents occurred when she was staying at
Thompson's house for weekends and Whipple lived there. Independent
evidence linked the general time period she stayed with Thompson to the specific
dates in the information and the jury instructions by establishing that ST. spent
weekends at Thompson's house between September 2009 and June 2010 and
that Whipple occasionally stayed there between Thanksgiving 2009 and January
2011. Whipple fails to identify any authority suggesting that S.T.'s testimony
here is insufficient to identify a general time period. "[Specifics regarding date,
time, place, and circumstances are factors regarding credibility and are not
necessary elements that need to be proved to sustain a conviction."17 Viewed in
the light most favorable to the State, S.T.'s testimony connecting the incidents to
times she spent weekends at Thompson's house and independent evidence
establishing the timeframe of S.T.'s visits would allow the jury to determine
whether the alleged acts occurred within the charging period.
Whipple did not object to the prosecutor's argument at trial and does not
argue here that the prosecutor's remarks were so flagrant and ill-intentioned that
no curative instruction could have alleviated the prejudice. Instead, he argues
generally that the prosecutor urged the jury to convict based on feelings, misled
the jury regarding the burden of proof, and encouraged the jury to convict based
on speculation. Whipple claims that the prosecutor's argument demonstrates the
insufficiency of the evidence.
17 Haves. 81 Wn. App. at 437 (citing People v. Jones. 51 Cal.3d 294, 792 P.2d
643, 270 Cal. Rptr. 611, 623 (1990)).
10
No. 68056-1-1/11
In particular, Whipple claims that the prosecutor urged the jury to convict
based on what they felt in their hearts. A review of the argument reveals that the
prosecutor actually mentioned hearts and feelings when discussing S.T.'s
credibility and specifically explained during rebuttal that when he referred to
hearts and feelings he was talking about the certainty of their belief in S.T.'s
credibility. This is not improper. Prosecutors are given reasonable latitude to
draw and express inferences from the evidence, as well as the demeanor of
witnesses, as to the credibility ofwitnesses.18
Whipple also claims that the prosecutor told the jury not to assume that
nothing happened when S.T. said that nothing happened. But a review of the
entire argument in context reveals that the prosecutor was responding to defense
counsel's suggestion that the jury should not credit ST. because she
contradicted herself and repeatedly claimed that nothing happened. The
prosecutor argued that the jury should recall the actual series of questions and
answers during S.T.'s testimony, and should not assume that S.T.'s refusal to
answer certain questions or her testimony that "nothing" happened in response to
one question necessarily contradicted her testimony in response to other
questions. Although the prosecutor's argument may have been inartful at points,
it was a fair response to defense counsel's argument.19
Finally, Whipple argues that the prosecutor improperly "put the onus on
the jury to find four separate occurrences rather than acknowledging its burden to
prove four separate acts." He identifies the prosecutor's argument that the jury
18 State v. Knapp. 14 Wn. App. 101, 111, 540 P.2d 898 (1975).
19 State v.Russell. 125 Wn.2d 24, 87, 882 P.2d 747 (1994).
11
No. 68056-1-1/12
could pick any four times they believe the acts occurred as long as they agree on
each act that occurred. But the prosecutor referred specifically to S.T.'s
testimony that the licking occurred "[m]ore than three" times and the fact that the
State charged Whipple with four counts. The prosecutor accurately argued that
the jury could determine from the evidence that more than four acts occurred, but
that it must unanimously agree as to which acts were proved to support the four
counts. The prosecutor's argument was consistent with the court's instruction to
the jury that they must be unanimous as to which act constitutes the count
charged and that they must find "an act separate and distinct" for each of the
identically charged counts.20 The argument was not improper.
Finally, Whipple challenges the following community custody conditions
imposed at sentencing:
7. Do not possess or access sexually explicit materials, as directed
by the supervising Community Corrections Officer. Do not frequent
establishments whose primary business pertains to sexually explicit
or erotic material.
8. Do not possess or control sexual stimulus material for your
particular deviancy as defined by the supervising Community
Corrections Officer and therapist except as provided for therapeutic
purposes.
Whipple argues that the conditions are unconstitutionally vague under State v.
Bahl.21 Whipple also argues that the court exceeded its authority when it
20 See Haves. 81 Wn. App. at 431 ("The trial court must also instruct the jurythat
they must be unanimous as to which act constitutes the count charged and that
they are to find 'separate and distinct acts' for each count when the counts are
identically charged.") (quoting State v. Noltie. 116 Wn.2d 831, 842-43, 809 P.2d
190(1991)).
21 164 Wn.2d 739, 193 P.3d 678 (2010).
12
No. 68056-1-1/13
imposed the conditions because the court did not find that the provisions are
crime-related.
The State concedes that condition 8 is improper under Bahl.22 However,
the State argues that condition 7 is not unconstitutionally vague and is related to
the crime because "[t]he circumstances of his crimes show Whipple to be
egregiously unable to control himself when in a state of sexual stimulus."
The sentencing court has discretion to impose crime-related prohibitions
as a condition of supervision.23 But nothing in the record indicates that Whipple's
offenses involved sexually explicit materials or establishments whose primary
business involves sexually explicit materials. Under these circumstances, the
challenged community custody conditions should be stricken.24
We affirm Whipple's conviction, but remand for the trial court to strike the
challenged community custody conditions.
WE CONCUR:
XaK^Qojl^
22 Bahl. 164 Wn.2d at 761 (identical language unconstitutionally vague where no
deviancy had been diagnosed or identified).
23 RCW 9.94A.703(3)(f)-
24 See State v.O'Cain. 144 Wn. App. 772, 184 P.3d 1262 (2008) (bar on Internet
access in rape case improper where not crime related).
13