State of Washington v. Eugene Lester Standfill ( 2018 )

FILED
AUGUST 14, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34416-9-III
Respondent, )
)
v. )
)
EUGENE LESTER STANDFILL, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — A jury found Eugene Standfill guilty of five different felony
charges involving the sexual abuse of a minor, K.S. His appeal challenges a jury
instruction, the length and various conditions of community supervision, and the
effectiveness of his trial attorney in not arguing that two offenses constituted the same
criminal conduct. We affirm the convictions and remand for the trial court to amend and
strike some portions of the judgment and sentence.
FACTS
One charge for the jury’s consideration was a count of possession of depictions of
a minor engaged in sexually explicit conduct in the first degree, alleged to have occurred
between August 20, 2011 and November 14, 2014. Among the evidence introduced at
No. 34416-9-III
State v. Standfill
trial were 16 pictures of K.S. partially or completely nude, and one picture of K.S.
masturbating. The photos were taken over a ten year period beginning when the child
was four.
In support of the depictions charge, the State proposed a variation on 11
Washington Practice: Washington Pattern Jury Instructions: Criminal 49A.03.02, at
1023 (4th ed. 2016). Element two of the proposed instruction stated: “(2) The visual or
printed matter depicts the minor masturbating her vagina.” The court gave the instruction
to the jury as Instruction 25. Clerk’s Papers (CP) at 295.
Mr. Standfill was 86 at sentencing. His offender score was calculated at 12 on
each of the five charges, with each of the four other offenses adding three points to the
total. CP at 340. His attorney pointed out that the court had no discretion and that Mr.
Standfill would be 100 upon completion of the minimum term. He stated that his client
had nothing to tell the court. The court then imposed a life sentence, with a minimum
term of 210 months on count 1, and lesser determinate amounts on the other four counts.
All counts were to be served concurrently. The court imposed a community supervision
term of life on count 1, and concurrent supervision terms of 36 months on the other four
counts.
Mr. Standfill appealed to this court. A panel considered the case without hearing
argument.
2
No. 34416-9-III
State v. Standfill
ANALYSIS
The sole trial challenge concerns the use of Instruction 25. Mr. Standfill also
challenges the effectiveness of his counsel at sentencing and takes issues with the term of
supervision on some counts and conditions of supervision. We address those four
categories of challenges in the order listed.
Jury Instruction 25
Mr. Standfill argues that Instruction 25 constituted a comment on the evidence.
The election of the depiction that the State was relying on to prove count 4 was not a
judicial comment on the evidence.
Article IV, § 16 of the Washington Constitution prohibits judges from
commenting on the evidence. It states:
Judges shall not charge juries with respect to matters of fact, nor comment
thereon, but shall declare the law.
This provision “prohibits a judge from conveying to the jury his or her personal
attitudes toward the merits of the case.” State v. Becker, 132 Wash. 2d 54, 64, 935 P.2d
1321 (1997). Its purpose “is to prevent the jury from being unduly influenced by the
court’s opinion regarding the credibility, weight, or sufficiency of the evidence.” State v.
Sivins, 138 Wash. App. 52, 58, 155 P.3d 982 (2007) (citing State v. Eisner, 95 Wash. 2d 458,
462, 626 P.2d 10 (1981)). “A statement by the court constitutes a comment on the
evidence if the court’s attitude toward the merits of the case or the court’s evaluation
3
No. 34416-9-III
State v. Standfill
relative to the disputed issue is inferable from the statement.” State v. Lane, 125 Wash. 2d
825, 838, 889 P.2d 929 (1995). Thus, a jury instruction which removes a factual matter
from the jury constitutes a comment on the evidence in violation of this section. Becker,
132 Wash. 2d at 64-65. In determining whether a statement by the court amounts to a
comment on the evidence, a reviewing court looks to the facts and circumstances of the
case. State v. Jacobsen, 78 Wash. 2d 491, 495, 477 P.2d 1 (1970). An improper judicial
comment is presumed to be prejudicial. State v. Levy, 156 Wash. 2d 709, 723-725, 132 P.3d
1076 (2006); State v. Bogner, 62 Wash. 2d 247, 382 P.2d 254 (1963).1
The defendant’s right to a unanimous verdict also is at issue. Whenever there is
evidence establishing more different criminal actions were proven than were alleged, the
constitution requires that the jury either be instructed on the need to agree on the specific
act proven or the State must elect the specific act it is relying on in order to ensure that a
unanimous verdict was returned. This type of error requires a new trial unless shown to
be harmless beyond a reasonable doubt. State v. Camarillo, 115 Wash. 2d 60, 64, 794 P.2d
850 (1990); State v. Kitchen, 110 Wash. 2d 403, 405-406, 414, 756 P.2d 105 (1988).
1
A comment on the evidence is harmless error where the record contains over-
whelming untainted evidence to support the conviction. Lane, 125 Wash. 2d at 839-840;
Sivins, 138 Wash. App. at 60-61.
4
No. 34416-9-III
State v. Standfill
This court reviews allegations of instructional error de novo. State v. Brett, 126
Wash. 2d 136, 171, 892 P.2d 29 (1995). Trial courts have an obligation to provide
instructions that correctly state the law, are not misleading, and allow the parties to argue
their respective theories of the case. State v. Dana, 73 Wash. 2d 533, 536-537, 439 P.2d 403
(1968).
With these principles in mind, we conclude that Instruction 25 was not a judicial
comment on the evidence. The instruction directed the jury that it must find, as one of the
elements of the offense, that the State had proven beyond a reasonable doubt that the “visual
or printed matter depicts the minor masturbating her vagina.” It did not state that any of the
photos contained such an image, nor did the element interpret conflicting evidence. In
situations where an instruction has commented on the evidence, it typically occurred
because the instruction stated as fact something that was a contested issue of fact. For
instance, in Becker the State was required to establish that an offense occurred near a
school. 132 Wash. 2d at 64. The jury instruction stated that the crime occurred near the
“Youth Education Program School.” Id. The contested issue at trial had been whether or
not the Youth Education Program was in fact a school. Id. at 63. The court concluded that
the language of the instruction told the jury that the program was a school, leaving the jury
only the question of whether the offense occurred near the school. Id. at 63-64. This
constituted a comment on the evidence. Id. at 64-65.
5
No. 34416-9-III
State v. Standfill
Unlike Becker, the challenged language of Instruction 25 did not establish any fact.
It simply identified the type of evidence the State needed in order to establish the crime. It
was for the jury to determine whether the photo did show an underage K.S. masturbating
and whether Mr. Standfill possessed the depiction. None of those issues was resolved as a
matter of fact by the jury instruction. It did not constitute a comment on the evidence.
The instruction also served to preserve Mr. Standfill’s right to a unanimous verdict
on the depictions count. There were 17 photos of K.S. that were put before the jury.
Clarifying the photo the State was using guaranteed that no issue arose concerning whether
all jurors agreed on the same photo to support the conviction.
This assignment of error is without merit.
Assistance of Counsel
Mr. Standfill also argues that his attorney did not adequately represent him at
sentencing when he failed to argue that the possession of depictions conviction
constituted the same criminal conduct as the sexual exploitation of a minor charge. He
cannot establish that he was prejudiced by this alleged failure.
Under the Sentencing Reform Act of 1981, ch. 9.94A RCW, a felon will be
sentenced within a specified sentence range dependent on the seriousness of the offense
and the offender’s prior criminal history, unless aggravating or mitigating circumstances
exist. RCW 9.94A.505(2)(x), .530(1), .535; see generally State v. Jones, 159 Wash. 2d 231,
6
No. 34416-9-III
State v. Standfill
236-237, 149 P.3d 636 (2006); State v. Nordby, 106 Wash. 2d 514, 516, 723 P.2d 1117
(1986). The offender score is calculated by counting the prior and current felony
convictions in accordance with the rules for each offense. RCW 9.94A.525. Current
felony offenses are treated as if they were prior offenses when scoring the other crimes
being sentenced. RCW 9.94A.525(1); RCW 9.94A.589(1)(a).
The legislature capped the offender score side of the sentencing grid at “9 or
more.” RCW 9.94A.510. In calculating the offender score, the trial court has discretion
to count multiple offenses that encompass the same criminal conduct as one. RCW
9.94A.525(5)(a)(i); RCW 9.94A.589(1)(a). Crimes encompass the “same criminal
conduct” if they occur at the same time and place, involve the same victim, and have the
same criminal intent. RCW 9.94A.589(1)(a). Discretion is abused when it is exercised
on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d
12, 26, 482 P.2d 775 (1971).
An attorney must perform to the standards of the profession; failure to live up to
those standards will require a new trial when the client has been prejudiced by counsel’s
failure. State v. McFarland, 127 Wash. 2d 322, 334-335, 899 P.2d 1251 (1995). In
evaluating ineffectiveness claims, courts must be highly deferential to counsel’s decisions
and there is a strong presumption that counsel was effective. A strategic or tactical
decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-
691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts evaluate
7
No. 34416-9-III
State v. Standfill
counsel’s performance using a two-prong test that requires courts to determine whether or
not (1) counsel’s performance failed to meet a standard of reasonableness and (2) actual
prejudice resulted from counsel’s failures. Id. at 690-692. When a claim can be disposed
of on one ground, a reviewing court need not consider both Strickland prongs. Id. at 697;
State v. Foster, 140 Wash. App. 266, 273, 166 P.3d 726 (2007).
The defendant bore the responsibility of asking the court to exercise its discretion
to consider whether either set of crimes should be counted as a single offense. State v.
Graciano, 176 Wash. 2d 531, 536-541, 295 P.3d 219 (2013). His failure to do so waived
the issue. Id. at 541. It is because of that waiver that he argues his trial counsel failed
him at sentencing.
Even assuming that it was error to not raise the matter, the record does not
establish prejudice for two reasons. First, in order to prevail, the record would need to
show that the court likely would have granted the request. See McFarland, 127 Wash. 2d at
333-334 (any error in failing to request suppression hearing was not manifest because
defendants could not show that trial court would have granted the motion). This record
does not establish that the two offenses were necessarily the same, nor is there reason to
think that the court would have treated them as such if the issue had been raised. Thus,
the ineffective assistance allegation is not manifest error in this context. Id.; RAP 2.5(a).
8
No. 34416-9-III
State v. Standfill
Second, the alleged error had no effect on Mr. Standfill’s sentence. Even if the
two offenses should have been treated as one, the offender score on each crime would
only have been reduced from 12 to 9. Since the legislature has capped offender scores at
“9 or more,” the ranges for these offenses did not change once the offender score reached
9.2 The alleged error was not prejudicial.
Mr. Standfill has failed to establish that he was prejudiced by his trial counsel’s
alleged failure. He therefore has not met his burden of establishing ineffective assistance.
Term of Supervision
Mr. Standfill also argues that the trial court erred by imposing terms of supervision
that exceed the maximum punishment for some of his offenses. The State concedes this
argument in part. We agree with the concession and direct that the term of supervision be
stricken for counts 2 and 3.
The combined sentence of incarceration and term of community supervision
cannot exceed the statutory maximum sentence for the offense. Since 2009, the trial
judge has been directed to reduce the term of supervision when the combined total
exceeds the maximum. State v. Winborne, 167 Wash. App. 320, 329, 273 P.3d 454 (2012).
2
We also are aware of no authority that requires a precise number when the
offender score falls into the “9 or more” category.
9
No. 34416-9-III
State v. Standfill
As to count 4, the court also imposed a 36 month term of supervision on top of a
102 month sentence for an offense carrying a maximum term of 120 months. CP at 343-
344. Mr. Standfill argues this is error, while the State contends that there was no error
because the judgment and sentence expressly tells the Department of Corrections that the
combined sentence of incarceration and supervision may not exceed the maximum term
for the crime. CP at 344. However, the notation arguably only serves to render the error
harmless.3 By the terms of RCW 9.94A.701(9), the court should have imposed a term of
supervision totaling 18 months.
Because we remand for further proceedings in the final section of this opinion, the
court should take the opportunity to amend the term of supervision on count 4 to 18
months.
Conditions of Supervision
Mr. Standfill also argues that some of the terms of community supervision
imposed in Appendix F to the judgment and sentence are invalid. We agree in part with
his arguments and remand for further proceedings to correct the judgment and sentence.
Generally, this court will review the terms of community supervision for abuse of
the trial court’s discretion. Any condition that is beyond the trial court’s authority to
impose constitutes an abuse of discretion. State v. Valencia, 169 Wash. 2d 782, 791-792,
3
Since count 1 imposed a lifetime supervision on Mr. Standfill, any error on the
length of supervision for the other three counts is harmless for that reason.
10
No. 34416-9-III
State v. Standfill
239 P.3d 1059 (2010). Other than legislatively specified conditions, the court has
authority to impose conditions related to the crimes for which the defendant was
convicted. State v. Riley, 121 Wash. 2d 22, 36-37, 846 P.2d 1365 (1993).
The State concedes that the conditions that prohibit Mr. Standfill from using
computers or electronic devices that are capable of accessing the internet without
authorization of his community corrections officer are not crime-related. We accept that
concession and direct that the trial court strike those conditions on remand.
Mr. Standfill also argues that the condition requiring him to avoid places where
children congregate is vague. CP at 349 (condition 9). We recently addressed an
identical provision in State v. Johnson, No. 34928-4-III, slip op. at 8 (Wash. Ct. App.
July 17, 2018), http://www.courts.wa.gov/opinions/pdf/349284.pdf. Mr. Standfill
presents the same vagueness challenge to the condition as did the appellant in Johnson.
As there, we conclude that the condition is not vague. Id. at 8-9.
However, Johnson also concluded that the term “children” needed defining. This
court concluded that the condition needed to be amended to identify “children” as
children under age 16. Id. at 9-10. We directed the trial court to amend the condition by
directing that it read “places where children under 16 congregate.” Id. Consistently, we
also remand Mr. Standfill’s case for the same amendment.
11
No. 34416-9-111
State v. Standfill
The convictions are affirmed. We remand for further proceedings to amend the
judgment and sentence in accordance with this opinion.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, A.CJ.
Siddoway, J.
12