State v. Hagler , 150 Wash. App. 196 ( 2009 )

Agid, J.

¶1 Under chapter 10.99 RCW, certain crimes are designated by the prosecutor or the court as domestic violence crimes. It is neither necessary nor advisable to inform the jury that charges have been designated as domestic violence crimes under chapter 10.99 RCW. In this case, however, doing so was harmless. We affirm Warren Hagler’s convictions, rejecting his remaining claims. But because the court imposed a sentence that exceeds the statutory maximum, we remand for the court to correct the sentence.

BACKGROUND

¶2 In 2005, Hagler was a 40 year old man without a stable place to live. He met Magen Hanrahan, a 19 year old cosmetology student. They quickly began an intimate relationship, and Hagler moved into Hanrahan’s apartment within days.

¶3 Hanrahan was having trouble making her rent and car payments. Hagler gave her $1,300 to $1,500 in cash and gifts. Hanrahan understood the cash was in exchange for letting Hagler live in her apartment and drive her car.

¶4 Not long after the relationship began, the two argued in the car and Hagler assaulted Hanrahan. Hanrahan testified that Hagler punched her or hit her several times with a gun, pulled her across the center console by her hair, and told her she “owed him” and “was going to go and be a prostitute and give him back all of his money.” Hagler held a gnn to her temple and neck and told her he would kill her.

¶5 When they returned to Hanrahan’s apartment, Hagler again told her she must become a prostitute to repay his money. Hanrahan had never been a prostitute before. Over the course of a few days, Hagler drove Hanrahan to several locations to engage in prostitution. He instructed her about what types of men to look for and how to find out if they were undercover police. He kept her car and the keys to her apartment, drove up and down the street to watch her, and called her cell phone repeatedly to see whether she had met anyone and how much money she had earned. He told her he would kill her if she went to the police.

¶6 The third time Hagler took Hanrahan to prostitute, she decided to get away. She explained her situation to the first man who propositioned her and paid him $50 to take her to the Space Needle, where she had a friend pick her up and take her to the police station. She cooperated with police to lure Hagler to a meeting, where they arrested him.

¶7 The State charged Hagler with assault in the second degree, promoting prostitution in the first degree, unlawful possession of a firearm, and two counts of identity theft. On the charging documents, the State designated the assault charge and the promoting prostitution charge as domestic violence crimes.

¶8 Before trial, Hagler asked the court not to inform the jury of the domestic violence designations. The court denied the motion and read the charges as they appeared in the information, including the designation.

¶9 Hagler testified. He admitted he introduced the idea of prostitution as a solution to Hanrahan’s money problems. He also acknowledged that he “smacked” Hanrahan and grabbed her by the hair in the car, but he denied using a gun. He explained she had “brung it on” herself by “disrespecting” him, and claimed that Hanrahan had “agreed to prostitute prior to me smacking her” and that he didn’t smack her “to force her into prostitution.” According to Hagler, “the assault was separate from me—her prostituting.”

¶10 Hagler also admitted that he opened a bank account under a false name, deposited bad checks from that account into Hanrahan’s Qualstar Credit Union account using a Boeing Employees Credit Union (BECU) automated teller machine, and then immediately withdrew $500 to take advantage of BECU’s policy allowing members to access that amount before their checks clear. Using Hanrahan’s debit card and personal identification number, Hagler was able to do this several times before the credit union blocked the account.

¶11 At the close of trial, Hagler objected to including the domestic violence designation in the instructions to the jury. The court overruled the objection, and the designation appeared several times in the jury instructions and in three verdict forms.

¶12 The jury convicted Hagler of first degree promoting prostitution and two counts of identity theft, found him not guilty of unlawful possession of a firearm and second degree assault, and convicted him of the lesser included offense of assault in the fourth degree.

¶13 The court imposed the statutory maximum of 120 months for promoting prostitution and a concurrent, high end sentence of 57 months for identity theft. The court ordered the 120 month term to run consecutively to its 12 month sentence for the misdemeanor assault. Finally, the court imposed a 9 to 18 month term of community custody for each felony sentence.

DISCUSSION

Domestic Violence Designation

¶14 The domestic violence act, chapter 10.99 RCW, was designed to “recognize the importance of domestic violence as a serious crime against society and to assure the victim of domestic violence the maximum protection from abuse.”¹ The legislature sought to correct “policies and practices of law enforcement agencies and prosecutors which have resulted in differing treatment of crimes occurring between cohabitants and of the same crimes occurring between strangers.”² Among other things, the legislature required that courts “identify by any reasonable means on docket sheets those criminal actions arising from acts of domestic violence.”³ Pretrial no-contact orders are provided for, and such cases are to receive priority in scheduling.⁴ The Ring County prosecutor designates domestic violence crimes on charging documents, presumably in part to assist the court in meeting these responsibilities.

¶15 The designation “does not itself alter the elements of the underlying offense; rather, it signals the court that the law is to be equitably and vigorously enforced.”⁵ The designation need not be proved to a jury under Blakely .⁶ Upon conviction of a domestic violence offense as defined by RCW 10.99.020, however, “sentencing courts are authorized to impose specialized no-contact orders, violation of which constitutes a separate crime.”⁷

¶16 Hagler contends that informing the jury of the designation is prejudicial and unnecessary. The State responds it merely allows the jury to understand the exact charges. Whether and how to instruct a jury is a matter of discretion.⁸

¶17 The jury’s task is to decide whether the State has proved the elements of the charges beyond a reasonable doubt. A domestic violence designation under chapter 10.99 RCW is neither an element nor evidence relevant to an element. The fact of the designation thus does not assist the jury in its task. We can see no reason to inform the jury of such a designation, and we believe that prejudice might result in some cases.

¶18 Here, however, any error was harmless. Hagler conceded he was guilty of promoting prostitution in the second degree. The use or threat of force elevates promoting prostitution to the first degree, and Hagler contends the jury might have inferred from the domestic violence designation that he used force or threat to compel Hanrahan into prostitution. But there was no need for inference here; there was ample direct evidence of actual force and threats. Hanrahan testified that Hagler blackened her eye and threatened to “make it a lot worse,” hit her several times about the head, held a gun to her head, and threatened to kill her if she went to the police. Hagler admitted he smacked Hanrahan and, while holding her by her hair, told her she was going to pay him back. The evidence of conduct constituting domestic violence within the general understanding of the term was thus undisputed.

¶19 Further, the domestic violence designation clearly did not influence the jury’s consideration of the assault charge because it acquitted Hagler of assault in the second degree and unlawful possession of a firearm, and convicted him only of the lesser included offense of assault in the fourth degree, which he conceded.

¶ 20 An “ ‘error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.’ ”⁹ There is no reasonable probability of a different verdict here. Accordingly, any error was harmless.

Excessive Sentence

¶21 A sentence may not exceed the statutory maximum term set by the legislature.¹⁰ The statutory maximum for promoting prostitution in the first degree is 120 months. The court imposed a sentence of 120 months plus 9 to 18 months’ community custody on that count. The statutory maximum for identity theft in the second degree is 60 months. The court imposed a sentence of 57 months plus 9 to 18 months’ community custody for the two identity theft convictions.

¶22 The State concedes that Hagler’s term of confinement plus community custody exceeds the statutory maximum for these charges. It relies on State v. Sloan¹¹ for the proposition that the appropriate remedy is to remand for clarification that the term of confinement and community custody shall not exceed 120 months for promoting prostitution and 60 months for the two counts of identity theft.

¶23 Sloan has been called into question by our recent opinion in State v. Linerud¹² That case held that “a sentence is indeterminate when it puts the burden on the [Department of Corrections] rather than the sentencing court to ensure that the inmate does not serve more than the statutory maximum.”¹³ Accordingly, “courts must limit the total sentence they impose to the statutory maximum. It is within the trial court’s discretion to determine how much of that sentence is confinement and how much is community custody.”¹⁴

¶24 We affirm Hagler’s convictions and remand for re-sentencing in accord with Linerud. On remand the court should correct the apparent scrivener’s error, through which the court recorded Hagler’s offense score as 11 despite finding that it was 10.

¶25 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

Grosse, J., concurs.

1 RCW 10.99.010.

2 Id.

3 RCW 10.99.040(l)(d). “Domestic violence” is defined by the statute to include a list of crimes “when committed by one family or household member against another.” RCW 10.99.020(5).

4 RCW 10.99.040(2).

5 State v. O.P., 103 Wn. App. 889, 892, 13 P.3d 1111 (2000).

6 Blakely v. Washington, 542 U.S. 296,124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); State v. Winston, 135 Wn. App. 400, 406-10, 144 P.3d 363 (2006).

7 State v. O’Connor, 119 Wn. App. 530, 547, 81 P.3d 161 (2003), aff’d, 155 Wn.2d 335, 119 P.3d 806 (2005).

8 State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (rulings on motions in limine reviewed for abuse discretion); State v. Kennard, 101 Wn. App. 533, 537, 6 P.3d 38 (a court has discretion in wording jury instructions), review denied, 142 Wn.2d 1011 (2000). A court abuses its discretion when its decision is unreasonable or based upon untenable grounds or reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).

9 State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)).

10 RCW 9.94A.505(5).

11 121 Wn. App. 220, 87 P.3d 1214 (2004).

12 147 Wn. App. 944, 197 P.3d 1224 (2008).

13 Id. at 948.

14 Id. at 951.