COUPT 1
STATE OF WAS!-!! !rTO!!
2017 DEC L6 i,i; 6:27
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 75079-8-1
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
ROBERT RAYMOND RAETHKE,
Appellant. FILED: December 26, 2017
TRICKEY, A.C.J. — Robert Raethke appeals his conviction of second degree
assault committed with sexual motivation and his sentence to life without the
possibility of parole under the Persistent Offender Accountability Act(POAA)of the
Sentencing Reform Act of 1981, chapter 9.94A RCW. Raethke argues that the
trial court erred in instructing the jury on the "abiding belief" definition of proof
beyond a reasonable doubt. He next contends that the trial court violated his due
process and Sixth Amendment rights when it imposed a sentence of life without
the possibility of parole but did not have the jury find the fact of his prior convictions
beyond a reasonable doubt. He also argues that his right against double jeopardy
was violated when the same fact was used to satisfy an element of his underlying
crime and support his sentence under the POAA. Finding no error, we affirm.
FACTS
On April 30,2014, A.C. was walking her dog along the Arlington Airport Trail
when she encountered Raethke. Raethke -told A.C. that she was beautiful and
asked for a hug. Raethke grabbed A.C. in a hug and began kissing her on the
No. 75079-8-1 /2
neck and cheek. Although A.C. repeatedly shoved Raethke and told him to let her
go, Raethke held on for seven to ten seconds. After Raethke let go of her, A.C.
told him she was going to call the police and Raethke ran away. Later, A.0 told
Officer Peter Barrett that she thought she was going to be raped when Raethke
was hugging and kissing her.
The State charged Raethke with second degree assault with sexual
motivation based on intent to commit indecent liberties by forcible compulsion. The
State noted that, if convicted, Raethke would be a persistent offender under the
POAA and would be sentenced to life in prison without the possibility of parole.
Prior to trial, the State moved to admit evidence of Raethke's prior
convictions of first degree rape and attempted first degree rape, including
testimony of his prior victims S.C., K.D., and M.N. The trial court admitted the prior
victims' evidence under ER 404(b) on the issue of Raethke's intent to commit
indecent liberties and so that the jury could evaluate whether the crime was
sexually motivated.
At trial, S.C., M.N., and K.D. testified that Raethke had grabbed them on
wooded trails and taken them into the woods to sexually assault them.
The jury found Raethke guilty of assault in the second degree, and found
that he committed the crime with sexual motivation.
At Raethke's sentencing, the State offered a certified copy of his prior
judgments and convictions for first degree rape and attempted first degree rape.
The trial court sentenced Raethke to life without the possibility of parole as a
persistent offender under the POAA.
2
No. 75079-8-1 / 3
Raethke appeals.
ANALYSIS
Proof Beyond a Reasonable Doubt Instruction
Raethke argues that the trial court erred because its instruction on the
beyond a reasonable doubt standard of proof included language about the jury
having an "abiding belief in the truth of the charge."1 The State responds that
Washington courts have previously approved of this language. We agree with the
State.
Jury instructions "must convey to the jury that the State bears the burden of
proving every essential element of a criminal offense beyond a reasonable doubt."
State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).
The Washington Pattern Jury Instructions — Criminal(WP1C)4.01 provides
a model reasonable doubt instruction:
[The][Each] defendant has entered a plea of not guilty. That
plea puts in issue every element of [the][each] crime charged. The
[State] [City][County] is the plaintiff and has the burden of proving
each element of[the][each] crime beyond a reasonable doubt. The
defendant has no burden of proving that a reasonable doubt exists
[as to these elements].
A defendant is presumed innocent. This presumption
continues throughout the entire trial unless during your deliberations
you find it has been overcome by the evidence beyond a reasonable
doubt.
A reasonable doubt is one for which a reason exists and may
arise from the evidence or lack of evidence. It is such a doubt as
would exist in the mind of a reasonable person after fully, fairly, and
carefully considering all of the evidence or lack of evidence. [If, from
such consideration, you have an abiding belief in the truth of the
charge, you are satisfied beyond a reasonable doubt.]
'Clerk's Papers(CP) at 78.
3
No. 75079-8-1 / 4
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
401 (4th ed. 2016) (WPIC) (boldface omitted) (alterations in original). The
Washington Supreme Court has approved of this "abiding belief" instruction, and
directed that trial courts must use it to instruct the jury on the government's burden
and reasonable doubt. See Bennett, 161 Wn.2d at 308, 317. This court has relied
on Bennett to uphold the use of WPIC 4.01, including the optional "abiding belief
in the truth" language. State v. Fedorov, 181 Wn. App. 187, 199-200, 324 P.3d
784 (2014).
A challenged jury instruction is reviewed de novo, "'in the context of the
instructions as a whole." State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29(1995)
(quoting State v. Benn, 120 Wn.2d 631, 655, 845 P.2d 289 (1993)).
Here, the trial court's reasonable doubt instruction was identical to WPIC
4.01, including the bracketed "abiding belief in the truth of the charge" language.2
Bennett approved of WPIC 4.01, including the "abiding belief in the truth of the
charge" language, and has not been overturned. WPIC 4.01 has not been
replaced with a new reasonable doubt instruction. We are bound by Bennett, and
conclude that the trial court did not err when it gave the jury a reasonable doubt
instruction based on WPIC 4.01.
Raethke argues that this court should specifically disapprove of the optional
"abiding truth" language in WPIC 4.01 because several subsequent cases have
disapproved of argument characterizing the jury's role as finding or declaring the
truth. See State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014); State v.
2 CP at 78.
4
No. 75079-8-1 / 5
Emery, 174 Wn.2d 741, 760, 278 P.3d 653(2012); State v. Berube, 171 Wn. App.
103, 120-21, 286 P.3d 402 (2012). None of these cases are persuasive. Each
case concerned remarks made by the prosecutor during closing argument telling
the jury to speak the truth or search for the truth. None challenged Bennett's
direction to use WPIC 4.01 as a reasonable doubt instruction. We reject this
argument.3
Bench Findings of Prior Convictions
Raethke argues that the trial court violated his due process and Sixth
Amendment rights when it sentenced him to life without the possibility of parole
under the POAA without a jury finding that he was an offender with a prior strike
beyond a reasonable doubt. The State responds that the Washington Supreme
Court has already rejected this argument. We agree with the State.
"The Sixth Amendment provides that those `accused' of a 'crime' have the
right to a trial 'by an impartial jury.' This right, in conjunction with the Due Process
Clause, requires that each element of a crime be proved to the jury beyond a
reasonable doubt." Allevne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 2156,
186 L. Ed. 2d 314 (2013). "[A]ny fact that increases the [mandatory minimum
sentence of the crime] is an `element' that must be submitted to the jury." Alleyne,
133 S. Ct. at 2155. But the fact of a prior conviction does not need to be submitted
to a jury and proved beyond a reasonable doubt, even if it may increase the penalty
for the crime at issue beyond the statutory maximum. Apprendi v. New Jersey,
'This court has previously rejected an analogy to cases involving prosecutorial "speak the
truth" comments during closing arguments. See Fedorov, 181 Wn. App. at 200 (rejecting
an analogy to Emery, 174 Wn.2d at 760). Raethke does not distinguish the instructions
at issue in Fedorov and in the present case. We reject this analogy.
5
No. 75079-8-1/6
530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed,. 2d 435(2000); see also Blakely v.
Washington, 542 U.S. 296, 308, 313-14, 124 S. Ct. 2531, 159 L. Ed. 2d 403(2004)
(holding that a sentence above the statutory maximum based on the sentencing
judge's finding of deliberate cruelty violated the defendant's Sixth Amendment
rights, but not questioning Apprendi's exception for prior convictions).
"[F]or the purposes of the POAA, a judge may find the fact of a prior
conviction by a preponderance of the evidence." State v.Witherspoon, 180 Wn.2d
875, 892, 329 P.3d 888 (2014). The POAA does not violate state or federal due
process by not requiring that a jury must find the existence of prior strike offenses
beyond a reasonable doubt. Witherspoon, 180 Wn.2d at 891-92 (discussing
Alleyne, 570 U.S. 99, Blakely, 542 U.S. 296, and Apprendi, 530 U.S. 466).
"The State bears the burden of proving by a preponderance of the evidence
the existence of prior convictions as predicate strike offenses for purposes of the
POAA." Witherspoon, 180 Wn.2d at 893 (citing State v. Knippling, 166 Wn.2d 93,
100, 206 P.3d 332 (2009)). "The best evidence of a prior conviction is a certified
copy of the judgment." State v. Hunley, 175 Wn.2d 901, 910,287 P.3d 584(2012)
(quoting State v. Ford, 137 Wn.2d 472,480, 973 P.2d 452(1999)).
Constitutional issues are questions of law that are reviewed de novo on
appeal. State v. Gresham, 173 Wn.2d 405,419, 269 P.3d 207(2012).
Here, prior to Raethke's sentencing, the State introduced a certified copy of
Raethke's prior judgments convicting him of four counts of first degree rape and
one count of attempted first degree rape. At the sentencing hearing, the trial court
said that it had received the certified copy of the prior judgments before stating that
6
No. 75079-8-1 /7
it found Raethke to be a persistent offender. Thus, the State met its burden of
proving Raethke's previous strike offenses by a preponderance of the evidence.
We conclude that trial court did not violate Raethke's due process and Sixth
Amendment rights when it did not require the jury to find the existence of his prior
convictions beyond a reasonable doubt.
Double Jeopardy
Raethke argues that the trial court erred when it imposed a sentence of life
without the possibility of parole because it lacked the statutory authority to consider
his present offense a strike crime. The State responds that Raethke was properly
sentenced because his single sentence under the POAA does not implicate his
right against double jeopardy. We agree with the State.
"No person shall be compelled in any criminal case to. . . be twice put in
jeopardy for the same offense." WASH.CONST. art.!,§9; see also State v. Gocken,
127 Wn.2d 95, 102, 896 P.2d 1267 (1995) (noting that the state and federal
constitutions' double jeopardy protections are "virtually identical" and are given the
same interpretation). The double jeopardy clause protects against a second
prosecution for the same offense following an acquittal or a conviction and against
multiple punishments for the same offense. Gocken, 127 Wn.2d at 100.
If a defendant has been subjected to a second or cumulative sentence, the
reviewing court must determine whether clear legislative intent supports the trial
court's imposition of the sentence. State v. Kelley, 168 Wn.2d 72, 76-77, 226 P.3d
773(2010)(citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed.
2d 535(1983)). Absent such clear legislative intent, the reviewing court must apply
7
No. 75079-8-1 / 8
the test laid out in Blockburger v. United States to determine whether there are two
offenses at issue or one. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
"Double jeopardy claims are questions of law that are reviewed de novo."
Kelley, 168 Wn.2d at 76.
Here, Raethke's sentence of life without the possibility of parole based on
his second strike offense under the POAA does not violate his right against double
jeopardy. Raethke was charged with and convicted of assault in the second
degree with the intent to commit indecent liberties by forcible compulsion. He had
previously been convicted of first degree rape and attempted first degree rape.
Thus, his present conviction for assault in the second degree with sexual
motivation qualified as a second strike requiring a sentence of life without the
possibility of parole under the POAA. RCW 9.94A.030(38)(a)(i),(b)(i); see also
RCW 9A.36.021(1)(e).
Raethke received a sentence of life without the possibility of parole as a
persistent offender under the POAA. He did not receive a separate sentence for
assault in the second degree. Thus, he has received a single sentence for a single
offense. We conclude that Raethke's right against double jeopardy was not
implicated in the present case.4 See Jones v. Thomas,491 U.S. 376,382 n.2, 109
4 Raethke also argues that his right against double jeopardy was violated because the
finding of sexual motivation both satisfied an element of his underlying crime and was
used as a sentencing enhancement of sexual motivation under the POAA, relying on
federal case law. The Washington Supreme Court has previously rejected the argument
that using the same fact as both an element of the underlying offense and as an
enhancement violates double jeopardy. See Kelley, 168 Wn.2d at 76 (stating that
imposing a sentencing enhancement based on the same facts as an element of the
underlying crime does not violate double jeopardy, acknowledging Apprendi, 530 U.S.
466, Blakely, 542 U.S. 296, and Rind v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L.
8
No. 75079-8-1 / 9
S. Ct. 2522, 105 L. Ed. 2d 322 (1989). Thus, we need not determine whether
Raethke's sentence was supported by clear legislative intent or apply the
Blockburger test.
Statement of Additional Grounds
In his statement of additional grounds, IRaethke provides a recitation of the
facts and argues that there is insufficient evidence to support his conviction of
second degree assault with the intent to commit indecent liberties. He contends
that the facts would only support a conviction for fourth degree assault. We
disagree.
Evidence is sufficient to sustain a conviction if, after viewing the evidence
in the light most favorable to the State, any rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. State v. Green,
94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). "A claim of insufficiency admits the
truth of the State's evidence and all inferences that reasonably can be drawn
therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992).
Raethke was convicted of assault in the second degree with the intent to
commit indecent liberties. "A person is guilty of assault in the second degree if he
or she, under circumstances not amounting to assault in the first degree: . . .[w]ith
intent to commit a felony, assaults another." RCW 9A.36.021(1)(e). Indecent
liberties occurs when an offender "knowingly causes another person to have
sexual contact with him or her or another: . ..[b]y forcible compulsion" is a class
A felony. RCW 9A.44.100(1)(a). "Sexual contact" is defined as "any touching of
Ed. 2d 556 (2002)). We follow the Washington Supreme Court's precedent and reject
Raethke's argument.
9
No. 75079-8-1 /10
the sexual or other intimate parts of a person done for the purpose of gratifying
sexual desire of either party or a third party." RCW 9A.44.010(2). "Forcible
compulsion" is defined in part as "physical force which overcomes resistance."
RCW 9A.44.010(6).
Here, A.C. testified that she did not consent to being hugged or kissed by
Raethke. A.C. testified that Raethke held her for seven to ten seconds in spite of
her attempts to shove him away and her telling him to let her go. A.C. also testified
that she thought she was going to be raped when she was being hugged and
kissed by Raethke. Raethke's prior victims testified that Raethke's actions in the
present case were similar to when he sexually assaulted them.
Viewing this evidence in the light most favorable to the State, the record
contains sufficient evidence to sustain Raethke's conviction of second degree
assault with the intent to commit indecent liberties. Raethke assaulted A.C. when
he hugged and kissed her without her consent, and acted with forcible compulsion
when he held on to her despite her physical resistance. There is a reasonable
inference from the testimony of A.C. and Raethke's prior victims that Raethke
acted with intent to touch A.C.'s "sexual or other intimate parts. ..for the purpose
of gratifying" his sexual desire. RCW 9A.44.010(2). Thus, a rational trier of fact
could have found the essential elements of Raethke's offense beyond a
reasonable doubt. We reject Raethke's argument.
Raethke analogizes to State v. R.P. to argue that his actions were
insufficient to constitute indecent liberties. 122 Wn.2d 735, 736, 862 P.2d 127
(1993)(holding that there was insufficient evidence of sexual contact to sustain
10
No. 75079-8-1 / 11
conviction of indecent liberties when offender left a "hickey" on victim's neck area).
This is unpersuasive. Raethke was convicted of second degree assault with the
intent to commit indecent liberties, not indecent liberties itself. The fact that his
actions were insufficient to constitute indecent liberties is irrelevant to determining
whether he acted with intent to commit indecent liberties. We reject this argument.
Appellate Costs
Raethke asks that no costs be awarded on appeal. Appellate costs are
generally awarded to the substantially prevailing party on review. RAP 14.2. But
when a trial court makes a finding of indigency, that finding remains throughout
review "unless the commissioner or clerk determines by a preponderance of the
evidence that the offender's financial circumstances have significantly improved
since the last determination of indigency." RAP 14.2. Here, the trial court found
Raethke did not have an ability to pay legal financial obligations. If the State has
evidence indicating that Raethke's financial circumstances have significantly
improved since the trial court's finding, it may file a motion for costs with the
commissioner.
Affirmed.
cdke
WE CONCUR:
11