State of Washington v. Randy Gene Robinson - includes an Order
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COURT OF APPEALS, STATE OF WASHINGTON, DIVISION III
STATE OF WASHINGTON,
Respondent,
v.
RANDY GENE ROBINSON,
Appellant.
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No. 29959-7-III
ORDER GRANTING MOTION
FOR RECONSIDERATION
AND AMENDING OPINION
Dated December 11, 2012
THE COURT has considered appellant’s motion for reconsideration of this court’s
decision of December 11, 2012, and having reviewed the records and files herein, is of
the opinion the motion should be granted. Therefore,
IT IS ORDERED, appellant’s motion for reconsideration is hereby granted.
IT IS FURTHER ORDERED that the opinion shall be amended by replacing the
first paragraph and footnote five on page 14 with the following:
Conviction affirmed. Findings on ability to pay LFOs reversed.
Remanded with instructions to strike paragraphs 2.7, 4.D.4, and 4.D.5 from
the judgment and Sentence. fn 5
5 While we reverse the trial court’s findings on Mr. Robinson’s ability to
pay LFOs, its order for him to pay LFOs remains in effect. See Bertrand,
165 Wn. App. at 405. However, the State cannot collect LFOs from Mr.
Robinson unless and until there is a proper determination he has the ability
to pay them, considering his financial resources and the nature of the
burden LFOs would impose on him. See id. at 405 n.16; Baldwin, 63 Wn.
App. at 312; former RCW 9.94A.760 (2005); former RCW 10.01.160(3)
(2008); former RCW 70.48.130(4) (2007).
DATED:
PANEL: Jj. Brown, Korsmo, Siddoway
FOR THE COURT:
____________________________________
KEVIN M. KORSMO
CHIEF JUDGE
No. 29959-7-III
State v. Robinson
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
RANDY GENE ROBINSON,
Appellant.
No. 29959-7-III
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UNPUBLISHED OPINION
Brown, J. • Randy Gene Robinson appeals his first degree rape and first degree
burglary with sexual motivation convictions. He mainly contends the trial court erred in
allowing evidence of two prior rapes under ER 404(b) as relevant to dispute his consent
defense. We hold the trial court did not err in its ER 404(b) ruling and conclude any
error in giving the limiting instruction offered by Mr. Robinson was invited. The State
concedes certain legal-financial-obligation (LFO) findings are unsupported in the record.
Accordingly, we affirm Mr. Robinson’s convictions and remand for reconsideration of
the LFOs in a manner consistent with this opinion.
FACTS
On July 8, 2008, C.L.H. fell asleep on her couch. Early the next morning, Mr.
Robinson entered C.L.H.’s residence,
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wearing a face and head covering, and awoke her by pulling her off the couch at knife
point. Mr. Robinson directed C.L.H. to the bedroom, where he forcibly performed oral
sex on her, made her perform oral sex on him, and penetrated her vagina with his penis.
Afterward, Mr. Robinson made C.L.H. take a shower to wash away evidence of the rape.
Mr. Robinson left C.L.H.’s residence while she showered. C.L.H. was approximately 13
years older than Mr. Robinson at the time of this incident.
Following his May 13, 2009 arrest, the State charged Mr. Robinson with first
degree rape and first degree burglary with sexual motivation. Mr. Robinson had earlier
been twice convicted of first degree rapes committed on August 5, 1991 and September 1,
1991. Mr. Robinson committed the crimes disputed here about 36 months after his July
27, 2005 release from confinement. In the earlier of the two prior rapes, the victim was
asleep in her residence at night when Mr. Robinson unlawfully entered through the
bathroom window, threatened her with a knife, and committed sexual intercourse by
forcible compulsion. The victim was approximately 10 years older than Mr. Robinson.
In the later of the two prior rapes, the victim again was asleep in her residence when Mr.
Robinson unlawfully entered, wearing nylon stockings covering his face and head, and
committed sexual intercourse by forcible compulsion. The victim again was
approximately 11 years older than Mr. Robinson.
On June 23, 2009, the State gave notice of its intent to have both prior rape victims
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testify at trial regarding Mr. Robinson’s prior rape convictions. Mr. Robinson moved to
exclude the evidence, raising constitutional challenges to RCW 10.58.0901 and contesting
admissibility under ER 404(b).
The superior court initially ruled evidence of Mr. Robinson’s prior rapes was
inadmissible under ER 404(b), concluding the evidence was “more prejudicial than
probative,” generally reasoning the case could “stand on its own merits” considering the
victim’s “partial identification” and the DNA2 evidence. Clerk’s Papers (CP) at 33-34.
However, Mr. Robinson later raised a consent defense. The State then moved for
reconsideration, arguing evidence of Mr. Robinson’s prior rapes had become necessary to
show he followed a common scheme or plan, thereby rebutting his consent defense in
proving the forcible compulsion element. For this argument, the State relied on this
division’s opinion in State v. Williams, 156 Wn. App. 482, 234 P.3d 1174, review denied,
170 Wn.2d 1011 (2010). In the June 2011 findings of fact and conclusions of law, the
trial court agreed with the State.
The trial court partly reasoned: “The probative value of the testimony of prior
victims as to factors presented in the offer of proof substantially outweighs any prejudice
based upon the Defendant’s claim of consent to the current rape.” CP at 173. The court
1
Our Supreme Court has since declared RCW 10.58.090 unconstitutional for
violating the separation of powers doctrine because it irreconcilably conflicted with ER
404(b) on a procedural matter. State v. Gresham, 173 Wn.2d 405, 269 P.3d 207 (2012).
Our focus, like the parties, is exclusively on ER 404(b).
2
Deoxyribonucleic acid.
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explained its position change:
Before, it was the Court’s feeling that there was some ability on the
part of the alleged victim to identify and there was DNA evidence that was
going to be present. And I weighed that against the length of time and the
fact that there was no issue of consent that was brought up at the time.
Now I think that the factors . . . are substantially different.
With consent being brought into this matter . . . , I think that the
issue of the testimony of both of these prior witnesses becomes very
relevant, and the probative value now, in the Court’s opinion, outweighs the
prejudicial effect that would take place.
Certainly the evidence of the prior rapes is evidence of lack of
consent and that is something, I think, the State should be entitled to bring
in. The cautionary instruction . . . is something we can talk about later on
down the line and work that out.
Report of Proceedings (RP) at 47-48.
Both prior rape victims testified at trial. Additionally, C.L.H. testified. A
recording of the 911 telephone call was played. Investigators testified to observing
physical abrasion and a tear in C.L.H.’s vagina, and finding Mr. Robinson’s DNA in
semen extracted from C.L.H.’s vagina. A correctional officer testified to finding in Mr.
Robinson’s jail cell a hand-drawn map of C.L.H.’s home and a letter soliciting the
recipient to “hit house late at night.” RP at 686. Finally, Mr. Robinson testified.
Mr. Robinson proposed, and the court gave as Instruction 23, a limiting instruction
partly providing, “Certain evidence has been admitted in this case for only a limited
purpose. This evidence consists of prior convictions and conduct of the defendant and
may be considered by you only for the purpose of proving a common scheme, plan, or
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forcible compulsion.” CP at 59. Mr. Robinson cited ER 404(b) and WPIC 5.303 as
authority for this proposed instruction.
The jury found Mr. Robinson guilty as charged with corresponding affirmative
deadly-weapon special verdicts for the two counts and an affirmative sexual-motivation
special verdict for the burglary count. The court sentenced Mr. Robinson as a persistent
offender to concurrent terms of life imprisonment without the possibility of release. The
court found he generally had the present or likely future ability to pay LFOs, and
specifically had the means to pay the costs of incarceration and medical care. The court
then ordered Mr. Robinson to pay these costs “as assessed by the Clerk.” CP at 198. The
State concedes no record supports the standardized “Financial Ability” finding at CP 195
or the “Financial Obligations” ordered for “Costs of Incarceration” and the “Costs of
Medical Care” at CP 198. Mr. Robinson appealed.
ANALYSIS
A. ER 404(b)
The issue is whether the superior court committed prejudicial error in admitting
evidence of Mr. Robinson’s two prior rapes under ER 404(b). Considering State v.
Gresham, 173 Wn.2d 405, 269 P.3d 207 (2012) that ruled RCW 10.58.090
unconstitutional, the parties agree the trial court’s ruling can be justified, if at all, solely
3
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 5.30, at
180 (3d ed. 2008) (WPIC).
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under ER 404(b). Mr. Robinson contends the prior rape evidence showed solely his
propensity to commit the charged crimes. We disagree with Mr. Robinson.
We review de novo an interpretation of ER 404(b). State v. Fisher, 165 Wn.2d
727, 745, 202 P.3d 937 (2009). If the rule was interpreted correctly, we review a
decision to admit or exclude evidence under ER 404(b) for abuse of discretion. Id. The
rule provides,
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
ER 404(b).
Admitting evidence of prior misconduct under this rule requires the trial court to
“(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify
the purpose for which the evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and (4) weigh the
probative value against the prejudicial effect.” State v. Vy Thang, 145 Wn.2d 630, 642,
41 P.3d 1159 (2002).
Showing a common scheme or plan is a permissible purpose under the second
prong of this test. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). There
are two types of common plans: (a) “where several crimes constitute constituent parts of a
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State v. Robinson
plan in which each crime is but a piece of the larger plan,” and (b) “when an individual
devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.” State
v. Lough, 125 Wn.2d 847, 854-55, 889 P.2d 487 (1995). Mr. Robinson’s case involves
the second type of common plan because he allegedly devised a plan and put it into
action against multiple victims on separate but very similar occasions. See Gresham, 173
Wn.2d at 422.
Demonstrating the second type of common plan requires more than “mere[]
similarity in results” between the prior misconduct and the crime charged. Lough, 125
Wn.2d at 860. It requires “such occurrence of common features that the various acts are
naturally to be explained as caused by a general plan,” that is, as “individual
manifestations” of the same plan. Id. These common features must include “‘markedly
similar acts of misconduct against similar victims under similar circumstances.’”
DeVincentis, 150 Wn.2d at 19 (quoting Lough, 125 Wn.2d at 856). But the similarities
need not “show a unique method of committing the crime.” Id. at 21.
Here, the superior court interpreted ER 404(b) correctly. Thus, our review is
limited to whether the trial court abused its discretion in admitting the prior rape evidence
under ER 404(b). The record shows the trial court complied with ER 404(b)’s
requirements. First, the court considered Mr. Robinson’s prior convictions and found by
a preponderance of evidence he committed the prior rapes. Second, the court identified
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the purpose for admitting evidence of the prior rapes as “establish[ing] common scheme
or plan.” CP at 172, 174. Third, the court determined evidence of the prior rapes was
relevant “to establish forcible compulsion and rebut consent defense.” CP at 172, 174.
Finally, the court weighed probative value against prejudicial effect in its letter opinion,
oral ruling, and findings of fact and conclusions of law. The court noted Mr. Robinson’s
consent defense heightened the evidence’s probative value and a limiting instruction
could reduce its prejudicial effect.
Further, the court found the prior rapes were similar to the crimes charged here
because in each case the victim “was asleep when the Defendant unlawfully entered her
home and committed acts of sexual intercourse by forcible compulsion,” and because
“there was a significant age difference between the victim and the Defendant.” CP at 17172. The court also found similarities to here because in the earlier of the two prior rapes
Mr. Robinson “was armed with a knife which he threatened the victim with,” and in the
later of the two prior rapes Mr. Robinson “had a nylon stocking covering his head and
face.” CP at 171-72. Based on these findings, the court concluded the prior rapes were
“clearly similar” to the crimes charged here. CP at 173. Finally, the court found Mr.
Robinson committed the prior rapes within less than one month from each other and
committed the crimes charged here nearly 36 months after his release from confinement.
Based on these findings, the court concluded the various crimes “occurred close in time
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State v. Robinson
to each other,” and “were on-going and occurred on multiple occasions.” CP at 173. The
court’s reasoning is supported by the record. Thus, we cannot conclude the trial court
abused its discretion in admitting evidence of Mr. Robinson’s prior rapes under ER
404(b).
Mr. Robinson’s case is much like Williams, 156 Wn. App. 482. There, the
defendant raped and sexually assaulted two victims within days of each other, and within
14 months of his release from confinement on a prior rape conviction. Id. at 491. In a
consolidated trial of the two more recent incidents, the superior court admitted evidence
of the defendant’s prior rape under ER 404(b). Id. This court affirmed, reasoning first,
evidence of the defendant’s prior rape showed he followed a “common scheme involving
similar victims (women of similar age, involving drugs) and a similar method of attack
(promise of drugs, attacked from behind with a forearm across the throat, strangled into
unconsciousness during the rape).” Id. Second, this scheme “was relevant to the element
of forcible compulsion” because the defendant “claimed that his current victims
consented to sexual intercourse.” Id.
In sum, we conclude the trial court did not err in allowing the ER 404(b) evidence.
Thus, we do not reach the parties’ prejudice and harmlessness contentions.
B. Limiting Instruction
The issue is whether the superior court erred in giving Instruction 23. Mr.
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State v. Robinson
Robinson contends Instruction 23 misstated the law, permitting the jury to consider
evidence of Mr. Robinson’s prior rapes for impermissible propensity purposes. The State
responds Mr. Robinson invited any error by proposing Instruction 23. We agree with the
State.
We review de novo claimed legal errors in jury instructions. State v. Vander
Houwen, 163 Wn.2d 25, 29, 177 P.3d 93 (2008). “Jury instructions are improper if they
do not permit the defendant to argue his theories of the case, mislead the jury, or do not
properly inform the jury of the applicable law.” Id.
“If evidence of a defendant’s prior crimes, wrongs, or acts is admissible for a
proper purpose, the defendant is entitled to a limiting instruction upon request.”
Gresham, 173 Wn.2d at 423. “An adequate ER 404(b) limiting instruction must, at a
minimum, inform the jury of the purpose for which the evidence is admitted and that the
evidence may not be used for the purpose of concluding that the defendant has a
particular character and has acted in conformity with that character.” Id. at 423-24.
However, under the invited error doctrine, “‘[a] party may not request an instruction and
later complain on appeal that the requested instruction was given.’” State v. Studd, 137
Wn.2d 533, 546, 973 P.2d 1049 (1999) (alteration in original) (quoting State v.
Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990)).
Before jury deliberations, Mr. Robinson proposed a limiting instruction, partly
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reading, “Certain evidence has been admitted in this case for only a limited purpose. This
evidence consists of prior convictions and conduct of the defendant and may be
considered by you only for the purpose of proving a common scheme, plan, or forcible
compulsion.” CP at 59 (emphasis added). Mr. Robinson cited ER 404(b) and WPIC 5.30
as authority for this proposed instruction. The superior court accepted Mr. Robinson’s
proposed instruction and read it to the jury as Instruction 23. The instruction permitted
the jury to consider evidence of Mr. Robinson’s prior rapes for the purpose of proving
forcible compulsion. Mr. Robinson contends this was an impermissible propensity
purpose, as forcible compulsion was an essential element of first degree rape and had
other implications for first degree burglary with sexual motivation. But Mr. Robinson
invited any error in Instruction 23.
Mr. Robinson incorrectly argues the invited error doctrine is displaced by the
court’s duty to give a proper ER 404(b) limiting instruction. He fails to recognize this is
not a case of a rejected instruction or a failure to instruct. Gresham, 173 Wn.2d at 424.
A central purpose of the invited error doctrine is “to prevent parties from misleading trial
courts and receiving a windfall by doing so.” State v. Momah, 167 Wn.2d 140, 153, 217
P.3d 321 (2009). Mr. Robinson’s argument is untenable.
In sum, the superior court did not commit reversible error in giving Instruction 23
because Mr. Robinson invited any error by proposing the instruction. Considering our
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rulings, Mr. Robinson has failed to show any reversible trial error. Thus, we do not reach
his arguments concerning cumulative error.
C. Legal Financial Obligations
Mr. Robinson contends the trial court’s findings on his ability to pay LFOs are
unsupported by the record. The State concedes this point, but suggests the matter is not
yet properly before us.
We review a trial court’s determination on an offender’s financial resources and
ability to pay under the clearly erroneous standard. State v. Bertrand, 165 Wn. App. 393,
404 n.13, 267 P.3d 511 (2011) (citing State v. Baldwin, 63 Wn. App. 303, 312, 818 P.2d
1116, 837 P.2d 646 (1991)). “A finding of fact is clearly erroneous when, although there
is some evidence to support it, review of all the evidence leads to a ‘definite and firm
conviction that a mistake has been committed.’” Schryvers v. Coulee Cmty. Hosp., 138
Wn. App. 648, 654, 158 P.3d 113 (2007) (quoting Wenatchee Sportsmen Ass’n v. Chelan
County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000)).
If a sentencing court finds an offender has the ability to pay LFOs, it must make an
adequate record for this court to conclude it had a sufficient “factual basis” to do so.
Baldwin, 63 Wn. App. at 311 (affirming a trial court finding that an offender had the
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present or likely future ability to pay LFOs where the only evidence to support it was a
statement in the presentence report that the offender “describe[d] himself as
employable”). Some evidence is required. Bertrand, 165 Wn. App. at 404 (reversing, as
clearly erroneous, a trial court finding that an offender had the present or likely future
ability to pay LFOs where the record contained no evidence to support it). Even though
Mr. Robinson did not object to the trial court’s findings on his ability to pay LFOs, the
State now correctly concedes “there is no record” to support them. Br. of Resp’t at 26.
In sum, paragraphs 2.7, 4.D.4, and 4.D.5 of the judgment and sentence are clearly
erroneous to the extent they find Mr. Robinson had the present or likely future ability to
pay LFOs.
Despite its concession, the State contends Mr. Robinson’s challenge is unripe4
because the government has not yet attempted to collect costs from him.
Generally, “‘the meaningful time to examine the defendant’s ability to pay is when
the government seeks to collect the obligation.’” Bertrand, 165 Wn. App. at 405
(emphasis omitted) (quoting Baldwin, 63 Wn. App. at 310). Further, under RAP 3.1, an
offender is not aggrieved by an order to pay “‘until the State seeks to enforce payment
and contemporaneously determines [the offender’s] ability to pay.’” State v. Smits, 152
Wn. App. 514, 525, 216 P.3d 1097 (2009) (quoting State v. Mahone, 98 Wn. App. 342,
4
In fact, the State misapplies mootness. We nonetheless interpret the State’s
contention as a ripeness challenge because it clearly implicates ripeness issues.
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347-48, 989 P.2d 583 (1999)). These rules govern review of orders to pay LFOs, not
factual findings of ability to pay LFOs. See Bertrand, 165 Wn. App. at 403-05. Such
factual findings are governed by the clearly erroneous standard and are ripe for review
upon entry. Mr. Robinson challenges the superior court’s factual findings only, not its
orders. The State’s contention is thus untenable.
Conviction Affirmed. Findings on ability to pay LFOs reversed. Remanded with
instructions to strike paragraphs 2.7, 4.D.4. and 4.D.5 from the judgment and sentence. 5
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.
____________________________
Brown, J.
WE CONCUR:
__________________________
Korsmo, A.C.J.
_____________________________
Siddoway, J.
5
While we reverse the trial court’s findings on Mr. Robinson’s ability to pay
LFOs, its order for him to pay LFOs remains in effect. See Bertrand, 165 Wn. App. at
405. However, the State cannot collect LFOs from Mr. Robinson unless and until there is
a proper determination he has the ability to pay them, considering his financial resources
and the nature of the burden LFOs would impose on him. See id. at 405 n.16; Baldwin,
63 Wn. App. at 312; former RCW 9.94A.760 (2005); former RCW 10.01.160(3) (2008);
former RCW 70.48.130(4) (2007).
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