State Of Washington, Respondent V Joel R. Alexander, Appellant (Majority)

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FILEDN_ APAt:S tilVISION 2014 DEC S TAa F k AM 10: 29 k' li BY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44351- 1- 11 STATE OF WASHINGTON, Respondent, v. PUBLISHED IN PART OPINION JOEL RYAN ALEXANDER, Appellant. LEE, J. — Ajury found Joel Ryan Alexander guilty of attempted first degree rape of a child. Alexander appeals, arguing that ( 1) the criminal attempt statute violates the Washington State Constitution' in s single- subject and subject - t -itle rule contained in article II, section 19; ( 2) the trial court' s " substantial step" jury instruction relieved the State of its burden to prove all the essential elements of the crime; and ( 3) the trial court erred in finding by a preponderance of the evidence that Alexander had two prior most serious offenses that counted as two strikes under the Persistent Offender Accountability Act (POAA). 1 In the published portion of the opinion, we hold that the criminal attempt statute codified in RCW 9A.28. 020 does not violate article II, section 19. In the unpublished portion of the opinion, we address Alexander' s remaining claims and affirm his conviction and sentence. 1 RCW 9. 94A. 570. T NN No. 44351- 1- II FACTS In 2012, Sunshine Beerbower called the Elma police after .discovering alarming online correspondence on the family computer between her 10- year -old son and 34- year old Joel Alexander. Elma police officers responded to Beerbower' s call and coordinated an investigation with the Washington State Patrol. Law enforcement took over the 10- year -old' s Facebook and e- mail accounts and continued to communicate with Alexander. Alexander, believing that he was communicating with the 10- year -old boy, arranged a meeting at a park near the boy' s home to have sexual contact. When Alexander arrived, he was arrested. Alexander was charged with attempted first degree rape of a child. The trial court' s jury instructions included the following: INSTRUCTION No. 4 To convict the defendant of the crime of attempted rape of a child in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: 1) That on or about April 15, 2012, the defendant did an act that was a substantial step toward the commission of rape of a child in the first degree. INSTRUCTION No. 10 A substantial step is conduct that strongly indicates a criminal purpose and that is more than mere preparation. Suppl. Clerk' s Papers ( SCP) at 38 -39. A jury found Alexander guilty of attempted first degree rape of a child. At sentencing, the State presented evidence of Alexander' s two prior convictions of second degree rape of a child. Alexander neither objected nor stipulated to the admission of his prior 2 No. 44351- 1- II convictions. The trial court found by a preponderance of the evidence that Alexander had committed two prior most serious offenses and ruled that the current offense was a most serious offense that counted as a strike. Accordingly, under the POAA, the trial court sentenced Alexander to life in prison without the possibility of parole. Alexander appeals. ANALYSIS CONSTITUTIONALITY OF THE CRIMINAL ATTEMPT STATUTE, RCW 9A.28. 020 The Washington State Constitution than one subject, and specific rules: ( 1) the that shall be article expressed II, section 19 in the title." single- subject rule, and ( 2) the states, " No bill shall embrace more Article II, section 19 established two subject in t -itle rule. Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 206 -07, 11 P. 3d 762, 27 P. 3d. 608 ( 2000). Alexander argues that the criminal attempt statute2 violates the Washington State Constitution' s single -subject and subject -in - itle rule contained in article II, section 19. Alexander t argues that because the criminal attempt statute is unconstitutional, his conviction must be vacated and the charge dismissed with prejudice. Because the criminal attempt statute does not violate article II, section 19, Alexander' s claim fails. We review allegations of constitutional violations 754, 759, 230 P. 3d 1055 ( 2010). de novo. State v. Vance, 168 Wn.2d We presume that statutes are constitutional; a party challenging the constitutionality of a statute bears the burden of proving the statute' s unconstitutionality beyond a reasonable doubt. State v. Hunley, 175 Wn.2d 901, 908, 287 P. 3d 584 ( 2012). 2 RCW 9A.28. 020. 3 No. 44351 - 1 - II The criminal attempt statute was amended in 2001 as part of the Third Engrossed Substitute ESSB. 6151 is titled: " AN Senate Bill ( ESSB) 6151. in the offenders ch. 12, civil commitment and criminal 2196. at justice ACT Relating to the management of sex LAWS OF 2001, 2d Spec. Sess. systems." Among other things, the act amended the criminal attempt statute to reclassify some attempted sex offenses as class A felonies. LAWS OF 2001, 2d Spec. Sess., ch. 12, § 354, at 2251. Single- subject rule A. Article II, section 19' s first requirement is that no bill shall embrace more than one subject. The single- subject requirement seeks to prevent grouping of incompatible measures as well as pushing through County v. unpopular State, 144 Wn. legislation App. by attaching it to popular or 783, 819, 185 P. 3d 594 ( 2008). necessary legislation." Pierce If the bill has a general title, it may constitutionally include all matters that are reasonably connected with it and all measures that may facilitate the accomplishment of the 821 ( citing Amalgamated Transit, 142 Wn.2d purpose stated." at 209). Pierce County, 144 Wn. App. at Conversely, " a restrictive title expressly limits the scope of the act to that expressed in the title" and " provisions not fairly within it will not be given force." Amalgamated Transit, 142 Wn.2d at 210. The first step in addressing the single -subject requirement is to determine whether the title of the broad, bill is general or restrictive. Pierce comprehensive, and generic[,] County, as opposed to 144 Wn. App. a restrictive at 819 -20. "' title that is A general title is 3 Pierce County, 144 Wn. App. at 820 ( quoting City ofBurien v. Kiga, 144 Wn.2d 819, 825, 31 P. 3d 659 ( 2001)). 3 specific and narrow, "' No. 44351- 1- II and that " selects a particular part of a subject as the subject of the legislation" or subsets of an overarching subject. Pierce County, 144 Wn. App. at 820. Alexander states without argument that ESSB 6151' s title is restrictive. Br. of Appellant at 12. We disagree. To be considered a general subject of an act; [ not " contain a general statement of the a] few well- chosen words, suggestive of the general subject stated, is all that is Amalgamated Transit, 142 Wn.2d at 209; see also Pierce County, 144 Wn. App. at necessary." 820. title, the title need Here, the title of ESSB 6151 broadly relates to sex offenders in both the civil commitment system and the criminal justice system, and does not focus on a specific aspect of sex offenders. Therefore, we hold that ESSB 6151' s title is general. 4 Because ESSB 6151' s title is general, " great liberality will be indulged to hold that any subject reasonably germane to such title may be embraced within the body of the bill." Amalgamated Transit, 142 Wn.2d at 207. The second step in addressing the single- subject requirement is to determine whether a rational unity exists among the subjects addressed in the bill. Amalgamated Transit, 142 Wn.2d at 209; Pierce reasonably County, connected 144 Wn. App. to each other at and 821. " Rational unity requires that [the bill' s] subjects be to [ the bill' s] title. Pierce County, 144 Wn. App. at 821. 4 See Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d 622, 632, 636, 71 P. 3d 644 2003) ( holding title " Shall it be a gross misdemeanor to capture an animal with certain body gripping traps, title); or to poison an animal with sodium fluoroacetate or sodium cyanide ?" was a general Kiga, 144 Wn.2d at 825 ( holding title " Shall certain 199 tax and fee increases be nullified, exempted from property taxes, and property tax increases ( except new construction) limited to 2% annually ?" was a general title); Amalgamated Transit, 142 Wn.2d at 193, 217 holding title " Shall voter approval be required for any tax increase, license tab fees be $ 30 per vehicles year for motor vehicles, and existing vehicle taxes be repealed" was a general title). 5 No. 44351- 1- 11 Alexander argues that the bill is unconstitutional because it embraces many subjects, and that the criminal attempt statute is unrelated to transitional facilities for sex offenders or the classification of assault with sexual motivation. We disagree. Here, a rational unity exists because ES SB 6151 amended the criminal attempt statute to reclassify some attempted sex offenses as class A felonies. LAws OF 2001, 2d Spec. Sess., ch. 12, 354, at 2251. The amendments to the criminal attempt statute are reasonably connected to the other subjects relating to the management of sex offendersthe amendment creates greater penalties for offenders who attempt to commit sex offenses. Also, a rational unity exists because the subjects addressed in the bill are reasonably connected to each other ( all related to sex offenders) and to the bill' s title (management of sex offenders in the criminal and civil systems). Therefore, Alexander fails to prove beyond a reasonable doubt that ESSB 6151 violated article II, section 19. Accordingly, his argument that the criminal attempt statute violates the single- subject rule fails. Subject - in title rule B. The second requirement of article II, section 19 is that a bill' s subject must be stated in its title. Amalgamated Transit, 142 Wn. 2d at 217; Pierce County, 144 Wn. App. at 822. This requirement seeks to provide notice of the bill' s contents to the public and to legislators. Amalgamated Transit, 142 Wn.2d at 217. " This requirement is satisfied if the title of the act gives notice that would lead to an inquiry into the body of the act or indicates the scope and purpose of the law to an 142 Wn.2d inquiring at 217). mind." Pierce County, 144 Wn. App. at 822 ( citing Amalgamated Transit, A title does not need to provide details or be an exhaustive index. Amalgamated Transit, 142 Wn.2d at 217. " Any objections to a title must be grave, and the conflict 6 No. 44351 - 1 - II between it and the constitution palpable, before we will hold an act unconstitutional for violating the in subject - title requirement." Pierce County, 144 Wn. App. at 822. To the extent that Alexander argues that ESSB 6151 violates the subject - -itle rule, his in t argument is meritless. Here, the full title of the act reads: AN ACT Relating to the management of sex offenders in the civil commitment and criminal justice systems; amending RCW 71. 09. 020, 36.70A. 103, 36. 70A.200, 9. 94A.715, 9. 94A.060, 9. 94A. 120, 9. 94A. 190, 9. 94A.390, 9. 94A.590, 9. 94A.670, 9. 95. 005, 9. 95. 010, 9. 95. 011, 9.95. 017, 9. 95. 020, 9. 95. 032, 9. 95. 052, 9. 95. 055, 9. 95. 064, 9. 95. 070, 9. 95. 080, 9. 95. 090, 9. 95. 100, 9. 95. 110, 9. 95. 115, 9. 95. 120, 9. 95. 121, 9. 95. 122, 9. 95. 123, 9. 95. 124, 9. 95. 125, 9. 95. 126, 9. 95. 130, 9. 95. 140, 9. 95. 190, 9. 95. 250, 9. 95. 280, 9. 95. 290, 9. 95. 300, 9. 95. 310, 9. 95. 320, 9. 95. 340, 9. 95. 350, 9. 95. 360, 9. 95. 370, 9A. 28. 020, 9. 95. 900, 9A.40. 030, 9A.44. 093, 9A.44. 096, 9A.44. 100, 9A. 76.— 9A.36. 021, and 72. 09. 370; reenacting and amending RCW 9. 94A.030, 9. 94A.320, 18. 155. 020 and 18. 155. 030; adding new sections to chapter 71. 09 RCW; adding new sections to chapter 72. 09 RCW; adding new sections to chapter 9. 94A RCW; adding new sections to chapter 9. 95 RCW; adding a new section to chapter 4.24 RCW; creating new sections; repealing RCW 9. 95. 0011 and 9. 95. 145; prescribing penalties; providing an effective date; providing expiration dates; and declaring an emergency. LAws OF 2001, 2d Spec. Sess., 9A. 28. 020) is clearly expressed ch. 12, at in the title 2196. of The subject ESSB 6151. at issue ( amendment of RCW The bill has an overarching theme related to the management of sex offenders and the title references the criminal attempt statute. The title notifies an interested reader that the amendments to the criminal attempt statute relate to the management of sex offenders. Because the title gives notice of the subjects contained within the legislation, Alexander' s claim that the criminal attempt statute violates the subject -in -itle rule t fails. Accordingly, we hold that the criminal attempt statute codified in RCW 9A,28. 020 does not violate the Washington State Constitution' s single- subject and subject -in -itle rule contained t in article II, section 19. 7 No. 44351- 1- II A majority of the panel having determined that only the foregoing portion of the opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. ANALYSIS JURY INSTRUCTION Alexander argues that the trial court erroneously defined " substantial step" in its jury instruction, which relieved the State of its burden to prove all elements of the crime beyond a reasonable doubt. Br. of Appellant at 15. Specifically, he argues that ( 1) the instruction erroneously included the phrase " indicates a criminal purpose" instead of "corroborative of the actor' s criminal purpose" as stated in State v. Workman, 5 and ( 2) the instruction allowed the jury to convict based on intent to commit a crime, and not the specific crime charged. Br. of Appellant at 16. Alexander' s claim fails under our decision in State v. Davis, 174 Wn. App. 623, 635, 300 P. 3d 465 ( 2013). In Davis, we considered and rejected the same arguments Alexander makes here. Davis specifically rejected the arguments that Workman requires the jury instruction to use the word " corroborate" the defendant' s holding rather conduct than " indicate," and that the instruction allowed the jury to convict if indicated the intent to that " the Supreme Court has commit any not mandated use of crime. the Davis, 174 Wn. App. at 636 word ` corroborates, "' no authority that the State must show independent evidence of intent "). 5 State v. Workman, 90 Wn.2d 443, 451, 584 P. 2d 382 ( 1978). 8 and " there is No. 44351- 1- II Alexander asks us to reconsider our decision in Davis. However, Alexander has not offered any authority for his interpretation of Workman or any authority to support his comment that Davis should be reconsidered. Davis is controlling, and we reject Alexander' s assertion that the substantial step" jury instruction was erroneous because it relieved the State of its burden of proving all elements of the crime beyond a reasonable doubt. PRIOR OFFENSE Alexander argues that prior most serious offenses must be proved to a jury beyond a reasonable doubt because they elevate the seriousness of the current offense. Br. of Appellant at 23. We disagree. The United States Supreme Court in Apprendi v. New Jersey, relying on Torres Almendarez - v. United States, 6 said that "[ o] ther than the fact ofa prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. "' 120 S. Ct. 2348, 2362, 147 L. Ed. 2d 435 ( 2000) ( Zepeda, 234 F. 3d 411, 414 ( 9th Cir. 2000) ( Apprendi v. New Jersey, 530 U.S. 466, 490, emphasis added); see United States v. Pacheco - noting that Apprendi " unmistakably carved out an exception for `prior convictions' that specifically preserved the holding of Almendarez -Torres "), cert. denied, 532 U. 532 U. S. 966 ( 2001). The Supreme Court in Blakely v. Washington reiterated the same exception for prior convictions. 542 U. S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 ( 2004). Alexander argues, however, that the most recent Supreme Court case of Alleyne v. United States eliminates the Apprendi exception for prior convictions. 133 S. Ct. 2151, 2160, 186 L. Ed. 6 Almendarez- Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 ( 1998). 9 No. 44351- 1- 11 2d 314 ( 2013). not raised and But, Alleyne explicitly noted that the Apprendi exception for prior convictions was the court was not addressing it. 133 S. Ct. 2160, n. 1. Further, our Supreme Court recently considered and rejected this issue in State v. Witherspoon, 180 Wn.2d 875, 329 P. 3d 888 ( 2014). There, the Supreme Court nowhere in Alleyne did the Court question Apprendi 's exception for prior said, " Like Blakely, convictions. It is improper for us to read this exception out of Sixth Amendment doctrine unless and until the United States Supreme Court says otherwise." Witherspoon, 180 Wn.2d at 892. The Witherspoon court went on to say that the " United States Supreme Court precedent, as well as [ Washington]' s own precedent, dictate that under the POAA, the State must prove previous convictions by a preponderance of the evidence and the defendant is not entitled to a jury determination on this issue." Witherspoon, 180 Wn.2d at 894. Witherspoon is controlling. Thus, the trial court did not err in finding by a preponderance of the evidence that Alexander had two prior most serious offenses that counted as strikes under the POAA. We affirm Alexander' s conviction and sentence. We concur: 0 liVit. Worswick, P. J. 10

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