DIVISION II — 2014 AUG 6 9 APB 9: 35
El
IN THE COURT OF APPEALS OF THE STATE OF WASHING'IVVy a
DIVISION II
STATE OF WASHINGTON, No. 43603 -5 -II
Respondent,
v.
PART PUBLISHED OPINION DAVID CLYDE DANIELS,
Appellant.
HUNT, J. — David Clyde Daniels appeals his jury trial convictions for promoting
commercial sexual abuse of a minor ( PCSAM), second degree promoting prostitution, and fourth
degree assault. He argues that his convictions for PCSAM and second degree promoting
prostitution constitute double jeopardy because the offenses are the same in law and fact. In the
unpublished portion of this opinion, we address Daniels' statement of additional grounds for
review ( SAG), where he asserts that ( 1) his trial counsel ineffectively assisted him by failing to
call defense witnesses, failing to impeach the victim on cross -examination, and failing to object
to the second degree promoting prostitution charge on double jeopardy grounds; ( 2) the evidence
was insufficient to support his convictions; and ( 3) he was subject to vindictive prosecution by
the State. Holding that there is no double jeopardy .because the legislature intended separate
punishments for promoting commercial sexual abuse of a minor ( PCSAM) and promoting
prostitution, and rejecting Daniels' SAG claims, we affirm all three convictions. No. 43603 -5 - II
FACTS
I. CRIMES
In early January 2012, David Clyde Daniels stopped and spoke with 15- year -old NJ' as
she walked home from a gas station. NJ intimated that she was 19 years old and gave Daniels
her phone number. Some days later, Daniels called her, and they agreed to meet at Daniels'
cousin' s home. Daniels believed NJ to be 19 years old. He taught her how to post an ad on
Backpage. her Over the next several weeks, Daniels had NJ com2
and recruited as a prostitute.
prostitute herself on his behalf, including one full day on Seattle' s Aurora Avenue in King 3 County. While NJ " walk[ ed] " Aurora that night, however, Daniels learned from a friend that NJ
had lied about her age, which she later admitted was 15. 2 Verbatim Report of Proceedings
VRP) at 30.
Despite then knowing that NJ was underage, Daniels continued to prostitute her around
Tacoma. He drove her to and from the areas she would " walk," shadowed her on the street,
1 It is appropriate to provide some confidentiality in this case. Accordingly, it is hereby ordered that initials will be used in the body of the opinion to identify the juveniles involved. 2 Backpage. com is an online classified website, similar to Craigslist. It includes a category of adult" advertisements that say serve as a conduit for illegal activities, including critics
prostitution, even though Backpage. com officially prohibits illegal services. See Deborah Feyerick & Sheila Steffen, A lurid journey through Backpage. com, CNN ( May 10, 2012, 3: 59 PM), http: / thecnnfreedomproject.blogs. cnn.com/ 2012/ 05/ 10/ a- lurid-j ourney-through-backpage- / com/.
3 According to NJ, " walk" meant " walk[ ing] until someone picks us up" and that if someone stopped and expressed interest in engaging in sexual activity, she was to " see what they' re talking about, find out if they' re cops or not, and then go ahead" and make a " date." 2 VRP at 23 -24.
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rented motel rooms for her and her " dates," and kept all of the money she earned. 2 VRP at 33,
34.
On February 7, Daniels drove NJ to the Spanaway Loop area of Pierce County for a
date" with a " John" who had contacted her through Backpage. com. 2 VRP at 41 -42. After
performing the sex act and receiving payment, NJ called Daniels to pick her up. Daniels arrived
with another minor female, FN, in his car. NJ gave Daniels only half of her $90 earnings and did
not tell him about the other $ 45, which she kept. When NJ got into the car, Daniels demanded
her phone. When NJ refused, Daniels grabbed the phone from her, removed the battery, told FN
to drive, got into the backseat with NJ, and ordered her to remove her clothes ( apparently
worried that she was " wired "). 2 VRP at 46. When NJ again refused, Daniels tore off her jacket,
pinned her to the floor of the car, and hit her several times in the jaw. Daniels later let NJ out of
the car and drove off with FN.
The next morning, NJ went to her former high school and reported to the assistant
principal that another student had taken her cell phone. Tacoma Police Department School
Resource Officer Gerald Turney interviewed NJ, who said that FN was in possession of NJ' s cell
phone, that David Daniels had been with FN when it was taken, and that they had been in a red
Lincoln town car. Turney observed injuries on NJ, including bruising of her jaw and a cut on her
lip.
Based on this information, Turney issued a countywide message advising law
enforcement that probable cause existed for the arrest of Daniels for robbery, kidnapping,
pimping, and unlawful imprisonment. That afternoon, Tacoma Police Department Officer Randy
Frisbie detained Daniels after a felony traffic stop of his red Lincoln town car.
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II. PROCEDURE
The State charged Daniels with PCSAM ( count 1), second degree robbery ( count 2),
unlawful imprisonment ( count 3), fourth degree assault ( count 4), and second degree promoting 4 prostitution ( count 6).
A. Trial
Officers Turney and Frisbie testified to the facts previously set forth. CH testified that he
had attended high school with NJ during the 2009 -10 school year. In " November( ish)" 2011,
CH had seen a light - skinned girl he believes was NJ with Daniels in a white truck at a gas
station. 1 VRP at 55. In January 2012, he spoke with Daniels on the phone and informed him
that NJ was no older than 15 or 16, which revelation seemed to have surprised Daniels.
In addition to the facts previously set forth, NJ testified that she was 15 years old when
Daniels stopped her to talk outside a gas station in January 2012. She admitted having lied when
she told him that she was 19 years old. She had agreed to meet Daniels at his cousin' s house
where Daniels and another male took pictures of her in her underwear, which Daniels helped NJ
post on Backpage. com, with a description of herself and his contact information. When calls
started coming in a few hours later, Daniels told NJ the prices of certain acts she was to perform.
1. Promoting prostitution in Seattle, late January 2012
NJ testified that the next day Daniels and CH took her and another girl to " walk" Aurora
Avenue in Seattle. 2 VRP at 23. Daniels either followed NJ on the street or waited in a motel
room at the nearby Seals Motel, where " dates" could occur. 2 VRP at 24. That night NJ
4 Initially, the State also charged Daniels with second degree driving while in a suspended or revoked status ( DWLS) ( count 5). But it later dropped that charge.
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performed 13 sex acts for a total of about $ 400, all of which Daniels forcibly took from her
during a strip search. When NJ returned from " walking" later that night, Daniels confronted her
about her age in the motel bathroom. 2 VRP at 30. She admitted to Daniels that she was only
15.
2. PCSAM in Tacoma, late January /early February 2012
NJ also testified that, after learning that she was only 15 years old, Daniels continued to
prostitute her for another three weeks, answering calls from Backpage.com and having her
walk" in Tacoma on Pacific Avenue and Tacoma Avenue. 2 VRP at 33. For example, NJ
described a day in " late January, beginning of February," that she had spent " walking" on Pacific
Avenue: Daniels drove her to " the strip," provided a motel room, and waited at a McDonald' s
while she had sex with a customer for money. 2 VRP at 34. NJ called Daniels to let him know
when she had picked up a customer for a sexual interaction.
NJ testified about another " date" on February 7, 2012: After a " John" contacted her
through Backpage, Daniels dropped her off and picked her up from the " date" in the Spanaway
Loop area. 2 VRP at 41. NJ further testified about the incident in the car as described above,
when Daniels had become violent with her.
B. Jury Instructions and Closing Argument
1. PCSAM instructions
The trial court first instructed the jury about PCSAM:
A person commits the crime of promoting commercial sexual abuse of a minor when he knowingly advances commercial sexual abuse of a minor or profits from a minor engaged in sexual conduct.
5 No. 43603 -5 -II
Commercial sexual abuse of a minor means a minor receives compensation for engaging in sexual conduct
Clerk' s Papers ( CP) at 28 ( Jury Instruction 7). Instruction 8 defined a " minor" as any person
under 18 years of age. CP at 29. Instruction 9 provided the jury with the statutory definitions of
sexual conduct," " sexual contact," and " sexual intercourse." CP at 30; see also RCW
9A.44. 010 ( definitions). Instruction 10 was the " to convict" instruction for PCSAM:
To convict the defendant of the crime of promoting commercial sexual abuse of a minor, as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
1) That on or about the period between the 1st day of January, 2012, and the 7th day of February, 2012, the defendant knowingly advanced commercial sexual abuse of a minor or profited from a minor engaged in sexual contact; and
2) That any of these acts occurred in the State of Washington.
CP at 31 ( Jury Instruction 10).
The trial court also provided a unanimity instruction for this PCSAM charge:
The State alleges that the defendant committed acts of promoting commercial sexual abuse of a minor on multiple occasions. To convict the defendant of promoting commercial sexual abuse of a minor, one particular act ofpromoting commercial sexual abuse of a minor must be proved beyond a reasonable doubt, and you must unanimously agree to which act has been proved. You need not
unanimously agree that the defendant committed all the acts of promoting commercial sexual abuse of a minor.
CP at 32 ( Jury Instruction 11) ( emphasis added).
2. Second degree promoting prostitution instructions
The trial court also instructed the jury on second degree promoting prostitution.
Instruction 22 stated, " A person commits the crime of promoting prostitution in the second
degree when he or she knowingly profits from or advances prostitution." CP at 43. Instruction
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23 provided statutory definitions for " prostitution," " advanced prostitution," and " profited from
prostitution." CP at 44; see also RCW 9A. 88. 060 ( definitions). The " to convict" instruction
provided in relevant part:
To convict the defendant of the crime of promoting prostitution in the second degree, as charged in Count VI each of the following elements of the crime must be proved beyond a reasonable doubt:
1) That on or about the period between the 1st day of January, 2012, and the 7th day of February, 2012, the defendant knowingly profited from prostitution or advanced prostitution, and
2) That any of these acts occurred in the State of Washington.
CP at 45 ( Jury Instruction 24).
As with the PCSAM charge, the trial court provided the jury with a unanimity instruction
for the promoting prostitution charge:
The State alleges that the defendant committed acts of promoting prostitution on multiple occasions. To convict the defendant of promoting prostitution, one particular act of promoting prostitution must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You
need not unanimously agree that the defendant committed all the acts of promoting prostitution.
CP at 46 ( Jury instruction 25) ( emphasis added).
3. Closing argument
In closing argument, the prosecutor specified certain acts for the jury to consider for each
charge. For the second degree promoting prostitution charge, the prosecutor asked the jury to
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consider only NJ' s first night on Aurora Avenue in Seattle, when Daniels believed she was 19
years olds:
Promoting Prostitution in the Second Degree, he' s benefiting, profiting from her selling herself after he —I' m sorry, before he learns that she 's 15. Because the promoting Commercial Sexual Abuse of a Minor has an age requirement. She told you, I lied and I told him I' m 19. Now he' s promoting a prostitute because she' s not a minor in his So promoting prostitution, a benefit that he mind, right.
got prior to learning that makes him guilty of Promoting Prostitution in the Second Degree.
3 VRP at 14 ( emphasis added).
For the PCSAM charge, the prosecutor asked the jury to consider the acts that had
occurred after Daniels learned NJ' s true minor age, 156:
If [NJ] is telling the truth, you believe these things actually happened, he' s guilty of Promoting Sexual Abuse of a Minor because he knew she was 15 years old after that date in Aurora and continued to profit from her selling herself
3 VRP at 13 ( emphasis added).
C. Verdict and Sentencing
The jury found Daniels guilty of promoting commercial sexual abuse of a minor
PCSAM) ( count 2), fourth degree assault ( count 4), and second degree promoting prostitution
5 The only evidence of Daniels' promoting prostitution of NJ before he knew she was 15 was the single " walk[ ing]" Aurora Avenue in Seattle in January 2012. 2 VRP at 57.
6 NJ testified about two specific commercial sexual exploitations of her after Daniels knew she was 15, both in Tacoma: one day in " late January, beginning of February" " walking" on Pacific
Avenue, 2 VRP at 34; and February 7, in the Spanaway Loop area of Pierce County, when she had sex with a " John" who had contacted her through Backpage. com, which incident ended in Daniels' assaulting NJ. 2 VRP at 41.
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count 6). Neither the State nor Daniels asked the trial court to merge the PCSAM and
promoting prostitution convictions for sentencing purposes. Daniels appeals his convictions.
ANALYSIS
PCSAM AND SECOND DEGREE PROMOTING PROSTITUTION NOT " SAME OFFENSE"
Daniels argues that his convictions for PCSAM and second degree promoting prostitution
violate the constitutional prohibitions against double jeopardy because the jury could have based
both convictions on the same criminal conduct. Because NJ was a minor, all of Daniels' conduct
that promoted NJ' s prostitution arguably violated both the promoting prostitution statute and the
PCSAM statute. However, the State expressly elected in closing argument for the jury to
consider only the Seattle activities before Daniels learned NJ was a minor in considering the
promoting prostitution charge, and to consider only the Pierce County activities after Daniels learned NJ was a minor in considering the PCSAM charge. Under these circumstances, we hold
that Daniels' convictions were not based on the same criminal conduct and, therefore, there was
no double jeopardy.
The Fifth Amendment to the United States Constitution provides that no " person be
subject for the same offence to be twice put in jeopardy of life or limb." U. S. CONST. amend. V.
Mirroring this federal constitutional guarantee, Washington' s State Constitution provides, " No
7 Nor did Daniels raise a double jeopardy objection.
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8 person shall ... be twice put in jeopardy for the same offense. " WASH. CONST. art. I, § 9; see
also State v. Kier, 164 Wn.2d 798, 803, 194 P. 3d 212 ( 2008). Under these provisions, a
defendant cannot be punished multiple times for the same criminal act. See State v. Mutch, 171
Wn.2d 646, 661 -62, 254 P. 3d 803 ( 2011).
The threshold question here is whether Daniels was convicted of multiple offenses based
on the same criminal conduct.9 See State v. Pena Fuentes, 179 Wn.2d 808, 824 -26, 318 P. 3d 257
2014); Mutch, 171 Wn.2d at 662 -66. "[ I] f each count arises from a separate and distinct act, the
defendant is not potentially exposed to multiple punishments for a single act." Pena Fuentes,
179 Wn.2d at 824. We will not find a double jeopardy violation when it is " manifestly apparent
to the jury that each count represent[ s] a separate act." Pena Fuentes, 179 Wn.2d at 824 ( quoting
Mutch, 171 Wn.2d at 665 -66).
8 Because Daniels did not raise the double jeopardy issue below, we treat this argument as falling within the RAP 2. 5( a)( 3) manifest constitutional error exception to the preservation requirement. A double jeopardy claim is of constitutional proportions and may be raised for the first time on appeal." State v. Mutch, 171 Wn.2d 646, 661, 254 P. 3d 803 ( 2011). Thus, we review de novo the double jeopardy argument he raises for the first time on appeal. State v. Kelley, 168 Wn.2d 72, 76, 226 P. 3d 773 ( 2010).
9 When a defendant makes a double jeopardy argument, we normally determine whether the legislature intended multiple punishments in the particular situation. Kier, 164 Wn.2d at 804. Within constitutional boundaries, the legislature is empowered to " define criminal conduct and assign punishment to it." Kier, 164 Wn. 2d at 803. " Where a defendant' s act supports charges
under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense." Kier, 164 Wn.2d at 803 -04 ( internal quotations omitted) ( quoting State v. Freeman, 153 Wn.2d 765, 771, 108 P. 3d 753 ( 2005)). Here, however, we need not engage in this legislative intent analysis because we hold that Daniels is being punished for two separate criminal. acts, not twice for the same act.
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Here, during NJ' s testimony and closing argument, the State distinguished between
different geographic locations ( Seattle and Tacoma) and between different time periods ( before
and after Daniels knew the victim was underage) to support convictions for the two separate
charges, promoting prostitution and PCSAM. In closing argument, the State made it clear that it
was asking the jury to convict on the promoting prostitution charge based on Daniels' activities
in Seattle before he knew that NJ was a minor, and asking the jury to convict on the PCSAM
charge based only on Daniels' activities in Pierce County after he knew NJ was a minor.
Daniels argues that the State' s election was insufficient to establish that the two
10 convictions were based on separate criminal conduct, citing Kier. But here, the evidence
clearly distinguished between Daniels' separate criminal acts. One course of criminal activity
occurred in Seattle before Daniels knew NJ was a minor. The other course of criminal activity
occurred later in Pierce County, after Daniels knew NJ was a minor. The State' s closing
argument served to confirm this distinction, making it clear that the different criminal conduct
supported convictions for different offenses. As a result, this case is more similar to Pena
Fuentes, where our Supreme Court held that separate criminal conduct supported the defendant' s
to Daniels argues that, according to Kier, 164 Wn.2d at 814, we should hold that the prosecutor' s argument distinguishing Daniels', PCSAM and promoting prostitution charges was insufficient to relieve the ambiguity in the jury' s verdict. The State charged Kier with robbery and assault for
carjacking at gunpoint a vehicle occupied by a man and his son. Kier, 164 Wn.2d at 802. During closing argument, the State identified the man as the victim of the robbery and the son as the victim of the assault. Kier, 164 Wn.2d at 813. The Supreme Court held that ( 1) this closing
argument did not constitute a " clear election" because the evidence at trial identified both the father and the son as victims of the robbery and the jury instructions did not specify that only the man was the robbery victim; and ( 2) as jury' s verdict was a result, the ambiguous. Kier, 164
Wn.2d at 813, 814.. Disagreeing, we distinguish Kier in the text above.
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two convictions because the State clearly distinguished between the acts constituting one crime
from the acts constituting the second crime. Pena Fuentes, 179 Wn.2d at 825 -26.
In light of the State' s differentiation between the two crimes with separate supporting
two clearly distinguished time periods —before and after Daniels learned acts committed during
NJ' s young age — it is " manifestly apparent" that the jury convicted Daniels based on factually
separate and distinct acts. Pena Fuentes, 179 Wn.2d at 824 ( quoting Mutch, 171 Wn.2d at 665.)
Accordingly, we hold that the conviction and punishment of Daniels for both PCSAM and
second degree promoting prostitution did not constitute double jeopardy.
A majority of the panel having determined that only the foregoing portion of this 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.
STATEMENT OF ADDITIONAL GROUNDS
A. Effective Assistance of Counsel
In his SAG, Daniels asserts that his appointed trial counsel ineffectively assisted him by
failing to call defense witnesses, failing to cross -examine the victim effectively, and failing to
object to the State' s filing of a second degree promoting prostitution charge. These assertions
fail because Daniels does not show that defense counsel' s actions were deficient or prejudiced
him in any way. State v. Emery, 174 Wn.2d 741, 754 -55, 278 P. 3d 653 ( 2012) ( citing State v.
McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995)).
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B. Sufficiency of Evidence
Daniels next asserts that the State failed to put forward sufficient evidence to support his
convictions, singling out in particular the State' s testimonial evidence on which the State' s case
relied. This claim fails.
When a party challenges the sufficiency of evidence to support a criminal conviction, we
must view the evidence in the light most favorable to the State to determine whether " any
rational trier of fact could have found guilt beyond a reasonable doubt." State v. Gordon, 172
Wn.2d 671, 680, 260 P. 3d 884 ( 2011) ( quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d
1068 ( 1992)). This inquiry requires that "[ a] 11 reasonable inferences from the evidence must be
drawn in favor of the State and interpreted most strongly against the defendant." State v. Brown,
162 Wn.2d 422, 428, 173 P. 3d 245 ( 2007) ( quoting State v. Hosier, 157 Wn.2d 1, 8, 133 P. 3d
936 ( 2006)); Salinas, 119 Wn.2d at 201. " Credibility determinations are for the trier of fact and
are not subject to review" on appeal. State v. Mines, 163 Wn.2d 387, 391, 179 P. 3d 835 ( 2008)
citing State v. Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004)). We defer to the trier of fact' s
resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the
persuasiveness of the evidence. State v. Notaro, 161 Wn. App. 654, 671, 255 P. 3d 774 ( 2011).
As its verdicts imply, the jury apparently found credible NJ' s uncontradicted testimony
about Daniels' sexually exploitive and assaultive actions, which determination we do not review
on appeal. Notaro, 161 Wn. App. at 671. Moreover, NJ' s testimony alone was sufficient to
allow a reasonable trier of fact to find Daniels guilty beyond a reasonable doubt of PCSAM,
second degree promoting prostitution, and fourth degree assault. Thus, viewing the evidence in
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the light most favorable to the State, we hold that the evidence was sufficient to support the
jury' s verdicts.
C. Prosecutorial Misconduct
Finally, Daniels asserts that he was subject to vindictive prosecution when the State
amended the information to add the charge of second degree promoting prostitution shortly
before trial. The record before us on appeal does not support this assertion; moreover, we note
that prosecutors are vested with great discretion in filing criminal charges. See State v. Korum,
157 Wn.2d 614, 625, 141 P. 3d 13 ( 2006).
We affirm.
We concur: