Filed Washington State Court of Appeals Division Two
January 27, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 59608-3-II
Respondent,
v.
HENRY WILLIAM HAUSER, JR., UNPUBLISHED OPINION
Appellant.
MAXA, J. – Henry Hauser, Jr. appeals his convictions of first degree kidnapping, indecent
liberties with forcible compulsion, and second degree identity theft. He also appeals his sentence
to life without release/parole (LWOP), which the trial court imposed pursuant to the Persistent
Offender Accountability Act (POAA), RCW 9.94A.570. Hauser’s convictions arose from
allegations that he held the victim in chains in a garage for several days and sexually assaulted
her multiple times while she was detained.
When Hauser was arrested, officers identified him using a bulletin that contained
photographs of his tattoos. The trial court issued an order prohibiting the admission of
information regarding the source of the photographs in the bulletin. At trial, an officer
mentioned that photographs used in bulletins like the one used to identify Hauser can come from
DOL photographs or old booking photographs. Another officer mentioned that the police took a No. 59608-3-II
photograph of Hauser’s tattoos. After trial, Hauser moved for a new trial on the basis that the
State intentionally violated the court’s order, which prejudiced him because it enabled the jury to
infer that he had engaged in criminal activity in the past.
Two of Hauser’s convictions in this case qualified as most serious offenses under the
POAA. At sentencing, the trial court determined without a jury finding that Hauser previously
had committed at least two other most serious offenses on separate occasions. Therefore, it
sentenced him to LWOP, as required by RCW 9.94A.570.
We hold that (1) sufficient evidence supported the jury’s conclusion that Hauser
kidnapped AH with the intent to facilitate rape; (2) we decline to consider Hauser’s argument
that the officers’ testimony about Hauser’s tattoos constituted a serious irregularity under CrR
7.5(a)(5) because he did not move for a new trial on that basis in the trial court; (3) Hauser’s
argument that the POAA is unconstitutional because it is administered in a racially
disproportionate manner fails as we held in State v. Nelson, 31 Wn. App. 2d 504, 550 P.3d 529,
review denied, 3 Wn.3d 1030 (2024); and (4) Erlinger v. United States, 602 U.S. 821, 144 S. Ct.
1840, 219 L. Ed. 2d 451 (2024) does not prohibit a trial court rather than a jury from finding that
the POAA applies.
Accordingly, we affirm Hauser’s convictions and sentence.
FACTS Background
A couple was driving in Tacoma when they saw AH wandering on a street. AH had a
large chain in her hands. The other end of the chain was attached to her ankle. She had no shoes
on and was wet. The couple pulled over and called 911. AH told them that she had been held for
a few days and had been raped. Police and firefighters came to the scene. They removed the
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chain from AH’s ankle and took her to the hospital for treatment. On the way to the hospital, AH
showed law enforcement officers the house where she said she was held.
Law enforcement officers responded to the house. They learned that Hauser’s father
owned the house and that Hauser was the person that used the garage. Hauser was arrested five
days later. When Hauser was arrested, he initially gave a false name. But officers were able to
identify him using photographs of his tattoos.
The State charged Hauser with two counts of first degree rape, attempted first degree
rape, third degree rape, first degree kidnapping with the intent to facilitate rape, indecent liberties
with forceable compulsion, second degree identity theft, and making a false or misleading
statement to a public servant.1
Trial
At trial, AH testified that she met Hauser while she was at a store in Tacoma. She spoke
with him because she wanted to find a place to get out of the rain and take drugs. At the time of
the incident, she was struggling with substance abuse and mental health disorders and had
nowhere to live. She decided to go home with Hauser, but it was clear that there would be
nothing of a sexual nature.
AH said she and Hauser went to Hauser’s house. There, they hung out in a room at the
back of the house and took methamphetamine. After about 24 hours of hanging out together, AH
said she was going to leave. When AH said this, they were in a garage detached from the main
house that had a work bench and a pickup truck in it.
AH said that when she told Hauser she was going to leave, he started to cry. When AH
saw that Hauser was crying, she said something that offended him. She said that this comment
1 Hauser pled guilty to making a false or misleading statement to a public servant.
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led Hauser to attack her. Although AH stated that she did not have a clear memory of the
incident, she could recall that she tried to fight back and that he assaulted her. AH said that
during this altercation, Hauser grabbed a rope and tied her to a work bench. AH stated that
Hauser then tore off her clothes and sexually assaulted her. Again, AH said that she could not
remember exactly what happened, but she stated that Hauser penetrated her vagina with his
fingers, and his hands and mouth touched her breasts.
AH testified that Hauser then chained her to the bed of the truck in the garage. She said
that after she was moved to the truck, another incident of a sexual nature involving her breasts
and vagina occurred. AH stated that on another occasion, Hauser tried to spread her legs apart
and his mouth contacted her vagina, but she could not recall if his mouth went inside of it. AH
said that at points during her detention she was kept naked from the waist down. And she said
that she had to use the restroom in buckets during this time.
AH described that she was able to escape from the garage when she managed to obtain a
key to the padlocks securing her to the truck.
Firefighter Allyson Hinzman testified that she responded to the scene where the couple
found AH. Hinzman testified that AH told her that she had been captured and repeatedly
sexually assaulted. She said that she helped remove the chain from AH’s ankle, which was
secured to her with a bolt and epoxy.
Crime Scene Technician Christine Doan testified regarding her investigation. She
discussed that she identified and photographed evidence in Hauser’s garage. She described
photographs she took of chains and ropes attached to the front and back of the pickup truck. She
described the photographs of a box of condoms discovered under the truck where AH said she
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was held. Doan said that she went to the hospital and photographed apparent injuries on AH’s
ankles, wrists, inner thighs, and buttocks.
Nurse Alison Komomua testified that she conducted a sexual assault nurse examination
on AH and took swabs from AH’s body for testing. She said that AH told her that a man
abducted her, assaulted her with his hands, and penetrated her vagina with his mouth and hands.
Komomua said that she did not note any signs of physical injury or trauma on AH. And a
forensic scientist testified that he tested the swabs from the sexual assault examination and
discovered no evidence of male DNA on AH’s body.
The State sought to introduce photographs of the tattoos used to identify Hauser. Hauser
objected, arguing that evidence about the source of the photographs of his tattoos could lead to
the jury to infer that he had a criminal history. The trial court permitted the State to introduce
evidence of Hauser’s tattoos. But the court ordered that where the information came from could
not be mentioned.
Police officer Gregory Cenicola testified regarding Hauser’s arrest. He said investigators
put out a bulletin for Hauser that contained photographs of his face and tattoos. Officers
received a tip that Hauser was at a local store, and they found him there. Hauser gave a different
name when officers first confronted him. But the officers were able to identify him using
photographs of his forearm tattoos in the bulletin.
Cenicola stated that the photo he had did not exactly match Hauser. But that was a
common occurrence because sometimes the bulletins were “taken from [Department of
Licensing] photos or old booking photos.” Rep. of Proc. (RP) at 1191 (emphasis added). Hauser
objected, and the trial court sustained the objection and instructed the jury that the answer was
stricken.
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Outside the jury’s presence, the trial court and parties discussed Cenicola’s reference to
“old booking photos.” Hauser said that he should move for a mistrial, but he did not. He sought
sanctions against the State on the grounds that the State intentionally elicited information about
the source of the photographs. The State detailed the steps it took to prevent the jury from
hearing this information. The trial court said that it did not “believe that [the prosecutor] did
anything other than what he could do, in terms of warning the officer.” RP at 1197. It concluded
that it was “not finding that there was anything intentional or malicious, certainly not by the
State. I’m not sure what the officer was thinking.” RP at 1198.
Detective Jennifer Quilio testified that she obtained identifying information related to
Hauser. The prosecutor showed Qulio photographs of Hauser’s tattoos and then the following
exchange occurred:
Q. And do you believe that those are photographs of tattoos associated with Henry William Hauser, Jr.?
A. Yes. The photographs are of two tattoos that I do recognize as being on Mr. Hauser’s body. These photographs were taken by the police.
RP at 1227 (emphasis added).
After Quilio finished testifying, the following exchange occurred outside of the jury’s
presence:
MR. JOHNSON: Yes, Your Honor. They did it again. I didn’t make an objection because I didn’t want to ring the bell in front of the jury again, and I’m placed in the horrible position of whether I ask for a limiting instruction or not, or if I should move for a mistrial. But --
THE COURT: Just so we’re clear, your objection right now is timely taken. ....
MR. JOHNSON: . . . I’m asking for -- I’m asking for contempt now. I asked earlier for some sort of sanction being imposed. Your Honor was contemplating it. There were all sorts of promises this wouldn’t happen again. It happened again. I’m asking -- I’m moving for a contempt.
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RP at 1230-31.
The State responded by again detailing the steps it took to avoid violating the court order.
The trial court took the contempt motion under advisement. Hauser did not request a limiting
instruction, and the court did not strike or instruct the jury on Quilio’s testimony. Hauser said he
was not moving for a mistrial at that time. And he did not subsequently ask for a mistrial.
The jury found Hauser guilty of kidnapping in the first degree, indecent liberties, and
second degree identity theft. It was unable to reach a verdict on the rape or attempted rape
charges.
Motion for a New Trial
After trial, Hauser filed a motion for a new trial under CrR 7.5(a)(1) and (2). He argued
that the State intentionally violated the trial court’s order excluding information about the source
of the photographs in the bulletin. Hauser pointed out that the violation occurred when “the
State’s witnesses identified the sources of photographs used in their bulletin; specifically,
‘mugshots’ and photographs that were in ‘the possession of the police.’ ” Clerk’s Papers at 385.
Hauser said these references were intentional because the witnesses were told not to mention the
source of the photos but did so anyway.
At the hearing on the motion, Hauser argued:
I think the record was clear on what the issue was and the deliberateness of the violation, especially after the Court specifically instructed parties to refrain from certain information. That was deliberately done. That placed us in a horrible position because, as we read, the jury and, I think, the verdicts kind of bear out that significant reasonable doubt was present, and that but for the deliberate violation of the Court’s instructions, the jury verdict may have been done. So I can’t just dismiss this as mere harmless error.
RP at 1488 (emphasis added).
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The State argued that the references to booking photos and the reference to a photo being
taken by the police did not inform the jury of Hauser’s previous convictions. And it argued that
the split verdict showed that the jury’s verdict rested on a “honest, forthright, and careful analysis
of the evidence.” RP at 1488.
After hearing argument on the motion, the trial court stated,
THE COURT: I had the opportunity to make rulings and to listen to the testimony as it came out. The testimony as it came out appeared to me to be much more inadvertent than it was. Certainly, I guess, I will say from my own observation that it did not appear to be an intentional violation of my order. It certainly did appear to be an inadvertent violation of my order. That was clearly a violation of what I had ordered. I don’t disagree with that.
On the other hand, I do agree with [the State]. I wrote in the margin of his brief that there was no -- there was no discussion about any prior criminal history that Mr. Hauser may or may not have had.
RP at 1488-89 (emphasis added). The court denied the motion.
Sentencing
At sentencing, the State informed the trial court that Hauser had two previous convictions
that were most serious offenses under the POAA. The State introduced copies of the judgment
and sentences from those cases.
The first most serious offense was a conviction for second degree kidnapping entered on
June 5, 2007. The judgment and sentence stated the date of this crime was September 25, 2006.
The second most serious offense was a conviction for second degree assault, entered on February
18, 2014. The judgment and sentence stated the date of this crime was on July 12, 2012.
The defendant did not argue that a jury, rather than the judge, was required to find that he
committed the alleged strike offenses on separate occasions. Nor did he assert that the POAA
was unconstitutional.
After the parties’ sentencing arguments, the trial court stated,
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Given the verdicts of the jury and the exhibits that have proved up the underlying convictions that Mr. Hauser has, it does appear to me as though he’s eligible for the sentence of life without the possibility of parole, and, in fact, that’s the only sentence available to him, given his criminal history. With regard to Counts 2 and 5, I will sentence Mr. Hauser to life without the possibility of parole as a persistent offender.
RP at 1492-93.
Hauser appeals his convictions and his sentence.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE – FIRST DEGREE KIDNAPPING
Hauser argues that evidence was insufficient to convict him of first degree kidnapping
because the evidence did not show that Hauser kidnapped AH with the intent to rape her. We
disagree.
1. Standard of Review
When evaluating the sufficiency of evidence for a conviction, we view the evidence in
the light most favorable to the State and ask whether a rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. State v. Bergstrom, 199 Wn.2d 23, 40-41, 502
P.3d 837 (2022). We assume the truth of the State’s evidence and all reasonable inferences that
may be drawn therefrom. Id. at 41. These inferences must be construed in the State’s favor and
strongly against the defendant. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019). And
we defer to the trier of fact’s resolution of conflicting testimony, witness credibility, and the
persuasiveness of the evidence. Bergstrom, 199 Wn.2d at 41.
2. Legal Principles
RCW 9A.40.020(1) provides five alternative means of committing first degree
kidnapping. State v. Harrington, 181 Wn. App. 805, 817-18, 333 P.3d 410 (2014). A kidnapping
conviction requires only the intent to carry out one of the means enumerated in RCW
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9A.40.020(1), not that the perpetrator actually complete one of those qualifying means. State v.
Louis, 155 Wn.2d 563, 571, 120 P.3d 936 (2005).
The State relied on RCW 9A.40.020(1)(b) at trial, which states that a person commits
first degree kidnapping when “he or she intentionally abducts another person with the intent . . .
[t]o facilitate the commission of any felony.” Specifically, the State alleged that Hauser
kidnapped AH with the intent to facilitate rape. First degree rape occurs when a person “engages
in sexual intercourse with another person [b]y forcible compulsion” and kidnaps that person.
RCW 9A.44.040(1)(a)(ii). Therefore, to convict Hauser of first degree kidnapping, the State had
to present sufficient evidence that he kidnapped AH with the intent to engage in sexual
intercourse with her by forcible compulsion.
RCW 9A.08.010(1)(a) provides that “[a] person acts with intent or intentionally when he
or she acts with the objective or purpose to accomplish a result which constitutes a crime.”
Intent can be inferred by a defendant’s conduct when that conduct and the “ ‘surrounding facts
and circumstances plainly indicate such an intent as a matter of logical probability.’ ” State v.
Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013) (quoting State v. Woods, 63 Wn. App. 588, 591,
821 P.2d 1235 (1991)); see also In re Pers. Restraint of Arntsen, 2 Wn.3d 716, 726-31, 543 P.3d
821 (2024) (stating that specific intent may be inferred from conduct).
Here, the jury failed to return a verdict on the rape charges. However, “jury convictions
on separate counts should not be disturbed, despite inconsistencies, so long as there is sufficient
evidence to support the conviction.” State v. Goins, 151 Wn.2d 728, 734, 92 P.3d 181 (2004);
see also State v. Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988) (“Where the jury’s verdict is
supported by sufficient evidence . . . we will not reverse on grounds that the guilty verdict is
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inconsistent with an acquittal on another count.”). This rule protects a jury’s ability to return a
verdict that is the product of lenity or compromise. Id. at 46-48.
3. Analysis
The State presented testimony from AH that Hauser restrained her and then either
sexually assaulted her, or attempted sexually assault her, on several different occasions. AH also
testified that Hauser ripped her pants off after he tied her to the work bench and that she was kept
naked from the waist down when she was restrained in the truck. We assume this evidence is
true and interpret all reasonable inferences therefrom in favor of the State. Bergstrom, 199
Wn.2d at 41. The evidence that Hauser either attempted or completed sexual assaults against AH
after he abducted her supports the inference that he had the intent to facilitate those rapes when
he abducted her.
In addition, the State presented evidence that AH reported that she was sexually assaulted
to civilian witnesses, to firefighters who responded to where she was found, and to Komomua
during her sexual assault examination. And investigators testified that they found a box of
condoms near the truck where AH was restrained, as well as ropes and chains attached to that
truck. We conclude that a reasonable juror could infer from these circumstances that Hauser
intended to facilitate the commission of a rape against AH when he abducted her.
Hauser argues that there was insufficient evidence to convict him for first degree
kidnapping because the jury did not reach a verdict on the rape or attempted rape charges. His
argument is unconvincing for two reasons. First, the first degree kidnapping statute requires only
that Hauser intended to facilitate the commission of rape, not that he actually attempted or
committed the rape. RCW 9A.40.020(1)(b); Louis, 155 Wn.2d at 571. Second, apparent
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inconsistency between verdicts is not grounds to reverse a conviction as long as there is
sufficient evidence supporting the convictions. Goins, 151 Wn.2d at 734; Ng, 110 Wn.2d at 48.
Hauser also argues that State v. Aguilar, 27 Wn. App. 2d 905, 534 P.3d 360 (2023)
supports his position. In that case, the jury was instructed on all five alternative means for
elevating a kidnapping to first degree kidnapping and the jury did not specify which means it
relied on to find Aguilar guilty. Id. at 931-32. The court vacated a first degree rape conviction
because the State did not present evidence on one of the alternative means for rape on which the
jury was instructed. Id. at 919-22. The court also vacated Aguilar’s first degree kidnapping
charge because it could not conclude that “the jury determined that Aguilar kidnapped [the
victim] with the intent to facilitate rape.” Id. at 932.
Here, the jury was instructed on only one of the alternative means for committing first
degree kidnapping, intent to facilitate rape. And the jury returned a verdict explicitly finding that
Hauser kidnapped AH with the intent to facilitate rape. Therefore, Aguilar is inapplicable.
Accordingly, we hold that the evidence was sufficient for a reasonable jury to find
beyond a reasonable doubt that when Hauser abducted AH, he intended to facilitate the
commission of a rape against her.
B. MOTION FOR NEW TRIAL
Hauser argues that the trial court abused its discretion when it denied his motion for a
new trial based on improper testimony revealing the source of the photographs of his tattoos.
The State argues that Hauser cannot raise this argument on appeal because in the trial court he
did not assert the basis for a new trial on which he relies on appeal. We agree with the State.
Under RAP 2.5(a), we “may refuse to review any claim of error which was not raised in
the trial court.” These rules are intended to preserve judicial resources “by ensuring that the trial
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court has the opportunity to correct any errors, thereby avoiding unnecessary appeals.” State v.
Hamilton, 179 Wn. App. 870, 878, 320 P.3d 142 (2014) (argument unpreserved even though
party opposed admission of evidence on other grounds in trial court). Therefore, to preserve an
error for appeal, the “ ‘party must inform the court of the rules of law it wishes the court to apply
and afford the trial court an opportunity to correct any error.’ ” State v. Clare, 30 Wn. App. 2d
309, 315, 544 P.3d 1099, review denied, 3 Wn.3d 1011 (2024) (quoting State v. Lazcano, 188
Wn. App. 338, 355, 354 P.3d 233 (2015). “A party may assign evidentiary error on appeal only
on a specific ground made at trial.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007)
(emphasis added). We “will not sanction a party’s failure to point out at trial an error which the
trial court, if given the opportunity, might have been able to correct to avoid an appeal and a
consequent new trial.” State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988).
In the trial court, Hauser based his new trial motion only on CrR 7.5(a)(1) and (2). The
motion was premised on the State’s intentional violation of the court order, and the receipt of
evidence not allowed by the court. The trial court denied the new trial motion because it did not
believe that the violation was intentional.
On appeal, Hauser argues only that Cenicola and Quilio’s comments were prejudicial trial
irregularities under CrR 7.5(a)(5). But he did not argue that trial irregularities warranted a new
trial to the trial court. Therefore, the trial court did not have the opportunity to address this
argument. And Hauser does not address CrR 7.5(a)(1) and (2) on appeal.
Because Hauser did not argue in the trial court that a new trial was warranted under CrR
7.5(a)(5), he cannot now raise that issue for the first time on appeal.2 Kirkman, 159 Wn.2d at
2 Hauser does not argue that any exceptions to RAP 2.5(a) apply to this issue.
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926. Accordingly, we decline to reach the issue, and we affirm the trial court’s denial of
Hauser’s new trial motion.
C. CONSTITUTIONALITY OF THE PERSISTENT OFFENDER ACCOUNTABILITY ACT
Hauser argues that his sentence is unconstitutional because the POAA is applied in a
racially discriminatory manner. We disagree.
1. Legal Principles – POAA
The POAA addresses the sentencing of persistent offenders. RCW 9.94A.570. A
persistent offender is an offender who before commission of the current offense, has on two
separate occasions been convicted of felonies that are most serious offenses. RCW
9.94A.030(37)(a)(i)-(ii). If a defendant has committed three most serious offenses on separate
occasions, the offender must be sentenced to LWOP. RCW 9.94.570. RCW 9.94A.030(32)
defines which offenses constitute “most serious offenses.”
2. Failure to Raise Issue in Trial Court
Initially, the State argues that Hauser did not preserve the POAA issue for appeal because
he did not challenge the constitutionality of the POAA in the trial court. The State claims that
the issue does not constitute manifest constitutional error under RAP 2.5(a)(3) because it
depends solely on evidence outside the record that was not submitted to the trial court.
In Nelson, this court exercised its discretion to the consider the unpreserved POAA
challenge. 31 Wn. App. 2d at 510-11. We do the same here.
3. Constitutionality of POAA
Hauser relies on State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018) to argue that the
POAA is unconstitutional. In Gregory, the Supreme Court held that the death penalty was
unconstitutional as administered. Id. at 35. The court concluded, “When the death penalty is
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imposed in an arbitrary and racially biased manner, society’s standards of decency are even more
offended. Our capital punishment law lacks ‘fundamental fairness’ and thus violates article I,
section 14.” Id. at 24 (quoting State v. Bartholomew, 101 Wn.2d 631, 640, 683 P.2d 1079
(1984)).
This court addressed and rejected a similar racial disproportionality challenge to the
POAA in Nelson. 31 Wn. App. 2d at 511-17. Nelson was sentenced to LWOP based on three
convictions for most serious offenses under the POAA. Id. at 512. The court held that the
POAA was not applied in an arbitrary and “racially disproportionate manner as in Gregory.” Id.
at 517.
The holding in Nelson was based on the different procedures involved with the POAA
and the death penalty. Id. at 515. The court observed that the death penalty was administered
“on a case-by case basis,” and it involved discretionary decisions by prosecutors, judges, juries,
and the Supreme Court. Id. at 515-516. By contrast, the POAA allows a trial court no discretion
at sentencing because any offender who commits three “most serious offenses” must be
sentenced to LWOP under the POAA. Id. at 516. The Supreme Court denied review of this
court’s decision in Nelson. 3 Wn.3d 1030.
We follow the Nelson analysis. And Hauser does not explain why we should depart from
the reasoning in that case. We hold that the POAA is not unconstitutional as administered.
D. TRIAL COURT FINDING ON PREVIOUS CONVICTIONS
Hauser argues that under Erlinger, 602 U.S. 821, the fact that his previous convictions
occurred on separate occasions could only be found by a jury and not by the trial court. We
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The Fifth Amendment of the United States Constitution guarantees that no person should
“be deprived of life, liberty, or property, without due process of law.” The Sixth Amendment
guarantees criminal defendants the right to a speedy trial by an impartial jury of their peers. The
United States Supreme Court has interpreted these amendments to generally require “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.” Apprendi v. New Jersey, 530 U.S.
466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d, 435 (2000). There is a narrow exception to this rule:
the trial court may “undertake the job of finding the fact of a prior conviction – and that job
alone.” Erlinger, 602 U.S. at 837.
After Apprendi and its progeny, our Supreme Court has held that application of the
POAA does not require a jury determination. E.g., State v. Witherspoon, 180 Wn.2d 875, 893,
329 P.3d 888 (2014) (“[I]t is settled law in this state that the procedures of the POAA do not
violate federal or state due process. Neither the federal nor state constitution requires that
previous strike offenses be proved to a jury.”). And our Supreme Court has stated “All that is
required by the constitution and the [POAA] statute is a sentencing hearing where the trial judge
decides by a preponderance of the evidence whether the prior convictions exist.” State v.
Wheeler, 145 Wn.2d 116, 121, 34 P.3d 799 (2001) (emphasis added).
Hauser acknowledges that a trial court can find the existence of prior convictions.
However, he emphasizes that the POAA requires the court to find that the defendant was
convicted of two separate most serious offenses before the commission of the current offense.
The inquiry requires additional factual findings beyond the existence of the prior offenses, which
Hauser argues must be determined by a jury.
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Hauser’s argument is inconsistent with Washington law. In State v. Jones, the Supreme
Court rejected an argument that trial courts can find “only the mere fact of a prior conviction and
should not include facts that flow directly from the fact of a prior conviction.” 159 Wn.2d 231,
241, 149 P.3d 636 (2006). The court stated, “To give effect to the prior conviction exception,
Washington’s sentencing courts must be allowed as a matter of law to determine not only the fact
of a prior conviction but also those facts ‘intimately related to [the] prior conviction.’ ” Id.
(quoting United States v. Moore, 401 F.3d 1220, 1225 (10th Cir. 2005)) (alteration in original).
The court concluded that the prior conviction exception “encompass[es] facts that follow
necessarily or as a matter of law from the fact of a prior conviction.” Jones, 159 Wn.2d at 243.
In State v. Brinkley, Division One of this court expressly rejected the same argument
Hauser makes here. 192 Wn. App. 456, 459-64, 369 P.3d 157 (2016). The court acknowledged
that “[u]nder the [POAA], the court must determine the date of the prior convictions to see if
they occurred before commission of the present offense. Next, the court must determine the date
of one of the earlier offenses and decide whether it followed the date of the other prior
conviction.” Id. at 460. But the court relied on Jones to hold that finding these facts did not
require a jury. Id. at 464. The court concluded,
[T]he “prior conviction” exception includes not only the fact of the conviction itself but also “facts intimately related to the prior conviction.” Jones, 159 Wn.2d at 241. As the Fourth Circuit observed, a prior conviction cannot “be reduced to nothing more than that the defendant was at some prior time convicted of some crime” and therefore, should include “other operative facts.” United States v. Thompson, 421 F.3d 278, 282 (4th Cir. 2005). The dates of Brinkley’s prior convictions, the dates of the prior offenses, and the offenses resulting in the prior convictions are all facts that fall within the facts of prior conviction exception.
Id.
Hauser argues that Erlinger essentially has overruled existing Washington law. In
Erlinger, the United States Supreme Court held that the fact determination of whether qualifying
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convictions were part of different occasions under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(1), was a question that must be sent to the jury. 602 U.S. at. 831. But the Court
expressly limited its ruling to the ACCA. Id. at 835. The Court noted that there had been
criticism of the prior conviction exception, but it did not revisit that rule. Id. at 837-38.
Both this court and Division One have decided that the holding in Erlinger is limited to
the “different occasions” inquiry under the ACCA and does not overrule existing Washington
precedent. State v. Frieday, 33 Wn. App. 2d 719, 747-48, 565 P.3d 139, review denied, 574 P.3d
539 (2025); State v. Anderson, 31 Wn. App. 2d 668, 681, 552 P.3d 803, review denied, 3 Wn.3d
1034 (2024). We agree with these cases, and we conclude that Erlinger does not overrule
existing Washington case law. Accordingly, we find no constitutional error.
CONCLUSION
We affirm Hauser’s convictions and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
CRUSER, C.J.
PRICE, J.