1-ILED COURT OF APPEALS DIV ~ ~;.. STATE OF WASHINGTON ~ i’~ ~
2OI8SEP—~ AN 9:30 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 76575-2-I Appellant, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION JOSEPH WILLIAM DAVENPORT, ) ) Respondent. ) FILED: September 4, 2018 ___________________________________________________________________________________________ ) APPELWICK, C.J. — Davenport was convicted of two counts of first degree
promoting prostitution, one count of first degree unlawful possession of a firearm,
one count of possession with intent to manufacture or deliver methamphetamine,
and one count of second degree assault — domestic violence. He contends that
(1) a police officer gave improper opinion testimony on his guilt, (2) there was
insufficient evidence to support one of his convictions for promoting prostitution,
(3) the trial court erred in failing to order a competency evaluation, (4) the jury
instructions failed to preserve jury unanimity and permitted a double jeopardy
violation, and (5) his dual convictions for assault and promoting prostitution violate
double jeopardy. We affirm.
FACTS
Kayla Snow first met Joseph Davenport while she was walking along the
highway, which she often did. They exchanged phone numbers and Snow,
working as a prostitute, quickly started giving all her money to Davenport. Snow
testified that Davenport beat her and held a gun to her head on the third day that No. 76575-2-1/2
she knew him. After about a week, Davenport and Snow went to Eastern
Washington where Snow continued to work as a prostitute. When they returned
from Eastern Washington, after about two months, Davenportbrought another
woman, Jasmin McLain, into his ‘relationship” with Snow. McLain also worked as
a prostitute for Davenport.
Snow testified about a specific time when Davenport hit her after she
expressed jealousy over his relationship with McLain. Davenport hit Snow twice
in her mouth with his gun. Afterward, he took her back to the hotel and punched
her in her eye. Snow asked Davenport for medical care, but he first took Jasmin
on a “call,” leaving Snow bleeding in the backseat of his car. Hours later, on April
15, Davenport took Snow to the hospital, where they put multiple stitches in her
mouth.
McLain introduced Davenport as her boyfriend to her mother, Danielle
McLain.1 On another visit, Danielle went to the hotel where Davenport, Jasmin,
and Snow were staying. Weeks later, Jasmin asked Danielle for help to get away
from Davenport. After Jasmin stayed with her mother for about a week she went
back to Davenport. Jasmin also contacted her grandmother, Kristie Lund, for help.
Lund picked up Jasmin and took her to a “safe house” for a local outreach
organization. Lund noticed that Jasmin had bruising around her eye, lips, and
nose. Jasmin left the facility and eventually returned to Davenport. At some point,
Jasmin’s mother, Danielle, contacted the National Human Trafficking Resource
Center, which gave the tip to local police detectives.
1 We use Danielle and Jasmin McLain’s first names hereafter for clarity.
2 No. 76575-2-1/3
Using Jasmin’s telephone number, Kent police officer Lovisa Dvorak found
her prostitution advertisements online. Posing undercover as a potential client or
buyer, Detective Brian Lewis contacted the number in the advertisement, and set
up a “date” with Jasmin. A team of undercover officers staked out the Tukwila
hotel where Detective Lewis arranged to meet Jasmin. While Detectives Dvorak
and Lewis went to meet Jasmin in the motel room, the other officers detained
Davenport in the parking lot. The officers obtained a search warrant to search
Davenport’s car. They found just over 20 grams of methamphetamine, a digital
scale, and a gun.
Without knowing her identity or her connection to this case, police
subsequently detained Snow for prostitution loitering on Pacific Highway South.
Snow agreed to go to the police station, where she gave a recorded statement
about Davenport. Because Snow was a victim, police did not charge her with
prostitution loitering.
The State charged Davenport with two counts of first degree promoting
prostitution, one count of first degree unlawful possession of a firearm, one count
of possession with intent to manufacture or deliver methamphetamine, and one
count of second degree assault — domestic violence. The jury found Davenport
guilty as charged. Davenport appeals.
DISCUSSION
Davenport makes five arguments. First, he argues that, in testifying, a
police officer gave an improper opinion on guilt, violating Davenport’s right to a jury
trial. Second, he argues that the evidence was insufficient to prove count 4,
3 No. 76575-2-1/4
promoting prostitution. Third, he argues that the trial court erred in failing to order
a competency evaluation for him. Fourth, he argues that the jury instructions failed
to preserve jury unanimity and permitted a double jeopardy violation. Fifth, he
argues that his dual convictions for assault and promoting prostitution violate
double jeopardy.
I. Opinion Testimony
Davenport argues that Detective Michael Garske gave an improper opinion
by testifying that the idea of consensual prostitution is “‘unicorn land.” At trial,
Davenport objected to Garske’s comment on the grounds that it was improper
opinion testimony. The court overruled his objection and allowed the testimony.
Davenport argues that Garske’s opinion was improper, because (1) it was a
conclusive opinion on the only disputed element of the promoting prostitution
charge and (2) it was beyond his actual expertise.
Before opinion testimony is offered, the trial court must determine
admissibilityofthetestimony. Statev. Quaale, 182 Wn.2d 191, 199, 340 P.3d213
(2014). In making this determination the court will consider the circumstances of
the case, including the following factors: (1) the type of witness involved, (2) the
specific nature of the testimony, (3) the nature of the charges, (4) the type of
defense, and (5) the other evidence before the trier of fact. ki. at 199-200. Opinion
testimony is not objectionable merely because it embraces an ultimate issue that
the jury must decide. ki. at 197; ER 704. Some areas, however, are clearly
inappropriate for opinion testimony in criminal trials, including personal opinions,
particularly expressions of personal belief, as to the defendant’s guilt, the intent of
4 No. 76575-2-1/5
the accused, or the veracity of witnesses. Quaale, 182 Wn.2d at 200.
Impermissible opinion testimony regarding the defendant’s guilt may be reversible
error because such evidence violates the defendant’s constitutional right to a jury
trial, which includes the independent determination of the facts by the jury. j~ at
199.
We review decisions to admit evidence for an abuse of discretion. ki. at
196. The trial court has abused its discretion on an evidentiary ruling if it is contrary
to law. ki. at 196-97. An abuse of discretion exists when a trial court’s exercise of
its discretion is manifestly unreasonable or based on untenable grounds or
reasons. kiat 197.
A. Conclusive Opinion
Davenport likens this case to State v. Montgomery, 163 Wn.2d 577, 183
P.3d 267 (2008). In Montgomery, the court held that the State’s witnesses gave
improper opinions when they testified about the defendants’ intent in purchasing
items used to manufacture methamphetamine. 163 Wn.2d at 594, 587-88. A
detective testified, “‘I felt very strongly that they were, in fact, buying ingredients to
manufacture methamphetamine based on what they had purchased.” j~ at 587-
88. And a chemist, after surveying the purchases of the defendants, testified,
“‘[T}hese are all what lead me toward this pseudoephedrine is possessed with
intent.” ki. at 588.
Davenport argues that, like the opinion testimony in Montgomery, Garske’s
testimony that the idea of consensual prostitution is “unicorn land” foreclosed the
jury’s decision on whether Davenport compelled Snow and Jasmin to engage in
5 No. 76575-2-1/6
prostitution. But, there are key differences. In Montgomery, the witnesses gave
opinions about the intent, and therefore the guilt, of the specific defendants in the
case. Id. at 587-88. While here, Garske did not comment on Davenport’s actions
or give opinions about the parties in the case. In fact, he explicitly said that he did
not review the police reports or transcripts of interviews associated with
Davenport’s investigation. And, Garske’s testimony that the idea of consensual
prostitution is “unicorn land” was a broad viewpoint on the nature of prostitution.
During his testimony, the State asked Garske, “How long did it take you to
get comfortable with the subject matter and a working knowledge of like how the
pimping and prostitution works?” Garske answered,
I think on a surface level where we see it on [television] or read about it our [sic] a YouTube video, that stuff is it’s right out there in the —
public; we all understand that. It’s what happens behind the scenes. It’s the exploitation. It’s the violence. It’s just the nature in where these girls are living on a day-to-day basis where at any given time, they’re [sic] life is in peril; if not, it’s a very abusive environment that they live it [sic], and, if not that, it’s just very dangerous. There isn’t anything safe about the stuff behind the curtain when it comes to prostitution. The argument of it’s consensual sex between two adults, that’s unicorn land. Davenport objected, on the basis of “improper opinion testimony.” The trial
court overruled the objection. The State continued:
Q . . . Can you describe what you mean by, “it’s unicorn land”? A That’s just want [sic] people just want to believe that it is; when, in all actuality, it’s not. The exploitation part of it is always there. The girls do not get up out of bed and say, “I want to be a prostitute today.” The girls do not want to put themselves in the situation that they’ve probably already been in before, which is they’ve been assaulted, robbed, or raped, whether that be by a client or by a pimp; they don’t make that conscious decision without some sort of exploitation.
6 No. 76575-2-1/7
Garske commented that women do not engage in prostitution “without some
sort of exploitation.” This is not the same as testifying that the women associated
with this case were compelled by Davenport to engage in prostitution through the
use of force or threats, the disputed element of Davenport’s promoting prostitution
charge. And, Garske testified that he does not agree with what he feels is a
general perception about prostitution, that it is “consensual sex between two
adults.” Stating that prostitution is not consensual sex is not the same as stating
that all prostitutes are compelled by pimps to engage in prostitution.
B. Witness Expertise
Davenport also argues that Garske’s opinion was improper because it
conveyed an aura of certainty beyond his expertise.
Under ER 702, the court may permit “a witness qualified as an expert” to
provide an opinion regarding “‘scientific, technical, or other specialized
knowledge” if such testimony “will assist the trier of fact.” State v. Yates, 161
Wn.2d 714, 762, 168 P.3d 359 (2007). Practical experience is sufficient to qualify
a witness as an expert. Id. at 765. In Yates, the defendant argued that the trial
court erred in permitting Lynn Everson to testify as an expert on prostitution. ki. at
764. Everson worked for the Spokane Regional Health District and had 13 years
of experience providing outreach services to prostitutes. ~ The court found that
her practical experience qualified her as an expert. ~ at 765.
Likewise in State v. Simon, this court found that a detective involved in
investigating street prostitution for over 6 years, and who had investigated over
400 prostitution related crimes, was qualified to testify as an expert. 64 Wn. App.
7 No. 76575-2-1/8
948, 963-64, 831 P.2d 139 (1991), rev’d in part on other grounds, 120 Wn.2d 196,
840 P.2d 172 (1992). In Simon, the detective testified, “I would have to say that
my experience indicates that there are in fact two separate and distinct
relationships based essentially on the same premises. And that is the pimp’s
psychological manipulation of the prostitute.” j~ at 953.
The detective elaborated on two types of pimps, stating,
“Most prostitutes will encounter a “Soft Mack” before a “Hard Mack.” The “Soft Mack” will be what’s referred to as a boyfriend pimp. It will be somebody who butters her and tells her that she’s real good looking, and we can have our way with the world, babe. Just go out and get us some money. He’s the pimp that will convince her that he is in love with her, and this is their avenue to progress in the world. And then there’s the “Hard Mack.” And generally, when a gal encounters a “Hard Mack,” some[one] who is very forceful and psychologically dominating, they are already in the state of mind where they are amenable to that person’s suggestions or threats, even if the threats aren’t overt; they are in a frame of mind where they are amenable.” ~ (alteration in original).
The examination of the detective continued,
“Q: What sort of personalities do most of the prostitutes have that you have come in contact with? “A: Most of the prostitutes that I have come in contact with have had very little or no self-esteem. They think very poorly of themselves. They are essentially, in their own minds, they are worthless.
“Q: Do most of the prostitutes that you had contact with enjoy being prostitutes? “A: No, they don’t. “Q: Why do they continue doing it?
8 No. 76575-2-1/9
“A: They have no option. “Q: In their mind they have no option? “A: Correct. “Q: In terms of the financial relationship between a pimp and a prostitute, what would be a typical financial relationship? “A: The financial — The standard financial relationship is that the prostitute gives the pimp every penny that she earns. .
“Q: How is it that a pimp manages to keep control of or have access to prostitutes?
“A: Okay. The prostitutes come from the ranks of the runaways. Essentially, by keeping in contact with the people that are on the street looking for something, looking for shelter, looking for something to eat, they will continually be in contact with new faces.
“Q: Well, if a prostitute wants to switch and work for somebody else, are they typically deemed to be free agents, and they can moved around at will? “A: No, they are not. ‘Q: What impediments are there to doing that? “A: Well, a pimp doesn’t want to give up a girl. I mean, for obvious reasons, he gets an income from the girl, and the girl has value to him in that she is a steady source of income. And if she decides that she wants to be with a different pimp, it is the burden of that pimp to go to her former pimp and notify him that she won’t be bringing you money anymore, she’s now bringing her money to me.” Id. at 953-55 (some alterations in original).
This court held that the trial court did not abuse its discretion in admitting
the detective’s testimony, reasoning,
9 No. 76575-2-1/10
Detective Benson’s testimony regarding the pimp/prostitute relationship was helpful to the jury because the average juror would not likely know of the mores of the pimp/prostitute world. . [T]he . .
testimony did not constitute an opinion as to Simon’s guilt. Detective Benson did not testify that Simon did or did not threaten Bartall; rather, Detective Benson testified in general terms about the nature of the pimp/prostitute relationship. Id. at 964.
Here, Davenport argues that, because Garske testified in “absolute terms
about the issue of compulsion,” his testimony went beyond what the courts found
admissible in Yates and Simon. He also contends that Garske’s testimony invaded
the province of the jury because he discredited Snow’s testimony and assured
them that it was “categorically impossible” that she was telling the truth.
Garske testified that, in his 29 years of law enforcement, he has been
involved in over 1,000 investigations involving “pimping and promoting
prostitution.” Garske described his experience interacting with prostitutes, both as
a patrol officer and as a detective. Based on his practical experience, Garske was
qualified to testify as an expert on the relationship between prostitutes and pimps.
Garske explained what he meant by “unicorn land,” stating, “The girls do not want
to put themselves in the situation that they’ve probably already been in before,
which is they’ve been assaulted, robbed, or raped, whether that be by a client or
by a pimp; they don’t make that conscious decision without some sort of
exploitation.” Garske testified generally about the violence and exploitation
prostitutes face, in his experience. His testimony did not go beyond the expertise
gained from his practical experience. And, Garske did not impermissibly discredit
10 No. 76575-2-I/Il
Snow’s testimony because he testified before her, and did not have any knowledge
of what she was going to tell the jury.
The court did not abuse its discretion in allowing the testimony.
II. Sufficiency of Evidence
Davenport asserts that there was insufficient evidence to convict him of one
of the counts of promoting prostitution. He argues that reversal is required,
because the State failed to prove that he compelled Snow to engage in prostitution.
The test for determining the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the defendant guilty beyond a reasonable doubt. State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences
from the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant. j4 The elements of a crime may be established by either
direct or circumstantial evidence, and one type of evidence is no more valuable
than the other. State v. Wilson, 141 Wn. App. 597, 608, 171 P.3d 501 (2007). This
court defers to the jury on credibility determinations, assessing discrepancies in
the trial testimony, and weighing the evidence. ~ Id.
A person commits first degree promoting prostitution when he or she
knowingly advances prostitution by compelling a person by threat or force to
engage in prostitution, or profits from prostitution which results from such threat or
force. RCW 9A.88.070(1)(a).
Davenport argues that the evidence fails to show that he compelled Snow
to engage in prostitution. He contends that (1) she testified that she acted of her
11 No. 76575-2-1112
own free will, (2) the fact that there was abuse does not prove the element of
compulsion, and (3) an officer’s opinion testimony that there is no prostitution that
is not coerced does not establish compulsion here.
Davenport first points to Snow’s testimony as evidence that Davenport did
not compel her to engage in prostitution. On cross-examination counsel asked,
“Do you feel like Mr. Davenport used violence to make you prostitute yourself?”
Snow answered,
No, that has never no, I don’t think that he forced that. I’ll stand by --
that. He’s never force[d] me to hoe [sic], or be a prostitute, or just sell sex for anything ever; that was always my hustle, what I did to make my way. I just left him in charge of the money. But, evidence is not insufficient merely because there is testimony that conflicts
with other evidence. See Wilson, 141 Wn. App. at 608 (appellate court defers to
trier of fact on issues of conflicting testimony and the persuasiveness of the
evidence).
Davenport argues that although the jury might disbelieve Snow’s testimony
that she voluntarily engaged in prostitution, this does not establish that Davenport
compelled her to do so. That is true, but Snow also testified about numerous times
Davenport abused her. She testified that the first time he beat her was on the third
day after they met, stating,
I was sick, I didn’t feel good, and it wasn’t because of drugs or anything else about it; I just had a cold or something being out in rain, and he was trying to buy me soup and stuff. And sometimes I’m not like, you know, I don’t know. I’m now making excuses. I don’t know. We were in the bathroom, and I just remember my head flying into the mirror, and after a while him holding the gun to my head. I just told him to pull the trigger because I’m not afraid
12 No. 76575-2-1/13
to die, just pull it; and then I remember him just walking out, and I picked myself up and put myself back together. Snow testified that Davenport hit her from behind, grabbing her neck, and her head
hitting the mirror. And, later in the first week they met, Snow testified, “[O]ne of my
exes had figured out I was still in Washington, the guy I started there with, and I
was out-of-pocket texting the guy back, and that’s the day he beat the ever-loving
shit out of me.” Snow also explained that by “out-of-pocket” she meant, “Out of
line. I was texting another man, which is disrespeciful because it shows that I
didn’t have respect for my daddy, or pimp, or source.”
Additionally, Snow testified, “I used to get beat up every 30 days, if not
more.” She testified that Davenport beat her for “[e]verything; if he felt I was
breathing wrong. I was getting embarrassed, abused, and left out.” Even after
Snow felt like it was “over” with Davenport they were still in contact every day, and
after Davenport went to jail she continued to give him the money she made from
prostitution. Snow described a time when Davenport told her to assault Jasmin.
Davenport told Snow, “Beat her ass or I’m going to beat your ass.” Although
Snow initially complied, after Davenport began assaulting Jasmin, Snow tried to
guard Jasmin with her body. Snow testified that she “took a lot of the kicks; a
couple of the punches in the head because I know where he aims.”
Davenport argues that this case is different from Simon. In Simon, this court
held that there was sufficient evidence to support the conviction of promoting
prostitution. 64 Wn. App. at 960. There, a witness who engaged in prostitution
“testified that when she suggested leaving, some degree of physical force was
applied by [the defendant].” ki. The court stated that from her testimony, along
13 No. 76575-2-1/14
with testimony from an officer about the “unwritten rules” that govern the
relationship between pimps and prostitutes, the jury could find the defendant guilty
of promoting prostitution by use of threats or force. Id.
Davenport argues that unlike in Simon, here there was no link between
Davenport’s violence and Snow’s decision to engage in prostitution. But, Snow
testified extensively about the abuse in her relationship with Davenport. She
testified about her “codependency” and how she “wanted to be a good woman and
stand up for my man.” She testified that she gave all the money she made to
Davenport. Although Snow never explicitly stated that Davenport used threats or
violence to control her, she testified about leaving Davenport, “I had just got home
-- like I had just run away, and he just brought me back.” The jury could infer from
that testimony that Davenport used threats or force to do so.
This court has recognized that victims of domestic violence often attempt to
placate their abusers in an effort to avoid repeated violence, and often minimize
the degree of violence when discussing it with others. State v. Grant, 83 Wn. App.
98, 107, 920 P.2d 609 (1996). As this court held in Grant, the jury is entitled to
evaluate a witness’s credibility with full knowledge of the dynamics of a relationship
marked by domestic violence and the effect such a relationship has on the victim.
ki. at 108. The evidence included Snow’s extensive testimony about Davenport’s
abuse and the injuries he gave her, and the nature of their relationship. Even
excluding Garske’s testimony about the relationship between pimps and
prostitutes, viewing the evidence in a light most favorable to the State, any rational
14 No. 76575-2-1/15
trier of fact could have found beyond a reasonable doubt that Davenport compelled
Snow to engage in prostitution.
Ill. Comgetency Evaluation
Davenport argues next that the trial court erred in failing to order a
competency evaluation after his counsel raised doubts as to his competency.
The due process clause of the United States Constitution’s Fourteenth
Amendment prohibits the conviction of a person who is not competent to stand
trial. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 861, 16 P.3d 610 (2001).
And, under Washington law, an incompetent person may not be tried, convicted,
or sentenced for committing an offense so long as the incapacity continues. j~ at
862; RCW 10.77.050. “Incompetency” means a person lacks the capacity to
understand the nature of the proceedings against him or to assist in his own
defense as a result of mental disease or defect. RCW 10.77.010(15). Once there
is a reason to doubt a defendant’s competency, the court must follow the
competency statute to determine his or her competency to stand trial. Fleming,
142 Wn.2d at 863. Failure to observe procedures adequate to protect an
accused’s right not to be tried while incompetent to stand trial is a denial of due
process. ki.
The determination of whether a competency examination should be ordered
rests generally within the discretion of the trial court. jç~ The court must make the
threshold determination that there is a reason to doubt competency before a
hearing to determine competency is required. Seattle v. Gordon, 39 Wn. App. 437,
441, 693 P.2d 741 (1985). To determine whether to order a competency
15 No. 76575-2-1/16
evaluation, a trial court may consider the defendant’s appearance, demeanor,
conduct, personal and family history, past behavior, mental and psychiatric reports,
and statements from defense counsel. Fleming, 142 Wn.2d at 863. There must
be a factual basis to support a motion to determine competency. Gordon, 39 Wn.
App. at 441-42. In exercising its discretion in determining the threshold question,
the court should give considerable weight to the attorney’s opinion regarding a
client’s competency and ability to assist in the defense. at 442.
Davenport argues that defense counsel sufficiently raised doubts as to his
competency, requiring the court to order a competency evaluation. Midway
through the State’s case, Davenport’s counsel told the court that he had “concerns
about Mr. Davenport’s ability to effectively assist Counsel; and I’m not certain what
the issue is, but I have a belief that it may be tied to Mr. Davenport’s administrative
segregation status.”
Defense counsel continued,
Mr. Davenport has some very important decisions that he has to make with regard to putting on a defense, and Mr. Davenport appeared to be unable to engage with Counsel about those decisions because he was so focused on his administrative segregation status, that [sic] fact that he is isolated. All he could really talk about was how that has been impacting him. .
Obviously, I’m not a mental health professional. I have not raised competency in this case previously. I will represent to the Court that during the time that Mr. Davenport has been in trial in the courtroom, he’s been able to answer questions for me, we’ve been able to communicate; however, this issue appears to be coming [sic] so pressing for Mr. Davenport that I’m starting to have concerns about Mr. Davenport’s ability to assist Counsel and make decisions that he is going to need to make very soon with regard to the defense that we’re about put [sic] on.
16 No. 76575-2-1/17
When the court inquired whether Davenport was “unable” or “unwilling” to
communicate with counsel, defense counsel responded, “I won’t be able to make
a better record of that. . . because I am not a mental health professional.” Counsel
further stated, “Competency has never been an issue relative to my representation
of Mr. Davenport, and I don’t know that he has a history of mental health illness,
and we’ve never had a concern about competency; but [that’s] what I witnessed
yesterday evening, and Mr. Davenport’s perseveration on his administrative
The trial court stated,
I candidly have observed him in any number of circumstances in front of the jury, as well as with Counsel and in his colloquy with the Court.
Competency is not the question, the difference between right and wrong is not the question; the ability to work with Counsel in terms of ability to speak English, listen, take notes, offer information to Counsel in court suggests strongly that there is not a competency problem, in my view; but I haven’t seen anything, and the declaration or attestation you’re making now is insufficient, as far as I am concerned. Our Supreme Court has recognized that “a defendant must be ‘capable of
rationally assisting his legal counsel in the defense of his cause.” State v. Harris,
114 Wn.2d 419, 428, 789 P.2d 60 (1990) (quoting State v. Wicklund, 96 Wn.2d
798, 800, 638 P.2d 1241 (1982). But, the ability to assist is a “minimal
requirement.” Id. at 429. A defendant who is angry and not fully cooperative with
his counsel is not incompetent to stand trial. See State v. Hicks, 41 Wn. App. 303,
309, 704 P.2d 1206 (1985) (holding that the trial court did not abuse its discretion
17 No. 76575-2-1/18
in denying the competency hearing request, based on the record and a colloquy
with Hicks, even though defense counsel stated that it was “absolutely impossible
to with work with” Hicks.).
Here, when counsel raised the competency concern, the trial court properly
considered its observations of Davenport’s past behavior, as well as statements
from defense counsel. See Fleming, 142 Wn.2d at 863. Counsel stated that he
had not had any competency concerns prior to his visit with Davenport the previous
evening. The trial court remarked that it had seen Davenport communicate
effectively with his counsel “in any number of circumstances.” Davenport’s counsel
did not provide an adequate factual basis to support a competency evaluation.
The trial court did not abuse its discretion in declining to order a competency
evaluation.
IV. Jury Instructions
Davenport contends next that the jury instructions failed to preserve jury
unanimity and permitted a double jeopardy violation.
The instructions to convict Davenport of the promoting prostitution charges,
counts one and four, were identical except count one named Jasmin while count
four named Snow, and they mentioned slightly different time periods. The
instruction for count one stated in part,
To convict the defendant of the crime of promoting prostitution in the first degree, as charged in Count I, each of the following elements of the crime must be proved beyond reasonable doubt: (1) That during the time intervening between February 1, 2016 and June 1,2016, the defendant
18 No. 76575-2-1119
(a) knowingly advanced prostitution by compelling Jasmin McLain by threat or force to engage in prostitution, or (b) knowingly profited from prostitution that was compelled by threat or force; and (2) That any of these acts occurred in the State of Washington. If you find from the evidence that element (2) and either of alternative elements (1) (a) or (1) (b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty as to count I. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (1) (a) or (1) (b) has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.~2~ Davenport argues that the instruction failed to preserve jury unanimity
because there is not a named person in option (1)(b). And, he contends that if the
jury chose to convict on the alternative means of profiting from compelled
prostitution, it could have relied on the same acts for both counts one and four,
violating double jeopardy.
Double jeopardy is violated when a person is convicted multiple times for
the same offense. State v. Barbee, 187 Wn.2d 375, 382, 386 P.3d 729 (2017). A
double jeopardy claim such as this one may be addressed for the first time on
appeal. State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803 (2011). This court
reviews double jeopardy claims de novo. ki. at 661-62.
Even jury instructions that permit a jury to convict a defendant of multiple
counts based on a single act do not necessarily mean that the defendant received
multiple punishments for the same offense. ki. at 663. In reviewing allegations of
2 The to convict instruction for count four was nearly identical, but gave a time period between January 15, 2016 and June 1, 2016 and named Snow in (1)(a).
19 No. 76575-2-1/20
double jeopardy, an appellate court may review the entire record to establish what
was before the court. ki. at 664. There is no double jeopardy violation when the
information, instructions, testimony, and argument clearly demonstrate that the
State was not seeking to impose multiple punishments for the same offense. j4,
In Mutch, the “to convict” instructions for each rape count were nearly
identical, and they all indicated the same time of occurrence of the criminal
conduct. Id. at 662. There was no instruction that each count must be based on
a separate and distinct criminal act. Id. The court held that although the jury
instructions were deficient, it was manifestly apparently from the record that the
jury found the defendant guilty of five separate acts of rape. Id. at 665.
Davenport argues this case is distinguishable from Mutch, because it is not
manifestly apparent from the record that the jury did not rely on the same act for
both counts of promoting prostitution. Mutch is distinguishable, but not for the
reason Davenport claims. While in Mutch the instructions themselves were not
sufficiently distinctive, here the to convict instructions for counts one and four
clearly indicated separate people, Snow and McLain. The instructions also had
slightly different time periods. Further, the State presented evidence in Snow’s
testimony that Davenport compelled and profited from Snow’s prostitution before
he brought in McLain. And, in closing the State made it clear that it charged
Davenport in “Count [one] with promoting prostitution in the first degree and as it
pertains to Jasmin McLain” and in “[c]ount [four], promoting prostitution in the first
degree with respect to Kayla Snow.” The State went on to discuss the evidence
for each count separately.
20 No. 76575-2-1/2 1
Citing State v. Kier, 164 Wn.2d 798, 813, 194 P.3d 212 (2008), Davenport
argues that the State does not avoid a double jeopardy problem by discussing the
counts separately in its closing argument. But, in Kier, the court distinguished that
case, where the State relied ~jjy on the prosecutor’s closing argument, from a
previous case in which “the evidence, jury instructions, and closing argument all
supported the election of a specific criminal act.” 164 Wn.2d at 813. Here, the jury
instructions, the State’s evidence specific to each count, and the closing argument
all made it clear that the State was not seeking multiple offenses for the same
criminal act.
The jury instructions were not erroneous.
V. Double Jeopardy
Finally, Davenport argues that his dual convictions for assault and first
degree promoting prostitution violate double jeopardy.
Double jeopardy claims may be raised for the first time on appeal and are
reviewed de novo. Mutch, 171 Wn.2d at 661. When a single act violates multiple
criminal statutes, double jeopardy prevents multiple punishments if the legislature
did not intend the crimes to be treated as separate offenses. See State v. Calle,
125 Wn.2d 769, 776, 888 P.2d 155 (1995). The merger doctrine is one tool for
determining legislative intent. State v. Wade, 133 Wn. App. 855, 871, 138 P.3d
168 (2006). Under the merger doctrine, when the degree of one offense is raised
by conduct separately criminalized by the legislature, we presume the legislature
intended to punish both offenses through a greater sentence for the greater crime.
State v. Freeman, 153 Wn.2d 765, 772-73, 108 P.3d 753 (2005).
21 No. 76575-2-1/22
Davenport argues that the act of force used to elevate his promoting
prostitution charge to first degree was the same act of force that constituted the
second degree assault. He correctly identifies one of the differences between first
and second degree promoting prostitution—first degree requires proof that the
prostitution was compelled by threat or force, while second degree does not.3
RCW 9A.88.070(1); RCW 9A.88.080(1). Davenport contends that the jury might
have relied on the same incident, in which he assaulted Snow, to convict him of
second degree assault and as the act to elevate count four to first degree
promoting prostitution.
Davenport’s argument fails. To convict on second degree assault, the jury
had to find that “on or about April 15, 2016, the defendant intentionally assaulted
Kayla Snow and thereby recklessly inflicted substantial bodily harm.” That was the
incident in which Snow testified that she had to get stitches after Davenport hit her
in the mouth with his gun for being jealous of Jasmin. The second degree assault
of Snow was not necessary to prove first degree promoting prostitution of Snow
and was not offered to do so. The State identified the basis for the second degree
assault charge to the jury in its closing statement as the time when Davenport hit
Snow because she expressed her jealousy of Jasmin, and referenced her hospital
visit to establish the date. By contrast, the State presented the promoting
~ A person is also guilty of first degree promoting prostitution if he or she knowingly advances prostitution “[b]y compelling a person with a mental incapacity or developmental disability that renders the person incapable of consent to engage in prostitution or profits from prostitution that results from such compulsion.” RCW 9A.88.070(1)(b). This is another difference between first and second degree promoting prostitution.
22 No. 76575-2-1/23
prostitution charge as a continuing course of conduct with evidence of a range of
force and threats throughout the charging period. ~ State v. Gooden, 51 Wn.
App. 615, 618, 754 P.2d 1000 (1988) (promoting prostitution may be charged
either as continuing course of conduct or based on a single incident, and jury
unanimity as to a single specific act is not required). Davenport was not punished
twice for the same offense. Davenport’s convictions did not violate his right against
We affirm.
WE CONCUR:
/ a