State Of Washington, V. P. L-q.

• Court: Court of Appeals of Washington
• Decided: April 4, 2022
• Docket: 82113-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 82113-0-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) P. L.-Q., ) ) Appellant. ) )

HAZELRIGG, J. — P.L.-Q. was found guilty of rape in the second degree after

a bench trial. L.-Q. appeals, challenging several findings of fact and conclusions

of law by the trial court and asserting error in its conclusion that the rape was

committed by forcible compulsion and also while the victim was unable to consent

due to mental incapacity. Because the Order on Disposition is inconsistent with

the manner by which the State charged the case, we are unable to engage in the

review L.-Q. now seeks. Accordingly, we remand for the trial court to clarify its

ruling and, if necessary, to correct the Order on Disposition consistent with that

clarification.

FACTS

L.-Q. was originally charged with one count of rape in the second degree by

forcible compulsion. Prior to trial, the State moved to amend the information,

adding a second count of rape in the second degree based on an allegation that

Citations and pinpoint citations are based on the Westlaw online version of the cited material. No. 82113-0-I/2

the victim was unable to consent due to intoxication. Both counts were based on

the same act.

Following the bench trial, the court found L.-Q. guilty of rape in the second

degree as to count one, but the Order on Disposition notes that the conviction was

under both means alleged by the State and cites the relevant subsections of the

rape statute. The record on appeal is silent as to the disposition of count two,

which was added by means of the amended information.

L.-Q. timely appealed his conviction, challenging some of the court’s

findings of fact and conclusions of law after the bench trial, but primarily focusing

on his claim that there was insufficient evidence to support rape by forcible

compulsion or rape where the victim was incapable of consent due to incapacity.

The parties twice supplemented the record as to the amended information and L.-

Q.’s arraignment on the amended charging document at the direction of this panel.

ANALYSIS

L.-Q. assigns error as to his conviction under two alternative means for the

allegation of rape in the second degree contained in count one of the amended

information. However, this case did not involve alternative means. By its amended

information, the State brought two separate counts of rape in the second degree;

the first alleging rape by forcible compulsion and the second alleging that the victim

was incapable of consent based on intoxication. By the State’s own admission,

both counts arose from a single set of facts. The trial court only convicted L.-Q. of

count one, which was exclusively charged as rape in the second degree by forcible

compulsion. However, the Order on Disposition issued after the bench trial

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explicitly states that the court convicted L.-Q. on: “Count I: Rape in the Second

Degree (Forcible Compulsion and Unable to Consent) (alternative prongs),

pursuant to RCW 9A.44.050(1)(a) and 9A.44.050(1)(b).”

This appears to be a scrivener’s error as the disposition does not conform

to the charging document. The record demonstrates that the State was seeking

to proceed on a theory of alternative means when it filed the amended information,

but also acknowledged that its method was faulty, stating “I’m not sure if that’s

necessarily the easiest or most intuitive way to do that.” After assuring the court

that it was not “trying to double-charge or anything like that,” the court responded

“I understand them to be alternate prongs for effectively the same or related

conduct, but we’ll deal with that in more detail when we get to trial.” However, the

report of proceedings does not indicate that the issue was ever readdressed by

the parties or the court. We recognize that “[p]rosecuting attorneys are vested with

great discretion in determining how and when to file criminal charges.” State v.

Korum, 157 Wn.2d 614, 625, 141 P.3d 13 (2006). We further understand that the

court could not convict on both counts presented by the State without implicating

double jeopardy concerns. Further complicating the procedural aspects of this

case, the record does not indicate any disposition as to the second count which

was added by the amended information.

“When reviewing a claim of insufficiency of the evidence, this court looks to

whether, when viewing the evidence in the light most favorable to the State, a

reasonable trier of fact could have found the defendant guilty beyond a reasonable

doubt.” State v. Cook, 17 Wn. App. 2d 96, 110–11, 484 P.3d 13 (2021). In doing

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so, we engage in sufficiency review by considering the evidence adduced at trial

as applied to the essential elements of the crime which the State was required to

prove beyond a reasonable doubt. Because sufficiency review necessarily rests

upon the elements of the crime as alleged by the State and because the only

conviction in this case goes to count one, and appears to treat it as an alternate

means crime despite the fact that the State did not charge in that manner, we

cannot properly engage in the review L.-Q.’s appeal requires. As such, we remand

for the trial court to clarify its ruling, and resolve any scrivener’s errors in the Order

on Disposition consistent with that clarification, before this court can properly

engage in a sufficiency review.

This court will retain jurisdiction over the appeal. Clarification by the trial

court, and any corrections consistent with that clarification, shall be transmitted to

the clerk of this court. The panel will determine whether additional briefing is

necessary.

Remanded.

WE CONCUR:

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