State v. Barrington

761 P.2d 632, 52 Wash. App. 478, 1988 Wash. App. LEXIS 540
CourtCourt of Appeals of Washington
DecidedSeptember 26, 1988
Docket19440-2-I
StatusPublished
Cited by30 cases

This text of 761 P.2d 632 (State v. Barrington) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barrington, 761 P.2d 632, 52 Wash. App. 478, 1988 Wash. App. LEXIS 540 (Wash. Ct. App. 1988).

Opinions

Swanson, J.

This appeal challenges Gerald M. Barring-ton's conviction of promoting prostitution in the first degree as charged in count 21 on the grounds that (1) he [479]*479was denied his right to a unanimous jury verdict; (2) the evidence as to his knowledge of the prostitute's age was insufficient to sustain a first degree promoting prostitution conviction; and (3) the court's instruction defining the knowledge element is erroneous.

Count 2 of the amended information charged that Barrington "during a period of time intervening between June 1, 1986 and August 28, 1986, did knowingly advance and profit from prostitution of Kimberly Lott, a person who was less than 18 years old; contrary to RCW 9A.88.070-(l)(b),. . ."

The State's evidence consisted primarily of the testimony of Lott and several police officers. Barrington did not testify or offer any contradictory evidence. Lott described the circumstances surrounding her first meeting with Barring-ton in early June of 1986 in downtown Seattle and thereafter on Aurora Avenue. She testified that their association began that evening when he picked her up, took her home and she turned her money over to him. She described her association with the appellant as essentially a business relationship in which she committed acts of prostitution and gave the proceeds received from such activity to the defendant. She testified that she worked for him virtually every day and earned $300 to $400 a day. He took all of her earnings, provided her transportation and lodging when needed, directed her activity and gave her money for expenses. It was only when Barrington "beat her up" in August of 1986 that she went to the police and their relationship terminated.

Because Lott testified to many acts of prostitution which took place over a period of months and also described in some detail Barrington's actions in promoting and benefiting from her prostitution, appellant contends that a jury could disagree as to which acts constituted the crime charged. Therefore, appellant argues that an instruction on jury unanimity should have been given.

[480]*480Even though the appellant did not request such an instruction, the State concedes that it is an issue of constitutional magnitude that may be raised for the first time on appeal. Brief of Respondent, at 5.

In State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), a case upon which the appellant relies for its unanimity instruction argument, the defendant was accused of molesting his 13-year-old granddaughter. He was charged with one count of statutory rape and one count of indecent liberties. She testified to various incidents of abuse occurring over a 21-month period including sexual intercourse. She also discussed four separate episodes which occurred during one summer. The defense moved to compel an election which was denied on the basis that only one continuing offense had been charged. The jury returned a general verdict of guilty. The Supreme Court reversed and held that

When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected.

Petrich, at 572.

To ensure a unanimous verdict, the court said the State may elect which act it relies upon for conviction or the jury must be instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt. Petrich, at 572.

However, the court recognized that

[ujnder appropriate facts, a continuing course of conduct may form the basis of one charge in an information. But "one continuing offense" must be distinguished from "several distinct acts," each of which could be the basis for a criminal charge. See United States v. Berardi, 675 F.2d 894 (7th Cir. 1982); People v. Mota, [115 Cal. App. 3d 227, 171 Cal. Rptr. 212 (1981)]. To determine whether one continuing offense may be charged, the facts must be evaluated in a commonsense manner.

Petrich, at 571.

In State v. Gooden, 51 Wn. App. 615, 754 P.2d 1000, [481]*481review denied, 111 Wn.2d 1012 (1988), a promoting prostitution case recently decided by this court and remarkably similar to the instant case, we held that " [promoting prostitution is a continuing course of conduct which falls within the Petrich exception." Gooden, at 620.

The defendant's course of conduct here is virtually undistinguishable from that described in Gooden. In the instant case Barrington used Lott as the defendant in Gooden used W and V to promote an enterprise with a single objective—to make money. Gooden also points out the differences between the child molesting in Petrich involving numerous acts of criminal conduct with the same child victim wherein each incident could support the charge and the ongoing enterprise of promoting prostitution.

Further, the evidence presented primarily by Lott in the instant case described the nature of their business relationship and the part they both played in the enterprise. The incidents of prostitution Lott discussed were primarily illustrative of the nature of the enterprise rather than solely descriptive of separate distinct acts or transactions between Lott and Barrington which, if believed, would prove the crime charged. That is not to say that a promoting prostitution charge could not consist of several distinct transactions occurring as did the sexual abuse incidents in Petrich, "in a separate time frame and identifying place." Petrich, at 571. See State v. Song, 50 Wn. App. 325, 748 P.2d 273 (1988) (promotion of prostitution charges involving different prostitutes at different times may constitute multiple crimes, at least for sentencing purposes).

Barrington was charged with violating RCW 9A.88.070-(l)(b) which states:

(1) A person is guilty of promoting prostitution in the first degree if he knowingly:
(b) Advances or profits from prostitution of a person less than eighteen years old.

The jury was instructed in the language of RCW 9A.88-.060(1) and (2) that

[482]

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Bluebook (online)
761 P.2d 632, 52 Wash. App. 478, 1988 Wash. App. LEXIS 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barrington-washctapp-1988.