State v. Payne

69 P.3d 889
CourtCourt of Appeals of Washington
DecidedMay 28, 2003
Docket27254-7-II
StatusPublished
Cited by36 cases

This text of 69 P.3d 889 (State v. Payne) 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. Payne, 69 P.3d 889 (Wash. Ct. App. 2003).

Opinion

69 P.3d 889 (2003)
117 Wash.App. 99

STATE of Washington, Respondent/Cross Appellant,
v.
Jeffrey B. PAYNE, Appellant/Cross Respondent.

No. 27254-7-II.

Court of Appeals of Washington, Division 2.

May 28, 2003.

*891 Joanne E. Dantonio, Stenberg Law Office, Tacoma, WA, for Appellant.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.

*890 PART PUBLISHED OPINION

ARMSTRONG, J.

Jeffrey Payne appeals his first degree child molestation conviction and life sentence as a persistent offender. He argues that the sentencing judge improperly counted a Canadian conviction as one strike, considering it comparable to Washington's first degree child molestation. Payne also claims a number of trial court errors, including that (1) the court erred in admitting his statement to the police and admitting the victim's hearsay statements, (2) the prosecutor committed misconduct, (3) his counsel was ineffective, (4) the evidence was insufficient to support the verdict, and (5) the court lacked jurisdiction because the State failed to prove that the crime occurred in Washington. The State cross appeals, arguing that the trial judge should have considered Payne's Canadian conviction record in sentencing.

The State concedes that under a recent Supreme Court decision, the court erred in considering the Canadian conviction as a strike. Accordingly, we vacate the sentence and remand for resentencing. Otherwise, we find no error and affirm.

FACTS

Jeffrey Payne babysat his girlfriend Jennifer Simon's daughter, C.A.S., for a weekend. Eight-year-old C.A.S. awoke to Payne touching her between her legs under her panties. Payne said he would give her five dollars not to tell anyone and that he would kill her if she did tell. A few days later, when Payne was helping Jennifer's sister, Rachael Simon-Cole, move, Simon-Cole saw Payne leaning over her daughter, C.D.C., with a screwdriver in his hand, touching her labia. When confronted, Payne claimed that she jumped on his back and scratched herself on a screwdriver in his back pocket.

The State charged Payne with molesting the two girls. The jury convicted him of first degree child molestation against C.A.S., but it acquitted him as to C.D.C. The trial judge found that one of Payne's Canadian convictions was comparable to Washington's child molestation statute and sentenced him to life imprisonment without the possibility of parole *892 under the two-strike provision of Washington's Persistent Offender Accountability Act (POAA).

Payne contends that the trial court should have suppressed statements he made to police after he invoked his right to remain silent. He also argues prosecutorial misconduct, ineffective assistance of counsel, improper admission of child hearsay, insufficient evidence to support the verdict, and lack of jurisdiction.

In its cross appeal, the State argues that the trial court erred in refusing to consider Payne's Canadian conviction record for purposes of either a three-strike life sentence or an exceptional sentence.

ANALYSIS

I. Sentencing Issues

A. Out-of-State Convictions and POAA

Payne argues that his current conviction for first degree child molestation is not a second strike for purposes of the Persistent Offender Accountability Act (POAA). Former RCW 9.94A.030(29)(b) (2000). Payne was twice convicted under Canadian law for sexual assault. The Supreme Court has recently held that the POAA for sex offenders (two strikes) does not include prior convictions that are not specifically listed in the statute. State v. Delgado, 148 Wash.2d 723, 63 P.3d 792 (2003). Since Payne's Canadian sexual assaults are not specifically listed in the two-strike statute, the State concedes that his current sentence cannot stand. We agree and, accordingly, vacate the sentence and remand for resentencing.

B. State's Cross Appeal

The State argues that the trial court erred when it refused to consider Payne's Canadian criminal history either for purposes of the three-strike statute,[1] former RCW 9.94A.030(29)(a), or as a basis for an exceptional sentence. The State also urges us to find that on remand, the trial court can give Payne an exceptional sentence based on future dangerousness, vulnerable victim, and abuse of trust. Although the State argued before the trial court for an exceptional sentence based on these factors, it does not discuss in briefing before us future dangerousness, vulnerable victim, or abuse of trust. Accordingly, we discuss only whether the trial court properly excluded Payne's Canadian criminal history. State v. Johnson, 119 Wash.2d 167, 170, 829 P.2d 1082 (1992).

1. Admissibility of Documents on Payne's Canadian Conviction No. 40354C3

The trial judge used Payne's Canadian Conviction No. 40354C3, sexual assault, as one strike under the two-strike statute. Although the State concedes that the conviction can not be counted under the two-strike statute, it correctly contends that the trial court can consider the conviction on remand under the three-strike statute or as an unscored offense that would support an exceptional sentence. Payne argues that the trial court should not have considered the conviction because the State did not lay a proper foundation.

The State must prove the defendant's criminal history by a preponderance of the evidence. RCW 9.94A.500(1). While the best evidence of a prior conviction is a certified copy of the judgment, the State may also introduce "other comparable documents of record or transcripts of prior proceedings." State v. Ford, 137 Wash.2d 472, 480, 973 P.2d 452 (1999). A court may consider a foreign indictment and information, but it should be aware that facts and allegations in the foreign record that do not directly relate to the elements of the charged offense may be unreliable. State v. Morley, 134 Wash.2d 588, 606, 952 P.2d 167 (1998).

Although the State's burden is easily met, it must at least introduce "evidence of some kind to support the alleged criminal history." Ford, 137 Wash.2d at 480, 973 P.2d 452. The facts on which the trial court relies at sentencing must have some basis in the *893 record. Ford, 137 Wash.2d at 482, 973 P.2d 452.

On Conviction No. 40354C3, the State introduced evidence of: the warrant, information, and sentence; the transcript of Payne's plea and submissions; and the warrant of committal. Only the transcript contains information about the facts underlying the conviction. Payne contends that the transcript is inadmissible because it was not certified. The State concedes that Payne challenged all of his prior Canadian convictions in the trial court.

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Bluebook (online)
69 P.3d 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-payne-washctapp-2003.