STATE v. BRUNDAGE (2005)

PART PUBLISHED OPINION

¶ 1 A jury convicted James Brundage of multiple crimes stemming from an attack on his wife, D.E.B. He appeals, arguing numerous trial court errors.   In supplemental briefing, he also claims that his exceptional sentences violate the Sixth Amendment under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).   We affirm.

Facts

¶ 2 Brundage and D.E.B. met and began dating in 1992.   They married in August 1999.   During their relationship, they had two children.

¶ 3 Due to marital difficulties, D.E.B. left the couple's home in September 2002.   D.E.B. left some possessions at the house, including a rented washer and dryer.   She and Brundage arranged to remove the appliances on October 18, 2002.   When D.E.B. arrived, she exited her car and left her then two-year-old daughter, Sadie, in a car seat.

¶ 4 D.E.B. entered the basement to move boxes into a storage area in the garage.   When she went into the storage room, Brundage followed, shutting the door.   She told him to let her out, to which he responded, “ ‘I just want to talk to you.’ ” I Report of Proceedings (RP) at 53.

¶ 5 D.E.B. walked to the door, but the doorknob had been removed and she could not exit.   After Brundage tried to restrain her from leaving, she grabbed a board and Brundage grabbed a pipe.   Both eventually dropped the objects.

¶ 6 Brundage became very angry, pushed D.E.B. to the ground, and held her there by pressing her shoulders down.   He then raped her vaginally and anally.

¶ 7 Afterward, Brundage placed D.E.B.'s hands behind her back and handcuffed them to a post.   He tied her feet with rope and placed silver tape around her mouth and head.   While binding her, he apologized.

¶ 8 Brundage then left and returned with Sadie and a bag of pills.   He told D.E.B. that if she took the pills, she would fall asleep, he would leave, and Sadie would be there when D.E.B. awoke.   If she refused, he would not let her go.   D.E.B. swallowed the pills.

¶ 9 D.E.B. awoke in a car trunk.   Brundage stopped the car at an abandoned cabin-style motel.   He led her into the back of a cabin, where two mattresses were on the floor.   She saw a silver Rueger firearm and a case.   She knew that Brundage kept his shotgun in the case.   She feared that he would use one of the weapons on her.

¶ 10 D.E.B. asked about Sadie.   Brundage told her that Sadie was “safe.”   I RP at 80.   When D.E.B. asked Brundage why he had done this, he responded that he wanted to spend one more night together.

¶ 11 During the following 24 hours, Brundage raped D.E.B. three more times.   In between the rapes, he talked about his need to “get away” and said, “ ‘Maybe I should go to Mexico.’ ” I RP at 90.   At one point, he pointed a gun at his chest.   He placed D.E.B.'s hands on the gun, telling her to shoot him.   She did not pull the trigger.¹  Brundage eventually unbound D.E.B. and left.   She escaped and reported the crimes to the police.   Brundage later turned himself in to authorities.

¶ 12 By sixth amended information, the State charged Brundage with the following:  (1) one count of first degree rape with deadly weapon and domestic violence special allegations;  three counts of first degree rape with firearm and domestic violence special allegations;  (2) three counts of first degree rape with firearm and domestic violence special allegations;  (3) one count of first degree rape;  (4) one count of first degree kidnapping with firearm, domestic violence, and sexual motivation special allegations;  (5) two counts of first degree unlawful possession of a firearm;  (6) seven counts of violation of a court order with domestic violence special allegations;  and (7) one count of first degree child molestation.²

¶ 13 A jury convicted Brundage of 11 counts:  (1) second degree rape with a domestic violence special allegation (count I), (2) first degree rape with firearm and domestic violence special allegations (count II), (3) second degree kidnapping with firearm and domestic violence special allegations (count V) ³ (4) unlawful possession of a firearm (count VI), and (5) seven counts of violating a court order with domestic violence special allegations (counts VIII-XIV).

¶ 14 The trial court imposed a minimum and maximum sentence under RCW 9.94A.712. For the first and second degree rape charges, Brundage's offender score was 12.⁴  On the first degree rape count, his initial standard range was 240 to 318 months.⁵  As a result of the firearm and domestic violence enhancements, it became 300 to 378 months.   For the second degree rape, his standard range was 210 to 280 months.⁶  The statutory maximum term for both rape charges was life imprisonment.

¶ 15 The trial court imposed exceptional minimum sentences of 400 months on count I and 498 months on count II. In its written findings and conclusions, it stated that the exceptional sentences were justified because (1) the presumptive sentence was “clearly too lenient” under the multiple offense policy;  (2) Brundage's conduct manifested “deliberate cruelty” to the victim;  and (3) the current offenses involved domestic violence and (a) were part of an ongoing pattern of physical, psychological, or sexual abuse manifested by multiple incidents over a prolonged period of time, (b) occurred within the sight or sound of Brundage's and the victim's minor child, and (c) Brundage's conduct manifested “deliberate cruelty” or intimidation of the victim.   Clerk's Papers (CP) at 614-15.   The trial court expressly stated that it would impose the same sentence even if only one of the grounds listed were valid.   Finally, the trial court imposed the statutory maximum sentence of life.

¶ 16 Brundage appeals on multiple grounds.⁷

Analysis

Exceptional Sentence

 ¶ 17 Brundage contends that his exceptional minimum sentences must be vacated in light of Blakely.   As we recently held in State v. Borboa, 124 Wash.App. 779, 102 P.3d 183, 187 (2004), an exceptional minimum sentence imposed under RCW 9.94A.712 is subject to Blakely.   Nevertheless, we affirm under the “free crimes” doctrine.

Overview of RCW 9.94A.712

¶ 18 RCW 9.94A.712 ⁸ governs the sentencing of certain nonpersistent offenders, including those who commit first and second degree rape.  RCW 9.94A.712(1)(a)(i)

¶ 19 If the defendant is subject to sentencing under this statute, the trial court shall impose both a minimum and maximum sentence.  RCW 9.94A.712(3).   The maximum sentence is the statutory maximum sentence for the offense.  RCW 9.94A.712(3).   When imposing a minimum term, the court may impose either a standard range sentence or an exceptional sentence under RCW 9.94A.535.⁹ RCW 9.94A.712(3).

At the expiration of the standard range or exceptional minimum term, the Indeterminate Sentence Review Board (the Board) conducts a hearing.   RCW 9.95.420(3)(a).   The offender shall be released, subject to the Board's conditions, “unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit sex offenses if released.”  RCW 9.95.420(3)(a).   If the Board does not release the offender, it establishes a new minimum term, not to exceed two years. RCW 9.95.420(3)(a).

¶ 21 We recently summarized the features of RCW 9.94A.712 in Borboa:

First, it requires the sentencing court to set a minimum term that may be standard or exceptional.   Second, it permits the Indeterminate Sentence Review Board to set a second minimum term which, if imposed, takes effect at the end of the court's minimum term.   Third, it requires the sentencing court to set a maximum term that equals the statutory maximum sentence.   The defendant must serve each minimum term that is imposed, but he need not serve the maximum term unless the minimum terms happen to equal it.   Instead of being a sentence that the defendant must actually serve, the maximum term is merely a limitation on the combined total of the court's and the Board's minimum terms.   Indeed, it is a limitation that simply reiterates in the context of RCW 9.94A.712 what is already in the statutes elsewhere:  that in general neither the court nor the Board shall maintain jurisdiction over the defendant for more than life if the crime is a Class A felony, for more than ten years if the crime is a Class B felony, or for more than five years if the crime is a Class C felony.

102 P.3d at 185 (citing RCW 9A.20.010-.020).

¶ 22 Against this background, we consider the application of Blakely to Washington's determinate-plus sentencing scheme.

Application of Blakely

¶ 23 Brundage argues that the trial court imposed his exceptional minimum sentences based on facts not submitted to the jury and, thus, the sentences must be vacated under Blakely.¹⁰  The State counters that Blakely does not apply because “the exceptional term of [Brundage's] sentence did not increase the statutory maximum for his offense, which was and remained life imprisonment.” ¹¹  Respondent's Supp. Br. at 4.

¶ 24 In Borboa, we held that the trial court's imposition of an exceptional minimum sentence under RCW 9.94A.712, based on facts it found by a preponderance of the evidence, was unconstitutional under Blakely.   Borboa, 102 P.3d at 187;  but see State v. Clarke, 124 Wash.App. 893, 103 P.3d 262, 266 (2004) (filed a few weeks after Borboa, this Division One case held that the imposition of an exceptional minimum sentence under RCW 9.94A.712 does not violate the Sixth Amendment).   Therefore, unless the trial court based the exceptional minimum sentences on an aggravating factor valid under Blakely, these sentences are unconstitutional.

Free Crimes Doctrine

¶ 25 We next examine whether any of the trial court's stated aggravating factors support the exceptional sentences.¹²  The State urges us to apply the “free crimes” doctrine as an aggravator not affected by the Blakely decision.   In response, Brundage claims that his standard range sentence of 300 to 378 months punished him for all three current offenses.   We agree with the State.

 ¶ 26 As we recently held in State v. Van Buren, a trial court's imposition of an exceptional sentence under the “free crimes” doctrine does not violate the Sixth Amendment:

“Free crime” analysis is a function of determining the defendant's offender score from the record of his prior and current criminal convictions.   It does not require weighing evidence, determining credibility, or making a finding of disputed facts.   Thus, it is not affected by the Blakely requirement that factual issues used to impose an exceptional sentence must be pleaded and proved to a jury beyond a reasonable doubt.

123 Wash.App. 634, 653, 98 P.3d 1235 (2004) (footnote and emphasis omitted);  see also State v. Alkire, 124 Wash.App. 169, 176, 100 P.3d 837(2004) (Division One opinion holding that when defendant had offender scores of 20 and 21, his “exceptional sentence fell squarely within the narrow exception for prior convictions recognized by Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ] and Blakely ”).

 ¶ 27 As authorized by statute, the trial court imposed an exceptional sentence based on Brundage's extensive criminal history and the existence of his current convictions.   These bases remain valid under Blakely.   Thus, we turn to whether the trial court erred when it applied the “free crimes” doctrine.

¶ 28 The trial court may impose a sentence outside the standard range only if there are “substantial and compelling reasons justifying an exceptional sentence.”  RCW 9.94A.535. The legislature created a nonexclusive list of illustrative factors that support an exceptional sentence.  RCW 9.94A.535. One such aggravating circumstance exists if “[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.” RCW 9.94A.535(2)(i).

¶ 29 Division One recently summarized the function and purpose of the multiple offense policy:

If a defendant commits multiple offenses and those are sentenced together, they are counted as current offenses, and the offender score calculation for each crime includes the others, thereby increasing the offender score and, in consequence, increasing the standard sentence range for each current offense.   Recognizing this, the standard range contemplates that sentences for current offenses will be served concurrently, with the offender score serving as the vehicle for ensuring accountability on each offense.   This scheme is known as the multiple offense policy.   Its purpose is “to limit the consequences of multiple convictions stemming from a single act.”

Alkire, 124 Wash.App. at 173, 100 P.3d 837 (footnotes omitted) (quoting State v. Borg, 145 Wash.2d 329, 337, 36 P.3d 546(2001)).

 ¶ 30 Given the purpose of the multiple offense policy, a standard range sentence is not “clearly too lenient” simply because the defendant has an offender score greater than 9. State v. Stephens, 116 Wash.2d 238, 246, 803 P.2d 319(1991).   Instead, the trial court may impose an exceptional sentence when “some extraordinarily serious harm or culpability resulting from multiple offenses ․ would not otherwise be accounted for in determining the presumptive sentencing range.”  State v. Fisher, 108 Wash.2d 419, 428, 739 P.2d 683 (1987).  “This inquiry is automatically satisfied whenever ‘the defendant's high offender score is combined with multiple current offenses so that a standard sentence would result in ‘free’ crimes-crimes for which there is no additional penalty.' ” State v. Smith, 123 Wash.2d 51, 56, 864 P.2d 1371(1993) (quoting Stephens, 116 Wash.2d at 243, 803 P.2d 319).

¶ 31 Under the “free crimes” doctrine, then, a trial court may impose an exceptional sentence where a defendant's current crimes would go unpunished through the imposition of a standard range sentence.  Van Buren, 123 Wash.App. at 653, 98 P.3d 1235.

¶ 32 Here, on the first degree rape conviction, Brundage's prior offenses resulted in 8 offender score points.  RCW 9.94A.525 (governing calculation of offender score).   The current unlawful possession of a firearm conviction added 1 point to his offender score, for a total of 9. RCW 9.94A.525. With an offender score of 9, Brundage's standard range was 240 to 318 months.   RCW 9.94A.510. But with the second degree rape conviction, his offender score increased to 12.  RCW 9.94A.525. Because the sentencing grid ends at 9, Brundage's standard range remained 240 to 318 months.   Thus, if the trial court had imposed a standard range sentence, the second degree rape conviction would have gone unpunished.   Only through an exceptional sentence could the trial court ensure that Brundage did not receive a “free crime.” ¹³

 ¶ 33 Given the trial court's proper application of the “free crimes” doctrine, we examine Brundage's exceptional sentence.   We review the imposition of an exceptional sentence under RCW 9.94A.585. State v. Ferguson, 142 Wash.2d 631, 646, 15 P.3d 1271(2001) (citing RCW 9.94A.210, which was later recodified as RCW 9.94A.585).   On review, we determine first whether substantial evidence supports the trial court's reasons under the clearly erroneous standard of review.¹⁴  Van Buren, 123 Wash.App. at 653, 98 P.3d 1235.   Then we ask, de novo, whether those reasons justify a departure from the standard range.  State v. Smith, 124 Wash.App. 417, 102 P.3d 158, 167(2004).   Finally, we examine whether the trial court abused its discretion in imposing a sentence that is clearly too lenient or excessive.  Smith, 102 P.3d at 167.  “When the court identifies ‘more than one justification for an exceptional sentence and each ground is an independent justification, we may affirm the sentence if one of the grounds is valid.’ ” Smith, 102 P.3d at 167 (affirming downward exceptional sentence) (quoting State v. Zatkovich, 113 Wash.App. 70, 78, 52 P.3d 36 (2002)).

 ¶ 34 Here, the trial court properly imposed exceptional sentences.   Under the clearly erroneous standard, substantial evidence supports one of the trial court's reasons.   It identified three aggravating factors:  (1) deliberate cruelty, (2) domestic violence, and (3) the standard range sentence was clearly too lenient under the multiple offense policy.   Whether Brundage manifested deliberate cruelty and engaged in domestic violence are questions of fact.   Accordingly, those grounds require a jury determination and are not valid under Blakely.   But the court explicitly noted that it would “impose the exact same sentence even if only one of the grounds listed ․ were [sic] valid.”   CP at 615.

¶ 35 As noted above, a jury need not determine a defendant's criminal history, calculate his offender score, or make a “free crimes” determination under Blakely.  Van Buren, 123 Wash.App. at 654, 98 P.3d 1235.   Here, Brundage affirmatively agreed to his offender score of 12 on the first and second degree rape convictions.   Further, the record supports a finding that current offenses would go unpunished if the trial court had not imposed an exceptional sentence.   Under the clearly erroneous standard of review, then, substantial evidence supports the trial court's reason, namely, the “free crimes” doctrine, for imposing exceptional sentences.

¶ 36 Reviewed de novo, the trial court's reasons justify a departure from the standard range.   Unless the court imposed an exceptional sentence, Brundage would receive a “free” rape conviction, for which he would receive no punishment.   This result is inconsistent with the legislature's stated purpose to “[e]nsure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender's criminal history.”  RCW 9.94A.010(1).   Accordingly, the trial court's imposition of an exceptional sentence was justified under the “free crimes” doctrine.

¶ 37 Finally, the trial court did not abuse its discretion when it imposed exceptional sentences of 498 months for first degree rape (count II) and 400 months for second degree rape (count I), to run concurrently.   Brundage's total minimum confinement is 498 months, 120 months above the top of his standard range.¹⁵  RCW 9.94A.510. This exceptional sentence reflects his extensive criminal history and the fact of both rape convictions.   Without the additional time, his second degree rape conviction would go unpunished, an unjust result.   As such, the trial court acted within its discretion.

¶ 38 We affirm the exceptional sentences.

¶ 39 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Additional Facts

¶ 40 The remainder of our analysis requires setting forth additional facts and procedural history.

ER 404(b) Evidence

¶ 41 In pretrial motions, the State sought to admit evidence of Brundage's prior rapes.   In its offer of proof, the State claimed that the evidence was admissible under ER 404(b) to establish a common scheme or plan and motive.   Further, it argued that this evidence was relevant to rebut a defense, namely, consensual sex.

¶ 42 The State presented evidence of five prior rapes.16

1985 Rape of T.A.S.

¶ 43 Brundage and T.A.S. dated in the fall of 1985, when both were juveniles.   Due to his jealous behavior, T.A.S. ended the relationship in December 1985.   Brundage grew upset.   While threatening to commit suicide, he pulled out a pellet gun and put it to his head.   T.A.S. tried to grab the gun, but it went off.   Brundage was taken to Harborview Medical Center where he was treated and released.

¶ 44 About two weeks after his suicide attempt, Brundage invited T.A.S. to the movies as “friends.”   CP at 132.   Both rode their bicycles to the movie theater.   On the way, Brundage told T.A.S. that he needed to stop at a friend's house.   He began riding down a path through the woods and T.A.S. followed.

¶ 45 In the woods, Brundage stopped riding.   When T.A.S. approached, he knocked her to the ground and sat on her.   He began choking her, telling her that he was going to kill her so that he “ ‘didn't have to worry about [her] anymore.’  ” CP at 133.   He also stated that he planned to commit suicide after killing her.   He pulled a large knife out of his jacket, saying that he was going to kill her.   He then stuck the knife in the ground and removed T.A.S.'s pants.   She resisted, but he threatened harm, so she stopped.   Brundage then raped T.A.S. twice.

¶ 46 After the sexual assault, Brundage again sat on T.A.S.'s midsection.   He explained why he wanted to kill her.   She convinced him that they should go home, where they could talk reasonably.   He agreed.

¶ 47 When they arrived at Brundage's house, they went into his bedroom. He pushed her onto the bed and again pulled out the knife.   Through her shirt, he struck her below the breast, causing a light scratch.   He put down the knife and started choking T.A.S. When Brundage released her, she went home and told her parents what had occurred.

¶ 48 The State later charged Brundage as a juvenile with second degree assault and third degree rape.   The trial court found Brundage guilty as charged.

1990 Rape of J.L.C.

¶ 49 J.L.C. and Brundage dated for about two months.   After Brundage became jealous, J.L.C. ended the relationship.   But the two continued their friendship.

¶ 50 While at J.L.C.'s house, Brundage read J.L.C.'s diary and learned that she had started a new relationship.   Sitting on J.L.C., he then repeatedly asked if they could have sex and she refused.   J.L.C. threatened to call the police, to which he responded, “ ‘I'll give you something to call the police about.’  ” CP at 86.   A struggle ensued, during which Brundage punched her and vaginally raped her.   As J.L.C. cried and told him “no,” Brundage stated that “if she didn't shut up he was going to shut her up with the gun.”   CP at 86.

¶ 51 After the rape, Brundage asked to see J.L.C.'s side, where he had hit her.   She refused.   He then found a gun belonging to J.L.C.'s father.   Holding the gun to his side, he said “ ‘I'm sorry, I'm sorry, [J.], I didn't mean to.’  ” CP at 86.   He then said “ ‘goodbye’ ” and shot himself.   CP at 86.   He later recovered from his wounds.

2002 Rape of A.L.R.

¶ 52 A.L.R. walked down a Bremerton street, crying.   A stranger, later identified as Brundage, pulled up beside her and asked if she was all right.   She told him that she had been crying because she had just broken up with a boyfriend and because she was hungry.   Brundage told her to get into his car and said he would take her to get food.   He then drove out of Bremerton into Port Orchard.   When A.L.R. asked where he was going, he said that he needed to get money from his mother's house.   He parked his car at an abandoned cabin style motel.17

¶ 53 A.L.R. became frightened and tried to leave the car.   Brundage grabbed her arm, telling her that he had a gun under the seat but that he would not hurt her if she cooperated.   He then raped her vaginally and anally.

2002 Rape of S.L.B.

¶ 54 In the summer of 2002, S.L.B., a prostitute, reported to police that she had been raped after a man took her to an isolated fishing shack.   She told police that the man drove a Ford Taurus that had two car seats in the back.   D.E.B. owns a Ford Taurus and the couple had two young children.   S.L.B. later identified Brundage as the rapist.

2002 Rape of C.S.M.

¶ 55 C.S.M., also a prostitute, reported to police that she had been raped by a man who took her to a fishing shack.   This fishing shack was the same one used for the rape of S.L.B.C.S.M. obtained the vehicle's license number.   A check of the license number revealed that the car was registered to D.E.B.'s mother, who told police that she loaned her car to Brundage on that date.

Prior Misconduct Involving D.E.B.

¶ 56 The State also sought to admit evidence of prior misconduct against D.E.B. During their marriage, Brundage became very controlling, often accusing D.E.B. of being unfaithful.   He engaged in forceful sex.   Sometimes, he demanded anal sex, which she did not enjoy.   When she refused, he would get very angry and “ ‘would basically make [her].’  ” CP at 87.   If she resisted his advances, he would hold her down and “ ‘just do it.’  ” CP at 87.

¶ 57 D.E.B. also testified that before the attack at issue here, she and Brundage had journeyed to Mount Rainier.   She said that she fell asleep and when she woke up, “he was there basically trying to have sex with me.”   I RP at 119.   She testified that she had been asleep for “about 12 hours.”   I RP at 119.   When asked whether she thought she had been given any drugs on that date, she responded “probably.”   I RP at 119.   D.E.B. testified that Brundage drugged her on multiple occasions.   She identified numerous photographs taken of her in her van during the trip, all while she was asleep.   She also testified that Brundage told her he had taken pictures of her nude on that trip.

¶ 58 D.E.B. stated that Brundage often drugged her by slipping pills into her food and drink.   She suspected that they were sleeping pills.   On one occasion, when she awoke, she realized that he had tied her up and was trying to insert a large sex toy into her anus.   When she screamed, he stopped.

¶ 59 After hearing argument, the trial court first ruled that the State demonstrated by a preponderance of the evidence that the misconduct involving J.L.C., T.A.S., and D.E.B. occurred.   It noted that when facts are not contested for purposes of the hearing, it need not hold an evidentiary hearing according to State v. Kilgore, 147 Wash.2d 288, 53 P.3d 974 (2002). 18

¶ 60 As to the alleged rapes of A.L.R., S.L.B., and C.S.M., the trial court declined to admit the evidence under the common scheme or plan exception to ER 404(b).  It found that the only common characteristic between the alleged rapes and the charged offenses was that Brundage took the victims to a remote location.   Further, Brundage committed these acts against strangers, rather than against a victim with whom he had a romantic relationship.   Finally, Brundage expressed no suicidal ideation.

¶ 61 The trial court also excluded any reference to Brundage's use of prostitutes and information about criminal charges or dispositions following the events involving T.A.S. and J.L.C.

¶ 62 But the court admitted evidence of the alleged rapes of T.A.S. and J.L.C. under the common scheme or plan and motive exceptions.   It identified the common features shared in each occurrence:

All three involve misconduct committed by the defendant against [women] who had been in a romantic relationship with the defendant.   All three [women] had attempted to terminate the relationship.   All three involved attempts by the defendant to continue the relationship by continued casual contact with the women.   All three involved the defendant raping the women after they attempted to terminate the romantic relationship․ All three involved the use of a deadly weapon to facilitate the rapes.   Finally, in all three instances the defendant expressed suicidal ideation or actual suicide attempts.

CP at 317.   It then stated that the evidence was relevant to “the issues of motive, consent, and as circumstantial evidence that the charged offenses took place.”   CP at 320.

¶ 63 The court also admitted the prior misconduct against D.E.B., finding that the State offered the evidence to prove motive and consent.   Further, the evidence was relevant because “it tends to corroborate the position taken by the victim.”   RP (2/28/03) at 16-17.   Finally, the trial court determined that the evidence was more relevant than prejudicial.

CrR 3.5 Hearing

¶ 64 The trial court held a CrR 3.5 hearing during which Lieutenant John Everly testified that Brundage turned himself into police around four in the morning on November 2, 2002.   When he took Brundage into custody, Everly advised him of his Miranda 19rights.   According to Everly, Brundage did not appear to be under the influence of drugs or alcohol at the time.   Officers transported Brundage to the police department.

¶ 65 There, officers fed Brundage and allowed him to rest.   Around noon, Detectives Sue Shultz and Robert Davis began a custodial interview.   Reading from a form, Shultz read Brundage his Miranda rights, having him initial after each advisement.   Shultz testified that Brundage appeared to understand these rights and that he did not appear to be under the influence of drugs or alcohol.   Further, his speech was coherent, logical, and responsive.   The custodial interview lasted approximately six hours.

¶ 66 Shultz asked Brundage to give a second, taped interview.   Brundage declined and invoked his right to an attorney.   The interview ceased.

¶ 67 In written findings and conclusions, the trial court determined that Brundage's custodial statement was admissible.

Analysis

Admission of ER 404(b) Evidence

¶ 68 Brundage contends that the trial court erred in admitting evidence of prior rapes under ER 404(b).20

¶ 69 ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.   It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 70 We review admission of evidence under ER 404(b) for an abuse of discretion.  State v. Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002).   A trial court abuses its discretion when it bases its decision on untenable grounds or reasons.  State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995).

¶ 71 “Under ER 404(b) evidence of other crimes, wrongs, or acts is presumptively inadmissible to prove character and show action in conformity therewith.”  Powell, 126 Wash.2d at 258, 893 P.2d 615.   Doubts as to admissibility are resolved in favor of exclusion.  Thang, 145 Wash.2d at 642, 41 P.3d 1159.

¶ 72 When determining the admissibility of evidence under ER 404(b), the trial court engages in a four-step analysis:  it must (1) determine, by a preponderance of the evidence, whether the prior bad act occurred;  (2) determine the purpose for which the evidence is offered;  (3) determine whether the evidence is relevant prove an element of the crime charged or to rebut a defense; 21  and (4) balance, on the record, the probative value of the evidence and its prejudicial effect.  State v. Lough, 125 Wash.2d 847, 852, 889 P.2d 487 (1995).   If the trial court fails to conduct the balancing on the record, it does not commit fatal error, as long as the court carefully sets forth its reasons for admission.  State v. Hepton, 113 Wash.App. 673, 688, 54 P.3d 233 (2002), review denied, 149 Wash.2d 1018, 72 P.3d 762 (2003).

Common Scheme or Plan

¶ 73 Here, the trial court determined that the prior rapes were admissible under the common plan or scheme exception to ER 404(b).  As our Supreme Court has explained:

Proof of such a plan is admissible if the prior acts are (1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.

Lough, 125 Wash.2d at 852, 889 P.2d 487.

¶ 74 Brundage argues that T.A.S.'s and J.L.C.'s testimony was inadmissible under the common plan or scheme exception because (1) “[t]he circumstances surrounding the previous rapes were in no way ‘similar’ to those in the present case,” and (2) the “ ‘common features' identified by the State and accepted by the trial court” did not further a plan devised to commit rape.22  Appellant's Brief at 15, 18.

¶ 75 In Lough, on which the trial court relied, our Supreme Court noted that two scenarios give rise to the common plan or scheme exception to ER 404(b):  (1) “where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan” and (2) “when an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.”  125 Wash.2d at 855, 889 P.2d 487.   Here, the trial court admitted the previous rape victim's testimony under the second prong.   The Lough decision observed “the results in these kinds of cases will be largely dependent on the facts of each case.”  125 Wash.2d at 856, 889 P.2d 487.

¶ 76 In Lough, the Court adopted reasoning from the North Carolina Court of Appeals, and explained:

[E]vidence of a defendant's prior sexual misconduct offered to show a common plan or scheme must be sufficiently similar to the crime with which the defendant is charged and not too remote in time. However ․ while the lapse of time between instances may slowly erode the commonality between acts, when similar acts have been performed repeatedly over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan.

125 Wash.2d at 860, 889 P.2d 487 (citing State v. McKinney, 110 N.C.App. 365, 372, 430 S.E.2d 300 (1993)).   The Court noted that evidence showing that the defendant

rendered four other women, whom he had relationships with, unconscious with drugs and then raped them is not admitted to establish that the [d]efendant has a criminal disposition or a bad character;  it is admitted to show that he committed the charged offense [drugging and raping a woman while on a date] pursuant to the same design he used in committing the other four acts of misconduct.   The evidence is admitted to show plan, not propensity.   In this case, the [d]efendant's history of drugging women, with whom he had a personal relationship, in order to rape them while they were unconscious or confused and disoriented evidences a larger design to use his special expertise with drugs to render them unable to refuse consent to sexual intercourse.   A rational trier of fact could find that the [d]efendant was the mastermind of an overarching plan.

Lough, 125 Wash.2d at 861, 889 P.2d 487 (emphasis omitted).

¶ 77 Here, Brundage relies on our decision, State v. Dewey, for the propositions that

the common features required by Lough to establish a plan must be features other than those common to most rapes.   Otherwise, all evidence of other rapes would be admissible to show plan, and ER 404(b), which prohibits propensity evidence, would be meaningless.

93 Wash.App. 50, 57-58, 966 P.2d 414 (1998), review denied, 137 Wash.2d 1024, 980 P.2d 1285 (1999).   In Dewey, the common features between an alleged previous rape and the current charge included only:

(1) Dewey used friendly conversation to develop a level of trust with [the victims];  (2) he invited each woman to accompany him on a date to a restaurant or lounge to enjoy music ․;  (3) ․ after they left the public establishment Dewey suggested they go to his home;  (4) ․ after initially playing the sociable host, Dewey forcibly had sexual intercourse with the women;  (5) afterward, Dewey was friendly toward the women-allowing them to dress, driving them home, and acting as if they had been on “a regular date” culminating in consensual sex.

93 Wash.App. at 55, 966 P.2d 414.   In Dewey, we decided that

[w]ith the possible exception of Dewey's conduct after the incidents, nothing in the rapes was unique or common only to these rapes.   And we find Dewey's conduct after the rapes not sufficient alone to establish the “overarching plan” found in Lough.

93 Wash.App. at 56, 966 P.2d 414. 23

¶ 78 But our Supreme Court, settling a split between our court and Division One, explained that “Dewey reflects a misreading of Lough because our analysis in Lough requires similarity of the acts, not uniqueness.”   State v. DeVincentis, 150 Wash.2d 11, 21, 74 P.3d 119 (2003).24  The Court elaborated:

[W]hen identity is at issue, the degree of similarity must be at the highest level and the commonalities must be unique because the crimes must have been committed in a manner to serve as an identifiable signature.   In contrast, the issue in the present case was not the identity of the perpetrator, but whether the crime occurred.   Although a unique method of committing the bad acts is a potential factor in determining similarity, uniqueness is not required.

DeVincentis, 150 Wash.2d at 21, 74 P.3d 119 (citation omitted).25  In DeVincentis, the trial court held that where similarities between two molestations included the defendant (1) wearing only bikini or g-string underwear;  (2) asking both victims if they minded his lack of clothes;  (3) asking both girls to remove their clothes;  (4) asking both victims for massages and to masturbate him until he ejaculated;  and (5) asking both victims not to tell, the previous molestation was admissible.  150 Wash.2d at 22, 16, 74 P.3d 119.   In DeVincentis, the trial court applied the requisite four-part analysis of Lough.  DeVincentis, 150 Wash.2d at 22, 74 P.3d 119.   The Court held that “[w]hen this analysis is scrupulously applied by the trial court, it effectively prohibits mere propensity evidence.”   DeVincentis, 150 Wash.2d at 23, 74 P.3d 119.

¶ 79 Similarly here, Brundage claimed consent or that sexual intercourse did not occur.   He argued that D.E.B. consented to sexual intercourse once on the day in question and that no other sexual intercourse took place.   Identity was never at issue.   Accordingly, uniqueness of the common features between the prior rapes and the current offense is not necessary.  DeVincentis, 150 Wash.2d at 21, 74 P.3d 119.   The trial court was required to apply the four-part test of Lough and to base its decision on tenable grounds and reasons.  DeVincentis, 150 Wash.2d at 23-24, 74 P.3d 119.

¶ 80 The trial court did exactly this here.   The court issued a limiting instruction.   Further, it excluded three alleged prior rapes, finding that the circumstances were insufficiently similar to the case here.   The trial court relied on similarities including:  (1) a romantic relationship between each victim and the defendant;  (2) the victim attempted to terminate the relationship;  (3) the defendant sought to continue the relationship “through the pretext of casual contact with the victim”;  (4) when his advances were rebuffed, he raped the victim using a weapon to facilitate the rape;  and (5) he contemplated suicide with the victim.   RP (2/28/03) at 11. As in DeVincentis, the common features of Brundage's rape of D.E.B. and the previous rapes of T.A.S. and J.L.C. were substantially similar, such that they are admissible under the common plan or scheme exception to ER 404(b).

¶ 81 Nonetheless, Brundage argues that there are many differences between the previous rapes and the current offense, including the type of weapon used and the time of the suicide contemplation relative to the rape.   He further contends that the rapes of the three women do not show a plan but, rather, “that the previous rapes were committed on impulse when an opportunity arose.”   Appellant's Br. at 19.   Because the trial court conducted the careful analysis required by Lough and DeVincentis, and because the rapes contain substantial similarities, particularly in regard to the victims Brundage targeted, his use of a weapon, and his suicidal thoughts surrounding the termination of the relationships and the rapes, the trial court admitted the testimony of J.L.C., T.A.S., and D.E.B. for tenable grounds and reasons.   The trial court did not abuse its discretion.26

More Prejudicial than Probative

¶ 82 Brundage also contends that the trial court abused its discretion in admitting T.A.S.'s and J.L.C.'s testimony because their testimony was more prejudicial than probative.  ER 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

¶ 83 Brundage concedes that the trial court appeared to balance the probative value against the prejudice to him on the record.   The court explained:

The facts that are alleged in the offers of proof have substantial probative value, they are powerful, very powerful circumstantial evidence that the events at issue occurred as they were described by the victim in this case, and further that they occurred according to a common plan․ These facts, in addition to being powerful circumstantial evidence, are particularly necessary in a case such as this, this is one of the factors that's emphasized in the Lough opinion as additional corroborative and circumstantial evidence of the position taken by the victim of the crime, because beyond the victim's testimony there is very little proof available to establish what happened here other than this additional circumstantial evidence.

RP (2/28/03) at 15-16.

¶ 84 But Brundage asserts that the trial court failed to analyze the prejudice to him, instead focusing solely on the testimony's probative value.   We disagree.   The trial court conducted a careful balancing test of the probative value of T.A.S.'s and J.L.C.'s testimony against the prejudice to Brundage.   The trial court entered the following findings of fact:

IX.

That the danger of unfair prejudice to the defendant, with respect to the State's proposed ER 404(b) evidence concerning T.A.S. and J.L.C., is outweighed by the significant probative value of the State's proposed evidence, and any danger of unfair prejudice can be minimized by the proper use of a limiting instruction to the jury.

․

XI.

That this Court was aware of the sensitive nature of this evidence, and further aware that the potential for potential prejudice is at its highest in cases involving sex crimes.   This court, therefore, engaged in a very careful consideration of the probative value versus any potential for unfair prejudice to the defendant.

CP at 318.   The court also entered a conclusion of law on this issue:

VI.

That the probative value of the State's proposed ER 404(b) evidence concerning T.A.S. and J.L.C. is significant, and outweighs any danger of unfair prejudice to the defendant.   Any danger of unfair prejudice can be further minimized by the proper use of a limiting instruction to the jury.

CP at 320.

¶ 85 The findings of fact and conclusion of law demonstrate that the trial court balanced the prejudice posed to the defense by T.A.S.'s and J.L.C.'s testimony.   The court conducted the required balancing test on the record, and it did not abuse its discretion because it based its ruling on tenable grounds and reasons.

Statement of Additional Ground (SAG) Issues

CrR 3.5

¶ 86 Brundage raises various assignments of error in his SAG. RAP 10.10.   First, Brundage claims that the trial court erred when it admitted his custodial interview.   Specifically, Brundage states that he was under the influence of prescription pain killers and, thus, his statement was inadmissible.   We disagree.

¶ 87 CrR 3.5 provides, in relevant part:

(a) Requirement for and Time of Hearing.   When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the purpose of determining whether the statement is admissible․

․

(c) Duty of Court to Make a Record.   After the hearing, the court shall set forth in writing:  (1) the undisputed facts;  (2) the disputed facts;  (3) conclusions as to the disputed facts;  and (4) conclusion as to whether the statement is admissible and the reasons therefor.

¶ 88 We review challenged CrR 3.5 findings for substantial evidence.   State v. Broadaway, 133 Wash.2d 118, 131, 942 P.2d 363 (1997).   Substantial evidence is that sufficient to persuade a fair-minded, rational person of the finding's truth.  State v. Solomon, 114 Wash.App. 781, 789, 60 P.3d 1215 (2002), review denied, 149 Wash.2d 1025, 72 P.3d 763 (2003).   We leave credibility and conflicting testimony resolution to the fact finder.  State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990).   We accept unchallenged findings of fact as verities on appeal.  Perry v. Costco Wholesale, Inc., 123 Wash.App. 783, 792, 98 P.3d 1264 (2004).   And we review conclusions of law to determine whether the findings of fact support them.  State v. Graffius, 74 Wash.App. 23, 29, 871 P.2d 1115 (1994).   Finally, we review conclusions of law de novo.  Alpental Community Club, Inc., v. Seattle Gymnastics Soc'y, 121 Wash.App. 491, 496-97, 86 P.3d 784, review denied, 152 Wash.2d 1029, 103 P.3d 200 (2004).

¶ 89 Before a court admits custodial statements, the State must prove, by a preponderance of the evidence, that police advised the defendant of his Miranda rights and that he knowingly, voluntarily, and intelligently waived those rights.  State v. Burkins, 94 Wash.App. 677, 694, 973 P.2d 15, review denied, 138 Wash.2d 1014, 989 P.2d 1142 (1999).   When determining the voluntariness of the defendant's statements, courts ask whether, under the totality of the circumstances, the defendant's will was overcome.   Broadaway, 133 Wash.2d at 132, 942 P.2d 363.   Such circumstances include the defendants condition and mental abilities and police conduct.  Broadaway, 133 Wash.2d at 132, 942 P.2d 363.

¶ 90 After holding a CrR 3.5 hearing, the trial court entered written findings and conclusions:

Findings of Fact

․

IV.

That at the time of his arrest, the defendant was advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) by Lt. John Everly of the Federal Way Police Department, and it appeared to Lt. Everly that the defendant understood these rights.

V.

That the defendant was later transported to the Kitsap County Correctional Facility, where he was apparently fed and given a change of clothes.

VI.

That the defendant was later interviewed by Bremerton Police Department Detective[s] Sue Shultz and Robert Davis, and that the interview took place at approximately 12:00 p.m. on November 2, 2002, nearly eight hours after the defendants arrest.

VII.

That prior to Detectives Shultz and Davis interviewing the defendant concerning the facts of the case, the Detectives advised the defendant again of his Miranda rights.   In addition, the defendant signed a written waiver of these rights and initialed the waiver in various places indicating he understood his rights․

․

IX.

That the detectives observed no indications of physical distress or discomfort on the part of the defendant, other than his one request for a blanket.

X.

That during the interview the defendant was coherent and responsive, and did not appear to be under the influence of alcohol or drugs.

․

XIII.

That any statements made by the defendant to the detectives during the interview on November 2, 2002 were voluntarily made following a knowing, voluntary, and intelligent waiver of his Miranda rights.

․

Conclusions of Law

․

II.

That the statements made by the defendant during the interview on November 2, 2002 shall be admissible at trial pursuant to CrR 3.5 as the statements were voluntarily made after the defendant was thoroughly advised of his Miranda rights and after the defendant made a knowing, voluntary, and intelligent waiver of his Miranda rights.

CP at 308-10.

¶ 91 Here, Brundage claims that the trial court erred when it admitted his custodial statement because he was under the influence of prescription painkillers at the time of the interview.   But he does not challenge any of the courts findings of fact.   Thus, the findings are verities on appeal. 27  Perry, 123 Wash.App. at 792, 98 P.3d 1264.

¶ 92 The findings support its conclusion of law, namely, that Brundages statements were made after a knowing, voluntary, and intelligent waiver of his Miranda rights.   Everly advised Brundage of his Miranda rights upon arrest.   Eight hours passed between the time of arrest and the interview.   During this time, police offered him food and a change of clothing.   Prior to the custodial interview, police re-advised Brundage of his Miranda rights.   Brundage signed a written waiver of those rights.   He did not appear to be under the influence of drugs or alcohol either at the time of arrest or at the time of the interview, eight hours later.

¶ 93 Because Brundage made a proper waiver of his Miranda rights, the trial court did not err in admitting his custodial statements.

Venue

¶ 94 Next, Brundage claims that he was denied a fair trial due to pretrial publicity.   He did not raise this issue below and we decline to review it on appeal.28  State v. Dent, 123 Wash.2d 467, 480, 869 P.2d 392 (1994) (absent a showing of good cause, a defendant waives the right to challenge venue when he does not raise it at the omnibus hearing);  RAP 2.5(a) (appellate court may refuse review if party did not assert error below).

Admission of Photographs and Physical Evidence

¶ 95 Brundage contends that the trial court erred in admitting photographic and physical evidence.   This argument lacks merit because he failed to object below.29  RAP 2.5(a)(3);  State v. Thomas, 150 Wash.2d 821, 856, 83 P.3d 970 (2004) (to preserve perceived error in admission or exclusion of evidence, party must assert a proper objection below).

Sufficiency

¶ 96 Finally, Brundage argues that insufficient evidence supports his convictions.30  Sufficient evidence supports a conviction if, when viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).  “A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.   We leave credibility determinations, issues of conflicting testimony, and persuasiveness of the evidence to the fact finder.   Camarillo, 115 Wash.2d at 71, 794 P.2d 850;  State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wash.2d 1011, 833 P.2d 386 (1992).

¶ 97 Here, D.E.B. testified that Brundage raped her repeatedly, bound her, drugged her, held her against her will, possessed a Rueger handgun, repeatedly telephoned her from prison in violation of a no contact order, and repeatedly wrote her from prison in violation of a no contact order.   Taking this evidence in the light most favorable to the State, it sufficiently supports Brundage's convictions.

¶ 98 Affirmed.

¶ 99 I concur in the majority's “free crime” analysis in addressing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).   I disagree with the decision in State v. Borboa, 124 Wash.App. 779, 102 P.3d 183 (2004), that a trial court's imposition of a minimum term under RCW 9.94A.712 is unconstitutional under Blakeley.   But this issue is not relevant in the instant case because I concur that we can decide this case using the “free crimes” analysis.

FOOTNOTES

1.   At trial, D.E.B. testified that she did not shoot him because she did not “think [she] could kill somebody.”   I RP at 104.

2.   On the State's motion, the trial court dismissed the first degree rape (of A.L.R.) and first degree child molestation charges without prejudice on March 28, 2003.

3.   At sentencing, the court ruled that the second degree kidnapping conviction merged with the first degree rape conviction.

4.   Brundage affirmatively agreed to his offender score calculation. He does not challenge this calculation on appeal.

5.   The judgment and sentence states that the standard range for count II was 240 to 238 months.   This represents a scrivener's error. See RCW 9.94A.510 (under the sentencing grid, when a defendant has an offender score of 9 or more and commits a crime with a seriousness level of XII, the standard range is 240 to 318 months).

6.   Although the second degree rape count carried a domestic violence special sentence enhancement, the trial court did not increase Brundage's standard range to reflect this.

7.   We allowed supplemental briefing addressing the effect of Blakely on Brundage's exceptional sentence.

8.   RCW 9.94A.712 provides:(1) An offender who is not a persistent offender shall be sentenced under this section if the offender:(a) Is convicted of:(i) Rape in the first degree, rape in the second degree ․․(3) Upon a finding that the offender is subject to sentencing under this section, the court shall impose a sentence to a maximum term consisting of the statutory maximum sentence for the offense and a minimum term either within the standard sentence range for the offense, or outside the standard sentence range pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.

9.   Governing departures from the sentencing guidelines, RCW 9.94A.535 provides in part:The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence․ An exceptional sentence imposed on an offender sentenced under RCW 9.94A.712 shall be to a minimum term set by the court and a maximum term equal to the statutory maximum sentence for the offense of conviction under chapter 9A.20 RCW.․The following are illustrative factors which the court may consider in the exercise of its discretion to impose an exceptional sentence․․(2) Aggravating Circumstances(a) The defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim.․(h) The current offense involved domestic violence ․ and one or more of the following was present:(i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;(ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years;  or(iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.(i) The operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.

10.   As to his maximum sentence, Brundage states that the “Apprendi/Blakely rule and the [Sentencing Reform Act] are satisfied by [his] ‘maximum term’ because the ‘maximum term’ of his sentence is based solely on the jury's verdict and the mandates of RCW 9.94A.712.” Appellant's Supp. Br. at 6;  Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

11.   As a threshold matter, the State assumes that Blakely presents a new rule and Brundage may raise Blakely issues because his direct appeal is not final.   We agree.   See State v. Van Buren, 123 Wash.App. 634, 639, 98 P.3d 1235 (2004) (holding that “Blakely applies to all cases in which review was not final on June 24, 2004”).

12.   The State does not argue that the “deliberate cruelty” or “domestic violence” factors remain valid, post Blakely.

13.   The same logic extends to the second degree rape conviction.   Notably, the offender score calculation is the same for both rape convictions.

14.   Substantial evidence is that sufficient to persuade a fair-minded, rational person of the finding's truth.  State v. Solomon, 114 Wash.App. 781, 789, 60 P.3d 1215 (2002), review denied, 149 Wash.2d 1025, 72 P.3d 763 (2003).

15.   On the first degree rape conviction, Brundage's standard range was 240 to 318 months.   Due to the firearm and domestic violence special sentence enhancements, however, his total standard range became 300 to 378 months.   Thus, when the trial court imposed an exceptional sentence of 498 months, it added 120 months.

FN16.  For purposes of the ER 404(b) motions, the parties did not dispute these facts..  FN16.  For purposes of the ER 404(b) motions, the parties did not dispute these facts.

FN17.  This was the same motel where he later attacked D.E.B..  FN17.  This was the same motel where he later attacked D.E.B.

FN18.  In Kilgore, our Supreme Court held that when a party seeks admission of ER 404(b) evidence, the decision to hold an evidentiary hearing lies within the trial court's sound discretion.  147 Wash.2d at 295, 53 P.3d 974..  FN18.  In Kilgore, our Supreme Court held that when a party seeks admission of ER 404(b) evidence, the decision to hold an evidentiary hearing lies within the trial court's sound discretion.  147 Wash.2d at 295, 53 P.3d 974.

FN19. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding that custodial statements are inadmissible unless officers warn the individual of the right to remain silent, that any statement may be used against him, that he has the right to an attorney, and that he may waive those rights)..  FN19. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding that custodial statements are inadmissible unless officers warn the individual of the right to remain silent, that any statement may be used against him, that he has the right to an attorney, and that he may waive those rights).

FN20.  Brundage also raises this argument in his Statement of Additional Grounds (SAG).  RAP 10.10..  FN20.  Brundage also raises this argument in his Statement of Additional Grounds (SAG).  RAP 10.10.

FN21.  Relevant evidence is that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  ER 401..  FN21.  Relevant evidence is that which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  ER 401.

FN22.  Brundage asserts that the court erred in admitting J.L.C.'s testimony because he was never charged with a crime involving her.   As stated above, the test for admissibility of prior bad acts requires that the State show that the act occurred by a preponderance of the evidence.   Lough, 125 Wash.2d at 852, 889 P.2d 487.   Here, J.L.C.'s testimony alone provides substantial evidence of the prior rape.   The trial court did not abuse its discretion when it allowed J.L.C. to testify about the prior rape.Brundage also argues that the trial court abused its discretion in admitting J.L.C.'s and T.A.S.'s testimony because the testimony was irrelevant.   We disagree.   In State v. DeVincentis, the trial court found testimony regarding a prior assault relevant to support the testimony of the victim of the current offense.  150 Wash.2d 11, 22, 74 P.3d 119 (2003).   Here, the trial court found the prior rape testimony relevant for four reasons, including corroboration of the victim's testimony.   On this basis, the testimony was relevant.Brundage asserts that the evidence is not admissible to corroborate D.E.B.'s testimony, because it is not “necessary.”   Appellant's Br. at 26.   Brundage attempts to distinguish Lough, noting that in Lough, the victim had been drugged and her recollection of event was “vague and hazy,” while here, D.E.B.'s testimony was “clear and detailed.”   Appellant's Br. at 26.   But again, Brundage does not address DeVincentis, a case in which the testimony regarding prior sexual misconduct was no more “necessary” than here, and where the Supreme Court found no abuse of discretion in admitting the testimony.  150 Wash.2d at 23, 74 P.3d 119.   As in Lough and DeVincentis, only the victim could testify about Brundage's crimes, and so the corroborating testimony was indeed “necessary.”   As in Lough and DeVincentis, the trial court here did not abuse its discretion in finding the testimony relevant to support D.E.B.'s story..  FN22.  Brundage asserts that the court erred in admitting J.L.C.'s testimony because he was never charged with a crime involving her.   As stated above, the test for admissibility of prior bad acts requires that the State show that the act occurred by a preponderance of the evidence.   Lough, 125 Wash.2d at 852, 889 P.2d 487.   Here, J.L.C.'s testimony alone provides substantial evidence of the prior rape.   The trial court did not abuse its discretion when it allowed J.L.C. to testify about the prior rape.Brundage also argues that the trial court abused its discretion in admitting J.L.C.'s and T.A.S.'s testimony because the testimony was irrelevant.   We disagree.   In State v. DeVincentis, the trial court found testimony regarding a prior assault relevant to support the testimony of the victim of the current offense.  150 Wash.2d 11, 22, 74 P.3d 119 (2003).   Here, the trial court found the prior rape testimony relevant for four reasons, including corroboration of the victim's testimony.   On this basis, the testimony was relevant.Brundage asserts that the evidence is not admissible to corroborate D.E.B.'s testimony, because it is not “necessary.”   Appellant's Br. at 26.   Brundage attempts to distinguish Lough, noting that in Lough, the victim had been drugged and her recollection of event was “vague and hazy,” while here, D.E.B.'s testimony was “clear and detailed.”   Appellant's Br. at 26.   But again, Brundage does not address DeVincentis, a case in which the testimony regarding prior sexual misconduct was no more “necessary” than here, and where the Supreme Court found no abuse of discretion in admitting the testimony.  150 Wash.2d at 23, 74 P.3d 119.   As in Lough and DeVincentis, only the victim could testify about Brundage's crimes, and so the corroborating testimony was indeed “necessary.”   As in Lough and DeVincentis, the trial court here did not abuse its discretion in finding the testimony relevant to support D.E.B.'s story.

FN23.  The Dewey court noted that none of the post-rape similarities were cited as common features by the Lough court.  Dewey, 93 Wash.App. at 56 n. 3, 966 P.2d 414. Accordingly, we did not find the post-rape conduct sufficient to find an exception to ER 404(b).  Brundage interprets this to mean that “conduct of the defendant which takes place after a rape does not serve to establish a basis for finding a common plan.”   Appellant's Br. at 18 (emphasis omitted).   But based on Dewey and Lough, this issue remains unresolved..  FN23.  The Dewey court noted that none of the post-rape similarities were cited as common features by the Lough court.  Dewey, 93 Wash.App. at 56 n. 3, 966 P.2d 414. Accordingly, we did not find the post-rape conduct sufficient to find an exception to ER 404(b).  Brundage interprets this to mean that “conduct of the defendant which takes place after a rape does not serve to establish a basis for finding a common plan.”   Appellant's Br. at 18 (emphasis omitted).   But based on Dewey and Lough, this issue remains unresolved.

FN24.  The Washington Supreme Court published DeVincentis, an appeal of a bench trial, after the trial court's ruling here..  FN24.  The Washington Supreme Court published DeVincentis, an appeal of a bench trial, after the trial court's ruling here.

FN25.  Brundage concedes that DeVincentis abrogates Dewey, but he argues that because DeVincentis had not been filed when the State tried him, Dewey binds us here.   We disagree.   When our Supreme Court announces a new rule, it “applies to all cases pending direct review at the time the rule is announced.”  State v. Hughes, 118 Wash.App. 713, 730 n. 11, 77 P.3d 681 (2003) (quoting State v. Gamble, 118 Wash.App. 332, 72 P.3d 1139 (2003), review granted in part, 152 Wash.2d 1001, 101 P.3d 865 (2004)), review denied, 151 Wash.2d 1039, 95 P.3d 758 (2004)..  FN25.  Brundage concedes that DeVincentis abrogates Dewey, but he argues that because DeVincentis had not been filed when the State tried him, Dewey binds us here.   We disagree.   When our Supreme Court announces a new rule, it “applies to all cases pending direct review at the time the rule is announced.”  State v. Hughes, 118 Wash.App. 713, 730 n. 11, 77 P.3d 681 (2003) (quoting State v. Gamble, 118 Wash.App. 332, 72 P.3d 1139 (2003), review granted in part, 152 Wash.2d 1001, 101 P.3d 865 (2004)), review denied, 151 Wash.2d 1039, 95 P.3d 758 (2004).

FN26.  Brundage also argues that the testimony is not relevant to show motive.   Because we hold that the trial court properly admitted the evidence under the common scheme or plan exception to ER 404(b) to corroborate D.E.B.'s testimony, we do not address this alternative argument..  FN26.  Brundage also argues that the testimony is not relevant to show motive.   Because we hold that the trial court properly admitted the evidence under the common scheme or plan exception to ER 404(b) to corroborate D.E.B.'s testimony, we do not address this alternative argument.

FN27.  Further, there is no evidence in the record suggesting that Brundage was under the influence of painkillers.   Accordingly, the proper means to assert this issue is a personal restraint petition.  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995) (“If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition.”)..  FN27.  Further, there is no evidence in the record suggesting that Brundage was under the influence of painkillers.   Accordingly, the proper means to assert this issue is a personal restraint petition.  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995) (“If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition.”).

FN28.  Brundage's counsel indicated that he considered a motion for change of venue but decided ultimately not to bring the motion..  FN28.  Brundage's counsel indicated that he considered a motion for change of venue but decided ultimately not to bring the motion.

FN29.  We also note that in several instances, the evidence in question goes to weight and not admissibility.  State v. Leuluaialii, 118 Wash.App. 780, 788, 77 P.3d 1192 (2003)..  FN29.  We also note that in several instances, the evidence in question goes to weight and not admissibility.  State v. Leuluaialii, 118 Wash.App. 780, 788, 77 P.3d 1192 (2003).

FN30.  Brundage does not specify the conviction to which this argument relates.   We assume that he argues insufficiency of the evidence as to all his convictions..  FN30.  Brundage does not specify the conviction to which this argument relates.   We assume that he argues insufficiency of the evidence as to all his convictions.

HOUGHTON, P.J.