STATE v. HUESTED (2003)

OPINION PUBLISHED IN PART

Appellant Mitchell Huested was convicted of committing first degree rape and first degree burglary  while armed with a knife.   We hold the imposition of two deadly weapon enhancements-one for each offense-did not violate double jeopardy.

 The jury found that Huested was armed with a deadly weapon during the commission of both crimes.   The trial court imposed a standard range sentence.   The court then imposed two deadly weapon enhancements of 24 months each and ordered that they be served consecutively.   Huested argues that the two deadly weapon enhancements violate double jeopardy because he is being punished twice for a single act of possession of a deadly weapon.

 Review of a double jeopardy claim requires this court to determine whether the Legislature intended to authorize multiple punishments for criminal conduct that violates more than one criminal statute.  State v. Calle, 125 Wash.2d 769, 772, 888 P.2d 155 (1995).

 The deadly weapon enhancement statute at issue is RCW 9.94A.510. It mandates that a weapon enhancement “shall run consecutively” to all other sentencing provisions, including other enhancements.   The statute specifically recognizes there will be more than one enhancement where there is more than one eligible offense:

The following additional times shall be added to the standard sentence range for felony crimes committed after July 23, 1995, if the offender or an accomplice was armed with a deadly weapon other than a firearm as defined in RCW 9.41.010 and the offender is being sentenced for one of the crimes listed in this subsection as eligible for any deadly weapon enhancements based on the classification of the completed felony crime.   If the offender is being sentenced for more than one offense, the deadly weapon enhancement or enhancements must be added to the total period of confinement for all offenses, regardless of which underlying offense is subject to a deadly weapon enhancement․

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(e) Notwithstanding any other provision of law, all deadly weapon enhancements under this section are mandatory, shall be served in total confinement, and shall run consecutively to  all other sentencing provisions, including other firearm or deadly weapon enhancements, for all offenses sentenced under this chapter.   However, whether or not a mandatory minimum term has expired, an offender serving a sentence under this subsection may be granted an extraordinary medical placement when authorized under *RCW 9.94A.728(4).

RCW 9.94A.510(4), (4)(e) (emphasis added).   This statute unambiguously shows legislative intent to impose two enhancements based on a single act of possessing a weapon, where there are two offenses eligible for an enhancement.

Washington courts have repeatedly rejected arguments that weapon enhancements violate double jeopardy.   In State v. Claborn, 95 Wash.2d 629, 628 P.2d 467 (1981), the defendant received separate weapon enhancements for burglary and theft convictions arising from the same event.   Claborn argued that separate enhancements for the “single act” of being armed with a deadly weapon during the burglary and theft violated double jeopardy.   Noting that burglary and theft have separate elements and that the enhancement statutes did not themselves create criminal offenses, the Claborn court held that the enhancements did not create multiple punishments for the same offense.   Claborn, 95 Wash.2d at 636-38, 628 P.2d 467.

Our courts have also rejected double jeopardy challenges to deadly weapon enhancements where the use of a deadly weapon was an element of the crime charged.   See State v. Harris, 102 Wash.2d 148, 160, 685 P.2d 584 (1984), overruled on other grounds in State v. Brown, 111 Wash.2d 124, 761 P.2d 588 (1988);  State v. Caldwell, 47 Wash.App. 317, 319, 734 P.2d 542, review denied, 108 Wash.2d 1018 (1987);  State v. Pentland, 43 Wash.App. 808, 811, 719 P.2d 605, review denied, 106 Wash.2d 1016 (1986).   In those cases, the courts emphasized that, for purposes of sentence enhancements, “the double jeopardy clause does no more than prevent greater punishment for a single offense than the Legislature intended.”  Caldwell, 47 Wash.App. at 319, 734 P.2d 542 (quoting State v. Pentland, 43 Wash.App. at 811, 719 P.2d 605).   The Caldwell court concluded that “the Legislature has clearly expressed its intent  in RCW 9.94A.310 that a person who commits certain crimes while armed with a deadly weapon will receive an enhanced sentence, notwithstanding the fact that being armed with a deadly weapon was an element of the offense.”  Caldwell, 47 Wash.App. at 320, 734 P.2d 542.

The statute applicable to this case is likewise unambiguous:  an enhancement must be imposed for each qualifying crime committed with a deadly weapon.   No exceptions are contemplated.   The enhancements imposed in this case did not violate the double jeopardy clause.   The sentence is affirmed.

The remainder of this opinion, in which we affirm the conviction against a challenge to the admissibility of certain evidence, has no precedential value.   Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.

Huested also assigns error to a ruling admitting evidence concerning his collection of knives.   He claimed that he arrived at the scene after the rape and that the knife found there must have belonged to someone else.   Under these circumstances, the trial court did not err in admitting evidence that Huested had a collection of similar knives readily accessible in a nearby apartment.

The rape victim testified that she was cleaning out an apartment late one night in February 2002.   Because the electricity had been turned off, she was working by candlelight.   A man stopped in and asked her what was going on.   She told him she was cleaning and that she was almost finished.   The man said “I'm in C4 if you need any help” and then he left.

The victim went upstairs to use the bathroom.   She testified that the same man she had talked to a few minutes earlier appeared again and stood in front of her.   He was clothed in underwear and a shirt and had a large knife.   He put the knife to the woman's throat and ordered her to take her pants completely off.   When she refused, he threatened to hurt her.   He dragged her through the hall to an upstairs bedroom.   She began to scream for help.   The man forced her to the ground.   Pinning her there, he put his fingers in her vagina.

Alerted by a neighbor, a police officer knocked on the apartment door.   The attacker covered the woman's mouth with his hand and a struggle ensued.   She bit him on the hand and shoulder.   After a few moments, he jumped up and left the bedroom.

The police officer testified that he was waiting just inside the front door of the apartment, near the stairwell, when a man later identified as Mitchell Huested appeared at the top of the stairs.   Huested came down the stairs and was taken into custody.   He had blood on his hands and his right shoulder.   The victim later identified him as her attacker.

When the officer went upstairs, the victim told him she heard her attacker drop the knife somewhere in the hallway.   The police found a knife on the floor of an open closet off the hall.   It was a fixed-blade, hunting-style knife 10 to 12 inches long, with a straight edge.

At trial, the victim testified with certainty that it was Huested who stopped by the apartment initially and that the same person returned a few minutes later with the knife and raped her.   She said she was cut during the attack and began to bleed.

Huested also testified at trial.   He admitted stopping in to speak to the victim, but denied involvement in the burglary and the rape.   He said that after he returned to his apartment, he heard a woman screaming and went out to investigate.   He testified that he followed the sounds and found the victim in the upstairs bedroom.   According to Huested, he found the knife partially under the victim's body.   He admitted handling it, but denied owning it.   He said he picked it up and took it out into the hallway out of concern for the victim's safety.   Huested said his knife collection consisted of three knives, a buck knife and two blades without handles, “all in sheaths and well cared for.”   He suggested that the way to find the real perpetrator was to find the sheath fitting the knife used in the attack.

In closing, Huested presented a theory that he was a good Samaritan who was in the wrong place at the wrong time.   He denied committing the crimes and suggested that someone else must have raped the victim and fled before he arrived.

During the State's case-in-chief, the prosecutor asked a police detective about his conversation with Huested at the scene of the crimes.   The detective testified that he asked Huested if he had a knife collection and that Huested said he did.   The State elicited testimony from the officer that “some military hunting style knives” were found during a search of Huested's apartment, and that they were large fixed-bladed knives similar to the one found near the scene of the attack.   Over Huested's objection, the trial court ruled the officer's testimony admissible for the limited purpose of showing that Huested had access to knives of the type that were used that night.

Huested argues that the evidence of the knife collection should have been held to be irrelevant and unduly prejudicial under State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984).   As the trial court concluded, Rupe is not on point.   Rupe was convicted of murder and robbery.   During the sentencing phase, evidence that Rupe owned an extensive gun collection was presented by the State as an aggravating factor in support of the death penalty.   Overturning the resulting death sentence, our Supreme Court held that the ownership of weapons is constitutionally protected behavior, and cannot form the basis of criminal punishment.   The gun collection evidence should have been excluded as both irrelevant and prejudicial.  Rupe, 101 Wash.2d at 708, 683 P.2d 571.

Unlike the situation in Rupe, where the evidence of the weapon collection was not connected to the crimes at issue, Huested's ownership of knives similar to the one used in the charged offenses was relevant to show he had access to such a knife.   It tended to prove that Huested, after first coming upon the victim, would have been able to obtain a knife and return to the apartment in short order.   It thus corroborated the victims testimony that Huested had the knife with him when he returned to the apartment, in contrast to Huested's version of the incident in which he claimed to have found a knife left near the victim by someone else.   The evidence was relevant;  it was not unfairly prejudicial;  and we find no abuse of discretion.

Huested's contention that the trial court failed to give an appropriate limiting instruction regarding the knife collection evidence is without merit.  “When evidence is admitted for a limited purpose and the party against whom it is admitted requests such an instruction, the court is obliged to give it.”  State v. Freeburg, 105 Wash.App. 492, 501, 20 P.3d 984 (2001).   Unlike the situation in Freeburg, the trial court in this case did give a limiting instruction.   The following colloquy occurred in the presence of the jury:

The Court:  Well, I think it is relevant, and so I'm going to allow the testimony for that limited purpose.   If you want a limiting instruction for the purpose of which it's admitted, I would give that at some point.

[Defense Counsel]:  I'll take what I can get, Your Honor.   I'm not sure why its offered unless it's to prejudice the jury.

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The Court:  I'm going to instruct the jury that it's offered for the limited purposes of demonstrating that Mr. Huested would have access to knives.   It's not to be considered for any purpose, and I don't think there's any problem if I point out to the jury it's not illegal to have a knife collection.

[The Prosecutor]:  Not in your own home.

[Defense Counsel]:  Thank you, Your Honor.[1]

This court has observed that it is usually preferable to give a limiting instruction contemporaneously with the evidence at issue.  State v. Ramirez, 62 Wash.App. 301, 304, 814 P.2d 227 (1991), review denied, 118 Wash.2d 1010, 824 P.2d 490 (1992).   The preferred practice was followed in this case.   There is no requirement that such an instruction also be given in writing when it has been given orally.

The conviction and sentence are affirmed.

FOOTNOTES

FN1.  Verbatim Report of Proceedings, July 16, 2002 at 144-45..  FN1.  Verbatim Report of Proceedings, July 16, 2002 at 144-45.

BECKER, C.J.