STATE v. CASTILLA (2004)

PUBLISHED IN PART

Julio Castilla was a certified nursing assistant.   He was convicted of rape for engaging in sexual intercourse with a patient during a treatment session (rape in the second degree).   We hold that whether the intercourseoccurred during a treatment session was a question for the jury.   We reject Castilla's other arguments, and affirm both his conviction and the exceptional sentence based upon the particular vulnerability of his victim.

BACKGROUND

Cheryl Nelson suffers from significant developmental delays and schizophrenia, and functions essentially as a child.   Since 1998, she has resided at Chartley House, a facility operated by Seattle Mental Health.   In 2002, Nelson had surgery to repair a broken ankle, and was sent to North Auburn Rehabilitation and Health Center (NARC) to recover.   She arrived May 31.   Julio Castilla was employed at NARC as a certified nursing assistant (CNA).   He cared for Nelson for part of his shifts on June 1 and 2.

On June 3, Nelson reported to a nurse that she had been sexually assaulted.   Suspicion fell upon Castilla, because of the description given by Nelson and the fact he was on duty at the time of the assault.   Investigation revealed that the male component of the vaginal swab taken from Nelson matched Castilla's DNA profile.

Castilla was charged with second-degree rape under the health care provider alternative in RCW 9A.44.050(1)(d), which provides, in relevant part:

A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person ․ [w]hen the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination.

At trial, Castilla conceded that he was a health care provider,¹ that Nelson was a patient, and that they had sexual intercourse.   Castilla's defense was that the intercourse did not occur during a “treatment session,” the final element of the crime.

The jury found Castilla guilty.   The court imposed an exceptional sentence, finding that Castilla knew or should have known that Nelson was a particularly vulnerable victim, that Nelson suffered substantially greater mental and physical injuries than typically seen in second-degree rape cases, and that the rape violated Nelson's zone of privacy.

DISCUSSION

Treatment Session

 The principal issue here is Castilla's contention that the evidence did not establish that sexual intercourse occurred during a “treatment session.”   A challenge to sufficiency of the evidence requires us to decide whether any rational juror could have found guilt beyond a reasonable doubt.²  In this inquiry, “all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.” ³

The statute defines “treatment” as “the active delivery of professional services by a health care provider which the health care provider holds himself or herself out to be qualified to provide.” ⁴  The jury was so instructed.   The statute does not define the phrase “treatment session,” but the common and ordinary meaning of “session” is “a period ․ devoted to a particular activity.” ⁵  The question, therefore, is whether the jury could conclude that intercourse occurred during a time when Castilla was delivering services a CNA is qualified to provide.

The State presented evidence establishing that CNAs at NARC are responsible for “the hands-on care, activities of daily living, dressing, bathing, grooming, [and] assistance with feeding.” ⁶  CNAs are expected to respond to patients who ask for help or who signal a request for assistance with a call button.

Castilla admits he entered Nelson's room in response to her call of “I need help, I need help.” ⁷  But because Nelson was not assigned to his care for that shift, he argues he was not providing treatment to her under the statute.   CNAs at NARC worked in teams, however, and are responsible for assisting patients assigned to their partner's care, as well as those on their own assigned list.   Nelson was assigned to Castilla's partner's care at the time of the incident.   She had been assigned to Castilla's care the day before.   Whether she was on Castilla's list that day was thus immaterial.

Castilla testified that Nelson had been flirting with him since her arrival and that when she called him into her room, she insisted upon having sex with him and threatened to scream if he refused.   He contends this was not a treatment session.   The jury, of course, was not required to believe Castilla.   But in any case, he testified he entered her room while on duty and in response to her call for help.   She told the nurse that after intercourse, he cleaned her and diapered her.   A rational trier of fact could find that Castilla was engaging in a treatment session when he responded to Nelson's call, and could reasonably conclude that the intercourse occurred during a treatment session.

Castilla argues that this approach to the statute is insufficient, because the State failed “to prove the sexual intercourse occurred during a period devoted to the active delivery of professional health care services.” ⁸  Essentially, Castilla argues that the sexual interlude was a personal detour from his professional duties, and therefore did not occur during a period devoted to the active delivery of professional health care services.   This means, apparently, that if professional services are interrupted by a sexual encounter, the intercourse itself does not occur during a treatment session.   But under this theory, the only health care providers who could be prosecuted under the statute would be those who claim to engage in intercourse for professional reasons.   We are confident that was not the legislative intent, if only because if that were the objective, the legislature had no need to include certified nursing assistants such as Castilla under the definition of health care provider;  no nursing assistant could claim such a therapeutic objective.

 We reject Castilla's reading of the statute.   The court properly left to the jury the determination of whether the intercourse occurred during a treatment session.   The evidence amply supports its finding that it did.

Exceptional Sentence

The court imposed an exceptional sentence based upon the particular vulnerability of the victim. This violated Castilla's Sixth Amendment right to a jury trial. State v. Hughes, 154 Wn.2d 118, 136, 110 P.3d 192 (2005). We therefore remand for entry of a sentence within the standard range.

Castilla's conviction and exceptional sentence are affirmed. His sentence is vacated and we remand for resentencing.

The remainder of this opinion lacks precedential value and will not be published in the Washington Appellate Reports but will be filed of public record in accord with RCW 2.06.040.

Pro Se Arguments

In his statement of additional grounds for review, Castilla makes several other arguments for reversal.   Many of these arguments either are unintelligible or have no basis in the record.   We address those that merit discussion.

Ineffective Assistance of Counsel.   Castilla first contends that biased jurors were improperly permitted to remain on the panel.   He argues his counsel was ineffective for failing to challenge the jurors for cause, and that the court erred by failing to strike the allegedly biased jurors sua sponte.   We first note that jury selection is a matter of trial strategy, and is largely left to the judgment of counsel.9  While there may be situations in which a court is justified in interfering with this process sua sponte, it will very rarely, if ever, be error to fail to do so.   Accordingly, we view this challenge only insofar as Castilla claims ineffective assistance of counsel.

To prevail, Castilla must prove both that his attorney's representation was deficient, and that the deficiency prejudiced his defense.10  We apply a strong presumption that counsel's performance was reasonable.11  Trial conduct that can be characterized as legitimate strategy or tactics cannot form the basis for a claim of ineffective assistance of counsel. 12  If the defendant meets the first burden, the second prong requires the defendant to show only a reasonable probability that the outcome of the trial would have been different absent the attorney's deficient performance. 13

Castilla contends several jurors exhibited a bias during voir dire, and that his counsel's decision not to challenge any of these jurors constituted ineffective assistance.   As noted above, jury selection is a matter of trial strategy, and will not normally form the basis of a finding of deficient representation.   In this case, after a thorough review of the record, we find no indication that any of the specified jurors demonstrated a bias.   Further, Castilla's counsel successfully challenged several other jurors for cause, and exercised six of his seven peremptory challenges.   This conduct clearly falls within the broad range of reasonable professional assistance.

Castilla also argues his attorney was ineffective for failing to request sequestration of the jury, and that as a result, one juror was later exposed to media coverage of the trial.   Again, jury management is largely a matter of trial strategy.   But in any event, the record establishes no reasonable probability of prejudice.   One juror noticed one newspaper article and, consistent with the court's instruction, immediately put it aside, without reading anything of substance and without informing the other jurors about the article.   The court established that no other jurors had seen any coverage.

Confrontation Clause.   Castilla argues the State violated his Sixth Amendment right to confront the witnesses against him because Nelson did not testify.   The State declined to call Nelson as a witness because her mental condition had deteriorated to the point that the State believed she would not be found competent to testify.   Nelson's sister, who did testify, stated that Nelson was in a persistent delusional state at the time of the trial.   Certain of Nelson's statements to the nurse who performed the sexual assault examination were admitted under the hearsay exception for statements made for purposes of obtaining medical treatment.   The statements were extremely limited, and did not go to any disputed issue but merely asserted Nelson had been touched sexually.   Further, these statements were not testimonial in nature-they were not elicited by a government official and were not given with an eye toward trial.   As such, they do not raise the same concerns under the Sixth Amendment as does testimonial hearsay.14  Accordingly, we find no violation of Castilla's Sixth Amendment right of confrontation.

Affirmed.

FOOTNOTES

1.   RCW 9A.44.010(14) provides, in part:  “ ‘Health care provider’ for purposes of RCW 9A.44.050 and 9A.44.100 means a person who is, holds himself or herself out to be, or provides services as if he or she were. [a] member of a health care profession under chapter 18.130 RCW.” A certified nursing assistant is a health care provider.  RCW 18.130.040(2)(a)(xiii).

2.   State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

3.   Id. (citing State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977)).

4.   RCW 9A.44.010(15).

5.   Webster's Third New International Dictionary 2077 (1993);  see also State v. Argueta, 107 Wash.App. 532, 536, 27 P.3d 242 (2001) (a court may rely on dictionary definitions to give words their ordinary understanding).

6.   Report of Proceedings (RP) (Nov. 19, 2002) at 17.

7.   RP (Nov. 20, 2002) at 117.

8.   Brief of Appellant at 8-9.

FN9.  See ABA, Standards For Criminal Justice 4-5.2(b) (3d ed.   1993) (“Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate.   Such decisions include ․ what jurors to accept or strike.”);   see also In re Personal Restraint of Stenson, 142 Wash.2d 710, 736, 16 P.3d 1 (2001) (citing ABA standards as helpful authority on the question of reasonable representation)..  FN9.  See ABA, Standards For Criminal Justice 4-5.2(b) (3d ed.   1993) (“Strategic and tactical decisions should be made by defense counsel after consultation with the client where feasible and appropriate.   Such decisions include ․ what jurors to accept or strike.”);   see also In re Personal Restraint of Stenson, 142 Wash.2d 710, 736, 16 P.3d 1 (2001) (citing ABA standards as helpful authority on the question of reasonable representation).

FN10. State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))..  FN10. State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

FN11. Id. at 226, 743 P.2d 816..  FN11. Id. at 226, 743 P.2d 816.

FN12. State v. McNeal, 145 Wash.2d 352, 362, 37 P.3d 280 (2002) (citing State v. Adams, 91 Wash.2d 86, 90, 586 P.2d 1168 (1978))..  FN12. State v. McNeal, 145 Wash.2d 352, 362, 37 P.3d 280 (2002) (citing State v. Adams, 91 Wash.2d 86, 90, 586 P.2d 1168 (1978)).

FN13. Thomas, 109 Wash.2d at 226, 743 P.2d 816 (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052)..  FN13. Thomas, 109 Wash.2d at 226, 743 P.2d 816 (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052).

FN14.  See Crawford v. Washington, No. 02-9410, --- U.S. ----, 124 S.Ct. 1354, --- L.Ed.2d ----, 2004 WL 413301 (March 8, 2004)..  FN14.  See Crawford v. Washington, No. 02-9410, --- U.S. ----, 124 S.Ct. 1354, --- L.Ed.2d ----, 2004 WL 413301 (March 8, 2004).

ELLINGTON, J.