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                                                          2016 OCT-3 AMII =l*U




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               DIVISION ONE
                     Respondent,
                                               No. 73543-8-1
                v.


                                                UNPUBLISHED OPINION
TERRENCE PATRICK ECKHART,

                     Appellant.                 FILED: October 3, 2016


      Dwyer, J. -Terrence Eckhart repeatedly exposed himself to his neighbor
as she crossed their common driveway. Ajury convicted him oftwo counts of
nonfelony indecent exposure. RCW 9A.88.010(1). By special verdicts, the jury
also found that he had a prior conviction for a sex offense and committed one of
the current offenses with sexual motivation. The prior conviction verdict elevated
the indecent exposure convictions to felonies. RCW 9A.88.010(1)(c).
       On appeal, Eckhart maintains that one of the convictions and both special
verdicts are not supported by sufficient evidence. He contends the convictions
must be reversed and remanded for, at most, the entry of one lesser included
offense. The State contends the convictions and sexual motivation verdict are
supported by sufficient evidence, but concedes the special verdict on the prior
sex offense must be reversed due to an evidentiary error. Without citing
No. 73543-8-1/2


authority, the State asserts that the case must be remanded solely for a new trial

on the prior conviction element of felony indecent exposure. We reverse and

remand for a new trial on all elements of the charged offenses.

                                             I


         Based on allegations that Eckhart repeatedly exposed himself to his

neighbor, S.W., the State charged him with two counts of indecentexposure-
one occurring on January 7, 2014, and the other occurring between September
1, 2013 and December 31, 2013. The State alleged that both counts were

committed with sexual motivation and were felonies because Eckhart had a prior

conviction for attempted child molestation. RCW 9A.88.010(1)(c).
         Prior to trial, the court granted Eckhart's motion to bifurcate the trial,
reserving the issue of whether Eckhart had previously been convicted of a sex
offense until after the jury returned verdicts on the elements of nonfelony
indecent exposure and the sexual motivation allegation.
          At trial, the State's evidence established that Eckhart, his wife, and his
children lived next door to S.W., who lived alone, at the time ofthe charged
incidents. The two homes shared a driveway which Eckhart's side door faced.
         S.W. testified that, prior to the charged incidents, Eckhart's behavior
started to make her "[v]ery uncomfortable." He told her she was "cute," invited
 her to drink beers with him while his wife was away, brought her chocolates, and
 offered her prescription pain killers. On several occasions, S.W. noticed a
 shirtless Eckhart waving to her from his open side door as she got in her car for
 work.
No. 73543-8-1/3



       In September 2013, Eckhart again stood in his open doorway as S.W. left

for work, but this time he was completely naked. He looked straight ahead, and

though S.W. saw his penis, she did not see whether it was erect. She testified

she was "shaken up" and "scared" by the incident. She also began to realize

that Eckhart's behavior only occurred when his wife's car was gone. She did not

call the police, however, because she was worried about disrupting Eckhart's

family situation.

       A short time later, an essentially identical incident occurred. Eckhart again

stood naked in his doorway. S.W. saw his penis and felt "shaken up, nervous,

[and] uncomfortable."

       In January 2014, S.W. walked to her car and then turned back to get

something from her house. She saw Eckhart standing naked in his open
doorway. She testified that "there was some movement going on, and it looked
like he was masturbating to me." S.W. "quickly went back and forth" between her
house and her car before she left. She only glanced toward Eckhart for a few

seconds. When asked how long Eckhart stayed in his doorway making the

motion with his hand, S.W. said "[t]wo or three minutes."

        S.W. later elaborated on the January incident, testifying that Eckhart was

"kind ofsitting on the floor without any clothes on and it looked like there was
some motion, hand motion, kind of a sprawled position that he was in, but sitting
up instead of standing." She described the hand motion as an "up and down"
motion "[ajround his groin area." When asked if she saw anything in Eckhart's
No. 73543-8-1/4



hand, S.W. said "No." When asked if she saw his penis, she said "Yes." She did

not know if his penis was in his hands.

      After the first phase of the trial, the court instructed the jury on the

elements of nonfelony indecent exposure and the allegation of sexual motivation.

The jury found Eckhart guilty of both counts of indecent exposure but found only

one of the counts was committed with sexual motivation.

       In the second phase of the trial, the prosecutor submitted a certified copy

of a 1997 judgment and sentence for first degree attempted child molestation.
The only evidence, other than a physical description, linking Eckhart to the
judgment and sentence was the testimony of Seattle Police Detective Eugene
Foster. Detective Foster testified during the first phase of the trial that he learned

Eckhart's date of birth by performing a "computer check." When the prosecutor
asked Foster to recite Eckhart's date of birth, Eckhart objected on the grounds of
hearsay, lack of personal knowledge, and foundation. The court sustained
Eckhart's objection, and the prosecutor asked to be heard at a later time.
       Outside the jury's presence, the prosecutor argued that Foster's testimony
was not hearsay because the State offered it for "purposes of identification
simply because it's the defendant's date of birth by way of fact." The prosecutor
also argued that Eckhart's date of birth was within Foster's personal knowledge
because Foster learned it by checking the Seattle Police Department database.
The court rejected the prosecutor's arguments but suggested the evidence might
be admissible as a public record. Eckhart again objected, arguing that the State
could not lay a proper foundation for a public records exception, and that even if
No. 73543-8-1/5



it could, Foster's testimony would violate the best evidence rule. The court

disagreed and admitted Foster's proposed testimony under the public records

exception. The court noted that it would have been preferable for the State to

offer "a certified copy of a record somewhere, that would clearly meet the public

record exception." Foster then testified that Eckhart's date of birth was May 2,

1966.

        Following the second phase of the trial, the court instructed the jury to

return special verdicts as to whether Eckhart had a prior conviction for a sex

offense and thus committed felony indecent exposure. The jury found that

Eckhart had previously been convicted of a sex offense.

        Eckhart moved for a new trial, arguing that the court erred in admitting the

testimony regarding his date of birth. The trial court denied the motion. Eckhart
appeals.

                                           II


        Eckhart contends that his convictions are not supported by sufficient

evidence. "The test for determining the sufficiency of the evidence is whether,
after viewing the evidence in the light most favorable to the State, any rational
trier offact could have found guilt beyond a reasonable doubt." State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences from
the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant." Salinas, 119 Wn.2d at 201. "A claim of insufficiency
admits the truth of the State's evidence and all inferences that reasonably can be

 drawn therefrom." Salinas. 119 Wn.2d at 201.
No. 73543-8-1/6



                                         A


      To convict Eckhart of indecent exposure under the instructions for count 2,

the State had to prove that between September 1 and December 31, 2013,

Eckhart intentionally made an "open and obscene exposure of [his] person"

knowing "that such conduct was likely to cause reasonable affront or alarm."

Instruction 11. Eckhart contends the State "did not present sufficient evidence

that [he] made an obscene exposure, nor that he intended to." Br. ofAppellant at

8. We disagree.

      An exposure is "obscene" if it is "'a lascivious exhibition of those private

parts of the person which instinctive modesty, human decency, or common

propriety require shall be customarily kept covered in the presence of others.'"
State v. Vars, 157 Wn. App. 482, 490, 237 P.3d 378 (2010) (quoting State v.
Galbreath, 69 Wn.2d 664, 668, 419 P.2d 800 (1966)). It is undisputed that

Eckhart exposed his naked body to S.W. twice during the charging period in
almost exactly the same manner. Eckhart contends, however, that "[bjesides his
nakedness, there was nothing sexual about his behavior" and that "[w]ithout

more, it cannot be a crime just to be naked . . . within one's dwelling, even if a
nearby neighbor happened to have caught an unwelcome glimpse." Br. of
Appellant at 10-11.

       Eckhart was not merely naked in his dwelling. S.W.'s testimony

established that he twice opened his door and faced the shared driveway,
completely naked, just as S.W. was leaving for work. Eckhart made no attempt
to cover himself, turn away, or close his door. These acts occurred against a
No. 73543-8-1/7



backdrop of prior overtures, innuendo, and half naked exposures. Viewed in a

light most favorable to the State, the evidence was sufficient for a rational trier of

fact to find that the exposures were intentionally obscene.

       For many of the same reasons, the evidence was sufficient to infer that

Eckhart knew the exposures were likely to cause reasonable affront or alarm. As

the State points out, S.W. testified that she rebuffed Eckhart's social advances,

closing the door as fast as she could when he came to her house, or not

answering the door at all when he knocked. She testified that she avoided
conversations with Eckhart and compared their interactions to a movie scene in

which a neighbor continues to talk to an uninterested neighbor as the latter
closes a garage door between them. Viewed in a light most favorable to the
State, the evidence was sufficient for a rational trier offact to infer that Eckhart
knew his conduct was unwelcome and would likely cause S.W. reasonable

affront or alarm.

                                           B


       Eckhart next contends the evidence was insufficient for a rational trier of

fact to find that he committed count 1 with sexual motivation. A court may

impose an exceptional sentence if a crime was committed with sexual motivation,
i.e., for purposes of sexual gratification. RCW 9.94A.835(2); RCW
9.94A.030(47). An exceptional sentence may not, however, be based on factors
"inherent to the offense for which a defendant is convicted." State v. Thomas,

 138 Wn.2d 630, 636, 980 P.2d 1275 (1999). Only factors "other than those

 necessarily considered by the Legislature in computing the presumptive range of

                                           7
No. 73543-8-1/8



the offense will justify an extraordinary sentence." State v. Mejia, 111 Wn.2d

892, 902, 766 P.2d 454 (1989).

       Eckhart argues that the only evidence of sexual gratification was his

masturbation, that the same evidence was inherent in the underlying offense of

indecent exposure because it proved his conduct was obscene and lascivious,

and that it was therefore insufficient to support the jury's finding of sexual

motivation. This argument is flawed in several respects.

       First, whether a sentencing factor is inherent in an underlying offense

does not turn on whether the factor may have been part of the proof of the

underlying offense; rather, it turns on whether the legislature necessarily
considered the factor in prescribing punishment for the underlying offense.

Thomas, 138 Wn.2d at 635. Nothing in RCW 9A.88.010(1) or the relevant case

law indicates that an act done for purposes of sexual gratification is inherent in

the crime of indecent exposure. As our previous discussion of count 2
demonstrates, it is sufficient, for purposes of indecent exposure, to show a

lascivious or indecent exhibition of genitalia. Vars, 157 Wn. App. at 490; State v.

Queen, 73 Wn.2d 706, 710, 440 P.2d 461 (1968) (lascivious and indecent are

synonyms). There is no requirement that the exhibition be for the purpose of
sexual gratification. See Queen, 73 Wn.2d at 710. Thus, Eckhart's masturbation
was not inherent in the crime of indecent exposure.

       Second, even accepting Eckhart's claim that evidence inherent in the
proof of the underlying offense cannot support an exceptional sentence, his
 argument fails. In our discussion of count 2 above, we concluded that Eckhart's
No. 73543-8-1/9



acts of exposing himself in his doorway, together with his history of half-

exposures, overtures and innuendo, were sufficient to prove an indecent or

lascivious exhibition of his genitals. The same is true of count 1. The State's

evidence showed that Eckhart sat or stood naked in his doorway for two or three

minutes while S.W. walked back and forth between her house and her car.

Viewed in the context of Eckhart's history of exposures, overtures, and innuendo

with S.W., this evidence was sufficient, without the additional evidence of

masturbation, to support Eckhart's conviction on count 1. Thus, the evidence of
masturbation was not necessary to prove the underlying offense and supported

the jury's finding of sexual motivation.

                                           Ill


       Eckhart contends, and the State concedes, that the trial court abused its

discretion in admitting hearsay testimony regarding his birthdate and denying his
motion for a new trial. The parties agree that this testimony was prejudicial
because it was the only evidence tying Eckhart to the prior sex offense that
elevated the indecent exposure charges to felonies. The parties disagree,

however, on the appropriate remedy.

        Eckhart contends the error results in insufficient evidence to support his

convictions and requires either reversal and dismissal or "[a]t most the matter
may be remanded with instructions to enter a conviction for a lesser-included
offense." Reply Br. of Appellant at 5. Citing State v. Jasper, 174 Wn.2d 96, 120,
 271 P.3d 876 (2012), the State contends the proper remedy is a remand for a
 new trial. Jasper is controlling.
No. 73543-8-1/10



       In Jasper, the court considered the proper remedy for the erroneous

admission of testimonial certifications regarding the existence or nonexistence of

a public record. In concluding that a new trial, rather than dismissal, was the

proper remedy, the court stated:

                 After holding the admission of exhibit 10 violated
       Cienfuegos's right to confrontation, the superior court ordered that
       the conviction be vacated and the case remanded for dismissal. . . .
       The court stated that "[w]ithout this improperly admitted exhibit, the
       evidence is likely insufficient to support his conviction.". . .
              . . . The superior court erred by examining the sufficiency of
       the evidence after excluding the unconstitutionally admitted exhibit.
       As made plain by the United States Supreme Court, "the Double
       Jeopardy Clause allows retrial when a reviewing court determines
       that a defendant's conviction must be reversed because evidence
       was erroneously admitted againsthim, and also concludes that
       without the inadmissible evidence there was insufficient evidence to
       support a conviction." Lockhart v. Nelson, 488 U.S. 33, 40, 109 S.
       Ct. 285, 102 L. Ed. 2d 265 (1988). The appropriate remedy here is
       to reverse the defendants' convictions . . . and to remand for new
       trials.

Jasper, 174 Wn.2d at 120 (emphasis added). Stated another way,

       [i]f the evidence, including that erroneously admitted, Lockhart v.
       Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988), was
       insufficient as a matter of law, the double jeopardy clause entitles
       [the defendant] to dismissal with prejudice. Burks v. United States,
       437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Otherwise, he is
        entitled only to a new trial.

State v. Stanton, 68 Wn. App. 855, 867, 845 P.2d 1365 (1993) (emphasis

added). Eckhart does not claim that the evidence in this case, including the
erroneously admitted testimony, was insufficient to prove the predicate offense.
Accordingly, the appropriate remedy is a new trial. 1


        1We note that despite the State's express reliance on Jasper, Eckhart did not address
Jasper in his reply brief. Instead, Eckhart cites inapposite cases in which the State simply failed

                                                 10
No. 73543-8-1/11



       Without citing authority, the State contends the new trial should be limited

to the prior conviction element of felony indecent exposure. We decline to

consider this contention. RAP 10.3(a) (6); Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (appellate court need not

consider arguments unsupported by authority).

       We accept the State's concession of error, reverse the convictions, and

remand for a new trial.




                                                                 mV cfl^>V




to offer any evidence whatsoever linking the defendant to material documentary evidence. See
State v. Ceia Santos. 163Wn. App. 780, 784-86, 260 P.3d 982 (2011); State v. Huber, 129 Wn.
App. 499, 503-04, 119 P.3d 388 (2005).

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