                                                                                                    7
                                                                                                    FIL,- -
                                                                                         COURT OF APPPALS
                                                                                             OIVISIC?IT
                                                                                        2013 JUN I I     AM 10: 38
                                                                                              E 0    1A ' riIINGT0


                                                                                                 0EF     Y




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

STATE OF WASHINGTON,                                                         No. 42420 7 II
                                                                                       - -


                                        Respondent,

            v




TALYN K. .BENITEZ,
       J                                                                 PUBLISHED OPINION


                                        0

                 BRINTNALL J. — After Talyn Benitez waived his right to a jury trial, the trial
            QuiNN-

court found him guilty of felony indecent exposure. Benitez argues that the charge could not

have been elevated to a felony because his prior conviction was a juvenile offense rather than an
                                                            -

adult felony conviction and that under the law of the case doctrine, the State was required to

prove that Benitez         exposed   himself to another.        Benitez also argues that under Gunwall, the

right to a jury trial under the Washington State Constitution is broader than the right under the
United          States   Constitution       and   cannot   be   waived, rendering    Benitez's   bench       trial


unconstitutional or, alternatively, that his jury trial waiver was invalid because he was not fully

informed of his right to a jury trial prior to waiving it. We hold that the plain language of the

indecent exposure statute includes juvenile adjudications for sex offenses that are classified as

1
    State   v.   Gunwall, 106 Wn. d 54, 720 P. d 808 (1986).
                                2            2
No. 42420 7 II
          - -



felonies and there was sufficient evidence to support the trial court's guilty verdict. In addition,

we hold that bench trials are constitutional and that Benitez's jury trial waiver was valid. We

affirm.


                                                     FACTS


          On March 27, 2011, Scott Miller was doing yard work with James Shawyer and Brian

Smith. At one point, Miller went out to the.ublic access alley behind his house. In the alley,
                                           p

Miller observed Benitez leaning against a tree and looking into the adjacent yard where two

young children      were   playing. Miller could see Benitez "physically masturbating with his

genitals    in his hand." Report of     Proceedings (RP) May 24, 2011) at
                                                         (                      17 18. When Benitez
                                                                                   -


began to leave the alleyway, Miller asked him to stop and wait on the porch step while he called

the police. Officer Nicholas Fosse of the Montesano Police Department responded to Miller's
call and' rrested Benitez.
        a


           On May 9, 2011, the State filed an amended information charging Benitez with indecent

exposure. The amended information alleged

           t] the said defendant, TALYN K. J. BENITEZ, in Grays Harbor County,
            hat
           Washington, on or about March 27, 2011, did intentionally make an open and
           obscene exposure of his person to another, knowing that such conduct was likely
           to cause reasonable affront or alarm and the defendant having previously been
           convicted of child molestation in the first degree, Grays Harbor Juvenile Court
           cause number 09 8- 1;a sex offense as defined in RCW 9.
                            - 150 -                                   030.94A.

Clerk's Papers ( CP) Oct. 6,
                     (               2011) at   1.    Benitez's prior conviction elevated the indecent

exposure     charge   from   a   misdemeanor to   a   felony. The State also alleged two aggravating

factors: (1)The defendant committed the offense for the purpose of his sexual gratification and
2) defendant committed the offense shortly after being released from incarceration.
 the




                                                       2
No. 42420 7 II
          - -



         On May 11, 2011, Benitez waived his right to a jury trial. The written waiver informed

Benitez that he had the right to a jury of 12 citizens and that the State was required to "convince

all of the twelve citizens (the jurors)of his] guilt beyond a reasonable doubt."Suppl. CP at 32.
                                          [

Benitez's defense counsel also signed the waiver that stated that he had discussed the right to a
jury trial with Benitez and that he believed Benitez was waiving the right to a jury trial

voluntarily, knowingly,      and   intelligently. The trial court reviewed the waiver with Benitez

before accepting it.

         A bench trial   was   held   on   May 24,   2011.     Miller and Officer Fosse both testified.


Shawyer     also testified that he observed Benitez       leaving   the   alleyway. The State introduced a

certified copy of Benitez's     juvenile adjudication     for first   degree child molestation. The State

also introduced a certified copy of jail records documenting Benitez's release from jail on

January 9, 2011. Benitez testified that he was walking home from the bus station and had not
been in the alleyway.

           The trial court found   Benitez guilty of felony indecent         exposure. The trial court also


found that Benitez committed the crime for the purpose of sexual gratification and shortly after

he   was    released from . incarceration.    The trial court entered written findings of fact and

conclusions of law      on   May 31, 2011. The trial court sentenced Benitez to an exceptional




2
    The exhibit that was introduced has not been designated as part of the record on appeal, so the
date of Benitez's release is taken from the trial court's             findings of fact. Benitez does not
challenge the sufficiency of the evidence supporting the trial court's finding regarding the date of
his release or the conclusion that Benitez committed the offense shortly after being released from
incarceration. As unchallenged findings of fact are verities on appeal, we accept the trial court's
finding concerning Benitez's release date. See State 'v. Loren, 152 Wn. d 22, 30, 93 P. d 1.3
                                                                      2               3 3
2004).

                                                      3
No. 42420 7 II
          - -



sentence of 36 months, which included the mandatory 12 month sexual motivation enhancement.
                                                       -

Benitez timely appeals.
                                             ANALYSIS


SUFFICIENCY OF THE EVIDENCE


       Benitez presents two arguments contending that insufficient evidence supports the trial

court's guilty verdict. First, Benitez argues that the indecent exposure charge should not have

been elevated to a felony because a juvenile adjudication of guilt for first degree child

molestation is not a felony conviction. Second, Benitez argues that the law of the case doctrine

requires the State to . rove all elements alleged in the information. In this case, the information
                      p

included the language "to another," Benitez alleges that the State failed to present sufficient
                                  and

evidence to prove that he exposed himself " o another." Because the definition of conviction"
                                          t                                       "

expressly includes juvenile adjudications, Benitez's juvenile adjudication for first degree child

molestation elevates the indecent exposure charge to a felony. Furthermore, the law of the case

doctrine does not apply to bench trials and the State presented sufficient evidence to prove the

statutory elements of indecent exposure.

JUVENILE ADJUDICATION


       Under RCW 9A. 8.an indecent exposure charge is elevated from a
                 c),
                 010(
                    2)(
                    8

misdemeanor to    a                           has previously been convicted ...
                      felony if the defendant "                                   of a sex offense as


defined in RCW 9.
               030."
                94A. Under former RCW 9.5)( a sex offense is (
                                      a)(
                                      030( 4A.2010),
                                         i)
                                         4
                                         9

defined as "[ ]
            a felony that is a violation of chapter 9A. 4 RCW other than RCW 9A. 4.
                                                      4                      132."
                                                                               4



3 Benitez's appeal was originally consolidated with his appeal on another case (cause no. 42644 -
7 II). April 9, 2012, a commissioner of this court granted Benitez's motion to dismiss cause
  -  On
no. 42644 7 II.
          - -


                                                   4
No. 42420 7 II
          - -



Benitez argues that because a juvenile offense is not a felony, Benitez's juvenile adjudication

does not qualify as a `sex offense' for purposes of indecent exposure." Br. of Appellant at 7.

But Benitez misreads the indecent exposure statute and his claim fails.

         Under RCW 9. ),
                   030( 4A.a conviction is "an adjudication of guilt pursuant to Title 10
                      9
                      9

or 13 RCW and includes a verdict of guilty, a finding of guilty, and acceptance of a plea of

guilty."Title 13 governs juvenile courts and juvenile offenders. When the definitions of both

conviction" and "sex offense" are used, the indecent exposure statute would read: Indecent


exposure is a class C felony if the person has a previous adjudication of guilt pursuant to Title 10

or   13 RCW ...   of a felony that is a violation of chapter 9A. 4 RCW other than RCW 9A. 4.
                                                               4                      132.
                                                                                        4

RCW     9A. 8. Therefore, the State is required to prove that (1)Benitez had an
        c).
        010(
           2)(
           8

adjudication of guilt under either Title 10 or 13 RCW and (2) offense is classified as a felony
                                                             the

under ch. 9A. 4 RCW. RCW 9. ); RCW 9.5)(
            4            030( 4A.former
                            9
                            9           a)(
                                        030( 4A.
                                           1).
                                           4
                                           9

         The State presented a certified copy of Benitez's juvenile adjudication which proves he

pleaded guilty    to   first   degree   child molestation.   First degree child molestation is a class A

felony. RCW 9A. 4.Therefore Benitez's juvenile adjudication is a "conviction"under
            083(
               2
               4 ).

RCW 9. ) first degree child molestation is a "sex offense" under former RCW
    030( 4A. and
       9
       9

a)(
030( 4A.Accordingly, the State presented sufficient evidence to prove that Benitez's
9.5)(
   i).
   4
   9

indecent exposure charge was elevated from a misdemeanor to a felony under RCW

c).
010(
9A. 8.
   2)(
   8

LAW OF THE CASE DOCTRINE


         Benitez also challenges the sufficiency of the evidence proving that he exposed himself

to another."Although the element of exposing oneself to another"is not a statutory element of
                                                     "

the crime of indecent exposure, Benitez argues that the State was required to prove this

                                                       5
No. 42420 7 II
          - -



additional element because it      was   included in the   information. But contrary to Benitez's

assertion, the law of the   case   doctrine does not   apply   to bench trials.   Therefore, the State is

required to have presented sufficient evidence to prove only the statutory elements of the crime.

Because Benitez challenges the sufficiency of the evidence proving that he exposed himself to

another and the State was not required to prove this element, Benitez's second sufficiency of the

evidence claim fails.


       Benitez argues that based on State v. Hickman, 135 Wn. d 97, 101 03, 954 P. d 900
                                                            2           -        2

1998), information became the law of the case and the State was required to prove the
     the

additional element of exposing oneself to another. In Hickman, our Supreme Court held that if

the parties do not object to jury instructions, the jury instructions become the law of the case.
135 Wn. d at 102.
      2                 In a criminal case, if the State adds an unnecessary element in the "to

convict" instruction without objection, the State assumes the burden of proving the added

element. Hickman, 135 Wn. d at 102.
                        2

       But the law of the case doctrine applies to jury instructions, not bench trials. State v.

McGary, 37 Wn: App. 856, 860, 683 P. d 1125, review denied, 102 Wn. d 1024 ( 1984).
                                   2                              2

Division One of this court specifically addressed this issue in State v. Hawthorne, 48 Wn. App

23, 27, 737 P. d 717 (1987).In Hawthorne, the court rejected the contention that the law of the
             2

case doctrine applies to bench trials. 48 Wn. App. at 27. Therefore, the State was required to

prove only the statutory elements of the crime charged. Hawthorne, 48 Wn. App. at 27; see also

State v. Munson, 120 Wn. App. 103, 107, 83 P. d 1057 (2004)law of the case doctrine does not
                                            3               (



4 RCW 9A. 8.
      010(
         1 states, "
         8 ) A person is guilty of indecent exposure if he or she intentionally
makes any open and obscene exposure of his or her person or the person of another knowing that
such conduct is likely to cause reasonable affront or alarm."

                                                   0
No.42420 7 II
         - -



apply to bench trials, therefore the State is not required to prove all the alternatives alleged in the

information);
            State v. Hobbs, 71 Wn. App. 419, 423, 859 P. d 73 (1993)additional elements in
                                                       2             (

the information "need not be carried over into the `to convict' instruction or proved beyond a

reasonable doubt if there is a bench trial ")


        Moreover, applying the law of the case doctrine to an information is contrary to the

information's purpose. In the information, the prosecutor may allege "that the means by which

the defendant committed the offense are unknown or that the defendant committed it by one or

more specified means." CrR 2. ( purpose of the information is to give the defendant
                           a)( The
                            1).
                            1

sufficient notice to adequately prepare a defense. State v. Tandecki, 153 Wn. d 842, 847, 109
                                                                            2

P. d 398 (2005).But jury instructions serve a different purpose. "[
 3                                                               B] ecause the purpose of jury

instructions is to instruct the jury on the applicable law, they `must necessarily contain more

complete and precise statements of the law than are required in an information' or charging
document. "     State v. Rivas, 168 Wn. App. 882, 891 92,278 P. d 686 (2012) quoting State v.
                                                      -       3              (

Borrero, 97 Wn. App. 101, 107, 982 P. d 1187 (1999),
                                    2              remanded, 141 Wn. d 1010 (2000)),
                                                                   2

review denied, 176 Wn. d 1007 (2013).Because an information does not need to contain the
                     2

same level of specificity as jury instructions and it is not intended to provide a precise statement

of the law, it would defeat the purpose of the information if we applied the same rules to an

information as we apply to jury instructions.

        Benitez recognizes that the current case law limits the law of the case doctrine to jury
instructions.   But he argues that refusing to apply the law of the case doctrine to bench trials

violates equal protection. Benitez asserts,



5 A defendant may request additional specificity by filing a motion for a bill of particulars. CrR
c).
2. (
 1
                                                   7
No. 42420 7 II
          - -



           Failure to apply the "law of the case" doctrine to bench trials violates equal
           protection; there is no rational basis to deny the benefit of the rule to defendants
           who waive their right to a jury, or to juvenile offenders (whose cases are always
           tried to the court).

Br. of Appellant at 9. For the reasons we explained above, jury instructions and informations

serve different purposes. Therefore, we disagree with Benitez's assertion that "here is no reason
                                                                               t

the law of the case doctrine] can't be applied when the accused person submits her or his case to

a judge."Br. of Appellant at 9.

           Benitez also cites State v. Smith, 117 Wn. d 263, 279, 814 P. d 652 (1991), support
                                                    2                  2             to

his    equal protection argument.          But Smith addresses the State's ability to seek review of

nondispositive rulings by         a   juvenile court   commissioner.       Smith does not support Benitez's

proposition.       Instead, Benitez's proposition is contrary to all of the controlling authority.

Accordingly, Benitez's equal protection claim fails.

           Because Benitez does not challenge the sufficiency of the evidence supporting the trial

court's findings on any of the statutory elements of the charged crime, his.sufficiency of the

evidence claim fails.


CONSTITUTIONALITY OF JURY TRIAL WAIVER


            Benitez argues that under article I,section 21 of the Washington Constitution, a criminal

defendant may never waive a jury trial. Benitez argues that the six Gunwall factors "suggests

that all felony cases in Washington must be tried to a jury,regardless of the parties' wishes."Br.

of Appellant at 11. But Benitez misapplies Gunwall in this context because Gunwall determines

the scope, not the waiver, of a constitutional right. Accordingly, we reject Benitez's argument

that   a   Gunwall analysis suggests that     a   defendant may   never   waive the   right to   a   jury trial.
No. 42420 7 II
          - -



       We review constitutional issues de novo. State v. Castro, 141 Wn. App. 485, 490, 170

P. d 78 (2007).Article I,section 21 provides,
 3

       The right of trial by jury shall remain inviolate, but the legislature may provide
       for a jury of any number less than twelve in courts not of record, and for a verdict
       by nine or more jurors in civil cases in any court of record and for waiving of the
       jury in civil cases where the consent of the parties interested is given thereto.

Article I,section 22 also provides,

       In criminal   prosecutions   the accused shall have the       right ...   to have a speedy
       public trial by an impartial jury of the county in which the offense is charged to
       have been committed.


According to Benitez, when the Gunwall factors are applied to these provisions, the analysis will

show that all felony cases must be tried to a jury regardless of the defendant's wishes.

       But Benitez's reliance on Gunwall is misplaced. Gunwall addresses "the extent of a right

and not how the right in question may be waived."State v. Pierce, 134 Wn. App. 763, 773, 142

P. d 610 (2006).In Pierce, this court explained that although Washington's constitutional right
 3

is more expansive than the federal right, it does not follow that additional safeguards are required

to validly waive the more expansive right. 134 Wn. App. at 773. Thus, the extent of protection

offered under the Washington constitution has no bearing on the legal standard for waiving the

right. Pierce, 134 Wn. App. at 773. Accordingly, a. analysis does not apply to the issue
                                                  Gunwall

of waiver of a state or federal constitutional right. Pierce, 134 Wn. App. at 773.

        Washington    law allows    a   defendant to waive   a   jury trial. State v. Stegall, 124 Wn. d
                                                                                                     2

719, 723, 881 P. d 979 (1994); also State v. Forza, 70 Wn. d 69, 70 71, 422 P. d 475
               2             see                         2          -        2

1966) right to a jury trial is subject to a knowing, intentional, and voluntary waiver);
       (                                                                               State v.

Lane, 40 Wn. d 734, 737, 246 P. d 474 (1952) a defendant may waive a 12-
           2                  2              (                         person jury and




                                                    9
No.42420 7 II
         - -



submit the     case   to   an    11-
                                   person    jury). Benitez's argument that the Washington State

Constitution prohibits a deferidant from waiving a jury trial fails.

VALIDITY OF JURY TRIAL WAIVER


       Benitez also argues that if the right to a jury trial may be waived, his jury trial waiver was

invalid. Benitez contends that because the Washington State constitutional right to a jury trial is

broader than the federal right, a Gunwall analysis must be used to determine whether more

extensive   protections    are   required   to waive the   right. Benitez recognizes that we rejected the

same argument in Pierce, but he argues that Pierce was wrongly decided and we should overturn

it. Benitez has offered no persuasive authority for us to reject our analysis in Pierce and under

the standard articulated in Pierce, Benitez's waiver was valid. Accordingly, his argument fails.

       Benitez argues that Pierce was wrongly decided and should be abandoned because there

is Washington Supreme Court precedent applying Gunwall to determine the validity of a
defendant's waiver of       a    state constitutional   right. Benitez's argument   is   unpersuasive.   The


Supreme Court authority Benitez claims is contrary to Pierce is unrelated to waiver of a jury trial

right. State v. Thomas, 128 Wn. d 553, 562, 910 P. d 475 (1996), not apply Gunwall to
                              2                  2             did

determine the protections required for a valid waiver but rather rejected the defendant's

argument that Gunwall applied because the defendant's briefing was inadequate.

        State v. Dodd, 120 Wn. d 1, 20 21, 838 P. d 86 (1992),
                             2         -        2            was a death penalty case. State

v. Earls, 116 Wn. d 364, 374 78, 805 P. d 211 (1991), State v. Medlock, 86 Wn. App. 89,
                2            -        2             and

98 99, 935 P. d 693, review denied, 133 Wn. d 1012 (1997),
   -        2                             2              addressed waiver of the right to

counsel.     But Washington's rules on jury trial waiver are different than the rules for waiving

other constitutional rights, such as the right to counsel. Pierce, 134 Wn. App. at 771 72 ( iting
                                                                                       - c

Stegall,    124 Wn. d at
                  2             725). Benitez has offered no argument or authority in support of the

                                                         10
No. 42420 7 II
          - -



contention that we should reconsider Pierce in light of Supreme Court precedent addressing the

waiver of the right to appeal a death sentence and the right to counsel, two rights which have

traditionally been afforded more protection by Washington courts. Accordingly, the Supreme

Court precedent cited by Benitez is not persuasive authority for reconsidering the holding in

Pierce.


          We review a jury trial waiver de novo. State v. Ramirez-
                                                                 Dominguez, 140 Wn. App. 233,

239, 165 P. d 391 (2007).The record must adequately establish that the defendant waived his
          3

right knowingly, intelligently, and voluntarily. Pierce, 134 Wn. App. at 771. A written waiver

is strong evidence that the defendant validly waived the jury trial right."Pierce, 134 Wn. App.
at 771.    An attorney's representation that the defendant's waiver is knowing, intelligent, and

voluntary is also relevant. Pierce, 134 Wn. App. at 771 (citing State v. Woo Won Choi, 55 Wn.

App. 895, 904, 781 P. d 505 (1989),
                    2             review denied, 114 Wn. d 1002 (1990)).
                                                       2               Washington law
does not require an extensive colloquy on the record; instead "only a personal expression of

waiver from the defendant"is required. Pierce, 134 Wn. App. at 771 (citing Stegall, 124 Wn. d
                                                                                          2

at 725).As a result, the right to a jury trial is easier to waive than other constitutional rights.

Pierce, 134 Wn. App. at 772 (citing State v. Brand, 55 Wn. App. 780, 786, 780 P. d 894 (1989),
                                                                               2

review denied, 114 Wn. d 1002 (1990)).
                     2

          Here, Benitez was informed that he had the right to have a jury of 12 citizens determine

his guilt and that the State was required to convince all 12 jurors of guilt beyond a reasonable
doubt. Benitez's attorney stated that he reviewed the     jury   trial   right with   Benitez. Defense


counsel also certified that he " elieve[d] [ ]
                               b          Benitez's waiver of a trial by jury and agreement to be




                                                 11
No. 42420 7 II
          - -



tried by a judge is voluntarily, knowingly and intelligently made." Suppl. CP at 32. The trial

judge confirmed that Benitez could read and write and that he had read the jury trial waiver. He

also reviewed the         language     in the waiver with Benitez. Based on this record, we hold that


Benitez's waiver was knowingly, intelligently, and voluntarily made.

         Benitez argues that he was insufficiently apprised of his rights because "[ he record does
                                                                                  t]

not contain affirmative evidence establishing that [Benitez] understood he would have the

opportunity to help select the jury, that he had the right to a fair and impartial jury, and that he

would be presumed innocent by the jury unless proven guilty at trial."Br. of Appellant at 29.
But we have not required that a defendant be apprised of every aspect of the jury trial right in

order for the defendant's waiver to be valid. Pierce, 134 Wn. App. at 773. Benitez was not

required to be informed of "
                           his right to be presumed innocent until proven guilty beyond a

reasonable doubt or his right to an impartial trier of fact because these rights are inherent in all

trials" and are not waived by waiving the right to a jury trial. Pierce, 134 Wn. App. at 772

citing State v. Sanders, 66 Wn. App. 380, 387, 832 P. d 1326 (1992);
                                                    2              State v. Orange, 78

Wn. d 571, 573, 478 P. d 220 (1970)).
  2                  2              Therefore,the only right Benitez was not informed of

was   his   right   to   participate   in   jury   selection.   Pierce explicitly rejected the contention that a

defendant is required to be informed of the right to participate in jury selection in order for the

jury trial waiver to be valid. 134 Wn. App. at 773. Accordingly, Benitez's jury trial waiver is
valid.




                                                                12
No. 42420 7 II
          - -



       Sufficient evidence supports the trial court's guilty verdict and we reject Benitez's

arguments that (1)bench trials are unconstitutional and (2)Benitez's jury trial waiver was

invalid. Accordingly, we affirm.




                                               BRINTNALL,J.
                                               QIJINN-
We concur:




HINT,J.

                     r   -   `.-   •   -


    ANSON,A. .
          J.
           C




                                             13
