                                                                   U\h DEC 22 p.11 3=



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE

STATE OF WASHINGTON,                             No. 70291-2-1


                     Respondent,

      v.



ROBERT D. HITT,                                  UNPUBLISHED OPINION

                    Appellant.                   FILED: December 22, 2014



      Verellen, A.C.J. — Robert Hitt was convicted by a jury of one count of first

degree burglary with sexual motivation (count I), five counts of first degree kidnapping,

one count of first degree kidnapping with sexual motivation (count III), and two counts of

first degree robbery. Hitt challenges the admission of a prior rape conviction under ER

404(b) as evidence of a common scheme or plan. Hitt contends that the prejudice

stemming from the admission of his prior rape conviction impacted not only the sexual

motivation special verdicts but also his remaining convictions and deadly weapon

sentence enhancements. We accept the State's concession that there were insufficient

similarities to establish a common scheme or plan under ER 404(b). The sexual

motivation special verdicts must therefore be reversed. But we affirm his remaining

convictions and the deadly weapon sentence enhancements because there is

overwhelming evidence of guilt.
No. 70291-2-1/2



       Hitt challenges the reasonable doubt instruction containing "abiding belief

language, contending that the instruction diluted the State's burden of proof. But our

Supreme Court has expressly affirmed the use of such abiding belief language.

       Hitt also challenges the sufficiency of the evidence supporting the "shield or

hostage" alternative means of first degree kidnapping. Viewing the evidence and all

reasonable inferences in the light most favorable to the State, there is sufficient

evidence for a rational trier of fact to conclude that Hitt intended to use the victims as

hostages. Hitt's other arguments do not support any relief on appeal.

       Accordingly, we reverse the sexual motivation special verdicts, affirm the first

degree burglary conviction, first degree kidnapping convictions, first degree robbery

convictions, deadly weapon sentence enhancements, and remand for resentencing.

                                           FACTS


       Hitt broke a window and entered a house near the University of Washington

campus. He encountered a young woman, E.H., and bound her wrists with tape. E.H.

told Hitt that seven other women lived in the house. Hitt placed a knife to E.H.'s throat

and took her room to room, coercing the other women to exit their rooms by threatening

to kill E.H. Hitt took two of the women's cell phones. Hitt gathered six women in a room

and ordered them to lie face down on the floor, binding their wrists with tape.1 Hitt failed

to locate two other women in the house. They called the police.

       Hitt struggled to bind K.B.'s wrists because she wore bulky "onesie fleece

pajamas" that unzipped from the front.2 Hitt told K.B. to "take it off."3 K.B. wore nothing


       1 Hitt did not bind one of the women's wrists because the police interrupted him.
       2 Report of Proceedings (RP) (Mar. 4, 2013) at 562.
       3 Id. at 563.
No. 70291-2-1/3


under the pajamas. Hitt forced K.B. to unzip her pajamas while he bound her wrists

with tape, exposing at least the top half of her body.4 Then the police arrived and found

Hitt inside the house on the top floor landing. Hitt told the police that he was "just there

to rob them."5 Police freed the women, who had been bound with tape. They found two

of the women's cell phones, a knife, and drugs on Hitt's person.

       Hitt was charged with multiple counts of kidnapping and robbery and one count

of burglary. Hitt objected to the admission of evidence of his 2002 first degree rape

conviction that the State offered as proof of a common scheme or plan under

ER 404(b). The trial court permitted the rape victim's testimony. Notably, the court's

oral limiting instruction and written limiting instruction differ. The oral limiting instruction

restricted the rape victim's testimony to only "determining whether the State . . . met its

burden of proof with regard to motive in counts I and III."6 The written limiting instruction

allowed the jury to consider her testimony "only for the purpose of deciding whether the

defendant's prior conduct is part of a common scheme or plan, or as evidence of the

defendant's motive or intent with respect to conduct charged by the [S]tate in this

case."7

       The jury found Hitt guilty of one count of first degree burglary, six counts of first

degree kidnapping, and two counts of first degree robbery.8 For each conviction, the


      4 There is conflicting testimony whether Hitt unzipped K.B.'s onesie all the way
down, fully exposing K.B. Several victims testified that K.B. was fully exposed.
       5RP(Feb. 28, 2013) at 428.
       6RP(Mar. 11, 2013) at 1180.
       7 Clerk's Papers (CP) at 199 (emphasis added).
       8 Hitt's convictions for first degree kidnapping were both premised on the
alternative means of intent to facilitate robbery or intent to hold the victims as a shield or
hostage. RCW9A.40.020(1)(a), (b).
No. 70291-2-1/4


jury entered a special verdict that Hitt was armed with a deadly weapon at the time of

the commission of the crime.9 The jury also entered special verdicts that Hitt committed

both first degree burglary (count I) and first degree kidnapping (count III) with sexual

motivation. Hitt was sentenced to life imprisonment as a persistent offender based on

the sexual motivation special verdicts and the 2002 rape conviction.10

       Hitt appeals.

                                        ANALYSIS


       Hitt contends, and the State concedes, that his prior rape conviction and the

current crimes have insufficient similarities to establish a common scheme or plan under

ER 404(b). We accept the State's concession.

       A finding of sexual motivation is an aggravating circumstance that can support an

exceptional sentence.11 "'Sexual motivation' means that one of the purposes for which

the defendant committed the crime was for the purpose of his or her sexual

gratification."12 The State must prove beyond a reasonable doubt that the defendant

committed the crime for sexual motivation, and "[i]t must do so with evidence of

identifiable conduct by the defendant while committing the offense."13




       9 See RCW 9.94A.533(4), .825.
       10 See RCW 9.94A.030(37), .570. Without the sexual motivation special verdicts,
Hitt would not have the two strikes required for a sentence of life without the possibility
of early release.
       11 RCW 9.94A.535(3)(f).
       12 RCW 9.94A.030(47).
       13 State v. Vars, 157 Wn. App. 482, 494, 237 P.3d 378 (2010).
No. 70291-2-1/5



      Here, as requested by the State, the trial court admitted evidence of Hitt's 2002

rape conviction under ER 404(b) as evidence of motive, intent, and a common scheme

or plan. ER 404(b) states:

      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.

"ER 404(b) is a categorical bar to admission of evidence for the purpose of proving a

person's character and showing that the person acted in conformity with that

character."14 Evidence of prior misconduct is presumptively inadmissible, and courts

must resolve any doubt about admissibility in favor of exclusion.15

      One proper purpose for admitting evidence of prior misconduct is to show the

existence of a common scheme or plan.16 Relevant here, a common scheme or plan

includes occasions "where 'an individual devises a plan and uses it repeatedly to




      14 State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012); State v. Holmes,
43 Wn. App. 397, 400, 717 P.2d 766 (1986) (rejecting the "once a thief, always a thief
rationale for admitting evidence).
       15 State v. DeVincentis, 150Wn.2d11, 17, 74 P.3d 119 (2003): State v. Wilson,
144 Wn. App. 166, 177, 181 P.3d 887 (2008) ("In close cases, the balance must be
tipped in favor of the defendant."): accord State v. Thang, 145 Wn.2d 630, 642, 41 P.3d
1159 (2002). In addition, to admit evidence of prior misconduct under ER 404(b), "the
court must (1) find by a preponderance of the evidence the misconduct actually
occurred, (2) identify the purpose of admitting the evidence, (3) determine the relevance
of the evidence to prove an element of the crime charged, and (4) weigh the probative
value against the prejudicial effect of the evidence." State v. Fisher, 165 Wn.2d 727,
745, 202 P.3d 937 (2009). The court must also identify the purpose of the evidence and
conduct the balancing on the record. State v. Jackson. 102 Wn.2d 689, 693-94, 689
P.2d76(1984).
       16 See DeVincentis, 150 Wn.2d at 17.
No. 70291-2-1/6



perpetrate separate but very similar crimes.'"17 There must be substantial similarity

between the prior misconduct and the charged crimes; "more than merely similar

results" are required.18

       The State urged the trial court to accept the similarities between the 2002 rape

conviction and the instant offenses. The trial court identified facts common to both

cases. But the instant offenses and the 2002 rape conviction are not "markedly similar

acts" and do not show substantial similarity that manifests a common scheme or plan.19

The State concedes that because neither of the events was well thought out and both

appeared to be impulsive that a common scheme or plan is absent. Although both

crimes occurred in residences, Hitt's 2002 rape conviction occurred in his own

residence (an apartment), and the current incident occurred in the victims' residence (a

house). The State now concedes that this is an insignificant similarity since most sex

crimes occur in residences. And while in both incidents the victims were young,

college-aged females, this also is of limited significance because no evidence suggests

that Hitt knew that eight young, college-aged women occupied the residence.20 In both

events, the victims offered Hitt money in order to get away from him, but such a



       17 Gresham. 173 Wn.2d at 421-22 (quoting State v. Lough, 125 Wn.2d 847, 854-
55, 889 P.2d 487 (1995)).
       18 DeVincentis, 150 Wn.2d at 20; Lough. 125 Wn.2d at 860 ("To establish
common design or plan, for the purposes of ER 404(b), the evidence of prior conduct
must demonstrate not merely similarity in results, but such occurrence of common
features that the various acts are naturally to be explained as caused by a general plan
of which the charged crime and the prior misconduct are the individual manifestations.").
       19 Lough, 125Wn.2dat852.
      20 See id. at 860 ("the similarity is not merely coincidental, but indicates that the
conduct was directed by design"); DeVincentis. 150 Wn.2d at 20 ("Random similarities
are not enough.").


                                             6
No. 70291-2-1/7


response to Hitt's criminal behavior does not relate to his common scheme or plan.

       Moreover, in both incidents, Hitt ordered a victim to disrobe themselves, which

they did. But the State concedes that ordering a victim to disrobe is a limited similarity.

In Hitt's 2002 rape, disrobing was an immediate prelude to rape. And, at least as far as

the current incident unfolded, ordering K.B. to disrobe so Hitt could bind her wrists had

limited similarity to the 2002 rape. In both cases, Hitt also expressed repeated concern

about being caught by police. But in the 2002 rape, this occurred after he completed

the rape, and in the current incident, Hitt was preoccupied with the victims calling the

police from the outset. The State now concedes that the similarities do not amount to

"markedly similar acts of misconduct [committed] under similar circumstances"21 and

"[sjufficient repetition of complex common features."22 We accept the State's

concession that evidence of Hitt's 2002 rape conviction should not have been admitted.

The sexual motivation special verdicts must therefore be reversed and this matter

remanded for resentencing.

       Hitt contends that we should also reverse his remaining convictions and remand

for a new trial because the trial court allowed the jury to consider Hitt's 2002 rape

conviction to show "motive or intent with respect to conduct charged by the [Sjtate in

this case."23 Hitt contends that the prejudice stemming from the admission of his 2002

rape conviction cannot be confined to the sexual motivation special verdicts. We

disagree.




       21 State v. Hecht. 179 Wn. App. 497, 508-09, 319 P.3d 836 (2014).
       22 State v. Burkins. 94 Wn. App. 677, 689, 973 P.2d 15 (1999).
       23 CP at 199.
No. 70291-2-1/8



       "Erroneous admission of evidence in violation of ER 404(b) is analyzed under the

nonconstitutional harmless error standard."24 We must ask whether there is a

reasonable probability that, without the error, "'the outcome of the trial would have been

materially affected.'"25 "The improper admission of evidence constitutes harmless error

if the evidence is of minor significance in reference to the overall, overwhelming

evidence as a whole."26

       "Evidence of prior felony convictions is generally inadmissible against a

defendant because it is not relevant to the question of guilt yet very prejudicial, as it may

lead the jury to believe the defendant has a [criminal] propensity."27 We also

acknowledge that the potential prejudice from admitting prior misconduct is "'at its

highest'" in sex-offense cases.28 But in assessing whether the error was harmless, we

must measure the admissible evidence of Hitt's guilt against the prejudice caused by

the inadmissible 2002 rape victim's testimony. Here, immediately prior to admission of

the testimony, the trial court gave an oral limiting instruction to the jury:




       24 State v. Gower. 179 Wn.2d 851, 854, 321 P.3d 1178 (2014).
       25 Gresham. 173 Wn.2d at 433 (quoting State v. Smith. 106 Wn.2d 772, 780, 725
P.2d951 (1986)).
       26 State v. Bourgeois. 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
       27 State v. Hardy, 133 Wn.2d 701, 706, 946 P.2d 1175 (1997); see also 5 Karl B.
Tegland, Washington Practice: Evidence Law and Practice § 404.10, at 497-98 (5th
ed. 2007) ("Rule 404(b) is based upon the belief that such evidence is too prejudicial—
that despite its probative value, the evidence is likely to be overvalued by the jury, and
the jury is too likely to jump to a conclusion of guilt without considering other evidence
presented at trial.").
       28 Gower. 179 Wn.2d at 857 (quoting Gresham. 173 Wn.2d at 433); see also
State v. Harris. 36 Wn. App. 746, 752, 677 P.2d 202 (1984) (recognizing the "'great
potential for prejudice inherent in evidence of prior sexual offenses'" (quoting State v.
Saltarelli. 98 Wn.2d 358, 364, 655 P.2d 697 (1982)).
No. 70291-2-1/9


       This testimony is admitted only for a limited purpose. The testimony may
       be considered by you only for the purposes of determining whether the
       State has met its burden of proof with regard to motive as relevant to
       Counts I and III as charged, and it may not be considered for any other
       purpose.[29]

 Later, the trial court's written limiting instruction provided that

       [c]ertain evidence has been admitted in this case for only a limited
       purpose. This evidence consists of the testimony of [the 2002 rape
       victim]. Her testimony may be considered by you only for the purpose of
       deciding whether the defendant's prior conduct is part of a common
       scheme or plan, or as evidence of the defendant's motive or intent with
       respect to conduct charged by the [SJtate in this case. You may not
       consider it for any other purpose.[30]

Although the written limiting instruction permitted the jury to consider the testimony as

evidence of Hitt's motive or intent with respect to conduct charged by the State in

general, "[t]he improper admission of [ER 404(b)] evidence constitutes harmless error" if

there is overwhelming evidence of guilt beyond a reasonable doubt for Hitt's remaining

convictions and deadly weapon sentence enhancements.31

       Here, given the overwhelming evidence of guilt, it is not reasonably probable that

admitting the 2002 rape victim's testimony materially affected the trial's outcome apart

from the sexual motivation determinations. Hitt unlawfully entered the house by

wrapping a rock around his sweater and breaking a side window. A police officer

described fresh scuff marks on the broken window's molding, and Hitt also had a bloody

cut on his forearm, which supported the inference that Hitt entered the house via the

broken side window. Several witnesses also testified that blood was found in the

house, including on the wooden stairwell and on a victim's door. Importantly, the police


       29RP(Mar. 11, 2013) at 1180.
       30 CP at 199 (emphasis added).
       31 Bourgeois. 133 Wn.2d at 403.
No. 70291-2-1/10


found Hitt inside the house. Upon seeing the police, Hitt retreated from the top floor

landing to the room where six victims were secreted.

       Moreover, in a recorded interview with detectives, Hitt admitted that he "was just

there to rob them."32 Police found two of the women's cell phones and a knife on Hitt's

person. Uncontroverted testimony shows that Hitt intentionally took two victims' cell

phones against their will with the threat of deadly force. Several victims testified that

Hitt was armed with a knife during the commission of the offenses.33 Several victims

also testified that Hitt restrained five victims' wrists with tape that restricted their

movement, threatened to use deadly force if any of the victims called the police, and

intended to hold the victims as hostages if police arrived. Consistent with the victims'

testimony, police officers arrived at the house to find Hitt engaged in the kidnapping and

the five victims' wrists bound with tape. And in a recorded interview with detectives, Hitt

admitted that he "absolutely intentionally intended to burglarize [the] house."34

       More importantly, the State in its closing argument did not use the prior rape

conviction for any purpose other than to argue that it impacted the sexual motivation

special allegations. When the prosecutor discussed the evidence crime by crime, she

discussed intent in general terms for each charged crime. For example, as to

kidnapping, the prosecutor argued that "[b]inding the women, holding them as hostages,

that again shows what his intent was."35 When the prosecutor referred to the prior rape



       32 Ex. 6 at 34.
       33 It is undisputed that the knife constituted a deadly weapon under
RCW 9.94A.825.

       34 Ex. 6 at 50.
       35RP(Mar. 12, 2014) at 1279.


                                               10
No. 70291-2-1/11


conviction testimony, it was in the limited context of urging the jury to find Hitt guilty on

the sexual motivation special allegations. Importantly, the State expressly

acknowledged that the jury

       should not convict Mr. Hitt of the sexual motivation special verdict because
       he raped before. That would be improper. But, you should convict him of
       the sexual motivation special verdict because . . . this unique testimony of
       [the 2002 rape victim] gives you some insight into what motivates Mr. Hitt
       sexually. So, use that evidence appropriately. Look and see that it is a
       common scheme.1361

Thus, the State's closing argument was consistent with the court's oral instruction

limiting consideration of the prior rape evidence to the sexual motivation special

allegations. The broad language of the written limiting instruction proposed by the State

does not require us to overlook the overwhelming evidence of guilt for Hitt's remaining

convictions and deadly weapon sentence enhancements. We therefore affirm Hitt's

convictions for first degree robbery, first degree kidnapping, first degree burglary, and

the deadly weapon sentence enhancements.

       Hitt challenges the reasonable doubt instruction that "[i]f, from such

consideration, you have an abiding belief in the truth of the charge, you are satisfied

beyond a reasonable doubt."37 Hitt contends that the abiding belief language


       36 Id at 1294.
       37 CP at 195 (emphasis added). The trial court used 11 Washington Practice:
Washington Pattern Jury Instructions: Criminal 4.01, at 18 (3d ed. Supp. 2008),
which included the abiding belief language. The court's reasonable doubt instruction
stated in its entirety: "The defendant has entered a plea of not guilty. That plea puts in
issue every element of the crime charged. The State is the plaintiff and has the burden
of proving each element of each crime beyond a reasonable doubt. The defendant has
no burden of proving that a reasonable doubt exists as to these elements. A defendant
is presumed innocent. This presumption continues throughout the entire trial unless
during your deliberations you find it has been overcome by the evidence beyond a
reasonable doubt. A reasonable doubt is one for which a reason exists and may arise
from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a


                                              11
No. 70291-2-1/12



encouraged the jury to undertake an impermissible search for the truth. But our

Supreme Court has expressly affirmed the use of the abiding belief language in the

reasonable doubt instruction.38

       Hitt relies upon State v. Emery, where the prosecutor in closing told the jury both

that their "verdict should speak the truth" and to "speak the truth by holding these men

accountable for what they did."39 Emeryfound these remarks improper, explaining that

"[t]he jury's job is not to determine the truth of what happened; a jury therefore does not

'speak the truth' or 'declare the truth.' Rather, a jury's job is to determine whether the

State has proved the charged offenses beyond a reasonable doubt."40

       Unlike the search for truth argument at issue in Emery, the abiding belief

language in the reasonable doubt instruction given here does not direct jurors to find the

truth for themselves; it merely elaborates on the meaning of "satisfied beyond a

reasonable doubt"41 and accurately informs the jury that it must "determine whether the




reasonable person after fully, fairly, and carefully considering all of the evidence or lack
of evidence. If, from such consideration, you have an abiding belief in the truth of the
charge, you are satisfied beyond a reasonable doubt." CP at 195 (emphasis added).
Hitt did not object to this instruction.
       38 State v. Bennett. 161 Wn.2d 303, 318, 165 P.3d 1241 (2007) (directing trial
courts to use WPIC 4.01); see also State v. Pirtle. 127 Wn.2d 628, 656, 904 P.2d 245
(1995); State v. Fedorov. 181 Wn. App. 187, 200, 324 P.3d 784 (2014); State v. Kinzle.
181 Wn. App. 774, 784, 326 P.3d 870 (2014); State v. Lane. 56 Wn. App. 286, 299-301,
786 P.2d 277 (1989) (rejecting the argument that WPIC 4.01 and the use of the abiding
belief language dilutes the State's burden of proof); accord State v. Mabrv, 51 Wn. App.
24, 25, 751 P.2d 882 (1988); State v. Price. 33 Wn. App. 472, 474-75, 655 P.2d 1191
(1982).
       39 174 Wn.2d 741, 751, 278 P.3d 653 (2012).
       40 ]o\ at 760 (citation omitted).
       41 Kinzle. 181 Wn. App. at 784.


                                             12
No. 70291-2-1/13


State has proved the charged offenses beyond a reasonable doubt."42 The reasonable

doubt instruction accurately states the law. Therefore, Hitt fails to show that the burden

of proof instruction was improper.

       Hitt challenges the sufficiency of the evidence supporting his convictions for five

counts of first degree kidnapping, contending that insufficient evidence supports the

alternative means that he intentionally held five victims as a shield or hostage.43 We

disagree.

       First degree kidnapping is an alternative means crime, where a single offense

may be committed in more than one way.44 "[TJhere must be jury unanimity as to guilt

for the single crime charged,"45 but unanimity is not required for the means by which the

crime was committed ifsufficient evidence supports each alternative means.46 We

review the evidence in the light most favorable to the State.47 Evidence is sufficient if


       42 Emery. 174 Wn.2d at 760. Multiple cases have upheld the use of this
language, finding that it "adequately instructs the jury," Mabrv. 51 Wn. App. at 25, and
"could not have misled or confused the jury." Price. 33 Wn. App. at 476. And,
importantly, Pirtle concluded that the language did not diminish the definition of the
burden of proof. Pirtle, 127 Wn.2d at 658.
       43 Hitt concedes that sufficient evidence supports the jury's finding in count V that
he intentionally abducted E.H. with the intent to use her as a shield or hostage. Hitt only
challenges his first degree kidnapping convictions on counts II, III, IV, VI, and VII.
Moreover, Hitt also concedes that sufficient evidence supports the alternative means
that he intentionally abducted the victims with the intent to facilitate commission of
robbery.
      44 State v. Garcia. 179 Wn.2d 828, 836, 318 P.3d 266 (2014); State v. Crane.
116Wn.2d315, 325, 804 P.2d 10 (1991): State v. Harrington. 181 Wn. App. 805, 818,
333 P.3d 410 (2014) ("An alternative means crime categorizes distinct acts that amount
to the same crime.").
      45 Crane. 116 Wn.2d at 325.
      46 State v. Owens. 180 Wn.2d 90, 99, 323 P.3d 1030 (2014); State v. Sweanv.
174 Wn.2d 909, 914, 281 P.3d 305 (2012).
       47 Owens. 180 Wn.2d at 99.



                                            13
No. 70291-2-1/14



"'any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.'"48

       In State v. Garcia, the court interpreted the meaning of the shield or hostage

alternative means in the first degree kidnapping statute.49 Garcia held that "proof of first

degree kidnapping under the hostage/shield means requires proof that the defendant

intended to use the victim as security for the performance of some action by another

person or the prevention of some action by another person."50 Garcia also held that first

degree kidnapping requires an additional specific intent—an intent not only to

intentionally abduct another person but also an "intent to use the victim as protection for

the perpetrator."51

       The trial court here instructed the jury on two alternative means, providing that

"[a] person commits the crime of kidnapping in the first degree when he or she

intentionally abducts another person with intent to hold the person as a shield or

hostage or to facilitate the commission of robbery or flight thereafter.52 We must

determine whether there is sufficient evidence for any rational trier of fact to find that Hitt

intended to use the victims as a shield or hostage."53


      48 Garcia. 179 Wn.2d at 836 (quoting State v. Engel. 166 Wn.2d 572, 576, 210
P.3d 1007 (2009)); Owens. 180 Wn.2d at 99.
       49 179 Wn.2d 828, 318 P.3d 266 (2014).
       50 JdL at 840.
       51jdL
       52 CP at 207; see RCW 9A.40.020(1)(a), (b).
       53 See In re Pers. Restraint of Fletcher. 113 Wn.2d 42, 52-53, 776 P.2d 114
(1989) (interpreting first degree kidnapping statute) ("[T]he person who intentionally
abducts another need do so only with the intent to carry out one of the incidents
enumerated in RCW 9A.40.020(1)(a) through (e) inclusive; not that the perpetrator
actually bring about or complete one of those qualifying factors listed in the statute.").


                                              14
No. 70291-2-1/15


       Here, the record supports that Hitt intended to use the victims as hostages.54

Several victims testified that, while Hitt bound their wrists together, he said he would

"make this a hostage situation" if police were called.55 This evidence clearly reveals

Hitt's intent to hold the victims "'as security for the performance, or forbearance, of

some act by a third person [e.g., the police].'"56 Although no demands were made on

third persons and the incident involved communications only between Hitt and the

victims, a rational trier of fact could find, drawing all reasonable inferences favorable to

the State, that Hitt intended to hold the victims as hostages if the police arrived. That

Hitt did not carry out this intent when police arrived does not diminish the evidence of

his intent to do so when he bound the women. Therefore, this alternative means is

supported by sufficient evidence, and we affirm his first degree kidnapping convictions.

       Hitt contends that the cumulative effect of the trial court's errors prejudiced him

and likely materially affected the jury's verdict. "The cumulative error doctrine applies

only when several trial errors occurred which, standing alone, may not be sufficient to

justify a reversal, but when combined together, may deny a defendant a fair trial."57

Here, we accept the State's concession as to a single issue—the evidence of Hitt's

2002 rape conviction. There is no cumulative error.




       54 Based on the victims' testimony, it is clear that Hitt did not in fact use the
victims as hostages when police arrived.
       55 RP (Mar. 4, 2013) at 542; see also RP (Mar. 5, 2013) at 680 ("That we would
be hostages if the police came.").
       56 Garcia. 179 Wn.2d at 839 (quoting State v. Crump. 82 N.M. 487, 493, 484
P.2d 329 (1971)).
       57 State v. Hodges. 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003).


                                              15
No. 70291-2-1/16


       Because we accept the State's concession that his sexual motivation special

verdicts should be reversed, we need not address Hitt's remaining persistent offender

arguments.58 Moreover, because we reverse Hitt's sexual motivation special verdicts,

which served as Hitt's second strike, Hitt will not be subject to being classified as a

persistent offender at resentencing. This renders his remaining arguments moot.

       We reverse the sexual motivation special verdicts as applied to counts I and III,

affirm the first degree burglary conviction, first degree kidnapping convictions, first

degree robbery convictions, and deadly weapon sentence enhancements and remand

for resentencing.




WE CONCUR:




      58 Hitt agrees that we need not address his persistent offender arguments if we
accept the State's concession for the sexual motivation special verdicts.


                                             16
