                                                     COUPT                    1
                                                      STATE OF WAS!-!! !rTO!!
                                                      2017 DEC L6 i,i; 6:27
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                    No. 75079-8-1
                      Respondent,
                                                    DIVISION ONE
               V.
                                                    UNPUBLISHED OPINION
ROBERT RAYMOND RAETHKE,

                      Appellant.                    FILED: December 26, 2017


       TRICKEY, A.C.J. — Robert Raethke appeals his conviction of second degree

assault committed with sexual motivation and his sentence to life without the

possibility of parole under the Persistent Offender Accountability Act(POAA)of the

Sentencing Reform Act of 1981, chapter 9.94A RCW. Raethke argues that the

trial court erred in instructing the jury on the "abiding belief" definition of proof

beyond a reasonable doubt. He next contends that the trial court violated his due

process and Sixth Amendment rights when it imposed a sentence of life without

the possibility of parole but did not have the jury find the fact of his prior convictions

beyond a reasonable doubt. He also argues that his right against double jeopardy

was violated when the same fact was used to satisfy an element of his underlying

crime and support his sentence under the POAA. Finding no error, we affirm.

                                        FACTS

       On April 30,2014, A.C. was walking her dog along the Arlington Airport Trail

when she encountered Raethke. Raethke -told A.C. that she was beautiful and

asked for a hug. Raethke grabbed A.C. in a hug and began kissing her on the
No. 75079-8-1 /2

neck and cheek. Although A.C. repeatedly shoved Raethke and told him to let her

go, Raethke held on for seven to ten seconds. After Raethke let go of her, A.C.

told him she was going to call the police and Raethke ran away. Later, A.0 told

Officer Peter Barrett that she thought she was going to be raped when Raethke

was hugging and kissing her.

       The State charged Raethke with second degree assault with sexual

motivation based on intent to commit indecent liberties by forcible compulsion. The

State noted that, if convicted, Raethke would be a persistent offender under the

POAA and would be sentenced to life in prison without the possibility of parole.

       Prior to trial, the State moved to admit evidence of Raethke's prior

convictions of first degree rape and attempted first degree rape, including

testimony of his prior victims S.C., K.D., and M.N. The trial court admitted the prior

victims' evidence under ER 404(b) on the issue of Raethke's intent to commit

indecent liberties and so that the jury could evaluate whether the crime was

sexually motivated.

       At trial, S.C., M.N., and K.D. testified that Raethke had grabbed them on

wooded trails and taken them into the woods to sexually assault them.

       The jury found Raethke guilty of assault in the second degree, and found

that he committed the crime with sexual motivation.

       At Raethke's sentencing, the State offered a certified copy of his prior

judgments and convictions for first degree rape and attempted first degree rape.

The trial court sentenced Raethke to life without the possibility of parole as a

persistent offender under the POAA.


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 No. 75079-8-1 / 3

          Raethke appeals.

                                        ANALYSIS

                     Proof Beyond a Reasonable Doubt Instruction

          Raethke argues that the trial court erred because its instruction on the

 beyond a reasonable doubt standard of proof included language about the jury

 having an "abiding belief in the truth of the charge."1 The State responds that

 Washington courts have previously approved of this language. We agree with the

 State.

          Jury instructions "must convey to the jury that the State bears the burden of

 proving every essential element of a criminal offense beyond a reasonable doubt."

 State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).

          The Washington Pattern Jury Instructions — Criminal(WP1C)4.01 provides

 a model reasonable doubt instruction:

                 [The][Each] defendant has entered a plea of not guilty. That
          plea puts in issue every element of [the][each] crime charged. The
          [State] [City][County] is the plaintiff and has the burden of proving
          each element of[the][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 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.]


'Clerk's Papers(CP) at 78.
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No. 75079-8-1 / 4

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

401 (4th ed. 2016) (WPIC) (boldface omitted) (alterations in original).          The

Washington Supreme Court has approved of this "abiding belief" instruction, and

directed that trial courts must use it to instruct the jury on the government's burden

and reasonable doubt. See Bennett, 161 Wn.2d at 308, 317. This court has relied

on Bennett to uphold the use of WPIC 4.01, including the optional "abiding belief

in the truth" language. State v. Fedorov, 181 Wn. App. 187, 199-200, 324 P.3d

784 (2014).

       A challenged jury instruction is reviewed de novo, "'in the context of the

instructions as a whole." State v. Brett, 126 Wn.2d 136, 171, 892 P.2d 29(1995)

(quoting State v. Benn, 120 Wn.2d 631, 655, 845 P.2d 289 (1993)).

       Here, the trial court's reasonable doubt instruction was identical to WPIC

4.01, including the bracketed "abiding belief in the truth of the charge" language.2

Bennett approved of WPIC 4.01, including the "abiding belief in the truth of the

charge" language, and has not been overturned. WPIC 4.01 has not been

replaced with a new reasonable doubt instruction. We are bound by Bennett, and

conclude that the trial court did not err when it gave the jury a reasonable doubt

instruction based on WPIC 4.01.

       Raethke argues that this court should specifically disapprove of the optional

"abiding truth" language in WPIC 4.01 because several subsequent cases have

disapproved of argument characterizing the jury's role as finding or declaring the

truth. See State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014); State v.



2 CP at 78.
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No. 75079-8-1 / 5

Emery, 174 Wn.2d 741, 760, 278 P.3d 653(2012); State v. Berube, 171 Wn. App.

103, 120-21, 286 P.3d 402 (2012). None of these cases are persuasive. Each

case concerned remarks made by the prosecutor during closing argument telling

the jury to speak the truth or search for the truth. None challenged Bennett's

direction to use WPIC 4.01 as a reasonable doubt instruction. We reject this

argument.3

                         Bench Findings of Prior Convictions

       Raethke argues that the trial court violated his due process and Sixth

Amendment rights when it sentenced him to life without the possibility of parole

under the POAA without a jury finding that he was an offender with a prior strike

beyond a reasonable doubt. The State responds that the Washington Supreme

Court has already rejected this argument. We agree with the State.

       "The Sixth Amendment provides that those `accused' of a 'crime' have the

right to a trial 'by an impartial jury.' This right, in conjunction with the Due Process

Clause, requires that each element of a crime be proved to the jury beyond a

reasonable doubt." Allevne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 2156,

186 L. Ed. 2d 314 (2013). "[A]ny fact that increases the [mandatory minimum

sentence of the crime] is an `element' that must be submitted to the jury." Alleyne,

133 S. Ct. at 2155. But the fact of a prior conviction does not need to be submitted

to a jury and proved beyond a reasonable doubt, even if it may increase the penalty

for the crime at issue beyond the statutory maximum. Apprendi v. New Jersey,


'This court has previously rejected an analogy to cases involving prosecutorial "speak the
truth" comments during closing arguments. See Fedorov, 181 Wn. App. at 200 (rejecting
an analogy to Emery, 174 Wn.2d at 760). Raethke does not distinguish the instructions
at issue in Fedorov and in the present case. We reject this analogy.
                                            5
No. 75079-8-1/6

530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed,. 2d 435(2000); see also Blakely v.

Washington, 542 U.S. 296, 308, 313-14, 124 S. Ct. 2531, 159 L. Ed. 2d 403(2004)

(holding that a sentence above the statutory maximum based on the sentencing

judge's finding of deliberate cruelty violated the defendant's Sixth Amendment

rights, but not questioning Apprendi's exception for prior convictions).

       "[F]or the purposes of the POAA, a judge may find the fact of a prior

conviction by a preponderance of the evidence." State v.Witherspoon, 180 Wn.2d

875, 892, 329 P.3d 888 (2014). The POAA does not violate state or federal due

process by not requiring that a jury must find the existence of prior strike offenses

beyond a reasonable doubt. Witherspoon, 180 Wn.2d at 891-92 (discussing

Alleyne, 570 U.S. 99, Blakely, 542 U.S. 296, and Apprendi, 530 U.S. 466).

      "The State bears the burden of proving by a preponderance of the evidence

the existence of prior convictions as predicate strike offenses for purposes of the

POAA." Witherspoon, 180 Wn.2d at 893 (citing State v. Knippling, 166 Wn.2d 93,

100, 206 P.3d 332 (2009)). "The best evidence of a prior conviction is a certified

copy of the judgment." State v. Hunley, 175 Wn.2d 901, 910,287 P.3d 584(2012)

(quoting State v. Ford, 137 Wn.2d 472,480, 973 P.2d 452(1999)).

       Constitutional issues are questions of law that are reviewed de novo on

appeal. State v. Gresham, 173 Wn.2d 405,419, 269 P.3d 207(2012).

       Here, prior to Raethke's sentencing, the State introduced a certified copy of

Raethke's prior judgments convicting him of four counts of first degree rape and

one count of attempted first degree rape. At the sentencing hearing, the trial court

said that it had received the certified copy of the prior judgments before stating that


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No. 75079-8-1 /7

it found Raethke to be a persistent offender. Thus, the State met its burden of

proving Raethke's previous strike offenses by a preponderance of the evidence.

We conclude that trial court did not violate Raethke's due process and Sixth

Amendment rights when it did not require the jury to find the existence of his prior

convictions beyond a reasonable doubt.

                                  Double Jeopardy

       Raethke argues that the trial court erred when it imposed a sentence of life

without the possibility of parole because it lacked the statutory authority to consider

his present offense a strike crime. The State responds that Raethke was properly

sentenced because his single sentence under the POAA does not implicate his

right against double jeopardy. We agree with the State.

      "No person shall be compelled in any criminal case to. . . be twice put in

jeopardy for the same offense." WASH.CONST. art.!,§9; see also State v. Gocken,

127 Wn.2d 95, 102, 896 P.2d 1267 (1995) (noting that the state and federal

constitutions' double jeopardy protections are "virtually identical" and are given the

same interpretation). The double jeopardy clause protects against a second

prosecution for the same offense following an acquittal or a conviction and against

multiple punishments for the same offense. Gocken, 127 Wn.2d at 100.

       If a defendant has been subjected to a second or cumulative sentence, the

reviewing court must determine whether clear legislative intent supports the trial

court's imposition of the sentence. State v. Kelley, 168 Wn.2d 72, 76-77, 226 P.3d

773(2010)(citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed.

2d 535(1983)). Absent such clear legislative intent, the reviewing court must apply


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No. 75079-8-1 / 8

the test laid out in Blockburger v. United States to determine whether there are two

offenses at issue or one. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

       "Double jeopardy claims are questions of law that are reviewed de novo."

Kelley, 168 Wn.2d at 76.

       Here, Raethke's sentence of life without the possibility of parole based on

his second strike offense under the POAA does not violate his right against double

jeopardy. Raethke was charged with and convicted of assault in the second

degree with the intent to commit indecent liberties by forcible compulsion. He had

previously been convicted of first degree rape and attempted first degree rape.

Thus, his present conviction for assault in the second degree with sexual

motivation qualified as a second strike requiring a sentence of life without the

possibility of parole under the POAA. RCW 9.94A.030(38)(a)(i),(b)(i); see also

RCW 9A.36.021(1)(e).

       Raethke received a sentence of life without the possibility of parole as a

persistent offender under the POAA. He did not receive a separate sentence for

assault in the second degree. Thus, he has received a single sentence for a single

offense. We conclude that Raethke's right against double jeopardy was not

implicated in the present case.4 See Jones v. Thomas,491 U.S. 376,382 n.2, 109




4 Raethke also argues that his right against double jeopardy was violated because the
finding of sexual motivation both satisfied an element of his underlying crime and was
used as a sentencing enhancement of sexual motivation under the POAA, relying on
federal case law. The Washington Supreme Court has previously rejected the argument
that using the same fact as both an element of the underlying offense and as an
enhancement violates double jeopardy. See Kelley, 168 Wn.2d at 76 (stating that
imposing a sentencing enhancement based on the same facts as an element of the
underlying crime does not violate double jeopardy, acknowledging Apprendi, 530 U.S.
466, Blakely, 542 U.S. 296, and Rind v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L.
                                          8
No. 75079-8-1 / 9

S. Ct. 2522, 105 L. Ed. 2d 322 (1989). Thus, we need not determine whether

Raethke's sentence was supported by clear legislative intent or apply the

Blockburger test.

                         Statement of Additional Grounds

       In his statement of additional grounds, IRaethke provides a recitation of the

facts and argues that there is insufficient evidence to support his conviction of

second degree assault with the intent to commit indecent liberties. He contends

that the facts would only support a conviction for fourth degree assault. We

disagree.

       Evidence is sufficient to sustain a conviction if, after viewing the evidence

in the light most favorable to the State, any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. State v. Green,

94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). "A claim of insufficiency admits the

truth of the State's evidence and all inferences that reasonably can be drawn

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

       Raethke was convicted of assault in the second degree with the intent to

commit indecent liberties. "A person is guilty of assault in the second degree if he

or she, under circumstances not amounting to assault in the first degree: . . .[w]ith

intent to commit a felony, assaults another." RCW 9A.36.021(1)(e). Indecent

liberties occurs when an offender "knowingly causes another person to have

sexual contact with him or her or another: . ..[b]y forcible compulsion" is a class

A felony. RCW 9A.44.100(1)(a). "Sexual contact" is defined as "any touching of


Ed. 2d 556 (2002)). We follow the Washington Supreme Court's precedent and reject
Raethke's argument.
                                         9
No. 75079-8-1 /10

the sexual or other intimate parts of a person done for the purpose of gratifying

sexual desire of either party or a third party." RCW 9A.44.010(2). "Forcible

compulsion" is defined in part as "physical force which overcomes resistance."

RCW 9A.44.010(6).

       Here, A.C. testified that she did not consent to being hugged or kissed by

Raethke. A.C. testified that Raethke held her for seven to ten seconds in spite of

her attempts to shove him away and her telling him to let her go. A.C. also testified

that she thought she was going to be raped when she was being hugged and

kissed by Raethke. Raethke's prior victims testified that Raethke's actions in the

present case were similar to when he sexually assaulted them.

       Viewing this evidence in the light most favorable to the State, the record

contains sufficient evidence to sustain Raethke's conviction of second degree

assault with the intent to commit indecent liberties. Raethke assaulted A.C. when

he hugged and kissed her without her consent, and acted with forcible compulsion

when he held on to her despite her physical resistance. There is a reasonable

inference from the testimony of A.C. and Raethke's prior victims that Raethke

acted with intent to touch A.C.'s "sexual or other intimate parts. ..for the purpose

of gratifying" his sexual desire. RCW 9A.44.010(2). Thus, a rational trier of fact

could have found the essential elements of Raethke's offense beyond a

reasonable doubt. We reject Raethke's argument.

       Raethke analogizes to State v. R.P. to argue that his actions were

insufficient to constitute indecent liberties. 122 Wn.2d 735, 736, 862 P.2d 127

(1993)(holding that there was insufficient evidence of sexual contact to sustain


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No. 75079-8-1 / 11

conviction of indecent liberties when offender left a "hickey" on victim's neck area).

This is unpersuasive. Raethke was convicted of second degree assault with the

intent to commit indecent liberties, not indecent liberties itself. The fact that his

actions were insufficient to constitute indecent liberties is irrelevant to determining

whether he acted with intent to commit indecent liberties. We reject this argument.

                                   Appellate Costs

       Raethke asks that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. RAP 14.2. But

when a trial court makes a finding of indigency, that finding remains throughout

review "unless the commissioner or clerk determines by a preponderance of the

evidence that the offender's financial circumstances have significantly improved

since the last determination of indigency." RAP 14.2. Here, the trial court found

Raethke did not have an ability to pay legal financial obligations. If the State has

evidence indicating that Raethke's financial circumstances have significantly

improved since the trial court's finding, it may file a motion for costs with the

commissioner.

       Affirmed.
                                                              cdke
WE CONCUR:




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