State v. Bobenhouse

Summary

The Washington Supreme Court affirmed Phillip J. Bobenhouse’s convictions for first degree rape of a child and first degree incest. The court held that a defendant may be held legally accountable as an accomplice for forcing children to engage in sexual intercourse with each other, and that any failure to give a unanimity instruction was harmless under the facts. The court also upheld the exceptional minimum sentence, concluding that judicial fact-finding did not violate Blakely and that any offender-score error was harmless.

Holdings

1. A person who is legally accountable under RCW 9A.08.020 for causing an innocent or irresponsible person to engage in criminal conduct may be convicted as a principal or accomplice of first degree child rape and first degree incest, even when the person caused two children to have sexual intercourse with each other rather than personally engaging in the intercourse.
2. Because first degree child rape is one crime that may be committed in multiple ways, rather than an alternative-means offense consisting of separate crimes, a defendant is entitled to a Petrich unanimity instruction when multiple acts could independently support the charged count. Under the facts here, however, the failure to give such an instruction was harmless.
3. Judicial fact-finding supporting an exceptional minimum sentence within an indeterminate life sentence does not violate Blakely because the applicable statutory maximum for Apprendi purposes is life imprisonment.
4. Any error in failing to treat the relevant offenses as the same criminal conduct was harmless because Bobenhouse’s offender score remained above nine, so the unpunished-crimes aggravating factor still supported the exceptional sentence.

Questions Presented

1. Whether a defendant may be convicted of first degree child rape and first degree incest based on accomplice or legal-accountability liability for causing two children to have sexual intercourse with each other when the children are statutorily incapable of committing crimes.
2. Whether the trial court's failure to give a unanimity instruction concerning multiple acts supporting the first degree child-rape count required reversal.
3. Whether judicial fact-finding supporting an exceptional minimum sentence within an indeterminate life sentence violated Blakely v. Washington.
4. Whether any error in calculating the offender score by failing to treat certain offenses as the same criminal conduct required reversal of the exceptional sentence.

Disposition

affirmed