New opinions: Bobenhouse and Kyllo
State v. Bobenhouse, No. 81413-9. Phillip Bobenhouse was convicted on multiple counts of first degree rape of a child and first degree incest based on evidence that he forced his two minor children (referred to as “John” and “Jane”) to have sexual intercourse with each other and that he committed sexual acts with his son. The trial court imposed a sentence of up to life with an exceptional minimum sentence of 600 months on each rape count, to run concurrently. The Court of Appeals affirmed the convictions and the exceptional minimum sentence imposed by the trial court.
A unanimous Supreme Court, with Justice Charles Johnson writing the opinion, rejected all of Bobenhouse’s claims.
Bobenhouse argued that no crime could have occurred by forcing his two children to have sexual intercourse with each other as both children were less than eight years old and incapable of committing a crime, under the statute. He argued that under the statute it is not a crime for a person to force (and watch) two children to have sexual intercourse with each other.
The Court rejected this argument, noting that a person can be convicted as a principal. The Court said that implied in the statute dealing with the rape of a child is that the perpetrator is defined as one who causes the other person to engage in the act amounting to rape of a child in the first degree. “Had Bobenhouse engaged in this conduct himself, it would have constituted the crimes of rape of a child in the first degree and incest in the first degree. Put otherwise, because of his legal accountability for John and Jane, Bobenhouse was the “perpetrator” in this case and, therefore, was acting as an accomplice in committing first degree rape of a child and incest against John and Jane.
Bobenhouse also argued that the trial court erred by failing to provide the jury with a unanimity instruction regarding the rape of John directly by Bobenhouse. (In order to convict a person of a criminal charge, the jury must be unanimous that the defendant committed the criminal act.) The Court determined that the trial court’s failure to instruct the jury on the unanimity was a harmless error that did not warrant reversal.
Bobenhouse finally argued the trial court erred by imposing an exceptional minimum sentence, and that it was error for the trial court, rather than the jury, to determine the aggravating factors. The Court noted that it previously held that case law “does not prohibit judicial fact finding when the trial court imposes either an indeterminate sentence of life or a minimum sentence within that life sentence.”
State v. Kyllo, No. 81164-4. This case arises out of Division Two Court of Appeals, and concerns whether Kyllo received effective counsel in his trial for second degree assault of a fellow inmate. Kyllo appealed on the grounds that his attorney made several errors, primarily related to jury instructions about his self-defense claim.
On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, defendant Kenneth Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense. Defense counsel proposed a self-defense jury instruction that stated:
A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
Kyllo was convicted on the charge of second degree assault. On appeal Kyllo asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion. The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured—“One is not required to believe he is about to be grievously harmed or killed.”
The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.
