IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

MARKANTHONY STILLER, Appellant. No. 68874-0-1 DIVISION ONE UNPUBLISHED OPINION FILED: April 28, 2014 Appelwick, J. — Stiller was convicted of one count of child molestation and five counts of child rape. He challenges the trial court's refusal to find same criminal conduct for five of the six offenses, arguing that the evidence does not show they occurred at separate and distinct times. Stiller also raises several issues in his 

### statement of additional grounds, including clerical errors inthejudgment and sentence. We affirm, butremand for correction ofclerical errors inthejudgmentand sentence. FACTS 

### On January 23, 2012, the State charged Mark Stiller by amended information withone countof firstdegree childmolestation (Count I), in violation of RCW 9A.44.083, and five counts of first degree child rape (Counts ll-VI), in violation of RCW 9A.44.073. The information alleged that between October 16, 2008 and October 15, 2010, Stiller had sexual contactwith A.J.B., a female underthe age of 12 (Count I). The information further alleged that, between the same dates, Stiller had sexual intercourse with A.J.B.No. 68874-0-1/2 

### by fellatio (Count II), cunnilingus (Count III), digital anal penetration (Count IV), penile anal penetration (CountV), and digitalvaginal penetration (CountVI). 

### Atthe time of trial in January 2012, A.J.B. was 10 years old. A.J.B.'s mother 

### explained that she had known Stiller for 10 years and A.J.B. had known him all her life. A.J.B. frequently played at Stiller's home and often stayedthere overnight. AJ.B.'s mothertestified that on October 12, 2010, A.J.B. came to hervery upset, 

### complaining that it "hurt to pee" and said that she had been touched by a man. A.J.B.'s motherimmediately called 911. 

### That same night, A.J.B. told a child sexual assault nurse practitioner that Stiller had touched her mouth, genital area, rectal area, and breasts "'lots of times'" over the 

### past two years. A.J.B. told the nurse about one particular incident inSeptember 2010 where Stillerblindfolded her, told herto hold still, and inA.J.B.'s words, "'puthis privates 

### into my butt.'" A.J.B. also mentioned another occasion where Stillerejaculated in her mouth.

### On October 15, 2010, A.J.B. spoke with Detective Jana Bouzek, a state certified child interviewer. A.J.B. told Bouzekthat Stillersexually abused her fromthe time she
was seven and a half until a month before the police investigation. A.J.B. explained to 

### Bouzek that Stiller "put his pee pee in her bottom hole." A.J.B. also described incidents to Bouzek where Stiller would have her fellate him or masturbate him while wearing 

### white fuzzy gloves. She told Bouzek that Stiller used his hands to touch her private parts and herbutt, andthat he had put his finger inside hervagina. 

### At trial, A.J.B. testified that Stiller taught her how to touch his "front" and described times when he made her use white fuzzy gloves to masturbate him. SheNo. 68874-0-1/3

testified that white stuff came out of Stiller's front three or four times. A.J.B. described how Stillerrubbed herfront and that onetime he put his finger partway inherfront and it hurt. She testified that Stiller would put his tongue on her front while she was lying down on the bed or on the floor. A.J.B. also described incidents where Stiller held her 

### hands while "[a]ll sorts of touching" happened. She explained that Stiller made her touch his front most often and second most often made her touch his front with her mouth. A.J.B. testified that allthese incidents happened inStiller's room. 

### The trial court instructed the jury: "A separate crime is charged in each count. 

### You must decide each count separately. Your verdict on one count should not control 

### your verdict on any other count." Each "to convict" instruction referenced a specific countand the date range October 16, 2008 to October 15, 2010. 

### Thejury returned a specialverdictform finding Stillerguilty as charged onall six

counts.

### In his sentencing memorandum, Stiller argued that his sixconvictions should be counted as the same criminal conduct in calculating his offender score, because the 

### State failed to prove beyond a reasonable doubt that the six acts occurred at different times. Stiller asserted that there was no evidence regarding specific dates or times of 

### any ofthe incidents exceptthe penile anal penetration. 

### The trial court refused to count any of Stiller's six convictions as same criminal conductforthe purposes ofsentencing. The courtexplained: 

### The question before the Court isdoes fState v. Dolen, 83 Wn. App. 361, 921 P.2d 590 (1996), overruled by State v. Graciano. 176 Wn.2d 531, 295 P.3d 219 (2013)], therefore, saythat underthese circumstances, 

### the fact that the jury was notaskedto and did not determine which specificNo. 68874-0-1/4 dates ofthese individual acts occurred means thatthey mustall be treated as same criminal conduct? Now, the same course of criminal conduct cases involves, generally, when there's a number of multiple acts, things that happen in fairly short succession in a matter ofan hour or two hours on a particular incident. Some ofthe cases that have been cited involve situations where a defendant and the victim are togetherfor an hour or an hour and a half. Numerous things occur during that same period of time. It's not like something that happens over and over again overthe course of a year or two years. The testimony in this case as I've gone back and reviewed my notes and my recollection of the testimony was that, clearly, the one incident, I believe it was in September, the penile/anal contact was described as a separate event, but it was also my recollection that the child described numerous instances in the same room and described differentthings that happened atthose instances without being able to say what date they were and what sequence they happened, but they were separate events, and I agree that some of these things may have happened on more than one ofthose events, butthe testimony was there were numerous events. The testimony I think clearly supports the jury finding that there were separate events that involved separate behavior, and the intent for those behaviors is different. There are multiple dates. There are multiple, separate acts, and Ithink underthose circumstances, the holding in Dolen is not necessarily controlling to this Court.

So my feeling and my belief and my finding and my decision as to how they should be treated is thateach ofthese offenses has been found. Each one relates to a specific act. Each specific act has its own specific intentto perform the act, and therefore, they aren'tto be counted as same criminal conduct. They should be counted as separate criminal conduct. The court then imposed a standard range sentence of 198 months on Count Iand 318 months on Counts ll-VI. Stiller appeals, challenging the trial court's refusal to find same criminal conduct. He also raises several issues in his statementofadditional grounds.No. 68874-0-1/5

DISCUSSION I. Same Criminal Conduct 

### Stillerargues that the trial court abused itsdiscretion byrefusing tofind thatfive of his six current offenses constituted same criminal conduct in calculating his offender


### score. Stillercontends thatthe record is devoid of any evidence showing separate and 

### distinct incidents for five of the charges. He further argues that the jury verdicts do not indicatewhether some or all ofthe charges are based on the same incident or separate 

### incidents. Accordingly, he asserts that the trial court's refusal to find same criminal conduct is untenable and unsupported by the evidence. He asks us to reverse his sentence and remand to the trialcourtforresentencing with a corrected offenderscore. A determination of same criminal conduct at sentencing affects the standard 

### range sentence by altering the defendant's offender score, which is calculated by 

### adding a specified number of points for each prior conviction. RCW 9.94A.525; Graciano, 176 Wn.2d at 535-36. Forthe purposes of this calculation, current offenses


### are treated as prior convictions. RCW 9.94A.589(1)(a). However, "ifthe courtenters a 

### finding that some orall of the current offenses encompass the same criminal conduct then those currentoffenses shall be counted as one crime." \± Crimes constitute same 

### criminal conduct when they "require the same criminal intent, are committed at the 

### same time and place, and involve the same victim." ]a\ RCW 9.94A.589(1)(a) is generally construed narrowly to disallow most claims that multiple offenses constitute the same criminal act. Graciano, 176Wn.2d at 540. 

### We review the sentencing court's determination of same criminal conduct for abuse of discretion ormisapplication oflaw. Icjl at 536-37. Under this standard, whenNo. 68874-0-1/6
the record supports only one conclusion as to whether crimes constitute same criminal conduct, the sentencing court abuses its discretion in arriving at a contrary result, jd. at 537-38. But, where the record adequately supports either conclusion, the matter lies within the court's discretion, jd at 538. In Dolen. thejury convicted Earl Dolen ofone count of child rape and one count of child molestation based on evidence of six separate acts of child abuse. 83 Wn. App. at 362-63. Under the evidence, Dolen could have committed both crimes in a single incidentor in separate incidents, jd, at 363. The verdict did not specify which incident formed the basis for each conviction. jd. At sentencing, the trial court treated the two 

### convictions as separate and distinct. kL at 364. The appellate court reversed, holding 

### that the record did not support the trialcourt's finding that the crimes were not part of the same criminal conduct, because the verdict did not specify whether the crimes 

### occurred inthe same or separate incidents. Id, at 363. The court reasoned that the State borethe burden of provingthat Dolen committed the crimes inseparate incidents, which itfailed to do. Id, at 365. 

### The Washington Supreme Court overruled Dolen recently in Graciano. 176 Wn.2d at 538-39. There, thejury found the defendant guilty of four counts of child rape and two counts of child molestation, jd. at 534. The trial court expressed confidence 

### that each ofthefourrapes was separatefrom the others, id. However, it noted that the record was unclearwhetherthe defendant once raped and twice molested the victim in 

### a single incident or on differentoccasions. Jd. at 534-35. Because the record failed to establish that these incidents were separate, the court of appeals concluded that the 

### time and place ofthe crimes werethe same, jd, at 538. Thus, the court ofappeals heldNo. 68874-0-1/7

that the two child molestation convictions and one of the child rape convictions constituted same criminal conduct, jd. at 535. 

### The Washington Supreme Court reversed the court ofappeals—and Dolen—for 

### improperly placing the burden of proof on the State, jd at 535, 538-39, 541. The Supreme Court held thatthe defendant bears the burden of production and persuasion for same criminal conduct, jd. at 540. Each of a defendant's convictions counts towards his offender score unless he convinces the court that they involved the same 

### criminal intent, same time, same place, and same victim. \<L If the defendant fails to 

### prove any ofthese elements, the crimes do not constitute same criminal conduct, jd. Therefore, where the record is unclear, as inGraciano. the trial courtdoes not abuse its 

### discretion in refusing to entera finding ofsame criminalconduct, jd at 541. Here, the trial court noted that the penile anal intercourse clearly occurred as a 

### separate event. Beyond that, A.J.B. described numerous, separate acts occurring in the same room over the course of a two year period. Based on this, the trial court 

### concluded that the evidence supported the jury's finding ofmultiple, separate acts.1 However, the court acknowledged that the record was unclear aboutthe specific dates 

### and sequence ofthese numerous incidents. The court recognized that some of Stiller's acts may have occurred morethan once combined withotheracts.



### 1The jury's verdictwas notambiguous, as Stiller claims. The State identified the 

### conduct forming the basis ofeach charge. See State v. Kier. 164 Wn.2d 798, 811-12, 194 P.3d 212 (2008). The jurywas instructed to that effect and found Stillerguilty of each ofthe six counts as charged.No. 68874-0-1/8

Under Graciano. Stillerfailed to showthatfive ofthe crimes occurred atthe same 

### time. Therefore, we hold that the trial court did notabuse itsdiscretion in refusing to entera finding ofsame criminal conduct.

II. Statement ofAdditional Grounds 

### Stillerraises several issues in his statementof additional grounds. 

### Stillerfirst argues that the Statefailed to prove an elementof bothchild rape and child molestation: that he was not married to the victim. RCW 9A.44.073; RCW 

### 9A.44.083. He also alleges prosecutorial misconduct, because the State argued in closing that he was not married to the victim. However, testimony at trial established that Stillerwas married to a woman named Vanessa. The victim was also seven to nine 

### years old at the time of the charged offenses. Every marriage in Washington in which 

### either person is under 17 years old is void. RCW 26.04.010(2). Therefore, by law, Stillercould not have been married to A.J.B. 

### Stiller contends that the A.J.B.'s testimony violated his due process rights, because her testimony attrial changed from herinitial story. Specifically, Stillerargues thatA.J.B. firsttold the nurse practitioner that there was no vaginal contact. But, A.J.B. 

### then testified attrial that Stillertouched herfront. However, Stillerhad the opportunity to cross-examine A.J.B., as well as the nurse practitioner, about this discrepancy in A.J.B.'s story. Credibility determinations are for the jury and not subject to review. 

### State v. Thomas. 150Wn.2d 821, 874, 83 P.3d 970 (2004). Thus, we defer to thejury
on issues ofconflicting testimony, credibility ofwitnesses, and the persuasiveness of the evidence, jd at 874-75. We decline to reverse on this basis.

8No. 68874-0-1/9
Stiller next argues that the trial court impermissibly instructed thejury that they
are officers of the court. He contends that this instruction improperly aligned the jury with the prosecutor and thejudge. Jury instructions are sufficient ifthey correctly state the law, are not misleading, and allow each party to argue its theory ofthe case. State v. Mark. 94 Wn.2d 520, 526, 618 P.2d 73 (1980). It is well settled thatjurors are sworn officers of the court. State v. Vega. 144 Wn. App. 914, 917, 184 P.3d 677 (2008). Therefore, thejury instruction correctly stated the law. Stillercontends thatthe grandjury provision oftheWashingtonTerritorial Code is still good law and requires indictments in all felony cases. However, under article I, section 25 of the Washington Constitution, the State may prosecute offenses by indictment or information. The FifthAmendment right to a grandjury does not apply to state prosecutions. State v. Ng. 104 Wn.2d 763, 775, 713 P.2d 63 (1985). Additionally, Washington courts have found that a grandjury indictmentis not required to assure due process of law. jd. The State was not required to indict Stiller by grand jury. His argumentfails. 

### Stiller lastly argues that he was improperly sentenced for convictions outside the date range originallyspecified inthe charging document. The information alleged that all counts of child rape and child molestation occurred between October 16, 2008 and 

### October 15, 2010. The to convict jury instructions specified the same date range for all counts. However, the judgment and sentence states that Count I (child molestation) 

### occurred on January 1, 2007 and Count III (child rape) occurred on January 1, 2006. Stiller correctly points out a discrepancy in two errant dates in the judgment and sentence. The record consistently references the October 16, 2008 to October 15,No. 68874-0-1/10


### 2010 date range, including the charging document, the to convict instructions, the State's presentence investigation report, and the defendant's sentencing memorandum. We find no reference to the January 1, 2006 and January 1, 2007 dates aside fromthe 

### judgmentand sentence. The State concedes thatthe dates listed forcounts Iand II, as well as the date for count II (April 25, 2009), are clerical errors. We agree. Accordingly
we remand to the trial courtfor correction ofthese three clerical errors in thejudgment and sentence. In re Pers. Restraint of Mayer, 128Wn. App. 694, 701-02, 117 P.3d 353 (2005); see CrR 7.8(a). We affirm, but remand for correction of the clerical errors in the judgment and

sentence.

WE CONCUR:

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