State Of Washington, Respondent V. Sidney S. Hicklin, Appellant (Majority)

Annotate this Case

Download PDF

Filed Washington State Court of Appeals Division Two April 25, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 56077-1-II Respondent, v. SIDNEY S. HICKLIN, PART-PUBLISHED OPINION Appellant. LEE, P.J. — Sidney S. Hicklin appeals his convictions for second degree rape—forcible compulsion, second degree assault—strangulation, felony harassment—threats to kill, and unlawful imprisonment. Hicklin argues that the trial court violated his public trial right by closing the courtroom during a rape shield hearing. In the published portion of this opinion, we address Hicklin’s public trial right argument and hold that, because a rape shield hearing does not implicate the public trial right, the trial court did not violate the public trial right. In the unpublished portion of this opinion, we address Hicklin’s argument that his convictions for second degree assault—strangulation, felony harassment—threats to kill, and unlawful imprisonment violate double jeopardy. Hicklin’s convictions for second degree assault and felony harassment do not violate double jeopardy. However, the State concedes that Hicklin’s conviction for unlawful imprisonment violates double jeopardy. We accept the State’s concession and remand to the trial court to vacate Hicklin’s conviction for unlawful imprisonment. No. 56077-1-II Also in the unpublished portion of this opinion, we address Hicklin’s arguments that the trial court imposed an unconstitutionally vague community custody condition and improperly required him to pay community custody supervision fees. The State concedes that the challenged community custody condition and community custody supervision fees should be stricken. We accept the State’s concession. Accordingly, we affirm Hicklin’s convictions for second degree rape—forcible compulsion, second degree assault—strangulation, and felony harassment—threats to kill, but we remand for the trial court to vacate Hicklin’s conviction for unlawful imprisonment and to strike the challenged community custody condition and community custody supervision fees. FACTS A. BACKGROUND FACTS On the evening of July 4, 2020, Officer Geraldine Smith of the City of Port Angeles Police Department was dispatched to an address on East 9th Street. When she arrived, Officer Smith contacted K.H.1 K.H. was crying and visibly upset. K.H. told Officer Smith that she went to Hicklin’s apartment because he was a friend and needed some support. K.H. left to get some beverages for them at the store and, when she returned, Hicklin got angry and upset. K.H. told Officer Smith that Hicklin grabbed her by the throat and applied pressure to her neck multiple times. K.H. said she was afraid that Hicklin was going to kill her. K.H. also said that Hicklin raped her. 1 We refer to the victim of a sexual assault by initials to protect their privacy. 2 No. 56077-1-II Officer Smith brought K.H. to the police station for a formal interview. Officer Smith also took photographs documenting redness on K.H.’s neck and bruising on her thigh. Officer Smith then took K.H. to the hospital for a sexual assault exam by a sexual assault nurse examiner (SANE exam). The State charged Hicklin with second degree rape—forcible compulsion, second degree assault—strangulation, felony harassment—threats to kill, and unlawful imprisonment. B. RAPE SHIELD HEARING Prior to trial, Hicklin filed a motion in limine seeking to admit evidence of K.H.’s prior sexual history with him. Hicklin provided a written offer of proof to support his motion in limine. The offer of proof asserted that Hicklin would testify that Hicklin became friends with K.H. while attending self-help meetings. Shortly after meeting, Hicklin and K.H. began having sex. On the night of the incident, Hicklin invited K.H. to his mother’s house. Hicklin and K.H. had been naked in the hot tub at Hicklin’s mother’s house once before. When K.H. arrived at Hicklin’s mother’s house, they were both drinking and began kissing on the couch. When Hicklin wanted more alcohol, K.H. agreed to go get it. Hicklin stated that K.H. took his bank card to pay for beer, but K.H. never returned to the house. At the hearing on Hicklin’s motion in limine, the State noted that, under the rape shield statute, RCW 9A.44.020, a hearing on the victim’s prior sexual conduct was required to be closed. The trial court closed the courtroom. During the closed hearing, the trial court inquired about whether Hicklin needed to testify as part of the hearing. Initially, Hicklin’s attorney stated they had filed an offer of proof but then agreed to have Hicklin testify. 3 No. 56077-1-II During examination by defense counsel, Hicklin testified that he met K.H. about three years ago at self-help meetings in the recovery community. They started having sex after their second meeting. K.H. had previously been naked with Hicklin in the hot tub at his mother’s house and previously had sex with Hicklin. Hicklin also testified that, on the night of the incident, he invited K.H. over to “get naked in the hot tub.” 1 Verbatim Rep. of Proc. (VRP) (Feb. 11, 2021) at 41. When K.H. arrived, she had a half gallon bottle of vodka that was half empty. K.H. drank from the bottle while she was with Hicklin. Hicklin and K.H. started kissing “and hands kinda all over the place,” but they did not have sex. 1 VRP (Feb. 11, 2021) at 42. After about 15 minutes, Hicklin asked K.H. to go down the block to buy more alcohol because he was out of alcohol. K.H. took his bank card to buy the alcohol and left. K.H. never came back. The trial court asked if the State had any questions. The State declined any crossexamination because it was an offer of proof. The State argued that evidence of a past sexual relationship was not admissible because Hicklin was not alleging consent and was instead claiming that no sex occurred. The trial court agreed that the defense was not consensual sex with K.H and allowed the defense to submit a brief on the issue.2 After the trial court heard argument on the admissibility of evidence of K.H.’s past sexual conduct with Hicklin, the trial court reopened the courtroom. Hicklin appeals. 2 There is no record that the defense submitted additional briefing or that the matter was further addressed by the trial court. 4 No. 56077-1-II ANALYSIS Hicklin argues that the trial court violated his public trial right by holding the rape shield hearing in a closed courtroom. We disagree. The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a defendant’s right to a public trial.3 State v. Whitlock, 188 Wn.2d 511, 519-20, 396 P.3d 310 (2017). We review whether a defendant’s public trial right was violated de novo. Id. at 520. “A public trial is a core safeguard in our system of justice.” State v. Wise, 176 Wn.2d 1, 5-6, 288 P.3d 1113 (2012). “We have recognized that the right to a public trial serves to ensure a fair trial, to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions, to encourage witnesses to come forward, and to discourage perjury.” State v. Sublett, 176 Wn.2d 58, 72, 292 P.3d 715 (2012) (lead opinion); id. at 99 (Madsen, C.J., concurring). However, the right to a public trial is not absolute. Wise, 176 Wn.2d at 9. “Courts have recognized that while openness is a hallmark of our judicial process, there are other rights and considerations that must sometimes be served by limiting public access to a trial.” Id. We engage in a three-part inquiry to determine whether the right to a public trial has been violated, asking: “‘(1) Does the proceeding at issue implicate the public trial right? (2) If so, was the proceeding closed? And (3) if so, was the closure justified?’” Whitlock, 188 Wn.2d at 520 (quoting State v. Smith, 181 Wn.2d 508, 521, 334 P.3d 1049 (2014)). 3 Hicklin acknowledges that the rape shield statute requires a closed courtroom and argues that the rape shield statute “cannot trump the constitutional right to a public trial.” Br. of Appellant at 19. Hicklin does not argue that the rape shield statute is unconstitutional. 5 No. 56077-1-II Washington courts use the experience and logic test to determine whether a proceeding implicates the public trial right. Smith, 181 Wn.2d at 514. “Under the experience prong, we consider whether the proceeding at issue has historically been open to the public.” Whitlock, 188 Wn.2d at 521. The logic prong asks “‘whether public access plays a significant positive role in the functioning of the particular process in question.’” Id. (internal quotation marks omitted) (quoting In re Det. of Morgan, 180 Wn.2d 312, 325, 330 P.3d 774 (2014)). “If the answer to both prongs of the experience and logic test is yes, the public trial right ‘attaches’ and the trial court must consider the Bone-Club[4] factors on the record before closing the proceeding to the public.” State v. Wilson, 174 Wn. App. 328, 341, 298 P.3d 148 (2013), review denied, 184 Wn.2d 1026 (2016). The experience and logic test allows the determining court to “‘consider the actual proceeding at issue for what it is, without having to force every situation into predefined factors.’” State v. S.J.C., 183 Wn.2d 408, 431, 352 P.3d 749 (2015) (quoting Sublett, 176 Wn.2d at 73). Washington courts have not addressed whether the public trial right is implicated in proceedings under the rape shield statute. However, Hicklin asserts that we need not apply the experience prong because courts have already held that the public trial right is implicated by pretrial evidentiary hearings. Although a hearing to admit evidence under the rape shield statute falls into the broad category of pretrial evidentiary hearings, a rape shield hearing is a very specialized type of hearing, governed by statute, and implicates a different set of rights and considerations than other, more generic, pretrial evidentiary hearings. See RCW 9A.44.020; Wise, 176 Wn.2d at 9. Forgoing the 4 State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). 6 No. 56077-1-II experience and logic test to address a hearing under the rape shield statute would be forcing a specific proceeding into predefined factors rather than examining the actual proceedings, which undermines the reason for utilizing the experience and logic test. See S.J.C., 183 Wn.2d at 431. Accordingly, we apply the experience and logic test to determine whether a hearing to admit evidence under the rape shield statute implicates the public trial right. The rape shield statute provides: Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense. RCW 9A.44.020(2). If the court determines that a hearing on the admissibility of evidence under the rape shield statute is warranted, “the hearing shall be closed except to the necessary witnesses, the defendant, counsel, and those who have a direct interest in the case or in the work of the court.” RCW 9A.44.020(3)(c). Historically, rape shield hearings have never been open to the public. Since the inception of the rape shield statute, hearings on the admissibility of evidence under the statute have been required to be held in a closed courtroom. LAWS OF 1975 1st Ex. Sess., ch. 14 § 2. Therefore, the experience prong indicates that the public trial right would not attach to rape shield hearings. Also, public access would not play “‘a significant positive role in the functioning’” of rape shield hearings. Whitlock, 188 Wn.2d at 521 (internal quotation marks omitted) (quoting Morgan, 180 Wn.2d at 325). The purpose of the rape shield statute is “to encourage rape victims to 7 No. 56077-1-II prosecute, and to eliminate prejudicial evidence of prior sexual conduct of a victim which often has little, if any, relevance on the issues for which it is usually offered, namely, credibility or consent.” State v. Carver, 37 Wn. App. 122, 124, 678 P.2d 842, review denied, 101 Wn.2d 1019 (1984). Allowing discussion on a rape victim’s past sexual conduct to be discussed in an open courtroom, especially when it may ultimately be inadmissible, would not encourage victims to prosecute. And it is likely that subjecting a victim’s past sexual conduct to such public scrutiny would result in additional trauma and humiliation to rape victims. Furthermore, a rape shield hearing is a particularly discrete and limited aspect of a criminal trial. Any admissible evidence continues to be subject to public scrutiny during the actual trial, which achieves the aims of the public trial right. See Sublett, 176 Wn.2d at 72 (lead opinion); id. at 99 (Madsen, C.J., concurring). And, when necessary, the conduct of the attorneys and the court is subject to the scrutiny of the appellate process. See id. Accordingly, the logic prong of the experience and logic test demonstrates that rape shield hearings do not implicate the public trial right. See Whitlock, 188 Wn.2d at 521. Neither experience nor logic demonstrate that the public trial right attaches to hearings on the admissibility of evidence under the rape shield statute. Therefore, the public trial right is not implicated and our inquiry is at an end. See id. at 520. The trial court did not violate Hicklin’s public trial right by closing the courtroom during the rape shield hearing. A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. 8 No. 56077-1-II ADDITIONAL FACTS A. JURY TRIAL K.H. testified at trial that she knew Hicklin for about three years through the recovery community. She considered Hicklin a friend. On July 4, K.H. was bickering with her significant other, A.M., about going to a barbecue. Ultimately, K.H. made plans to see Hicklin. K.H. wanted to see Hicklin to talk about the struggles she was going through. Prior to seeing Hicklin, she had two shots of vodka. Hicklin was staying at his mother’s house. When K.H. arrived, she and Hicklin sat on the couch and talked. After a time, Hicklin asked K.H. to go buy more alcohol. Hicklin gave K.H. his bank card to pay for the alcohol. K.H. denied kissing Hicklin prior to leaving to buy more alcohol. K.H. went to a store a block away to buy the alcohol. After purchasing the alcohol with Hicklin’s bank card, K.H. returned to Hicklin’s mother’s house. K.H. gave Hicklin the bag with the alcohol; she thought she had also put the bank card in the bag. When Hicklin realized the bank card was not in the bag he became very angry. Hicklin began pacing and yelling at K.H., asking where the bank card was. K.H. testified that once Hicklin got angry about the bank card, everything happened very fast. K.H. was sitting on the couch, and Hicklin grabbed her around the neck. Although Hicklin was holding her down and squeezing her neck, K.H. testified “it wasn’t a real hard squeeze” at that point. 1 VRP (June 2, 2021) at 295. K.H. explained that she only weighed 90 to 92 pounds and it simply was not possible for her to move when Hicklin was holding her. Hicklin’s body weight was on K.H.’s legs, pushing them open. 9 No. 56077-1-II Over time, the pressure on K.H.’s neck got harder, and it was difficult to breathe and talk. While Hicklin had his hands around K.H.’s throat, he told her, “I will end you.” 1 VRP (June 2, 2021) at 300. K.H. believed Hicklin meant that he would kill her. K.H. wanted to get to the door, but she was unable to get up. Then, Hicklin put his penis inside K.H. K.H. was unable to describe the details of how the incident went from Hicklin holding her throat to putting his penis inside of her. K.H. resisted a little, “like pushing someone off of you to let them know that it’s not okay,” but she did not try to physically fight. 1 VRP (June 2, 2021) at 302. K.H. explained: There was no way I’d win, there was—he would’ve hurt me more. I mean, it’s just .... .... . . . Because he’s a very big man and the position, it was the position alone was enough and it just there was no way. 1 VRP (June 2, 2021) at 302. K.H. remembered telling Hicklin that she had some money in her car and he stopped raping her. K.H. was able to get out to her car, but Hicklin kept her keys. K.H. called A.M. from the car. A.M. called the police. A.M., Officer Smith, additional investigating officers, the SANE nurse, and a forensic scientist also testified consistent with the background facts presented above. Hicklin testified in his own defense. Hicklin testified that he had known K.H. for a little over three years. On July 4, 2020, Hicklin messaged K.H. to see if she wanted to hang out. Hicklin invited K.H. to come over to his mother’s house and use the hot tub. K.H. accepted his invitation. 10 No. 56077-1-II K.H. arrived with a full half-gallon bottle of vodka and was taking “chugs out of the bottle” while she was there. 2 VRP (June 7, 2021) at 650. Hicklin and K.H. sat on the couch kissing for approximately fifteen minutes. When Hicklin finished his beer, he asked K.H. if she would be willing to go get more beer. Hicklin then clarified it was not beer but a different alcoholic beverage. Hicklin gave K.H. his bank card to pay for the alcohol. Hicklin testified that K.H. never returned from the store. Hicklin messaged and called K.H. several times trying to find out where she was. At one point, Hicklin spoke to K.H. and told her he would call the police if she did not bring his bank card back. He did not speak to K.H. again. Hicklin denied assaulting or raping K.H. The jury found Hicklin guilty as charged. B. SENTENCING At sentencing, Hicklin argued that his convictions violated double jeopardy or, alternatively, should be considered the same criminal conduct, and therefore, he should be sentenced with an offender score of zero. The trial court ruled that the convictions did not violate double jeopardy. However, the trial court found that the unlawful imprisonment was the same criminal conduct, resulting in an offender score of three on each conviction. The trial court found that Hicklin was indigent and stated that it would impose only the mandatory minimum legal financial obligations (LFOs). The trial court imposed a standard range sentence of 136 months to life on the second degree rape—forcible compulsion conviction. The trial court also imposed standard range sentences on all other convictions to be served concurrently with the sentence on the second degree rape—forcible compulsion conviction. The trial court imposed lifetime community custody on 11 No. 56077-1-II the second degree rape—forcible compulsion conviction. As a condition of community custody, the trial court ordered that Hicklin not “enter drug areas as defined by court or [Community Custody Officer (CCO)].” Clerk’s Papers (CP) at 25. The judgment and sentence also included a provision requiring Hicklin to pay community custody supervision fees. ANALYSIS A. DOUBLE JEOPARDY Hicklin argues that his convictions for second degree assault—strangulation, felony harassment—threats to kill, and unlawful imprisonment violate double jeopardy because they were the basis of proving the second degree rape—forcible compulsion conviction. The State concedes that the unlawful imprisonment conviction violates double jeopardy and should be vacated. We affirm Hicklin’s convictions for second degree assault—strangulation and felony harassment— threats to kill, but we accept the State’s concession and remand to vacate Hicklin’s conviction for unlawful imprisonment. 1. Legal Principles We review claims of double jeopardy de novo. State v. Fuller, 185 Wn.2d 30, 34, 367 P.3d 1057 (2016). The right to be free from double jeopardy protects a defendant from being punished multiple times for the same offense. Id. at 33-34. We apply a “three-step analysis to determine whether the legislature authorized multiple punishments for a single course of conduct.” State v. Thompson, 192 Wn. App. 733, 737, 370 P.3d 586, review denied, 185 Wn.2d 1041 (2016). First, we attempt to determine legislative intent from the relevant statutes. Id. If the statutes are silent, then we apply the “same evidence” test. Id. Then, if applicable, we may apply the merger doctrine. Id. at 737-38. 12 No. 56077-1-II As relevant here, a person is guilty of second degree rape if the person engages in sexual intercourse with another person by forcible compulsion. RCW 9A.44.050(1)(a).5 A person is guilty of second degree assault if the person assaults another person by strangulation. RCW 9A.36.021(g). A person is guilty of felony harassment if the person harasses another person by threatening to kill that person. RCW 9A.46.020(2)(b)(ii). And a person is guilty of unlawful imprisonment if the person knowingly restrains another person. RCW 9A.40.040. The relevant statutes do not contain any explicit statement indicating whether the legislature intended to punish the crimes at issue separately. Without a clear statement of legislative intent, we must then turn to additional doctrines to determine legislative intent. See Thompson, 192 Wn. App. 737-38. 2. Blockburger “Same Elements/Same Evidence” Test When legislative intent is unclear, we may turn to the Blockburger6 test, also referred to as the “same elements” or “same evidence” test. In re Pers. Restraint of Orange, 152 Wn.2d 795, 816, 100 P.3d 291 (2004). Under the Blockburger test, “[i]f each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes.” State v. Freeman, 153 Wn.2d 765, 772, 108 P.3d 753 (2005). However, we do not consider the elements of the crimes only on an abstract level. Id. “‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of 5 RCW 9A.44.050 was amended in 2021. However, no substantive changes were made affecting this opinion. Therefore, we cite to the current statute. 6 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). 13 No. 56077-1-II a fact which the other does not.’” Id. (alterations in original) (internal quotation marks omitted) (quoting Orange, 152 Wn.2d at 817). As charged, second degree rape required proof of forcible compulsion. RCW 9A.44.050(1)(a). “‘Forcible compulsion’ means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.” RCW 9A.44.010(3).7 Here, K.H. testified that Hicklin’s weight on top of her holding her down overcame her resistance. Therefore, K.H.’s testimony about Hicklin holding her down on the couch was the fact required to prove forcible compulsion. Because this fact was also required to prove unlawful imprisonment, the State properly concedes that Hicklin’s convictions for both second degree rape and unlawful imprisonment violate double jeopardy. However, given our record, neither proof of the second degree assault nor the felony harassment are required for the State to prove second degree rape by forcible compulsion. The record supports three separate actions by Hicklin that could have independently established forcible compulsion: holding K.H. down on the couch with his body, strangling K.H., or threatening to kill K.H. But only one of these actions was required to prove forcible compulsion. Since any of these actions could have independently proven forcible compulsion, Hicklin’s double RCW 9A.44.010 was amended in 2022, and the definition of “forcible compulsion” was renumbered from subsection (6) to subsection (3). No substantive changes were made affecting this opinion. Therefore, we cite to the current statute. 7 14 No. 56077-1-II jeopardy claim fails. See State v. Lee, 12 Wn. App. 2d 378, 399-400, 460 P.3d 701, review denied, 195 Wn.2d 1032 (2020). As charged in this case, the State had to prove Hicklin assaulted K.H. by strangulation. RCW 9A.36.021(1)(g). “‘Strangulation’ means to compress a person’s neck, thereby obstructing the person’s blood flow or ability to breathe, or doing so with the intent to obstruct the person’s blood flow or ability to breathe.” RCW 9A.04.110(26). Proving strangulation was not required to prove forcible compulsion. Therefore, proof of second degree assault by strangulation was not required for the State to prove second degree rape—forcible compulsion. Similarly, the State was not required to prove that Hicklin threatened to kill K.H. in order to prove forcible compulsion. As explained above, K.H. testified that Hicklin holding her on the couch with his body caused her to realize that fighting back or resisting would be ineffective. This was the evidence required to prove forcible compulsion, and the State was not required to prove that Hicklin made a threat to kill in order to prove the second degree rape charge. Hicklin asserts that the mere possibility that his acts of strangulation or threatening to kill K.H. could have been viewed by the jury as proof of the forcible compulsion required to convict him of second degree rape requires us to reverse both the second degree assault and felony harassment convictions in addition to the unlawful imprisonment conviction. In essence, Hicklin argues that it is the State’s burden to establish that the jury did not base its verdict on the rape charge on Hicklin’s acts of second degree assault or felony harassment. Hicklin’s argument fails because “[i]t is his burden to affirmatively establish that he faces multiple punishments for the same offense.” Lee, 12 Wn. App. 2d at 399. 15 No. 56077-1-II Because evidence of the strangulation or threat to kill was not required to prove the second degree rape by forcible compulsion charge, the second degree assault and felony harassment are not the same in fact as the second degree rape. See State v. Nysta, 168 Wn. App. 30, 48-49, 275 P.3d 1162 (2012) (holding that felony harassment and second degree rape were not the same in fact where jury did not have to rely on death threats for forcible compulsion because there was ample evidence that defendant used physical force to overcome victim’s resistance), review denied, 177 Wn.2d 1008 (2013). Accordingly, Hicklin’s convictions for second degree rape and felony harassment do not violate double jeopardy under the Blockburger test. 3. Merger The merger doctrine is an additional tool to help determine legislative intent. Freeman, 153 Wn.2d at 772. “Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime.” Id. at 772-73. Here, forcible compulsion increases the degree of rape from third degree to second degree. See RCW 9A.44.060, .050. However, as discussed above, the strangulation required to prove second degree assault and the threats required to prove felony harassment were not required to prove forcible compulsion. Therefore, the conduct that is criminalized as second degree assault or felony harassment did not raise the degree of the rape in this case. Accordingly, the merger doctrine also indicates that the legislature intended for the second degree rape—forcible compulsion to be punished separately from the second degree assault—strangulation and the felony harassment—threats to kill. 16 No. 56077-1-II 4. Independent Purpose or Effect Even if either the Blockburger test or the merger doctrine indicated that the legislature intended for these offenses to be punished as one crime, or on an abstract level, the “two convictions appear to be for the same offense or for charges that would merge, if there is an independent purpose or effect to each, they may be punished as separate offenses.” Freeman, 153 Wn.2d at 773. Hicklin argues that there was no independent purpose or effect of the second degree assault—strangulation or felony harassment—threats to kill because they were all used to effectuate the rape. However, the record belies this argument. K.H. testified that the strangulation and threats to kill occurred when Hicklin was yelling at her and asking where his bank card was. K.H.’s testimony shows that Hicklin’s strangulation and threats to kill were due to K.H. not giving the bank card back, not for the purpose of overcoming her resistance to the rape. Therefore, there was an independent purpose and effect that supports punishing each conviction as a separate offense. 5. Rule of Lenity Despite the fact that the strangulation and threats to kill were not required to prove second degree rape—forcible compulsion, Hicklin argues that the rule of lenity requires the ambiguous jury verdicts to be interpreted in his favor. When the evidence and jury instructions create “an ambiguity in the jury’s verdict,” the ambiguity must, “under the rule of lenity, . . . be resolved in the defendant’s favor.” State v. Kier, 164 Wn.2d 798, 811, 194 P.3d 212 (2008). Determining whether there is ambiguity in the jury’s 17 No. 56077-1-II verdict requires examining how the case was presented to the jury, including the specific evidence presented. Id. at 808. Here, looking at the jury instructions in isolation, it appears there would be ambiguous verdicts. The jury was instructed only that it needed to find forcible compulsion to find Hicklin guilty of second degree rape. The jury instructions did not specify what act was alleged to be the forcible compulsion, and the jury verdicts did not specify what act the jury found was forcible compulsion. However, K.H.’s testimony clearly established that the restraint was what overcame her resistance to the rape. The evidence in this case is distinguishable from Kier, where the evidence established that the assault victim was one of two potential robbery victims and it was unclear if the assault elevated the robbery to first degree robbery. 164 Wn.2d at 808-813. Based on the evidence presented in this case, we decline to apply the rule of lenity. B. COMMUNITY CUSTODY CONDITION AND SUPERVISION FEES Hicklin argues that the community custody condition requiring that he “not enter drug areas” is unconstitutionally vague. Hicklin also argues that his judgment and sentence improperly includes a provision requiring him to pay supervision fees. The State concedes these provisions should be stricken from Hicklin’s judgment and sentence. We accept the State’s concession. A community custody condition is unconstitutionally vague if it does not define the violation with sufficient definiteness that ordinary people can understand what is prohibited or does not provide ascertainable standards to prevent arbitrary enforcement. See State v. Bahl, 164 Wn.2d 739, 752-53, 193 P.3d 678 (2008). Here, the community custody provision requiring Hicklin to not “enter drug areas as defined by court or [CCO]” does not sufficiently define that violation such that ordinary people can understand what is prohibited. CP at 25. Further, it does 18 No. 56077-1-II not contain ascertainable standards to prevent arbitrary enforcement. Therefore, the State properly concedes that the community custody provision should be stricken. The judgment and sentence also imposes community custody supervision fees. The community custody supervision fee is a discretionary LFO. State v. Markovich, 19 Wn. App. 2d 157, 176, 492 P.3d 206 (2021), review denied, 198 Wn.2d 1036 (2022). The trial court found that Hicklin was indigent and intended to impose only mandatory LFOs. Therefore, the State properly concedes that the provision requiring Hicklin to pay community custody supervision fees should be stricken. CONCLUSION We affirm Hicklin’s convictions for second degree rape—forcible compulsion, second degree assault—strangulation, and felony harassment—threats to kill, but we remand to the trial court to vacate Hicklin’s conviction for unlawful imprisonment and to strike the challenged community custody condition and community custody supervision fees. Lee, P.J. We concur: Veljacic, J. Price, J. 19

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.