Find Legal Information

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )
                                            )      No. 65774-7-I
                      Respondent,           )
                                            )         DIVISION ONE
              v.                            )
                                            )
DAVEN NYSTA,                                )          PUBLISHED OPINION
                                            )       
                      Appellant.            )         FILED: May 7, 2012
________________________________)

       Becker, J.  --  Invocation of the right to counsel and double jeopardy are 

the two principal issues raised in this appeal.  First, during a custodial 

interrogation, police asked appellant Daven Nysta if he would take a polygraph.  

Nysta said, "shit man I gotta talk to my lawyer."  Because this statement was an 

unequivocal invocation by Nysta of his right to an attorney, the interrogation 

should have stopped.  The trial court erred by denying the motion to suppress

the statements that followed.  The error was harmless, however, because the 

statements that followed were no more incriminating than the statements that 

went before.  

       Second, Nysta claims his convictions for second degree rape and felony  

65774-7-I/2

harassment were for the same offense because the same death threat that 

proved felony harassment might have also proved the forcible compulsion 

element of the rape.  The State erroneously concedes a double jeopardy 

violation.  Because the death threat was not necessary to prove forcible 

compulsion, the two crimes were not the same in law and fact.  

                                        FACTS

       The State proved two counts of rape and one count of felony threat 

through the testimony of SF, the victim.  SF testified that Nysta began a 

relationship with her in February 2009 and moved some of his possessions into 

her residence.  When Nysta drank, he became aggressive and angry.  He 

threatened to beat up SF if she ever cheated on him.

       On the night of July 31, 2009, Nysta borrowed one of SF's cars.  When he 

returned, the back window of the car was broken.  SF told Nysta she wanted to 

break up.  Nysta got angry and left.

       SF heard a knocking at her door early the next morning.  When she 

opened the door, Nysta pushed his way into the house.  He appeared 

intoxicated.  SF told Nysta their relationship was over and she had gone out with 

another man.  

       SF testified that Nysta grabbed her, threw her on a bed, and forced his 

fingers into her vagina and anus.  When she tried to move off the bed, he kicked 

her in the face, began punching and biting her, and repeated the rape with his 

fingers.  "He started asking me questions about who I was with and what we did.  

                                           2 

65774-7-I/3

Any every time I answered him, he would hit me in the face or arms or 

anywhere."  SF heard her infant daughter crying in the next room.  Nysta kept up 

the violent assault, kicking, punching, and even biting SF.  Eventually he 

accompanied SF into the next room, so she could take care of the baby.  Nysta 

held the baby, told SF to kneel, and urinated on her.  Nysta then ordered SF to 

take a shower.  When this was done, Nysta took SF and the baby back into the 

other room.  While the child sat quietly by the wall, Nysta again asked SF who 

she had been with and again punched her in the face.  He attempted 

intercourse, then made SF sit on the floor and perform oral sex.  "And he had 

gotten out a lighter and was going to burn me with it. . . . And he kept talking to 

me about how I was a bitch, and to keep doing what he asked.  And he 
continually would hit me in the head . . . and I had to continue with the oral sex."1

       The entire ordeal lasted more than two hours.  At one point, Nysta 

threatened to kill SF and her two children and to "bury all three of us where 

nobody would find us." 

       SF left with her baby when Nysta passed out.  Police arrived in response 

to a 911 call and arrested Nysta.  

       Despite a no-contact order, Nysta made hundreds of calls to SF from jail. 

These calls were recorded.  Nysta professed his love for SF and claimed not to 

remember what happened.  He asked her to drop the charges.  

       The State charged Nysta with first degree rape for the rape that occurred 

before the child was brought into the room, because it was during this episode 

       1 Report of Proceedings (June 9, 2010) at 44-51.  

                                           3 

65774-7-I/4

that SF sustained the worst of her physical injuries; second degree rape for 

forcing SF into acts of oral sex after the child was brought into the room; and 

felony harassment for the threat to kill SF and her children.  Other charges were

two counts of misdemeanor violation of a court order and tampering with a 

witness.  The State alleged that the second degree rape was an aggravated 

offense of domestic violence, deserving an enhanced sentence because it was 

committed in front of the minor child.  See RCW 9.94A.535(3)(h)(ii).  A jury 

convicted Nysta as charged and found by special verdict that the second degree

rape was an aggravated domestic violence offense. 

       The standard range for the first degree rape was 240 to 318 months.  For 

the second degree rape, it was 210 to 280 months.  For these two crimes, the 

court imposed an exceptional sentence by running both sentences consecutively 

for a total of 450 months.  This was based not only on the jury's special verdict 

but also on aspects of Nysta's criminal history that did not require a jury finding.  

This appeal followed.

                   INVOCATION OF THE RIGHT TO COUNSEL

       The trial court held a hearing under CrR 3.5 to determine the admissibility 

of statements made by Nysta during an interrogation at the City of Kent 

Corrections Facility on August 3, 2009.  The principal witness was Detective 

Robert Jones.  Detective Jones, an officer with the Auburn Police Department, 

was investigating Nysta as a suspect in a first degree burglary that occurred in 

Auburn earlier on the same night as Nysta's attack on SF.  Also present was 

                                           4 

65774-7-I/5

Detective Derrick Focht, an officer with the Kent Police Department who was 

investigating Nysta's crimes against SF.  

       The transcript of the interrogation shows that Nysta, having been advised 
of his Miranda2 rights, agreed to waive them and speak with the detectives about 

the burglary.  Responding to questions from Detective Jones, Nysta denied 

being in Auburn on the night of July 31.  He said he was drinking and gambling 

all night at a casino until he went home to SF's place in Kent.  He admitted that 

when he got there, he slapped SF and then "went blank" until he woke up in 

handcuffs.  Nysta continued to deny being in Auburn even when Detective Jones 

told him that witnesses had positively identified him at the scene of the burglary.

       Detective Jones asked Nysta if he would be willing to take a polygraph 

examination in connection with the burglary investigation.  Nysta at first was

willing. "Man we can do it I don't give a damn." But he began to express 

reluctance when told the polygraph was a tool to find out if he was telling the 

truth. 

       Detective Jones:  Hm?

       The Defendant:  I don't give a damn I just know that I was in the 
       casino.

       Detective Jones:  Okay that's what you're sayin' but I don't know 
       that.

       The Defendant:  I know.

       Detective Jones:  And that's one thi', that's a tool that I can use to 
       see if you're bein' truthful that you were casino or you're at this 
       house beatin' somebody's ass.

       2 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 
(1966).
                                           5 

65774-7-I/6

       THE DEFENDANT:  Come on man

       DETECTIVE JONES: So.

       THE DEFENDANT:  I might beat some, the only (sniffs) person I 
       remember slappin' around was my girl that's it and I'm not gonna 
       deny I didn't slap my girl.
       . . . . 

       DETECTIVE JONES:  Is the deal, this is where I am is I've got you 
       as positively identified in this incident okay. . . . 
       . . . .

       Detective Jones:  Okay.  Simple question, are you willin' to do a 
       poly?

       The Defendant:  Do I have to do it though?

       Detective Jones:  Absolutely not.  It is voluntary.  It would be up to 
       you if you wanted to do it or not.

       The Defendant:  Man I don't see why I gotta do it though.  That 
       thing is a machine man.

       Detective Jones:  It's an instrument absolutely.  Is it accurate?  
       Absolutely.  If you have a polygraph examiner that knows what he's 
       doin'.

       . . . .

       The Defendant:  It's just a um ah computer mean it's.

       Detective Jones:  Well it kinda is but the deal is that it it deals with 
       your (inaudible) nervous system okay it deals with ah um (pause) 
       physiological changes in your body.

       The Defendant:  Um hmm.

       Detective Jones:  Alright that can tell me if you're bein' truthful or 
       not alright it is very very accurate.  And if you decide you wanna 
       take that I will set that up and make sure it happens but again it's 
       voluntary.  I don't wanna waste my time if you're saying' no I don't 
       wanna do it.[3]

       3 Pretrial Exhibit 1 at 16-17.  

                                           6 

65774-7-I/7

       It was at this point during the interrogation that Nysta expressed a 

desire to talk to a lawyer.

       The Defendant:  Um hmm (pause) shit man I gotta talk to my 
       lawyer someone.

       Detective Jones:  Okay.

       The Defendant:  (inaudible) man if it's cool which you then I take it 
       then.

       Detective Jones:  Okay.

       The Defendant: If it's not, fuck it.

       Detective Jones:  Okay fair enough.  This is what I'll do I'll leave 
       my number in your property.

       The Defendant:  Um hmm.

       Detective Jones:  And if you decide that you wanna take that all 
       you gotta do is call me or have your attorney call me and I'll set it 
       up alright?

       THE DEFENDANT:  Man that's crazy why people wanna fuckin' put 
       shit on me man.  (pause)  This is fuckin' bullshit man.

Pretrial Exhibit 1 at 17 (emphasis added).  

       Detective Jones continued with more questions pertinent to the burglary 

and a few about what happened when Nysta went back to SF's house.  On that 

topic, Nysta repeated his earlier admission that he slapped SF and then "went 
blank." 4

       The trial court concluded that Nysta did not unequivocally invoke his right 

to an attorney at any point during the questioning.  The court found that at the 

       4 Pretrial Exhibit 1 at 23.  

                                           7 

65774-7-I/8

beginning of the interrogation, after Detective Jones asked several clarifying 

questions, Nysta waived his rights and agreed to be interviewed.  The court 

found that when Nysta later requested to speak with an attorney, it was only for 

the purpose of deciding whether to take a polygraph examination: 

       6.   About half-way through the interview Det. Jones asked the 
           defendant if he would be willing to submit to a polygraph 
           examination.  The defendant was hesitant about whether or not 
           he wanted to take a polygraph exam and, after talking it over 
           with Det. Jones for a few minutes, indicated that he wished to 
           speak with an attorney before agreeing to take a polygraph 
           exam.  The court finds that when the defendant requested to 
           speak with an attorney he was indicating his desire to speak 
           with an attorney before taking a polygraph examination and that 
           his request was not intended to indicate a desire to speak with 
           an attorney prior to continuing the interview.
       7.  At the conclusion of the interview the defendant again indicated 
           that his statement had been completely voluntary.

Clerk's Papers at 89-90 (Findings of Fact 6-7).

       2.  The court finds that the defendant did not unequivocally invoke 
           his right to an attorney or to remain silent at any point before or 
           during the questioning by Detectives Jones and Focht.

Clerk's Papers at 90 (Conclusion of Law 2).

       Findings of fact entered following a CrR 3.5 hearing are measured by the

substantial evidence standard.  State v. Broadaway, 133 Wn.2d 118, 131, 942 

P.2d 363 (1997).  Nysta challenges the court's determination that he "did not 

unequivocally invoke his right to an attorney or to remain silent at any point 

before or during the questioning."  Nysta contends the only tenable finding on 

this record was that his request for an attorney was unequivocal. We agree and 

hold that questioning should have ceased when Nysta said, "I gotta talk to my 

                                           8 

65774-7-I/9

lawyer."

       Under the Fifth Amendment to the United States Constitution, no person 

"shall be compelled in any criminal case to be a witness against himself."  To 

secure the privilege against self-incrimination, a person in custody must be 

advised before questioning begins that he has the right to the presence of an 

attorney.  The defendant may waive this right, but there can be no questioning if 

he "indicates in any manner or at any stage of the process that he wishes to 

consult with an attorney before speaking."  Miranda v. Arizona, 384 U.S. 436, 

444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) (emphasis added).  A waiver of 

Miranda rights "may be contradicted by an invocation at any time."  Berghuis v. 

Thompkins, __U.S. __, __, 130 S. Ct. 2250, 2263, 176 L. Ed. 2d 1098 (2010). If 

the individual being questioned unequivocally states that he wants an attorney, 

interrogation must cease until an attorney is present.  Thompkins, 130 S. Ct. at 

2263-64; Davis v. United States, 512 U.S. 452, 461, 114 S. Ct. 2350, 129 L. Ed. 

2d 362 (1994).  

       The rule that questioning must cease if the suspect asks for a lawyer 

"provides a bright line that can be applied by officers in the real world of 

investigation and interrogation without unduly hampering the gathering of 

information."  Davis, 512 U.S. at 461.  The Supreme Court has "repeatedly 

emphasized the virtues of a bright-line rule in cases following . . . Miranda."

Arizona v. Roberson, 486 U.S. 675, 681, 108 S. Ct. 2093, 100 L. Ed. 2d 704 

(1988).  

                                           9 

65774-7-I/10

       To successfully invoke the right to counsel, a suspect must do so 

"unambiguously."  Davis, 512 U.S. at 459.  That is, the suspect "must articulate 

his desire to have counsel present sufficiently clearly that a reasonable police 

officer in the circumstances would understand the statement to be a request for 

an attorney."  Davis, 512 U.S. at 459.  In Davis, the Court held the police had no 

obligation to stop questioning a suspect who, about an hour and a half into the 

interrogation, said, "Maybe I should talk to a lawyer."  Davis, 512 U.S. at 462; cf.

State v. Radcliffe, 164 Wn.2d 900, 907-08, 194 P.3d 250 (2008) (defendant's 

statement that "maybe I should contact an attorney" was equivocal).  

       The State contends that Nysta's request for an attorney was "equivocal" 

because, considering that the topic under discussion at that moment was 

whether he wanted to take a polygraph, what his words really meant was that he 

was willing to continue the interview without the assistance of counsel, but he 

wanted to consult with counsel before making a final decision about whether or 

not to take a polygraph.  The State does not cite authority that supports giving 

such an elaborate contextual interpretation to words as plain as "I gotta talk to 

my lawyer."  "Interpretation is only required where the defendant's words, 

understood as ordinary people would understand them, are ambiguous."  

Connecticut v. Barrett, 479 U.S. 523, 529, 107 S. Ct. 828, 93 L. Ed. 2d 920 

(1987).  

       Nysta did not say "maybe" or "perhaps."  He did not use conditional or 

obfuscating words such as "if" and "or." Cf. State v. Malicoat, 126 Wn. App. 612, 

                                           10 

65774-7-I/11

106 P.3d 813 ("If you are accusing me of murder, then maybe I should get an 

attorney"), review denied, 155 Wn.2d 1013 (2005); State v. Lewis, 32 Wn. App. 

13, 20, 645 P.2d 722 ("if this is going to get into something deep . . . then I 

should have an attorney present.  If there is any questioning on that particular 

subject"), review denied, 98 Wn.2d 1004 (1982). "I gotta talk to my lawyer" is 

plain language. "Using 'context' to transform an unambiguous invocation into 

open-ended ambiguity defies both common sense and established Supreme 

Court law."  Anderson v. Terhune, 516 F.3d 781, 787 (9thCir.), cert. denied, 555 

U.S. 818 (2008). 

       Where nothing about the request for counsel or the circumstances 

leading up to the request would render it ambiguous, all questioning must cease.  

Smith v. Illinois, 469 U.S. 91, 98, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). The 

interrogator may not proceed on his own terms as if the defendant had 

requested nothing.  Smith, 469 U.S. at 99. If the interrogator does continue, the 

suspect's postrequest responses "may not be used to cast retrospective doubt 

on the clarity of the initial request itself."  Smith, 469 U.S. at 100. So the fact 

that Nysta went on responding to questions and agreed at the end of the 

interview that his statements had all been voluntary does not support a finding 

that "I gotta talk to my lawyer" was an equivocal statement.

       We conclude the trial court erred in determining that Nysta did not 

effectively invoke his right to counsel.  

       The error requires reversal only if prejudicial.  Harmless error analysis 

                                           11 

65774-7-I/12

applies to erroneous admissions of statements obtained in violation of Miranda.  

State v. Reuben, 62 Wn. App. 620, 626, 814 P.2d 1177, review denied, 118 

Wn.2d 1006 (1991).  Constitutional error is presumed to be prejudicial, and the 

State bears the burden of proving that the error was harmless.  State v. Guloy, 

104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).  

A constitutional error is harmless if the appellate court is convinced beyond a 

reasonable doubt that any reasonable jury would have reached the same result 

in the absence of the error.  Guloy, 104 Wn.2d at 425.  Under the "overwhelming 

untainted evidence" test, we look only at the untainted evidence to determine if it

is so overwhelming that it necessarily leads to a finding of guilt.  Guloy, 104 

Wn.2d at 426.  Under this test, a conviction will be reversed where there is any 

reasonable chance that the use of inadmissible evidence was necessary to 

reach a guilty verdict.  Guloy, 104 Wn.2d at 426.

       The interrogation was almost entirely concerned with the burglary.  To the 

extent that there was any discussion of the charges involving SF, Nysta readily 

admitted to slapping her, and he made this admission before he mentioned 

wanting a lawyer as well as after.  At no point did he confess to raping, 

threatening, or even having sexual contact with SF.  The tainted evidence was

repetitive of the untainted evidence.  The untainted evidence was overwhelming.  

There is no reasonable chance that the inadmissible statements were necessary 

to reach a guilty verdict.  The error was harmless.  

                                DOUBLE JEOPARDY

                                           12 

65774-7-I/13

       Nysta argues that his convictions for second degree rape and felony 

harassment violate double jeopardy because the threat to kill was used to prove 

the count of felony harassment and was also available to prove the forcible 

compulsion element of second degree rape.

       Without presenting any legal authority or reasoning, the State has 

conceded that the two convictions were for the same offense.  As grounds for 

the concession, the State cites an unpublished opinion of this court and declares
"The State can find no fault with this opinion."5 This is unsatisfactory.  "A party 

may not cite as an authority an unpublished opinion of the Court of Appeals." 

GR 14.1(a).  No matter how well reasoned, unpublished opinions of this court

lack precedential value, in part because they merely restate well established 

principles.  RCW 2.06.040; State v. Fitzpatrick, 5 Wn. App. 661, 668, 491 P.2d 

262 (1971), review denied, 80 Wn.2d 1003 (1972).  If a party finds a helpful 

analysis in an unpublished opinion, the proper way to present it is to cite the 

authorities relied on in the unpublished opinion and show how they apply.  

       We are not required to accept an erroneous concession of law. In re 

Pers. Restraint of Pullman, 167 Wn.2d 205, 212 n.4, 218 P.3d 913 (2009). We 

do not accept the State's concession in this case.  

       The double jeopardy clauses of the Fifth Amendment to the United States 

Constitution and Wash. Const. art. I, § 9 protect a defendant against multiple 

punishments for the same offense.  State v. Calle, 125 Wn.2d 769, 772, 888 

P.2d 155 (1995). The Washington double jeopardy provision is interpreted to be 

       5 Brief of Respondent at 31.  

                                           13 

65774-7-I/14

coextensive with the Fifth Amendment as interpreted by the United States 

Supreme Court.  State v. Gocken, 127 Wn.2d 95, 107, 896 P.2d 1267 (1995).

This court's review of a claimed double jeopardy violation is de novo.  State v. 

Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).

       Where a defendant's act supports charges under two criminal statutes, a 

court weighing a double jeopardy challenge must determine whether, in light of 

legislative intent, the charged crimes constitute the same offense.  Freeman, 153 

Wn.2d at 771. The mere fact that the same conduct is used to prove each crime 

is not dispositive.  See United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 

2849, 125 L. Ed. 2d 556 (1993) (explicitly rejecting "same conduct" test);

Freeman, 153 Wn.2d at 777.

       The purpose of our review is to determine what punishments the 

legislative branch has authorized. Calle, 125 Wn.2d at 776. We begin with the 

language of the statutes themselves. Because the language of the statutes 

defining felony harassment and second degree rape do not specifically authorize 

cumulative punishment when a defendant commits both offenses against the 

same victim, we turn to a rule of statutory construction sometimes referred to as 

the "Blockburger" test, after Blockburger v. United States, 284 U.S. 299, 52 S. 

Ct. 180, 76 L. Ed. 306 (1932).  

       Under Blockburger, "where 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 

                                           14 

65774-7-I/15

proof of a fact which the other does not."  Blockburger, 284 U.S. at 304; In re 

Pers. Restraint of Orange, 152 Wn.2d 795, 817, 100 P.3d 291 (2004).  The 

Blockburger test is referred to both as the "same elements test" and the "same 

evidence test."  Orange, 152 Wn.2d at 818.  "'If each element requires proof of a 

fact that the other does not, the Blockburger test is satisfied, notwithstanding a 

substantial overlap in the proof offered to establish the crimes."' Brown v. Ohio,

432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), quoting Iannelli v. 

United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975).  

In Blockburger, a single sale of morphine was properly punished as two different 

offenses because each offense required proof of a fact which the other did not.  

Blockburger, 284 U.S. at 304.  

       Washington's cases say that a plea of double jeopardy can be sustained 

only if the offenses are the same "'both in fact and in law.'" Orange, 152 Wn.2d 

at 816, quoting State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896).        As 

elaborated in Reiff, this means there is no double jeopardy bar where "there are 

elements requisite to each which are not necessary to the other, and proof of the 

offense charged in either of the informations would not be sufficient to sustain a 

conviction under the other." Reiff, 14 Wash. at 667. The Reiff test is 

"indistinguishable" from the Blockburger test.  Orange, 152 Wn.2d at 816.  Later 

Washington cases continue to state the test as having one prong for elements 

and one for proof:  "If there is an element in each offense which is not included 

in the other, and proof of one offense would not necessarily also prove the other, 

                                           15 

65774-7-I/16

the offenses are not constitutionally the same and the double jeopardy clause 

does not prevent convictions for both offenses." State v. Vladovic, 99 Wn.2d 

413, 423, 662 P.2d 853 (1983), citing State v. Roybal, 82 Wn.2d 577, 581, 512 

P.2d 718 (1973). But the two-pronged formulation does not differ materially from 

the Blockburger formulation: "whether each provision requires proof of a fact 

which the other does not."  Blockburger, 284 U.S. at 304.  Vladovic and 

Blockburger should produce the same results.  See Calle, 125 Wn.2d at 777 (

"Same evidence" test as stated in Vladovic is very similar to the rule set forth in 

Blockburger, at 304).  

       The offense of felony harassment required proof that Nysta knowingly 

threatened to kill SF or her children and that the words or conduct placed SF in 

reasonable fear that the threat would be carried out.  RCW 9A.46.020(1)(a)(i), 

(b), (2)(b)(ii); Instruction 18.  The offense of second degree rape required proof 

that Nysta engaged in sexual intercourse with SF by forcible compulsion.  RCW

9A.44.050(1)(a); Instruction 15.  Proof of felony harassment did not require proof 

of sexual intercourse.  Proof of second degree rape did not require proof of a 

threat to kill.  Thus, at the abstract level of comparing the statutory elements,

"there is an element in each offense which is not included in the other."  

Vladovic, 99 Wn.2d at 423.  The two crimes are not the same "in law."  

       To determine that there is an element of each offense that is not included 

in the other is not a complete analysis.  This was the point of Orange:  it is not 

enough merely to "compare the statutory elements at their most abstract level."  

                                           16 

65774-7-I/17

Orange, 152 Wn.2d at 818.  We are to consider the elements of the crimes both 

as charged and as proved.  Freeman, 153 Wn.2d at 777.  The question is 

"whether each provision requires proof of a fact which the other does not."  

Blockburger, 284 U.S. at 304, emphasis added in Orange, 152 Wn.2d at 818.  

       In Orange, our Supreme Court critiqued the double jeopardy analysis this 

court employed in State v. Valentine, 108 Wn. App. 24, 29 P.3d 42 (2001),

review denied, 145 Wn.2d 1022 (2002), and showed that the Blockburger test 

does not stop with a comparison of the statutory elements; the facts used to 

prove the statutory elements must also be examined.  In Valentine, this court's 

application of Blockburger was limited to a comparison in the abstract of the 

elements of assault and attempted murder, and it caused us to determine initially

that the offenses were not the same.  But ultimately we concluded they were the 

same.  To do this, we pushed Blockburger aside and relied on other cases, one 

of which was State v. Potter, 31 Wn. App. 883, 645 P.2d 60 (1982).  Valentine, 

108 Wn. App. at 28.  The Potter court had expressed a lack of confidence in the 

Blockburger test as a means to discern legislative intent.  Potter, 31 Wn. App. at 

888.  The Orange court did not think our result in Valentine was wrong but took 

pains to point out that the same result could and should have been reached in 

both Valentine and Potter under the Blockburger test without searching 

elsewhere for indicators of legislative intent.  

       So in Valentine, for example, we should have asked whether the evidence 

required to support the conviction for either attempted murder or assault would 

                                           17 

65774-7-I/18

have been sufficient to warrant a conviction upon the other.  Orange, 152 Wn.2d 

at 820.  Given the way both Valentine and Orange were charged and proved, the 

answer in each case was yes.  "The two crimes were based on the same shot 

directed at the same victim, and the evidence required to support the conviction 

for first degree attempted murder was sufficient to convict Orange of first degree 

assault."  Orange, 152 Wn.2d at 820.  In short, a direct application of 

Blockburger as a "same evidence" test, as well as a "same elements" test, was 

sufficient to reveal that the defendant had been convicted twice for the same 

offense.  To use Reiff terminology, the charged crimes were the same "in fact" 

even if not the same "in law."  

       As discussed above, second degree rape and felony harassment are not 

the same in law.  Each has an element not included in the other.  Are they 

nevertheless the same in fact in the present case?  No.  When one looks both at 

the statutory elements and also at the facts used to prove them, it remains true 

that each offense required proof of a fact the other did not.  This is not a case 

where evidence of the same single act was required to support each conviction.  

It is true, as Nysta argues, that the threat to kill was the evidence required to 

support the felony harassment conviction.  But the threat to kill was not evidence 
required to prove second degree rape.6  

       6 This case does not involve the merger doctrine, another method of discerning 
legislative intent where double jeopardy is alleged.  The merger doctrine may help 
determine legislative intent "where the degree of one offense is elevated by conduct 
constituting a separate offense."  State v. Kier,164 Wn.2d 798, 804, 194 P.3d 212 
(2008), citing Vladovic, 99 Wn.2d at 419; see also Reiff, 14 Wash. at 668.  Although
forcible compulsion and felony harassment can both be established by a threat of 
death, it is not necessary to prove felony harassment to prove a particular degree of 
                                           18 

65774-7-I/19

       One of the elements of second degree rape is forcible compulsion.  As 

the jury was instructed, forcible compulsion means either physical force which 

overcomes resistance or a threat, express or implied, that places a person in 

fear of death or physical injury to oneself or another person or in fear of being 

kidnapped or that another person will be kidnapped.  RCW 9A.44.010.  There 

was ample evidence that Nysta compelled the second degree rape by using 

physical force which overcomes resistance; he hit SF repeatedly in the head.  In 

deciding that the State had proved forcible compulsion, the jury did not have to 

rely on the death threat.  As charged and proved, then, second degree rape did 

not require proof of a threat to kill.  The threat to kill was not analogous to the 

single gunshot that established the double jeopardy violation in Orange where it 

was required to prove both crimes because it was the sole evidence available to 

prove both crimes.  

       Here, the State argued to the jury that either the death threat or the 

physical force proved forcible compulsion.  Both types of proof were available to 

the jury, although the testimony does not make clear at what point in time the 

death threat was uttered.  Nysta appears to assume that a double jeopardy 

violation occurs whenever the evidence available to prove one conviction is 

sufficient to support the other conviction.  That assumption is incorrect.  

Blockburger and Orange use the terms "necessary" and "required" when stating 

the test.  The double jeopardy violation in Orange occurred because "the 

evidence required to support the conviction for first degree attempted murder 

rape.  State v. Eaton, 82 Wn. App 723, 730-32, 919 P.2d 116 (1996).
                                           19 

65774-7-I/20

was sufficient to convict Orange of first degree assault."  Orange, 152 Wn.2d at 

820 (emphasis added).  In this case, it cannot be said that the evidence required

to support the conviction for second degree rape was sufficient to convict Nysta 

of felony harassment.  The death threat was available to support second degree 

rape, but it was not required.

       Nysta similarly appears to assume that to avoid a double jeopardy 

violation in a case where there is an overlap in the proof offered to establish 

each crime, the jury must be asked to specify by special verdict what evidence 

they relied on to support each conviction.  He suggests that in his case, a double 

jeopardy violation occurred because the jury did not specify that to find forcible 

compulsion, they relied only on the evidence of physical violence.  He cites no 

authority for this proposition.  If there had been a special verdict or instruction 

from which one could deduce that the jury necessarily relied on the death threat 

to find the forcible compulsion element of second degree rape, then one might 

argue that the evidence required to support the conviction for second degree 

rape was also sufficient to convict Nysta of felony harassment.  For example, if 

the State had made an allegation of sexual motivation in connection with the 

charge of felony harassment for the purpose of justifying an exceptional 

sentence, the jury might have found by special verdict that the harassment was 

committed with sexual motivation.  In which case, evidence of the death threat 

would have been not only available to the jury, but arguably necessarily relied 

upon by them to find the rape was committed with forcible compulsion.  The only 

                                           20 

65774-7-I/21

aggravating circumstance found by the jury was that the second degree rape 

was committed in the child's presence.  The State had no obligation to obtain 

special verdicts specifying what evidence the jury used in finding Nysta guilty of 

second degree rape in order to demonstrate that it was an offense distinct from 

felony harassment.  

       An illustration of the distinction between evidence that is necessary and 

evidence that is merely available is found in Illinois v. Vitale, 447 U.S. 410, 100 

S. Ct. 2260, 2267, 65 L. Ed. 2d 228 (1980).  In that case, the defendant struck 

and killed two children while driving.  He was convicted of failure to reduce 

speed, a traffic offense.  Later, the State brought a charge of manslaughter by 

automobile.  The defendant argued that the second prosecution was barred 

because one of the available ways to prove manslaughter by automobile was to 

prove that the defendant recklessly failed to slow his vehicle.  The Court 

concluded that the two offenses could not be the "same" under Blockburger if 

manslaughter by automobile did not necessarily entail proof of a failure to slow.  

Vitale, 447 U.S. at 419.  The defendant would have a "substantial" claim of 

double jeopardy only if the State found it "necessary" to rely on the conduct of 

failure to slow in order to sustain its manslaughter case.  Vitale, 447 U.S. at 420-

21.  Cf. Brown, 432 U.S. at 167, and the discussion thereof in Vitale, 447 U.S. at 

417 (If proof of auto theft in Brown had not necessarily involved proof of 

joyriding, the successive prosecutions would not have been for the same 

offense).  See also Austin v. Cain, 660 F.3d 880, 886-93 (5th Cir.), cert. denied, 

                                           21 

65774-7-I/22

2012 WL 1252789 (2012).  In Austin, evidence existed to support three 

alternative definitions of first degree murder, one of which could be established 

by proof that the offender had the specific intent to kill while engaged in the 

distribution of cocaine.  The State did not specify which of the three alternatives 

it was proceeding on, and the jury was not polled to determine which of them 

furnished the basis for attempted first degree murder convictions.  Relying on 

Vitale and Brown, the court concluded that "where an offense constitutes only 

one of several alternative elements of another offense, the two are not the 'same 

offense' for double jeopardy purposes."  Austin, 660 F.3d at 892. 

       In summary, felony harassment -- a death threat -- is one of two alternative 

ways to prove the forcible compulsion element of second degree rape.  But 

second degree rape does not necessarily require proof of a death threat.  And 

second degree rape did not necessarily require proof of a death threat, as this 

case was charged and proved, because there was evidence of physical force, 

the alternative way of proving forcible compulsion.  Therefore, under 
Blockburger and Orange, the two offenses were not the same.7  The legislature 

has defined felony threat as an independently culpable form of terror.  When a 

felony threat occurs in the course of a second degree rape, it may be punished 

separately so long as it is not the evidence required to prove the forcible 

compulsion element of rape.    

       7 Two offenses, even if adjudged to be the same under Blockburger, might 
nevertheless be subject to cumulative punishment if the statutes defining them were 
shown to serve different legislative purposes or be directed at separate evils.  Calle,
125 Wn.2d at 780-81.  Because neither party's brief considers this possibility, we do 
not explore it here.  
                                           22 

65774-7-I/23

                   INEFFECTIVE ASSISTANCE OF COUNSEL 

       Nysta claims his trial counsel was ineffective for not arguing his 

convictions for second degree rape and felony harassment were the "same 

criminal conduct" for sentencing purposes.  RCW 9.94A.589(1).  

       To prove ineffective assistance of counsel, a defendant must show (1) 

defense counsel's representation was deficient, i.e., it fell below an objective 

standard of reasonableness based on consideration of all the circumstances,

and (2) defense counsel's deficient representation prejudiced the defendant, i.e.,

there is a reasonable probability that, except for counsel's unprofessional errors, 

the result of the proceeding would have been different.  Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); State 

v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

       To constitute the "same criminal conduct" for purposes of determining an 

offender score at sentencing, both crimes must involve: (1) the same criminal

intent, (2) the same time and place, and (3) the same victim. RCW 

9.94A.589(1)(a).  In construing the "same criminal intent" requirement, the 

standard is the extent to which the criminal intent, objectively viewed, changed 

from one crime to the next.  State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 

(1994).  Whether one crime furthered the other is relevant.  Vike, 125 Wn.2d at 

411.  

       It is unlikely that the sentencing court would have found that Nysta's 

                                           23 

65774-7-I/24

crimes shared the same criminal intent.  The objective of second degree rape is 

sexual intercourse.  Nysta achieved the objective of sexual intercourse by means 

of his unrelenting use of physical force over a period of two hours.  The threat of 

death had the independent objective of creating continuing fear to penalize SF 

for going out with another man.  SF's testimony about the death threat does not 

specify exactly when it occurred and does not tie it to any particular act of rape.  

There is no reason to believe Nysta intended the threat to compel SF's 

submission to sexual intercourse.  The claim of ineffective assistance of counsel 

is denied.

                            RIGHT TO A PUBLIC TRIAL

       To assist in selection of the jurors, the court used juror questionnaires. 

The questionnaires contained 13 "yes" or "no" questions about sexual 

misconduct and domestic violence.  

       Some two weeks after Nysta was convicted, the trial court filed and 

sealed the questionnaires without conducting a closure analysis as described in 

State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).  Nysta contends his 

convictions must be reversed because this omission prejudiced his constitutional 

right to a public trial as delineated by Bone-Club.

       This court addressed the public trial ramifications of sealing juror 

questionnaires in State v. Coleman, 151 Wn. App. 614, 214 P.3d 158 (2009), 

State v. Lee, 159 Wn. App. 795, 247 P.3d 470 (2011), and State v. Tarhan, 159 

Wn. App. 819, 246 P.3d 580, review granted, 172 Wn.2d 1013 (2011).  In these 

                                           24 

65774-7-I/25

cases, the trial court sealed juror questionnaires without holding a Bone-Club

hearing.  On appeal, we held reversal was not required because the sealing 

order did not affect the defendant's right to a public trial.  We limited the remedy 

to a remand for reconsideration of the sealing order.  Nysta contends these 

cases were wrongly decided.  We do not find his arguments compelling.  The 

key factor is that the public was able to observe jury selection in open court. 

Following Coleman, we hold that Nysta's right to a public trial was not violated

and that the public's right to open court records can be adequately secured by 

remanding for reconsideration of the sealing order in light of Bone-Club.

                                 SPECIAL VERDICT

       The special verdict permitted the trial court to impose an exceptional 

sentence for an aggravated domestic violence offense.  When the court did 

impose an exceptional sentence, it was supported not only by the jury's finding

but also by two other grounds for which a jury finding is not necessary:  (1) Nysta 

had committed multiple concurrent offenses and (2) his high offender score 

resulted in some of the current offenses going unpunished.  State v. Alvarado,

164 Wn.2d 556, 568-69, 192 P.3d 345 (2008).  

        Nysta contends his exceptional sentence cannot stand because the 

jurors were erroneously instructed that they must be unanimous to return a "no" 

answer on the special jury verdict form, in violation of State v. Bashaw, 169 

Wn.2d 133, 234 P.3d 195 (2010).  

       Assuming the instruction was erroneous under Bashaw, the exceptional 

                                           25 

65774-7-I/26

sentence was otherwise supported by Nysta's criminal history.  If a reviewing

court overturns one or more aggravating factors but is satisfied that the trial 

court would have imposed the same sentence based upon a factor or factors 

that are upheld, the court may uphold the exceptional sentence rather than 

remand for resentencing.  State v. Hughes, 154 Wn.2d 118, 134, 110 P.3d 192 

(2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 

126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Here, the trial court stated the same 

exceptional sentence would be imposed based upon any one of the aggravating 

factors standing alone.  Nysta is not entitled to relief under Bashaw.

                           JUDGMENT AND SENTENCE

       The judgment and sentence mistakenly lists Nysta's conviction for second 

degree rape as rape of a child in the second degree.  On remand, the trial court 

should correct this scrivener's error.

                                    CONCLUSION

       We remand for reconsideration of the sealing order and for correction of 

the scrivener's error in the judgment and sentence.  Otherwise, we affirm.  

WE CONCUR:

                                           26 

65774-7-I/27

                                           27