Facts: Petitioner Philip Bobenhouse was convicted of five counts of first degree rape of a child and first degree incest based on the state’s evidence that he raped his minor son multiple times and forced his son and daughter to have intercourse with each other. The Superior Court for Asotin County sentenced Bobenhouse to an exceptional minimum term of confinement for 600 months on each rape count, to run concurrently. Bobenhouse appealed the exceptional sentence, and the Court of Appeals affirmed the judgment and sentence of the trial court. Bobenhouse appealed to the Supreme Court of Washington for review, arguing that since his children were statutorily incapable of committing a crime due to their young age, the charges based on that conduct should be dismissed; that he did not actually engage in sexual intercourse with his children with respect to at least four of the five counts charged; that the jury should have been instructed on unanimity with respect to the allegations regarding the acts he committed directly against his son; and that the trial court erred in calculating his offender score, and as a consequence, the trial court erred in imposing an exceptional sentence based on an “unpunished crimes” aggravating factor.

Question(s): Can a person be held accountable for committing child rape and incest by forcing his children to have sex with each other?

Does failure to give a unanimity instruction on the specific act that constituted rape and incest require reversal?

Can the trial court impose an exceptional minimal sentence based on its own findings?

Conclusions: Justice Charles W. Johnson’s opinion for the Court affirmed the decision of the Court of Appeals, holding that Bobenhouse was properly held accountable for committing child rape, in violation of RCW §9A.64.073(1), and incest, in violation of RCW §9A.64.020, by forcing his children to have sex with each other. Because of his legal accountability for the children, he was the “perpetrator” and therefore was acting as an accomplice under RCW §9A.08.020(1) in committing first degree rape of a child and incest against the children. Finally, the trial court’s failure to give instruction on unanimity was a harmless error, and did not err by imposing an exceptional minimum sentence based on judicial fact finding.

Docket No. 81413-9 (from Court of Appeals Division III Case No. 25673-1)

Petitioner: Phillip Bobenhouse

(Counsel: Dennis W. Morgan)

Respondent: State of Washington

(Counsel: Benjamin C. Nichols)

Briefs:

Argument: Tuesday, June 9, 2009 9:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, September 3rd, 2009

Vote: 9-0

Opinion: 166 Wn.2d 881 (2009)

Court: Alexander4 Court (2008-2009)

Alexander

Johnson
(Majority)

Madsen

Sanders

Chambers

Owens

Fairhurst

Johnson

Stephens