Step-father’s Child Molestation Conviction Vacated for Violating Double Jeopardy

State of Washinton v. Robb (2017)

by David S. Marshall

The Washington State Court of Appeals, Division II, has vacated a Clark County man’s second-degree child molestation conviction on the ground that it violated double jeopardy. The appeals court also sent Tyler Robb’s case back to the trial court with instructions to strike the sentencing conditions regarding controlled substances and sexually explicit material.

The State charged Mr. Robb with second-degree child rape and second-degree child molestation after an incident involving his step-daughter in the family home. The jury returned a verdict of guilty on both the second-degree child rape and second-degree child molestation charges, and the court sentenced Mr. Robb to 90 months in prison. Additionally, the trial court imposed sentencing conditions prohibiting Mr. Robb from having any contact with minors, and from possessing, consuming or delivering controlled substances, and from using or possessing sexually explicit material.

Mr. Robb appealed both his convictions and the sentencing conditions. He argued that his conviction for both child molestation and child rape violated double jeopardy. Double jeopardy is a constitutional protection which prohibits courts from convicting defendants more than once for the same offense. The prosecution must ensure that every charge is based upon separate acts.

In a case (like Mr. Robb’s) where a defendant has been improperly convicted of two charges for the same act, the appellate court must cancel the lesser charge. The Court of Appeals found that in Mr. Robb’s case, the prosecutor did not adequately describe to the jury that, if they were to find Mr. Robb guilty of both charges, they had to base these findings on separate acts, not the same act for both charges. The prosecutor’s failure to give this instruction to the jury resulted in double jeopardy for Mr. Robb, and his conviction for child molestation was thrown out by the appeals court.

Mr. Robb also argued on appeal that the conditions on his sentence, forbidding him to contact any minors or possess or consume controlled substances or sexually explicit material, were improper. While the appellate court did not lift the sentencing condition regarding Mr. Robb’s ability to contact minors, the court did agree that the sentencing condition prohibiting his use of controlled substances or sexually explicit material was not appropriate. Since Mr. Robb’s offense had nothing to do with controlled substances or sexually explicit material, he should not be barred from either of these items as a part of his sentence. These conditions violate RCW 9.94A.505(9), which allows courts to impose restrictions on the use of controlled substances only if the use of or dependence upon these substances contributed to the commission of the crime at issue.