State v. Tili

Summary

The Washington Supreme Court, sitting en banc (Ireland, J., for a unanimous court), upheld Fonotaga Tili's convictions for three counts of first-degree rape, first-degree burglary, and second-degree assault. It held that the unit of prosecution for rape is 'sexual intercourse,' complete upon any penetration of the vagina or anus however slight, so three separate penetrations during a continuous two-minute assault were three separate units of prosecution that did not violate double jeopardy; because the statute was plain and unambiguous, the rule of lenity did not apply. The court nevertheless held that the trial court abused its discretion in sentencing: the three rapes were the 'same criminal conduct' under RCW 9.94A.400(1)(a), had to be counted as one crime, and had to be served concurrently unless an exceptional sentence was imposed, rather than consecutively under the serious violent offense subsection (1)(b). The court also held that the second-degree assault merges into the rape for scoring purposes (per the State's concession) but not into the burglary under the anti-merger statute, that the challenged jury instructions did not improperly comment on the evidence, and it remanded for resentencing.