FILED AUGUST 8, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON
) STATE OF WASHINGTON, ) No. 38801-8-III ) Respondent, ) ) ORDER AMENDING OPINION v. ) ) BLAKE ALEXANDER BADGLEY, ) ) Petitioner.
IT IS ORDERED the opinion filed July 27, 2023, is amended as follows:
The first full paragraph on page 33 that reads:
This appeal asks whether, based on the concepts of double jeopardy and collateral estoppel, must the charge of second degree rape now be dismissed with prejudice? The State argues it does not because the jury, when acquitting Blake Badgley of third degree rape, could have found that Jane was awake, but never said “no,” such that she did not clearly express a lack of consent. We reject the State’s contention because the State never forwarded such an argument before the trial court and actually argued to the judge and jury that Jane during the entire sexual encounter. We answer the issue on appeal in the affirmative because collateral estoppel, in the context of the double jeopardy clause, precludes the State from asserting an argument forwarded to convict of one crime, which argument the jury previously rejected for purposes of another crime.
shall be amended to read:
This appeal asks whether, based on the concepts of double jeopardy and collateral estoppel, must the charge of second degree rape now be dismissed with prejudice? The State argues it does not because the jury, No. 38801-8-III State v. Badgley
when acquitting Blake Badgley of third degree rape, could have found that Jane was awake, but never said “no,” such that she did not clearly express a lack of consent. We reject the State’s contention because the State never forwarded such an argument before the trial court and actually argued to the judge and jury that Jane remained asleep during the entire sexual encounter. We answer the issue on appeal in the affirmative because collateral estoppel, in the context of the double jeopardy clause, precludes the State from asserting an argument forwarded to convict of one crime, which argument the jury previously rejected for purposes of another crime.
PANEL: Judges Fearing, Lawrence-Berrey, Staab
FOR THE COURT:
___________________________________ GEORGE FEARING, Chief Judge FILED JULY 27, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 38801-8-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) BLAKE ALEXANDER BADGLEY, ) ) Petitioner. )
FEARING, C.J. —
Under the Double Jeopardy Clause, the government may not take a mulligan. United States v. Castillo-Basa, 483 F.3d 890, 893 (9th Cir. 2007).
The elements of second degree rape include the victim being physically helpless or
otherwise unable to consent to sexual intercourse. The elements of third degree rape
include the victim clearly expressing a lack of consent. The State charged appellant
Blake Badgley with both degrees of rape after he engaged in sexual intercourse with
Jane, a pseudonym. When arguing that Badgley committed both crimes, the State
asserted that Jane’s alcohol-induced sleep qualified as an inability to consent and
constituted a clear expression of lack of consent to intercourse. Badgley defended both
charges in contending that Jane was awake and consented. The jury acquitted Badgley of
the crime of third degree rape. The jury deadlocked on the charge of second degree rape. No. 38801-8-III State v. Badgley
This appeal asks whether, based on the concepts of double jeopardy and collateral
estoppel, must the charge of second degree rape now be dismissed with prejudice? The
State argues it does not because the jury, when acquitting Blake Badgley of third degree
rape, could have found that Jane was awake, but never said “no,” such that she did not
clearly express a lack of consent. We reject the State’s contention because the State
never forwarded such an argument before the trial court and actually argued to the judge
and jury that Jane during the entire sexual encounter. We answer the issue on appeal in
the affirmative because collateral estoppel, in the context of the double jeopardy clause,
precludes the State from asserting an argument forwarded to convict of one crime, which
argument the jury previously rejected for purposes of another crime.
FACTS
This prosecution arises from the alleged rape of Jane, by appellant Blake Badgley
in June 2018. Badgley was then twenty years old, and Jane was nineteen years of age.
Badgley admits to sexual intercourse but contends Jane consented by her earlier
comments and her conduct.
A mutual friend of Blake Badgley and Jane hosted back-to-back parties in
Monitor. The first party occurred either on the night of June 15 or 16, 2018. The second
party convened on the night of June 17 and continued into the morning hours of June 18.
Badgley and Jane attended both parties.
2 No. 38801-8-III State v. Badgley
During the second party, Jane consumed one or more drinks laced with vodka.
We do not know the total quantity of alcohol imbibed by Jane. While in her drunken
state, Jane undressed herself and ran around the house naked. She told males at the party
that she wished to engage in sex. She declared: “‘I need some dick.’” Report of
Proceedings (RP) at 318. She attempted to grab the genitals of Blake Badgley and other
males.
Jane retired to bed in a bedroom located in the party house around 3:00 a.m. on
June 18. She returned, however, to the living room shortly thereafter while wearing only
underwear. She announced again that she “‘need[ed] some dick.’” RP at 331. Some
party attendees shepherded Jane back to bed.
During trial, Jane testified that her last clear memory, from the events of June 17-
18, entailed going inside the party house to play Mario Kart after being in an outside hot
tub. She later awoke in the night with someone on top of her. She felt someone
penetrating her vagina. The male ejaculated on her stomach, after which he commented:
“‘Stay where you’re at. I’m going to get something to clean up.’” RP at 81. She fell
asleep once again. She awoke a second time completely naked with Blake Badgley next
to her in the bed.
During trial Jane averred that, when she asked Blake Badgley if they had sex, he
replied: “‘Yeah. But I couldn’t tell if you were into it because you kept snoring.’” RP at
3 No. 38801-8-III State v. Badgley
92. She denied ever telling Badgley that she desired sex with him. She repudiated
“being physical” with Badgley. RP at 106.
After Jane reported rape, Chelan County Sheriff Deputy Paul Nelson interviewed
Blake Badgley. Badgley did not testify at trial. During trial, the State played the
recording of the interview.
During the law enforcement interview, Blake Badgley commented that, on the
night of the June 17 party, he remained awake with other young men in the living room
after Jane retired to a bedroom. He eventually went to the bedroom because of the
uncomfortably small dimensions of the living room couch. Badgley first commented that
Jane was awake when he entered the bedroom. He later corrected himself and remarked
that she awoke when he rolled her over in the bed to create room for himself. Badgley
then fell asleep for two hours and Jane returned to sleep for the same amount of time.
During the interview, Deputy Paul Nelson inquired about sexual intercourse:
NELSON And then sometime at around five in the morning, you wake up and did you wake her up again? BADGLEY Yeah. NELSON How did you do that? BADGLEY I’m not sure. Uh, waited until I could see her eyes were open, you know? NELSON Um huh. BADGLEY And then I started talking to her. NELSON And what did she say, and what did you say to her? BADGLEY Like, “Are you good?” and stuff and I just started asking her questions like that. From what I could tell she was fine. NELSON What do you, well, did you ever ask her if she wanted to have sex?
4 No. 38801-8-III State v. Badgley
BADGLEY Not, not, no, not directly. NELSON So, what did you say to indicate that that’s what you were trying to do? BADGLEY I don’t know, just body language, I guess. NELSON Well, what did she say to you that made you think that she was willing to have sex with you at that time? BADGLEY Um, I don’t know “sleep with me” and grabbed me earlier. NELSON So, she was coming on to you a few hours earlier? BADGLEY Yeah NELSON And a whole bunch of other people? BADGLEY Yeah NELSON So, after she’d been asleep for a couple hours, you felt that that was enough of a green-light for you to go in and have sex with her? BADGLEY Yeah. I wanted to make sure she was sober and see if that was alright with her.
Exhibit 8, Transcript (Ex. 8) at 19-20.
NELSON Ok. And was she awake [immediately before intercourse]? BADGLEY Yeah. I saw the whites of her eyes again. NELSON And what did you say to her? BADGLEY I said “Are you ok, like hello.” She’s like “hi.” NELSON Um huh. So, I guess what I’m getting at is how did you ask her if she wanted to have sex? BADGLEY Well, I mean, I just kind of figured the fact that she wanted to go ahead and grab my dick, as a clue. .... NELSON Ok. Well, what did she say while you were having sex? BADGLEY Really, like nothing. Moaning, that’s about it. NELSON Ok. And did you recall her being, falling asleep while you were having sex? BADGLEY No. Not that I know of. .... Ex. 8 at 16-17.
NELSON Ok. Do you remember hearing her snoring at all while
5 No. 38801-8-III State v. Badgley
you were having sex? BADGLEY No. That didn’t happen. NELSON Uh, ok. And in the morning did you tell her that she had been snoring? BADGLEY I didn’t hear her snore at all.
Ex. 8 at 25.
PROCEDURE
The State of Washington charged Blake Badgley with one count of rape in the
second degree and one count of rape in the third degree. The State alleged the same act
of intercourse as the basis of each crime. At trial, Badgley conceded he engaged in
sexual intercourse with Jane during the early morning hours of July 18, 2018. The parties
contested at trial whether Jane was awake at the time of the sexual intercourse.
RCW 9A.44.050 governs the crime of rape in the second degree and declares, in
part:
(1) A person is guilty of rape in the second degree when . . . the person engages in sexual intercourse with another person: .... (b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated.
(Emphasis added.) RCW 9A.44.060, which controls the crime of rape in the third degree,
read in relevant part in 2018:
(1) A person is guilty of rape in the third degree when . . . such person engages in sexual intercourse with another person: (a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct.
6 No. 38801-8-III State v. Badgley
(Emphasis added.)
At the conclusion of the State’s case, Blake Badgley moved to dismiss both counts
of rape. As to second degree rape, Badgley contended that no evidence supported a
finding that Jane was physically unable to express consent, an element of the crime. As
to the third degree rape charge, Badgley maintained that the undisputed facts established
that Jane never clearly expressed her lack of consent to sex, an element of the crime.
In opposition to Blake Badgley’s halftime motion to dismiss, the State’s attorney
asserted that, because Jane fell “asleep,” she was physically helpless to consent to
intercourse for purposes of second degree rape. The State conceded that it needed to
demonstrate beyond a reasonable doubt that Jane clearly expressed a lack of consent by
word or conduct to convict Badgley of third degree rape. The State argued that the act of
sleeping clearly expressed the lack of consent. The prosecuting attorney intoned:
Similarly as to Count II [third degree rape], her lack of consent has to be expressed clearly through words or conduct. If her conduct is not indicating that she wants to have sex with him, then it’s her lack of consent is being express. He had told Detective Nelson he took her consent based on her behavior two to three hours prior when she was drunk and acting out. That is not a sufficient basis for consent at the time of the act. And that is the requirement that she has to be actively consenting at the time of the act. She was not and, therefore, there is sufficient evidence for both cases—for counts to go to the jury.
RP at 686-87.
The superior court denied Blake Badgley’s motion to dismiss. The court
7 No. 38801-8-III State v. Badgley
remarked: “there is clearly enough evidence for [both counts] to go to the jury.” RP at
687.
During closing statement, the State argued to the jury:
[Jane] didn’t consent. Her lack of consent was clearly expressed by her inability to act. Both of these same things can be true. She can be both physically helpless and not be consenting at the same time. She was both incapable of consent and unable to consent.
RP at 774.
The jury acquitted Blake Badgley of rape in the third degree. The trial court
declared a mistrial on the count of rape in the second degree because of a jury deadlock
on that charge.
Blake Badgley thereafter filed a motion to dismiss the second degree rape charge.
He argued that collateral estoppel, as incorporated into the double jeopardy clause, barred
the State from retrying him on second degree rape. According to Badgley, the jury’s
acquittal on third degree rape decided the question of whether Jane was asleep such that
she was incapable of giving consent by reason of being physically helpless. Since the
State argued that sleeping functioned as the message of a lack of consent, the jury must
have found that Jane was awake during intercourse and thus capable of giving consent.
The trial court denied Blake Badgley’s motion to dismiss. In an order denying the
motion, the superior court entered the following findings of fact:
7. That the State argued that [Jane] was sleeping at the time of sexual intercourse.
8 No. 38801-8-III State v. Badgley
8. That the State argued that because [Jane] was sleeping, she was incapable of consenting to sexual intercourse by reason of being physically helpless for the purposes of Rape in the Second Degree. 9. That the State also argued that [Jane’s] sleeping was conduct that clearly expressed her lack of consent for the purposes of Rape in the Third Degree.
Clerk’s Papers at 282.
LAW AND ANALYSIS
On appeal, Blake Badgley repeats the same argument forwarded below after
acquittal on third degree rape. We agree that collateral estoppel, as incorporated by the
double jeopardy clause, precludes the State from continuing its prosecution for second
degree rape. In so ruling, we note that the State argues on appeal positions contrary to
those stances it advanced before the trial court, in response to the motion to dismiss at the
close of the State’s evidence, and positions argued to the jury during closing.
We emphasize that the trial court found that the State argued that Jane’s sleeping
meant both that she was physically helpless to consent and that she clearly expressed a
lack of consent. The trial transcript readily confirms these findings of fact. The State
never argued, before the trial court or the jury, that Jane was awake but never expressed a
lack of consent.
Article I, section 9, of the Washington State Constitution and the Fifth
Amendment to the United States Constitution prohibit the State from trying a defendant
for the same offense twice. State v. Heaven, 127 Wn. App. 156, 161, 110 P.3d 835
9 No. 38801-8-III State v. Badgley
(2005). Therefore, collateral estoppel’s applicability in a particular case is no longer a
matter to be left for state court determination under the broad bounds of fundamental
fairness. Ashe v. Swenson, 397 U.S. 436, 442-43, 90 S. Ct. 1189, 25 L. Ed. 2d 469
(1970). For this reason, we rely principally on federal decisions. The Washington
Supreme Court has not expanded the scope of our state constitution’s double jeopardy
clause beyond federal protection. State v. Eggleston, 164 Wn.2d 61, 71, 187 P.3d 233
(2008); State v. Heaven, 127 Wn. App. 156, 161 (2005).
Double jeopardy entails the right of an accused to be free of repeated prosecutions
in which the government retries him until it obtains a guilty verdict. United States v.
Castillo-Basa, 483 F.3d 890, 893 (9th Cir. 2007). The double jeopardy clause demands
that the government present its strongest case at the first trial. United States v. Castillo-
Basa, 483 F.3d 890, 893 (9th Cir. 2007). The guarantee recognizes the vast power of the
sovereign, the ordeal of a criminal trial, and the injustice our criminal system would
invite if prosecutors could treat trials as dress rehearsals until they secure the convictions
they seek. Currier v. Virginia, ___ U.S. ___, 138 S. Ct. 2144, 2149, 201 L. Ed. 2d 650
(2018).
The doctrine of collateral estoppel, known in modern terminology as issue
preclusion, prevents a person from relitigating an issue in order to prevent legal
harassment and the overuse or abuse of judicial resources. San Remo Hotel, L.P. v. City
& County of San Francisco, 545 U.S. 323, 336, 125 S. Ct. 2491, 162 L. Ed. 2d 315
10 No. 38801-8-III State v. Badgley
(2005); Allen v. McCurry, 449 U.S. 90, 94-95, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980).
Since the goals of collateral estoppel overlap with the policies behind the double jeopardy
clause, the federal constitution’s guaranty against double jeopardy incorporates the
common law doctrine of collateral estoppel. Ashe v. Swenson, 397 U.S. 436, 442 (1970);
State v. Eggleston, 129 Wn. App. 418, 426-27, 118 P.3d 959 (2005), as amended (Sept.
30, 2005), aff’d, 164 Wn.2d 61, 187 P.3d 233 (2008). The doctrine, although created in
civil litigation, extends to criminal law. Ashe v. Swenson, 397 U.S. 436, 443 (1970). We
do not know if the bar of collateral estoppel is coextensive with the bar of double
jeopardy. For purposes of this appeal, the two concepts merge.
Collateral estoppel and double jeopardy not only preclude prosecution of the same
crime after a final judgment, but protect against a series of prosecutions involving the
same fundamental issues, in which the government presents additional arguments and
evidence at each iteration. United States v. Castillo-Basa, 483 F.3d 890, 893 (9th Cir.
2007). One adjudged not guilty may not be held to answer more than once for conduct
that the jury has decided he did not commit regardless of whether the State pleads a
different crime. United States v. Castillo-Basa, 483 F.3d 890, 896 (9th Cir. 2007). A
criminal defendant may assert a defense of collateral estoppel when the defendant faces
relitigation of an issue already determined at a previous proceeding. State v. Heaven, 127
Wn. App. 156, 162 (2005).
11 No. 38801-8-III State v. Badgley
A reviewing court must evaluate the trial record of a prosecution in order to
discern what issues a jury previously resolved. Relatedly, courts should not apply the
rule of collateral estoppel in criminal cases with the hypertechnical and archaic approach
of a 19th century pleading book, but with realism and rationality. Ashe v. Swenson, 397
U.S. 436, 444 (1970); State v. Harrison, 148 Wn.2d 550, 561, 61 P.3d 1104 (2003).
Collateral estoppel looms as a constitutional fact that a court must decide through
an examination of the entire record. Ashe v. Swenson, 397 U.S. 436, 443 (1970). When a
previous judgment of acquittal was based on a general verdict, as is usually the case, the
court should examine the record of the prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and conclude whether a rational
jury could have grounded its verdict on an issue other than that which the defendant seeks
to foreclose from consideration in a second proceeding. Ashe v. Swenson, 397 U.S. 436,
444 (1970). The reviewing court must view all the circumstances of the proceedings.
Sealfon v. United States, 332 U.S. 575, 579, 68 S. Ct. 237, 92 L. Ed. 180 (1948). The
court should consider the arguments asserted in light of the evidence. United States v.
Castillo-Basa, 483 F.3d 890, 896 (9th Cir. 2007). If the accused can show that an issue
of fact essential for the proof of an offense for which the defendant is later prosecuted
was necessarily decided in a prior proceeding, that determination will be binding on the
later prosecution. Wilkinson v. Gingrich, 806 F.3d 511, 516-17 (9th Cir. 2015).
12 No. 38801-8-III State v. Badgley
Three principles principally impact this appeal. First, separate statutory crimes
need not be identical either in constituent elements or in actual proof in order to be the
same within the meaning of the constitutional prohibition of double jeopardy. Brown v.
Ohio, 432 U.S. 161, 164, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); United States v.
Castillo-Basa, 483 F.3d 890, 896 (9th Cir. 2007). Second, double jeopardy protects the
accused from attempts to relitigate the facts underlying an earlier acquittal, not simply the
same charges. Brown v. Ohio, 432 U.S. 161, 165 (1977); Ashe v. Swenson, 397 U.S. 436
(1970); In re Personal Restraint of Moi, 184 Wn.2d 575, 579, 360 P.3d 811 (2015).
Third, a factfinder’s determination that the government failed to carry its burden on an
issue in the first proceeding has a preclusive effect in a subsequent proceeding raising the
same issue, provided that both proceedings are governed by the same standard of proof.
Evans v. Michigan, 568 U.S. 313, 318-19, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013);
Wilkinson v. Gingrich, 806 F.3d 511, 518 (9th Cir. 2015); United States v. Castillo-Basa,
483 F.3d 890, 902 (9th Cir. 2007).
Federal courts implement a three-step process when applying collateral estoppel in
the context of double jeopardy (1) identification of the issues in the two actions for the
purpose of determining whether the issues are sufficiently similar and sufficiently
material in both actions to justify invoking the doctrine, (2) an examination of the record
of the prior case to decide whether the issue was litigated in the first case, and (3) an
examination of the record of the prior proceeding to ascertain whether the issue was
13 No. 38801-8-III State v. Badgley
necessarily decided in the first case. United States v. Castillo-Basa, 483 F.3d 890, 897
(9th Cir. 2007). Washington courts ask four questions, all which must be answered
affirmatively (1) was the issue decided in the prior adjudication identical with the one
presented in the action in question? (2) was there a final judgment on the merits? (3) was
the party against whom the plea of collateral estoppel is asserted a party or in privity with
the party to the prior adjudication? and (4) will the application of the doctrine work an
injustice on the party against whom the doctrine is to be applied? State v. Eggleston, 164
Wn.2d 61, 71-72 (2008); State v. Tili, 148 Wn.2d 350, 361, 60 P.3d 1192 (2003). Both
tests require dismissal of the second degree rape charge.
We outline five federal decisions and two Washington decisions for enlightenment
on whether double jeopardy precludes the State from retrying Blake Badgley for second
degree rape. We start with two United States Supreme Court decisions.
From two centuries ago comes Ex parte Nielsen, 131 U.S. 176, 9 S. Ct. 672, 33 L.
Ed. 118 (1889). Hans Nielsen dwelled with two wives. The United States charged him
with a statute applying to Utah territory that prohibited a man from cohabitating with
more than one woman at a time. Nielsen pled guilty to the charge and completed his
sentence. Thereafter, the government charged Nielsen with adultery based on sexual
intercourse with one of the same two women. Without analyzing double jeopardy or
collateral estoppel, the United States Supreme Court dismissed the charge of adultery.
The Supreme Court reasoned that cohabitation, the subject of the first crime, assumed
14 No. 38801-8-III State v. Badgley
sexual intercourse. Since sexual intercourse was an element of adultery, the United
States could not proceed with the second charge.
In Ashe v. Swenson, 397 U.S. 436 (1970), the United States Supreme Court
introduced the doctrine of collateral estoppel and the double jeopardy clause to each
other. The United States charged Bob Ashe as one of multiple individuals involved in a
robbery at a poker party. The trial court instructed the jury that, even if it found that
Ashe did not personally rob the victim, he was guilty of robbery if the jury found he
participated in it. The jury acquitted Ashe, and the State subsequently charged and
convicted him with robbing a different victim at the poker party. The Supreme Court
concluded that Ashe’s acquittal in the first trial foreclosed the second trial because the
acquittal verdict necessarily meant that the jury was unable to conclude beyond a
reasonable doubt that Ashe was one of the bandits. Collateral estoppel and double
jeopardy rendered impermissible a second trial because, to convict Ashe in the second
trial, the second jury would have to reach a directly contrary conclusion. By its general
verdict of not guilty, the first jury had decided the ultimate fact that Ashe was not one of
the robbers.
Wilkinson v. Gingrich, 806 F.3d 511 (9th Cir. 2015) entailed perjury charges after
an acquittal. A traffic court judge acquitted James Wilkinson on charges of speeding
based on a conclusion that Wilkinson was not the driver of the speeding car. Thereafter,
police developed new evidence establishing Wilkinson as the driver. The State
15 No. 38801-8-III State v. Badgley
prosecuted Wilkinson for perjury. Based on double jeopardy, the Ninth Circuit reversed
the perjury conviction and dismissed the charge. The perjury charge stemmed from
Wilkinson allegedly lying, during the first trial, that he was not the driver. The traffic
court judge had already ruled that the State had not demonstrated Wilkinson to be the
driver. It did not matter that the traffic court judge did not affirmatively find someone
else to be the driver as long as the judge concluded that the State had not met its burden
of proof.
United States v. Castillo-Basa, 483 F.3d 890 (9th Cir. 2007) also involved a
prosecution for perjury. The government charged Buenaventura Castillo-Basa with
illegal entry into the United States. An element of the crime required that the government
show that an immigration judge had deported the accused after an earlier hearing before
the judge. During the criminal trial, Castillo-Basa testified that the government never
afforded him a hearing before an immigration judge. The government presented no
records to the contrary. A jury acquitted Castillo-Basa of the charge. After the acquittal,
the government located records of a hearing before an immigration judge and prosecuted
Castillo-Basa for perjury based on his testimony to the contrary. The appeals court
summarily dismissed the prosecution since the only factual issue during the first trial
entailed whether Castillo-Basa underwent a deportation hearing before a judge. The
acquittal necessarily meant that the jury concluded that the government had failed to
16 No. 38801-8-III State v. Badgley
carry its burden of proving such a hearing. In other words, Castillo-Basa’s testimony was
not false. He could not later be charged with perjury.
United States v. Romero, 114 F.3d 141 (9th Cir. 1997) closely parallels Blake
Badgley’s appeal in that collateral estoppel precluded a retrial on a charge, on which the
jury deadlocked. The government charged Enzo Romero with the importation of
marijuana and possession of marijuana with intent to distribute. Romero agreed that he
drove a car from Mexico into the United States and the car contained marijuana. Romero
claimed he drove the car at the request of a woman he met two days earlier and that he
did not know the car contained marijuana. The jury acquitted Romero by general verdict
of the possession with intent to distribute count. The jury deadlocked on the importation
count. Romero thereafter sought to dismiss the importation charge on the basis that
collateral estoppel barred retrial. The appellate court agreed. The Ninth Circuit noted
that courts should apply collateral estoppel with realism and rationality. Despite the
general verdict, the jury had acquitted Romero with intent to deliver, which included an
element of knowing possession. Therefore, the government could not thereafter proceed
with the prosecution of a crime that included an element of knowing possession of
marijuana. Importation of marijuana was such a crime.
The government argued in United States v. Romero that application of collateral
estoppel was irrational under the circumstances of the prosecution. Since knowing
possession of marijuana constituted an element of both crimes, the jury must not have
17 No. 38801-8-III State v. Badgley
found Enzo Romero lacked knowledge or else it would have acquitted him of the
importation charge. In response, the appeals court noted that the only contested fact at
trial was whether Romero knew the car to contain marijuana. The court reasoned that
employing suspicion as to the reason for acquittal on one charge, but not the other, would
preclude the final settlement of questions of fact. The possibility that the jury acted
irrationality would negate the collateral estoppel of all verdicts and conflict with the
ruling in Ashe v. Swenson.
We move to Washington decisions. In In re Personal Restraint of Moi, 184
Wn.2d 575 (2015), the Washington Supreme Court followed the teachings of the United
States Supreme Court in Ashe v. Swenson. The State charged Matthew Moi with the
murder of Keith McGowan and unlawful possession of the firearm that killed McGowan.
No physical evidence tied Moi to the gun that killed McGowan. The jury acquitted Moi
on the unlawful possession charge and deadlocked on the murder charge. On retrial, the
State convicted Moi with murder, while arguing that Moi possessed a gun. Presumably,
the State could not convict Moi with murder without showing that Moi fired the bullet
from the gun that forensic evidence established killed McGowan.
In a personal restraint petition, Matthew Moi contended that double jeopardy
precluded him from being tried for murder with a gun he had been acquitted of
possessing. The Supreme Court agreed. The jury had previously decided the ultimate
fact of whether Moi possessed the gun that killed Keith McGowan. The State agreed that
18 No. 38801-8-III State v. Badgley
Moi satisfied the first three elements of collateral estoppel under Washington law, but not
the fourth element. The State argued that collateral estoppel would work an injustice
because Moi had sought severance of the counts. The Supreme Court rejected the
contention in part because the trial court had denied the motion to sever.
We contrast the Washington Supreme Court decision in State v. Eggleston, 164
Wn.2d 61 (2008). Sheriff deputies raided the home of Brian Eggleston. A fire fight
ensued. Eggleston shot and killed Pierce County Sheriff Deputy John Bananola. The
State charged Eggleston with aggravated first degree murder. One element of aggravated
first degree murder is knowing the victim to be a law enforcement officer. The jury
acquitted Eggleston on the first degree murder charge, but found Eggleston guilty of
second degree murder. In a special verdict form, the jury found that Eggleston had not
knowingly killed a police officer. Nevertheless, the trial court had instructed the jury not
to complete the special verdict form unless it convicted Eggleston of first degree murder.
The trial court considered the special verdict superfluous.
After reversal of the conviction on appeal, the State tried Brian Eggleston again on
the second degree murder charge. During retrial, the State argued again that Eggleston
knowingly shot a law enforcement officer. Although not an element of second degree
murder, any knowledge impacted Eggleston’s assertion of self-defense. After the jury
found Eggleston guilty of second degree murder, the sentencing court imposed an
exceptional sentence on finding that Eggleston knew the victim to be a police officer. On
19 No. 38801-8-III State v. Badgley
appeal, Eggleston argued that the first jury’s special verdict form precluded the State
from relitigating his knowledge or lack thereof of John Bananola’s status as an officer.
The Supreme Court disagreed because the first jury did not need to decide Eggleston’s
knowledge.
We return to the prosecution of Blake Badgley. We agree that the elements of
second degree rape and third degree rape do not correspond. Being physically unable to
consent to sexual penetration does not necessarily or always equate to expressing, by
words or conduct, a lack of consent. But collateral estoppel does not require that the two
crimes share all of the same elements. If the jury necessarily resolved a fact when
contemplating whether the accused committed one crime and that fact means acquittal of
a second crime, double jeopardy bars the prosecution for the second crime.
Blake Badgley agreed that he sexually penetrated Jane. The only disputed factual
question for resolution by the jury was whether Jane slept at the time of intercourse. The
State contended that Jane could not consent because of her slumber and that she clearly
expressed a lack of consent because of that same slumber. Stated differently, the State
asserted no argument other than the act of sleeping satisfied the element of physical
inability to consent, for purposes of second degree rape, and the clear expression of a lack
of consent, for purposes of third degree rape. During oral argument before this court, the
State conceded that it only argued, during trial, that Jane clearly expressed a lack of
20 No. 38801-8-III State v. Badgley
consent through her sleeping. During trial, the State never distinguished between any
status of sleep needed to convict for third degree rape as opposed to second degree rape.
Just as in Ashe v. Swenson, Blake Badgley’s first jury found that the State had
failed to prove a fact fatal to convict on one crime and that finding precludes conviction
on a second crime where the absence of proof is also fatal. Badgley’s jury necessarily
found that Jane was not asleep, but rather was sufficiently conscious to be able to express
a lack of consent for purposes of third degree rape. No later jury can contradict this
finding by ruling that Jane was sufficiently asleep to be unable to consent. When
reviewing the record as a whole, particularly the State’s argument to convict Badgley of
third degree rape, we conclude the jury necessarily found Jane to be sufficiently alert to
express whether or not she desired intercourse.
The State argues that, in making the decision to acquit Blake Badgley, the jury
possibly concluded that (1) the State failed to meet its burden of establishing that Jane
either (i) did not consent to the sexual intercourse with Badgley or (ii) such lack of
consent was clearly expressed by words or conduct, but the jury was unable to reach
unanimity on whether (2) the sexual intercourse occurred when Jane was incapable of
consent by reason of being physically helpless. The State argues these two results can be
consistent. Nevertheless, under double jeopardy jurisprudence, we must review the
evidence in light of the arguments asserted by the parties during trial. The State never
argued this hypothetical to the jury or to the trial court. Instead, the State consistently
21 No. 38801-8-III State v. Badgley
tried the case on the theory that Jane was asleep and her sleep both precluded her from
consent and constituted a clear expression of lack of consent.
The dissenting author writes that the majority fails to cite a decision that stands for
the proposition that the State is precluded from presenting an argument in a second trial
that a jury already rejected. We assume the dissent distinguishes between, on the one
hand, arguments presented by the State based on underlying facts and, on the other hand,
the underlying facts. To answer the dissent’s contention, we repeat earlier portions of
this opinion. The reviewing court must view all the circumstances of the proceedings.
Sealfon v. United States, 332 U.S. 575, 579 (1948). Collateral estoppel protects against
“a series of prosecutions, involving the same fundamental issues, in which it presents
additional arguments.” United States v. Castillo-Basa, 483 F.3d 890, 893 (9th Cir. 2007).
The court, when determining a question of collateral estoppel, should consider “the
evidence and the arguments before” the jury. United States v. Castillo-Basa, 483 F.3d
890, 901 (9th Cir. 2007). The court must “examine the record of a prior proceeding,
taking into account the pleadings, evidence, charge, and other relevant matter.” Ashe v.
Swenson, 397 U.S. 436, 444 (1970) (quoting Mayers & Yarbrough, Bis Vexari: New
Trials and Successive Prosecutions, 74 HARV. L. REV. 1, 38-39 (1960). The dissent cites
no case law to the contrary.
We also deem it fair and consistent with rationality to preclude the State from
asserting an argument forwarded to convict the accused of a second crime when the jury
22 No. 38801-8-III State v. Badgley
already rejected the same argument by the State to convict the accused of another crime.
The State does not now forward any theory to convict Blake Badgley of second degree
rape other than that Jane was incapable of consenting to sex because she was asleep.
On appeal, Blake Badgley does not assert judicial estoppel so we do not rest our
decision on this doctrine. Nevertheless, judicial estoppel dovetails with our double
jeopardy analysis and bolsters dismissal of the second degree rape claim.
In an effort to defeat double jeopardy, the State performs an about-face as to its
positions as to sufficiency of evidence for the charge of third degree rape and the extent
of Jane’s sleep. The State writes:
First, the evidence is nearly nonexistent that [Jane] “clearly expressed by words or conduct” that she did not consent to sexual intercourse with Badgley. On the contrary, the evidence was that [Jane] was seeking sexual activity earlier that night, including with Badgley. . . . Second, there was no evidence that [Jane] ever clearly expressed her lack of consent to Badgley during the sex even though she was awake for the last part of it.
Br. of Respondent at 8. After the State’s completion of its case at trial, Blake Badgley
sought to dismiss the third degree rape charge on the ground that the evidence did not
support a jury finding that Jane clearly expressed a lack of consent. The State responded
that her sleep clearly expressed a lack of consent. Based on this argument, the trial court
denied the motion to dismiss.
Contrary to its respondent’s brief, the State, during trial, never conceded that Jane
was awake during any portion of the intercourse. The trial court found, as part of its
23 No. 38801-8-III State v. Badgley
order denying the posttrial motion to dismiss, that the State argued that Jane was sleeping
at the time of sexual intercourse. The trial court did not suggest that the State conceded
that Jane was awake at any time during the intercourse.
The State’s current concession amounts to an acknowledgement that it lacked
evidence to charge Blake Badgley with third degree rape because no evidence established
a clear expression of lack of consent. This concession demonstrates a violation of the
ethical standards of prosecuting attorneys. Standard 3–4.3 of the American Bar
Association Standards Minimum Requirements for Filing and Maintaining Criminal
Charges (4th ed. 2017) on the prosecution function reads:
(a) A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice. (b) After criminal charges are filed, a prosecutor should maintain them only if the prosecutor continues to reasonably believe that probable cause exists and that admissible evidence will be sufficient to support conviction beyond a reasonable doubt.
This court cited a previous version of the rule in State v. Knapstad, 41 Wn. App. 781,
785-86, 706 P.2d 238 (1985), aff’d, 107 Wn.2d 346, 729 P.2d 48 (1986).
The dissent laments that the majority identifies unethical conduct of the State. The
dissent worries that the majority’s mention of the conduct will preclude the State from
any concessions in the future. But the dissent fails to recognize that we do not condemn
24 No. 38801-8-III State v. Badgley
all concessions of the State. We should, however, recognize when the State concedes
that it lacked evidence to prosecute an accused for a crime charged.
The State further writes:
How can the State prove (1) [Jane] clearly expressed (i.e., made known) her lack of consent and simultaneously prove (2) she was unconscious or for any other reason physically unable to communicate an unwillingness to act? If one of these is true, the other is not.
Br. of Respondent at 9. The State argued to the jury during summation:
[Jane] didn’t consent. Her lack of consent was clearly expressed by her inability to act. Both of these same things can be true. She can be both physically helpless and not be consenting at the same time. She was both incapable of consent and unable to consent.
RP at 774. The trial court found that the State argued that both Jane’s sleep rendered her
incapable of consenting by reason of being physically helpless for the purpose of second
degree rape and that Jane’s sleep was conduct that clearly expressed her lack of consent
for purposes of third degree rape.
Also, the State now posits that “sleeping doesn’t convey a clear expression of lack
of consent.” Br. of Respondent at 10. On that same page, the State adds: “The only way
for [Jane] to clearly express a lack of consent to sex would be wake her up first-thereby
giving her the conscious and volitional ability to clearly express it.” Br. of Respondent at
10-11. Later the State adds: “[S]leeping/unconscious[ness] . . . alone does not indicate
any expression of consent, clear or otherwise, for purposes of proving third degree rape.”
Br. of Respondent at 11. The State may mean to write “lack of consent,” rather than
25 No. 38801-8-III State v. Badgley
“expression of consent.” Regardless, during trial, the State repeatedly argued to the
contrary. We also repeat that, in its brief, the State now takes the position, contrary to its
position at trial, that Jane was awake for part of the intercourse.
Finally, the State writes: “[T]he only thing [Jane] expressed that night was that she
was interested in sexual activity.” Br. of Respondent at 10. During trial, the State
repeatedly denied that Jane ever expressed interest in sex with Blake Badgley.
After having lost on the question controlling both charges, the State seeks to send
Blake Badgley through the gauntlet again by contradicting its arguments and positions
during trial. Judicial estoppel precludes a party from asserting one position in a court
proceeding and later seeking an advantage by taking a clearly inconsistent position.
Arkinson v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007); In re Committed
Intimate Relationship of Amburgey & Volk, 8 Wn. App. 2d 779, 788, 440 P.3d 1069
(2019). The doctrine applies when a party adopts a legal position that conflicts with an
earlier position taken either in the same or related litigation. Farmers High Line Canal &
Reservoir Co. v. City of Golden, 975 P.2d 189, 201-02 (Colo. 1999). A party may not
assert a theory on appeal different from that presented on the trial level. Mueller v.
Garske, 1 Wn. App. 406, 409, 461 P.2d 886 (1969).
During oral argument before this court, the State’s attorney agreed that the State is
now arguing a different theory on appeal from that argued at trial. The State’s attorney
26 No. 38801-8-III State v. Badgley
characterized its trial argument as “completely illogical.” Washington Court of appeals
oral argument, State v. Badgley, No. 38801-8-III (Apr. 27, 2023), 15:45 to 15:55.
Courts apply judicial estoppel to protect the integrity of the courts and to minimize
inconsistency, duplicity, and waste of time. In re Committed Intimate Relationship of
Amburgey & Volk, 8 Wn. App. 779, 788 (2019). Courts apply the doctrine to prevent a
litigant from playing fast and loose with the court. Miller v. Campbell, 137 Wn. App.
762, 771, 155 P.3d 154 (2007), remanded, 164 Wn.2d 529, 192 P.3d 352 (2008); Drain v.
Betz Laboratories, Inc., 69 Cal. App. 4th 950, 955, 81 Cal. Rptr. 2d 864 (1999).
Blake Badgley’s trial court adopted the State’s trial position that sleeping can be a
clear expression of lack of consent and also disable a person from consenting. One factor
a court considers in applying judicial estoppel is whether the party’s prior inconsistent
position was accepted by the first court. Taylor v. Bell, 185 Wn. App. 270, 282, 340 P.3d
951 (2014).
The dissent contends that we fail to identify any advantage gained by the State as a
result of arguing at trial a theory the opposite of which the State now forwards. But the
State defeated a motion to dismiss based on its inconsistent position.
CONCLUSION
We remand this prosecution to the superior court with directions to dismiss with
prejudice the charge of second degree rape against Blake Badgley.
27 No. 38801-8-III State v. Badgley
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Fearing, C.J.
I concur in result only:
______________________________ Lawrence-Berrey, J.
28 No. 38801-8-III
STAAB, J. (dissenting) — I disagree with the majority opinion and would find that
collateral estoppel does not prevent the State from retrying the second degree rape
charge. Despite Badgley’s attempts to narrow the scope of the jury’s fact-finding
province, Badgley cannot meet his burden of showing that the verdict of acquittal
necessarily decided the “identical” issue that will be required to prove second degree
rape.
“Third degree rape is not a lesser included offense of second degree rape; rather, it
is an inferior degree offense.” State v. Wright, 152 Wn. App. 64, 71, 214 P.3d 968
(2009). Here, the jury was instructed that to convict Badgley of second degree rape, the
State needed to prove that Jane1 “was incapable of consent by reason of being physically
helpless.” Rep. of Proc. (RP) at 757, former RCW 9A.44.050(1)(b) (2007). “A person is
physically helpless when a person is unconscious or for any other reason is physically
unable to communicate unwillingness to an act.” RP at 759. A person who is sleeping is
considered physically unable to communicate unwillingness to an act. State v. Mohamed,
175 Wn. App. 45, 58-59, 301 P.3d 504 (2013).
On the other hand, third degree rape is specifically limited to circumstances “not
constituting rape in the . . . second degree.” Former RCW 9A.44.060(1) (2013). To
1 We are using a pseudonym to refer to the victim who we will refer to as “Jane.” No. 38801-8-III State v. Badgley—Dissent
prove third degree rape, the State was required to show that Jane did not consent to
sexual intercourse, and clearly expressed her lack of consent through words or conduct.
RP at 758-59, former RCW 9A.44.060(1)(a).
At trial, the State argued that Jane’s state of being asleep was conduct that clearly
expressed a lack of consent. The State’s trial theory on third degree rape was legally
incorrect. Third degree rape contemplates a lack of consent by a person who is capable
of consenting. Compare former RCW 9A.44.060 with former RCW 9A.44.050(b); State
v. Morales, No. 79893-6-I, slip op. at 2 (Wash. Ct. App. July 27, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/798936.pdf, State v. Pitts, noted at 167 Wn.
App. 1031, slip op. at 2 (2012), see State v. VanVlack, 53 Wn. App. 86, 89, 765 P.2d 349
(1988) (The statutory definition of consent is similar to the ordinary definition of consent:
“‘compliance or approval esp. of what is done or proposed by another . . . capable,
deliberate, and voluntary agreement to or concurrence in some act or purpose implying
physical and mental power and free action.’ Webster's Third New International
Dictionary 482 (1981).”).
Second degree rape, as charged here, required the State to prove that Jane was
incapable of consent. Each crime requires proof of different facts. The trial court
recognized this distinction when it concluded that second degree rape is about capacity
not consent.
2 No. 38801-8-III State v. Badgley—Dissent
Badgley’s argument is premised on the mistaken assertion that sleeping is clearly
conduct that expresses a lack of consent. He claims that sleeping was the only conduct
that could have expressed lack of consent, and whether Jane was asleep or awake was the
only issue for the jury to decide. Since the jury acquitted him of third degree rape, it
must have concluded that Jane was awake. His argument fails because his premise is
false.
The jury had to decide not only if Jane was sleeping, but whether sleeping was
conduct that clearly expressed lack of consent. One interpretation of the jury’s acquittal
and failure to reach a verdict is that they could not agree on whether Jane was sleeping,
but did agree that even if she was sleeping, this did not clearly express a lack of consent.2
In other words, the jury could have rejected the State’s theory and reached its verdict
without finding that Jane was awake. Because this scenario is reasonably possible (and
legally sound), Badgley cannot show that his acquittal on the third degree rape charge
necessarily resolved whether Jane was awake or whether she was physically helpless.
For this reason, collateral estoppel does not preclude the State from retrying the charge of
second degree rape.
Badgley’s theory at trial was that Jane was awake. While Badgley did not argue 2
that sleep could not constitute conduct that clearly expressed lack of consent, he did not concede or stipulate to this element either. Thus, the jury was required to determine if the State met its burden of proving this element.
3 No. 38801-8-III State v. Badgley—Dissent
Badgley points out that collateral estoppel is not to be applied in a hyper technical
fashion, but with realism and rationality. I agree. However, in order to prevail on his
claim of collateral estoppel, Badgley must still demonstrate that the jury necessarily
decided the “identical” issue in the first trial that would be raised in the second trial.
State v. Eggleston, 164 Wn.2d 61, 71-72, 187 P.3d 233 (2008). He does not need to
show that the elements of the two crimes were the same, but he does need to show that
the identical factual issue was necessarily decided. The jury’s verdict did not necessarily
decide that Jane was awake, much less that she had the capacity to consent. It is not
hyper technical to point out that second and third degree rape are two different crimes
with different elements that require proof of different facts.
The majority suggests that our determination of which facts were necessarily
decided by the jury is constrained by the arguments of counsel. See majority opinion at
21-22. In other words, since the State’s only argument on third degree rape was that
sleep constituted conduct clearly expressing lack of consent, the jury was bound to accept
this argument. The majority opinion does not cite any authority for this position. The
jury was instructed that the lawyer’s statements are not evidence. The jury was free to
disagree with the State’s argument and conclude that sleeping is not conduct that clearly
expresses a lack of consent. Nor is our review limited to the arguments of counsel
presented at trial. Instead, in deciding whether collateral estoppel applies, we are directed
to examine all the circumstances of the case, including the “pleadings, evidence, charge,
4 No. 38801-8-III State v. Badgley—Dissent
and other relevant matter.” Ashe v. Swenson, 397 U.S. 436, 444, 90 S. Ct. 1189, 25 L.
Ed. 2d 469 (1970).
On appeal, the State—represented by a different attorney—now acknowledges that
the act of sleeping does not clearly express lack of consent. This is not an inconsistent
position; it is a concession. The majority contends that the State’s concession is unethical
because prosecutors should not file or maintain charges without probable cause. The
majority’s position is unfortunate. The State made a legal argument that it now concedes
was in error. Nevertheless, there was probable cause for the charge to go forward and the
trial court denied Badgley’s motion to dismiss. Conceding a legal error is not unethical.
By finding such, we dissuade prosecutors from making valid concessions in the future.
The majority opinion also concludes that judicial estoppel should prevent the State
from making a contrary argument. Initially it should be noted that the State is not taking
a contrary argument; it is making a concession. Moreover, the parties do not raise
judicial estoppel in their briefs and we should not consider it on appeal. RAP 2.5(a).
Even when judicial estoppel is raised, its application is restrained to the narrowest
of circumstances, “so as to avoid impinging on the truth-seeking function of the court
because the doctrine precludes a contradictory position without examining the truth of
either statement.” 28 AM. JUR. 2D Estoppel and Waiver § 69 (2021).
Judicial estoppel prevents a party from taking a position inconsistent with an
earlier position to gain an unfair advantage. In re Committed Intimate Relationship of
5 No. 38801-8-III State v. Badgley—Dissent
Amburgey and Volk, 8 Wn. App. 2d 779, 440 P.3d 1069 (2019). Here, the majority fails
to identify the advantage gained by the State’s concession. The jury acquitted Badgley of
the third degree rape charge, possibly because it did not agree with the State’s erroneous
position. While the State’s argument pertaining to the evidence of third degree rape was
incorrect, the State has consistently maintained that sleeping constitutes physical
helplessness for purposes of second degree rape; a legally correct position. The trial
judge denied Badgley’s post-trial motion to dismiss the second degree rape charge not
because the court was misled by the State’s incorrect argument, but because the court
correctly concluded that third degree rape deals with consent while second degree rape
deals with capacity to consent.
Since I would conclude that a rational jury could have grounded its verdict on an
issue other than that which Badgley seeks to foreclose, I would find that collateral
estoppel does not prevent a retrial on the charge of second degree rape.
_________________________________ Staab, J.