FILED APRIL 7, 2020 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STATE OF WASHINGTON, ) No. 36305-8-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) COUGAR RAY HENDERSON, ) ) Appellant. )
SIDDOWAY, J. — Cougar Ray Henderson appeals his conviction of second degree
rape, challenging the sufficiency of the evidence and evidentiary and instructional rulings
by the trial court. Finding only one erroneous ruling by the trial court, and that it was
harmless, we affirm.
FACTS AND PROCEDURAL BACKGROUND
In April 2017, then 20-year-old E.J. reported to police that over three years earlier,
while a senior in high school, she had been raped by Cougar Henderson. The State
charged Mr. Henderson with the second degree rape of E.J. in January 2018. Following
an amendment of the charges and an order severing other charges against Mr. Henderson
for separate trials, the prosecution for the alleged rape of E.J. proceeded to jury trial in
May 2018. No. 36305-8-III State v. Henderson
E.J. testified that she had known Mr. Henderson, who was about 16 months older
than her, through school and drama productions. He had already graduated high school.
On the night of the alleged rape, E.J. and Mr. Henderson had arranged to meet at a local
park. E.J. testified that a few nights earlier, she and Mr. Henderson had “met up . . . and
had made out a little bit, fooled around, nothing too serious,” and she was “expecting
something similar.” Report of Proceedings (RP) at 127-28. She described what
happened on that earlier occasion as “[k]issing, touching, but nothing under the clothes,”
and “[a]ll voluntary and consensual.” RP at 168.
When they arrived at the park, E.J. got into Mr. Henderson’s car, a 1999 Toyota
Camry, and they drove to an area with which E.J. was not familiar and parked on the
shoulder of a country road. They talked and leaned toward each other over the console
separating the front seats of the Camry as E.J. looked at something on Mr. Henderson’s
cell phone; that led to kissing. E.J. testified she was startled when Mr. Henderson
reached over her, depressed the lever on her seat, pushed it to a fully reclined position
and then was on top of her. She testified that she had never been with anyone who took
such an aggressive approach and she was further startled by the way Mr. Henderson
would grip her, kiss her, and bite her, leaving her with multiple hickeys and bruises on
her neck and chest. RP at 130. She did not object at that point, and they continued to
kiss and touch each other. E.J. acknowledged that as the sexual encounter continued,
either she, or the two of them, removed her shorts and sweatshirt. She testified that she
2 No. 36305-8-III State v. Henderson
or they might have removed her underwear as well. She testified that Mr. Henderson
manually stimulated her, including by inserting his fingers in her vagina, which she
acknowledged was consensual.
E.J. testified that on the night of the alleged rape she had never before had penile-
vaginal sex and she had no intention of having it that night. There came a point when she
saw that Mr. Henderson had unzipped his pants and withdrawn his penis, however,
causing her to verbally protest and try, unsuccessfully, to move away. Undeterred by her
objections, Mr. Henderson partially inserted his penis into her vagina multiple times until
she pushed him off of her with “[a] good shove.” RP at 169. Because her testimony is
critical to Mr. Henderson’s sufficiency challenge, we reproduce it at some length.
During her direct examination she testified that she was “okay with” Mr.
Henderson fingering her and manually stimulating her, but “[l]ater, he withdrew his penis
and attempted to penetrate me.” RP at 130. Asked about this further in her direct
examination, she testified:
[PROSECUTOR:] . . .[A]fter he had digitally fingered you, and you mentioned that he withdrew his penis, did you consent to further conduct? A. No. In fact I opposed. I said, “No. Please, I don’t want to do this right now. Please, stop.” Eventually he started pressing the head of his penis up again[st] my vulva and my inner thighs and trying to penetrate me. The whole time he was getting verbal warnings, and— Q. Did you do anything physically? A. Eventually I had to after he ended up penetrating me multiple times with the head of his penis I had to put my elbow up in front of me and then push him back into the passenger seat—or the driver’s side seat.
3 No. 36305-8-III State v. Henderson
Q. Did you at any point try to pull away from him? A. Yeah, we were reclined in a car. There wasn’t a lot of space I could go but when he is coming at me I remember trying to scoot back in the seat. Q. Did he have a condom with him? A. No. Q. Did he offer a condom at any point? A. No. .... Q. So after you put up your elbow what did he do? A. I had to use physical force to push him into the front seat of the car, the driver’s side seat. And eventually he withdrew and flopped over into the driver’s side seat and proceeded to masturbate for 15, 20 seconds. Q. Did he ever ejaculate? A. No. Q. Did you try to get away? Did you try to leave the car? A. No. He had his, I guess his left arm over me, and he was blocking the door. He was physically on top of me. Q. Did you consider leaving the car? A. I don’t think I really did. I didn’t know where we were and it was nighttime. I don’t think I would have felt comfortable with that. Q. Do you recall how many times he inserted his penis? A. A few; three to six times. Q. How far did he insert his penis? A. Only the first few inches, never fully. Q. What happened after he stopped masturbating? A. I asked to be taken back to my car, and he drove me back in silence.
RP at 130-32.
4 No. 36305-8-III State v. Henderson
E.J. testified during her direct examination that she became concerned several
weeks later that she might be pregnant. She confided in her mother and ended up going
to a women’s clinic to take a pregnancy test, which was negative. When the prosecutor
showed E.J. a document marked for identification as exhibit P1 and obtained her
agreement that it was a fair and accurate representation of a report of the pregnancy test
results that she received and had provided to police, the defense objected. Outside the
presence of the jury, defense counsel argued that the document was hearsay, and no
business record exception had been established. The objections were overruled and the
document was admitted.
The State questioned E.J. about whether she told others about the alleged rape at
the time, and she said she had, but
[Mr. Henderson] would talk to them and deny ever doing anything with me and deny having sex with me and deny the events of that evening and really do anything to break my bonds with my friends. Called me a liar and kind of turned all my friends against me.
RP at 140. She said she became “really depressed,” gained weight, and was mentally and
physically “not well.” Id.
Defense counsel’s cross-examination of E.J. about Mr. Henderson’s actions
elicited the following testimony:
Q. And at what point did, based on your story here, Cougar’s penis become exposed? A. He reached for his belt, and opened his belt, unbuttoned his pants and unzipped his pants, and I think, I don’t remember what kind of
5 No. 36305-8-III State v. Henderson
underwear he was wearing, if it was a loose fabric that he could just pull it through or if he pushed it down over. But his penis, he exposed himself completely. I did not reach down and touch him. Q. Did you help him unbutton his pants? A. No. Q. Or remove his belt? A. No.
RP at 158. Questioned about whether Mr. Henderson was lying on top of her, E.J.
testified that he was not; she assumed he was supporting himself with at least one knee on
the car seat, adding, “I’m assuming there was one leg up. I remember him being over me
when he unbuttoned himself. Enough space between us for him to maneuver and for me
to see what’s happening.” RP at 159. The cross-examination continued:
Q. And then he inserted his penis in your vagina? A. Yes. He started by advancing towards me with it. He had one hand on his penis and was pressing and rubbing it up against my vulva and my inner thighs. At that point I began to protest. Q. Okay. A. And then after that he began to insert it multiple times all the while, while I am protesting. Q. By protesting you are saying that he was inserting his penis and you were saying don’t do that? A. Saying, “No. Stop. I don’t want to do this.” Q. Okay. And were you concerned about that because he had no condom? A. That, and I wasn’t comfortable with having sex that night. I had no intention of having sex. I was fine with foreplay, and touching, and kissing. I had no intention of having sex that night. And there was no ask for a consent or talk about protection at all. Q. And had you expressed these views to him before that night?
6 No. 36305-8-III State v. Henderson
A. Not prior. But with enough time before he touched me with his penis.
RP at 160.
During cross-examination, defense counsel asked E.J. whether she had been
diagnosed with Graves’ disease “sometime after that or about that time.” RP at 161. The
State’s objection that the question was beyond the scope of direct examination was
sustained. The State did not object when defense counsel asked if E.J. was presently on
medication, to which she answered, “Yeah,” but it did object when defense counsel asked
what she was taking. Id.
The trial court excused the jury, and defense counsel told the court he wished to
inquire about Graves’ disease in part because he believed that physical and emotional
complaints that E.J. and her mother attributed to the alleged rape were “totally
consistent” with the disease’s symptoms. RP at 163. Defense counsel also argued that
the question about medication was “sort of a stock question” given that medication might
affect her ability to testify or recall. Id. The trial court asked E.J. about medications she
was presently taking and she answered that she was taking a thyroid supplement,
Levothyroxine. Asked by the court if she found it to have any side effects, she answered,
“No.” RP at 165.
Defense counsel was permitted to conduct further voir dire and elicited E.J.’s
testimony that she had Graves’ disease, that it was diagnosed in April 2014, and that it
was diagnosed after she had suffered for a time with “anxiety and depression and voices
7 No. 36305-8-III State v. Henderson
in [her] head and cognitive difficulties.” RP at 165. Defense counsel argued that E.J.’s
Graves’ disease went to “the credibility of this witness to recall” and to whether
difficulties E.J. attributed to the alleged rape were “explained by her disease.” RP at 166.
Because defense counsel stated it would offer no medical testimony, the court sustained
the State’s objection.
When cross-examination resumed, defense counsel elicited the following
additional testimony about the alleged act of rape and events immediately preceding it:
Q. . . . You said at a certain point after Cougar had inserted his penis in your vagina you raised an elbow? A. Um hmm. Q. Or your forearm? A. Yes. Q. And did he then stop penetrating you? A. Eventually. I had to use force to lift him off of me and give him a real physical notice and eventually, yes, he stopped. Q. And how long did that take? A. A few seconds. Q. A few seconds, okay. A. A good shove. Q. So you just kind of pushed him off after he had penetrated you? A. Multiple times, yes. Q. Okay. Now, I want to go back just maybe a few seconds or minutes to the period of time before he placed his penis inside you. A. Okay. ....
8 No. 36305-8-III State v. Henderson
Q. . . . Before, before Cougar Henderson placed his penis in your vagina the first time, did he use any physical force against you to cause you to submit to sexual intercourse? A. Okay. He was over me. There was a looming physical presence over me. I had nowhere to go. And before he inserted it in me he was pressing it up against me and pressuring me. Physically I attempted to scoot back away from that and he persisted. So, yes, before the first insertion he was physically pressuring me. .... Q. Apart from his being on top of you did he use any physical force to cause you to submit to sexual intercourse? A. Like holding me down? Q. Yeah, or hitting you? A. No, he never hit me. Q. Did he use any other physical force or any weapon of any kind? A. Weapons, no. I would say that the physical presence of him leaning over me, one arm between me and the door, and the car seat behind me, and his hand on his penis shoving it into me, I would call that a physical force.
RP at 168-70. E.J. admitted that at the time of the alleged rape, Mr. Henderson never
threatened her or threatened to harm anyone else.
Mr. Henderson testified in his own defense. According to him, he and E.J. had
only one sexual encounter, and it was on the night of September 24, 2013, not September
21, 2013, as E.J. had testified. He testified that neither removed any clothing and that,
while he might have reclined the passenger seat in which she was sitting and leaned
across the console so they could kiss and grope one another, his lower body never left the
9 No. 36305-8-III State v. Henderson
driver’s seat of the car. He testified that he never penetrated E.J.’s vagina with his
fingers and that at no point in their encounter had she resisted him in any way.
The defense brought the actual passenger’s seat from Mr. Henderson’s Camry into
the courtroom as a demonstrative aid, and he testified to measurements he had taken from
within the car to support his opinion that it would have been impossible for him to climb
into the passenger seat area with E.J. He testified that following the 20 or 30 minutes that
they kissed and groped, they resumed talking and he expressed his view that their making
out was probably a bad idea. According to him, that, and the fact that he turned down her
request that he accompany her to a homecoming dance, made her unhappy with him.
In the State’s rebuttal case, it called two witnesses to counter Mr. Henderson’s
testimony that the front passenger seat area of his Camry was too constricted to
accommodate people engaged in sexual intercourse. The first, the investigating detective
who had been present throughout the trial, testified that he had taken the opportunity
during a recess to look at Mr. Henderson’s Camry and found it to have “[c]onsiderably
more [head space] than [Mr. Henderson] described.” RP at 275. The second witness, a
Walla Walla police officer, testified that he had formerly owned a 1989 Toyota Camry,
that he was familiar with later model Camrys, which he believed were bigger, and that he
had been able to have sexual intercourse comfortably with a woman in the car’s front
passenger seat.
10 No. 36305-8-III State v. Henderson
The trial court’s instructions to the jury included the Washington pattern
instruction defining “forcible compulsion,” which is virtually identical to the term’s
statutory definition at RCW 9A.44.010(6), and states:
Forcible compulsion means physical force that 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.
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
45.03, at 918 (4th ed. 2016) (WPIC). In the final instruction conference, the trial court
addressed Mr. Henderson’s request for a further instruction that forcible compulsion
“requires more than the force normally used to achieve sexual intercourse, or sexual
contact,” an instruction that he supported by citation to State v. Ritola, 63 Wn. App. 252,
254, 817 P.2d 1390 (1991). RP at 286-87; Clerk’s Papers (CP) at 27. The trial court
observed that comments to WPIC 45.03 cite case law applying that language from Ritola,
but the comments go on to say:
Under some circumstances the resistance by the victim required to show forcible compulsion need not be physical resistance. Instead it is a fact- sensitive determination based on the totality of the circumstances, including the victim’s words and conduct.
RP at 287; WPIC 45.03 (citing State v. McKnight, 54 Wn. App. 521, 526, 774 P.2d 532
(1989)). The court declined to give the proposed instruction. Mr. Henderson made a
record of his objection.
11 No. 36305-8-III State v. Henderson
The jury found Mr. Henderson guilty. The trial court imposed a high-end sentence
of 114 months. Mr. Henderson appeals.
ANALYSIS
Mr. Henderson assigns error to (1) entry of a judgment supported by insufficient
evidence, (2) the trial court’s ruling sustaining the State’s objection to cross-examination
about E.J.’s Graves’ disease, (3) its admission of exhibit P1, the record of the results of
E.J.’s pregnancy test, and (4) its refusal to give his proposed jury instruction elaborating
on forcible compulsion. We address the assignments of error in the order raised.
I. THE STATE’S EVIDENCE OF FORCIBLE COMPULSION WAS SUFFICIENT
“A person is guilty of rape in the second degree when, under circumstances not
constituting rape in the first degree, the person engages in sexual intercourse with another
person . . . [b]y forcible compulsion.” RCW 9A.44.050(1)(a). As defined by statute,
“‘[f]orcible compulsion’ means physical force which overcomes resistance, or a threat,
express or implied, that places a person in fear of death or physical injury to herself or
himself or another person, or in fear that she or he or another person will be kidnapped.”
RCW 9A.44.010(6). The plain language of the definition does not require that physical
force overcome physical resistance. This court held 30 years ago that the victim’s
resistance need not be manifested by physical means. McKnight, 54 Wn. App. at 525.
This court has also stated that force that “prevent[s] resistance” qualifies as force that
12 No. 36305-8-III State v. Henderson
“overcome[s]” resistance. Ritola, 63 Wn. App. at 254-55 (emphasis added) (quoting
McKnight, 54 Wn. App. at 527).
In Ritola, this court addressed whether forcible compulsion was proved in an
indecent liberties case in which there had been no opportunity for resistance. The
appellant, a juvenile, had been standing behind and a little to the right of a female
counselor when he “suddenly grabbed her right breast, squeezed it, [and] then
‘instantaneously’ removed his hand.” 63 Wn. App. at 253. The trial court found that the
act
occurred so suddenly that the counselor did not have time to resist before it was completed. It further found, however, that resistance could be “implied,” and that Ritola had therefore brought about sexual contact by forcible compulsion.
Id. (footnote omitted).
On appeal, this court observed that “force,” in a scientific sense, “is involved in
every act of sexual touching, and if forcible compulsion and force were synonymous,
every such act would be criminal.” Id. at 254. The opinion cited approvingly to an
earlier formulation that forcible compulsion “is not the force inherent in any act of sexual
touching, but rather is that ‘used or threatened to overcome or prevent resistance.’” Id. at
254-55 (quoting McKnight, 54 Wn. App. at 527). It held “there is no evidence that the
force [Ritola] used overcame resistance, for he caught the counselor so much by surprise
that she had no time to resist.” Id. at 255.
13 No. 36305-8-III State v. Henderson
Mr. Henderson argues that the State did not prove forcible compulsion because the
only force proved was the force inherent in sexual touching. But the State’s evidence in
this case was stronger than the evidence in McKnight, in which this court, 30 years ago,
found sufficient evidence of force. In that case, the teenaged victim verbally protested
but never physically resisted the intercourse, which took place on a couch in her home.
Addressing McKnight’s argument that the evidence against him did not show the use of
more force than normally required to achieve penetration, the majority opinion stated:
Reasonable minds can differ as to whether the acts of slowly pushing C to a prone position and then removing her clothes in response to the victim’s requests that the advances stop manifest a degree of force greater than that which is inherent in the act of intercourse. A reasonable juror could, however, infer from the evidence that these were acts of force over and above what is necessary to achieve intercourse and that these acts were employed to overcome C’s resistance. The evidence, when taken as a whole and viewed in a light most favorable to the prosecution, establishes that the act of intercourse was accomplished by the use of force.
54 Wn. App. at 528.
Mr. Henderson tries to distinguish McKnight on several bases that are irrelevant,
including that he and E.J. were better acquainted than the teenagers in McKnight, that he
and E.J. had a prior sexual encounter (at least according to E.J.), and that E.J. anticipated
and welcomed the early parts of their sexual encounter. A person can be raped by
someone she knows well. She can be raped by someone with whom different sexual
contact was consensual.
14 No. 36305-8-III State v. Henderson
Mr. Henderson also argues that “[i]n McKnight the defendant pushed the victim
down” and “[i]n this case, there was no pushing.” Appellant’s Opening Br. at 22. He
fails to consider E.J.’s testimony that Mr. Henderson “reached over me and depressed the
lever and pushed the passenger seat all the way back.” RP at 129. Getting E.J. into a
reclining position by pushing her seat back is functionally indistinguishable from
McKnight “slowly pushing C to a prone position” on her couch. McKnight, 54 Wn. App.
at 528.
Reasonable jurors could find that Mr. Henderson’s conduct manifested a degree of
force greater than that inherent in the act of intercourse. As Judge Morgan observed in
Ritola, force in the scientific sense is “what puts an object or body into motion, the result
sometimes but not always being contact with another object or body.” 63 Wn. App. at
254. No particular type or degree of physical force on the part of the perpetrator is
required by statute other than physical force that overcomes or prevents resistance.
Mr. Henderson was taller and larger than E.J., and he both lowered the seat in
which she was sitting and crossed a center console to get on top of her. Although she
testified he was not “lying” on top of her, one can infer from her testimony as a whole
that she meant he was not resting the weight of his body on her. Her testimony was clear
that the way he was positioned above her limited her ability to move. In cross-
examination, E.J. was asked, “Apart from his being on top of you . . . [d]id he use any
other physical force or any weapon of any kind?” to which she responded:
15 No. 36305-8-III State v. Henderson
Weapons, no. I would say that the physical presence of him leaning over me, one arm between me and the door, and the car seat behind me, and his hand on his penis shoving it into me, I would call that a physical force.
RP at 170. She “tr[ied] to scoot back in the seat,” but “had nowhere to go.” RP at 131,
169.
The jury clearly did not believe Mr. Henderson’s version of events, but his
testimony about the small size of the Camry’s front passenger seat area and the
obstruction created by the console, gear shift, and emergency brake supported E.J.’s
description of circumstances in which she was essentially trapped.
Mr. Henderson argues that failing to require proof of a greater use of force allows
the State to punish him for second degree rape when his conduct amounted to only third
degree rape. Under former RCW 9A.44.060 (2013), third degree rape without consent
was committed “when, under circumstances not constituting rape in the first or second
degrees, such person engages in sexual intercourse with another person . . . [w]here 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.”1 The injury to E.J. was more egregious than a third degree rape. Forces put in
1 RCW 9A.44.060 was amended in 2019 to eliminate any requirement that the victim clearly express a lack of consent by words or conduct. LAWS OF 2019, ch. 87, § 3. It now provides that the crime is committed if the victim “did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator.” RCW 9A.44.060(1)(a). Under current law, it would have been third degree rape and a class C felony if Mr. Henderson’s and E.J.’s encounter had taken place on a blanket on open ground and she
16 No. 36305-8-III State v. Henderson
motion by Mr. Henderson, including his presence on top of her—from which he did not
budge as she clearly and repeatedly told him to stop—prevented or overcame her ability
to resist by pulling away.
The test for determining the sufficiency of the evidence is whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could have
found guilt beyond a reasonable doubt. State v. Witherspoon, 180 Wn.2d 875, 883, 329
P.3d 888 (2014). The evidence was sufficient.
II. THE TRIAL COURT DID NOT ERR IN SUSTAINING THE STATE’S OBJECTION TO CROSS- EXAMINATION ABOUT GRAVES’ DISEASE
Mr. Henderson’s lawyer questioned prospective jurors about their knowledge of
Graves’ disease during voir dire. Only two prospective jurors indicated any familiarity
with it:
[DEFENSE COUNSEL]: . . . Does anyone have any familiarity with Graves Disease? Anybody know what Graves—it’s a form of hyperthyroid—[Juror No. 40], do you know what this thyroid disease is? JUROR NO. 40: Graves Disease is a thyroid disease determined by a test called TSH. [DEFENSE COUNSEL]: And do you know that the symptoms include; psychiatric matters like anxiety, depression— JUROR NO. 40: I really don’t know. No, I don’t, okay? But at this point I’ll believe you. [DEFENSE COUNSEL]: I’m not—I want you to believe me, but this isn’t a test. I’m just trying to find out what you know, that’s all.
had never verbally protested at all.
17 No. 36305-8-III State v. Henderson
Anyone else have any familiarity with hyperthyroidism, or a form known as Graves Disease? [Juror No. 4], I thought you would.2 JUROR NO. 4: Same information; overactive thyroid, diagnosed by blood test, TSH, that can cause an imbalance in the endocrine system. Yes, you can have some anxiety, depression. [DEFENSE COUNSEL]: Cognitive problems? JUROR NO. 4: Limited, yes.
RP at 104-05. None of the jurors ultimately seated indicated any familiarity with the
disease.3
When E.J. later testified, the State objected when defense counsel began
questioning her about her Graves’ disease, stating that the questions went beyond the
scope of its direct examination. Outside the presence of the jury, defense counsel said he
was interested in medication that could affect E.J.’s ability to testify or recall and “[t]he
Graves Disease matter is also relevant because the very symptoms her mother describes
her suffering from at the time of the incident in question are totally consistent with
text[book] Graves Disease symptoms.” RP at 163. Asked by the trial court, “Are you
going to have medical testimony?,” defense counsel answered “No. I don’t think I need
it.” Id.
2 The lawyers would have had more information about the prospective jurors than appears in our record, but it was revealed during voir dire that juror 4 worked in health care and had been employed at hospice. 3 Juror 4 was excused by Mr. Henderson’s exercise of a peremptory challenge.
18 No. 36305-8-III State v. Henderson
Under ER 611(b), “[c]ross examination should be limited to the subject matter of
the direct examination and matters affecting the credibility of the witness.” The rule is
subject to state and federal constitutional protections of the right to confrontation,
including the right to conduct a meaningful cross-examination of adverse witnesses.
State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). The purpose of cross-
examination is to test the witness’s perception, memory, and credibility. Id. The right to
cross-examination is not absolute, however, and a trial court may deny cross-examination
if the evidence sought is vague, argumentative, speculative, or irrelevant. Id. at 620-21.
We review a trial court’s limitation of the scope of cross-examination for an abuse of
discretion. State v. Lee, 188 Wn.2d 473, 486, 396 P.3d 316 (2017).
Given the opportunity to voir dire E.J., defense counsel established that her
physical and emotional complaints following the alleged rape also preceded her April
2014 diagnosis with Graves’ disease. He argued to the trial court that her physical and
emotional problems following the alleged rape were “explained by her disease.” RP at
166. But voir dire had not established that E.J. had the medical understanding to trace
particular physical or emotional complaints to their source. Nor did the defense intend to
call a medical expert who could. The trial court ruled that “[i]f there was any testimony
contemplated that would bridge [the] huge gap” between E.J.’s complaints and the
defense argument attributing them to Graves’ disease, “I would allow it.” RP at 166.
19 No. 36305-8-III State v. Henderson
Absent competent medical testimony, the evidence sought by the defense was
speculative. The court did not abuse its discretion in sustaining the State’s objection.
III. THE TRIAL COURT ERRED IN ADMITTING EXHIBIT P1, BUT THE ERROR WAS HARMLESS
Mr. Henderson argues that exhibit P1, the report of the results of E.J.’s October
2013 pregnancy test, was unauthenticated, hearsay, and prejudicial. E.J. testified without
objection that she became worried about being pregnant and had a blood test performed
at a women’s clinic. She testified without objection that she had received a report of the
test results and gave it to police. She was then asked if exhibit P1 was a fair, accurate
and unmodified representation of the report. When she testified that it now bore a stamp
but otherwise was, the State offered it as evidence. Mr. Henderson timely objected.
We agree with the State that E.J. could authenticate exhibit P1 as a report she
received and gave to police. See ER 901(a), (b)(1) (authentication is satisfied by the
testimony of a witness with knowledge that a matter is what it is claimed to be). But the
State wanted to offer the exhibit for the truth of the result it reported, and the prosecutor
argued that as a business record it qualified for an exception from the hearsay rule.
The Uniform Business Records as Evidence Act, chapter 5.45 RCW, “makes
evidence that would otherwise be hearsay competent testimony.” State v. Ziegler, 114
Wn.2d 533, 537, 789 P.2d 79 (1990). For the evidence to be admitted, RCW 5.45.020
requires that a “custodian or other qualified witness testif[y] to [the record’s] identity and
20 No. 36305-8-III State v. Henderson
the mode of its preparation, and if it was made in the regular course of business, at or
near the time of the act, condition or event.” The State now agrees that absent testimony
from the record’s custodian or another qualified witness, the report was hearsay and that
objection, at least, should have been sustained. It argues that the error was harmless,
however.
“The improper admission of evidence is reversible error only if it results in
prejudice.” State v. Hatch, 165 Wn. App. 212, 219, 267 P.3d 473 (2011). An erroneous
evidentiary ruling “is not prejudicial unless, within reasonable probabilities, the outcome
of the trial would have been materially affected had the error not occurred.” State v.
Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).
Mr. Henderson argues that admission of exhibit P1 was prejudicial because had a
record custodian or other qualified witness been called and cross-examined, it might turn
out that the test was ordered for a reason having nothing to do with a concern on E.J.’s
part that she was pregnant. Laying a business record foundation for admitting the report
would not have required a witness knowledgeable about the reason the test was ordered,
however. See RCW 5.45.020. Mr. Henderson offers no authority otherwise, and when a
party does not provide a citation to support an asserted proposition, we may assume that
counsel, after diligent search, has found no supporting authority. State v. Arredondo, 188
Wn.2d 244, 262, 394 P.3d 348 (2017); see also RAP 10.3(a)(6) (arguments made must
include supporting “citations to legal authority”).
21 No. 36305-8-III State v. Henderson
It is also pure speculation that if a custodian or other qualified witness called by
the State did have first-hand knowledge about why the test was ordered, it would have
been something other than a concern by E.J. that she was pregnant.
E.J., her mother, and the assistant director of E.J.’s school’s drama department all
testified that following the alleged rape, E.J. became concerned about being pregnant and
had a blood test performed. E.J. testified without objection that the result was negative.
Admission of exhibit P1 was cumulative and harmless.
IV. THE TRIAL COURT DID NOT ERR BY REFUSING TO GIVE MR. HENDERSON’S PROPOSED INSTRUCTION ON FORCIBLE COMPULSION
Finally, Mr. Henderson contends the trial court erred when it refused to give his
proposed jury instruction that “[f]orcible compulsion requires more than the force
normally used to achieve sexual intercourse or sexual contact.” CP at 27.
“It is not error to refuse to give a cumulative instruction or one collateral to or
repetitious of instructions already given.” State v. Benn, 120 Wn.2d 631, 655, 845 P.2d
289 (1993). We review a trial court’s refusal to give a requested jury instruction de novo
where the refusal is based on a ruling of law, and for abuse of discretion where the refusal
is based on factual reasons. State v. White, 137 Wn. App. 227, 230, 152 P.3d 364 (2007).
The statement from McKnight and Ritola that Mr. Henderson proposed to offer as
a further instruction was viewed on the facts of those cases as a corollary of the statutory
definition of “forcible compulsion.” The statutory definition was given to the jury in this
22 No. 36305-8-III State v. Henderson
case as instruction 7, thereby enabling Mr. Henderson to offer argument that forcible
compulsion should require more than the force normally used to achieve sexual
intercourse. He did; he argued, “[L]ook at Instruction No. 7, it’s simply not enough to
prove that there was an act of sexual intercourse.” RP at 313. The trial court did not
abuse its discretion when it declined to give an instruction that was collateral to the
statutory definition instruction.
Affirmed.
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.
_____________________________ Siddoway, J.
I CONCUR:
_____________________________ Fearing, J.
23 No. 36305-8-III
LAWRENCE-BERREY, J. (dissenting)- Cougar Henderson had sexual intercourse
with E.J. after she repeatedly said no. Henderson committed a serious crime, and he
should be punished for the crime he committed. The question though, is what crime did
he commit? Did he commit second degree rape or did he commit third degree rape?
Second degree rape can be committed in one of six ways defined by the
legislature. RCW 9A.44.050(l)(a)-(f). Here, the State charged Henderson with second
degree rape by forcible compulsion. RCW 9A.44.050(l)(a). "Forcible compulsion"
means
[ 1] physical force which overcomes resistance, or [2] a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.
RCW 9A.44.010(6).
In contrast, third degree rape occurs when a person does not consent to sexual
intercourse, and "such lack of consent was clearly expressed by the victim's words or
conduct." Former RCW 9A.44.060(l)(a) (2013). No. 36305-8-III State v. Henderson - dissent
The State sought to prove Henderson used physical force that overcame E.J. 's
resistance. In response to whether she resisted, E.J. testified:
Eventually I had to after he ended up penetrating me multiple times with the head of his penis[.] I had to put my elbow up in front of me and then push him back into the ... driver's side seat.
Report of Proceedings (RP) at 130-31. Henderson did not use physical force to overcome
E.J. 's resistance; once E.J. resisted by pushing Henderson with her elbow, the sexual
assault ended. The absence of force often is what distinguishes third degree rape from
second degree rape.
The law is well settled regarding what "forcible compulsion" means:
Forcible compulsion means that the force exerted was directed at overcoming the victim's resistance and was more than that normally required to achieve penetration. State v. Wright, 152 Wn. App. 64, 71, 214 P.3d 968 (2009); State v. McKnight, 54 Wn. App. 521, 774 P.2d 532 ( 1989). Under some circumstances, the resistance by the victim required to show forcible compulsion need not be physical resistance.
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
45.03, Forcible Compulsion-Definition, cmt. at 918 (4th ed. 2016).
The second phrase ofRCW 9A.44.010(6) permits a finding of forcible compulsion
even though a person does not physically resist during the sexual assault. According to
that phrase, physical resistance is not required if the person is "place[ d] in fear of death or
physical injury to herself or himself or another person, or in fear that she or he or another
person will be kidnapped." By allowing these exceptions, the legislature sought to
2 No. 36305-8-III State v. Henderson - dissent
maintain harsh punishments for those who used expressed or implied threats to deter
others from physically resisting.
The majority relies on McKnight, 54 Wn. App. 521, to reach its conclusion that the
State presented sufficient evidence of forcible compulsion. There, 14-year-old C.
encountered 17-year-old McKnight near her home. Id. at 522. C. vaguely knew
McKnight, but allowed him into her apartment when he asked to come inside. The two
sat on a mattress in the living room and began to kiss. C. told McKnight to stop kissing
her, but instead he slowly pushed her onto the couch and started pulling on her clothes.
C. told him to stop, but he continued. McKnight disrobed C., undid his pants, and laid on
top of her, which made her feel"' scared."' Id. at 523. He then"' got inside"' her. Id.
C. told him it hurt, but he still did not stop. Id.
The McKnight majority upheld the jury's verdict on the basis that reasonable
minds could infer that McKnight used force greater than that inherent in the act of
intercourse. Id. at 528. But the majority offered a better reason for its holding in a
footnote response to the dissent. In that footnote, the majority explained C. was alone in
her apartment with a stronger person, and the legislature did not intend to require persons
such as C. to struggle. Id. at 528 n.2. This basis for affirming the jury verdict is
consistent with the second phrase of RCW 9A.44.010(6), which defines forcible
compulsion as including implied threats that place a person in fear of physical injury.
3 No. 36305-8-III State v. Henderson - dissent
C. barely knew McKnight and testified she was scared as McKnight continued despite
her protests.
The McKnight dissent observed, "In finding the victim's acts in this case amount
to the statutorily required presence of 'resistance', the majority blurs, if not erases, the
distinction between the two legislatively defined degrees of the crime." Id. at 532
(Forrest, J., dissenting). McKnight's stated reason for upholding the jury's verdict does
blur the distinction between second degree rape and third degree rape. C. did not
physically resist. But the majority's explanation in its footnote is consistent with the
second phrase ofRCW 9A.44.010(6). C. was scared by McKnight, and a jury could
reasonably infer she feared physical injury.
That is not the case here. Henderson and E.J. were in a dating relationship and
decided to meet one evening. E.J. got into Henderson's small car, and Henderson drove
some distance and then parked on the shoulder of a country road. After kissing and
sexually touching for a while, E.J. noticed Henderson unzip his pants as if he wanted to
have sex with her. As he positioned himself above her, she repeatedly said no. He
penetrated her multiple times. After several seconds, E.J. used her elbow to push him
away. Henderson did not use physical force to overcome E.J. 's successful effort of
pushing him away.
There was no forcible compulsion as defined by RCW 9A.44.010(6). First,
Henderson did not use any force beyond that inherent in sexual intercourse. Second,
4 No. 36305-8-III State v. Henderson - dissent
Henderson did not use physical force to overcome E.J.' s resistance. When she pushed
him away, the sexual assault ended. Third, there is no evidence E.J. feared she would be
physically injured by resisting. In fact, E.J. did physically resist by pushing Henderson
away. For these reasons, Henderson did not commit second degree rape by forcible
compulsion. He committed third degree rape.
Second degree rape is a class A felony. RCW 9A.44.050(2). The standard
range sentence for a person with an offender score of 1 is 86 to 114 months.
RCW 9.94A.510, .515. The trial court sentenced Henderson to 114 months. In contrast,
third degree rape is a class C felony. RCW 9A.44.060(2). The standard range sentence
for a person with an offender score of 1 is 12 to 14 months. RCW 9 .94A.510, .515. The
significant difference in punishment between second degree rape and third degree rape
requires a clear distinction between these two crimes.
The 2019 legislature redefined third degree rape as sexual intercourse where the
person does not freely agree to it, as shown by the person's words or conduct. See
RCW 9A.44.010(7), .060. The 2019 legislature did not redefine forcible compulsion.
Because of this, the majority's construction of forcible compulsion has continuing
consequences in this state.
Today, the majority holds that forcible compulsion includes having nonconsensual
intercourse with a person who is "essentially trapped." Majority at 17. First, E.J. was not
"essentially trapped." Henderson did not have his weight on E.J., and E.J. could and did
5 No. 36305-8-III State v. Henderson - dissent
use her elbow to push him away. Second, nonconsensual sexual intercourse mostly
occurs with a smaller person surrounded by and under a larger person. The smaller
person would be as "essentially trapped" as E.J. The majority's rule thus transforms most
third degree rapes into second degree rapes. Third, there is no statutory textual support
for an "essentially trapped" rule.
The majority's holding today ignores clear statutory language and blurs second
degree rape with third degree rape. There is a significant distinction between the two
offenses, as shown by the legislature's decision to punish them so differently. Because
the majority ignores this distinction, I dissent.
Lawrence-Berrey, J.