State v. Wright

152 Wash. App. 64

Opinions

Armstrong, J.

¶1 Richy Carter and Harold Wright, Jr., appeal their third degree rape convictions, arguing that (1) the trial court erred in providing the lesser-degree third degree rape instruction and (2) insufficient evidence supports their third degree rape convictions. Wright also contends that the prosecutor committed misconduct by notifying the victim before her testimony that her statements in a civil complaint arising from the rape were inconsistent with her proposed testimony and then by arguing during closing argument that the victim’s story was consistent. We agree that the trial court erred in giving the third degree rape instruction. Accordingly, we reverse and remand for a new trial.

FACTS

¶2 One night in January 2004, 19-year-old S.F. was at a party with her friends, Stephanie Fincham and Jamie Whittaker. The three friends left the party to go to a bar to meet S.F.’s ex-boyfriend. S.F.’s friends went inside the bar because they were 21 years old; later, S.F sneaked inside to go to the restroom. When she came out of the restroom, her friends were talking with Harold Wright, Jr.; Richy Carter; Harold’s brother, Daryl Wright (Daryl); and Jerry Mc-Clurkin. S.F. joined them.

13 S.F. knew Carter because he had lived in the neighborhood where she grew up and because he played basketball with her brother. McClurkin was also her former neighbor. She and the other girls also knew Wright because he worked at Spanaway Lake High School, where they had gone to school.

14 McClurkin invited the girls to come to his house, and after the four men picked up beer at a store, the girls followed them to McClurkin’s house. At the house, the music was loud and everyone was drinking. S.F. drank tequila and testified that although she did not black out, she did not “really remember everything that night.” Report of Proceedings (RP) at 567.

¶5 Fincham testified that while she was outside smoking at one point during the night, S.F. came outside wearing only her bra and pants, but S.F. then put on Whittaker’s coat. Daryl testified that S.F. was dancing provocatively wearing only her bra. Carter testified that at one point, S.F. was “grinding” with him and was smiling and giggling. RP at 1612-13. McClurkin testified that S.F. danced the same way with him.

¶6 Wright also said that S.F. “dance[d] on” him that night. RP at 1395. Wright contends that he and S.F. touched while going through a door at some point during the night. And he might have pushed S.F. on the chest when he was trying to go down the stairs. But he testified that he did not have sexual contact with S.F.

¶7 McClurkin said that while he and S.F. were dancing, S.F. began kissing him. McClurkin testified that he and S.F. went upstairs to a bedroom to “make out” and that he removed her sweatshirt and tank top. RP at 1191-92. S.F. stopped and said that she wanted to check on her friends. McClurkin said that they went upstairs again a little while later. Carter testified that he interrupted S.F. and Mc-Clurkin while they were upstairs and that he and S.F. began to kiss and touch each other. He said that S.F. appeared to be enjoying it, and she never told him to stop. Carter contends that he and S.F. then had consensual sexual intercourse.

¶8 At some point, the girls decided it was time to leave. Fincham and S.F. went upstairs to look for their shoes. They looked in a dark room; S.F. could see a bed in it, but she could not see who was in the room. S.F. testified that somebody pulled her into the bedroom and pushed Fincham out.

¶9 S.F. testified that someone held her down on her back on the bed by holding down her left shoulder and pulled her clothes off. She stated that she did not willingly take off her clothes. After unsuccessfully trying to push the person off of her, she felt a man’s hands and penis touching and penetrating her vagina. It felt like one man was holding her down while another man penetrated her. She said that it felt like two different men put their penises inside of her. Someone also kissed and rubbed her breasts. S.F. did not scream, but she remembers saying, “Stop” and “This isn’t right.” RP at 585. She was scared. A man’s voice told her, “It’s okay. Everything is okay,” but she could not identify the voice. RP at 590-91. S.F. was not able to get up off of the bed until they got off of her.

¶10 On her way out of the room, S.F. felt a man grab her and say, “Come on, more, more,” and “Don’t ever tell anyone about this.” RP at 595-99. S.F. thought Wright made the statements because she felt a leather jacket when the man grabbed her and only Wright was wearing one that evening. S.F. did not know whether Wright had intercourse with her. She thought the men used condoms. When McClurkin cleaned up after the party, he threw away one or two condom wrappers from the bedroom.

¶11 While S.F. was in the upstairs bedroom, Fincham tried to open the bedroom door. It felt like someone was holding the door shut, but Fincham did not hear any noise from inside the room. Fincham thought Carter and Wright were in the room, but she recalled during an interview that Wright was in the kitchen when she got downstairs. Wright similarly testified that he had gone upstairs, poked his head through a partially open bedroom door, and saw three or four people inside; he told them that “it’s time to go.” RP at 1410. He alleges that he saw a man and woman on the bed and heard some moaning.

¶12 Wright was in the kitchen with Fincham, Whittaker, and another person by the time S.F. came downstairs; Fincham testified that Wright was in the kitchen for at least 10 minutes before the girls left the house. Fincham said that she spoke to S.F. after S.F. came downstairs, and S.F. pulled her into the bathroom. S.F. was “freaked out,” shaking, and told Fincham, “We have to go. We have to leave now. I’ve been raped. We need to leave.” RP at 373. Whittaker also said that S.F. looked scared and told Whittaker, “We got to go. We got to go,” and then left the house. RP at 189-90. S.F. testified that she left the bedroom crying and ran out of the front door to her car. S.F. started the car and waited for her two friends. She felt scared and did not know what to do. Once they were all in the car, S.F. told her friends, “They raped me. They raped me.” RP at 195; 376. S.F. said that Carter knocked on the window and asked what was wrong and why S.F. was crying. The girls then drove away and went to a friend’s house.

¶13 S.F. was afraid to call the police or tell her parents because she was drunk, driving, and under 21 years old. S.F. eventually went to another friend’s house and told her what happened. The friend called S.F.’s mother, and the police came to the house. S.F. gave the police a statement and then went to the hospital.

¶14 The sexual assault nurse testified that the physical findings of S.F.’s exam could be consistent with consensual sex but they were not necessarily inconsistent with S.F’s account of the events. S.F. was emotional and upset when she met with the nurse. S.F. had no physical injuries, but she did have a small amount of vaginal bleeding, which could have been related to her menstrual cycle. The hospital collected deoxyribonucleic acid (DNA) samples from underneath S.F.’s fingernails, her vagina, her mouth, and her chest. The hospital also examined S.F.’s clothes. She was not wearing a bra when she arrived at the hospital.

¶15 Carter’s DNA matched the semen taken from S.F.’s vagina, and DNA from S.F.’s chest matched Wright’s DNA. The DNA on S.F.’s chest could have come from saliva or shredded skin cells. It was sufficient to show significant or heavy contact. None of the DNA recovered from S.F. matched DNA from the other two men at the house that night.

¶16 The State charged Carter and Wright with second degree rape and an alternative charge of indecent liberties against Wright. The trial court consolidated the cases.

¶17 The State submitted a jury instruction for the lesser-degree crime of third degree rape. Both defendants objected, arguing that no factual basis supported the instruction because S.F. always contended that she was forced to have sex and that she was restrained during the act. The prosecutor argued that because there was no physical evidence of force, only S.F.’s testimony as to force, that the jury could find lack of consent without force. Although the prosecutor argued during closing that S.F. was held down and overcome by physical force, the prosecutor maintained that the jury could find that the force was insufficient to overcome resistance. The trial court ruled that the evidence supported a third degree rape instruction.

¶18 Because the jury was unable to reach a verdict on second degree rape, it left the second degree rape verdict form blank. But it convicted Carter and Wright of third degree rape.

Jury Instructions

¶19 Carter and Wright argue that the trial court erred in giving a third degree rape instruction, asserting that it should not have been included as a lesser-degree charge to the charge of second degree rape. We review de novo a trial court’s decision to give an instruction based on a ruling of law. State v. Brightman, 155 Wn.2d 506, 519, 122 P.3d 150 (2005). If the court’s decision is based on a factual dispute, we review it for an abuse of discretion. Brightman, 155 Wn.2d at 519. A trial court may not submit a theory to the jury for which there is insufficient evidence. State v. Munden, 81 Wn. App. 192, 195, 913 P.2d 421 (1996). We review the evidence in the light most favorable to the instruction’s proponent. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).

Third Degree Rape Instruction

¶20 Third degree rape is not a lesser included offense of second degree rape; rather, it is an inferior degree offense. State v. Ieremia, 78 Wn. App. 746, 753-54, 899 P.2d 16 (1995). Under RCW 10.61.003, “the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto . . . .” For the trial court to instruct on an inferior degree offense, the evidence must support an inference that only the lesser crime was committed. Ieremia, 78 Wn. App. at 754-55.¹ In other words, the evidence must permit a rational juror to find the defendant guilty of the lesser offense and acquit him or her of the greater. Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997)).

¶21 To prove second degree rape, the State must present evidence that the defendant had sexual intercourse with the victim by forcible compulsion. See RCW 9A-.44.050(1)(a). Forcible compulsion means that “the force exerted was [(1)] directed at overcoming the victim’s resistance and [(2)] was more than that which is normally required to achieve penetration.” State v. McKnight, 54 Wn. App. 521, 528, 774 P.2d 532 (1989). In comparison, third degree rape requires the State to prove the defendant had sexual intercourse with a person who was not the defendant’s spouse, who did not consent to the act, and who clearly expressed lack of consent by words or conduct; it does not require forcible compulsion. RCW 9A.44.060(1)(a). It specifically requires circumstances “not constituting rape in the . . . second degree[] . . . .” RCW 9A.44.060(1) (emphasis added).

¶22 The trial court may not instruct on third degree rape as an inferior degree offense to second degree rape when the defendant contends that the intercourse was consensual and the victim testifies that the intercourse was forced. See State v. Charles, 126 Wn.2d 353, 355-56, 894 P.2d 558 (1995); Ieremia, 78 Wn. App. at 756. The trial court here found Charles and Ieremia distinguishable. We disagree and find that the trial court erred by giving the third degree instruction because neither S.F.’s testimony nor the defendants’ evidence supported an unforced, non-consensual rape.

¶23 In Charles, the State charged the defendant with second degree rape. The victim testified that the defendant grabbed her, pushed her, and took off her clothes. Charles, 126 Wn.2d at 354. She testified that she struggled to get away. Charles, 126 Wn.2d at 354. The defendant testified that the victim consented to intercourse. Charles, 126 Wn.2d at 355-56. The court reasoned that if the jury believed the victim, the defendant was guilty of second degree rape. Charles, 126 Wn.2d at 355. But, if the jury believed the defendant, he was not guilty of any degree of rape. Charles, 126 Wn.2d at 355-56. The court concluded that the trial court properly refused to instruct the jury on third degree rape because, to convict, the jury would have had to disbelieve the defendant’s claim that the intercourse was consensual and also disbelieve the victim’s testimony that the act was forcible. Charles, 126 Wn.2d at 356.

¶24 Similarly, in Ieremia, the court held that a third degree rape instruction was improper because the jury had to either believe the defendants’ consent defenses or find them guilty of second degree rape because the victims’ testimony supported second degree forcible rape. Ieremia, 78 Wn. App. at 755-56. In that consolidated case, one victim testified that one of the defendants grabbed her by the arms, carried her to a bedroom, covered her mouth, and took off her clothes before he raped her. Ieremia, 78 Wn. App. at 749-50. She resisted by asking him to stop and by slapping him. Ieremia, 78 Wn. App. at 749. There were signs of physical trauma. Ieremia, 78 Wn. App. at 749. A second victim testified that the other defendant grabbed her wrists and covered her mouth, despite her attempt to struggle and scream. Ieremia, 78 Wn. App. at 749-50. There was no evidence of physical trauma to the second victim. Ieremia, 78 Wn. App. at 750. The defendants maintained that the intercourse was consensual. Ieremia, 78 Wn. App. at 750. The court found, as it did in Charles, that a third degree rape instruction was improper: the jury could either convict under second degree rape if it believed the victim, or it could acquit if it believed the defendants. Ieremia, 78 Wn. App. at 756.

¶25 Forcible compulsion is also discussed in McKnight, 54 Wn. App. 521. In McKnight, the court found that there was sufficient evidence to convict of second degree rape when the defendant slowly pushed the victim to a prone position (onto a mattress) and removed her clothes, despite the victim’s request to stop. McKnight, 54 Wn. App. at 522-23, 528. The court found that a reasonable juror could “infer from the evidence that these were acts of force over and above what is necessary to achieve intercourse” and that the defendant’s conduct was intended to overcome the victim’s resistance. McKnight, 54 Wn. App. at 528. Thus, the court affirmed a second degree rape conviction and rejected the defendant’s claim that the act was consensual. McKnight, 54 Wn. App. at 529.

¶26 The State maintains that S.F.’s testimony could be consistent with only third degree rape because her description of the incident does not involve force that is more than necessary or usual to achieve penetration. The State points out that S.F. said she was held down in a manner that felt like someone leaning over her, and that only the weight of that individual held her down. But S.F. also testified that (1) she was pushed or pulled into the room; (2) she did not willingly lay down on the bed; (3) someone pulled her clothes off of her body, she did not willingly remove them; (4) she was held down on the bed by the body weight of one man while another man penetrated her; (5) something on her left side was holding her shoulder back so that she could not get up; and (6) she told them to stop. Although S.F. was reluctant to say that she was “raped” because she does not like that word, her testimony consistently reflected rape by forcible compulsion.

¶27 The dissent relies on Fernandez-Medina, 141 Wn.2d 448, for the proposition that an inferior degree offense instruction was warranted in this case. But Fernandez-Medina is distinguishable.

¶28 In Fernandez-Medina, the State presented evidence from which the jury could find that only the lesser degree offense (second degree assault) occurred. The difference in the degree of assault turned on intent; specifically, whether the noise from a gun click showed the defendant’s intent to do great bodily harm to the victim. Fernandez-Medina, 141 Wn.2d at 456-57. But because there was expert testimony before the jury that (1) the clicking noise could have occurred without the defendant pulling the trigger (thus supporting second degree assault) and (2) that the clicking noise could have been caused by the defendant intentionally pulling the trigger (evidencing first degree assault), the court held that the lesser second degree instruction was proper. Fernandez-Medina, 141 Wn.2d at 451, 456-57. Here, on the other hand, the record does not show that either rape in the second degree or rape in the third degree could have occurred; the State presented evidence only of forcible intercourse. Thus, Fernandez-Medina does not compel a lesser degree instruction.

¶29 We conclude that as in Charles and Ieremia, S.F.’s testimony supports only second degree rape and the defendant’s evidence supports only that no rape occurred. The trial court erred in giving the third degree rape instruction.

¶30 Because the jury left the second degree rape verdict form blank after the court instructed the jury to leave it blank if the jurors were unable to reach a verdict on second degree rape, double jeopardy principles do not bar retrial on that charge. State v. Daniels, 160 Wn.2d 256, 262-64, 156 P.3d 905 (2007), adhered to on recons., 165 Wn.2d 627, 200 P.3d 711 (2009). Consequently, we reverse the third degree rape convictions and remand for retrial on the second degree rape charges. And we do not discuss the other issues defendants raised because they are unlikely to arise on retrial.

Van Deren, C.J., concurs.

Footnotes

1

Only the factual prong of the Workman test need be satisfied to instruct the jury on a lesser degree offense. Ieremia, 78 Wn. App. at 755 n.3; see State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).