Opinion
No. 60796-1-I.
December 8, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-01080-1, Ira Uhrig, J., entered October 23, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Leach, J., concurred in by Grosse and Cox, JJ.
Eric O'Grady appeals his convictions of second degree rape and violation of a no-contact order. O'Grady claims that he was denied effective assistance of counsel when his lawyer failed to inform him of a defense to the charge of second degree rape before he decided not to testify and failed to request an instruction for the defense. O'Grady also argues that RCW 26.50.110(1), which criminalizes the violation of a no-contact order, is unconstitutionally overbroad since it implicates protected speech. Because counsel's deficient performance prejudiced O'Grady, we reverse his rape conviction and remand for a new trial. However, we hold that that RCW 26.50.110(1) is not unconstitutionally overbroad and affirm O'Grady's conviction of violation of a no-contact order.
For this reason, we do not address the remaining assignments of error relating to O'Grady's rape conviction.
Background
On July 25, 2006, Rachel Abrahams planned to go to several bars to celebrate her 21st birthday with her roommates Jacqueline Sizer and Jennifer Veliz, and their friend Krystal Romano. Outside the first bar, O'Grady recognized Romano, who introduced O'Grady to Abrahams. Over the course of the evening, the women consumed alcohol at different bars and became intoxicated; O'Grady did not drink because he did not have any identification with him. O'Grady and Abrahams spent about 45 minutes talking exclusively with each other at one bar, and they made plans to see each other again. Towards the end of the evening, the group returned to the women's apartment, along with Sizer's friend, Jamison Rogayan.
At the apartment, O'Grady invited over two friends, Andrew Geckland and Ben Brune. After about an hour, Geckland and Brune left, and Abrahams and O'Grady went to her bedroom, where they talked and kissed. O'Grady touched Abrahams' breasts and crotch. Abrahams testified that when O'Grady touched her crotch and attempted to either remove too much of her clothes or his own, she told him that she did not want to have sex with him. Each time, O'Grady told her not to worry and stopped pressuring her. Eventually, Abrahams put on a pair of jeans and a sweatshirt, and they talked about getting food. However, Page 3 Abrahams changed her mind because she felt nauseated from drinking, and fell asleep with her jeans on. When she awoke, she was naked, and O'Grady was penetrating her. Crying and hyperventilating, Abrahams ran to Sizer's bedroom, climbed into the bed, and pulled the blankets over her head. O'Grady came into the room several times to tell Abrahams that nothing had happened, but she refused to talk to him. O'Grady explained to Rogayan that he and Abrahams were having sex until she "freaked out."
Abrahams asked Sizer to remove O'Grady from the house. After doing this, Sizer and Veliz took Abrahams to the hospital for a rape exam. The results of this exam later identified that the semen inside her belonged to O'Grady.
O'Grady was charged with second degree rape. Abrahams later obtained a protection order prohibiting O'Grady from having any contact with her. At a pretrial motion hearing on February 13, 2007, O'Grady waved a Bible at Abrahams and shouted at her to "tell the truth." One count of violation of a no-contact order under RCW 26.50.110(1) was added to O'Grady's rape charge.
At trial, Abrahams testified about the alleged rape incident; O'Grady did not testify. On June 13, 2007, the jury found O'Grady guilty of both second degree rape and violation of a no-contact order. The jury returned a special verdict, which stated that the jurors unanimously believed that sexual intercourse had occurred when Abrahams was incapable of consent by reason of being physically helpless. With new counsel, O'Grady filed a motion for a new trial, which the court denied.
Discussion
A. Ineffective Assistance of Counsel
Rape in the second degree occurs when a person engages in sexual intercourse with another person who is incapable of consent by reason of being mentally incapacitated or physically helpless. A defense to a charge of this crime exists if the defendant reasonably believed that the victim was not mentally incapacitated or physically helpless. The defendant has the burden of proving this defense by a preponderance of the evidence. O'Grady argues that he was denied effective assistance of counsel because his attorney failed to (1) inform him of this defense before he decided not to testify and (2) request a "reasonable belief" instruction. Because the failure of O'Grady's counsel to request a reasonable belief instruction amounts to ineffective assistance of counsel, we need not decide whether counsel's failure also denied O'Grady's constitutional right to testify.
When reviewing a claim of ineffective assistance, we start with the strong presumption that counsel's representation was effective. To overcome this presumption, the defendant must show both deficient performance and resulting prejudice. The defendant establishes deficient performance if there are no "legitimate strategic or tactical reasons supporting the challenged conduct." The defendant demonstrates prejudice if there is "a reasonable probability that, but for counsel's unprofessional errors, the result would have been different."
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
In re Pers. Restraint of Hubert, 138 Wn. App. 924, 928, 158 P.3d 1282 (2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)).
McFarland, 127 Wn.2d at 336.
Hubert, 138 Wn. App. at 928 (citing State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987)).
O'Grady relies on In re Personal Restraint of Hubert to show both deficient performance and prejudice. In Hubert, this court found that counsel's failure to request a reasonable belief instruction in defending Hubert against a charge of second degree rape demonstrated both deficient performance and prejudice. The evidence in that case supported the defense that Hubert reasonably believed that the victim was not physically helpless. Hubert testified that there was consensual sexual activity and that he believed that the victim was awake during the entire incident.
138 Wn. App. 924, 158 P.3d 1282 (2007).
Hubert, 138 Wn. App. at 932.
Hubert, 138 Wn. App. at 929.
Hubert, 138 Wn. App. at 926-27, 929.
Yet, Hubert's counsel failed to argue the reasonable belief defense or request an appropriate instruction because he was unaware of the statutory defense. The court stated this "failure to investigate the relevant statutes under which [a] client is charged cannot be characterized as a legitimate Page 6 tactic." As a result, the court held that counsel's failure to "discover and advance the defense was plainly deficient performance." The court also found resulting prejudice because, without the reasonable belief instruction, the jury had "no way to understand the legal significance of the evidence supporting the reasonableness of [the defendant's] belief that [the victim] was . . . capable of consenting to his advances." The court concluded that Hubert's counsel was ineffective: "Where defense counsel fails to identify and present the sole available defense to the charged crime and there is evidence to support that defense, the defendant has been denied a fair trial."
Hubert, 138 Wn. App. at 929.
Hubert, 138 Wn. App. at 929-30.
Hubert, 138 Wn. App. at 930.
Hubert, 138 Wn. App. at 932.
Hubert, 138 Wn. App. at 932.
Here, as in Hubert, O'Grady's counsel admitted that he failed to argue the reasonable belief defense or request an instruction for it because he was unaware of this statutory defense. His failure to investigate the relevant statutes under which O'Grady was charged cannot be a legitimate tactic and shows deficient performance. Further, as in Hubert, some evidence supports the defense that O'Grady reasonably believed that the victim was not physically helpless. Abrahams testified that she consented to certain sexual activity. Rogayan also testified that O'Grady told him he and Abrahams were having consensual sex until Abrahams "freaked out." Without the reasonable belief instruction, the jury could not recognize the legal significance of this evidence and, therefore, prejudice resulted.
Thus, under Hubert, O'Grady has shown both deficient performance and prejudice. Accordingly, we reverse and remand for a new trial.
B. Violation of No-Contact Order
O'Grady challenges his conviction for violating a no-contact order under RCW 26.50.110(1), which criminalizes the violation of such an order. He claims that this statute is unconstitutionally overbroad because it implicates speech protected under the First Amendment.
However, O'Grady fails to recognize that RCW 26.50.110(1) primarily regulates conduct and not speech. We will find such a statute overbroad "only if it reaches a substantial amount of protected speech and there exists no way of severing the statute's unconstitutional applications." We further note that the overbreadth doctrine should be applied sparingly and "`only as a last resort.'"
See State v. Talley, 122 Wn.2d 192, 210-11, 858 P.2d 217 (1993).
Talley, 122 Wn.2d at 210.
Talley, 122 Wn.2d at 210 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)).
In State v. Talley, our Supreme Court rejected an overbreadth challenge to a harassment statute on grounds that the statute's impact on speech was not substantial. In Talley, the respondents argued that the harassment statute was unconstitutionally overbroad because the statute permitted the State to use the respondents' speech as circumstantial evidence. Our Supreme Court disagreed. After finding that the statute primarily regulated conduct, the court determined that its effect on speech was minimal: "The nexus between criminal conduct and any speech implicated ensures that [the statute] does not deter a substantial amount of protected expression."
122 Wn.2d 192, 858 P.2d 217 (1993).
Talley, 122 Wn.2d at 212. The statute at issue in Talley was RCW 9A.36.080(1), which prohibits malicious harassment based on the victim's perceived membership in a protected category.
Talley, 122 Wn.2d at 210.
Talley, 122 Wn.2d at 210-11.
Talley, 122 Wn.2d at 211.
RCW 26.50.110(1), like the statute in Talley, does not deter a substantial amount of speech. RCW 26.50.110(1) primarily regulates conduct and only implicates speech when the speaker knowingly violates the "restraint provisions prohibiting contact with [the] protected party." Given his awareness of the no-contact order, O'Grady's conduct and speech — waving a Bible at Abrahams and shouting at her to "tell the truth" — amounts to contact in violation of the no-contact order. We conclude that this incidental impact on speech does not render RCW 26.50.110(1) unconstitutionally overbroad.
Conclusion
We reverse O'Grady's conviction of second degree rape and remand for retrial because O'Grady received ineffective assistance when his counsel failed to request the reasonable belief instruction. However, O'Grady's overbreadth challenge to RCW 26.50.110(1) lacks merit, so we affirm his conviction of violation of a no-contact order.
Reversed in part and affirmed in part.
WE CONCUR: