Opinion
67039-5-I
07-23-2012
STATE OF WASHINGTON, Respondent, v. MAX ORTIZ-TRIANA, Appellant.
UNPUBLISHED OPINION
Schindler, J.
A jury rejected Max Ortiz-Triana's affirmative defense of consent and found him guilty of rape in the second degree. We conclude the jury instructions accurately set forth the law on consent and permitted Ortiz-Triana to argue his theory of the case. We also reject Ortiz-Triana's argument that the trial court erred in failing to give a unanimity instruction and instructing the jury on the lesser degree offense of rape in the third degree, and affirm.
FACTS
In May of 2010, 16-year-old M.P. lived with her mother S.P. and three sisters in Auburn. S.P. generally worked from midnight to 7:00 a.m. Ortiz-Triana and S.P. had been in a romantic relationship since about 2007.
On May 11, 2010, M.P. went to bed at about 1:00 a.m. Sometime later, she awoke to find Ortiz-Triana in her bed, rubbing her thigh with his hand. After M.P. repeatedly called out for her mother, Ortiz-Triana told M.P. that her mother was at work. In a low voice, Ortiz-Triana told M.P. he was going to kill her and pointed a kitchen knife at her.
Ortiz-Triana directed M.P. to lie down and, after a brief struggle, removed M.P.'s underpants, put her legs around him, and began having intercourse with her. M.P. was scared that Ortiz-Triana was going to kill her and did not say anything. She was also concerned about her two younger sisters who were sleeping in another room.
After about a minute, M.P. said she needed to go to the bathroom. Ortiz-Triana allowed M.P. to leave but followed her to the bathroom, where he held the knife and stood in the doorway until she was done. Ortiz-Triana accompanied M.P. back to her bedroom, ordered her back onto the bed, and resumed intercourse. M.P. repeatedly told Ortiz-Triana "no" but he ignored her.
During the course of the rape, M.P. asked to go to the bathroom two other times. Each time, Ortiz-Triana accompanied her and stood in the doorway until she was finished. Ortiz-Triana then resumed intercourse after returning to M.P.'s bedroom. At one point, M.P. said she needed some water. Ortiz-Triana followed her downstairs, where both Ortiz-Triana and M.P. took a water bottle. While accompanying M.P., Ortiz-Triana continued to hold the knife.
When Ortiz-Triana eventually ejaculated, M.P. asked if he really planned to kill her. Ortiz-Triana said no because he had a young son. Ortiz-Triana expressed the desire to pay M.P. to be his girlfriend and also said that he had been attracted to her on earlier occasions. Ortiz-Triana then announced, "Okay, just one more time, " and resumed intercourse for a few more minutes. M.P. did not know where the knife was at this time.
M.P. said it was 4:00 a.m. when Ortiz-Triana finally finished. After allowing M.P. to use the bathroom one more time, Ortiz-Triana told her not to tell anyone and left.
M.P. did not tell her mother what happened but soon started living with her father. M.P. eventually told a school counselor, and Auburn police officers arrested Ortiz-Triana. M.P. later disclosed an earlier incident in which Ortiz-Triana put his hand down the front of her pants while showing her a pornographic video.
The State charged Ortiz-Triana with one count of rape in the first degree with a deadly weapon and one count of child molestation in the third degree for the earlier incident.
Ortiz-Triana testified that he had been drinking on the evening of May 10, 2010. Later, he called S.P. at work and asked if he could go over to her house and wait until she came home. When S.P. agreed, Ortiz-Triana drove to her workplace, picked up the key, and drove over to S.P.'s house.
A short time after Ortiz-Triana entered the house, M.P. came down the stairs and asked him what he was doing there. Ortiz-Triana explained he was waiting for her mother and then asked M.P. whether she "want[ed] to have fun for a little while." Encouraged because M.P. appeared to be "flirting, " Ortiz-Triana followed her upstairs and into her bedroom. According to Ortiz-Triana, the two began kissing and eventually had consensual intercourse. M.P. never told him to stop.
Ortiz-Triana denied using a knife or threatening M.P. at any time. Ortiz-Triana acknowledged that he denied having sex with M.P. when he talked to police officers, but explained he was concerned the incident would affect his relationship with his fiancée.
The court instructed the jury on the affirmative defense of consent using the standard 11 Washington Practice: Washington Pattern Jury Instructions: Criminal (3d ed. 2008) (WPIC) instruction, WPIC 18.25, at 288. The court declined to give Ortiz-Triana's proposed instruction on consent. At the State's request, the court also instructed the jury on the lesser degree offense of rape in the second degree.
The jury acquitted Ortiz-Triana of rape in the first degree and child molestation, but found him guilty of rape in the second degree.
ANALYSIS
Proposed Jury Instruction
Ortiz-Triana contends that the trial court erred when it refused to give his proposed jury instruction on the affirmative defense of consent. Ortiz-Triana argues that the instructions did not adequately inform the jury of the applicable law and effectively prevented him from arguing his theory of the case.
We review the adequacy of jury instructions de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Instructions are sufficient if they correctly state the law, are not misleading, and allow the parties to argue their respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-37, 439 P.2d 403 (1968). The trial court has broad discretion to determine the wording and number of jury instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983).
Defense counsel proposed an instruction on the affirmative defense of consent that provided, in pertinent part:
Consent is an affirmative defense to the crime of rape and the defense bears the burden of proving consent by a preponderance of the evidence. Even if, however, you do not find consent established by a preponderance of the evidence, you may still consider evidence of consent in determining whether or not the defendant acted with forcible compulsion and if you find that there is sufficient evidence to raise a reasonable doubt as to that element, you must acquit the defendant of the charge of rape in the first degree.
Counsel argued that the instruction was necessary to inform the jury that the State continued to bear the burden of proving forcible compulsion despite the defendant's burden to prove consent.
The trial court declined to give the proposed instruction. The court found the proposed instruction confusing and concluded that the instructions as a whole made the State's burden of proof clear. The court gave the jury instruction on consent that was based on WPIC 18.25. Instruction No. 14 states:
A person is not guilty of rape if the sexual intercourse is consensual. Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating freely given agreement to have sexual intercourse.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty as to this charge.
On appeal, Ortiz-Triana contends that the instructions were insufficient to explain the State's continuing burden to prove forcible compulsion. Ortiz-Triana claims the jury could have "disbelieved the [S]tate's proof of forcible compulsion yet still convicted, based on Ortiz-Triana's failure to prove consent." In State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006), our supreme court rejected an analogous argument.
In Gregory, the defendant asked the court to revisit the well-established rule imposing the burden of proving consent in a rape prosecution on the defendant. Gregory, 158 Wn.2d at 801-04; see State v. Camara, 113 Wn.2d 631, 640, 781 P.2d 483 (1989). Gregory argued that
requiring him to prove consent by a preponderance of the evidence violated due process because the jury could have become confused, thinking that it could acquit only if consent is proved by a preponderance of the evidence, even if a reasonable doubt may have been raised with regard to the element of forcible compulsion.Gregory, 158 Wn.2d at 801-02.
(Emphasis in original.)
The court rejected this argument.
[S]o long as the jury instructions allow the jury to consider all of the evidence, including evidence presented in the hopes of establishing consent, to determine whether a reasonable doubt exists as to the element of forcible compulsion, the conceptual overlap between the consent defense and the forcible compulsion element does not relieve the State of its burden to prove forcible compulsion beyond a reasonable doubt.Gregory, 158 Wn.2d at 803. The court concluded that jury instructions essentially identical to those given here complied with these requirements. Gregory, 158 Wn.2d at 803-04.
Instruction No. 14 directed the jury to acquit Ortiz-Triana if it found, after considering all of the evidence, that he had proved consent by a preponderance of the evidence. Instruction No. 13 states that the State bears the burden of proving rape in the second degree, including sexual intercourse by forcible compulsion, beyond a reasonable doubt and directed the jury to acquit Ortiz-Triana if, "after weighing all the evidence, " it had a reasonable doubt as to any of the elements.
(Emphasis added.)
Contrary to Ortiz-Triana's assertions, the instructions clearly set forth the State's burden of proving forcible compulsion and directed the jury to consider all of the evidence, including any evidence related to consent, in determining whether a reasonable doubt existed as to any of the charged elements. We presume the jury followed the instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
Ortiz-Triana has not identified any provisions in the instructions that would have permitted the jury, despite having a reasonable doubt about forcible compulsion, to find him guilty because he failed to prove consent. The instructions accurately set forth the State's burden of proof on forcible compulsion and permitted Ortiz-Triana to argue his theory of the case. See Gregory, 158 Wn.2d at 803-04.
Ortiz-Triana's reliance on the comment to WPIC 18.25, which advises the trial court to "use caution if the defendant objects to the use of this instruction, " is misplaced. WPIC 18.25, comment at 289. That comment is expressly directed to instructing the jury on an affirmative defense over the defendant's objection. See State v. McSorley, 128 Wn.App. 598, 116 P.3d 431 (2005) (error to compel defendant to rely on an affirmative defense to child luring). Because Ortiz-Triana raised the affirmative defense of consent, the sole issue is whether the instructions given were sufficient to advise the jury of the applicable law. Consequently, the WPIC comment has no application to the facts of this case.
Ortiz-Triana next contends the trial court violated his constitutional right to a unanimous jury when it failed to give a unanimity instruction. He maintains that M.P. described a second sexual assault when Ortiz-Triana informed her that he did not intend to kill her and then resumed sexual intercourse with her. He argues that the evidence therefore established two distinct acts of rape that could have formed the basis for his conviction.
When the State presents evidence of several acts that could constitute the crime charged, the jury must unanimously agree on which act constituted the crime. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). To ensure jury unanimity, the State must either elect the act on which it relies, or the court must instruct the jury to unanimously agree that at least one particular act constituting the charged crime has been proved beyond a reasonable doubt. Kitchen, 110 Wn.2d at 411; see also State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
But no election or unanimity instruction is required if the evidence establishes a "continuing course of conduct." Petrich, 101 Wn.2d at 571. We review the facts in a commonsense manner to determine whether criminal acts consist of a continuing course of conduct. Petrich, 101 Wn.2d at 571. Evidence that the charged conduct "occurred at different times and places tends to show that several distinct acts occurred." State v. Fiallo-Lopez, 78 Wn.App. 717, 724, 899 P.2d 1294 (1995). Evidence that the defendant engaged "in a series of actions intended to secure the same objective supports the characterization of those actions as a continuing course of conduct." Fiallo-Lopez, 78 Wn.App. at 724.
Here, the evidence established an ongoing sexual assault that involved the same victim, occurred in the same location, and lasted less than three hours. Although Ortiz-Triana permitted M.P. to go the bathroom several times and get a drink of water, the evidence showed that he continued to exercise control over her throughout the entire incident by accompanying her and displaying the knife. Upon M.P.'s return to the bedroom, Ortiz-Triana resumed the sexual assault almost immediately.
Viewed in a commonsense manner, Ortiz-Triana's ongoing actions were intended to secure the single objective of sexual assault. Neither the brief interruptions nor Ortiz-Triana's admissions to M.P. near the end of the assault changed the basic character of his offense. Because the offense was a continuing course of conduct, the trial court did not err in failing to give a unanimity instruction. See State v. Crane, 116 Wn.2d 315, 330, 804 P.2d 10 (1991) (multiple incidents of assault occurring over two-hour period constituted continuing course of conduct); People v. Mota, 115 Cal.App.3d 227, 171 Cal.Rptr. 212 (1981) (repeated acts of rape over one-hour period constituted continuing offense), cited in Petrich, 101 Wn.2d at 571.
Ortiz-Triana's reliance on State v. Grantham, 84 Wn.App. 854, 932 P.2d 657 (1997), is misplaced. Grantham involved the issue of whether two rapes constituted the "same criminal conduct" for purposes of sentencing. Grantham, 84 Wn.App. at 857. Because Grantham does not address jury unanimity, it has no application here.
Finally, Ortiz-Triana contends the trial court erred in refusing to give his proposed instruction on the lesser degree offense of rape in the third degree. A criminal defendant is entitled to an instruction on an inferior degree offense if:
"(1) the statutes for both the charged offense and the proposed inferior degree offense 'proscribe but one offense'; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense."State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997) (quoting State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979))). We review the evidence in the light most favorable to the party requesting the instruction. Fernandez-Medina, 141 Wn.2d at 455-56.
The trial court instructed the jury on rape in the first degree and rape in the second degree, both of which required the State to prove forcible compulsion. See RCW 9A.44.040(1)(a); 9A.44.050(1)(a). Rape in the third degree is an inferior degree offense of rape in the second degree. State v. Ieremia, 78 Wn.App. 746, 753, 899 P.2d 16 (1995). A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degree, he or she engages in sexual intercourse with another person and that person does not consent. See RCW 9A.44.060(1); RCW 9A.44.010(7) (defining consent).
M.P. testified that Ortiz-Triana pointed a knife at her, threatened to kill her, and then forced her to have sexual intercourse. Ortiz-Triana flatly denied using a knife or threatening MP. and claimed that M.P. engaged in a consensual act. Consequently, in order to find Ortiz-Triana guilty of rape in the third degree, the jury would have to disbelieve both Ortiz-Triana's claim of consensual intercourse and M.P.'s testimony of forcible compulsion. See State v. Charles, 126 Wn.2d 353, 356, 894 P.2d 558 (1995); State v. Wright, 152 Wn.App. 64, 71-72, 214 P.3d 968 (2009); Ieremia, 78 Wn.App. at 756. The record contained no affirmative evidence suggesting that the intercourse was unforced but still nonconsensual. Because there was no evidence indicating that Ortiz-Triana committed only rape in the third degree, the trial court properly declined to give the lesser degree instruction. See Charles, 126 Wn.2d at 356.
Ortiz-Triana suggests that a reasonable juror could have found rape in the third degree based on M.P.'s testimony that when Ortiz-Triana resumed intercourse for the last time, she did not know where the knife was. But because the rape constituted a continuing course of conduct, the fact that M.P. did not know the location of the knife at some points in time did not change the overall nature of the offense.
We affirm.