Opinion
No. 63444-5-I.
Filed: January 31, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-12175-1, Michael J. Fox, J., entered April 13, 2009.
Affirmed by unpublished opinion per Spearman, J., concurred in by Leach, A.C.J., and Lau, J.
A jury found Azazi Yohannes guilty of second degree rape-domestic violence. On appeal, Yohannes contends that the deputy prosecutor committed reversible misconduct. But defense counsel raised no objection to the alleged improper questioning and arguments. And in any event, the challenged comments, when viewed in context, were not improper and did not violate Yohannes' state constitutional right to be present at trial and confront witnesses. We also reject Yohannes' claim of insufficient evidence and the contentions set forth in his statement of additional grounds for review. We therefore affirm.
FACTS
The State charged Yohannes with one count of second degree rape — domestic violence. Lia Araya, Yohannes' wife, testified that she was born in Eritrea and met Yohannes while both attended high school in Eritrea. Yohannes, who was born in Saudi Arabia, has lived primarily in the United States. The couple married in Eritrea in 2006 and moved to Seattle, where Yohannes was living.
By October 2008, Araya's relationship with Yohannes was "on and off," and she was planning to move out. At the time, Araya generally slept in a separate bedroom with the couple's baby.
On the evening of October 9, 2008, Yohannes left the house and Araya went to bed. At about 5:00 a.m., Yohannes returned and came into Araya's bedroom. After Yohannes got into bed, Araya told him that he was drunk and smelled and that he should sleep in the other bedroom. Yohannes ignored Araya and remained in the bed.
Araya noticed that Yohannes' pants were still on the bed. As she started to put them away, two condom packages fell out of the pocket, one of which was open. Araya became angry and confronted Yohannes, who denied knowing where the condoms had come from. Araya and Yohannes continued to argue, and Araya eventually threw a plastic baby bottle at him, hitting him on the lip, which began to bleed.
Araya grabbed a glass of wine and went out to the car, where she listened to the radio. Yohannes came outside, grabbed the car keys from Araya, and threw her cell phone onto the ground. Yohannes then went back inside.
After warning a neighbor about Yohannes, Araya returned to the house and again confronted Yohannes in the bedroom about the condoms. According to Araya, Yohannes started "going crazy" and held her hands. As Araya resisted, Yohannes pulled her down onto the bed and punched her in the face or head, knocking her unconscious and causing her nose to bleed.
When Araya regained consciousness, she was lying on her back on the bed and no longer wearing any clothes. Yohannes, who was not wearing any clothes, was standing next to her and touching her, as though he was attempting to determine if she was still breathing.
Araya felt a warm fluid on her face and ear and saw blood all over the bed. She also felt a pain in her pelvic area that she associated with intercourse. Testing established the presence of semen on Araya's face, ear, and crotch area. Araya eventually put on a T-shirt, ran to a neighbor's house, and called 911.
Araya's pretrial accounts of the rape differed in certain respects from her trial testimony. In some statements, Araya indicated that she may have been at least partly awake while Yohannes committed the rape. Araya also expressed some uncertainty about the amount of time that passed between the rape and her 911 call.
Yohannes testified that he left the house with his brother late on the evening of October 9 and did not return until about 2:00 a.m. He acknowledged he was not getting along well with Araya, but denied that the couple was sleeping in separate rooms. When Yohannes got into bed, Araya woke up, and the two argued briefly about his late return. He and Araya then kissed and had consensual intercourse. Yohannes explained that because he was concerned about having another child, he pulled out and ejaculated on Araya's face, as he had done on previous occasions. The couple "cuddled" awhile and fell asleep.
Yohannes claimed he was awakened at about 7:00 a.m. when Araya slapped him and began yelling at him about the condoms she had found in his pocket. Yohannes had to defend himself as Araya threw things at him and attempted to bite him. Eventually, Yohannes grabbed her arms and held her down on the bed to stop her.
Araya then went outside with a wine bottle and smoked a cigarette. At some point, she drove to the store and returned with more wine and cigarettes. When she returned, Yohannes went out to the car, took the car keys, and told Araya she was drunk. When Araya came back into the house, she became hysterical and walked out the front door, telling Yohannes, "Watch, I am going to call the police on you."
Yohannes denied raping or punching Araya.
The jury found Yohannes guilty as charged. The court denied Yohannes' motion for a new trial and imposed a standard-range indeterminate sentence.
DECISION
Prosecutorial Misconduct
Yohannes contends that the deputy prosecutor committed reversible misconduct during the questioning of witnesses and closing argument. He therefore bears the burden of establishing that the challenged conduct was both improper and prejudicial. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). Prejudice occurs only if there is "a substantial likelihood the instances of misconduct affected the jury's verdict." State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). A failure to object waives any claim of error unless the comments were so flagrant and ill-intentioned that no instruction could have cured the resulting prejudice. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). We review misconduct claims in the context of the total argument, the evidence addressed, the issues in the case, and the jury instructions. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
When asked during direct examination whether there were many differences between living in the United States and Eritrea, Araya responded:
A: Yes.
Q: Like what?
A: The economy. The women, we get a lot of freedom here than in Africa. Jobs, if you get a job there you don't make very much money.
Q: Where?
A: Eritrea. And the way they respect a woman is very different.
Q: What do you mean by that?
A: In my country, being a woman, especially when you get married, you always stay at the house. And some of the guys they put you down, the husband. And if anything happens the woman have to deal with. If something happens in your marriage life they always blame the woman.
During cross examination, the deputy prosecutor posed the following questions to Yohannes:
Q: It upsets you when [Araya] smokes cigarettes doesn't it.
A: Yes.
Q: And in Eritrea it is not acceptable for women to smoke cigarettes; isn't that right?
A: No.
Q: Women aren't allowed to smoke cigarettes, are they?
A: Yes, they are.
Q: They are not allowed to smoke in public, are they?
A: Yes.
[Defense counsel]: Objection
Q: Women aren't allowed to smoke cigarettes in Eritrea, are they?
A: Yes, they are.
Q: Women who do are not thought very much of, are they?
. . .
A: . . . older people like my parents and everybody else, they don't like it.
Q: Do you like it? No?
A: No, I do not.
. . .
Q: How about drinking alcohol? Is drinking alcohol looked down upon?
A: No.
Q: By women?
A: No.
. . .
Q: Does it make a difference if a woman smokes one cigarette or more than one how looked down upon it is?
A: No.
Q: Just smoking in general is not very well respected?
A: In our community back home, yes.
Yohannes claims that the deputy prosecutor's questions were an improper attempt to appeal to the jury's cultural biases and to encourage the jury to find him guilty based on disapproval of the patriarchal Eritrean society. The State acknowledges that the questions about Araya's smoking and the role of smoking in Eritrean society were marginally relevant at best, but correctly notes that defense counsel had questioned multiple witnesses, including the defendant, about Araya's smoking before the deputy prosecutor's cross examination.
Moreover, defense counsel made no meaningful objection to the questions or answers. Although counsel objected once during Yohannes' cross examination, he did not identify the basis for the objection, request a ruling from the trial court, or move to strike the testimony. The challenged questioning was relatively brief and limited in scope, and contrary to Yohannes' assertion, did not inject a significant issue of race or culture into the trial. Under the circumstances, an objection or curative instruction could have remedied any impropriety. Yohannes has therefore waived any challenge to the questioning on appeal.
Yohannes also contends that the deputy prosecutor committed reversible misconduct during closing argument by alleging that he had raped Araya "to put her in her place" because she was "acting a little bit too big for her britches." Yohannes also argues that the following comments were improper:
He had his way with her. And to the defendant at this point, [Araya] is not a human being. All she is is an orifice for him to serve his perverse desire to demean her and disrespect her.
And to show her just what he thought of her, he ejaculated all over her face, in her ear.
Once again, defense counsel raised no objection to the allegedly improper remarks. The deputy prosecutor made no reference during closing argument to Yohannes' ethnic or cultural heritage. Nor did she suggest that Yohannes' actions reflected Eritrean societal values. Rather, when viewed in context, the challenged comments were part of the deputy prosecutor's attempt to describe the violent and degrading facts of the case. Although couched in frank and graphic language, the argument did not urge the jury to decide the case based on anything other than the evidence and credibility of the witnesses. The challenged comments fell within the wide latitude afforded the deputy prosecutor to draw and express reasonable inferences from the evidence and were therefore not improper. See State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997). And even if some of the challenged comments were questionable, a timely objection and curative instruction could have neutralized any potential prejudice. See State v. Dhaliwal, 150 Wn.2d 559, 576-581, 79 P.3d 432 (2003).
Violation of Wash. Const. Article I, section 22
Yohannes contends that during cross examination and closing argument, the deputy prosecutor improperly suggested that he had "tailored" his testimony to fit the evidence presented at trial. He argues that such comments violated his rights under article I, section 22 of the Washington Constitution to review discovery, to be present at trial, to testify, and to confront witnesses. He also requests that we exercise our inherent authority to prescribe procedural rules that would prohibit prosecutors from raising such arguments.
This court rejected essentially identical arguments in State v. Martin, 151 Wn. App. 98, 210 P.3d 345 (2009), rev. granted, 226 Wn.2d 781 (2010). In Martin, we first noted that a prosecutor does not violate comparable rights under the Sixth Amendment by commenting on the defendant's opportunity to tailor his or her testimony to the evidence previously introduced at trial. Martin, 151 Wn. App. at 104-07 (citing Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000)). We then concluded that the factors in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), did not support a different analysis of the issue under the Washington Constitution. We decline Yohannes' invitation to revisit our decision in Martin. Because the deputy prosecutor's comments did not violate Yohannes' rights, there is no principled basis on which to craft a procedural rule prohibiting such arguments. See Martin, 151 Wn. App. at 116 n. 10.
Sufficiency of the Evidence
Yohannes contends that the evidence was insufficient to prove that he forcibly compelled Araya to have sexual intercourse with him. He argues that because any rape occurred, according to Araya's own testimony, while she was unconscious, the evidence was insufficient to establish either that he used force to commit the rape or that Araya resisted the rape. We disagree.
In order to convict Yohannes of second degree rape, the State was required to prove beyond a reasonable doubt that he had sexual intercourse with her by "forcible compulsion." RCW 9A.44.050(1)(a). "Forcible compulsion" includes "physical force which overcomes resistance." RCW 9A.44.010(6). The force necessary to establish forcible compulsion is the force used to overcome the victim's resistance, not the force inherent in sexual penetration. State v. McKnight, 54 Wn. App. 521, 527, 774 P.2d 532 (1989). Consequently, the State was required to prove that Yohannes exerted force greater than that "normally required to achieve penetration" and that this force "was directed at overcoming the victim's resistance." McKnight, 54 Wn. App. at 528.
Araya testified that after Yohannes came out to the car and broke her cell phone, she went back into the house and resumed arguing with him about the condom she had found. Araya stated that when Yohannes grabbed her hands, she tried to resist him by pushing back and by trying "to fight him back." Yohannes then pulled her down onto the bed and punched her in the face or head, rendering her unconscious. When Araya regained consciousness, she was lying naked on her back, with her legs hanging over the bed. Yohannes, who was now naked as well, was standing next to her. Araya felt warm fluid on her face and ear that later turned out to be semen. She also felt pain that she had experienced with intercourse.
Viewed in the light most favorable to the State, Araya's testimony was sufficient to support a reasonable inference that Yohannes' use of force was far greater than that necessary for penetration. Moreover, contrary to Yohannes' assertions, the circumstances also support a reasonable inference that Yohannes' use of force was for the purpose of overcoming Araya's resistance. The evidence was therefore sufficient to establish forcible compulsion. See State v. McKnight, 54 Wn. App. at 528.
Pro Se Statement of Additional Grounds for Review
Yohannes first challenges the sufficiency of the evidence to support his conviction. Among other things, he alleges that the State failed to prove that he had intercourse with Araya or that he was the source of the semen. He also asserts that the source of Araya's pain might have been a knee to the groin during the struggle or that she may have had intercourse with someone else. But because these assertions are essentially a challenge to the credibility of the State's evidence, they cannot be reviewed on appeal. See State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008) (credibility determinations are for the trier of fact and not subject to appellate review).
Yohannes also alleges contamination of the rape kit evidence, ineffective assistance of counsel, and deficiencies with the chain of custody. These allegations of error are either patently without merit or too conclusory to address on appeal. See RAP 10.10(c) (appellate court will not consider statement of additional grounds for review unless it informs the court of the nature and occurrence of alleged errors).
Yohannes contends that his conviction must be reversed because instruction 9 informed the jury of the uncharged "alternative means" of forcible compulsion by "fear of being kidnapped or that another person will be kidnapped." The information alleged that Yohannes had committed rape by "forcible compulsion" and the instructions correctly informed the jury of the elements of the offense, including the definition of "forcible compulsion." Yohannes has therefore not demonstrated any error involving uncharged alternative means.
Yohannes also contends that the jury instructions failed to require unanimity as to which one of multiple acts of domestic violence formed the basis for his conviction. This argument rests on an apparent misunderstanding of the charge.
Yohannes was charged with "Rape in the Second Degree — Domestic Violence," a charge that was also recorded on the verdict form. The domestic violence classification to a crime does not alter the elements of the underlying offense or create an additional element of the offense that is submitted to the jury. State v. Goodman, 108 Wn. App. 355, 359, 30 P.3d 516 (2001). Consequently, the classification did not impose an additional unanimity requirement on the jury beyond that for the underlying offense of second degree rape. See generally RCW 10.99.
Yohannes next contends that his rape prosecution resulted in a double jeopardy violation because the trial court improperly admitted a reference to a prior criminal prosecution in which the jury found Yohannes not guilty. But the prior prosecution was unrelated to the current rape charge. Consequently, the mere reference to that proceeding, even if improper, did not constitute a double jeopardy violation.
Yohannes contends that the sentencing court improperly sentenced him to an indeterminate sentence under former RCW 9.94A.712 because the legislature subsequently recodified it as RCW 9.94A.507. But Yohannes does not identify any material change in RCW 9.94A.507 that affects his sentence. Because former RCW 9.94A.712 was in effect at the time of the offense, the sentencing court properly relied on it when imposing Yohannes' sentence. See State v. Varga, 151 Wn.2d 179, 191, 86 P.3d 139 (2004) (when imposing sentence, a sentencing court must look to the statute in effect at the time of the offense).
Finally, Yohannes contends that he was denied effective assistance by defense counsel's errors. Because he has not identified any errors, he cannot establish either deficient performance or resulting prejudice. Accordingly, Yohannes's claim of ineffective assistance fails. See generally State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Affirmed.