FILED
COURT OF APPEALS
DIVISION II
20141 H 20 °' o 10: 5
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
5 ON
DIVISION II
STATE OF WASHINGTON, No. 43532 -2 -II
Respondent,
v.
ORDER PUBLISHING
DONALD WAYNE COREY, OPINION
Appellant.
APPELLANT has moved to publish the opinion filed on April 1, 2014. The Court has
determined that the opinion in this matter satisfies the criteria for publication. It is now
ORDERED, that the motion to publish is granted and the opinion' s final
paragraph reading:
A majority of the panel having determined that this opinion will not be
printed in the Washington Appellate Reports, but will be filed for public record in
accordance with RCW 2. 06. 040, it is so ordered.
is deleted. It is further
ORDERED, that this opinion will be published.
i/ A
DATED this . 2014.
e/ day of / "(
Worswick, C. J.
FILED
r' OVR OF
APPEALS
2014 APR - f
API 9: 24
IN THE COURT OF APPEALS OF THE STATE OF WASHING huj "• TON
y
DIVISION II
STATE OF WASHINGTON, No. 43532 - -II
2
Respondent,
v.
DONALD WAYNE COREY, . UNPUBLISHED OPINION
Appellant.
WORSWICK, C. J. — A jury returned verdicts finding Donald Wayne Corey not guilty of
indecent liberties with forcible compulsion, not guilty of second degree rape, and guilty of the
lesser- degree offense of third degree rape. Corey appeals his conviction, asserting that the trial
court erred by instructing the jury on the uncharged lesser- degree offense of third degree rape.
Because the evidence at trial supported a jury finding that Corey engaged in nonconsensual
sexual intercourse with the victim without forcible compulsion, we hold that the trial court did
noterrhy_
instructing the jur__on the lesser =
y degree offense of third degree rape a thus, we
d
affirm Corey' s conviction.
FACTS
One evening in 2012, 19- year -old AB went to a motel in Vancouver, Washington to visit
her 17- year -old friend ARB. 1 ARB was staying at the motel with her aunt and had invited AB to
1 We identify the sex crime victim and the juvenile witness by their -
initials to protect their
privacy interests. General Order 2011 -1 of Division II, In Re the Use ofInitials or Pseudonyms
for Child Witnesses in Sex Crimes ( Wash. Ct. App.), available at
appellate and trial courts.
http: / /
www.courts. wa.gov /
No. 43532 -2 -1I
the motel to use the pool and hot tub. AB and ARB entered the hot tub and began conversing
with a couple. Sometime after the couple left the pool area, Corey entered the hot tub and began
speaking with AB and ARB in a sexual manner. AB told Corey that she was 16 years old, that
she was not interested in men, and that she was dating ARB. Corey, who was then 63 years old,
told AB that he has had several girlfriends that were younger than her. Corey also asked AB if
she wanted to go to a nearby sex store with him; AB told him no.
While in the hot tub, Corey began rubbing AB' s leg. AB pushed Corey' s hand away and
moved to the other side of the hot tub. Corey moved next to AB, slowly put his hand up her
shorts, and tried to touch her private areas. AB told Corey to stop and that she didn' t like to be
touched. Corey laughed and told AB that he wasn' t going to hurt her. According to AB, Corey
then tried to " cram his fingers inside" her. Report of Proceedings ( RP) at 68. When asked to
this statement, AB replied, " He tried to forcibly put his fingers inside of me." RP at
elaborate on
68.
AB left the hot tub and sat on the side of the pool. Corey entered the pool and tried to
A
pull = irivGith Iiirn A- " old-Cifey t- stop touching heraril pushed_
B o= - hirriaway AB then-left "- – "-
the pool and got back in the hot tub. Corey followed AB into the hot tub and bit her on the chest.
Corey also took off his shorts and touched AB on her back with his penis. Corey also touched
the inside of AB' s thighs and, when AB pushed his hand away, pushed his hand up further and
digitally penetrated her vagina. AB pushed Corey back, saw ARB' s aunt walking by, and left
the pool area.
When AB and ARB got back to the motel room, ARB' s aunt encouraged AB to report the
incident to the front desk. After reporting the incident to the front desk, AB left the motel.
2
No. 43532 - -II
2
Following an investigation, the State charged Corey with indecent liberties with forcible
compulsion and second degree rape.
At trial, over defense objection, the trial court instructed the jury on the offense of third
degree rape. The jury returned verdicts finding Corey not guilty of indecent liberties with
forcible compulsion, not guilty of second degree rape, and guilty of third degree rape. Corey
timely appeals his conviction.
ANALYSIS
Corey contends that the trial court erred by instructing the jury on the lesser- degree
offense of third degree rape. We disagree.
Generally, a criminal defendant may only be convicted of crimes charged in the State' s
information. State v. Tamalini, 134 Wn.2d 725, 731, 953 P. 2d 450 ( 1998). But, under RCW
10. 61. 003, a criminal defendant may also be convicted of a lesser -degree offense to a crime
charged in the information. State v. Fernandez- Medina, 141 Wn.2d 448, 453, 6 P. 3d 1150
2000). RCW 10. 61. 003 provides:
IIpori an indictmentor information foxa-
ioffense =
consistingof-differeffdegrees,
the jury may find the defendant not guilty of the degree charged in the indictment
or information, and guilty of any degree inferior thereto, or of an attempt to
commit the offense.
A trial court may instruct the jury on a lesser -degree offense only when the following
factors are met:
1) the statutes for both the charged offense and the proposed inferior degree
offense ` proscribebut 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."
3
No. 43532 - -II
2
Fernandez-Medina, 141 Wn.2d at 454 ( quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d
381 ( 1997)). Corey challenges the third factor, arguing that the evidence at trial was insufficient
to establish that he had committed only third degree rape.
When determining whether the evidence at trial was sufficient to support the trial court' s
giving of a lesser -degree offense jury instruction, we view the supporting evidence in the light
most favorable to the instruction' s proponent, here the State. Fernandez- Medina, 141 Wn.2d at
455 -56. But such supporting evidence must consist of more than the jury' s disbelief that the
defendant committed the greater- degree offense and, instead, must affirmatively establish that
the defendant committed the lesser -degree offense. Fernandez- Medina, 141 Wn.2d at 456. A
trial court should give a requested lesser- degree jury instruction "` [i] f the evidence would permit
a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater. '
Fernandez- Medina; 133 Wn.2d at 456 ( quoting State v. Warden, 133 Wn.2d 559, 563, 947 P. 2d
708 ( 1997)). A trial court' s decision about whether to instruct on a lesser- degree offense
involves the application of law to facts, which we review de novo. Fernandez- Medina, 141
Wri:2dat454 (stating three =arttesftliafincludeslegal arilfactualcomponents); State T.
a p -
Dearbone, 125 Wn.2d 173, 178, 883 P. 2d 303 ( 1994) ( noting that mixed questions of law and
fact are reviewed de novo).
Here, the State charged Corey with second degree rape under RCW 9A.44. 050( 1)( a).
RCW 9A.44. 050( 1)( a) defines second degree.rape as follows:
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.
No. 43532 -2 -II
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 Wright, 152 Wn. App. 64, 71, 214 P. 3d 968 ( 2009) ( quoting State v.
McKnight, 54 Wn. 521, 528, 774 P. 2d 532 ( 1989)). In other words, " Forcible compulsion
App.
is not the force inherent in any act of sexual touching, but rather is that `used or threatened to
overcome or prevent resistance by the [ victim].'" State v. Ritola, 63 Wn. App. 252, 254 -55, 817
P. 2d 1390 ( 1991) ( quoting McKnight, 54 Wn. App. at 527).
Third degree rape is an inferior degree offense of second degree rape. State v. leremia,
753, 899 P. 2d 16 ( 1995). Former RCW 9A. 44. 060( 1)( a) ( 1999) defined third
78 Wn. App'. 746,
degree rape as follows:
A person is guilty of rape in the third degree when, under circumstances not
constituting rape in the first or second degrees, such person engages in sexual
intercourse with another person, not married to the perpetrator . [ w]here the
victim did not consent as defined in RCW 9A.44. 010( 7)[ 2] to sexual intercourse
with the perpetrator and such lack of consent was clearly expressed by the
victim' s words or conduct.
Here, the evidence presented at trial.was sufficient to support the jury finding that AB, by
her words or conduct, clearly expressed a lack of consent to engage in sexual intercourse with
Corey. AB testified that after Corey made sexual advances toward her, she told him that she was
not interested in men and that she was in a relationship with ARB. Then, when Corey began
rubbing her leg, AB pushed his hand away and moved away from him. And when Corey tried to
put his hand in AB' s shorts and tried to touch her private areas, AB told him to stop and that she
2
Under RCW 9A. 44. 010( 7), "` consent' means that at the time of the act of sexual intercourse or
sexual contact there are actual words or conduct indicating freely given agreement to have sexual
intercourse or sexual contact."
No. 43532 - -1I
2
did not want to be touched. AB again told Corey to stop touching her and pushed him away after
he pulled her into the pool.
The evidence also supported a reasonable inference that any force used by Corey to
achieve sexual intercourse with AB was not "` more than that which is normally required to
achieve penetration.'" Wright, 152 Wn. App. at 71 ( quoting McKnight, 54 Wn. App. at 528).
With regard to AB' s testimony about Corey rubbing her leg, initially trying to touch her private
areas, biting her chest, and touching her back with his penis, AB did not describe any force used
by Corey beyond that which was required to make physical contact with her. And although AB
testified that at some point in the evening Corey had pulled her shorts down and had "tried to
forcibly put his fingers inside of [her]," she did not elaborate on what she had meant by
forcibly," and did not describe Corey' s level of force or her resistance to such force. RP at 68
emphasis added). Thus, AB' s statement that Corey " forcibly put his fingers inside of [her]" did
not preclude a jury from . inding that the level of force Corey used was not more than what was
f
required to achieve sexual intercourse. Similarly, AB' s testimony that she had pushed Corey' s
hand - vvayfrom - ert1 ighsbeforeCorey " ushed his-haa d uptheremore" -ariddigitally - - -- ---- - -------- "-- -
a h p -
penetrated her vagina, did not preclude a jury from finding that Corey' s conduct did not amount
to forcible compulsion. RP at 75.
Corey argues that State v. Charles, 126 Wn.2d 353, 894 P. 2d 558 ( 1995), and Wright
require us to reverse his third degree rape conviction. But Charles and Wright are clearly
distinguishable from the present case. In Charles, the victim testified that the defendant
grabbed her around the shoulders. He then walked her past two houses and
pushed her onto her back on the ground behind a bush. He took off her shoes, T-
shirt, and socks, and removed her jeans and underpants. She pleaded
partially
with him to stop, struggled, scratched him, and may have hit him once. He then
6
No. 43532 -2 -II
forcibly engaged in vaginal and oral intercourse with her. [ She] eventually
managed to run away.
126 Wn.2d at 354. In contrast with the victim' s testimony, the defendant in Charles testified that
his sexual intercourse with the victim was consensual. 126 Wn. 2d at 354 -55. Our Supreme
Court held that under these circumstances the trial court erred by instructing the jury on third
degree rape, reasoning that "[ i] n order to find Charles guilty of third degree rape, the jury would
have to disbelieve both Charles' claim of consent and the victim' s testimony that the act was -
forcible. But there is no affirmative evidence that the intercourse here was unforced but still
nonconsensual." Charles, 126 Wn.2d at 356. Similarly in Wright, we held that the trial court
erred by instructing the jury on third degree rape where the victim 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.
152 Wn. App. at 73. In so holding, we reasoned that the evidence at trial did not support a jury
finding that the defendant committed " an unforced, nonconsensual rape." Wright, 152 Wn. App.
at 72.
Here, unlike in Charles and Wright, the evidence at trial supported a jury finding that
Corey did not engage in forcible compulsion to achieve his nonconsensual sexual intercourse
with the victim. In contrast with the State' s evidence in Charles and Wright, in which the
victims had provided detailed testimony regarding the specific instances where the defendants'
exerted force to overcome their physical resistance to sexual intercourse, here AB' s descriptions
of Corey' s conduct in trying to " forcibly put his fingers inside of [her]" and pushing his hand up
her thighs before digitally penetrating her vagina was vague and did not describe the level of
7
No. 43532 - -II
2
force Corey used to achieve sexual intercourse. Thus, unlike in Charles and Wright, the jury
here•could have believed the victim' s testimony but still have found that the defendant' s conduct
did not amount to forcible compulsion. Accordingly, the trial court did not err by instructing the
jury on third degree rape as a lesser- degree offense of second degree rape, and we affirm Corey' s
conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
8
State Of Washington, V Donald Wayne Corey
Combined Opinion