FILED
JUNE 9, 2015
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31467-7-III
Respondent, )
)
v. )
)
JONATHAN KEENAN GORDON, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - Jonathan Gordon appeals his Franklin County convictions for
second degree rape and second degree assault with sexual motivation, contending that his
time for trial right was violated and the evidence did not support the convictions. His
claims are without merit and we affirm.
FACTS
Mr. Gordon was charged after hospital staff reported to the police about injuries
suffered by the victim, B.B. She explained to officers that Mr. Gordon told her he was
going to rape her and took her into his bedroom. Several butcher knives were placed
throughout the room. Sexual intercourse then occurred during the course of which he
repeatedly struck her, bit her, and choked her.
No. 31467-7-III
State v. Gordon
Mr. Gordon was arraigned and trial was initially scheduled for February 22, 2012.
That date was continued to April 25, 2012; Mr. Gordon signed a waiver of his time for
trial rights. The new trial date was stricken when Mr. Gordon failed to appear for trial. It
later was discovered that he was jailed in a neighboring county on additional charges. He
eventually was convicted there and sent to prison. He subsequently was transported to
Franklin County for trial.
Upon his reappearance, trial was scheduled for November 28,2012. The parties
agreed to a two week continuance to December 12th in order for the defense to subpoena
its witnesses. The new date, however, conflicted with the treating physician's vacation
trip out of the country, leading the prosecutor to request another continuance. The
defense did not object to any of the scheduled trial dates. Trial began January 9, 2013,
approximately 15 months after arraignment.
The jury convicted Mr. Gordon on the two noted charges and also found that the
assault was committed with sexual motivation. The court set the minimum term on each
count within the standard range. Mr. Gordon then timely appealed to this court.
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ANALYSIS
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The appeal presents a rule-based challenge to the timeliness of trial as well as a
claim of evidentiary sufficiency. We address the time for trial claim first. I
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No. 31467-7-II1
State v. Gordon
Time for Trial
This issue is largely driven by Mr. Gordon's pro se l arguments as both counsel
agree that there was no violation ofCrR 3.3. We concur in counsel's assessment. There
was no violation of the court rule.
In its most basic terms, the rule requires trial within 60 days of arraignment if the
defendant is held in custody on the pending chargee s) or 90 days if the defendant is not in
custody. CrR 3.3(b); (c)(l). The same time periods apply if a new commencement date
is required for any of several reasons listed in CrR 3.3(c)(2), including the failure of the
defendant to appear for court proceedings. CrR 3.3(c)(2)(ii).
A timely written objection to a trial date scheduled outside the requirements of the
rule must be brought to the court's attention by motion or the defendant loses the
opportunity to object. CrR 3.3(d). Various factors also act to exclude time from the 60
or 90-day trial period, including proceedings on unrelated charges. CrR 3.3(e)(2).
Whenever any period of time is excluded, there is a 30-day minimum period of time
within which to bring a case to trial. CrR 3.3(b)(5). Finally, even if the trial period
passes without trial, a five day cure period may be invoked. CrR 3.3(g).
I Mr. Gordon filed a lengthy Statement of Additional Grounds. Much of it repeats
arguments in the briefs and the rest of it makes either factual allegations unsupported by
the record or presents insufficiently supported legal arguments. For all of those reasons,
we do not otherwise address this filing. RAP lO.lO(a), (c).
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No. 31467-7-II1
State v. Gordon
With these principles in mind, Mr. Gordon's time for trial argument fails on
numerous grounds. First, our record contains no written objections and no motion
challenging any trial date. Thus, he has waived any claimed violation of the rule. CrR
3.3(d)(4). Second, his failure to appear for trial in Franklin County led to a new
commencement date in the fall of2012. His continuance of the new trial to December
12,2012 resulted in an excluded period of time and an additional 30 days within which to
bring the case to trial. CrR 3.3(b)(5); (d)(3). Trial commenced on January 9, 2013, a
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date within the 30-day period. Finally, the excluded periods created by both the defense
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continuance to December 12 and the State's continuance to January 9, 2013 also meant I
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that the 90-day time for trial period never expired following the new commencement I
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date. I
F or all of these noted reasons, there was no violation of CrR 3.3.
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Sufficiency ofthe Evidence
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The remaining issue is whether the evidence supported both jury verdicts. With
proper deference to the fact-finding function of the jury, the evidence amply supported
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the verdicts. II
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Evidentiary sufficiency challenges are reviewed to see if there was evidence from ~
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which the trier of fact could find each element of the offense proven beyond a reasonable
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doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980) (citing Jackson v. f
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Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing I
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No. 31467-7-II1
State v. Gordon
court will consider the evidence in a light most favorable to the prosecution. ld.
Reviewing courts also must defer to the trier of fact "on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150
Wn.2d 821, 874-75, 83 P .3d 970 (2004). "Credibility determinations are for the trier of
fact and are not subject to review." ld. at 874.
Mr. Gordon largely reargues the case, but this court's focus is on whether there
was evidence to support each of the elements of the charged offenses rather than which
side's evidence was more believable. 2 With respect to the rape count, that required
evidence that Mr. Gordon had sexual intercourse with B.B. by forcible compulsion.
Clerk's Papers (CP) at 73. Forcible compulsion includes a threat or any physical force
that overcomes resistance to the intercourse. CP at 75. On the assault count, the State
was required to prove that Mr. Gordon assaulted B.B. by strangulation. CP at 77-78.
As to the assault count, B.B. testified that he strangled her. That testimony alone
was sufficient to support the verdict. On the rape count, she testified that his stated intent
to rape her, accompanied by the display of the butcher knives in the bedroom, forced her
compliance in order to preserve her life. Even at that, Gordon physically abused her in
several different ways that also had the effect of overcoming any resistance. Again, the
2 Even if we weighed credibility, Mr. Gordon's argument would fail. Both of his
housemates confirmed much of the testimony ofB.B., including the fact that sexual
intercourse occurred, contrary to the defendant's own testimony.
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No. 31467-7-II1
State v. Gordon
evidence of the threat and the actual physical force each supported the jury's
determination that intercourse was accomplished by forcible compulsion.
The evidence was sufficient to support both verdicts. The convictions are
affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey J.
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