IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KATHERINE FRAY obo E.F.,
DIVISION ONE
Respondent,
No. 81741-8-I
v.
UNPUBLISHED OPINION
Z.C.,
Appellant.
DWYER, J. — Z.C. appeals from a sexual assault protection order entered
against him. Z.C. contends that the trial court erred by making a factual finding
that he sexually assaulted E.F. Because substantial evidence supports the trial
court’s finding, we affirm.
I
Fifteen-year old E.F. and sixteen-year-old Z.C. dated from November
2019 through January 2020. During this period, two sexual encounters occurred.
According to E.F., both were sexual assaults. According to Z.C., both were
consensual.
On December 10, 2019, Z.C. and E.F. were at E.F.’s home. According to
Z.C., E.F. led him upstairs to her bedroom where they undressed themselves
and engaged in sexual intercourse. Z.C. heard the garage door open, indicating
that E.F.’s mother had arrived home. The teens stopped sexual contact, went
downstairs, and spent the rest of the afternoon in E.F.’s living room. E.F.
testified that on December 10 she did not want to have intercourse with Z.C. But
No. 81741-8-I/2
she concedes that she did not say anything to “indicate to him that this was not
something [she] wanted.” Later that evening, E.F. and Z.C. had the following
exchange via text message:
E.F: Wow today was like
E.F: Wow
Z.C: Yeah it was
...
E.F.: I love you
Z.C.: I love you too babe
Z.C.: How are you feeling?
E.F.: I’m feeling pretty HAPPY
E.F. testified that when she texted “Wow,” she “meant it in a negative-like
way because [she] was not happy with [herself].” In reference to her text
message stating that she was “feeling pretty HAPPY,” E.F. testified that she was
happy that her father had driven her to school that morning.
On January 28, 2020, Z.C. and E.F. were in E.F.’s living room. According
to E.F, Z.C. told her that “I just want to stick it in you once” before going upstairs.
E.F. testified that she began having a dissociative episode. E.F. followed Z.C.
upstairs and into her bedroom in her dissociative state and they each undressed.
E.F. testified that the next thing she remembered was looking down at herself
and seeing semen seeping out of her vagina, while Z.C. quickly got up from on
top of her and left the room. E.F. also stated that she believes that prior to
intercourse, Z.C. asked “Are you sure that you want to do this?” But she did not
remember if or how she responded. E.F. testified that she felt overpowered and
overwhelmed, and was unable to speak because she was in shock and
“extremely fearful.”
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No. 81741-8-I/3
Z.C. testified to a somewhat different course of events. According to Z.C.,
before they went upstairs, E.F. and Z.C. were kissing and “touching each other
sexually.” Z.C. asked E.F. if she wanted to have sex, and E.F. replied that she
could not do so because her mother was in the next room. E.F. then led Z.C. to
an upstairs bathroom, where she performed oral sex on Z.C.1 Afterward, E.F.
and Z.C. went to E.F.’s bedroom, where they undressed and lay down on E.F.’s
bed. E.F. guided Z.C.’s penis into her vagina, and they engaged in brief sexual
intercourse before Z.C. ejaculated. Later that evening, Z.C. ended his
relationship with E.F. by means of the following exchange of text messages:
Z.C.: hey
E.F.: hey
Z.C.: i’m sorry
Z.C.: idk,
E.F.: why babe
Z.C.: i shouldn’t of done what i did
E.F.: are you mad at me tho?
Z.C.: with someone i don’t love
Z.C.: no
Z.C.: i’m mad at me
Z.C.: like i hate myself rn
E.F.: i don’t know what to say
Z.C.: same
Z.C.: …
Z.C.: i shouldn’t of done that I’m sorry
Z.C.: it’s nothing you did
Z.C.: your perfect
Z.C.: pretty, and smart
E.F.: yea…
Z.C.: i don’t want to hurt you
Z.C.: I’m sorry
E.F.: what are you saying?
Z.C.: …
Z.C.: after we like, you know
Z.C.: it made me feel like sick to the core, like i shouldn’t be doing
that with you
1 E.F. denies that fellatio took place and the alleged act of fellatio was not relied upon by
the trial court to support the order entered.
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No. 81741-8-I/4
Z.C.: like i wanted it but, idk…i am naïve
Z.C.: i just don’t feel the same with you as I did a few months ago,
like after we did it for the first time…idk everything changed
The following day, E.F. told her mother that Z.C. had sexually assaulted
her. E.F. and Z.C. exchanged text messages conversationally in early February.
At approximately 1:00 a.m. on February 11, after a conversation in which E.F.
and Z.C. had each accused the other of “using” one another, they had the
following discussion via text message:
Z.C.: what we did, was it mutual?
E.F.: no it wasn’t mutual…please stop playing victim, you’re the one
who used me, also I’m not going to talk to you in person because
this is finished, and there’s no negotiating anything at all. I don’t
want anything to do with you, and i think that you should leave me
alone from here on out for good, and that it’s best to part ways and
to avoid each other. i don’t feel comfortable or have the want to be
your friend or even in your life, and you need to just move on and i
please leave me alone. i don’t think there should be any more
“talking” about any of this just over text. if you want to further talking
about it i want an adult present in the room. i don’t feel comfortable
talking to you just alone. because if feel like you used me.
Z.C.: i don’t think you fully understand my side of the situation
here…I’m not trying to play a victim here…you hurt me with all the
talk behind my back…i didn’t want to break up with you before the
dance i was just hesitant because of what happened last year. if
you want to move on then I’m fine with that, i want to move on as
well, i never used you, i understand the timing was terrible and i am
sincerely sorry for that.
E.F.: look, I never talked anything behind your back and I have no
idea what you’re even talking about, so don’t even put this on me.
but I don’t bother to even know so don’t care to explain it to me. I’m
glad you agree about moving on. So this is goodbye, don’t ever
approach me or talk to me again in person or over text please, and
keep my name out of your mouth, and I’m not trying to be mean,
I’m saying that to get this across to you. You deserve to be sorry for
what you did to me. And I don’t want you to ever associate with me
ever again. So goodbye [Z.C.]
Z.C.: [E.F.], I’m sorry about that, I was angry and I let my emotions
get the best of me. I shouldn’t of blamed you and I shouldn’t have
been angry and toxic toward you. I want you to understand that I
never, never ever wanted you to feel like I used you. It never
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No. 81741-8-I/5
passed my mind that I would use you for that purpose. I can’t
possibly understand how much you must be hurt right now. I really
want to tell you how stupid and how much of a jerk I was toward
you. I thought we both wanted it that night and if I hurt you in any
way, physically or mentally I take full responsibility. I know you hate
me and you are entitled to that. I agree, we should take a long time
apart and not intervene with each others life’s. I am sorry. ~ [Z.C.]
Z.C. testified that he asked E.F. “was it mutual?” because he had heard a
rumor around school that the encounter was not consensual.
On May 15, 2020, E.F.’s mother filed a petition for a sexual assault
protection order on her daughter’s behalf. The petition alleged that, since being
sexually assaulted, E.F. has experienced flashbacks, panic attacks, and suicidal
ideation, and that the sexual assault triggered posttraumatic stress disorder from
another time in E.F.’s life. E.F.’s therapist, Spring Hecht, testified in a
declaration. Hecht began treating E.F. in June 2019, prior to the incidents at
issue. On January 29, E.F. contacted Hecht and expressed that she was “feeling
‘stressed out’ (fear/anxiety/shame) because she had intercourse with a boy from
school named, [Z.C.]” and that she had not consented to intercourse. Hecht also
testified that E.F. felt embarrassed to tell her parents, worried about the
possibility of pregnancy, and that E.F. reported experiencing an anxiety attack at
school.
The trial court found that E.F. was not credible with respect to the incident
on December 10, 2019, and that she had failed to prove that the sexual
encounter on that date was nonconsensual. However, the trial court found that
the incident on January 28, 2020 was nonconsensual sexual conduct, and
granted a sexual assault protection order.
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No. 81741-8-I/6
Z.C. appeals.
II
Z.C. contends that the trial court erred by finding that the sexual encounter
on January 28, 2020, was nonconsensual. Because substantial evidence
supports the trial court’s finding, we disagree.
When a superior court makes findings of fact, those findings are verities
on appeal when they are supported by substantial evidence. Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 819, 828 P.2d 549 (1992). “Substantial
evidence is evidence in sufficient quantum to persuade a fair-minded person of
the truth of the declared premise.” Holland v. Boeing Co., 90 Wn.2d 384, 390-91,
583 P.2d 621 (1978).
“Where there is conflicting evidence, it is not the role of the appellate court
to weigh and evaluate the evidence.” Burnside v. Simpson Paper Co., 66 Wn.
App. 510, 526, 832 P.2d 537 (1992), aff’d, 123 Wn.2d 93, 864 P.2d 937 (1994).
Rather, our “role is simply to determine whether substantial evidence supports
the findings of fact and, if so, ‘whether the findings in turn support the trial court’s
conclusions of law.’” In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d
144 (1999) (quoting Org. to Preserve Agric. Lands v. Adams County, 128 Wn.2d
869, 882, 913 P.2d 793 (1996)). “Questions of credibility are left to the trier of
fact and will not be overturned on appeal.” State v. Boot, 89 Wn. App. 780, 791,
950 P.2d 964 (1998). Moreover, in conducting our review, we view the evidence
in the light most favorable to the prevailing party. Scott’s Excavating Vancouver,
LLC v. Winlock Props., LLC, 176 Wn. App. 335, 342, 308 P.3d 791 (2013).
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No. 81741-8-I/7
Z.C. asserts that the only evidence presented that E.F. did not consent to
the sexual encounter on January 28 was her text message several weeks later
saying “no it wasn’t mutual.” But even if we accept Z.C.’s argument that E.F.’s
text message after the fact is insufficient to prove that E.F. did not consent to the
sexual encounter,2 Z.C. is incorrect about the content of the trial court record.
E.F. testified that she did not consent to sexual intercourse with Z.C.
E.F.’s therapist testified that E.F. reported to her that she had not consented to
sexual intercourse with Z.C. On appeal, Z.C. argues that testimony that he
asked E.F. “Are you sure that you want to do this?” prior to intercourse indicates
that E.F. did consent. However, there is nothing in the record indicating that E.F.
answered the question. Without an answer, Z.C.’s inquiry gives rise to
reasonable but competing inferences. A fair-minded person could infer that Z.C.
asked this question because it was not his intention to have sexual intercourse
with E.F. without her consent. However, and to the contrary, a fair-minded
person could instead infer that Z.C. asked this question because he was unsure
about whether E.F. wanted to have sexual intercourse based on her words and
2 Z.C. avers that the trial court erred when it “erroneously focused on words expressed
weeks after the sexual encounter rather than focus on whether at the time of the sexual
encounter, E.F. through her words or conduct expressed to Z.C. at any time her lack of consent
during the sexual encounter.” Br. of Appellant at 32. According to Z.C., our decision in State v.
Duarte Mares, 190 Wn. App. 343, 361 P.3d 158 (2015), requires evidence that E.F. clearly
expressed her nonconsent at the time of the encounter through her words and conduct. Not so.
Duarte Mares interprets the former RCW 9A.44.060, which proscribed rape in the third degree
until July 28, 2019. See Duarte Mares, 190 Wn. App. at 353. The current statute proscribing
rape in the third degree, which was in effect at the time of the events in this opinion, does not
require that the victim clearly express a lack of consent by words or conduct. RCW 9A.44.060 (“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: (a)
where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the
perpetrator.”). Accordingly, even assuming (without announcing) that a “nonconsensual sexual
assault,” as defined by the Sexual Assault Protection Order Act, chapter 7.90 RCW, is limited to
acts that are codified as sex offenses under chapter 9A.44 RCW, Duarte Mares is inapplicable.
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No. 81741-8-I/8
conduct up to that point. Combined with E.F.’s testimony that she was so
shocked and frightened that she was unable to speak, a fair-minded person
could conclude that E.F. did not answer in the affirmative, did not consent to
having sexual intercourse with Z.C., and did not dispel Z.C.’s doubts. When
inferences from the evidence conflict, we will not reassign the weight given to the
evidence by the fact finder. Burnside, 66 Wn. App. at 526.
Moreover, the trial court was under no obligation to find Z.C.’s testimony
convincing. The veracity of both Z.C. and E.F.’s testimony is a credibility
determination. Here, the trial court determined that E.F. was not credible with
regard to the incident on December 10, but was credible as to her description of
events on January 28. It was entitled to do so. Accordingly, substantial evidence
supports the trial court’s finding that the incident on January 28 was
nonconsensual.
Affirmed.
WE CONCUR:
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