129 Wash. 2d 257 | Wash. | 1996
Lead Opinion
— The State of Washington petitions for
QUESTIONS PRESENTED
The questions presented in this case are: (1) whether the mere presence of a firearm on the person of a uniformed and armed police officer while committing rape against a prisoner in custody, without additional evidence of a threat to use the firearm, is sufficient to satisfy the "[u]ses or threatens to use a deadly weapon” element of first degree rape under RCW 9A.44.040(1)(a); and (2) whether the respondent is entitled to attorney fees under RAP 18.1(j) for answering the State’s petition for review, where the petition was granted, and where respondent had not been awarded attorney fees by the Court of Appeals.
STATEMENT OF FACTS
At approximately 2:00 a.m. in the dark and early morning of June 11, 1991, Colville Confederated Tribes Police Officer Fred D. Bright (Respondent) arrested Ms. L.
During the trip from Nespelem to Okanogan, Respondent and Ms. L. started a conversation. After a while, Respondent stopped the automobile and asked Ms. L. if she wanted to move from the back seat to the front seat.
Based upon a complaint made by Ms. L. that Respondent had sexually violated her during the trip, Respondent was charged on June 12, 1991 by information filed in the Okanogan County Superior Court with two counts of rape in the first degree for engaging in sexual intercourse by forcible compulsion and threatening to use a deadly weapon, a "pistol.”
On November 15, 1991, the prosecutor amended the information again, dropping the special deadly weapon al
COUNT NO. I
RAPE IN THE FIRST DEGREE
That on or about the 11th day of JUNE, 1991, in the County of Okanogan, State of Washington, then and there being said defendant did engage in oral sexual intercourse by forcible compulsion with . . . [Ms. L.], where said perpetrator used or threatened to use a deadly weapon, or what appeared to be a deadly weapon to-wit: a Glock 9mm handgun or a 7.62 caliber semi automatic rifle
All contrary to the form of the Statute 9A.44.040(1), the maximum penalty for which is life in a State penal institution and a fine of fifty thousand dollars, in such cases made and provided and against the peace and dignity of the State of Washington.
COUNT NO. II
RAPE IN THE FIRST DEGREE
That on or about the 11th day of JUNE, 1991, in the County of Okanogan, State of Washington, then and there being said Defendant did engage in sexual intercourse by forcible compulsion with . . . [Ms. L.], where said perpetrator used or threatened to use a deadly weapon, or what appeared to be a deadly weapon to-wit: a Glock 9mm handgun or a 7.62 caliber semi automatic rifle
All contrary to the form of Statute 9A.44.040(1), the maximum penalty for which is life in a State penal institution and a fine of fifty thousand dollars, in such cases made and provided and against the peace and dignity of the State of Washington.11
The case was retried on November 18, 1991 before a
What actually happened after Ms. L. moved to the front seat of the patrol car was disputed at trial. Ms. L. testified that shortly after moving to the front seat, Respondent began to fondle her breasts with one hand, while driving with the other.
According to Ms. L., at all times during the encounter Respondent was armed with the handgun he carried in a holster strapped to his waist, and his rifle was on the back seat of the patrol car. Ms. L. stated she was aware of the presence of both weapons during the encounter, but at no
Respondent Bright’s testimony about the encounter was quite different from Ms. L.’s. In the police investigation following Ms. L.’s complaint, Respondent denied that anything happened. When later confronted by investigators with incriminating physical evidence against him, he then admitted the two sex acts, but impressed it with his own version. He testified at trial and admitted both acts. But, according to him, his sexual activity with Ms. L. was consensual. Indeed, he testified it was both initiated and invited by Ms. L.,
Respondent appealed his convictions to the Court of Ap
DISCUSSION
First Degree Rape
Where there is ambiguity in the language of a statute, this court is the ultimate authority to determine its meaning and purpose.
First degree rape is codified in RCW 9A.44.040, which provides in relevant part that:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory: (a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon; or (b) Kidnaps the victim; or (c) Inflicts*266 serious physical injury; or (d) Feloniously enters into the building or vehicle where the victim is situated.29
(Emphasis added).
To convict a person of first degree rape, then, the State must prove beyond a reasonable doubt that the person (1) engaged in sexual intercourse (2) by forcible compulsion and (3) under one of the four possible aggravating circumstances. Because elements one and two are not disputed in this appeal,
The State contends Respondent made an implied threat to use a deadly weapon while committing the rapes and is thus guilty of rape in the first degree. It is undisputed that Respondent did not actually use a weapon
This court has defined "threat,” as used in RCW 9A.44.040(1)(a), as "the expression of an intention to inflict
In both Hentz and Coe the court was concerned that a credible threat to use a deadly weapon made by the perpetrator of a rape could as likely render the victim unable to defend against the rape as it would if the perpetrator actually possessed a deadly weapon.
The State cites State v. Eker in support of its argument on implied threat to use a deadly weapon.
Second Degree Rape
Rape in the second degree is defined by RCW 9A.44.050 as follows:
(1) 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:
*269 (a) By forcible compulsion;
(2) Rape in the second degree is a class A felony.
The trial court properly instructed the jury on the lesser included offense of second degree rape. Under State v. Workman,
In this case, both parts of the Workman test are satisfied. The legal test is met because it is impossible for a defendant to violate the first degree rape statute, which requires forcible sexual intercourse as a necessary element of the offense, without also violating the second degree rape statute, which simply prohibits sexual intercourse by forcible compulsion.
There is sufficient evidence to support a jury’s finding of guilt where, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found each element of the crime beyond a reasonable doubt.
The particular question here is whether Defendant impliedly threatened Ms. L. with a deadly weapon to meet the requirement that he "use[d] or threatened] to use a deadly weapon” for a conviction of first degree rape under RCW 9A.44.040(1). The Legislature has defined a "threat” for purposes of the criminal code as communicating "directly or indirectly, the intent . . . [t]o cause bodily injury in the future to the person threatened or to any other person . . . .”
This court has considered the type of conduct providing sufficient evidence of an implied threat with a deadly
[I]t is clear from the terms of RCW 9A.44.040 (1) (a) that the threat which [the defendant] made in perpetrating the rape, coupled with the circumstances surrounding that threat which lent it credibility, is the crux of his conviction for first degree rape.[60 ]
While in Coe and Hentz the court reviewed the surrounding facts for evidence of the credibility of false threats, in this case we must consider the surrounding facts for evidence of communication of the threat itself.
Respondent Bright evidenced his intent to use his handgun or rifle by his choice to remain armed with the handgun in the holster around his waist, as part of his larger plan to render Ms. L. helpless. In his version of consensual sexual activity, Respondent explained he decided to remain armed because of the difficulty of removing his gun belt.
In rejecting Defendant’s claim of consent, the jury could also reject his explanation of his choice to wear his weapon during the sex acts. Instead, the jury doubtless believed Ms. L.’s testimony that Defendant wore his guns as a threat:
*272 [The State:] . . . Now, what was your feeling about the guns? Will you share with the jury, please? While—During the sexual contact, and while you were in the patrol car, after you had been assaulted?
[Ms. L.:] Well, I knew that he could use them. I knew they were there. He had a gun on his waist. I didn’t feel safe until I was away from him, and his guns, and his car.[62 ]
There is no dispute that a police officer wears a weapon to indicate the officer’s intent to use it to assure compliance with an order. The officer need not expressly threaten the targeted person with the weapon. Both the target and the officer know the threat to use the weapon is implied and inherent in the authority of the police. Generally, we consider as benign a police officer’s implied threat to use a weapon. That implied threat remains, and even increases, when a police officer wears weapons during commission of a crime.
By his knowing decision to remain armed while he assaulted and raped Ms. L., Respondent Bright communicated to his victim his intent to use his weapon if she resisted.
Respondent Bright testified they engaged in consensual sex. Ms. L. testified he raped her. It is the role of the jury to weigh the credibility of this testimony, along with any surrounding facts and circumstances tending to support or discount the two conflicting accounts.
In a case of first degree rape under RCW 9A.44.040 (1) (a), the Legislature has called for the jury as finder of fact to decide not only whether the sexual act was nonconsen
This case personifies the stereotypical rape. Respondent testified he foolishly engaged in consensual sex with an arrested prisoner in his custody, Ms. L. Ms. L. testified he committed forcible rape, threatening her with his authority as a police officer, the evident presence of his service revolver in his holster and a rifle in the back seat of the patrol car, his greater physical size, and the remoteness of the locale where he stopped the car, ordering her to submit to his sexual demand.
The jury obviously believed Ms. L. It properly decided the sum of Defendant’s conduct demonstrated an intent to use his weapons to defeat any resistance by his victim.
Third Degree Rape
We do not agree with the Court of Appeals that the trial court erred in not instructing the jury on third degree rape. RCW 9A.44.060 declares that:
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 ....
(Emphasis added).
It is clear from the evidence in this case that Petitioner committed at least rape in the second degree and that third degree rape was not an appropriate consideration for the jury.
Attorney Fees
Respondent asks for award of attorney fees for legal expenses incurred in answering the State’s petition for review. RAP 18.1(j), which authorizes this court to grant such an award of fees, provides:
If attorney fees and expenses are awarded to the party who*274 prevailed in the Court of Appeals, and if a petition for review to the Supreme Court is subsequently denied, reasonable attorney fees and expenses may be awarded for the prevailing party’s preparation and filing of the timely answer to the petition for review.[64 ]
(Emphasis added).
Respondent was not awarded attorney fees by the Court of Appeals. Nor was the State’s petition for review denied by this court. Respondent has not met the conditions required by RAP 18.2 (j).
CONCLUSION
We reverse the Court of Appeals, reinstating the conviction and sentencing of Respondent Fred D. Bright for two counts of rape in the first degree. We deny Respondent Bright’s request for attorney fees.
Durham, C.J., Dolliver, Guy, and Talmadge, JJ., and Pekelis, J. Pro Tern., concur.
qier actual name is not used in order to preserve her privacy.
Verbatim Report of Proceedings, November 19, 1991, at 1005-06.
Id. at 1006.
Verbatim Report of Proceedings, November 20, 1991, at 1305.
Id.
Id. at 1306.
Clerk’s Papers at 221-22.
Id. at 207-09.
Id.
Id. at 111-12.
Id.
Verbatim Report of Proceedings, November 20, 1991, at 1200.
Id. at 1201.
Id. at 1202-03.
Id. at 1203.
Id. at 1206.
Id.
Id. at 1207.
Id. at 1253.
Id. at 1205-06.
Id. at 1309-16.
Id. at 1308.
It is an abuse of formal courtroom protocol to address adult participants by first names only or nicknames without courtesy titles. In this case both counsel for the State and defense throughout the trial addressed or referred to the victim, a 24-year-old woman, by her first name only. In his testimony, Petitioner Bright even referred to his victim by her nickname only, an arrogant depersonalization of the defenseless prisoner, whom he did not know before arresting her, taking her into custody and subjecting her to two sex acts while transporting her to a distant jail in the dark early morning hours. Participants in all court proceedings are entitled to be addressed with courtesy titles, such as
State v. Bright, 77 Wn.App. 304, 309, 890 P.2d 487 (1995).
See State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314 (1992).
Id.
See State v. Hentz, 99 Wn.2d 538, 539, 663 P.2d 476 (1983).
See City of Pasco v. Public Employment Relations Comm’n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992).
RCW 9A.44.040.
By finding Respondent "guilty” of two counts of first degree rape, the jury necessarily concluded he twice engaged Ms. L. in sexual intercourse by forcible compulsion. See Clerk’s Paper’s at 65-67. There is sufficient proof of an element of a crime to support a jury’s verdict when, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that element beyond a reasonable doubt. State v. Bingham, 105 Wn.2d 820, 823, 719 P.2d 109 (1986). In this case, a rational jury could have found beyond a reasonable doubt that Respondent, by forcible compulsion, twice engaged Ms. L. in sexual intercourse. See generally Verbatim Report of Proceedings, November 20, 1991, at 1176-1281.
A defendant is considered to have "used” a deadly weapon for purposes of RCW 9A.44.040(l)(a) if the defendant either pointed a firearm at the victim, or actually shot at the person with the firearm. See Hentz, 99 Wn.2d at 541.
Pet. for Discretionary Review at 5.
Hentz, 99 Wn.2d at 541. See also RCW 9A.04.110(25)(a) (defining "threat” as the communication, directly or indirectly, of an intention "[t]o cause bodily injury in the future to the person threatened or to any other person”.).
Hentz, 99 Wn.2d at 541.
Id. at 540.
Id. at 541. The fifth justice concurred only on the conclusion there was some evidence the defendant had a real deadly weapon at the time of the rapes. Hentz, 99 Wn.2d at 546 (Dore, J. concurring).
State v. Coe, 109 Wn.2d 832, 844, 750 P.2d 208 (1988) (Utter and Goodloe, JJ., and Cunningham, J. Pro Tern., concurring with Dolliver, J.; four justices dissented on issues not relevant to this quote).
See Hentz, 99 Wn.2d at 544 ("This type of threat is equally terrifying and effective whether or not the perpetrator actually possesses a deadly weapon, in light of the personal nature of the crime and the inability of a victim to defend against a bullet or other deadly force.”) (Dimmick, J.) and Coe, 109 Wn.2d at 845 ("|T]he effect upon the victim is the same whether the deadly weapon is actually seen or merely described, by removing the possibility of self- defense.”) (Dolliver, J. (citing Hentz, 99 Wn.2d at 544)).
State v. Eker, 40 Wn.App. 134, 697 P.2d 273, review denied, 104 Wn.2d 1002 (1985).
Id. at 136.
Id.
Id.
Id.
Eker, 40 Wn.App. at 136.
Id.
Id. at 139.
State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).
Id. at 447-48.
See State v. Davis, 121 Wn.2d 1, 5-6, 846 P.2d 527 (1993).
State v. Harris, 121 Wn.2d 317, 320, 849 P.2d 1216 (1993).
See RCW 9A.44.040 and ROW 9A. 44.050; see also State v. Brown, 127 Wn.2d 749, 754, 903 P.2d 459 (1995) (first part of the Workman test satisfied where defendant was charged with first degree rape, and jury was instructed on second degree rape as lesser included offense).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Gosby, 85 Wn.2d 758, 766, 539 P.2d 680 (1975).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
RCW 9A.04.110(25) (a).
See RCW 9A.04.110 (25) (a); Delmarter, 94 Wn.2d at 638.
109 Wn.2d 832, 844, 750 P.2d 208 (1988).
99 Wn.2d 538, 541, 663 P.2d 476 (1983).
See Coe, 109 Wn.2d at 844; Hentz, 99 Wn.2d at 541.
Hentz, 99 Wn.2d at 545; Coe, 109 Wn.2d at 847; see also State v. Bowman, 36 Wn. App. 798, 804 678 P.2d 1273 (credible threat to use gun sufficient where actually possessed toy gun), review denied, 101 Wn.2d 1015 (1984); State v. Ingham, 26 Wn. App. 45, 52, 612 P.2d 801 (threat of knife to silence victim sufficient despite no use or display), review denied, 94 Wn.2d 1008 (1980).
See Coe, 109 Wn.2d at 844; Hentz, 99 Wn.2d at 541.
8 Verbatim Report of Proceedings at 1281 (Nov. 20, 1991).
See Ingham, 26 Wn. App at 52 (holding express threat with undisplayed knife to gain victim’s silence implied threat of bodily injury to commit rape).
RAP 18.1(j).
See Metzner v. Wojdyla, 125 Wn.2d 445, 452, 886 P.2d 154 (1994) (denying request for attorney fees under RAP 18.1(j) where requesting party had not been awarded attorney fees by Court of Appeals).
Dissenting Opinion
(dissenting) — The majority opinion in this case upholds Respondent’s convictions even though there is no evidence supporting the crime of rape in the first degree. Rape in the first degree requires proof that the defendant used or threatened to use a deadly weapon to compel sexual intercourse. I do agree with the majority that the threat to use a deadly weapon may be communicated indirectly and could include conduct such as suggestively looking at or referring to a weapon possessed by a defendant. However, in this case, the State presented no evidence that Officer Bright suggestively looked at or
At most, the evidence in this case supports a finding that Bright was armed with a deadly weapon when he committed the crimes in this case. By affirming the first degree rape conviction on the evidence presented, the majority has, in effect, created a new category of first degree rape for armed police officers. This result is not authorized by the statute. I therefore dissent.
In my view, the majority can reach its decision only by misreading RCW 9A.04.110(25)(a), defining "threat.” The decision either renders the word "communication” meaningless despite its inclusion in the Legislature’s definition of "threat,” or misinterprets the word "communication” in a way that is contrary to its plain and ordinary meaning.
Each word of a statute must be accorded meaning, for the Legislature is presumed not to have used superfluous words. State v. Fenter, 89 Wn.2d 57, 60, 569 P.2d 67 (1977) (citing State v. Lundquist, 60 Wn.2d 397, 403, 374 P.2d 246 (1962)). "Threat,” as defined by the Legislature, means "to communicate, directly or indirectly the intent . . . [t]o cause bodily injury . . . .” RCW 9A.04.110(25)(a). Taken together with the definition of first degree rape, the central issue is whether Respondent communicated an intent to cause bodily injury through the use of a deadly weapon.
In this case, it is the communication of intent which is at issue. The majority overlooks the communication element, however, and proceeds as if the issue was the defendant’s intent to use a deadly weapon. The majority borrows its analysis from State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980), in which the court stated that
In previous cases involving first degree rape, our courts have found that the defendants’ or their accomplices’ words or actions constituted direct or indirect communication of intent to use a deadly weapon. See State v. Coe, 109 Wn.2d 832, 835-36, 750 P.2d 208 (1988) (the defendant told his victims that he had a knife); State v. Hentz, 99 Wn.2d 538, 539, 663 P.2d 476 (1983) (the defendant produced a gun and threatened to shoot the victim if she did not do as he said); State v. Eker, 40 Wn. App. 134, 136, 697 P.2d 273 (the defendant’s accomplice emerged from the trailer displaying a pistol and ordered the victim to go inside), review denied, 104 Wn.2d 1002 (1985); State v. Ingham, 26 Wn. App. 45, 47, 612 P.2d 801 (the defendant told his accomplice in the presence of the victim, "You have that knife, use it.”), review denied, 94 Wn.2d 1008 (1980). In the case at bar, the majority, in effect, writes the word "communication” out of the Legislature’s definition of "threat.”
The majority also violates the principle that words in a statute be given their usual and ordinary meaning when the Legislature has not expressed a contrary intent. Strenge v. Clarke, 89 Wn.2d 23, 28, 569 P.2d 60 (1977). In its ordinary meaning, "communicate” means to make known, inform a person of, or convey information to another. The majority argues that Respondent indirectly communicated his intent to use a deadly weapon through five factors: his authority as a police officer, the presence
As a matter of law, however, none of the majority’s five factors, separately or taken together, support a finding that Officer Bright communicated an intent to use a deadly weapon to compel intercourse with the victim here. First, the majority inappropriately considers Respondent’s authority as a police officer. The majority argues that the police have special authority which carries an implied threat that officers will use firearms to obtain compliance. Majority at 272. In effect, the majority creates a special category of first degree rape for police officers in full uniform which includes a firearm. According to the majority’s view of police authority, juries may find a police officer guilty of first degree rape and find a civilian defendant guilty of only second degree rape, even if the defendants said and did the same things while committing the crimes. The Legislature used no language to authorize such uneven application of the statute.
The second factor, the presence of weapons on Officer Bright and in his patrol car, is also an inappropriate consideration. As stated above, police officers have no choice about wearing a weapon; it is part of the uniform. Moreover, other statutes address the mere presence of weapons on a person during the commission of a crime. Specifically, RCW 9.94A.310 and RCW 9.95.040 impose more severe penalties for a defendant who is "armed with” a firearm while committing a felony. RCW 9.94A.310(3)(a) increases the presumptive range for rape in the first degree by 24 months. RCW 9.95.040 limits the discretion of the Board of Prison Terms and Paroles in fixing the minimum term of confinement. A prosecutor must make a special deadly weapon allegation in order to use the enhanced penalty provisions. See State v. Cosner, 85 Wn.2d 45, 50, 530 P.2d 317 (1975).
While the prosecutor in this case initially added a special deadly weapon allegation, he later abandoned it.
The remaining three factors are also inappropriate. Although the size of a- defendant could be an appropriate consideration in certain circumstances, size is irrelevant to a person’s ability to make threats to use a firearm. Similarly, use of physical force is an inappropriate consideration because the first degree rape statute clearly distinguishes between defendants who use nondeadly physical force and those who use or threaten to use deadly force. Finally, criminals often choose remote locations to avoid detection. Respondent Bright’s choice of location sheds no light on whether he threatened to use a firearm. As a matter of law, these factors are insufficient to aggravate second degree rape to first degree rape.
The factors listed by the majority do support a finding that Ms. L. found herself in a frightening situation. She was in a remote location. She was in the lawful custody of her attacker, an armed police officer. Ms. L. may have been afraid that the officer might use his pistol or rifle if she tried to escape.
The bottom line is that the majority affirms Officer Bright’s conviction for first degree rape because he was armed with a deadly weapon even though first degree rape requires more — that he use or threaten to use a deadly weapon. The majority uses irrelevant factors to bolster a decision which fails to heed the plain language the Legislature used to define the word "threat.” This court should reverse the convictions for rape in the first degree.
Reconsideration denied July 15, 1996.
Although not at issue in this case, if a victim is particularly vulnerable, or a defendant violates a position of trust, an exceptional sentence might be warranted. See ROW 9.94A.390.
