Opinion
No. 54073-4-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-07677-1. Judgment or order under review. Date filed: 04/02/2004. Judge signing: Hon. Steven Scott.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric J. Nielsen, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Alice Degen, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Luis Moreno appeals his conviction of second degree rape, arguing that the trial court improperly denied his request to instruct the jury on third degree rape. Moreno further argues that the prosecutor's alleged misconduct during closing argument deprived him of a fair trial. We hold that the factual prong of the controlling test is not satisfied, and thus an infeor degree instruction was unwarranted. Moreover, Moreno fails to demonstrate a substantial likelihood that the prosecutor's statements during closing affected the jury's verdict. There being no other persuasive basis to challenge the decision below, we affirm.
On August 2, 2003, around 2:00 a.m., after an evening of heavy drinking, Candice Ransom returned to the apartment of her friends, Joshua and Jera Martin, and fell asleep at the foot of their bed. At about 5:00 a.m., Ransom awoke to find a man on top of her and felt the man's penis partially penetrating her. She then felt the man force her legs open and his tongue touch her vagina. Ransom put her knees up and tried to roll over. She then fell back asleep, thinking she was dreaming. Later, Ransom remembered that the man on top of her wore a white shirt, had a dark complexion, and lots of hair. There was a beer bottle next to Ransom when she woke up.
Also around 5:00 a.m., Ransom's friend, Jera Martin, awoke to check on her crying daughter. Jera saw a man running down the stairs and became alarmed about a stranger in her home. Joshua then woke up and searched for the intruder. He went to the back door and spotted Moreno. Ransom saw Moreno while Joshua confronted him on the outside back deck of the apartment. Moreno's pants were unzipped. Moreno fled. Jera called the police.
The police arrived and tracked Moreno with a canine unit. Police found Moreno asleep in a nearby apartment and arrested him. Ransom identified him as the man who raped her at a field show-up. During the rape investigation, the police took DNA swabs from Ransom and a penile DNA swab from Moreno.
The State charged Moreno with second degree rape and first degree burglary. Both Moreno and Ransom testified at trial. He testified that he entered the apartment with Ransom's permission and had no sexual contact with her. DNA evidence presented at trial showed that Ransom's DNA 'information' was present on Moreno's penile swab. A swab from the beer bottle left next to Ransom also contained Moreno's DNA.
At trial, Moreno requested a third degree rape instruction that the court denied. A jury convicted Moreno of second degree rape and first degree burglary.
Moreno appeals.
INSTRUCTION ON LESSER DEGREE OFFENSE
Moreno first argues that the trial court should have granted his request for an instruction on third degree rape. We disagree. An instruction on an inferior degree offense is warranted where: (1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but 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. We review for abuse of discretion. Here, both sides agree that the legal prong of the test is satisfied. Third degree rape is a lesser-degree offense of second degree rape and both proscribe but one offense.
State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000).
State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).
State v. Ieremia, 78 Wn. App. 746, 753, 899 P.2d 16 (1995), review denied, 128 Wn.2d 1009 (1996).
The issue is whether the record supports the factual prong. In determining whether the factual prong is satisfied, we must view the evidence in the light most favorable to the defendant Moreno. '[T]he evidence must raise an inference that only the lesser included/inferior degree offense was committed to the exclusion of the charged offense. It is not sufficient that the jury might simply disbelieve the State's evidence. Some evidence must be presented that affirmatively establishes the defendant's theory on the lesser degree offense before an instruction will be given.
Fernandez-Medina, 141 Wn.2d at 455-56.
Fernandez-Medina, 141 Wn.2d at 455 (emphasis in original).
Ieremia, 78 Wn. App. at 755.
See Fernandez-Medina, 141 Wn.2d at 456; State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995).
RCW 9A.44.050(1)(b) states:
(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:
(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated
RCW 9A.44.060(1)(a) states:
(1) 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:
(a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim's words or conduct
State v. Charles addresses the evidence required to meet the factual prong of these degrees of rape. There, the State charged Charles with second degree rape, alleging that he engaged in sexual intercourse by forcible compulsion. According to the victim, Charles forced her to the ground, she struggled, and he forced her to have sex with him. According to Charles, the sex was consensual. The supreme court held that Charles was not entitled to an instruction on third degree rape because there was no evidence that the intercourse was nonconsensual but unforced. The court reasoned that, if the jury believed the victim's testimony, Charles was guilty of second degree rape. If, however, it believed Charles' testimony, he was not guilty of any degree of rape. In order to find him guilty of third degree rape, the court concluded 'the jury would have to disbelieve both Charles' claim of consent and the victim's testimony that the act was forcible.' As there was no other testimony, the jury could not have concluded that Charles committed third degree rape.
See Charles, 126 Wn.2d at 355.
Charles, 126 Wn.2d at 355-56.
Charles, 126 Wn.2d at 356.
Charles, 126 Wn.2d at 356.
Here, Moreno argues that a jury could reasonably have believed that Ransom was not incapacitated due to alcohol consumption at the time of the alleged rape. He further argues that by pulling up her knees and rolling over, she was indicating that she did not give consent to intercourse.
This is unpersuasive. The evidence also showed that Ransom was intoxicated at the time of the alleged rape and that she thought she was dreaming during the incident. In order for the jury to find Moreno guilty of third degree rape, it would have had to disbelieve Ransom's testimony that she was asleep and/or intoxicated and not fully aware of what was happening to her. It also would have had to disbelieve Moreno's testimony that there was no contact at all. In short, the facts show third degree rape was not present in this case. Rather, the evidence supports the elements of second degree rape, as the jury decided. The court did not abuse its discretion in declining to give the lesser degree instruction.
PROSECUTORIAL MISCONDUCT
Moreno argues that the prosecutor's comments regarding DNA evidence in closing argument were improper and prejudicial, and deprived him of a fair trial. We disagree.
To prevail on a claim of prosecutorial misconduct, the defendant must show both improper conduct and prejudicial effect. Failure to object to an allegedly improper comment constitutes waiver of error unless the comment is so flagrant and ill-intentioned that it causes an enduring prejudice that could not have been neutralized by a curative instruction to the jury. '[P]rosecutorial misconduct requires a new trial when there is a substantial likelihood that the misconduct affected the jury's verdict.'
State v. Roberts, 142 Wn.2d 471, 533, 14 P.3d 713 (2000).
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304 (1996) (quoting State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988)).
Here, Moreno did not object below to the comments he now challenges on appeal. Nevertheless, he argues that the prosecutor committed misconduct by making statements that were unsupported by the record and prejudicial to the defendant.
See State v. Jones, 71 Wn. App. 798, 805, 863 P.2d 85 (1993) (citations omitted).
During closing argument, the prosecutor stated, 'And we have his (Moreno's) DNA placing him in the room and her DNA on him.' The prosecutor also stated, 'And then we have the presence of DNA on the defendant's penile gauze.' And the last statement to which Moreno now objects was, 'does that story make absolutely any sense to you or is that a story that is now created, a story that is convenient, a story that he (Moreno) tells in order to provide you with some sort of rationale for how his DNA got in that room and how her DNA got on his penis.'
We note that the State presented evidence that Ransom's DNA could not be excluded from the DNA on the penile swab and the chance that it was not Ransom's DNA on the swab was one in three hundred. Given the evidence presented, it was reasonable for the prosecutor to argue that Ransom's DNA was on Moreno.
More importantly, Moreno fails to show he was prejudiced by the statements. Both Ransom and Moreno testified at trial. The jury had an opportunity to observe testimony from both parties and weigh the evidence presented. Moreover, the DNA evidence both on the swabs and the bottle supported the jury verdict that Moreno committed the charged crime. In short, there is no evidence of misconduct, and if there was any misconduct, it did not affect the jury's verdict.
STATEMENT OF ADDITIONAL GROUNDS Sufficiency of Evidence
Moreno first argues that there was insufficient evidence to convict him of first degree burglary because he had not entered the building unlawfully and nothing was stolen, claiming he did not intend to 'break into,' 'enter,' and 'steal.' RCW 9A.52.020 states:
(1) A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.
Here, while Moreno's entry into the building may have been lawful, there was substantial evidence that he unlawfully remained in the apartment and assaulted Ransom. Substantial evidence supported his conviction of first degree burglary.
Foreign National Access to Consular Officials
Moreno next argues that, as a Honduran national, the Vienna Convention on Consular Relations requires that he be allowed free access to Honduran consular officials and Honduran nationals in detention. But Moreno failed to raise this issue below.
Ordinary default rules can bar such claims. (See Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004), cert. granted, ___ U.S. ___, 125 S. Ct. 686, 160 L. Ed. 2d 518 (U.S.) (No. 04-5928 heard March 28, 2005)). The Supreme Court held in Breard v. Greene, 523 U.S. 371, 375-76, 118 S. Ct. 1352, 140 L. Ed. 2d 529 (1998), that Vienna Convention claims, like Constitutional claims, can be procedurally defaulted, even in a death penalty case.
Under RAP 2.5(a) (3), Moreno may allege an error not properly preserved below if it is a manifest error affecting a constitutional right. He fails to make such a showing here.
State v. Scott, 110 Wn.2d 682, 757 P.2d 492 (1988).
Impermissible Comment on Evidence
Moreno next challenges jury instruction WPIC 1.02, arguing it is an impermissible comment on the evidence. It is not.
Moreno claims that the trial judge usurped 'the constitutional purview of the jury" when he informed the jury that it was his duty to rule on the evidence during trial (WPIC 1.02). However, Moreno does not explain how this instruction conveys the judge's personal belief about the evidence — the essence of the constitutional prohibition. We need not review this claim further in view of the lack of argument to support it.
Statement of Additional Grounds at 4.
Grand Jury Requirement
Finally, Moreno argues that under both the federal and state constitutions, a citizen may only be charged after being indicted by a grand jury. The Washington supreme court squarely rejected this argument in State v. Ng, stating:
104 Wn.2d 763, 713 P.2d 63 (1985).
In his pro se brief, Ng makes the novel argument that the grand jury provision of the Washington Territorial Code is still good law and requires indictments in all felony cases in Washington. This contention is frivolous. Article 1, section 25 of the state constitution specifically allows the State to proceed by information.
Ng, 104 Wn.2d at 775 n. 2.
The grand jury provision of the Fifth Amendment does not apply to state prosecutions.
Ng, 104 Wn.2d at 774.
We affirm the judgment and sentence.
GROSSE, COLEMAN and COX, JJ.