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State v. Adan

The Court of Appeals of Washington, Division One
Mar 28, 2011
160 Wn. App. 1040 (Wash. Ct. App. 2011)

Opinion

No. 64856-0-I.

March 28, 2011. UNPUBLISHED OPINION

Appeal from a judgment of the Superior Court for King County, No. 08-1-07663-2, Ronald Kessler, J., entered January 13, 2010.


Affirmed by unpublished opinion per Schindler, J., concurred in by Becker and Appelwick, JJ.


A jury convicted Abdikafar Adan of rape in the first degree and robbery in the first degree. Adan contends the trial court erred in refusing to give jury instructions on the inferior degree offenses of rape in the second degree, rape in the third degree, and robbery in the second degree. Because the evidence does not support the inference that only the inferior degree offenses were committed, and Adan's arguments in the statement of additional grounds on appeal are without merit, we affirm.

FACTS

H.D. works as a prostitute. H.D. solicits clients by advertising her cell phone number in weekly newspapers and on Craigslist.

In early August 2008, H.D. agreed to have sex with Adan at his apartment. Adan paid H.D. $150, and she bought some marijuana from him. Afterwards, Adan called H.D. several times a day, leaving messages and asking to see her again. H.D. did not want to see him again and ignored his cell phone calls.

But on August 15, H.D. agreed to have sex with Adan. Adan told H.D. to pick him up in her car at his apartment. After H.D. picked up Adan, Adan pulled out a large kitchen knife. At first H.D. thought Adan was joking. But Adan told H.D. "he wasn't playing games." H.D. said that Adan slapped her arm with the flat side of the knife and "almost cut me several times."

Adan told H.D. to drive to the park behind his apartment. Adan yelled at H.D., telling her that he is a "good man" and that "it's my fault that he's doing what he's doing." H.D. was afraid Adan was going to kill her.

Adan told H.D. to get into the backseat of her car. When she hesitated, Adan "started grabbing me, acting like he was going to stab me in my chest." When Adan grabbed H.D.'s shirt, he cut his hand with the knife. After Adan told H.D. that if she did not get in the backseat and remove her clothes that he would hurt her, H.D. got in the backseat and removed her clothes. H.D. was "crying" and "hysterical."

In an effort to make Adan stop, H.D. told him that she was pregnant and had sexually transmitted diseases. Even though Adan did not want to use a condom, he made H.D. "put it on for him." While having sex with H.D., Adan held the tip of the knife pointed at her throat and chest. Before leaving, Adan rifled through H.D.'s car and took $700, an iPod, and a camera. As Adan got out of the car, he threw $200 in H.D.'s face, dropped the used condom on the ground, and ran towards his apartment.

H.D. called 911 and drove to a nearby gas station to wait for the police. The responding officer said H.D. looked frightened and cried while she told him what happened. H.D. showed the officer the used condom that Adan had dropped on the ground at the park.

The officer then drove H.D. to Harborview Medical Center. A social worker, Catherine Marks, interviewed H.D. H.D. told Marks that Adan had a knife and held the knife to her throat while he raped her. Sexual assault examiner Jennifer DiPrima conducted a physical examination of H.D. H.D. told DiPrima that Adan hit her and forcibly raped her using a "large kitchen knife." DiPrima did not find any physical marks or blood on H.D.

The next day, E.S. called and talked to H.D. about the incident. On August 19, E.S. contacted a detective in the sexual assault unit, Detective Christopher Young. E.S. said she was a prostitute and that Adan threatened her with a knife and raped her. However, E.S. was unable to identify Adan's race.

E.S. met with Detective Young a few days later. E.S. told Detective Young that as she was walking with Adan, he pulled out a kitchen knife and told her to keep quiet or he would slit her throat. E.S. said Adan grabbed her purse and keys and forced her to have sex with him in her car. E.S. said that Adan then rifled through her car and took her iPod. When Detective Young showed E.S. a photo montage, she identified Adan.

Detective Young interviewed H.D. on August 26. H.D. told Detective Young that during the rape, Adan accidentally called the voicemail on her cell phone. She gave Detective Young a recording of the voicemail. When he showed H.D. a photo montage, she immediately identified the photo of Adan.

The State charged Adan with rape in the first degree and robbery in the first degree of H.D. and E.S. Adan denied committing the crimes. The defense theory was that E.S. and H.D. were not credible.

At trial, E.S. testified that she did not go to the hospital after Adan raped her because she did not want to report the crime. E.S. explained that she decided to report the crime only after she realized that he had hurt someone else.

Detective Young testified that when E.S. gave her initial statement over the telephone, she gave an "inarticulate" description of the race of her assailant. Detective Young also testified that E.S. disappeared for six months until a material witness warrant was issued for her arrest.

H.D. testified that Adan used a "big huge kitchen knife" to threaten her and force her to have sex with him. H.D. said Adan slapped her arm with the flat side of the large kitchen knife, and she was afraid he was going to kill her.

I thought he was going to kill me. I thought like I was in immediate danger. . . . I've never dealt with nothing like this before, so I was crying hysterically. I didn't know what to do. I just started sitting here and when he told me to do something, I did it. I didn't know what to do.

H.D. testified that he held the knife up to her throat and chest while having sex, and he cut his hand with the knife and got blood on her clothes. H.D. also testified that Adan called her from jail to tell her that "he was sorry and that he just wanted [her] to forgive him."

A recording of the call from jail was played for the jury. The State also played a recording of H.D.'s 911 call and the voicemail recording from H.D.'s cell phone. In the voicemail, H.D. is crying and says, "I'm a regular person." In response, Adan says, "You say you're a regular person?" and asks, "You're pregnant?"

A forensic scientist from the Washington State Patrol confirmed that the DNA (deoxyribonucleic acid) profile from the condom and the blood on H.D.'s clothes matched Adan's DNA profile. The forensic scientist testified that the chance of the DNA belonging to a different person was 1 in 1.6 quintillion. The State also introduced into evidence photos showing marks and cuts on Adan's hands.

The nurse examiner testified that she did not find any blood or physical marks on H.D.'s body during the physical examination, but explained that the absence of actual injuries is common in sexual assault cases. The defense did not call any witnesses.

Adan requested jury instructions on the inferior degree offenses of rape in the second degree, rape in the third degree, assault in the fourth degree, and robbery in the second degree. The trial court agreed that as a matter of law, rape in the second degree, rape in the third degree, and robbery in the second degree are inferior degree offenses. However, the court refused to give the proposed instruction because the evidence did not establish that only the inferior degree offenses were committed.

So the question is whether it meets the factual test. And I just don't see that there's any evidence to support — understanding the defense's point about the credibility question, but I just don't see that there's any evidence that supports an inference that only the lessers were committed, which is the standard for giving a lesser, so. The defense objection is noted.

The jury acquitted Adan of rape in the first degree and robbery in the first degree of E.S. The jury convicted Adan of rape in the first degree and robbery in the first degree of H.D. Adan appeals.

ANALYSIS

Adan contends the trial court erred in denying his request to instruct the jury on the inferior degree offenses of rape in the second degree, rape in the third degree, and robbery in the second degree. A defendant is entitled to an instruction on an inferior degree offense only if (1) the statutes for both the charged offense and the inferior degree offense proscribe the same conduct, (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. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000).

Here, the only dispute is whether there is evidence that Adan committed only the inferior degree offenses. The evidence must raise an inference that only the inferior degree offense was committed to the exclusion of the charged offense.Fernandez-Medina, 141 Wn.2d at 455. It is not enough that the jury may disbelieve the evidence pointing to guilt, but rather the evidence must affirmatively establish the defendant's theory of the case. Fernandez-Medina, 141 Wn.2d at 456. We consider all of the evidence presented at trial in the light most favorable to the party requesting the instruction.Fernandez-Medina, 141 Wn.2d at 455-56.

We review a trial court's decision to deny jury instructions based on the evidence for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

The State charged Adan with rape in the first degree and robbery in the first degree. Adan contends he was entitled to instructions on rape in the second degree and robbery in the second degree because the testimony of the nurse examiner supports the inference that a knife was not used during the commission of the crimes.

A person commits rape in the first degree if the person "engages in sexual intercourse with another person by forcible compulsion where the perpetrator . . . [u]ses or threatens to use a deadly weapon." RCW 9A.44.040(1)(a).
A person commits robbery in the first degree if the person "[d]isplays what appears to be a firearm or other deadly weapon" while committing a robbery. RCW 9A.56.200(1)(a)(ii). "Robbery" is defined, in part, as: "[U]nlawfully tak[ing] personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone." RCW 9A.56.190.

A person commits rape in the second degree if the person "engages in sexual intercourse with another person . . . [b]y forcible compulsion" without the use of a deadly weapon. RCW 9A.44.050(1)(a). "Forcible compulsion" includes "physical force which overcomes resistance, or a threat." RCW 9A.44.010(6).
A person commits robbery in the second degree if the person does not use a firearm or deadly weapon during a robbery. RCW 9A.56.210

Viewing the evidence in the light most favorable to Adan, the nurse examiner's testimony does not establish that he did not have a knife. The nurse examiner's testimony was not inconsistent with H.D.'s report that she was threatened with a knife and raped. While the nurse examiner testified that she did not find any evidence of physical marks during the physical examination, she explained the occurrence of actual injuries is rare in sexual assault cases:

In my experience and in my training we were told that actual injuries from sexual assault are rare and they really only occur in a small percentage of rapes or sexual assaults. That you could have a very violent and traumatic sexual assault without any injuries.

H.D. gave detailed testimony describing how Adan held the knife up to her while he raped her and cut his hand with the knife:

And then he started to have sex with me. And then I started crying, I was hysterical. I didn't know what to do. I just kept crying and crying and he kept telling me to shut up. . . . He had a knife at my throat the whole time he was doing it. He had this big long knife and he had it pushed to my throat like this when he was on top of me and I just didn't move. I couldn't do anything. All you can do is sit there and cry when somebody else is in control. . . . He grabbed me behind my shirt and my throat and then with the other hand he was acting like he was going to stab me because I wouldn't shut up. And he cut one of his hands on the side and got blood on my shirt and my shorts.

The forensic testimony confirmed that the DNA profile from the blood on H.D.'s shirt and shorts matched Adan's DNA profile. The photographs admitted into evidence also showed cuts and marks on Adan's hands. The 911 call, the voicemail recording during the rape, and the other testimony corroborated H.D.'s testimony. Even viewing the evidence in the light most favorable to Adan, the evidence does not show that he committed only the inferior degree offenses of rape in the second degree and robbery in the second degree.

Adan also argues that he was entitled to an instruction on rape in the third degree. In support of his argument, Adan again cites to the nurse examiner's testimony that she did not find physical marks or blood on H.D.'s body and H.D.'s testimony on cross examination that "[h]e didn't pay me for the sex that he took, therefore it wasn't consensual."

A person commits rape in the third degree if "under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person . . . [w]here the victim did not consent." RCW 9A.44.060(1)(a).

Viewing the evidence in the light most favorable to Adan, the testimony of the nurse examiner and H.D. does not show that H.D. was raped without forcible compulsion. H.D. testified that she was afraid that Adan was going to kill her and that he forced her to have sex:

[H]e was in control. He got me — I've never felt like that before. He had every, he could have told me to do jumping jacks and I would have done jumping jacks with a knife at my throat. . . . I thought he was going to stab me.

The voicemail recording of the rape also shows that the rape was not consensual.

Because the evidence does not raise an inference that Adan only committed rape in the second degree, robbery in the second degree, and rape in the third degree, the trial court did not abuse its discretion in denying the inferior degree offense instructions.

Statement of Additional Grounds

In his statement of additional grounds, Adan challenges the trial court's denial of his motion to dismiss for violation of his speedy trial rights and argues insufficient evidence supports his conviction of robbery in the first degree.

Adan argues that the court did not have good cause to continue his trial date. The trial date was continued because the prosecutor was in trial on another case, which is an "unavoidable" or "unforeseen" circumstance that justifies the extension of a criminal defendant's speedy trial period. CrR 3.3(d)(8); State v. Williams, 104 Wn. App. 516, 522, 17 P.3d 648 (2001).

We also conclude that sufficient evidence supports Adan's conviction of robbery in the first degree. H.D.'s undisputed testimony established that Adan took money, an iPod, and a camera before leaving her car.

We affirm.


Summaries of

State v. Adan

The Court of Appeals of Washington, Division One
Mar 28, 2011
160 Wn. App. 1040 (Wash. Ct. App. 2011)
Case details for

State v. Adan

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. ABDIKAFAR ADAN, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 28, 2011

Citations

160 Wn. App. 1040 (Wash. Ct. App. 2011)
160 Wash. App. 1040