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State v. Barajas

The Court of Appeals of Washington, Division Three
Mar 22, 2011
160 Wn. App. 1037 (Wash. Ct. App. 2011)

Opinion

No. 29016-6-III.

March 22, 2011. UNPUBLISHED OPINION

Appeal from a judgment of the Superior Court for Grant County, No. 09-8-00155-1, Evan E. Sperline, J., entered April 12, 2010.


Affirmed by unpublished opinion per Korsmo, A.C.J., concurred in by Sweeney and Siddoway, JJ.


The juvenile court's adjudication found that Juan Cortez Barajas committed the offense of second degree rape of a child. On appeal, he argues the court erred in rejecting his affirmative defense that he reasonably believed the victim was older. Because it is not this court's job to reweigh evidence, we affirm.

FACTS

The appellant, age 17, and 13-year-old J.S. were discovered together in bed and family members called the police. Both admitted that they had engaged in sexual intercourse. In a taped statement, Mr. Cortez Barajas told the detective that he knew J.S. was 13.

Mr. Cortez Barajas was charged in the Juvenile Division of the Grant County Superior Court with one count of second degree child rape. The matter proceeded to a fact-finding. Mr. Cortez Barajas testified that J.S. had told him she was actually 15 and he believed that to be the case. J.S. denied making the statements.

The juvenile division of the court found Mr. Cortez Barajas had committed second degree child rape. He timely appealed to this court.

ANALYSIS

Mr. Cortez Barajas presents two issues on this appeal, which we will treat as one: (1) whether the trial court erred in rejecting his affirmative defense and (2) whether the evidence was sufficient to support the adjudication.

Well-settled standards govern our review of this appeal. Evidence is sufficient to support a verdict if the trier of fact has a factual basis for finding each element of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id.

It is not the function of an appellate court to reweigh evidence; accordingly, an appellate court also is not in a position to find persuasive that which a fact-finder found unpersuasive. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009), review denied, 168 Wn.2d 1041 (2010).

With these standards in mind, the outcome of this appeal is clear. The elements of second degree child rape are (1) sexual intercourse with (2) a child at least 12 and less than 14 (3) who is not married to the perpetrator and (4) the perpetrator is at least 36 months older than the victim. RCW 9A.44.076. There was evidence sufficient to find each of these elements. Both the defendant and J.S. testified that they had engaged in sexual intercourse with each other. J.S. was 13 at the time; Mr. Cortez Barajas was 17. J.S. testified that she was not married to Mr. Cortez Barajas. The sexual intercourse, age, non-marriage, and age differential requirements were all established. Accordingly, the Green standard was satisfied. There was evidence to support the fact finder's verdict.

Recognizing this, Mr. Cortez Barajas puts his primary emphasis on his affirmative defense. As relevant here, RCW 9A.44.030(2) and (3)(b) provide that it is an affirmative defense, which the defendant must establish by a preponderance of the evidence, that he reasonably believed that J.S. was at least 14 or less than 36 months younger than he was.

The problem with this argument is one identified above — an appellate court does not reweigh evidence and cannot overrule a fact finder's determination about which evidence to believe. Cherry Lane, 153 Wn. App. 710. Mr. Cortez Barajas made conflicting statements by admitting to the police that he knew J.S. was 13 and also testifying that he believed she was 15. A rational trier of fact would understandably not credit this inconsistent testimony. While there were other witnesses who testified that J.S. had told them she was 15, the trial court was not required to believe them. More importantly, this court is not allowed to revisit that decision by reweighing the evidence. Mr. Cortez Barajas failed to establish his affirmative defense.

The evidence supported the adjudication. The trial court was not required to accept the evidence in support of the affirmative defense.

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.

SWEENEY, J. and SIDDOWAY, J., concur.


Summaries of

State v. Barajas

The Court of Appeals of Washington, Division Three
Mar 22, 2011
160 Wn. App. 1037 (Wash. Ct. App. 2011)
Case details for

State v. Barajas

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JUAN CARLOS CORTEZ BARAJAS…

Court:The Court of Appeals of Washington, Division Three

Date published: Mar 22, 2011

Citations

160 Wn. App. 1037 (Wash. Ct. App. 2011)
160 Wash. App. 1037