Opinion
No. 61513-1-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-8-00937-0, David A. Kurtz, J., entered April 4, 2008.
Affirmed by unpublished opinion per Lau, J., concurred in by Becker and Appelwick, JJ.
Michael Huckell challenges his juvenile conviction for second degree rape. He contends that there is insufficient evidence to show that he used "forcible compulsion" when he engaged in sexual intercourse with R.I. Because there is ample evidence from which a rational trier of fact could infer that Huckell used physical force to overcome R.I.'s resistance, we affirm.
FACTS
During the 2006-07 school year at Mariner High School, Huckell and R.I. were in the same Spanish class. On May 14, their teacher let them go outside to work on a class project. Huckell and R.I. were in separate small groups working on the project. R.I. was sitting on a large green electrical junction box. Huckell came up behind her, grabbed her buttocks, put his arm around her, touched her breasts, and lifted her up off the box. R.I. told him to stop and leave her alone. But Huckell told her he was going to "grab her vagina." He put one of his hands between R.I.'s legs and the other on her waist and lifted her off the ground. As he lifted R.I., his finger penetrated her vagina through her jeans. During this encounter, R.I. repeatedly told him to stop and leave her alone. R.I. was five feet, two inches tall and weighed 95 pounds at the time of the incident, while Huckell was five feet, ten inches tall and weighed 145 pounds. At the end of class, she reported the incident to school authorities, who expelled Huckell from the school. Before leaving the school grounds, he returned to a classroom to retrieve his belongings. The teacher asked Huckell why he had been expelled and he responded that he had "bowling balled" R.I.
The State charged Huckell with second degree rape, and the juvenile court held a fact-finding hearing on March 25, 2008. Several students testified as witnesses. One said he heard Huckell say he was going to pick R.I. up by the vagina. Another witness testified that he saw Huckell pick R.I. up and touch her breasts and vaginal area. A third witness testified that she heard R.I. yelling "stop" to Huckell. Report of Proceedings (Mar. 25, 2008) at 44. A nurse who examined R.I. three days after the incident testified that the right labia minora area of R.I.'s vagina was bruised and that R.I's posterior forchette was painful to the touch. The nurse also testified that it is possible to penetrate a woman's vagina through clothing. The court found Huckell guilty of second degree rape and sentenced him within the standard range. He now appeals.
ANALYSIS
On appeal, Huckell does not challenge the facts described above. Instead, he contends that these facts are insufficient to support his conviction for second degree rape because they do not show that he used "forcible compulsion" to penetrate R.I.'s vagina. When reviewing a challenge to the sufficiency of the evidence in a juvenile proceeding, we must determine whether, considering the evidence in the light most favorable to the State, any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. State v. Echeverria, 85 Wn. App. 777, 782, 934 P.2d 1214 (1997). We assume the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. B.J.S., 140 Wn. App. 91, 97, 169 P.3d 34 (2007). Circumstantial evidence is as probative as direct evidence. B.J.S., 140 Wn. App. at 97.
Huckell does assign error to the trial court's fifth conclusion of law "[t]o the extent it is considered to be a finding of fact" and the trial court's verdict paragraphs one, two and three to the extent they are considered factual findings that "find that [Huckell] used forcible compulsion." Appellant's Br. at 1-2.
"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]y forcible compulsion." RCW 9A.44.050(1)(a). Forcible compulsion includes "physical force which overcomes resistance. . . ." RCW 9A.44.010(6). The resistance that is overcome does not necessarily need to be manifested by physical means. State v. McKnight, 54 Wn. App. 521, 525, 774 P.2d 532 (1989); see also State v. Gonzales, 18 Wn. App. 701, 703, 571 P.2d 950 (1977) ("The concept that a woman consents unless she struggles to the limit of her strength was long ago discarded as the legal standard."). Whether the evidence establishes the requisite resistance "is a fact sensitive determination based on the totality of the circumstances, including the victim's words and conduct." McKnight, 54 Wn. App. at 526. At the same time, the "force" required to show "forcible compulsion" is the force used to overcome the victim's resistance, not the force inherent in sexual penetration. McKnight, 54 Wn. App. at 527. Thus, to establish that a defendant engaged in sexual intercourse by forcible compulsion, the State must show that the defendant exerted force greater than that normally required to achieve penetration and that this force was directed at overcoming resistance by the victim. McKnight, 54 Wn. App. at 528.
In McKnight, we determined that a juvenile defendant's second degree rape conviction was supported by substantial evidence. McKnight, 54 Wn. App. at 529. McKnight, then 17 years old, and the victim, then 14 years old, were on the couch in her apartment when they started kissing. The victim told McKnight to stop, but instead he slowly pushed her down on the couch. He proceeded to disrobe the victim and had intercourse with her despite her repeated requests that he stop. McKnight, 54 Wn. App. at 522-23. A subsequent medical examination determined either that the intercourse was unusually aggressive or that there had been inadequate preparation for intercourse. McKnight, 54 Wn. App. at 523. Based on these facts, we concluded that a reasonable trier of fact could determine that McKnight had sexual intercourse with the victim by "forcible compulsion." McKnight, 54 Wn. App. at 529.
In State v. Ritola, 63 Wn. App. 252, 256, 817 P.2d 1390 (1991), however, Division Two of our court held that there was insufficient evidence to support Ritola's conviction for indecent liberties by forcible compulsion. There, Ritola was a juvenile resident at a boys group home. After dinner one evening, he approached a female counselor from behind and suddenly grabbed her right breast, squeezed it, and immediately let go. The counselor was shocked, and told Ritola that his behavior was inappropriate. Ritola, 63 Wn. App. at 253. On these facts, Division Two held that there was insufficient evidence to "support a reasonable inference that the force used by Ritola was directed at overcoming resistance, or that such force was more than that needed to accomplish sexual touching." Ritola, 63 Wn. App. at 255-56. The court emphasized that the act happened so suddenly that Ritola caught the counselor completely by surprise, so she had no time to resist. Ritola, 63 Wn. App. at 255. Because there was no resistance to overcome, Ritola did not accomplish the sexual touching by "forcible compulsion."
This case is more like McKnight than Ritola. In Ritola, the defendant abruptly reached out and grabbed the counselor's breast, withdrawing his hand before she had time to react. Here, there were multiple touchings and R.I. repeatedly told Huckell to stop and leave her alone. He grabbed her buttocks, touched her breasts, and told her he was going to "grab her vagina." R.I. told him to stop, but instead, he placed his hand between her legs and lifted her off the ground, his fingers penetrating her vagina through her pants. This fact pattern is more like McKnight, in which the defendant slowly pushed the victim down, removed her clothes, and penetrated her despite her objections. Here, a rational trier of fact could infer that R.I. had time to, and did, resist Huckell's actions, unlike the counselor in Ritola.
Huckell also contends that he used only that force inherent in sexual touching. But it is undisputed that he used enough force to actually lift R.I. off the ground and that his fingers penetrated her vagina as part of this same action. The nurse who examined R.I. three days later found that the right labia minora area of her vagina was bruised and that her posterior forchette was still painful to the touch. Given these facts, a rational trier of fact could infer that Huckell used more force than necessary to achieve penetration. The difference in body size between Huckell and R.I. is also relevant when assessing whether there was forcible compulsion. See McKnight, 54 Wn. App. at 526.
In sum, a rational trier of fact could infer from the evidence here that Huckell exerted force greater than necessary to achieve penetration and that he directed this force at overcoming resistance from R.I. McKnight, 54 Wn. App. at 528. Consequently, there is sufficient evidence of forcible compulsion to support his conviction for second degree rape.
For the foregoing reasons, we affirm.
Affirmed.
WE CONCUR.