Opinion
No. 28273-2-III (consolidated with No. 29308-4-III).
Filed: April 7, 2011.
Appeal from a judgment of the Superior Court for Spokane County, No. 09-1-00611-4, Annette S. Plese, J., entered July 17, 2009, together with a petition for relief from personal restraint.
Judgment reversed in part and remanded and petition granted by unpublished opinion per Korsmo, J, concurred in by Kulik, C.J., and Brown, J.
Joseph Sam appeals his conviction for second degree rape, alleging that his counsel provided ineffective assistance by accidentally withdrawing an instruction on reasonable belief. His trial counsel admits the error. We agree that counsel erred to the detriment of his client. The conviction is reversed and the matter remanded for a new trial.
FACTS
A night of heavy drinking concluded with a group of friends spending the night at Mr. Sam's residence in Spokane. Among the group was a young woman, D.B. Two different versions of what happened at the residence were related at trial.
D.B. testified that she was asleep and awoke to find Mr. Sam performing oral sex on her. She pulled away and again lost consciousness. She again awoke because someone was engaged in sexual intercourse with her; a blanket covered her face. She was barely conscious during the assault and again fell asleep. She awoke in the morning to discover she was wearing a pair of Mr. Sam's shorts. She left the residence and reported the rape to the police.
Mr. Sam testified that D.B. had caressed him and requested that he perform oral sex on her. After he did so, he left the room to obtain a condom. When he returned, D.B. was cold and aloof. Mr. Sam went back to his bedroom and went to sleep.
Mr. Sam was charged with second degree rape based on incapacity, unlawful imprisonment, and theft of an automobile. Defense counsel filed several proposed instructions, most of which dealt with a lesser degree offense of third degree rape. One of the requested instructions presented the affirmative defense of reasonable belief that the victim had consented to sexual intercourse.
The unlawful imprisonment charge was dismissed during trial by agreement of the parties. At the conclusion of testimony, defense counsel advised the court that he was withdrawing his request for instructions on third degree rape. The trial court then identified the 20 instructions it was proposing to give. The reasonable belief affirmative defense was not included among those instructions. Both parties accepted the court's instructions and had no objections to them.
The prosecutor argued the case on the theory that the oral intercourse constituted second degree rape because the victim was unconscious and could not consent. Defense counsel argued that D.B. had consented to the act.
The jury convicted Mr. Sam on the rape and vehicle theft charges. After sentencing, he appealed the convictions to this court with the assistance of appointed counsel. Appellate counsel argued that trial counsel rendered ineffective assistance by withdrawing the reasonable belief instruction.
After the appellate briefs were filed, Mr. Sam filed a personal restraint petition (PRP) that also alleged his trial counsel rendered ineffective assistance by not pursuing a reasonable belief instruction. Trial counsel, Kenneth Knox, filed an affidavit in support of the PRP. He asserted that he had intended to pursue the reasonable belief affirmative defense in conjunction with his consent argument, but forgot about the instruction when he made the decision to withdraw the third degree rape instructions.
This court appointed appellate counsel to represent Mr. Sam in the PRP and consolidated it with the direct appeal. At oral argument, both parties stated that a reference hearing to establish the truth of Mr. Knox's assertion was unnecessary.
ANALYSIS
The only argument we address is the ineffective assistance claim. Counsel's oversight harmed his client. Accordingly, a new trial is required on the rape charge.
Mr. Sam does not challenge the vehicle theft conviction. In light of our reversal of the rape conviction and the concomitant need to resentence Mr. Sam on the theft conviction, we do not address his argument that his offender score was incorrectly calculated.
Mr. Knox's affidavit also alleges that his client was harmed by the error. That statement is a legal conclusion rather than a factual assertion. Although we reach the same conclusion, we will not consider that portion of the affidavit.
Well-settled standards govern our review of this argument. The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel's performance failed to meet a standard of reasonableness and (2) actual prejudice resulted from counsel's failures. Id. at 690-692. When a claim can be disposed of on one ground, a reviewing court need not consider both Strickland prongs. State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
The fact that counsel's decision is tactical in nature does not insulate it from a claim that the decision is unreasonable. State v. Grier, ___ Wn.2d ___, 246 P.3d 1260, 1268 (2011). Ineffective assistance claims resulting from instructional error can be considered despite the invited error doctrine. State v. Kyllo, 166 Wn.2d 856, 861-862, 215 P.3d 177 (2009).
Washington provides an affirmative defense in cases of rape based on a victim's inability to consent due to mental incapacity or physical helplessness. The defendant is permitted to establish by a preponderance of the evidence that he reasonably believed the victim had consented to the act of sexual intercourse. RCW 9A.44.030(1). This instruction can be found in 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 19.03, at 296 (3d ed. 2008). Some courts have concluded that trial counsel rendered ineffective assistance by not proposing this instruction when it was warranted by the evidence. State v. Powell, 150 Wn. App. 139, 154, 206 P.3d 703 (2009); In re Pers. Restraint of Hubert, 138 Wn. App. 924, 929-930, 158 P.3d 1282 (2007) (trial counsel unfamiliar with defense).
"It is a defense to a charge of [rape in the second degree] [indecent liberties] that at the time of the acts the defendant reasonably believed that (name of person) was not [mentally defective] [or] [mentally incapacitated] [or] [physically helpless].
Mr. Sam argues that defense counsel must always seek a reasonable belief instruction when it is supported by the evidence. We need not go that far in this case. Strickland establishes that Mr. Knox rendered ineffective assistance under the facts of this case.
It is not hard to imagine that counsel might in some cases prefer to put the State to its proof rather than undertake to prove the affirmative defense. "The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge]."
Trial counsel's affidavit confirms what the record alone only suggests — the defense sought a reasonable belief instruction in addition to the lesser degree offense. When counsel withdrew his request for the latter, the trial court inadvertently withdrew the defense. Defense counsel did not notice the oversight and failed to call it to the trial court's attention. Rather than being a tactical decision to not pursue the affirmative defense, the accidental withdrawal of the instruction was simply a mistake by counsel. The first Strickland prong was established.
The remaining issue is whether the error prejudiced Mr. Sam. We review this aspect of the ineffective assistance test to see if the error undermines our confidence in the verdict. Strickland, 466 U.S. at 694.
The instructions permitted the prosecutor to argue that D.B. was unconscious when the act of oral intercourse occurred. The consent instruction likewise allowed defense counsel to argue his client's testimony that D.B. consented to the action. The jury's verdict certainly could be seen as a rejection of defendant's testimony on this point. However, the jury also was instructed on the definition of mental incapacity, which states in relevant part that the victim's condition prevented "understanding the nature or consequences of the act of sexual intercourse." Clerk's Papers at 47 (Instruction 7).
Based on that instruction, the jury could have found that D.B. was too intoxicated to consent, even if she in fact did make the statement or take the actions Mr. Sam claimed she had done. In other words, the jury could have believed both the victim's and the defendant's versions of the encounter. In that circumstance, the affirmative defense that the defendant reasonably believed the victim had consented would come in to play — and the jury had no instruction telling them how to address the case.
The absence of a reasonable belief instruction left the jury with no ability to apply the correct law to the facts if it believed the testimony of both participants. Although the verdict can be interpreted as rejecting the defendant's testimony, it is not a necessary conclusion from the testimony and legal instructions given in this case. In this circumstance, our confidence in the verdict is undermined. Mr. Sam has established the counsel's error prejudiced him at trial.
CONCLUSION
For the reasons stated, the personal restraint petition is granted and the conviction for second degree rape is reversed. The conviction for theft of a motor vehicle is affirmed. The case is remanded for further proceedings consistent with this opinion.
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.
KULIK, C.J. and BROWN, J., concur.