                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 3, 2017




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 49239-3-II

                        Respondent,

         v.                                                   UNPUBLISHED OPINION

 JEREMY ARTHUR OVERTON,

                        Appellant.


        MAXA, J. – Jeremy Overton appeals his conviction of attempted second degree rape. He

argues that the State failed to prove that he intended to have sexual intercourse, a necessary

element of the charge. We hold that the State presented sufficient evidence to establish

Overton’s intent. Accordingly, we affirm.

                                              FACTS

        On January 25, 2014, KS, her boyfriend Toby Clark, Adam Thayer, and Monica Trabue

spent the evening together to celebrate KS’s promotion at work. They consumed alcohol at KS

and Clark’s residence before going to several bars in Olympia. Overton, one of KS’s coworkers,

met the group at the first bar and eventually drove them back to KS and Clark’s residence at 2:00

AM.   They continued drinking there. KS was intoxicated.

        While at KS and Clark’s home, Overton kept offering back and foot rubs to KS and

Trabue and was persistent in giving them even though they refused multiple times. Trabue felt
No. 49239-3-II


uncomfortable and went home rather than spend the night as she had planned. Overton’s

conduct also made KS uncomfortable.

         Eventually, KS went upstairs and went to bed in the master bedroom, first changing into

running clothes because she was running in the morning. She went to sleep on her back, and

slept much harder than usual because she was intoxicated. Overton, Clark, and Thayer remained

downstairs.

         When Clark went to the bathroom, Overton went upstairs to KS’s bedroom. When

Thayer noticed that Overton did not come back downstairs, he went to investigate. As Thayer

entered the bedroom, he saw that KS’s shirt was pulled up exposing her breasts and that her

pants and underwear were pulled down below her knees. Overton was on top of KS, kissing her

lower abdomen. Thayer described KS as “[u]nconscious.” Report of Proceedings (RP) at 365.

Thayer yelled at Overton to leave and, with Clark’s help, physically removed him from the

house.

         KS testified that she was not fully conscious and was still intoxicated when she became

aware that Overton was in her room. Her pants were off, her underwear was around her knees,

and her shirt was pulled up. Overton was kissing her stomach and “working his way down.” RP

at 184. KS said that she kept moving away, but he kept coming back and being persistent.

Overton was trying to separate her knees and KS kept trying to close them and roll away from

him. KS remembered Overton saying “tell me when to stop”, RP at 183, and she felt like she

was telling him to stop.

         The State charged Overton with attempted second degree rape and, alternatively, with

indecent liberties. In addition to the testimony above, the State presented DNA evidence linking



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Overton to saliva samples taken from KS’s abdomen. A jury convicted Overton of attempted

second degree rape. Overton appeals his conviction.

                                            ANALYSIS

A.     SUFFICIENCY OF THE EVIDENCE

       Overton argues that the State did not present sufficient evidence that he intended to have

sexual intercourse with KS, an essential element of attempted second degree rape. He claims

that the evidence was sufficient to convict him only of indecent liberties under RCW

9A.44.100(1)(b), which does not require intent. We disagree.

       1.    Standard of Review

       The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a

sufficiency of the evidence claim, the defendant admits the truth of the State’s evidence and all

reasonable inferences drawn from that evidence. Id. at 106. Credibility determinations are made

by the trier of fact and are not subject to review. State v. Miller, 179 Wn. App. 91, 105, 316 P.3d

1143 (2014). Circumstantial and direct evidence are equally reliable. Id.

       2.    Attempted Second Degree Rape

       Under RCW 9A.44.050(1)(b), “[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.44.010(1) defines “sexual




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intercourse” as penetration as well as oral-genital contact: “any act of sexual contact . . .

involving the sex organs of one person and the mouth . . . of another.” RCW 9A.44.010(1)(c).

       Under RCW 9A.28.020(1), “[a] person is guilty of an attempt to commit a crime if, with

intent to commit a specific crime, he or she does any act which is a substantial step toward the

commission of that crime.” (Emphasis added.)

       The State charged Overton with attempted second degree rape. Therefore, the State did

not have to prove that Overton had sexual intercourse, only that he intended to do so and that he

took a “substantial step” corroborating his criminal purpose. State v. Johnson, 173 Wn.2d 895,

899, 270 P.3d 591 (2012).

       3.    Analysis of Evidence

       Overton argues that there was no evidence that he intended to have sexual intercourse

with KS because (1) Clark and Thayer were present and KS’s bedroom was nearby, (2) Overton

knew that Thayer had watched him go upstairs and into the bedroom, (3) there was no evidence

that Overton had removed any of his own clothing, and (4) there was no evidence that Overton

touched KS’s breasts or vagina. But Overton ignores undisputed evidence from which a jury

easily could infer that Overton intended to have oral-genital sexual contact with KS.

       First, Overton went into a bedroom where KS was sleeping and removed her pants,

pulled down her underwear, and pulled up her shirt to expose her breasts. Second, Overton was

on top of KS and was kissing her lower abdomen, and he was “working his way down.” RP at

184. Third, Overton was trying to spread open KS’s knees as she resisted. Fourth, he was

persistent and kept coming back as she tried to move away. And fifth, Overton’s statement to




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KS to “tell me when to stop”, RP at 183, suggested that he intended to go further than merely

kissing KS’s abdomen.

       A rational trier of fact could reasonably conclude from this evidence that Overton

intended to have sexual intercourse with KS and took a substantial step toward that intended

goal. Accordingly, we hold that the State presented sufficient evidence to meet its burden of

proving attempted second degree rape.

B.     APPELLATE COSTS

       Overton asks that we refrain from awarding appellate costs if the State seeks them. The

State does not contest this request. Therefore, we decline to impose appellate costs.

                                          CONCLUSION

       We affirm Overton’s conviction of attempted second degree rape.

A majority of the panel having determined that this opinion will not be printed in the Washington

Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so

ordered.



                                                     MAXA, J.


 We concur:



WORSWICK, J.




BJORGEN, C.J.



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