                                                                            FILED
                                                                          APRIL 7, 2020
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                            )         No. 36305-8-III
                                                )
                       Respondent,              )
                                                )
              v.                                )         UNPUBLISHED OPINION
                                                )
COUGAR RAY HENDERSON,                           )
                                                )
                       Appellant.               )

       SIDDOWAY, J. — Cougar Ray Henderson appeals his conviction of second degree

rape, challenging the sufficiency of the evidence and evidentiary and instructional rulings

by the trial court. Finding only one erroneous ruling by the trial court, and that it was

harmless, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       In April 2017, then 20-year-old E.J. reported to police that over three years earlier,

while a senior in high school, she had been raped by Cougar Henderson. The State

charged Mr. Henderson with the second degree rape of E.J. in January 2018. Following

an amendment of the charges and an order severing other charges against Mr. Henderson

for separate trials, the prosecution for the alleged rape of E.J. proceeded to jury trial in

May 2018.
No. 36305-8-III
State v. Henderson


       E.J. testified that she had known Mr. Henderson, who was about 16 months older

than her, through school and drama productions. He had already graduated high school.

On the night of the alleged rape, E.J. and Mr. Henderson had arranged to meet at a local

park. E.J. testified that a few nights earlier, she and Mr. Henderson had “met up . . . and

had made out a little bit, fooled around, nothing too serious,” and she was “expecting

something similar.” Report of Proceedings (RP) at 127-28. She described what

happened on that earlier occasion as “[k]issing, touching, but nothing under the clothes,”

and “[a]ll voluntary and consensual.” RP at 168.

       When they arrived at the park, E.J. got into Mr. Henderson’s car, a 1999 Toyota

Camry, and they drove to an area with which E.J. was not familiar and parked on the

shoulder of a country road. They talked and leaned toward each other over the console

separating the front seats of the Camry as E.J. looked at something on Mr. Henderson’s

cell phone; that led to kissing. E.J. testified she was startled when Mr. Henderson

reached over her, depressed the lever on her seat, pushed it to a fully reclined position

and then was on top of her. She testified that she had never been with anyone who took

such an aggressive approach and she was further startled by the way Mr. Henderson

would grip her, kiss her, and bite her, leaving her with multiple hickeys and bruises on

her neck and chest. RP at 130. She did not object at that point, and they continued to

kiss and touch each other. E.J. acknowledged that as the sexual encounter continued,

either she, or the two of them, removed her shorts and sweatshirt. She testified that she

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State v. Henderson


or they might have removed her underwear as well. She testified that Mr. Henderson

manually stimulated her, including by inserting his fingers in her vagina, which she

acknowledged was consensual.

       E.J. testified that on the night of the alleged rape she had never before had penile-

vaginal sex and she had no intention of having it that night. There came a point when she

saw that Mr. Henderson had unzipped his pants and withdrawn his penis, however,

causing her to verbally protest and try, unsuccessfully, to move away. Undeterred by her

objections, Mr. Henderson partially inserted his penis into her vagina multiple times until

she pushed him off of her with “[a] good shove.” RP at 169. Because her testimony is

critical to Mr. Henderson’s sufficiency challenge, we reproduce it at some length.

       During her direct examination she testified that she was “okay with” Mr.

Henderson fingering her and manually stimulating her, but “[l]ater, he withdrew his penis

and attempted to penetrate me.” RP at 130. Asked about this further in her direct

examination, she testified:

       [PROSECUTOR:] . . .[A]fter he had digitally fingered you, and you
       mentioned that he withdrew his penis, did you consent to further conduct?
       A. No. In fact I opposed. I said, “No. Please, I don’t want to do this right
          now. Please, stop.” Eventually he started pressing the head of his penis
          up again[st] my vulva and my inner thighs and trying to penetrate me.
          The whole time he was getting verbal warnings, and—
       Q. Did you do anything physically?
       A. Eventually I had to after he ended up penetrating me multiple times
          with the head of his penis I had to put my elbow up in front of me and
          then push him back into the passenger seat—or the driver’s side seat.

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No. 36305-8-III
State v. Henderson


      Q. Did you at any point try to pull away from him?
      A. Yeah, we were reclined in a car. There wasn’t a lot of space I could go
         but when he is coming at me I remember trying to scoot back in the
         seat.
      Q. Did he have a condom with him?
      A. No.
      Q. Did he offer a condom at any point?
      A. No.
      ....
      Q. So after you put up your elbow what did he do?
      A. I had to use physical force to push him into the front seat of the car, the
         driver’s side seat. And eventually he withdrew and flopped over into
         the driver’s side seat and proceeded to masturbate for 15, 20 seconds.
      Q. Did he ever ejaculate?
      A. No.
      Q. Did you try to get away? Did you try to leave the car?
      A. No. He had his, I guess his left arm over me, and he was blocking the
         door. He was physically on top of me.
      Q. Did you consider leaving the car?
      A. I don’t think I really did. I didn’t know where we were and it was
         nighttime. I don’t think I would have felt comfortable with that.
      Q. Do you recall how many times he inserted his penis?
      A. A few; three to six times.
      Q. How far did he insert his penis?
      A. Only the first few inches, never fully.
      Q. What happened after he stopped masturbating?
      A. I asked to be taken back to my car, and he drove me back in silence.

RP at 130-32.




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State v. Henderson


       E.J. testified during her direct examination that she became concerned several

weeks later that she might be pregnant. She confided in her mother and ended up going

to a women’s clinic to take a pregnancy test, which was negative. When the prosecutor

showed E.J. a document marked for identification as exhibit P1 and obtained her

agreement that it was a fair and accurate representation of a report of the pregnancy test

results that she received and had provided to police, the defense objected. Outside the

presence of the jury, defense counsel argued that the document was hearsay, and no

business record exception had been established. The objections were overruled and the

document was admitted.

       The State questioned E.J. about whether she told others about the alleged rape at

the time, and she said she had, but

       [Mr. Henderson] would talk to them and deny ever doing anything with me
       and deny having sex with me and deny the events of that evening and really
       do anything to break my bonds with my friends. Called me a liar and kind
       of turned all my friends against me.

RP at 140. She said she became “really depressed,” gained weight, and was mentally and

physically “not well.” Id.

       Defense counsel’s cross-examination of E.J. about Mr. Henderson’s actions

elicited the following testimony:

       Q. And at what point did, based on your story here, Cougar’s penis become
          exposed?
       A. He reached for his belt, and opened his belt, unbuttoned his pants and
          unzipped his pants, and I think, I don’t remember what kind of

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No. 36305-8-III
State v. Henderson


          underwear he was wearing, if it was a loose fabric that he could just pull
          it through or if he pushed it down over. But his penis, he exposed
          himself completely. I did not reach down and touch him.
      Q. Did you help him unbutton his pants?
      A. No.
      Q. Or remove his belt?
      A. No.

RP at 158. Questioned about whether Mr. Henderson was lying on top of her, E.J.

testified that he was not; she assumed he was supporting himself with at least one knee on

the car seat, adding, “I’m assuming there was one leg up. I remember him being over me

when he unbuttoned himself. Enough space between us for him to maneuver and for me

to see what’s happening.” RP at 159. The cross-examination continued:

      Q. And then he inserted his penis in your vagina?
      A. Yes. He started by advancing towards me with it. He had one hand on
         his penis and was pressing and rubbing it up against my vulva and my
         inner thighs. At that point I began to protest.
      Q. Okay.
      A. And then after that he began to insert it multiple times all the while,
         while I am protesting.
      Q. By protesting you are saying that he was inserting his penis and you
         were saying don’t do that?
      A. Saying, “No. Stop. I don’t want to do this.”
      Q. Okay. And were you concerned about that because he had no condom?
      A. That, and I wasn’t comfortable with having sex that night. I had no
         intention of having sex. I was fine with foreplay, and touching, and
         kissing. I had no intention of having sex that night. And there was no
         ask for a consent or talk about protection at all.
      Q. And had you expressed these views to him before that night?


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No. 36305-8-III
State v. Henderson


       A. Not prior. But with enough time before he touched me with his penis.

RP at 160.

       During cross-examination, defense counsel asked E.J. whether she had been

diagnosed with Graves’ disease “sometime after that or about that time.” RP at 161. The

State’s objection that the question was beyond the scope of direct examination was

sustained. The State did not object when defense counsel asked if E.J. was presently on

medication, to which she answered, “Yeah,” but it did object when defense counsel asked

what she was taking. Id.

       The trial court excused the jury, and defense counsel told the court he wished to

inquire about Graves’ disease in part because he believed that physical and emotional

complaints that E.J. and her mother attributed to the alleged rape were “totally

consistent” with the disease’s symptoms. RP at 163. Defense counsel also argued that

the question about medication was “sort of a stock question” given that medication might

affect her ability to testify or recall. Id. The trial court asked E.J. about medications she

was presently taking and she answered that she was taking a thyroid supplement,

Levothyroxine. Asked by the court if she found it to have any side effects, she answered,

“No.” RP at 165.

       Defense counsel was permitted to conduct further voir dire and elicited E.J.’s

testimony that she had Graves’ disease, that it was diagnosed in April 2014, and that it

was diagnosed after she had suffered for a time with “anxiety and depression and voices

                                              7
No. 36305-8-III
State v. Henderson


in [her] head and cognitive difficulties.” RP at 165. Defense counsel argued that E.J.’s

Graves’ disease went to “the credibility of this witness to recall” and to whether

difficulties E.J. attributed to the alleged rape were “explained by her disease.” RP at 166.

Because defense counsel stated it would offer no medical testimony, the court sustained

the State’s objection.

       When cross-examination resumed, defense counsel elicited the following

additional testimony about the alleged act of rape and events immediately preceding it:

       Q. . . . You said at a certain point after Cougar had inserted his penis in
          your vagina you raised an elbow?
       A. Um hmm.
       Q. Or your forearm?
       A. Yes.
       Q. And did he then stop penetrating you?
       A. Eventually. I had to use force to lift him off of me and give him a real
          physical notice and eventually, yes, he stopped.
       Q. And how long did that take?
       A. A few seconds.
       Q. A few seconds, okay.
       A. A good shove.
       Q. So you just kind of pushed him off after he had penetrated you?
       A. Multiple times, yes.
       Q. Okay. Now, I want to go back just maybe a few seconds or minutes to
          the period of time before he placed his penis inside you.
       A. Okay.
       ....



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No. 36305-8-III
State v. Henderson


       Q. . . . Before, before Cougar Henderson placed his penis in your vagina
          the first time, did he use any physical force against you to cause you to
          submit to sexual intercourse?
       A. Okay. He was over me. There was a looming physical presence over
          me. I had nowhere to go. And before he inserted it in me he was
          pressing it up against me and pressuring me. Physically I attempted to
          scoot back away from that and he persisted. So, yes, before the first
          insertion he was physically pressuring me.
       ....
       Q. Apart from his being on top of you did he use any physical force to
          cause you to submit to sexual intercourse?
       A. Like holding me down?
       Q. Yeah, or hitting you?
       A. No, he never hit me.
       Q. Did he use any other physical force or any weapon of any kind?
       A. Weapons, no. I would say that the physical presence of him leaning
          over me, one arm between me and the door, and the car seat behind me,
          and his hand on his penis shoving it into me, I would call that a physical
          force.

RP at 168-70. E.J. admitted that at the time of the alleged rape, Mr. Henderson never

threatened her or threatened to harm anyone else.

       Mr. Henderson testified in his own defense. According to him, he and E.J. had

only one sexual encounter, and it was on the night of September 24, 2013, not September

21, 2013, as E.J. had testified. He testified that neither removed any clothing and that,

while he might have reclined the passenger seat in which she was sitting and leaned

across the console so they could kiss and grope one another, his lower body never left the




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No. 36305-8-III
State v. Henderson


driver’s seat of the car. He testified that he never penetrated E.J.’s vagina with his

fingers and that at no point in their encounter had she resisted him in any way.

       The defense brought the actual passenger’s seat from Mr. Henderson’s Camry into

the courtroom as a demonstrative aid, and he testified to measurements he had taken from

within the car to support his opinion that it would have been impossible for him to climb

into the passenger seat area with E.J. He testified that following the 20 or 30 minutes that

they kissed and groped, they resumed talking and he expressed his view that their making

out was probably a bad idea. According to him, that, and the fact that he turned down her

request that he accompany her to a homecoming dance, made her unhappy with him.

       In the State’s rebuttal case, it called two witnesses to counter Mr. Henderson’s

testimony that the front passenger seat area of his Camry was too constricted to

accommodate people engaged in sexual intercourse. The first, the investigating detective

who had been present throughout the trial, testified that he had taken the opportunity

during a recess to look at Mr. Henderson’s Camry and found it to have “[c]onsiderably

more [head space] than [Mr. Henderson] described.” RP at 275. The second witness, a

Walla Walla police officer, testified that he had formerly owned a 1989 Toyota Camry,

that he was familiar with later model Camrys, which he believed were bigger, and that he

had been able to have sexual intercourse comfortably with a woman in the car’s front

passenger seat.



                                             10
No. 36305-8-III
State v. Henderson


       The trial court’s instructions to the jury included the Washington pattern

instruction defining “forcible compulsion,” which is virtually identical to the term’s

statutory definition at RCW 9A.44.010(6), and states:

       Forcible compulsion means physical force that overcomes resistance, or a
       threat, express or implied, that places a person in fear of death or physical
       injury to oneself or another person or in fear of being kidnapped or that
       another person will be kidnapped.

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

45.03, at 918 (4th ed. 2016) (WPIC). In the final instruction conference, the trial court

addressed Mr. Henderson’s request for a further instruction that forcible compulsion

“requires more than the force normally used to achieve sexual intercourse, or sexual

contact,” an instruction that he supported by citation to State v. Ritola, 63 Wn. App. 252,

254, 817 P.2d 1390 (1991). RP at 286-87; Clerk’s Papers (CP) at 27. The trial court

observed that comments to WPIC 45.03 cite case law applying that language from Ritola,

but the comments go on to say:

       Under some circumstances the resistance by the victim required to show
       forcible compulsion need not be physical resistance. Instead it is a fact-
       sensitive determination based on the totality of the circumstances, including
       the victim’s words and conduct.

RP at 287; WPIC 45.03 (citing State v. McKnight, 54 Wn. App. 521, 526, 774 P.2d 532

(1989)). The court declined to give the proposed instruction. Mr. Henderson made a

record of his objection.




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No. 36305-8-III
State v. Henderson


       The jury found Mr. Henderson guilty. The trial court imposed a high-end sentence

of 114 months. Mr. Henderson appeals.

                                        ANALYSIS

       Mr. Henderson assigns error to (1) entry of a judgment supported by insufficient

evidence, (2) the trial court’s ruling sustaining the State’s objection to cross-examination

about E.J.’s Graves’ disease, (3) its admission of exhibit P1, the record of the results of

E.J.’s pregnancy test, and (4) its refusal to give his proposed jury instruction elaborating

on forcible compulsion. We address the assignments of error in the order raised.

I.     THE STATE’S EVIDENCE OF FORCIBLE COMPULSION WAS SUFFICIENT

       “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). As defined by statute,

“‘[f]orcible compulsion’ means physical force which overcomes resistance, or a threat,

express or implied, that places a person in fear of death or physical injury to herself or

himself or another person, or in fear that she or he or another person will be kidnapped.”

RCW 9A.44.010(6). The plain language of the definition does not require that physical

force overcome physical resistance. This court held 30 years ago that the victim’s

resistance need not be manifested by physical means. McKnight, 54 Wn. App. at 525.

This court has also stated that force that “prevent[s] resistance” qualifies as force that




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No. 36305-8-III
State v. Henderson


“overcome[s]” resistance. Ritola, 63 Wn. App. at 254-55 (emphasis added) (quoting

McKnight, 54 Wn. App. at 527).

       In Ritola, this court addressed whether forcible compulsion was proved in an

indecent liberties case in which there had been no opportunity for resistance. The

appellant, a juvenile, had been standing behind and a little to the right of a female

counselor when he “suddenly grabbed her right breast, squeezed it, [and] then

‘instantaneously’ removed his hand.” 63 Wn. App. at 253. The trial court found that the

act

       occurred so suddenly that the counselor did not have time to resist before
       it was completed. It further found, however, that resistance could be
       “implied,” and that Ritola had therefore brought about sexual contact by
       forcible compulsion.

Id. (footnote omitted).

       On appeal, this court observed that “force,” in a scientific sense, “is involved in

every act of sexual touching, and if forcible compulsion and force were synonymous,

every such act would be criminal.” Id. at 254. The opinion cited approvingly to an

earlier formulation that forcible compulsion “is not the force inherent in any act of sexual

touching, but rather is that ‘used or threatened to overcome or prevent resistance.’” Id. at

254-55 (quoting McKnight, 54 Wn. App. at 527). It held “there is no evidence that the

force [Ritola] used overcame resistance, for he caught the counselor so much by surprise

that she had no time to resist.” Id. at 255.



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No. 36305-8-III
State v. Henderson


       Mr. Henderson argues that the State did not prove forcible compulsion because the

only force proved was the force inherent in sexual touching. But the State’s evidence in

this case was stronger than the evidence in McKnight, in which this court, 30 years ago,

found sufficient evidence of force. In that case, the teenaged victim verbally protested

but never physically resisted the intercourse, which took place on a couch in her home.

Addressing McKnight’s argument that the evidence against him did not show the use of

more force than normally required to achieve penetration, the majority opinion stated:

               Reasonable minds can differ as to whether the acts of slowly pushing
       C to a prone position and then removing her clothes in response to the
       victim’s requests that the advances stop manifest a degree of force greater
       than that which is inherent in the act of intercourse. A reasonable juror
       could, however, infer from the evidence that these were acts of force over
       and above what is necessary to achieve intercourse and that these acts were
       employed to overcome C’s resistance. The evidence, when taken as a
       whole and viewed in a light most favorable to the prosecution, establishes
       that the act of intercourse was accomplished by the use of force.

54 Wn. App. at 528.

       Mr. Henderson tries to distinguish McKnight on several bases that are irrelevant,

including that he and E.J. were better acquainted than the teenagers in McKnight, that he

and E.J. had a prior sexual encounter (at least according to E.J.), and that E.J. anticipated

and welcomed the early parts of their sexual encounter. A person can be raped by

someone she knows well. She can be raped by someone with whom different sexual

contact was consensual.




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State v. Henderson


          Mr. Henderson also argues that “[i]n McKnight the defendant pushed the victim

down” and “[i]n this case, there was no pushing.” Appellant’s Opening Br. at 22. He

fails to consider E.J.’s testimony that Mr. Henderson “reached over me and depressed the

lever and pushed the passenger seat all the way back.” RP at 129. Getting E.J. into a

reclining position by pushing her seat back is functionally indistinguishable from

McKnight “slowly pushing C to a prone position” on her couch. McKnight, 54 Wn. App.

at 528.

          Reasonable jurors could find that Mr. Henderson’s conduct manifested a degree of

force greater than that inherent in the act of intercourse. As Judge Morgan observed in

Ritola, force in the scientific sense is “what puts an object or body into motion, the result

sometimes but not always being contact with another object or body.” 63 Wn. App. at

254. No particular type or degree of physical force on the part of the perpetrator is

required by statute other than physical force that overcomes or prevents resistance.

          Mr. Henderson was taller and larger than E.J., and he both lowered the seat in

which she was sitting and crossed a center console to get on top of her. Although she

testified he was not “lying” on top of her, one can infer from her testimony as a whole

that she meant he was not resting the weight of his body on her. Her testimony was clear

that the way he was positioned above her limited her ability to move. In cross-

examination, E.J. was asked, “Apart from his being on top of you . . . [d]id he use any

other physical force or any weapon of any kind?” to which she responded:

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No. 36305-8-III
State v. Henderson


       Weapons, no. I would say that the physical presence of him leaning over
       me, one arm between me and the door, and the car seat behind me, and his
       hand on his penis shoving it into me, I would call that a physical force.

RP at 170. She “tr[ied] to scoot back in the seat,” but “had nowhere to go.” RP at 131,

169.

       The jury clearly did not believe Mr. Henderson’s version of events, but his

testimony about the small size of the Camry’s front passenger seat area and the

obstruction created by the console, gear shift, and emergency brake supported E.J.’s

description of circumstances in which she was essentially trapped.

       Mr. Henderson argues that failing to require proof of a greater use of force allows

the State to punish him for second degree rape when his conduct amounted to only third

degree rape. Under former RCW 9A.44.060 (2013), third degree rape without consent

was committed “when, 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 as defined in RCW 9A.44.010(7), to sexual intercourse with the

perpetrator and such lack of consent was clearly expressed by the victim’s words or

conduct.”1 The injury to E.J. was more egregious than a third degree rape. Forces put in


       1
        RCW 9A.44.060 was amended in 2019 to eliminate any requirement that the
victim clearly express a lack of consent by words or conduct. LAWS OF 2019, ch. 87, § 3.
It now provides that the crime is committed if the victim “did not consent as defined in
RCW 9A.44.010(7), to sexual intercourse with the perpetrator.” RCW 9A.44.060(1)(a).
Under current law, it would have been third degree rape and a class C felony if Mr.
Henderson’s and E.J.’s encounter had taken place on a blanket on open ground and she

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No. 36305-8-III
State v. Henderson


motion by Mr. Henderson, including his presence on top of her—from which he did not

budge as she clearly and repeatedly told him to stop—prevented or overcame her ability

to resist by pulling away.

       The test for determining the 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. Witherspoon, 180 Wn.2d 875, 883, 329

P.3d 888 (2014). The evidence was sufficient.

II.    THE TRIAL COURT DID NOT ERR IN SUSTAINING THE STATE’S OBJECTION TO CROSS-
       EXAMINATION ABOUT GRAVES’ DISEASE

       Mr. Henderson’s lawyer questioned prospective jurors about their knowledge of

Graves’ disease during voir dire. Only two prospective jurors indicated any familiarity

with it:

             [DEFENSE COUNSEL]: . . . Does anyone have any familiarity
       with Graves Disease? Anybody know what Graves—it’s a form of
       hyperthyroid—[Juror No. 40], do you know what this thyroid disease is?
               JUROR NO. 40: Graves Disease is a thyroid disease determined by
       a test called TSH.
              [DEFENSE COUNSEL]: And do you know that the symptoms
       include; psychiatric matters like anxiety, depression—
              JUROR NO. 40: I really don’t know. No, I don’t, okay? But at this
       point I’ll believe you.
               [DEFENSE COUNSEL]: I’m not—I want you to believe me, but
       this isn’t a test. I’m just trying to find out what you know, that’s all.



had never verbally protested at all.

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No. 36305-8-III
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            Anyone else have any familiarity with hyperthyroidism, or a form
       known as Graves Disease?
            [Juror No. 4], I thought you would.2
              JUROR NO. 4: Same information; overactive thyroid, diagnosed by
       blood test, TSH, that can cause an imbalance in the endocrine system. Yes,
       you can have some anxiety, depression.
                [DEFENSE COUNSEL]: Cognitive problems?
                JUROR NO. 4: Limited, yes.

RP at 104-05. None of the jurors ultimately seated indicated any familiarity with the

disease.3

       When E.J. later testified, the State objected when defense counsel began

questioning her about her Graves’ disease, stating that the questions went beyond the

scope of its direct examination. Outside the presence of the jury, defense counsel said he

was interested in medication that could affect E.J.’s ability to testify or recall and “[t]he

Graves Disease matter is also relevant because the very symptoms her mother describes

her suffering from at the time of the incident in question are totally consistent with

text[book] Graves Disease symptoms.” RP at 163. Asked by the trial court, “Are you

going to have medical testimony?,” defense counsel answered “No. I don’t think I need

it.” Id.



       2
        The lawyers would have had more information about the prospective jurors than
appears in our record, but it was revealed during voir dire that juror 4 worked in health
care and had been employed at hospice.
       3
           Juror 4 was excused by Mr. Henderson’s exercise of a peremptory challenge.

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No. 36305-8-III
State v. Henderson


       Under ER 611(b), “[c]ross examination should be limited to the subject matter of

the direct examination and matters affecting the credibility of the witness.” The rule is

subject to state and federal constitutional protections of the right to confrontation,

including the right to conduct a meaningful cross-examination of adverse witnesses.

State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). The purpose of cross-

examination is to test the witness’s perception, memory, and credibility. Id. The right to

cross-examination is not absolute, however, and a trial court may deny cross-examination

if the evidence sought is vague, argumentative, speculative, or irrelevant. Id. at 620-21.

We review a trial court’s limitation of the scope of cross-examination for an abuse of

discretion. State v. Lee, 188 Wn.2d 473, 486, 396 P.3d 316 (2017).

       Given the opportunity to voir dire E.J., defense counsel established that her

physical and emotional complaints following the alleged rape also preceded her April

2014 diagnosis with Graves’ disease. He argued to the trial court that her physical and

emotional problems following the alleged rape were “explained by her disease.” RP at

166. But voir dire had not established that E.J. had the medical understanding to trace

particular physical or emotional complaints to their source. Nor did the defense intend to

call a medical expert who could. The trial court ruled that “[i]f there was any testimony

contemplated that would bridge [the] huge gap” between E.J.’s complaints and the

defense argument attributing them to Graves’ disease, “I would allow it.” RP at 166.



                                              19
No. 36305-8-III
State v. Henderson


       Absent competent medical testimony, the evidence sought by the defense was

speculative. The court did not abuse its discretion in sustaining the State’s objection.

III.   THE TRIAL COURT ERRED IN ADMITTING EXHIBIT P1, BUT THE ERROR WAS
       HARMLESS

       Mr. Henderson argues that exhibit P1, the report of the results of E.J.’s October

2013 pregnancy test, was unauthenticated, hearsay, and prejudicial. E.J. testified without

objection that she became worried about being pregnant and had a blood test performed

at a women’s clinic. She testified without objection that she had received a report of the

test results and gave it to police. She was then asked if exhibit P1 was a fair, accurate

and unmodified representation of the report. When she testified that it now bore a stamp

but otherwise was, the State offered it as evidence. Mr. Henderson timely objected.

       We agree with the State that E.J. could authenticate exhibit P1 as a report she

received and gave to police. See ER 901(a), (b)(1) (authentication is satisfied by the

testimony of a witness with knowledge that a matter is what it is claimed to be). But the

State wanted to offer the exhibit for the truth of the result it reported, and the prosecutor

argued that as a business record it qualified for an exception from the hearsay rule.

       The Uniform Business Records as Evidence Act, chapter 5.45 RCW, “makes

evidence that would otherwise be hearsay competent testimony.” State v. Ziegler, 114

Wn.2d 533, 537, 789 P.2d 79 (1990). For the evidence to be admitted, RCW 5.45.020

requires that a “custodian or other qualified witness testif[y] to [the record’s] identity and



                                              20
No. 36305-8-III
State v. Henderson


the mode of its preparation, and if it was made in the regular course of business, at or

near the time of the act, condition or event.” The State now agrees that absent testimony

from the record’s custodian or another qualified witness, the report was hearsay and that

objection, at least, should have been sustained. It argues that the error was harmless,

however.

       “The improper admission of evidence is reversible error only if it results in

prejudice.” State v. Hatch, 165 Wn. App. 212, 219, 267 P.3d 473 (2011). An erroneous

evidentiary ruling “is not prejudicial unless, within reasonable probabilities, the outcome

of the trial would have been materially affected had the error not occurred.” State v.

Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).

       Mr. Henderson argues that admission of exhibit P1 was prejudicial because had a

record custodian or other qualified witness been called and cross-examined, it might turn

out that the test was ordered for a reason having nothing to do with a concern on E.J.’s

part that she was pregnant. Laying a business record foundation for admitting the report

would not have required a witness knowledgeable about the reason the test was ordered,

however. See RCW 5.45.020. Mr. Henderson offers no authority otherwise, and when a

party does not provide a citation to support an asserted proposition, we may assume that

counsel, after diligent search, has found no supporting authority. State v. Arredondo, 188

Wn.2d 244, 262, 394 P.3d 348 (2017); see also RAP 10.3(a)(6) (arguments made must

include supporting “citations to legal authority”).

                                             21
No. 36305-8-III
State v. Henderson


       It is also pure speculation that if a custodian or other qualified witness called by

the State did have first-hand knowledge about why the test was ordered, it would have

been something other than a concern by E.J. that she was pregnant.

       E.J., her mother, and the assistant director of E.J.’s school’s drama department all

testified that following the alleged rape, E.J. became concerned about being pregnant and

had a blood test performed. E.J. testified without objection that the result was negative.

Admission of exhibit P1 was cumulative and harmless.

IV.    THE TRIAL COURT DID NOT ERR BY REFUSING TO GIVE MR. HENDERSON’S
       PROPOSED INSTRUCTION ON FORCIBLE COMPULSION

       Finally, Mr. Henderson contends the trial court erred when it refused to give his

proposed jury instruction that “[f]orcible compulsion requires more than the force

normally used to achieve sexual intercourse or sexual contact.” CP at 27.

       “It is not error to refuse to give a cumulative instruction or one collateral to or

repetitious of instructions already given.” State v. Benn, 120 Wn.2d 631, 655, 845 P.2d

289 (1993). We review a trial court’s refusal to give a requested jury instruction de novo

where the refusal is based on a ruling of law, and for abuse of discretion where the refusal

is based on factual reasons. State v. White, 137 Wn. App. 227, 230, 152 P.3d 364 (2007).

       The statement from McKnight and Ritola that Mr. Henderson proposed to offer as

a further instruction was viewed on the facts of those cases as a corollary of the statutory

definition of “forcible compulsion.” The statutory definition was given to the jury in this



                                              22
No. 36305-8-III
State v. Henderson


case as instruction 7, thereby enabling Mr. Henderson to offer argument that forcible

compulsion should require more than the force normally used to achieve sexual

intercourse. He did; he argued, “[L]ook at Instruction No. 7, it’s simply not enough to

prove that there was an act of sexual intercourse.” RP at 313. The trial court did not

abuse its discretion when it declined to give an instruction that was collateral to the

statutory definition instruction.

       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.

                                                  _____________________________
                                                  Siddoway, J.

I CONCUR:



_____________________________
Fearing, J.




                                             23
                                       No. 36305-8-III

        LAWRENCE-BERREY,      J. (dissenting)- Cougar Henderson had sexual intercourse

with E.J. after she repeatedly said no. Henderson committed a serious crime, and he

should be punished for the crime he committed. The question though, is what crime did

he commit? Did he commit second degree rape or did he commit third degree rape?

        Second degree rape can be committed in one of six ways defined by the

legislature. RCW 9A.44.050(l)(a)-(f). Here, the State charged Henderson with second

degree rape by forcible compulsion. RCW 9A.44.050(l)(a). "Forcible compulsion"

means

        [ 1] physical force which overcomes resistance, or [2] a threat, express or
        implied, that places a person in fear of death or physical injury to herself or
        himself or another person, or in fear that she or he or another person will be
        kidnapped.

RCW 9A.44.010(6).

        In contrast, third degree rape occurs when a person does not consent to sexual

intercourse, and "such lack of consent was clearly expressed by the victim's words or

conduct." Former RCW 9A.44.060(l)(a) (2013).
No. 36305-8-III
State v. Henderson - dissent


       The State sought to prove Henderson used physical force that overcame E.J. 's

resistance. In response to whether she resisted, E.J. testified:

       Eventually I had to after he ended up penetrating me multiple times with
       the head of his penis[.] I had to put my elbow up in front of me and then
       push him back into the ... driver's side seat.

Report of Proceedings (RP) at 130-31. Henderson did not use physical force to overcome

E.J. 's resistance; once E.J. resisted by pushing Henderson with her elbow, the sexual

assault ended. The absence of force often is what distinguishes third degree rape from

second degree rape.

       The law is well settled regarding what "forcible compulsion" means:

               Forcible compulsion means that the force exerted was directed at
       overcoming the victim's resistance and was more than that normally
       required to achieve penetration. State v. Wright, 152 Wn. App. 64, 71, 214
       P.3d 968 (2009); State v. McKnight, 54 Wn. App. 521, 774 P.2d 532
       ( 1989). Under some circumstances, the resistance by the victim required to
       show forcible compulsion need not be physical resistance.

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

45.03, Forcible Compulsion-Definition, cmt. at 918 (4th ed. 2016).

       The second phrase ofRCW 9A.44.010(6) permits a finding of forcible compulsion

even though a person does not physically resist during the sexual assault. According to

that phrase, physical resistance is not required if the person is "place[ d] in fear of death or

physical injury to herself or himself or another person, or in fear that she or he or another

person will be kidnapped." By allowing these exceptions, the legislature sought to



                                                   2
No. 36305-8-III
State v. Henderson - dissent


maintain harsh punishments for those who used expressed or implied threats to deter

others from physically resisting.

       The majority relies on McKnight, 54 Wn. App. 521, to reach its conclusion that the

State presented sufficient evidence of forcible compulsion. There, 14-year-old C.

encountered 17-year-old McKnight near her home. Id. at 522. C. vaguely knew

McKnight, but allowed him into her apartment when he asked to come inside. The two

sat on a mattress in the living room and began to kiss. C. told McKnight to stop kissing

her, but instead he slowly pushed her onto the couch and started pulling on her clothes.

C. told him to stop, but he continued. McKnight disrobed C., undid his pants, and laid on

top of her, which made her feel"' scared."' Id. at 523. He then"' got inside"' her. Id.

C. told him it hurt, but he still did not stop. Id.

       The McKnight majority upheld the jury's verdict on the basis that reasonable

minds could infer that McKnight used force greater than that inherent in the act of

intercourse. Id. at 528. But the majority offered a better reason for its holding in a

footnote response to the dissent. In that footnote, the majority explained C. was alone in

her apartment with a stronger person, and the legislature did not intend to require persons

such as C. to struggle. Id. at 528 n.2. This basis for affirming the jury verdict is

consistent with the second phrase of RCW 9A.44.010(6), which defines forcible

compulsion as including implied threats that place a person in fear of physical injury.




                                                      3
No. 36305-8-III
State v. Henderson - dissent


C. barely knew McKnight and testified she was scared as McKnight continued despite

her protests.

       The McKnight dissent observed, "In finding the victim's acts in this case amount

to the statutorily required presence of 'resistance', the majority blurs, if not erases, the

distinction between the two legislatively defined degrees of the crime." Id. at 532

(Forrest, J., dissenting). McKnight's stated reason for upholding the jury's verdict does

blur the distinction between second degree rape and third degree rape. C. did not

physically resist. But the majority's explanation in its footnote is consistent with the

second phrase ofRCW 9A.44.010(6). C. was scared by McKnight, and a jury could

reasonably infer she feared physical injury.

       That is not the case here. Henderson and E.J. were in a dating relationship and

decided to meet one evening. E.J. got into Henderson's small car, and Henderson drove

some distance and then parked on the shoulder of a country road. After kissing and

sexually touching for a while, E.J. noticed Henderson unzip his pants as if he wanted to

have sex with her. As he positioned himself above her, she repeatedly said no. He

penetrated her multiple times. After several seconds, E.J. used her elbow to push him

away. Henderson did not use physical force to overcome E.J. 's successful effort of

pushing him away.

       There was no forcible compulsion as defined by RCW 9A.44.010(6). First,

Henderson did not use any force beyond that inherent in sexual intercourse. Second,

                                                  4
No. 36305-8-III
State v. Henderson - dissent


Henderson did not use physical force to overcome E.J.' s resistance. When she pushed

him away, the sexual assault ended. Third, there is no evidence E.J. feared she would be

physically injured by resisting. In fact, E.J. did physically resist by pushing Henderson

away. For these reasons, Henderson did not commit second degree rape by forcible

compulsion. He committed third degree rape.

       Second degree rape is a class A felony. RCW 9A.44.050(2). The standard

range sentence for a person with an offender score of 1 is 86 to 114 months.

RCW 9.94A.510, .515. The trial court sentenced Henderson to 114 months. In contrast,

third degree rape is a class C felony. RCW 9A.44.060(2). The standard range sentence

for a person with an offender score of 1 is 12 to 14 months. RCW 9 .94A.510, .515. The

significant difference in punishment between second degree rape and third degree rape

requires a clear distinction between these two crimes.

       The 2019 legislature redefined third degree rape as sexual intercourse where the

person does not freely agree to it, as shown by the person's words or conduct. See

RCW 9A.44.010(7), .060. The 2019 legislature did not redefine forcible compulsion.

Because of this, the majority's construction of forcible compulsion has continuing

consequences in this state.

       Today, the majority holds that forcible compulsion includes having nonconsensual

intercourse with a person who is "essentially trapped." Majority at 17. First, E.J. was not

"essentially trapped." Henderson did not have his weight on E.J., and E.J. could and did

                                                5
No. 36305-8-III
State v. Henderson - dissent


use her elbow to push him away. Second, nonconsensual sexual intercourse mostly

occurs with a smaller person surrounded by and under a larger person. The smaller

person would be as "essentially trapped" as E.J. The majority's rule thus transforms most

third degree rapes into second degree rapes. Third, there is no statutory textual support

for an "essentially trapped" rule.

       The majority's holding today ignores clear statutory language and blurs second

degree rape with third degree rape. There is a significant distinction between the two

offenses, as shown by the legislature's decision to punish them so differently. Because

the majority ignores this distinction, I dissent.




                                                    Lawrence-Berrey, J.




                                                    6
