                                                               FILED
                                                          SEPTEMBER 7, 2017
                                                        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. 34333-2-111
                      Respondent,             )
                                              )
       V.                                     )
                                              )
JONATHANR. TERRY,                             )         UNPUBLISHED OPINION
                                              )
                      Respondent,             )
                                              )
LISA BONSELL,                                 )
                                              )
                      Interested Party.       )

       KORSMO, J. -    Jonathan Terry appeals from his juvenile court adjudication for

third degree rape, contending that the evidence was insufficient. Believing that the trial

court could draw the inferences it did, we affirm.
No. 34333-2-III
State v. Terry


                                            FACTS

       Mr. Terry was charged alternatively with second and third degree rape of J.M.,

who was 16 at the time. 1 Mr. Terry was nearly a year older. The incident giving rise to

the charges occurred at a party in June 2013. The charges proceeded to bench trial in the

Walla Walla juvenile court.

       N.R. hosted a party at her father's house; no adults were present. Guests included

D.R. (the boyfriend ofN.R.), J.M., and Mr. Terry. The four teenage youths were all

students at the same school. The four engaged in heavy drinking. N .R. testified that

when the party began, J.M. told Mr. Terry "don't touch me. I don't want to have sex

with you." Report of Proceedings (RP) at 64. Later in the evening, N.R. saw J.M. "on

the floor on her back with her legs spread and her pants were down and she was holding

onto Jon's head and moaning and Jon was performing oral sex on" her. RP at 64. N.R.

further testified that she did not believe the activity was against J.M.' s will, but it

surprised her because J.M. had a boyfriend. She also testified that both J.M. and Mr.

Terry were drunk.




       1
          Although described as alternative charges in closing argument, the charging
document states different offense dates, more than one year apart, for the two counts.
Clerk's Papers at 21; Report of Proceedings at 215-216. However, no challenge to the
charging document was raised in the trial court and it is not at issue in this appeal. Since
the trial court could have reached the same result through the inferior degree statute, RCW
10.61.003, there arguably was no need to have charged the offense in the alternative.

                                               2
No. 34333-2-III
State v. Terry


       J.M. testified that she had "a lot" to drink and did not recall much about that night.

When N.R. told her that Mr. Terry had performed oral sex on her, she was very surprised,

but had no memory of the event. On cross-examination, she testified that she could not

remember consenting or not consenting, or anything she may have said while the act was

occurrmg.

       The defense recalled N .R. to the stand and she expanded upon her initial

testimony. There was heavy drinking and J.M. was "running around kind of hyper" and

even began kissing N.R. She also testified that she, Mr. Terry, and J.M. each had at least

seven shots of liquor, but that J.M. still seemed to know what she was doing at all times.

She said that J.M. got progressively wilder, running around with her shirt off, flashing her

breasts, and taking cell phone videos of herself doing so. When she observed J.M. and

Mr. Terry, she felt there was no danger and left the couple alone.

      Mr. Terry testified in his own defense. He said that he had not planned an

encounter with J.M. He had consumed eight to ten shots of liquor, but believed he knew

what he was doing at all times. He admitted the sexual contact with J.M., who had laid

down and removed her shorts before instructing Mr. Terry to perform oral sex on her.

While he was doing so, she pulled him closer, moaned, and encouraged him with words

and body movements.




                                             3
No. 34333-2-111
State v. Terry


       A videotaped police interview of J.M. was played for the judge by the defense. It

took issue with some ofN.R.'s testimony. In that interview, J.M. stated that N.R. had

told her that both she and D.R. had told Mr. Terry to stop, but he did not.

       After hearing argument, the trial court found Mr. Terry not guilty of second degree

rape, but guilty of third degree rape of J.M. Written findings of fact and conclusions of

law were entered. The findings of particular relevance to this appeal state:

       9.     [N.R.], an independent witness, testified as to the incident during
              which Respondent [Mr. Terry] performed oral sex on [J.M.]. [N.R.]
              testified this incident occurred at her father's house. Respondent,
              [J.M.], [N.R.], and a young man named [D.R.] were present. All of
              them consumed alcohol, but [J.M.] consumed the most. [N.R.]
              testified she witnessed [J.M.] consume seven or eight shots of
              distilled alcohol early on. [J.M.] was "acting crazy," 2 that she took
              off her shirt and ran around in her bra, that she made video
              recordings with her phone of herself "flashing" her breasts, that she
              repeatedly told Respondent not to touch her, that she did not want to
              have sex with him, and that she had a boyfriend. [N.R.] testified that
              [J.M.] did kiss her, and that this surprised her because she had no
              romantic interest in [J.M.].

       10.    Shortly after [J.M.] did kiss [N.R.], [N.R.] heard a noise that drew
              her attention. She crossed the room and saw Respondent performing
              oral sex on [J.M.]. [J.M.] appeared to be conscious and participating
              in the sex. [N .R.] testified she was surprised to witness this, as she
              knew [J.M.] had a boyfriend and [J.M.] had never expressed a
              romantic interest in Respondent.

       11.    [J.M.] testified to having very little recollection of the evening
              [N.R.] described. [J.M.] was not married to Respondent at the time


      2 This quotation appears to be a summation of J.M.'s behavior, as N.R.'s
testimony did not include the use of this phrase.

                                             4
No. 34333-2-III
State v. Terry


              of the incident, nor was there a romantic relationship between them.
              [N.R.] told [J.M.] what had occurred the next day; [J.M.] said she
              was surprised when she heard what had happened.

Clerk's Papers (CP) at 88. The two conclusions oflaw of particular interest are:

       1.      Respondent is not guilty of Rape in the Second Degree.
       2.      Respondent was not married to [J.M.] and [J.M.'s] lack of consent
       was clearly expressed. Respondent is guilty of Rape in the Third Degree
       for his assault on [J.M.]

CP at 89.

       The court imposed a standard range disposition. Mr. Terry timely appealed to this

court. A panel considered the matter without oral argument.

                                       ANALYSIS

       The sole issue presented by this appeal is whether the evidence supported the

bench verdict. Properly viewed, it did. The adjudication is affirmed.

       Long settled standards govern our review of this contention. "Following a bench

trial, appellate review is limited to determining whether substantial evidence supports the

findings of fact and, if so, whether the findings support the conclusions of law." State v.

Homan, 181 Wn.2d 102, 105-106, 330 P.3d 182 (2014) (citing State v. Stevenson, 128

Wn. App. 179, 193, 114 P.3d 699 (2005)). "' Substantial evidence' is evidence sufficient

to persuade a fair-minded person of the truth of the asserted premise." Id. at 106. In

reviewing insufficiency claims, the appellant necessarily admits the truth of the State's

evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d


                                             5
No. 34333-2-III
State v. Terry


192,201, 829 P.2d 1068 (1992). Finally, this court must defer to the finder of fact in

resolving conflicting evidence and credibility determinations. State v. Camarillo, 115

Wn.2d 60, 71, 794 P.2d 850 (1990).

       This approach is the specific application of the evidentiary sufficiency standard

dictated by the Fourteenth Amendment. Jackson v. Virginia, 443 U.S. 307, 317-318, 99

S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Specifically, Jackson stated the test for evidentiary

sufficiency under the federal constitution to be "whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Id. at 319. Washington

promptly adopted this standard in State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628

(1980) (plurality); id. at 235 (Utter, C.J., concurring); accord State v. Farnsworth, 185

Wn.2d 768, 775, 374 P.3d 1152 (2016).

       Under Jackson, the test is could the trier of fact find the element(s) proved.

Whether the trial judge should have done so is not our concern. For that reason, the

arguments Mr. Terry raises go to the weight to be given the testimony by the trier of fact.

The trial judge having found the argument wanting, this court is in no position to strike a

different balance.

       Here, the prosecutor charged Mr. Terry with both second degree rape predicated

on a theory that J.M. was incapable of consent due to incapacity or helplessness, RCW

9A.44.050(l)(b), and third degree rape based on the fact that J.M. did not consent and

                                             6
No. 34333-2-111
State v. Terry


had clearly expressed that lack of consent. See RCW 9A.44.060(l)(a). This appeal

revolves around the consent element. The other elements (sexual intercourse, no

marriage between the parties) are not at issue.

       Since the court acquitted on the second degree rape count, the sole issue here is

whether there was evidence that J.M. did not consent to the intercourse and clearly

expressed that lack of consent. The testimony ofN.R. established that element. At the

very beginning of the trial, she quoted J.M. as saying just that-Mr. Terry was to stay

away from her and she had no interest in being sexually involved with him. The court's

finding number 9, quoted above, expressly found that J.M. had repeatedly told Mr. Terry

not to touch her and she would not be having sex with him. This evidence amply

supports the bench determination that J.M. did not consent to sexual activity.

       Emphasizing both his own testimony that J.M. requested and enjoyed their sexual

encounter, along with N.R. 's testimony that J.M. seemed to be an active participant, Mr.

Terry argues that J.M. changed her mind and consented to the sexual intercourse. The

evidence easily would have supported that view of the facts. However, the trial court did

not find that to be the case. Although the trial judge could have believed Mr. Terry, he

did not do so. Instead, he found that J.M. did not consent and communicated that lack of

consent to Mr. Terry. Evidence that she may have revoked her refusal did not persuade

the trial court. Thus, this court cannot find the facts differently.




                                               7
No. 34333-2-111
State v. Terry


       A somewhat factually similar case is our decision in State v. Mares, 190 Wn. App.

343, 361 P.3d 158 (2015). Mr. Mares began to have sex with the victim while she was

asleep. Id. at 348. In the month prior to this assault, there were several occasions where

the victim had rebuffed Mr. Mares' advances. Id. at 347-348. When the victim awoke,

she pointed a rifle at Mr. Mares, and told him to leave. Id. at 348-349. Mr. Mares was

convicted of one count of third degree rape based on the victim's lack of consent. Id. at

349-350. On appeal, Mr. Mares argued that the victim did not express her lack of

consent until after the sex had begun and she woke up; at that point, Mr. Mares ceased

the assault. Id. at 356. This court held that RCW 9A.44.060(1)(a) does not require that

the victim's clear expression of lack of consent must take place at the time of the sexual

intercourse; the victim's responses to Mr. Mares' advances during their entire

acquaintance was more than enough evidence from which the jury could find that her

lack of consent was clearly expressed by words and conduct. Id. at 3 57.

       As in Mares, the victim clearly and repeatedly expressed her lack of consent prior

to sexual intercourse. That was sufficient to establish the element. The trial court was

not compelled to accept Mr. Terry's self-serving version of the events. Even if the victim

did respond physically and verbally to Mr. Terry's ministrations, her physical response is

not evidence that she consented to the action. Whether or not she consciously enjoyed

the activity is a different question than whether she agreed to it.




                                              8
I



    No. 34333-2-111
    State v. Terry


           The trial court concluded that she did not agree. Since that determination is

    supported by the evidence in the record, the fact that Mr. Terry can show that contrary

    evidence exists is of no moment. Our obligation is to view the evidence in a light most

    favorable to the bench verdict, not in a light most favorable to the appellant. Properly

    viewed, the evidence was sufficient.

          The adjudication is 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.




    I CONCUR:



          Pennell, J.




                                                 9
                                       No. 34333-2-III

       LAWRENCE-BERREY, J. (dissenting)-The evidence at trial was constitutionally

insufficient to convict Jonathan Terry of third degree rape. For this reason, I dissent.

       To convict Mr. Terry of third degree rape, the State was required to prove beyond

a reasonable doubt that (1) J.M. did not freely agree to sexual contact with Mr. Terry, and

(2) the lack of consent was clearly expressed to Mr. Terry by words or conduct. State v.

Guzman, 119 Wn. App. 176, 185, 79 P.3d 990 (2003). '"Consent' means that at the time

of the act of sexual intercourse or sexual contact, there are actual words or conduct

indicating freely given agreement to have sexual intercourse or sexual contact." RCW

9A.44.010(7).

       The majority correctly notes that the Fourteenth Amendment to the United States

Constitution requires a reviewing court to inquire whether the evidence at trial was

sufficient to sustain a conviction. The purpose of the sufficiency inquiry is to "' ensure

that the trial court fact finder "rationally appl[ied]" the constitutional standard required by

the due process clause of the Fourteenth Amendment, which allows for conviction of a

criminal offense only upon proof beyond a reasonable doubt.'" State v. Berg, 181 Wn.2d

857, 867, 337 P.3d 310 (2014) (alteration in original) (quoting State v. Rattana Keo

Phuong, 174 Wn. App. 494,502,299 P.3d 37 (2013)). This standard "'is designed to
No. 34333-2-111
State v. Terry


ensure that the defendant's due process right in the trial court was properly observed."'

Id. (quoting Rattana Keo Phuong, 174 Wn. App. at 502).

       This court reviews a claim of insufficiency de novo. Id. Where a conviction is

entered following a jury verdict, we take the State's evidence as true and consider

"' whether, after viewing the evidence most favorable to the State, any rational trier of

fact could have found the essential elements of [the crime] beyond a reasonable doubt.'"

Id. (quoting State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)). However,

where a conviction is entered after a bench trial, we inquire whether sufficient evidence

supports the findings and, if so, whether the findings support the conclusions of law.

State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014).

       Here, the trial court entered only one finding concerning whether J.M.'s words and

conduct during the sexual contact amounted to consent. The trial court found, "[J.M.]

appeared to be conscious and participating in the sex." Clerk's Paper (CP) at 88. We

need not remand for any additional findings because the evidence at trial was undisputed

concerning J.M.' s words and conduct during the sexual contact.

      Following J.M.'s statements to Mr. Terry early in the evening, J.M. drank heavily

and her inhibitions were lowered. Her lowered inhibitions are reflected by the

uncontroverted evidence that she ran around her friend's house in her bra, she recorded



                                             2
No. 34333-2-111
State v. Terry



herself exposing her breasts, and she began kissing N.R., her female friend. In addition,

N.R. testified that J.M. seemed to know what she was doing at all times. Mr. Terry

testified that J.M. consented to him performing oral sex on her. His testimony is

uncontroverted, is consistent with the trial court's finding noted above, and is consistent

with N.R.'s testimony that while Mr. Terry performed oral sex on J.M., J.M. pulled him

closer, moaned, and encouraged him with words and body movements. Thus, at the time

of the sexual contact, the uncontroverted evidence was that J.M. consented both by words

and by conduct. At a minimum, J.M.' s words and conduct during the sexual contact

caused her earlier statements to be unclear. The trial court did not find otherwise, and the

evidence at trial would not support a contrary finding. 1

       The majority relies on State v. Mares, 190 Wn. App. 343,361 P.3d 158 (2015).

Mares is easily distinguishable. There, the victim did not act in a manner that

contradicted her earlier expressed refusal to have sex with the defendant. Here, the

uncontroverted evidence was that during the sexual contact, J.M. consented by both

words and conduct or, at a minimum, caused her earlier statements to be unclear.



       1
        The majority alludes to a police video admitted by the defense in which J.M.
claims that N.R. and her boyfriend told Mr. Terry to stop while Mr. Terry was
performing oral sex. Even if true, this does not negate J.M.' s words and conduct
evincing consent.


                                             3
No. 34333-2-111
State v. Terry


       The majority upholds an unconstitutional conviction by ignoring the

uncontroverted evidence. Because the State's evidence was insufficient to convict Mr.

Terry of third degree rape, I would reverse his conviction.




                                                 Lawrence-Berrey, A.CJ.
                                                                                  j




                                             4
