                                                                    FILED
                                                            COURT OF APPEALS DIV I
                                                             STATE OF WASHINGTON
                                                             2016 OCT 22 AM 9: 10




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )       No. 76756-9-1
                                           )
                      Respondent,          )
                                           )       DIVISION ONE
                      v.                   )
                                           )
DAVID TYRONE HOSTON,                       )       UNPUBLISHED OPINION
                                           )
                      Appellant.           )       FILED: October 22, 2018
                                           )

       MANN, A.C.J. — David Hoston was convicted of first degree rape, second degree

assault, first degree burglary, and attempting to elude the police after breaking into his

ex-wife's apartment and beating and raping her. Hoston argues for the first time on

appeal that the trial court's failure to instruct the jury that consent negates forcible

compulsion, an essential element of rape, is a reversible error. Hoston further argues

that the trial court erred by failing to offer his proposed definition of forcible compulsion,

and by entering separate convictions for rape and assault. We affirm.



       On January 31, 2016, Chawntee Duncan awoke to being choked and punched.

She could not breathe and realized someone was hitting her face. Her assailant was

wearing a mask and gloves. Eventually, Duncan recognized her assailant as her ex-
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husband Hoston and asked him to stop. Hoston tore off Duncan's pants, attempted to

penetrate her anally, and then penetrated her vaginally. Hoston then abruptly stopped

the attack, removed his mask, and began to express remorse. Hoston stated he had

entered the apartment through the patio sliding door. Hoston told Duncan that he would

take her to the hospital. Duncan said she would make up a story.

      When Hoston went into the kitchen to get water for Duncan, she texted her

mother and friends for help. After Hoston returned he helped dress Duncan and left to

get his car. When Hoston left the apartment, Duncan locked the doors and called 911.

       Hoston was charged with burglary in the first degree, rape in the first degree,

assault in the second degree, and attempting to elude a police offer. He was also

charged with assault in the second degree for a previous incident involving Duncan.

A jury convicted Hoston of rape in the first degree, assault in the second degree,

burglary in the first degree, and eluding the police. Hoston was acquitted of the

separate assault charge. Hoston was sentenced to an indeterminate sentence with a

minimum term of 138 months for rape in the first degree to run concurrent with a 29-

month sentence for assault in the second degree, a 54-month sentence for burglary,

and a 6-month sentence for eluding. Hoston appeals.



       Hoston argues for the first time on appeal that the trial court erred in failing to

instruct the jury on the definition of consent and the State's burden of disproving

consent beyond a reasonable doubt. We disagree.




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                                              A.

       An appellate court may refuse to review any claim of error not raised in the trial

court. State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756(2009)(internal citation

omitted). Appellate courts "will not sanction a party's failure to point out at trial an error

which the trial court, if given the opportunity, might have been able to correct to avoid an

appeal and a consequent new trial." O'Hara, 167 Wn.2d at 98. One exception to the

general rule is a "manifest error affecting a constitutional right." RAP 2.5(a)(3).

       In order to demonstrate a manifest error under RAP 2.5(a)(3), the appellant must

demonstrate both (1) an error of constitutional magnitude and (2) the error is manifest.

If the reviewing court determines that the appellant has claimed a manifest

constitutional error the error is still subject to review for harmless error. O'Hara, 167

Wn.2d at 98.

       The court first determines whether the alleged error raises a constitutional

interest. "We look to the asserted claim and assess whether, if'correct, it implicates a

constitutional interest as compared to another form of trial error." O'Hara, 167 Wn.2d at

98. If the court determines the alleged error raises a constitutional interest, it looks next

to whether the error is manifest. "Manifest' in RAP 2.5(a)(3) requires a showing of

actual prejudice." State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125(2007). "To

demonstrate actual prejudice, there must be a 'plausible showing by the [appellant]

that the asserted error had practical and identifiable consequences in the trial of the

case." O'Hara, 167 Wn.2d at 99 (quoting Kirkman, 159 Wn.2d at 935).

       The actual prejudice analysis to determine a manifest error is separate from a

harmless error analysis. A harmless error analysis occurs after the reviewing court


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determines that there was a manifest constitutional error. O'Hara, 167 Wn.2d at 99.

The focus of the actual prejudice analysis is whether the error is obvious on the

record. O'Hara, 167 Wn.2d at 99-100.

       It is not the role of an appellate court on direct appeal to address claims
       where the trial court could not have foreseen the potential error or where
       the prosecutor or trial counsel could have been justified in their actions or
       failure to object. Thus, to determine whether an error is practical and
       identifiable, the appellate court must place itself in the shoes of the trial
       court to ascertain whether, given what the trial court knew at that time, the
       court could have corrected the error.

O'Hara, 167 Wn.2d at 100.

                                          B.

       Hoston argues that the trial court erred in failing to instruct the jury that consent

negates forcible compulsion and that it was the prosecutor's burden of disproving

consent beyond a reasonable doubt. Jury instructional errors that shift the burden of

proof are considered constitutional error. See State v. McCullum, 98 Wn.2d 484, 488,

656 P.2d 1064(1983); O'Hara, 167 Wn.2d at 100.

       However, even if the alleged error is constitutional, Hoston fails to demonstrate

that the error is manifest. Hoston first fails to demonstrate actual prejudice because the

trial court properly instructed the jury on elements of rape in the first degree, including

forcible compulsion, and that the State had the burden to prove all of the elements.

Using pattern instruction WPIC 40.02,1 jury instruction 19 provided:

             To convict the defendant of the crime of rape in the first degree, as
       charged in Count 2, each of the following four elements of the crime must
       be proved beyond a reasonable doubt:


       111 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 40.02(4th ed.
2016)(WPIC).



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No. 76756-9-1/5

              (1) That on or about January 31, 2016, the defendant engaged in
       sexual intercourse with Chawntee Duncan;
              (2) That the sexual intercourse was by forcible compulsion;
              (3) That the defendant feloniously entered into the building where
       Chawntee Duncan was situated; and
              (4) That any of these acts occurred in the State of Washington.
              If you find from the evidence that elements (1), (2),(3), and (4)
       have been proved beyond a reasonable doubt, then it will be your duty to
       return a verdict of guilty as to Count 2.
              On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to any one of elements (1), (2),(3), or (4), then it will
       be your duty to return a verdict of not guilty as to Count 2.

       Relying on State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014), Hoston argues

that the trial court's failure to explicitly instruct the jury that consent negates forcible

compulsion was reversible error. In W.R., our Supreme Court held that "consent...

negates the element of forcible compulsion [and t]herefore, once a defendant asserts a

consent defense and provides sufficient evidence to support the defense, the State

bears the burden of proving lack of consent as part of its proof of the element of forcible

compulsion." 181 Wn.2d at 763. The Supreme Court's focus, however, was where the

trial court's instructions placed the burden of proof. It violates a defendant's due

process rights for the trial court to force the defendant to disprove an essential element

of the crime charged. But as the Court explained "[Necause the focus is on forcible

compulsion,jury instructions need only require the State to prove the elements of the

crime. It is not necessary to add a new instruction on consent simply because evidence

of consent is produced." W.R., 181 Wn.2d at 767 n.3.

       Therefore, the real question is not whether the trial court instructed the jury that

consent negates forcible compulsion but instead whether the burden of proof was

improperly placed upon the defendant. Here, the trial court's written and oral

instructions placed the burden of proof squarely upon the State.

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No. 76756-9-1/6

       Hoston also relies on State v. Ortiz-Triana, 193 Wn. App. 769, 373 P.3d 335

(2016), and argues that it is closely analogous to the case at hand. In Ortiz-Triana, this

court reversed the appellant's conviction for rape in the second degree based on an

improper jury instruction. 193 Wn. App. at 771. But the jury instructions at issue in

Ortiz-Triana expressly placed the burden of proof on the defendant. The trial court

instructed the jury that "[t]he defendant has the burden of proving [consent] by a

preponderance of the evidence." Ortiz-Triana, 193 Wn. App. at 774. Further, on

appeal, the State expressly conceded that this instruction was an error and violated the

defendant's due process rights. Ortiz-Triana, 193 Wn. App. at 776. Here, unlike Ortiz-

Triana, the jury was not instructed that Hoston carried the burden to prove consent.

The jury was instructed that "[t]he State is the plaintiff and has the burden of proving

each element of each crime beyond a reasonable doubt. The defendant has no burden

of proving that a reasonable doubt exists as to these elements."

       Moreover, in determining whether the error is practical and identifiable, and thus

manifest, we must place ourselves "in the shoes of the trial court to ascertain whether,

given what the trial court knew at that time, the court could have corrected the error."

O'Hara, 167 Wn.2d at 100. Here, the pattern jury instructions expressly support the

trial court's instructions. The comments to the pattern instruction for first degree rape,

discuss "consent" and provide: "Although consent negates the element of forcible

compulsion, no separate instruction on consent is needed." WPIC 40.02 cmt (citing

W.R., 181 Wn.2d at 767, n.3). Further, comments to the pattern instruction defining

consent provide: "Under no circumstances should this instruction be given unless




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No. 76756-9-1/7

requested, or expressly agreed to, by the defense." WPIC 40.02 cmt (citing State v.

Lynch, 178 Wn.2d 487, 309 P.3d 482(2013)).

       Because the trial court properly instructed the jury on the correct burden of proof,

there was nothing before the court that would have caused it to believe an error needed

to be corrected. Further, because the burden of proof was placed solely upon the

prosecution, and therefore the asserted error does not have any practical and

identifiable consequences, the alleged error is not manifest and Hoston cannot raise it

for the first time on appeal.



       Hoston next contends that the trial court committed reversible error by refusing to

instruct the jury on his proposed definition of "forcible compulsion." Based on State v.

Weisberg, 65 Wn. App. 721, 725, 829 P.2d 252(1992), Hoston proposed an instruction

that expanded the statutory definition of forcible compulsion by adding "[t]he alleged

victim must perceive a threat, and the defendant must communicate an intent to inflict

physical injury in order to coerce compliance."

       "Due process requires that jury instructions (1) allow the parties to argue all

theories of their respective cases supported by sufficient evidence,(2)fully instruct the

jury on the defense theory,(3) inform the jury of the applicable law, and (4) give the jury

discretion to decide questions of fact." State v. Koch, 157 Wn. App. 20, 33, 237 P.3d

287(2010). "A defendant is entitled to have his theory of the case submitted to the jury

. . . when the theory is supported by substantial evidence in the record." State v.

Griffith, 91 Wn.2d 572, 574, 589 P.2d 799 (1979). But a "trial court is not required to




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No. 76756-9-1/8

give an instruction which is erroneous in any respect." State v. Hoffman, 116 Wn.2d 51,

110-11, 804 P.2d 577(1991).

        To be convicted of rape in the first degree, the State was required to prove that

Hoston "engagjed] in sexual intercourse with another person by forcible compulsion."

RCW 9A.44.040(1). The jury instructions defined forcible compulsion using the

statutory definition: "Morcible compulsion means physical force which overcomes

resistance, or a threat, express or implied, that places a person in fear of death or

physical injury." Jury instruction 22; RCW 9A.44.010(6). The plain language of RCW

9A.44.010(6) indicates that forcible compulsion can be found in two different situations:

(1) physical force which overcomes resistance or (2) an express or implied threat. The

word "or" in between the physical force and threat portions of RCW 9A.44.010(6)

creates a disjunction and indicates that the legislature intended for the two phrases to

act as separate situations.2

        In Weisberg, the case relied upon by Hoston, the 54-year-old defendant was

neighbors with the victim, a 39-year-old, developmentally disabled woman. 65 Wn.

App. at 723. The defendant invited the victim over to his house to try on clothes.

Weisberg, 65 Wn. App. at 723. The defendant helped the victim undress, asked her to

lie on his bed, and had intercourse with her. Weisberg, 65 Wn. App. at 723-24. The

victim testified that she did not try to stop the defendant because she was afraid that he


          2 For an example of a threat-based case see, e.g., State v. Perez, No. 69005-1-1, slip op. at 42
(Wash. Ct. App. July 14, 2014)(unpublished), http://www.courts.wa.goviopinions/pdf/690051.pdf(The
defendant and another party threatened to kill the victim if she did not have sex with them. The victim
"testified that she thought[the defendant] would kill her if she did not have sex with them and that she had
seen them both with guns."). For an example of a physical force case, see State v. Quasim, noted at 168
Wn. App. 1034, 2012 WL 2086961, at *1, *3(The court held that there was sufficient evidence of forcible
compulsion because the victim "was badly injured in a physical confrontation the night of the rape [and]
[t]here was ample evidence. . . that[the victim] suffered significant injuries to her head, face, and vaginal
area.").
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No. 76756-9-1/9

would hurt her. Weisberg, 65 Wn. App. at 724. At no point did the defendant use

physical force or expressly threaten the victim. Instead, the State argued only that the

defendant "through his conduct and the circumstances, impliedly threatened [the victim]

such that she feared physical injury if she did not comply with his demands." Weisberg,

65 Wn. App. at 725. On appeal, the court held that "there must be some evidence from

which the jury could infer that not only did [the victim] perceive a threat, but also that

[the defendant] in some way communicated his intention to inflict physical injury in order

to coerce compliance." Weisberg, 65 Wn. App. at 726.

       Here, unlike in Weisberg, Hoston exerted physical force on the victim. The jury

did not have to find that the victim perceived a threat or that Hoston communicated an

intent to inflict physical injury, as Hoston's proposed instruction would have required,

because Hoston inflicted physical injury. The jury simply had to find that Hoston exerted

physical force which overcame resistance, as the trial court instructed. Therefore,

Hoston's proposed instruction misstated the law as applicable to this case and, if

accepted, would have risked confusing the jury.

       The trial judge did not err in refusing to instruct the jury according to Hoston's

proposed instruction.

                                             IV.

       Finally, Hoston argues that his convictions for rape in the first degree and assault

in the second degree constitute double jeopardy because they constituted a single

course of conduct. We disagree.

       Both the state and federal constitutions prohibit a court from enforcing multiple

punishments against the same individual for the same offense. U.S. Const. amend. V;


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Washington Const. art. I, § 9; State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995).

We review alleged double jeopardy and merger violations de novo. State v. Freeman,

153 Wn.2d 765, 770, 108 P.3d 753(2005).

       When reviewing an alleged double jeopardy violation, the reviewing court first

considers "any express or implicit legislative intent." Freeman, 153 Wn.2d at 772.

"[W]hen the degree of one offense is raised by conduct separately criminalized by the

legislature, we presume the legislature intended to punish both offenses through a

greater sentence for the greater crime." Freeman, 153 Wn.2d at 772.

       Under the "same evidence" rule, a defendant's double jeopardy rights are

violated "if he or she is convicted of offenses that are identical in both fact and law."

Calle, 125 Wn.2d at 777.     However, "if each offense, as charged, included elements

not included in the other, the offenses are different and multiple convictions can stand.

Calle, 125 Wn.2d at 777. Washington's same evidence test is similar to that approved

in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,75 L. Ed 306 (1932):

       The applicable rule is that, where the same act or transaction constitutes a
       violation of two distinct statutory provisions, the test to be applied to
       determine whether there are two offenses or only one, is whether each
       provision requires proof of a fact which the other does not.

       Here, assault in the second degree and rape in the first degree are not the same

in law as they each contain elements not required in the other. To convict Hoston of

rape in the first degree, the State had to prove that the Hoston had sexual intercourse

with Duncan; the sexual intercourse was by forcible compulsion; that Hoston feloniously

entered the building where Duncan was; and that the act occurred in the state of

Washington. To convict Hoston of assault in the second degree, the State had to prove

that Hoston intentionally assaulted Duncan by strangulation; and the act occurred in the

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state of Washington. The rape charge required proof of felonious entry into the building

which was not required for assault. The assault charge required proof of strangulation,

which was not required for rape. The two crimes were not the same in law.

       The two crimes were also not the same in fact. The rape charge was supported

by the facts that Hoston broke into Duncan's apartment and forcibly raped her by

tearing off her pants and having sexual intercourse with her. The assault charge was

supported by facts that Hoston strangled Duncan. Even if some of the facts overlapped,

evidence was presented supporting each crime. Under the facts of this case, rape in

the first degree and assault in the second degree are neither the same in fact nor in law.

The trial court did not violate Hoston's right to be free from double jeopardy.

       Hoston also contends that his convictions for rape in the first degree and assault

in the second degree should have merged at sentencing. Hoston relies on State v.

Johnson, 92 Wn.2d 671, 680,600 P.2d 1249(1979). In Johnson, the Supreme Court

"adopted a merger rule prohibiting separate conviction and punishment for criminal

offenses used to enhance another crime." State v. Collicott, 118 Wn.2d 649, 657, 827

P.2d 263(1992). In Johnson, the defendant picked up two hitchhiking women, took

them back to his house, and raped them at knife point. Johnson, 92 Wn.2d at 672. At

trial, the defendant was found guilty of first degree rape, first degree kidnapping, and

first degree assault. Our Supreme Court reversed the convictions as contrary to the

double jeopardy and merger doctrines. The court held that because both the assault

and kidnapping charges were necessary elements of first degree rape,"an additional

conviction cannot be allowed to stand unless it involves some injury to the person or




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property of the victim or others, which is separate and distinct from and not merely

incidental to the crime of which it forms an element." Johnson, 92 Wn.2d at 680.

       RCW 9.79.170(1) provides:

       A person is guilty of rape in the first degree when such person engages in
       sexual intercourse with another person not married to the perpetrator by
       forcible compulsion where the perpetrator or an accessory:
              (a) Uses or threatens to use a deadly weapon; or
              (b) Kidnaps the victim; or
              (c) Conflicts serious physical injury; or
              (d) Feloniously enters into the building or vehicle where the victim is
                  situated.

Former RCW 9.79.170(1)(1975); RCW 9A.44.040. In Johnson, the defendant's

convictions were required to merge because his actions in kidnapping and assaulting

the victims were necessary elements of his conviction of rape in the first degree. If the

defendant had not kidnapped or assaulted the victims, he could not have been found

guilty of first degree rape.

       Here, however, Hoston's assault conviction was not a necessary element of his

conviction of first degree rape because Hoston was charged with rape while feloniously

entering the building where the victim was situated. The jury was instructed that that

"[a] person commits the crime of rape in the first degree when he or she engages in

sexual intercourse with another person by forcible compulsion when he or she

feloniously enters into the building or vehicle where the other person is situated." WPIC

40.01; RCW 9A.44.040. Accordingly, the fact that Hoston also assaulted the victim did

not elevate his charge from a lower degree of rape to rape in the first degree. As such,

Hoston's assault and rape convictions were not required to be merged at sentencing.




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      We affirm.




WE CONCUR:




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