                                                                             FILED
                                                                           June 2, 2016
                                                                  In the Office of the Clerk of Court     i
                                                                                                          I
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                               DIVISION THREE                                                             I
STATE OF WASHINGTON,                           )
                                               )        No. 33021-4-111
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       v.
                     Respondent,               )
                                               )
                                               )
                                                                                                          Il
                                               )                                                          I
CHRIS LITO,                                    )
                                               )
                                                        UNPUBLISHED OPINION                               il

       KORSMO,
                     Appellant.                )

                 J. - Chris Lito appeals his conviction for second degree rape, arguing                   I
that the standard "reasonable belief' in the victim's ability to consent instruction

impermissibly shifted the burden to the defense. We reject that argument and decline to

consider his challenges to two financial components of his sentence.

                                          FACTS

       The victim, H.H., went out on April 2, 2013, to have a good time. She drank,

smoked marijuana, and eventually blacked out. She awoke later in a strange apartment

with her clothes off. She immediately went to a hospital and reported being raped.

       Mr. Lito was arrested and charged with one count of second degree rape under the

theory that H.H. was incapable of consent as a result of being physically helpless or

mentally incapacitated. RCW 9A.44.050(1 )(b ). The case proceeded to jury trial. H.H.
No. 33021-4-III
State v. Lita


and several witnesses testified, but Mr. Lito did not. Nonetheless, 1 the prosecutor agreed

to defendant's request to instruct the jury that it was a defense to the charge that Mr. Lito

had a reasonable belief that the victim had the ability to consent. Report of Proceedings

(RP) at 203-205. The instruction provided:

             It is a defense to a charge of rape in the second degree that at the
       time of the acts the defendant reasonably believed that [H.H.] was not
       mentally incapacitated or physically helpless.

              The defendant has the burden of proving this defense by a
       preponderance of the evidence. Preponderance of the evidence means that
       you must be persuaded, considering all the evidence in the case, that it is
       more probably true than not true. If you find that the defendant has
       established this defense, it will be your duty to return a verdict of not guilty.

Clerk's Papers (CP) at 20.

       The jury returned a verdict of guilty. Shortly thereafter the Washington Supreme

Court released its decision in State v. WR., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014),

holding that the affirmative defense of consent negated the forcible compulsion element

of a rape prosecution. Mr. Lito moved for a new trial on the basis of WR. The court

denied the motion and subsequently imposed an indeterminate sentence of 96 months to

life in prison, along with community supervision for life. The court additionally imposed

court costs, consisting of the crime victim's penalty assessment, the filing fee, and the



       I
         Our record does not establish the factual basis for the instruction. While there
was evidence suggesting that the victim was capable of consenting, there is no indication
that Mr. Lito believed she was capable.

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No. 33021-4-III
State v. Lita


DNA collection fee, totaling $800.00. The court also imposed restitution of $552.86.

The trial judge also noted that "it doesn't appear in the future there will be the ability to

pay." RP at 292. Mr. Lito then timely appealed to this court.

                                         ANALYSIS

       Mr. Lito primarily argues that instruction 12 misstated the law and wrongly placed

the burden on him to establish his reasonable belief that the victim could consent. He

also contends the trial court erred in imposing legal financial obligations, including the

DNA collection fee. We first address the new trial argument before turning, summarily,

to the remaining two claims.

       This court reviews a ruling on a motion for a new trial for abuse of discretion.

State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981). A trial court abuses its

discretion when it exercises discretion on untenable grounds or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). However, the

court reviews the legal accuracy of jury instructions de novo. State v. Jackman, 156

Wn.2d 736, 743, 132 P.3d 136 (2006).

       The Due Process clause of the Fourteenth Amendment to the United States

Constitution requires that the State bear the burden of proving, beyond a reasonable

doubt, all the elements of the charged crime. W.R. Jr., 181 Wn.2d at 762 (citing In re

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). However, the State

is not required to bear the burden on an affirmative defense that excuses a defendant's
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No. 33021-4-III
State v. Lita


otherwise illegal conduct. Id. at 762 (citing Smith v. United States, 568 U.S._, 133 S.

Ct. 714, 184 L. Ed. 2d 570 (2013)). The relevant inquiry is whether the defense negates

an element of the charged crime, i.e., whether the defense and the element can coexist.

WR., Jr., 181 Wn.2d at 765. Where the defense negates an enumerated element of the

crime, the defense cannot be forced to bear the burden of proof. Id. at 762. WR.

concluded that consent to sexual intercourse negated the forcible compulsion element of

second degree rape, thus making it error to place the burden of proving consent on the

defendant. Id. at 763.

      Mr. Lito argues that the trial court should have granted his motion for a new trial

in light of WR. He contends that the reasonable belief affirmative defense negated an

element of the crime that the victim was incapable of consent, thus violating his due

process rights by forcing him to bear the burden of proof. Division II recently addressed,

and rejected, this argument. State v. Lozano, 189 Wn. App. 117, 124, 3 56 P .3d 219
                                                                                             i'I
(2015), review denied, 184 Wn.2d 1032 (2016). Mr. Lito argues that the logic of Lozano       l


is flawed. Because Lozano is persuasive, his argument fails.                                 l
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      To prove rape by incapacity the State must prove two elements: (1) that the            !
defendant "engage[ d] in sexual intercourse with another person", and (2) that the sexual    Il
intercourse occurred "[ w ]hen the victim [was] incapable of consent by reason of being

physically helpless or mentally incapacitated." RCW 9A.44.050(1). However, a defense
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to the crime exists where "the defendant reasonably believed that the victim was not         I
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No. 33021-4-III
State v. Lito


mentally incapacitated and/or physically helpless." RCW 9A.44.030(1). "[T]he

defendant must prove [this defense] by a preponderance of the evidence." Id. Here, the

issue is whether the second element of the crime and the defense negate one another.

       Lozano involved a similar issue. There a man and a woman (C.C.) met online

through social media. 189 Wn. App. at 120. C.C. brought a friend (A.B.) to their

arranged meeting, and they all eventually went to Lozano's house. Id. He gave them

both a beer and took them up to his room. Id. A.B. slept, while Lozano and C.C. talked,

watched a movie, and had sex. Id. Eventually, C.C. also fell asleep. Id. Sometime later

C.C. woke to see Lozano having sex with A.B., who appeared to be asleep. Id. The State

charged Lozano with rape in the second degree on the theory that A.B. was physically

helpless or mentally incapacitated. Id. at 120-121. At trial, Lozano's theory was that

A.B. consented to sexual intercourse and that he reasonably believed she was capable of

that consent. Id. at 121. The trial court instructed the jury on the "reasonable belief'

defense, but the jury found him guilty. Id. On appeal, Lozano argued that the jury

instruction on the "reasonable belief' defense impermissibly shifted the burden of proof.

Id. at 121-122.

       This court rejected Lozano's argument, noting that the key to whether a defense

negates an element on the crime is whether the defense and crime can coexist. Id. at 123.

It held, in this situation, the defense and crime can coexist: "Lozano's burden to prove his

'reasonable belief that the victim was not mentally incapacitated and physically helpless

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No. 33021-4-III
State v. Lito


did not negate an element of the charged crime." Id. at 124. The court specifically noted

that the affirmative defense instruction "did not require Lozano to prove that the victim

could actually consent. It merely placed the burden on Lozano to prove that he

reasonably believed [she] could consent." Id. (emphasis added).

       Mr. Lito argues that the reasoning in Lozano is flawed because requiring him to

prove that he reasonably believed she could consent essentially requires him to show she

actually could consent. He relies on an old legal dictionary's definition of the word

"reasonable." Appellant's Br. at 11 (citing the Fifth Edition of Black's Law Dictionary).

Black's currently defines "reasonable belief' as "A sensible belief that accords with or

results from using the faculty of reason." Black's Law Dictionary 184 (10th ed. 2014).

Nothing in this definition requires that the belief be actually true in order to be

reasonable. In other words, subjectively a person could reasonably believe that another

was capable of consent, while simultaneously that person is objectively incapable of

consent. Because those facts can coexist, the affirmative defense does not negate an

element of the crime of rape by incapacity.

       The pattern instruction correctly stated the "reasonable belief' affirmative defense

and did not err by assigning the burden of proof to Mr. Lito.

       Mr. Lito additionally argues that the trial court erred in imposing the noted

financial requirements despite the fact that he cannot pay them. However, all of the

noted costs are mandatory assessments that are made without concern for the defendant's

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No. 33021-4-III
State v. Lita


ability to pay. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013) (mandatory

fees, that include victim restitution, victim assessments, DNA fees, and criminal filing

fees, operate without the court's discretion by legislative design); State v. Kuster, 175

Wn. App. 420, 424, 306 P.3d 1022 (2013) (victim assessment and DNA collection fee

mandatory).

       His remaining argument is that his due process rights were violated by imposition

of the DNA collection fee. He did not raise that argument to the trial court. Hence, this

argument is not manifest and we lack the basis to review it. State v. Stoddard, 192 Wn.

App. 222, 228-229, 366 P.3d 474 (2016).

       The conviction 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.




WE CONCUR:



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