                                                                        FILED
                                                                     AUGUST 6, 2019
                                                               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. 35611-6-III
                      Respondent,                  )
                                                   )
        v.                                         )
                                                   )
 JONATHAN ANDREW BENSON,                           )    UNPUBLISHED OPINION
                                                   )
                      Appellant.                   )

       SIDDOWAY, J. — Jonathon Benson appeals his conviction for indecent liberties,

challenging the sufficiency of the evidence to prove the element of forcible compulsion.

He also contends that the prosecutor committed misconduct in closing argument by

telling jurors that the victim was courageous for taking the stand and swearing an oath to

tell the truth to people she had not met before.

       The evidence established that the victim verbally objected to Mr. Benson’s

advances and then attempted without success to pull away from and push Mr. Benson

away. That is sufficient. And while the prosecutor’s unobjected-to statement about the

victim’s courage arguably appealed to jurors’ sympathy and bordered on vouching, it was

not so flagrant or ill-intentioned that it could not have been addressed by an admonition

to the jury. We affirm the conviction.
No. 35611-6-III
State v. Benson


       We compliment and thank both appellate counsel for their initiative in resolving

Mr. Benson’s remaining assignments of error without the need for decision by this court.

                    FACTS AND PROCEDURAL BACKGROUND

       On a late afternoon in mid-August 2016, Jonathan Benson and Julia Avon1 crossed

paths on the Yakima Valley College Campus. Neither was a student. The presence of

both was noted and monitored by campus security officers. The security officers wanted

to make sure that Mr. Benson, who was seen drinking alcohol in an adjacent park, did not

enter the campus with alcohol. Ms. Avon was apparently using an outlet in a campus

building to charge her cell phone, which—when done by a nonstudent—violated policy.

       The interaction between the two, little of which was witnessed by the campus

security officers, resulted in Mr. Benson being charged with indecent liberties by forcible

compulsion. At trial, the State relied largely on the testimony of Ms. Avon, although it

offered as corroboration evidence from the campus security officers, a responding police

officer, surveillance video, and Mr. Benson’s statement following arrest.

       Ms. Avon is evidently developmentally delayed, a matter we point out, as the State

did at trial,2 because her communication was different from what one would ordinarily



       1
         “Julia Avon” is a pseudonym.
       2
         The State elicited her testimony that Ms. Avon had been a special education
student and that her soccer team had participated in the Special Olympics. Apart from
establishing that she had been a forward on her soccer team, it did not delve further into
her abilities or any deficits.

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No. 35611-6-III
State v. Benson


expect from a 25-year-old woman—her age at the time of trial. She testified at trial that

Mr. Benson, whom she did not know, approached her in the campus building where she

was charging her phone. She recalled him saying that he wanted to give her a hug, and

she told him it would be okay. She did not have an objection to the hug. After that,

however, he kissed her on the neck, which she said was not okay, although she admits

she said nothing at the time because, as she put it, “I got scared inside my body.” Report

of Proceedings (RP) at 115. She “told him, like, like why are you kissing me, you

know?” Id. at 113.

       She testified that he went outside and he was “going crazy, like drinking.” Id. at

116. She testified that Mr. Benson told her to come over to him by a tree in a park on

campus and she went over to him, “[a]nd then he—and then he was like grabbing me.

And then I felt his dick on me. And then he turned and gave me a big old hug and I tried

to—and then I tried to move it away.” Id. Questioned in more detail about what the

State would rely on as Mr. Benson’s criminal conduct, Ms. Avon testified:

              Q      What did you feel?
              A      Like a dick, like his hard dick.
              Q      Okay. And just to clarify, a penis?
              A      Yeah, like a penis.
              Q      Okay. And did you notice anything about this dick?
             A      Well, he got like a boner and like when he got drunk, you
       know how guys get drunk and then and you know how they’ve got like a
       burner? Like they want to have sex.


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No. 35611-6-III
State v. Benson


               Q   Do you mean a boner?
               A   Yeah.
               Q   Is that the same thing as an erection?
               A   Right.
               Q   Okay. So, and then what was he doing when you felt the
      boner?
               A   Like, he was moving it back and forth.
               Q   And was he still hugging you?
               A   And he was still hugging me.
               Q   And what were you doing during the time that he was doing
      that?
               A   He was—
            Q      What were you doing during the time that he was hugging
      you and he had his boner on you?
               A   I was like pushing him away and walking back away.
               Q   Okay. You were pushing him away?
               A   Yeah.
               Q   How did that go?
               A   Not good.
               Q   Why do you say that?
               A   Because I have (indiscernible).
               Q   I’m sorry?
               A   I have (indiscernible).
             Q      Right. But it sounds like you were trying to push him away.
      Was it easy to push him away?
               A   No.
               Q   Okay. Were you—did he eventually stop?
               A   Yes.
               Q   What made him stop?


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No. 35611-6-III
State v. Benson


               A     Then he was stopping when, like, that I was walking away.
       Because he was dropping the bottle on the ground and then that’s why,
       that’s the day—that’s the time that he—that I walked away.
              Q      He was dropping the bottle on the ground?
              A      Yeah.
              Q      What kind of bottle?
              A      I don’t know, like vodka. Like alcohol, like lemonade.

Id. at 117-19. Ms. Avon testified a half dozen times to trying to push Mr. Benson away

or move away from him as he rubbed his erection against her.

       Ms. Avon testified that Mr. Benson was “a lot taller” than she was. Id. at 137.

Although she described herself as “like 5' 4",” id., both lawyers described her in closing

argument as even more petite. The prosecutor suggested she was perhaps “well under 5

feet, actually.” Id. at 343. And defense counsel observed, “as [the prosecutor] points out,

she’s not 5' 4".” Id. at 363.

       Two campus security officers testified at trial. One, Jeffrey Cornwell, had

approached Mr. Benson and Ms. Avon during their first encounter in the campus

building, and told them they both needed to move on. He testified that as he approached

Mr. Benson and Ms. Avon, they stood “chest to chest, face past ears, hands on [Ms.

Avon’s] posterior, a look of surprise on the female with her hands to her sides.” Id. at

189. He testified that Ms. Avon was not hugging Mr. Benson. Security officer Cornwell

said Mr. Benson was slurring his words and was a “little wobbly on his feet”; he opined

that Mr. Benson was “definitely over the legal limit if he was operating a motor vehicle.”


                                             5
No. 35611-6-III
State v. Benson


Id. at 192-93. Security officer Cornwell testified that both Mr. Benson and Ms. Avon

were cooperative and left the campus building, but that Ms. Avon returned and asked “if

she could leave out another exit and to please make sure [Mr. Benson] did not follow

her.” Id. at 193.

       A second campus security officer testified that having learned that Ms. Avon was

trying to get off campus and avoid Mr. Benson, he allowed her to use a phone. He also

approached a Yakima police officer who was near the campus and later escorted Ms.

Avon to where the officer, Bradley Althauser, had detained Mr. Benson, so that she could

make an identification and tell the officer what had happened.

       Officer Althauser arrested Mr. Benson for indecent liberties and took him to the

Yakima police station, where he questioned him after reading him his Miranda3 rights.

Mr. Benson admitted hugging Ms. Avon and “maybe” touching her butt. Id. at 254.

Asked why, he answered, “I was pretty buzzing.” Id. Further interrogation addressed

Ms. Avon’s allegation that he had rubbed his erect penis against her:

              OFFICER ALTHAUSER: . . . Did you hump the front of her leg—
       like dry hump her?
                MR. BENSON: Maybe, I don’t know.
                OFFICER ALTHAUSER: Maybe? Do you remember if you did?
                MR. BENSON: Maybe.




       3
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              6
No. 35611-6-III
State v. Benson


                 OFFICER ALTHAUSER: Maybe? Do you remember doing it at
          all?
                 MR. BENSON: No. (Indiscernible), no.
                 OFFICER ALTHAUSER: Oh, really? But you think maybe you
          did?
                 MR. BENSON: If I did, I’m sorry. I apologize to her.
Id. at 255-56.

          The jury was instructed that, to convict Mr. Benson of the crime of indecent

liberties, the State must prove beyond a reasonable doubt, among other things,

          (1) That on or about August[ ] 15, 2016 the defendant knowingly caused
          J.A. to have sexual contact with the defendant[, and]
          (2) That this sexual contact occurred by forcible compulsion.

Clerk’s Papers (CP) at 233. It was instructed that “[f]orcible compulsion means physical

force that overcomes resistance.” 4 Id. at 235.

          In closing argument, the prosecutor addressed, without objection by the defense,

the fact that Ms. Avon “is a little different than the rest of us.” Id. at 336. After

discussing why jurors should not discount her testimony because of those differences, he

stated:



        RCW 9A.44.010(6) has a longer definition of forcible compulsion: “‘Forcible
          4

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.”
      Mr. Benson points out in his briefing that the instruction at trial provided jurors
with only the first meaning but he does not assign error to the instruction, nor could he,
having failed to object to the instruction at trial.


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No. 35611-6-III
State v. Benson


               But, you know, she did—was able to and had the courage to take the
       stand, swear an oath to tell the truth in front of all these people that she’s
       never met before with the person that she says did all this in the room and
       tell you that that was something that happened.

Id. at 343.

       The jury found Mr. Benson guilty as charged. He appeals.

                                        ANALYSIS

       Mr. Benson challenges the sufficiency of the evidence to prove the element of

forcible compulsion and argues that the prosecutor’s closing argument about Ms. Avon’s

courage was improper, as vouching or as appealing to the passion of the jury.

I.     SUFFICIENCY OF THE EVIDENCE

       In reviewing a challenge to the sufficiency of the evidence to convict, we view the

evidence in the light most favorable to the State and determine whether any rational trier

of fact could have found the elements of the charged crime beyond a reasonable doubt.

State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007); State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State’s

evidence and all reasonable inferences from it. Salinas, 119 Wn.2d at 201. We defer to

the trier of fact “on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.” State v. Thomas, 150 Wn. 2d 821, 874-75, 83 P.3d 970

(2004), aff’d, 166 Wn.2d 380, 208 P.3d 1107 (2009).




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No. 35611-6-III
State v. Benson


       Forcible compulsion, being “‘physical force which overcomes resistance,’”

requires more physical impact than the impact inherent in the sexual contact. State v.

Ritola, 63 Wn. App. 252, 254, 817 P.2d 1390 (1991) (quoting RCW 9A.44.010(6)). Mr.

Benson likens his case to that in Ritola, in which this court held that indecent liberties

was not proved when the defendant reached out and squeezed the breast of a female

juvenile detention counselor. But in that case there was no resistance—the counselor

“had no time to resist.” Id. at 255.

       In this case, Ms. Avon testified that she resisted by trying to push Mr. Benson

away or pull away, but he continued to hug her. The evidence was sufficient for

reasonable jurors to find that his continuing to hold her close constituted forcible

compulsion.

II.    PROSECUTORIAL MISCONDUCT

       Mr. Benson argues it was prosecutorial misconduct for the prosecutor to tell the

jury in his closing argument that Ms. Avon was courageous to testify. Mr. Benson argues

the prosecutor’s statement amounted to improper vouching and that the State encouraged

the jury to render a verdict based on sympathy rather than on the evidence at trial.

       Prosecutorial misconduct is not attorney misconduct in the sense of violating rules

of professional conduct. State v. Fisher, 165 Wn.2d 727, 740 n.1, 202 P.3d 937 (2009).

It is, instead, a term of art that refers to “prosecutorial mistakes or actions [that] are not

harmless and deny a defendant [a] fair trial.” Id. To succeed on a prosecutorial

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No. 35611-6-III
State v. Benson


misconduct claim, an appellant has the burden of establishing that the prosecutor’s

conduct was improper (as being at least mistaken) and was prejudicial. State v. Stenson,

132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). Where, as here, a defendant fails to

object in the trial court to a prosecutor’s statements, he waives his right to raise a

challenge on appeal unless the remark was so flagrant and ill-intentioned that it evinced

an enduring and resulting prejudice that could not have been neutralized by an

admonition to the jury. Id. at 719.

       It is improper for a prosecutor to personally vouch for or against a witness’s

credibility. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). In addition, a

prosecutor must seek convictions based on probative evidence and sound reason; he or

she may not use arguments calculated to inflame the passions or prejudices of the jury.

In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012).

       The State argues that read in context the prosecutor was merely trying to ask jurors

not to “look down on the facts [Ms. Avon] was imparting” simply because she expressed

them differently than other 25-year-old women would. Br. of Resp’t at 19. But the

prosecutor was able to address that legitimate issue in closing before he spoke of her as

courageous and as having taken an oath to tell the truth. Before the argument that is

challenged, the prosecutor had already told jurors that [Ms. Avon’s] differences were

       important for me to deal with because of the fact that when someone
       communicates with you, they send you all kinds of little messages on a
       subconscious basis, right? . . .

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No. 35611-6-III
State v. Benson


              And we also talked about the fact that we have to be careful about
       these cues though because sometimes they can mean different things.
       Someone could be nervous just because they’re shy and they’re talking in a
       big courtroom or they could be nervous because they’re not telling the
       truth. You know, they might look you in the eyes because they know that
       the best way to make someone believe them, whether they’re telling the
       truth or not, is to look someone straight in the eyes. On the other hand,
       someone might look down because they’re shy, it’s a cultural thing, a
       variety of different things.
              But, you know, [Julia] says some of her words kind of differently
       and we’ll talk about that. She just communicates a little bit differently and
       evaluating her testimony is going to be important . . . .

RP at 337.

       Later, talking to jurors about the way Ms. Avon said the word “hard,” the

prosecutor said,

       There was a vowel missing there and another consonant that’s not in when
       most people say it, but that’s [Julia] and her style of communication. Does
       it mean she’s not telling the truth? No, it just means—I would argue to you
       that she communicates a little differently than most of us do.

Id. at 343.

       At issue is whether it was misconduct for the prosecutor to go further, and say:

               But, you know, she did—was able to and had the courage to take the
       stand, swear an oath to tell the truth in front of all these people that she’s
       never met before with the person that she says did all this in the room and
       tell you that that was something that happened.

Id.

       Mr. Benson makes a legitimate argument that singling out a single witness in this

fashion—the victim, a developmentally delayed witness—was an appeal to the jury’s

sympathy and bordered on vouching. But it was a single statement, and in context cannot

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No. 35611-6-III
State v. Benson


reasonably be construed as flagrant or ill-intentioned. It could easily have been addressed

by an admonition to the jury.

      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:




Fearing,   1:




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