                                                                                                        FILED
                                                                                          COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE                                          OF WASHIN I:     i1


                                                     DIVISION II
                                                                                                            r
                                                                                                STET. $ F
 STATE OF WASHINGTON,                                                              No. 44906 -4 -II
                                                                                                BY
                                        Respondent,


          v.



 ROBERT E. JAMES,                                                         UNPUBLISHED OPINION


                                        Appellant.


         MELNICK, J. —         Robert E. James appeals his jury conviction for rape in the second degree.'

He argues that the trial court abused its discretion by admitting the survivor' s statement as recorded

recollection under        ER 803 (a)( 5),   and that the State presented insufficient evidence to prove beyond

a reasonable doubt that James committed rape in the second degree. In his statement of additional

grounds (   SAG),    James further asserts that the trial court erred by instructing the jury on defense

of consent, the trial court improperly instructed the jury on the lesser degree rape in the second

degree, and ineffective assistance of counsel. Rejecting James' s arguments, we affirm.

                                                         FACTS


I.       SUBSTANTIVE FACTS


         On June 30, 2012, S. C. was inebriated and accepted a ride from James as she stumbled

down the road. After driving around and purchasing alcohol, they went to the Thunderbird Motel
and rented a room.          A motel employee, Charlie Kim, saw S. C. in James' s car drinking whiskey,

and saw     S. C.   and   James "   hugging    and   kissing in   the parking   lot."   Report of Proceedings ( RP)


 Mar. 26, 2013) at 38.




     RCW 9A.44. 050
44906 -4 -II




           A number of tenants at the motel became involved, including Wendy Taylor and Christa

Anderson.         Wendy    Taylor heard screaming coming from James'                           s room.    She described what she


heard                                   real        bad, somebody         got   hurt."    RP ( Mar. 26, 2013)    at   53.    The next
          as "   crying, screaming


morning, Kim found S. C. in the doorway of the motel room. S. C. was nude and had blood on her.
She    said    to Kim, "' Rape,    rape.       I'   m   hurt, hurt. Call the      police. "'   RP ( Mar. 26, 2013) at 36.


           Kim     asked another     tenant, Christa Anderson, to                  help   S. C. Anderson observed blood and


feces on the back of S. C.' s leg. As she helped S. C. get dressed, S. C. was in pain and said she was

 raped."         RP ( Mar. 26, 2013)      at    62. S. C. told Anderson            she was raped "       from her back      side."   RP


 Mar. 26, 2013) at 64. Anderson knew S. C. and said S. C. was groggy, drowsy, and " droggier [ sic]

than     normal."    RP ( Mar. 26, 2013) at 63. Additionally, Anderson observed a " trashed" motel room

with the phone ripped out of the wall. RP ( Mar. 26, 2013) at 62.

           Law enforcement responded and transported S. C. to the hospital where Officer Jason

Capps interviewed her, shortly after S. C.' s arrival. During the interview, he observed a bruise on

S. C.'   s neck.     Officer Capps      obtained a written statement                 from S. C.     S. C. could not write at that


time,     so   Officer Capps      wrote    the      statement     for her   and read      it back to her. When Officer Capps


showed S. C. a photo lineup, she identified James as the man who raped her. S. C. testified that the

man in the photo lineup is the same person she was with in the motel room.

            Nurse Miriam Thompson                       examined    S. C.       Thompson observed a milky white liquid

between S. C.' s buttocks cheeks and obtained an anal swab. During the examination, S. C. reported

that     James anally      penetrated     her       with   his   penis.    S. C. further stated that James, while on top of

S. C., had his hands           around   her     neck and strangled          her.    Thompson observed small red marks on


S. C.'   s neck,    but   no   blood. Thompson also noted that S. C. had a clear voice, could swallow and


drink, and did not have tissue swelling to her airway. During the exam, S. C. told Thompson that



                                                                      2
44906 -4 -II



she   had   multiple personalities.          However, Thompson testified that she didn' t recognize any odd

personality when she examined S. C.

         The medical staff diagnosed S. C. with an anal tear. As a result of the assault, she spent ten


days in the hospital, required three surgeries, and needed a colostomy bag for two months.

         The police investigation of the motel room revealed several empty and partially empty

alcohol containers. Various articles of clothing were scattered around the room, including S. C.' s

underwear and a pair of James' s underwear, both stained with James' s blood. The bathroom sink

of the motel room contained a white washcloth with blood and feces on it.

            James provided a DNA2 sample to law enforcement. The State presented evidence that a

swab from S. C.' s neck contained a mixed DNA profile consistent with James and S. C. The entire

male   DNA located          on   S. C.   matched   James.     The anal swab obtained from S. C. contained P30, a


protein commonly found in semen. However, it could not be matched to a DNA profile because
it did not contain sperm cells or ejaculate.


            The State, by amended information, charged James with rape in the first degree.3
II.         RECORDED RECOLLECTION


            Before trial, the State notified the court that it expected S. C. to have considerable difficulty

remembering the          events of       June 30 to   July   1, 2012. Therefore, the State expected to offer S. C.' s


statement to Officer Capps under the recorded recollection exception to the hearsay rule.4 As

anticipated,     S. C.     proved   to have insufficient        recollection   to   testify fully   and   accurately.   S. C.


testified     that   her    problem       with   alcohol     affects   her   long -term   memory.         She had trouble




2 Deoxyribonucleic acid.

3 RCW 9A.44. 040( 1)

4
    ER 803( a)( 5)
44906 -4 -I1




remembering everything that happened, but did recall being in the motel room. She remembered

 crawl[ ing] over to the door" nude to seek help because her stomach and " behind" hurt too much

to walk. RP ( Mar. 26, 2012) at 8, 9.


        During trial, the State questioned S. C. about her statement to Officer Capps, and S. C.

identified her    signature   on    the   statement.      She initially testified that she may have signed an

inaccurate statement. However, S. C. also testified that it would be her normal habit to tell the truth

to a police officer and that the information she gave to Officer Capps is what she remembered

happening. Officer Capps testified that S. C. was coherent, cooperative, and did not have trouble

communicating when she made the statement. She signed the statement voluntarily.

          After hearing the statement and the testimony of S. C. and Officer Capps, the trial court
excused the jury, heard argument, and found that the State demonstrated the necessary foundation

ER 803( a)( 5) requires and admitted S. C.' s statement. The court commented,

          I don' t think [ S. C.]was at all trying to portray that it' s not what she said to the
          officer[,] ...   she, in fact, was doing her best I guess at the time to state what
          happened accurately.            The   officer   who    was   taking it down   said   he [ did so]

          accurately, he read it back to her and she agreed that that' s what she recalled
          subjectively.


RP ( Mar. 26, 2013) at 101.


III.      JURY INSTRUCTIONS


          The State proposed a jury instruction on the lesser included crime of rape in the second

degree.    James objected to the instruction on the grounds that the State had not offered sufficient

evidence of mental incapacity. The trial court overruled his objection and submitted the instruction

to the jury. The jury returned a verdict finding James guilty of rape in the second degree. James
appeals.




                                                             4
44906 -4 -II



                                                          ANALYSIS


I.       PAST RECOLLECTION RECORDED


         James argues that the trial court abused its discretion by admitting the statement because

the State did not prove by a preponderance of the evidence that the statement pertains to a matter

about which S. C. once had knowledge, that S. C. made the statement when the matter was fresh in

her memory, and that the record reflects S. C.' s prior knowledge accurately. We disagree and hold

that the trial court did not abuse its discretion.


         A.        Standard of Review


         We review admission of statements under ER 803( a)( 5) for an abuse of discretion. State

v.   Derouin, 116 Wn.           App.   38, 42, 64 P. 3d 35 ( 2003). "         A trial court abuses its discretion if it

improperly      applies an evidence rule."             State v. Nava, 177 Wn. App. 272, 289, 311 P. 3d 83 ( 2013,

review   denied, 179 Wn.2d 1019 ( 2014).                     The proponent of the statement must establish the


elements of a required foundation by a preponderance of the evidence. State v. Benn, 120 Wn.2d

631, 653, 845 P. 2d 289 ( 1993). "               The preponderance of the evidence standard requires that the


evidence      establish   the   proposition at        issue is   more   probably true than   not   true."    Mohr v. Grant,


 153 Wn.2d 812, 822, 108 P. 3d 768 ( 2005).                      We uphold the trial court if its determination of the


                questions       is   supported   by   substantial evidence.     Benn, 120 Wn.2d        at   653. Substantial
preliminary


evidence is evidence sufficient to persuade a rational, fair -minded person of the asserted premise.

State v. Homan, 181 Wn.2d 1,02, 106, 330 P. 3d 182 ( 2014).

         B.        The Trial Court Properly Admitted S. C.' s Statement as a Recorded Recollection

         A recorded statement given to police is inadmissible hearsay unless it falls under an

 exception to the hearsay rule. ER 802. ER 803( a)( 5) is one such exception.

         A memorandum or record concerning a matter about which a witness once had
         knowledge but now has insufficient recollection to enable the witness to testify



                                                                    5
44906 -4 -II




           fully and accurately, shown to have been made or adopted by the witness when the
           matter was fresh in the witness' memory and to reflect that knowledge correctly. If
           admitted, the memorandum or record may be read into evidence but may not itself
           be received as an exhibit unless offered by an adverse party.

ER 803( a)( 5). "     A   recorded recollection         is   admitted as substantive evidence."   Nava, 177 Wn. App.

at 290.


           Before a recorded recollection may be admitted, the proponent of the evidence must

demonstrate, by a preponderance of the evidence, that:

            1) the record pertains to a matter about which the witness once had knowledge, (2)
           the witness has an insufficient recollection of the matter to provide truthful and
           accurate      trial   testimony, ( 3) the record was made or adopted by the witness when
           the   matter     was    fresh in the     witness' s     memory,   and (   4) the record reflects the
           witness' s prior knowledge accurately.

Nava, 177 Wn. App. at 290.

                    1.            The record pertains to a matter about which S. C. once had knowledge.

           Substantial evidence supports the trial court' s findings that the statement pertained to a

matter about which S. C. once had knowledge, and that S. C. made the statement while the matter


was fresh in her memory. Though S. C. may have been under the influence of alcohol at the time
of   the   assault,. she    had knowledge          of what     happened to her.      She conveyed to the officer what


happened to her during the sexual assault in a coherent manner.

                    2.            S. C. had an insufficient recollection of the matter to provide truthful and
                                  accurate trial testimony.

           The record clearly demonstrates S. C.' s insufficient recollection at trial about what

happened to her.           S. C. testified that she could not remember how she got from James' s car to the

motel room.         When         asked what   happened in the          motel room,   S. C. testified, " I don' t remember


anything."       RP ( Mar. 26, 2013)          at   8.   Although she testified that she remembered being in the

motel room and seeking help, S. C. could not testify about the sexual assault.



                                                                   6
44906 -4 -I1



                    3.         The record was made and adopted by S. C. when the matter was fresh in her
                               memory.


         S. C. went immediately from the motel room in which the incident occurred to the hospital

where    Officer Capps took her              statement    shortly     after   S. C.'   s arrival.    She signed the statement


immediately        after   making it.      Accordingly, the matter was fresh in her memory at the time she

made the statement.


                    4.         The record reflects S. C.' s prior knowledge accurately.

         ER 803( a)( 5)' s language does not require that the witness testify or personally vouch to the

accuracy    of    the    recorded statement.         Nava, 177 Wn.       App.     at   293. "[   O] ther evidence establishing


the accuracy of [a recorded recollection] could be just as credible as, if not more so, than the
declarant' s testimony         at   trial that the   statement was accurate when made."                Derouin, 116 Wn. App.

at 46. To determine whether the record accurately reflects the witness' s prior knowledge,

           t]he court must examine the totality of the circumstances, including ( 1) whether
          the witness       disavows accuracy; ( 2) whether the witness averred accuracy at the time
          of     making the         statement; (   3) whether the recording process is reliable; and ( 4)
          whether other indicia of reliability establish the trustworthiness of the statement.

State v. Alvarado, 89 Wn. App. 543, 551 -52, 949 P. 2d 831 ( 1998).

          Although S. C. initially testified that she may have been incapable of correcting a police

officer and would have signed an inaccurate document, she ultimately testified that the information

she gave    to Officer Capps is           what she remembered           happening. S. C. testified that it " seems like"

she had a recollection of what happened immediately following the events. RP ( Mar. 26, 2013) at

 13.   Contrary to James' s argument, S. C. signed the statement and identified her signature on it at
trial.   S. C.   also    testified that it   is her   normal   habit to tell the truth to           a police officer.   She never


recanted the statement. Thus, she never disavowed accuracy of the statement.




                                                                  7
44906 -4 -II




          S. C.      averred   accuracy    at   the time      of   making the     statement.      While speaking to Officer

Capps, S. C. did        not suggest      that   she was unsure of what she remembered.                     Officer Capps wrote


S. C.' s statement for her, then reread it and asked her to tell him if anything needed to be changed

or    taken   out.    She did    not make       any   changes, and       then   signed   the   statement   voluntarily. Officer


Capps advised S. C. that she did not have to sign the statement and did not make any promises to

her.


          The recording process is reliable because Officer Capps wrote S. C.' s statement and read it

back to her.          The record contains no suggestion that the written statement does not accurately

reflect S. C.' s account of her experience.


          Finally,      other   indica   of   reliability    support admission of         the   statement.   S. C. did not have


any trouble communicating with Officer Capps. He testified that, although S. C. appeared to be in
pain, she was coherent and able to make a coherent statement. The contents of the statement were


corroborated in varying degrees by the physical evidence and testimony of other witnesses.

          Substantial evidence supports the trial court' s findings and that the State proved all the

foundational          elements   by   a preponderance of           the   evidence.   We hold that the trial court did not


abuse its discretion when it admitted S. C.' s statement to Officer Capps.

II.       SUFFICIENCY OF THE EVIDENCE


          A.           Standard of Review


              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.   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 inferences that reasonably

can    be drawn       therefrom."     Salinas, 119 Wn.2d           at   201. Circumstantial evidence         and   direct   evidence
44906 -4 -II




are   equally       reliable.    State    v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). "                  Credibility

determinations          are   for the trier    of   fact   and cannot   be   reviewed on appeal."        State v. Camarillo, 115


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


           B.          Rape in the Second Degree


           James argues that the State did not provide sufficient evidence to support a conviction of


rape in the second degree. Specifically, he argues insufficient evidence existed to prove that sexual

intercourse occurred, that James used forcible compulsion to overcome S. C.' s resistance, and that


S. C.' s incapacitation prohibited her from consenting. We disagree.

           To support a conviction of rape in the second degree, the State had to prove beyond a

reasonable doubt that James, under circumstances not constituting rape in the first degree, engaged

in sexual intercourse with S. C. by forcible compulsion, or, alternatively, when S. C. was incapable

of consent by reason ofbeing physically helpless or mentally incapacitated. RCW 9A.44. 050( 1)( a)
and (   b).        When viewed in the light most favorable to the State, sufficient                            evidence exists   to


convince the jury that the sexual intercourse occurred by forcible compulsion and that S. C.' s
intoxication made her unable to understand the nature or consequences of sexual intercourse at the

time it occurred.


              C.        The Record Contains Sufficient Evidence to Support the Conviction

                        1.        Sexual Intercourse


              Sexual intercourse is defined as " the sexual organ of the male entered and penetrated the

sexual organ of          the female ...         however       slight" or "   any   penetration of   the ...   anus however slight,


by    an   object,      including     a    body      part."     Clerk' s Papers ( CP)       at   47 ( Instr. 5);   see also RCW

9A.44. 010( 1).




                                                                        9
44906 -4 -II



         Kim, Anderson, and Officer Capps each testified at trial that S. C. said she was raped.

Anderson       observed     blood   and    feces   on    the back       of   S. C.'   s   leg   the morning         of   July   1, 2012.   S. C.


told Thompson that           James anally         penetrated        her     with   his     penis.    A lab test detected a protein


commonly found in            semen on       the    anal      swab    taken from S. C. on                July   1,   2012.       Medical staff


diagnosed and treated S. C. for an anal tear. Additionally, Thompson observed a milky white liquid

between S. C. s buttocks cheeks. James admitted that he attempted to have sexual intercourse with

S. C. When viewed in the light most favorable to the State, a rational fact finder could find that


sufficient evidence existed to prove beyond a reasonable doubt that sexual intercourse occurred.

                     2.       Forcible Compulsion


             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." CP at 47 ( Instr. 6);

see also     RCW 9A.44. 010( 6). "[         F] orcible compulsion is not the force inherent in any act of sexual

touching, but rather is that `used or threatened to overcome or prevent resistance by the [ victim]."
State   v.   Ritola, 63 Wn.       App.   252, 254 -55, 817 P. 2d 1390 ( 1991) (                      quoting State v. McKnight, 54

Wn. App. 521, 527, 774 P. 2d 532 ( 1989)).

             Here, Thompson testified that S. C. told her "[ James] held her down with his hands around


her   neck     and   his   body   weight on       top    of   her"     and " strangled          her."      RP ( Mar. 27, 2013) at 59.


Thompson         observed a       bruise   on   S. C.'   s   left knee       and marks          on   her   neck.         Officer Capps also


observed bruises on both sides of S. C.' s neck and a scrape on her bicep. When viewed in the light

most favorable to the State, a rational fact finder could find that sufficient evidence existed to

prove beyond a reasonable doubt that that James used forcible compulsion to overcome S. C.




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44906 -4 -II



                     3.        Mental Incapacity

              Consent" means " that at the time of the act of sexual intercourse there are actual words or


conduct       indicating freely   given agreement         to have   sexual   intercourse."   CP    at   48 ( Instr. 10);   see




also   RCW 9A.44. 010( 7). "          Mental incapacity" is a " condition existing at the time of the offense

that prevents a person from understanding the nature or consequences of the act of sexual

intercourse whether that condition is produced by illness, defect, the influence of a substance, or

from    some other cause."        CP   at   48 ( Instr. 11); see also RCW 9A.44. 010( 4).


          S. C. began drinking alcohol at 8: 00 A.M. on June 30, 2012. S. C. is approximately five feet

tall   and weighs     115   pounds.    She drank approximately 24                       h] igh [ g] ravity" beer before
                                                                             ounces of "[




leaving   her    apartment and was "[        p] retty intoxicated."    RP ( Mar. 26, 2012)        at   6, 7. Additionally,


James purchased beer, including the " high gravity type of beer" that S. C. requested. RP ( Mar. 27,

2013)    at   113.   He knew S. C: consumed alcohol, including whiskey, and that they " got obviously

a   little too drunk."      RP ( Mar. 27, 2013)      at   99. Anderson testified that S. C. seemed " like she had


taken something,"           and that S. C. was groggy and drowsy on the morning after the sexual assault.

RP( Mar. 26, 2012) at68.


              A finding that a person is mentally incapacitated for the purposes of RCW 9A.44. 010( 4)

is appropriate where the jury finds the victim had a condition which prevented him or her from

meaningfully understanding the               nature or consequences of sexual         intercourse."       State v. Ortega -


Martinez, 124 Wn.2d 702, 711, 881 P. 2d 231 ( 1994). When viewed in the light most favorable to


the State, a rational fact finder could find that sufficient evidence existed to prove beyond a


reasonable doubt that S. C. was debilitated by intoxicants at the time of sexual intercourse and was

incapable of meaningfully understanding the nature or consequences of sexual intercourse at the




                                                               11
44906 -4 -II




time it occurred because she was intoxicated. Sufficient evidence supports all the elements of rape


in the second degree.


III      STATEMENT OF ADDITIONAL GROUNDS


         In his SAG, James further asserts that the trial court erred by instructing the jury on defense

of consent, the trial court improperly instructed the jury on the lesser included rape in the second

degree offense, and he received ineffective assistance of counsel. We hold that the trial court did

not err by instructing the jury on consent because it did not provide such instruction, the trial court

properly instructed the jury on the lesser included rape in the second degree offense, and that
James' s counsel was not ineffective.


         A.         No Consent Instruction


          James asserts that the trial court improperly instructed the jury on consent as an affirmative

defense. James is correct that he did not present a defense of consent at trial. Therefore, such an

instruction to the jury would be error. But the trial court did not instruct the jury on a defense of

consent. Accordingly, the trial court did not err.

          B.        Rape in the Second Degree Instruction


          James asserts that because the record contains no affirmative evidence that only rape in the

second degree occurred, the trial court erred by instructing the jury on the lesser degree crime of

rape in the second degree. We disagree.


          A trial court's decision about whether to instruct on a lesser degree offense involves the

application of law to facts that we review de novo. State v. FernandezMedina, 141 Wn.2d 448,

454, 6 P. 3d 1150 ( 2000) ( quoting State            v.   Peterson, 133 Wn.2d 885, 948 P. 2d 381 ( 1997, three -


part   test that   includes legal   and   factual   components);     State v. Dearbone, 125 Wn.2d 173, 178, 883

P. 2d 303 ( 1994) ( noting that      mixed questions of        law   and   fact   are reviewed   de   novo).   A jury may




                                                              12
44906 -4 -II



return a     guilty   verdict    to   a   lesser degree    crime of    the   one charged.'   A crime is an inferior degree


crime when



              1)   the statutes for both the charged offense and the proposed inferior degree
             offense ` proscribe          but   one offense'; (    2) the information charges an offense that is
             divided into degrees, and the proposed offense is an inferior degree of the charged
             offense; and ( 3) there is evidence that the defendant committed only the inferior
             offense.




Peterson, 133 Wn.2d at 891 ( quoting State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 ( 1979);

State   v.    Daniels, 56 Wn.             App.    646, 651, 784 P. 2d 579 ( 1990)).          Here, James argues that the


evidence at trial was insufficient to establish that he committed only rape in the second degree.

             Recently, we addressed a similar issue in State v. Corey, 181 Wn. App. 272, 325 P. 3d 250,
review       denied, 181 Wn.2d 1008 ( 2014). In that case, we explained the standard for determining


when a trial court may instruct a jury on a lesser degree offense as follows:

             When determining whether the evidence at trial was sufficient to support the trial
             court's giving of a lesser- degree offense jury instruction, we view the supporting
             evidence in the light most favorable to the instruction' s proponent, here the State.
             Fernandez—  Medina, 141 Wn.2d at 455 -56. But such supporting evidence must
             consist of more than the jury' s disbelief that the defendant committed the greater -
             degree offense and, instead, must affirmatively establish that the defendant
             committed      the lesser- degree          offense.    FernandezMedina, 141 Wn.2d              at   456.   A
             trial court   should give a requested           lesser- degree jury instruction "` [ i] f the evidence

             would permit a jury to rationally find a defendant guilty of the lesser offense and
             acquit   him   of   the      greater. "'   FernandezMedina, 141 Wn.2d             at   456 ... (    quoting
             State v. Warden, 133 Wn.2d 559, 563, 947 P. 2d 708 ( 1997)).


Corey, 181 Wn. App at 276.




5 RCW 10. 61. 003 provides

             Upon an indictment or information for an offense consisting of different degrees,
             the jury may find the defendant not guilty of the degree charged in the indictment
             or information, and guilty of any degree inferior thereto, or of an attempt to commit
             the offense.




                                                                      13
44906 -4 -II




            In Corey, we determined that the evidence supported giving a lesser degree instruction

because the victim' s testimony, if believed, could support both a finding of forcible compulsion

and a   finding     of no   forcible   compulsion      based   on   the legal definition        of   forcible   compulsion.   181


Wn. App. at 280. In that case, the victim' s description of the defendant' s conduct was vague and

did   not   describe the level        of   force the defendant      used   to    achieve sexual       intercourse.   Corey, 181

Wn. App. at 280.

            Here, the State charged James with rape in the first degree.


            A person is guilty of rape in the first degree when such person engages in sexual
            intercourse with another person by forcible compulsion where the perpetrator . .
             i] nflicts serious physical injury.

RCW 9A.44. 040( 1)(          c).   The elements of rape in the second degree are:


            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 ... [         or] [   w]hen the victim is incapable
            of consent by reason of being physically helpless or mentally incapacitated.
RCW 9A.44. 050( 1)(          a) & (   b).


            The facts in this case are analogous Corey. As discussed above, the evidence is sufficient

to support a finding that S. C. was incapable of consent by reason of being mentally incapacitated.

But the evidence, if believed, supports both a finding that James used forcible compulsion and a

finding that James did not use forcible compulsion.6 The jury could believe the evidence regarding

the force used by James and still find that his conduct did not amount to forcible compulsion. The
State presented evidence that James had his hands around S. C' s neck with his body weight on top

of her, strangling her. The State also presented evidence of resulting injuries: the marks on S. C.' s


6                                                                                               injuries.
    There is   no   dispute that the        rape resulted   in S. C.'   s serious physical                  However, contrary
to James' s assertion in his SAG, the issue regarding the lesser degree offense turns on forcible
compulsion because serious physical injury doesn' t elevate the crime of rape in the second degree
because of a victim' s mental incapacity to rape in the first degree.


                                                                 14
44906 -4 -II



neck and knees. But, other evidence established that the marks on S. C.' s neck were small and not


bleeding.      Additionally, Thompson testified that S. C. showed no other signs of strangulation

because she had a clear voice, could swallow and drink, and did not have tissue swelling to her

airway.


          Assuming the jury believed S. C.' s statements and other witness' observations, it could have
determined that the level of force used was the equivalent of forcible compulsion. However, the

jury could consider this evidence, in conjunction with Thompson' s testimony, and determine that

the   alleged   force did    not rise   to the level     of   forcible   compulsion.   Accordingly, following the

reasoning in our opinion in Corey, the trial court properly instructed the jury on both rape in the
first degree and rape in the second degree.

          C.      Ineffective Assistance of Counsel


          Ineffective assistance of counsel is a mixed question of law and fact that we review de

novo.    Strickland    v.   Washington, 466 U. S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).               A


defendant claiming ineffective assistance of counsel has the burden to establish that ( 1) counsel' s
performance      was    deficient   and (   2) the   performance prejudiced     the defendant'    s case.   Strickland,


466 U. S. at 687.      Failure to establish either prong is fatal to an ineffective assistance of counsel

claim.    Strickland, 466 U. S.      at   700.   An attorney' s performance is deficient if it falls " below an

objective standard of reasonableness             based    on consideration of all      the   circumstances."   State v.


McFarland, 127 Wn. 2d 322, 334 -35, 899 P. 2d 1251 ( 1995).                    Deficient performance prejudices a


defendant if there is a " reasonable probability that, but for counsel' s deficient performance, the

outcome of      the   proceedings would       have been different." State v. Kyllo, 166 Wn.2d 856, 862, 215


P. 3d 177 ( 2009).




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         Our scrutiny          of        counsel' s     performance       is   highly     deferential;   we strongly presume


reasonableness.            State    v.    Grier, 171 Wn.2d . 17, 33,                246 P. 3d 1260 ( 2011).        To rebut this


presumption, a defendant bears the burden of establishing the absence of any legitimate trial tactic

explaining     counsel' s performance.                 Grier, 171 Wn.2d        at   33.   If defense counsel' s trial conduct is


a legitimate trial strategy or tactic, it cannot serve as a basis for an ineffective assistance of counsel

claim.   State   v.   Lord, 117 Wn.2d 829, 883, 822 P. 2d 177 ( 1991), cert. denied, 506 U.S. 856 ( 1992).


                      1.       Defense of Consent Instruction


           James argues his trial counsel' s performance was deficient for failing to object to the

defense    of consent       instruction.         Because the trial court did not instruct the jury on consent, this

argument is without merit.


                      2.       Motion to Suppress


           James argues that his trial counsel' s performance was deficient for failing to move to

suppress the initial identification of James based on the photo montage. To pursue an ineffective

assistance of counsel argument on the basis of failure to seek suppression, James must establish

that a motion to suppress likely would have been granted. See State v. Walters, 162 Wn. App. 74,

81, 255 P. 3d 835 ( 2011).                 Here, the record on appeal provides insufficient evidence for us to

determine if a motion to suppress would have been granted. See Walters, 162 Wn. App. at 81.

                      3.           Psychiatric Examination of S. C.


           James argues that his trial counsel' s performance was deficient for failing to move for a

  psychiatric• examination"               of   S. C.   SAG at 13.     A psychiatric examination may be ordered only

upon a "     compelling       reason"          for   doing   so.   State v. Demos, 94 Wn.2d 733, 738, 619 P. 2d 968


             James fails to                                                         in the            that   would "   overcome the
  1980).                            identify         any compelling    reason                record




 strong presumption that psychological examinations of witnesses to crimes shall not be allowed"



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44906 -4 -II



and   justify   a mental     health   examination of      S. C.   State v. Israel, 91 Wn. App. 846, 853, 963 P.2d

897 ( 1998).      Accordingly, James cannot establish that defense counsel' s performance was deficient

for failing to seek an examination.

                    4.         Witnesses


          James argues that his trial counsel' s performance was deficient for failing to present experts

to   testify regarding S. C.'        s mental   health.   The decision whether to call a witness is generally

presumed     to be    a matter of      trial strategy or tactics.      State v. Thomas, 109 Wn.2d 222, 230, 743


P. 2d 816 ( 1987).          This presumption may be overcome by showing that the witness was not

presented    because        counsel   failed to   conduct   appropriate investigations.        Thomas, 109 Wn.2d at


230.     James fails to show that his trial counsel failed to conduct appropriate investigations.


Additionally, James fails to show that he was prejudiced by this alleged error. Accordingly, this
claim is without merit.


          Additionally, James argues deficient performance because his counsel did not present other

witnesses    to   testify   to the   presence of another person         in the   motel room.   James does not identify

any additional witnesses his counsel should have obtained or what testimony they may have
offered. Any fact related to the investigation and decision to call witnesses is outside of the record

on    appeal.      We do not address issues relying on facts outside the record on direct appeal.

McFarland, 127 Wn.2d at 335, 338 n. 5.


                     5.        Cross -Examination of S. C.


          James argues that his trial counsel' s performance was deficient for failing to question S. C.

on cross -examination about whether                James is the        person    who " assault[ ed]"   her.   SAG at 16.


Decisions regarding cross -examination are often tactical because cross -examination may not

provide evidence useful to the defense, or it may open the door to damaging rebuttal. In re Pers.



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44906 -4 -I1



Restraint of Brown, 143 Wn.2d 431, 451, 21 P. 3d 687 ( 2001).         James fails to show that there is no


conceivable legitimate tactic explaining his counsel' s performance. See Grier, 171 Wn.2d at 33.

Because James cannot establish that defense counsel' s performance was deficient, his ineffective

assistance counsel fails.


                    6.    DNA Investigation


        Finally, James argues that his trial counsel failed to adequately investigate the DNA report,

therefore resulting in    an   inadequate trial strategy.   The facts related to the development of trial


strategy are outside of the record on appeal. We do not address issues relying on facts outside the
record on direct appeal. McFarland, 127 Wn.2d at 338 n. 5.

        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




                         4,c4I
               gen, A.C. J.




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