                                                                                                                 FILED
                                                                                                     COURT OF APPEALS
                                                                                                            DIVISION II

                                                                                                    20141 H 20 °'        o 10: 5
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
                                                                                                     5                         ON
                                                   DIVISION II

STATE OF WASHINGTON,                                                                 No. 43532 -2 -II


                                      Respondent,


        v.

                                                                               ORDER PUBLISHING
DONALD WAYNE COREY,                                                                       OPINION


                                      Appellant.


        APPELLANT has           moved        to   publish   the   opinion   filed   on   April 1, 2014.    The Court has


determined that the opinion in this matter satisfies the criteria for publication. It is now

        ORDERED,            that the motion to publish is granted and the opinion' s final

        paragraph reading:


                 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.


is deleted. It is further


        ORDERED, that this opinion will be published.
                                        i/                         A
        DATED this .                                                                                     2014.
                                 e/               day of / "(



                                                                                     Worswick, C. J.
                                                                                                        FILED
                                                                                               r' OVR   OF
                                                                                                             APPEALS
                                                                                             2014 APR - f
                                                                                                             API 9: 24
    IN THE COURT OF APPEALS OF THE STATE OF WASHING                                              huj "• TON
                                                   y
                                          DIVISION II

STATE OF WASHINGTON,                                                       No. 43532 - -II
                                                                                     2


                                 Respondent,


        v.



DONALD WAYNE COREY, .                                                UNPUBLISHED OPINION


                                 Appellant.


        WORSWICK, C. J. —    A jury returned verdicts finding Donald Wayne Corey not guilty of

indecent liberties with forcible compulsion, not guilty of second degree rape, and guilty of the

lesser- degree offense of third degree rape. Corey appeals his conviction, asserting that the trial

court erred by instructing the jury on the uncharged lesser- degree offense of third degree rape.
Because the evidence at trial supported a jury finding that Corey engaged in nonconsensual

sexual intercourse with the victim without forcible compulsion, we hold that the trial court did

noterrhy_
        instructing the jur__on the lesser =
                           y               degree offense of third degree rape a thus, we
                                                                                d
affirm Corey' s conviction.

                                                  FACTS


            One evening in 2012, 19- year -old AB went to a motel in Vancouver, Washington to visit
her 17- year -old friend ARB. 1 ARB was staying at the motel with her aunt and had invited AB to



1 We identify the sex crime victim and the juvenile witness by their -
                                                                     initials to protect their
privacy interests. General Order 2011 -1 of Division II, In Re the Use ofInitials or Pseudonyms
for Child Witnesses in Sex Crimes ( Wash. Ct.         App.),    available at

                          appellate and       trial   courts.
http: / /
       www.courts. wa.gov /
No. 43532 -2 -1I



the motel to use the pool and hot tub. AB and ARB entered the hot tub and began conversing

with a couple. Sometime after the couple left the pool area, Corey entered the hot tub and began

speaking with AB and ARB in a sexual manner. AB told Corey that she was 16 years old, that

she was not interested in men, and that she was dating ARB. Corey, who was then 63 years old,

told AB that he has had several girlfriends that were younger than her. Corey also asked AB if

she wanted to go to a nearby sex store with him; AB told him no.

        While in the hot tub, Corey began rubbing AB' s leg. AB pushed Corey' s hand away and

moved to the other side of the hot tub. Corey moved next to AB, slowly put his hand up her

shorts, and tried to touch her private areas. AB told Corey to stop and that she didn' t like to be

touched. Corey laughed and told AB that he wasn' t going to hurt her. According to AB, Corey
then tried to " cram his fingers inside" her. Report of Proceedings ( RP) at 68. When asked to

               this   statement,   AB   replied, "   He tried to   forcibly   put   his fingers inside   of me."   RP at
elaborate on




 68.


        AB left the hot tub and sat on the side of the pool. Corey entered the pool and tried to

    A
 pull   = irivGith Iiirn   A- " old-Cifey t- stop touching heraril pushed_
                            B              o= -                          hirriaway AB then-left "- – "-

 the pool and got back in the hot tub. Corey followed AB into the hot tub and bit her on the chest.

 Corey also took off his shorts and touched AB on her back with his penis. Corey also touched
 the inside of AB' s thighs and, when AB pushed his hand away, pushed his hand up further and

 digitally penetrated her vagina. AB pushed Corey back, saw ARB' s aunt walking by, and left
 the pool area.


         When AB and ARB got back to the motel room, ARB' s aunt encouraged AB to report the

 incident to the front desk. After reporting the incident to the front desk, AB left the motel.



                                                            2
No. 43532 - -II
          2



Following an investigation, the State charged Corey with indecent liberties with forcible
compulsion and second degree rape.


       At trial, over defense objection, the trial court instructed the jury on the offense of third

degree rape. The jury returned verdicts finding Corey not guilty of indecent liberties with

forcible compulsion, not guilty of second degree rape, and guilty of third degree rape. Corey

timely appeals his conviction.

                                              ANALYSIS



        Corey contends that the trial court erred by instructing the jury on the lesser- degree
offense of third degree rape. We disagree.


        Generally, a criminal defendant may only be convicted of crimes charged in the State' s
information. State   v.   Tamalini, 134 Wn.2d 725, 731, 953 P. 2d 450 ( 1998).   But, under RCW


10. 61. 003, a criminal defendant may also be convicted of a lesser -degree offense to a crime

charged in the information. State v. Fernandez- Medina, 141 Wn.2d 448, 453, 6 P. 3d 1150

 2000). RCW 10. 61. 003 provides:


        IIpori an indictmentor information foxa-
                                               ioffense =
                                                        consistingof-differeffdegrees,
        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.


        A trial court may instruct the jury on a lesser -degree offense only when the following
 factors are met:


           1) the statutes for both the charged offense and the proposed inferior degree
         offense ` proscribebut 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."




                                                     3
No. 43532 - -II
          2



Fernandez-Medina, 141 Wn.2d at 454 ( quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d

381 ( 1997)).   Corey challenges the third factor, arguing that the evidence at trial was insufficient
to establish that he had committed only third degree rape.

          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. Fernandez- Medina, 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. '
Fernandez- Medina; 133 Wn.2d at 456 ( quoting State v. Warden, 133 Wn.2d 559, 563, 947 P. 2d

708 ( 1997)).    A trial court' s decision about whether to instruct on a lesser- degree offense

 involves the   application of    law to facts,   which we review     de   novo.   Fernandez- Medina, 141


Wri:2dat454 (stating three =arttesftliafincludeslegal arilfactualcomponents); State T.
                   a       p                                                  -
 Dearbone, 125 Wn.2d 173, 178, 883 P. 2d 303 ( 1994) ( noting               that mixed questions of law and

 fact are reviewed de novo).


           Here, the State charged Corey with second degree rape under RCW 9A.44. 050( 1)( a).

 RCW 9A.44. 050( 1)( a) defines second degree.rape as follows:

           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.
No. 43532 -2 -II


 Forcible   compulsion' means           that `the force exerted was [( 1)]    directed at overcoming the •

victim' s resistance and [(      2)]   was more than that which is normally required to achieve

penetration. "'    State   v   Wright, 152 Wn.    App. 64,   71, 214 P. 3d 968 ( 2009) (      quoting State v.

McKnight, 54 Wn.                 521, 528, 774 P. 2d 532 ( 1989)).     In    other words, "   Forcible compulsion
                         App.

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 McKnight, 54 Wn. App. at 527).

          Third degree      rape   is an inferior degree    offense of second      degree   rape.      State v. leremia,


                         753, 899 P. 2d 16 ( 1995).      Former RCW 9A. 44. 060( 1)(          a) (   1999) defined third
78 Wn.    App'. 746,

degree rape as follows:


          A person is guilty of rape in the third degree when, under circumstances not
          constituting rape in the first or second degrees, such person engages in sexual
          intercourse      with another person, not married         to the    perpetrator . [         w]here the
          victim   did   not consent as      defined in RCW 9A.44. 010( 7)[ 2]        to sexual intercourse
          with the perpetrator and such lack of consent was clearly expressed by the
          victim' s words or conduct.



          Here, the evidence presented at trial.was sufficient to support the jury finding that AB, by

 her words or conduct, clearly expressed a lack of consent to engage in sexual intercourse with

 Corey. AB testified that after Corey made sexual advances toward her, she told him that she was
 not interested in men and that she was in a relationship with ARB. Then, when Corey began

 rubbing her leg, AB pushed his hand away and moved away from him. And when Corey tried to
 put his hand in AB' s shorts and tried to touch her private areas, AB told him to stop and that she


 2
     Under RCW 9A. 44. 010( 7), "`        consent' means that at the time of the act of sexual intercourse or
 sexual contact there are actual words or conduct indicating freely given agreement to have sexual
 intercourse   or sexual contact."
No. 43532 - -1I
          2



did not want to be touched. AB again told Corey to stop touching her and pushed him away after

he pulled her into the pool.

       The evidence also supported a reasonable inference that any force used by Corey to

achieve sexual   intercourse   with    AB    was not "`   more than that which is normally required to

achieve penetration.'"     Wright, 152 Wn. App. at 71 ( quoting McKnight, 54 Wn. App. at 528).

With regard to AB' s testimony about Corey rubbing her leg, initially trying to touch her private

areas, biting her chest, and touching her back with his penis, AB did not describe any force used

by Corey beyond that which was required to make physical contact with her. And although AB
testified that at some point in the evening Corey had pulled her shorts down and had "tried to

forcibly put   his fingers inside    of [her],"   she did not elaborate on what she had meant by

 forcibly,"   and did not describe Corey' s level of force or her resistance to such force. RP at 68
 emphasis added).     Thus, AB'      s statement   that   Corey " forcibly put his   fingers inside   of [her]"   did


not preclude a jury from . inding that the level of force Corey used was not more than what was
                         f

required to achieve sexual intercourse. Similarly, AB' s testimony that she had pushed Corey' s

hand - vvayfrom - ert1 ighsbeforeCorey " ushed his-haa d uptheremore" -ariddigitally - - -- ---- - -------- "-- -
     a          h                      p                 -
penetrated her vagina, did not preclude a jury from finding that Corey' s conduct did not amount

 to forcible compulsion. RP at 75.


        Corey    argues   that State   v.   Charles, 126 Wn.2d 353, 894 P. 2d 558 ( 1995), and Wright


 require us to reverse his third degree rape conviction. But Charles and Wright are clearly

 distinguishable from the present case. In Charles, the victim testified that the defendant

         grabbed    her   around     the    shoulders.    He then walked her past two houses and
         pushed her onto her back on the ground behind a bush. He took off her shoes, T-
         shirt, and socks,     and                removed    her jeans    and underpants.    She pleaded
                                     partially
         with   him to stop,   struggled, scratched        him,   and   may have hit him   once.   He then




                                                             6
No. 43532 -2 -II



          forcibly     engaged        in   vaginal   and   oral     intercourse   with   her. [    She] eventually

          managed to run away.

126 Wn.2d at 354. In contrast with the victim' s testimony, the defendant in Charles testified that

his   sexual    intercourse       with   the   victim was consensual.      126 Wn. 2d     at   354 -55.   Our Supreme


Court held that under these circumstances the trial court erred by instructing the jury on third

degree    rape,   reasoning that "[        i] n order to find Charles guilty of third degree rape, the jury would

have to disbelieve both Charles' claim of consent and the victim' s testimony that the act was -

forcible. But there is no affirmative evidence that the intercourse here was unforced but still

nonconsensual."            Charles, 126 Wn.2d at 356. Similarly in Wright, we held that the trial court

erred by instructing the jury on third degree rape where the victim testified that

           1)    she was pushed or pulled   into the room; ( 2) she did .
                                                                        not willingly lay down on
           the   bed; ( 3)someone pulled her clothes off of her body, she did not willingly
           remove     them; ( 4), she was held down on the bed by the body weight of one man
           while another man penetrated               her; ( 5)    something on her left side was.holding her
           shoulder back so that she could not get up; and ( 6) she told them to stop.

 152 Wn.       App.   at   73.     In so holding, we reasoned that the evidence at trial did not support a jury

 finding   that the defendant            committed " an unforced, nonconsensual rape."               Wright, 152 Wn. App.

 at 72.


           Here, unlike in Charles and Wright, the evidence at trial supported a jury finding that

 Corey did not engage in forcible compulsion to achieve his nonconsensual sexual intercourse
 with the victim. In contrast with the State' s evidence in Charles and Wright, in which the

 victims had provided detailed testimony regarding the specific instances where the defendants'

 exerted force to overcome their physical resistance to sexual intercourse, here AB' s descriptions

 of   Corey' s    conduct        in trying to " forcibly   put    his fingers inside   of [her]"   and pushing his hand up

 her thighs before digitally penetrating her vagina was vague and did not describe the level of

                                                                     7
No. 43532 - -II
          2


force   Corey   used   to   achieve sexual   intercourse.   Thus, unlike in Charles and Wright, the jury

here•could have believed the victim' s testimony but still have found that the defendant' s conduct

did not amount to forcible compulsion. Accordingly, the trial court did not err by instructing the

jury on third degree rape as a lesser- degree offense of second degree rape, and we affirm Corey' s
conviction.




         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:




                                                            8
