      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            )
 STATE OF WASHINGTON,                       )         No. 75223-5-1
                                            )
                      Respondent,           )         DIVISION ONE
                                            )
              V.                            )
                                            )
 MICHAEL SHAWN STANLEY,                     )         UNPUBLISHED
                                            )
                     Appellant.             )         FILED: October 2, 2017
                                            )


      Cox, J. — Michael Stanley appeals, arguing that he was denied a fair trial

because the trial court declined to give his proposed instruction on consent in this

prosecution for second degree rape by forcible compulsion. Because "Forcible

compulsion" presumes nonconsent and there was no evidence of consent to

sexual intercourse by H.J., the complainant, we disagree and affirm.1

        H.J. lived in a rented home, alone but for her subletter Steven Barber.

Needing work done on the yard, she called a local organization that referred her

to Stanley. Stanley came and tended to her lawn on several occasions.




      1 See State v. W.R., 181 Wn.2d 757, 765, 336 P.3d 1134(2014).
No. 75223-5-1/2


       One night, H.J. was preparing for her usual neighborhood walk when she

heard a knock on the back door. Stanley was standing there. He asked to use

the washroom and to then sit in H.J.'s chair as he waited for the bus. H.J.

reluctantly agreed to both requests and left for her walk.

       When she returned, Stanley appeared to be gone. She entered the

house, locked the door, and prepared to take a shower. At that moment, she felt

someone approach from behind, place his hand over her mouth, and pull her

close. She asked who it was. He said "Michael."

       H.J. began to struggle, trying to kick, hit, and strangle Stanley. She loudly

yelled "Jesus will judge you."

       Stanley, now naked, ordered H.J. to lie down and take her pants off, which

she did, fearful that otherwise Stanley might kill her. Still, she yelled at him and

he covered her mouth with a couch pillow, telling her it would be "easier" if she

quit screaming. Stanley attempted to penetrate her. After he stopped, H.J.

washed, and the two spoke about what Stanley had done.

       H.J.'s friend from church urged her to call the police and she did. The

State charged Stanley with burglary in the first degree with sexual motivation and

rape in the second degree by forcible compulsion.

       After the parties rested, Stanley proposed the trial court give the jury

WPIC 18.25. That instruction provides that "[e]vidence of consent may be taken

into consideration in determining whether the defendant used forcible compulsion

to have sexual intercourse."




                                          2
No. 75223-5-1/3


         The trial court ultimately decided that there was insufficient evidence of

consent and declined to give this instruction. A jury found Stanley guilty of the

charged offenses, and the trial court duly entered its judgment and sentence on

the jury verdict.

         Stanley appeals.

                               CONSENT INSTRUCTION

         Stanley argues that the trial court violated his due process rights by

refusing to give his proposed instruction regarding the effect of consent evidence.

We hold there was no such violation in declining to give the instruction.

         Due process under the state and federal constitutions guarantees a

defendant a fair tria1.2 This protection requires trial courts to provide instructions,

if supported by the evidence, that allow the defendant to argue his theory of the

case.3

         We review de novo legal errors in jury instructions.4 But we review for

abuse of discretion a trial court's refusal to give an instruction based on

sufficiency of the evidence.5

         Until 2014, consent was an affirmative defense to second degree rape by

forcible compulsion, and trial courts provided jury instructions placing the relevant




         2 U.S. CONST. amend. XIV; CONST. art.   I, § 22.

         3 State   v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613(2009).

         "State    v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213(2005).

         5 State   v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883(1998).


                                           3
No. 75223-5-1/4


burden on the defendant.6 Former WPIC 18.25 stated that "[t]he defendant has

the burden of proving that the [sexual intercourse]... was consensual by a

preponderance of the evidence."

       The supreme court ruled this instruction unconstitutional in State v. W.R.7

In that case, the State charged W.R. with raping J.F. in the second degree by

forcible compulsion.8 W.R. initially denied that he had sexual intercourse with

J.F. and later admitted that he had, but contended that it was consensual.° After

a bench trial, the trial court found W.R. guilty of the charged crime "and that W.R.

had failed to prove the defense of consent by a preponderance of the

evidence."10 W.R. appealed, arguing that the court had unconstitutionally

required he prove consent.11

       The supreme court agreed. Due process, it held, allowed the legislature

to allocate the burden of proving an affirmative defense that "excuse[s] conduct

that would otherwise be punishable.'"12 But it could not require that the




      6 See       State v. Gregory, 158 Wn.2d 759, 801-04, 147 P.3d 1201 (2006).

      7 181       Wn.2d 757, 336 P.3d 1134 (2014).

      8    Id. at 760.

       9   Id.

       1° Id. at 761.

       11   Id.

       12Id. at 762 (internal quotation marks omitted)(quoting Smith v. United
States, 568 U.S. 106, 110, 133 S. Ct. 714, 719, 184 L. Ed. 2d 570 (2013)).


                                           4
No. 75223-5-1/5


defendant prove a defense that "necessarily negates an element of an offense."13

A defense negates an element if "the completed crime and the defense can[not]

coexist."14

       Applying this test to second degree rape, the court explained that lals

defined, forcible compulsion contemplates force that overcomes actual

resistance or threats."15 Such compulsion could not be found "when the victim

consents, as there is no resistance to overcome. Nor is there actual fear of

death, physical injury, or kidnapping when the victim consents."16 Thus, the

"State's burden to prove forcible compulsion encompasses the concept of

nonconsent."17

       Accordingly, while a trial court could require the defendant to "produc[e]

evidence to put consent in issue," that evidence need only be sufficient to raise a

reasonable doubt.18 But the supreme court cautioned that even if such evidence

is produced "[it is not necessary to add a new instruction on consent."19

       The Washington Pattern Instruction Committee, nonetheless, provided

such an instruction in current WPIC 18.25: "Evidence of consent may be taken


       13 Id.


       14   Id. at 765.

       16   Id.

       16   Id.

       17   Id. at 767.

       18   Id. at 768.

       19   Id. at 767 n.3.


                                         5
No. 75223-5-1/6


into consideration in determining whether the defendant used forcible compulsion

to have sexual intercourse."

       Here, the issue is whether sufficient evidence of consent supported giving

this instruction. After carefully reviewing the case authority and the record, the

trial court declined to give the proposed instruction. This was correct.

       Stanley failed to show evidence of consent. The strongest fact, he

contends, is that Barber, H.J.'s downstairs subletter, did not hear H.J. yell out.

This evidence fails to show that the complainant agreed to sexual intercourse,

the required standard.

       Consent is defined by statute as "actual words or conduct indicating freely

given agreement to have sexual intercourse or sexual contact" at the time of the

relevant act.2°

       Barber's testimony, as characterized by Stanley, could only show H.J.'s

silence. It does not show she gave consent to sexual intercourse. Moreover, it

could only serve to impeach H.J.'s credibility rather than show consent. And we

do not assess the credibility of witnesses.21

       Further, Barber also testified that he was listening to his TV or iPod after

drinking a few beers, and that he, a heavy sleeper, had "pretty much just

crashed" at the relevant time. He further testified that, while half asleep, he

heard loud arguments from H.J.'s apartment. Based on such testimony, the jury




       20   RCW 9A.44.010(7).

       21   State v. Williams, 93 Wn. App. 340, 348, 968 P.2d 26 (1998).'


                                          6
No. 75223-5-1/7


could reasonably find that H.J. had screamed but that Barber was unable to hear

it. Again, this fails to show her consent to sexual intercourse.

       Stanley also cites the absence of evidence showing forced entry. This is

irrelevant. It could only suggest consent to entry of the house, not sexual

intercourse.

       Stanley also cites the lack of a struggle in the house. The lack of a

struggle is distinct from "actual words or conduct indicating freely given

agreement to have sexual intercourse or sexual contact."22 So, this too is

irrelevant.

       Stanley cites the lack of DNA evidence supporting the charge of rape.

This too, is far from the requirement to show the complainant gave consent to

sexual intercourse.

       Stanley also argues that H.J.'s statements regarding the penetrative rape

were inconsistent. Again, this goes only to credibility, not consent to sexual

intercourse.

       Stanley also cites H.J.'s conduct after the rape. But consent defines

conduct at the time of the rape. Thus, any alleged conduct after is immaterial.

       In sum, Stanley failed to show any evidence sufficient to support the giving

of the proposed instruction. Accordingly, the trial court did not abuse its

discretion in declining to give WPIC 18.25.




       22   RCW 9A.44.010(7).


                                         7
No. 75223-5-1/8


         We need not reach Stanley's argument whether he can meet his burden of

production by citing evidence put forward by the State. Nor need we consider

the State's argument that WPIC 18.25 is "redundant" of the forcible compulsion

instruction and "need never be given in a rape by forcible compulsion case."

                                        COSTS

         Stanley argues that this court should decline to award the State appellate

costs should he not prevail. We agree.

         RCW 10.73.160(1) gives appellate courts discretion to decline to impose .

appellate costs on appea1.23 Under State v. Sinclair, there is a presumption that

indigency continues unless the record shows otherwise.24

         Here, the trial court found that Stanley is indigent. Nothing in this record

overcomes this presumption. Thus, an award of costs would be inappropriate. .

         We affirm the judgment and sentence and deny any award of costs to the

State.




WE CONCUR:




         23 State   v. Nolan, 141 Wn.2d 620, 629,8 P.3d 300(2000).                CD
                                                                                  Cri
     24 192 Wn. App. 380, 392-93, 367 P.3d 612, review denied, 185 Wn.2d
1034(2016).


                                           8
