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              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                       No. 67655-5-1


                               Respondent,                 DIVISION ONE

                 v.

                                                           UNPUBLISHED OPINION
DUSTY RAY GRANDLUND,

                              Appellant.                   FILED: March 4, 2013

          Schindler, J. — Dusty Ray Grandlund appeals his conviction of rape in the

second degree for engaging in sexual intercourse with 15-year-old K.C. in violation of

RCW 9A.44.050(1 )(b). Grandlund contends insufficient evidence supports the

conviction. In the alternative, he argues his attorney provided ineffective assistance of

counsel. We affirm.

                                                   FACTS

          In 2011, 15-year-old K.C, born February 18, 1995, lived with her brother and

sister-in-law in Arlington.1 K.C.'s 17-year-old friend D.L. and D.L.'s sister, 14-year-old
S.G., lived with their father Dusty Ray Grandlund on alternate weekends. Grandlund

lived near K.C. and K.C. often stayed with D.L. and S.G. when they stayed with their

father.



          1 K.C.'s brother and sister-in-law adopted K.C. after her mother died about four years before the
incident in this case.
No. 67655-5-1/2


       On January 8, 2011, K.C. went to Grandlund's house to spend the night with D.L.

and S.G.


       Grandlund's house has two bedrooms, a living room, a kitchen area, and a

shared bathroom. The girls had three computers in their bedroom. K.C, D.L., and S.G.

spent most of the evening in the bedroom talking and on Facebook. Grandlund spent

most of the evening drinking mixed drinks of whiskey and Pepsi in the living room.

       D.L. went to sleep between midnight and 1:00 a.m. S.G. and K.C stayed up

talking and playing on the computer. When S.G. fell asleep around 4:00 a.m., K.C.

continued to use the computer.

      After S.G. was asleep, Grandlund came into the bedroom and asked K.C to help

him transfer music files from the computer in his bedroom onto a thumb drive. K.C

went into Grandlund's bedroom to help him transfer the files. Grandlund was still

drinking and wandered in and out of the bedroom as K.C. transferred the music files.

After some time, Grandlund came into the room, put a big tumbler of whiskey and Pepsi

on the computer desk, and told K.C to drink it. K.C said she didn't want to. But when

Grandlund mocked her, K.C drank the whiskey and Pepsi.

       Over the next few hours, Grandlund gave K.C. about two more tumblers of mixed

whiskey and Pepsi. When K.C. finished transferring the files, Grandlund took K.C. to

the kitchen and gave her about three more mixed drinks of whiskey and Pepsi to drink

from a shot glass.

       K.C. testified that she felt drunk and her vision was blurry. K.C. said Grandlund

then "asked me if I thought I could handle just alcohol and I said I don't know."

Grandlund then gave K.C two or three shots of straight whiskey.
No. 67655-5-1/3



       K.C said she was so intoxicated that she could not keep her balance, felt like the

room was spinning, and had to lean on the kitchen counter for support. K.C told

Grandlund she couldn't drink anymore. Grandlund walked up to K.C, took her hand,

and placed it on his penis. K.C pulled her hand away and moved away from

Grandlund, standing on the other side of the kitchen counter.

       At about 6:00 a.m., D.L. woke up to walk her dog. D.L. came into the kitchen and

saw her father and K.C D.L. also saw K.C. drinking from a shot glass. D.L. testified

that after she got angry with K.C. for leaning on her for support because "she was

throwing all of her weight on me," she went back to bed.

       Meanwhile, K.C. went to the living room and sat on the couch. Grandlund went

and sat beside K.C. Grandlund took K.C.'s hand and placed it on his erect penis.

Grandlund told K.C. he liked her and wished she were 18 instead of 15 years old.

Grandlund then rubbed the inside of K.C.'s thigh, telling her not to say anything to

anyone because he could get into trouble. K.C. said she "didn't really understand what

[Grandlund] was saying though, because I -- like my reflexes were like slow and

sluggish and it was hard to interpret stuff."

       K.C got off the couch and tried to walk to the girls' bedroom. K.C. said that her

vision was blurred and she stumbled as she walked. K.C felt very intoxicated and

confused.

       Grandlund stopped K.C. in the hallway, put his hand down her shorts, and

penetrated her vagina with his fingers. Grandlund then pulled K.C. into his bedroom,

pushed her down on the bed, and took off her shorts and underwear. Grandlund said,

"[L]let me show you how it's done," began licking her neck and breasts, and performed
No. 67655-5-1/4



oral sex on K.C K.C tried to get Grandlund to stop but she was only able to mumble

unintelligibly and could not move her arms and legs. Grandlund put on a condom and

penetrated her vagina. K.C said that before she lost consciousness, her last memory

was of Grandlund's penis inside her vagina.

      Sometime later that morning, D.L. and S.G. found K.C. passed out on the

bathroom floor without her shirt on. D.L. and S.G. helped K.C get to their bedroom,

where she passed out again on the bed. D.L. found K.C.'s shirt on the floor in her

father's bedroom. After K.C woke up around 11:00 a.m., she found her glasses

underneath a pillow on Grandlund's bed. When Grandlund woke up, K.C. and his

daughters were sitting in the living room. Grandlund immediately went into the living

room and asked K.C and his daughters if they had seen his condom.

      Around 1:00 p.m., D.L., S.G., and K.C. got in Grandlund's car. Rather than drop

K.C off first at her nearby house in Arlington, Grandlund drove to Lake Stevens to drop

off his daughters at their mother's house. Grandlund then drove back to Arlington and

stopped at a store to buy an energy drink and condoms. Grandlund told K.C. he wanted

to take her back to his house so they could have sex again. K.C. insisted she had to go

home because her brother was waiting for her.

       Later that afternoon, K.C. told two friends what happened and her friends told

K.C.'s sister-in-law. K.C.'s sister-in-law contacted the police.

       At around 6:00 a.m. on January 10, police officers searched Grandlund's house.

The police found a quarter-full bottle of whiskey and two bottles of Pepsi on the kitchen

floor, a shot glass with some whiskey in it on the kitchen counter, glass tumblers

matching K.C.'s description of the glass that held the mixed whiskey and Pepsi drinks,
No. 67655-5-1/5



three unopened condoms on a night stand in Grandlund's bedroom, and a condom

wrapper in a garbage can in the kitchen. That same morning, a nurse at Cascade

Valley Hospital conducted a sexual assault examination of K.C.

       The State charged Grandlund with rape of a child in the third degree, Count I,

and rape in the second degree, "when K.C was incapable of consent by reason of

being physically helpless," Count II. Grandlund waived his right to a jury trial.

       The State called a number of witnesses to testify at the four-day trial, including

K.C, D.L., S.G., and a forensic scientist from the Washington State Patrol Crime

Laboratory. The forensic scientist testified that DNA2 obtained from K.C. matched
Grandlund's DNA.

       Grandlund unequivocally denied having sexual intercourse with K.C Grandlund

said that he asked K.C. to transfer the computer files after his daughters went to sleep

because he thought she was bored. Grandlund testified that after K.C. transferred the

files on his computer, he asked her to perform the same task on S.G.'s computer, and

he then went immediately to bed. Grandlund said he did not take K.C directly home

from his house because he forgot she was in the car.

       The court found Grandlund guilty of rape of a child in the third degree and rape in

the second degree as charged. The court entered written findings of fact and

conclusions of law. The court found that Grandlund was guilty of rape in the second

degree because K.C was incapable of consent because she was physically helpless.

The findings state, in pertinent part:

       20. After penetrating K.C.'s vagina with his fingers for a little while, the
           defendant took K.C by the hand and pulled her into his bedroom and
           pushed her down to sit on his bed. The defendant took off K.C.'s

       2(Deoxyribonucleic acid.]
No. 67655-5-1/6


           shorts and underwear. The defendant took off his jean pants and
           underwear.
      21. K.C. fell on her back to keep from toppling over to the floor. The
          defendant began kissing K.C.'s neck and breasts. The defendant
          kissed down K.C.'s body and then began performing oral sex on K.C
          The defendant penetrated K.C.'s vagina with his tongue.
      22. K.C. tried to get the defendant to stop but she could not move her
          limbs. K.C. tried to tell the defendant to stop but she was only able to
          mumble unintelligibly and could not understand her words.
      23. The defendant stopped performing oral sex on K.C, put on a condom,
          and penetrated her vagina with his penis.
      24. K.C.'s last memory before she lost consciousness was of the
          defendant's penis inside her vagina.

       34. At the time the defendant engaged in sexual intercourse with K.C,
           she was incapable of consent by reason of being physically helpless.

      At sentencing, the court vacated the conviction for rape of a child in the third

degree to avoid double jeopardy. The court entered judgment on the conviction for rape

in the second degree.

                                        ANALYSIS

       Grandlund contends insufficient evidence supports the conviction of rape in the

second degree.

      A challenge to the sufficiency of the evidence admits the truth of the State's

evidence. State v. Salinas. 119 Wn.2d 192. 201, 829 P.2d 1068 (1992). Weviewall

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

of fact could have found the essential elements of the crime beyond a reasonable

doubt." State v. Jov. 121 Wn.2d 333, 338, 851 P.2d 654 (1993). "[A]ll reasonable

inferences from the evidence must be drawn in favor of the State and interpreted most

strongly against the defendant." Salinas. 119 Wn.2d at 201. We defer to the trier of fact

to resolve conflicting testimony, evaluate the credibility of witnesses, and generally

weigh the persuasiveness of the evidence. State v. Walton. 64 Wn. App. 410, 415-16,
No. 67655-5-1/7



824 P.2d 533 (1992). Circumstantial and direct evidence are accorded equal weight.

State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

       Where, as here, the trial court makes findings of fact and conclusions of law

following a bench trial, we review whether substantial evidence supports the trial court's

findings of fact and, in turn, whether the findings support the conclusions of law. State

v. Stevenson, 128 Wn. App. 179, 193, 114 P. 3d 699 (2005). "Substantial evidence is

evidence sufficient to persuade a fair-minded, rational person of the finding's truth."

Stevenson. 128 Wn. App. at 193. Unchallenged findings of fact are verities on appeal.

Stevenson. 128 Wn. App. at 193.

       Under RCW 9A.44.050(1 )(b), 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 [w]hen the victim is incapable of

consent by reason of being physically helpless or mentally incapacitated." "Physically

helpless" is defined as a person who "is unconscious or for any other reason is

physically unable to communicate unwillingness to an act." RCW 9A.44.010(5). The

State must prove each essential element of the crime beyond a reasonable doubt. In re

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

147 Wn.2d 141, 146, 52 P.3d 26 (2002).

       Grandlund contends substantial evidence does not support the finding that K.C

"was incapable ofconsent by reason of being physically helpless."3 Grandlund asserts
K.C. was not "unable to communicate unwillingness"4 because she initially "successfully
rebuffed" him and was able to remember that while they were sitting on the couch,


       3The State did not allegethat K.C. was "mentally incapacitated."
       4RCW9A.44.010(5).
                                                  7
No. 67655-5-1/8


Grandlund said "he liked having me come over" and "he hasn't had sexual intercourse

in about like six years." Grandlund also points to K.C.'s testimony that while she was

drinking the first two or three drinks, she successfully copied the computer files.

       Grandlund relies heavily on State v. Bucknell. 144 Wn. App. 524, 183 P.3d 1078

(2008). Bucknell is easily distinguished. In Bucknell. the victim had Lou Gehrig's

disease and was unable to move from the chest down, but was "able to talk, answer

questions, and understand and perceive information." Bucknell. 144 Wn. App. at 526,

529-30. The State charged the defendant with rape in the second degree, alleging that

the victim "was physically helpless because she was suffering from Lou Gehrig's

disease." Bucknell. 144 Wn. App. at 528. We reversed the jury conviction because the

victim's "ability to communicate orally, despite her physical limitations, likely did not

render her 'physically helpless' as contemplated by RCW 9A.44.050(1)(b)." Bucknell.

144 Wn. App. at 530-31.

       Here, unlike in Bucknell. overwhelming evidence supports the finding that K.C

was not able to communicate. Grandlund does not challenge the finding that "K.C. tried

to tell the defendant to stop but she was only able to mumble unintelligibly and could not

understand her words." K.C testified that after Grandlund pulled her into his bedroom

and onto the bed, and he licked her neck and breasts, she felt numb and could not talk.

       A. My body felt really numb and it felt like my - it felt like my heart was
          slowing down, and I didn't know what was going to happen. And then
          like I was just thinking, trying to think about what was going on and I
          couldn't move my arms real well. I couldn't talk, I couldn't see that
          well, everything looked like it was turning black.

       Q. When you say your - your body was getting numb and it seemed like
          things [were] starting to become black, are you able to put in words
          exactly how your limbs were feeling, your arms and stuff?


                                               8
No. 67655-5-1/9


      A. It felt like I got hit by a car or something, and I couldn't move. It was
         like I was pinned to the bed or something.
      Q. So you said at some point he was kissing you and kissing your
         breasts and your neck, and you said he began licking your vagina?
      A.   Yes.
      Q. Could you feel him when he did that?
      A. Not really.
      Q. But you could tell that was in your vagina?
      A.   Yes.
      Q. Did you do anything at this point when this was going on, that you
           recall?
      A. Not that I can recall. All I remember is staring at the ceiling, and he
         was inside of me and then everything went black.
      Q. Okay. Let's take that a step at a time. When you say he was inside
         you, was this when you said he was licking inside your vagina?
      A. He was performing sexual intercourse when I was laying there and all
         I did was - I was looking at the ceiling and then everything just - it
         like - it was like a door was shutting and I couldn't see anything else.
         Everything went black.
      Q.   You blacked out?
      A.   Yes.


      Q. [K.C], you said you blacked out, what is the last memory you have
         before you blacked out?
      A. He had his penis inside of me.

      Viewing the evidence and the inferences in the light most favorable to the State,

sufficient evidence supports the conviction of rape in the second degree.

      In the alternative, Grandlund contends his attorney provided ineffective

assistance of counsel by failing to argue that Grandlund had a "reasonable belief that

K.C. was not physically helpless. Under RCW 9A.44.030(1), it is a defense to a charge

of rape in the second degree that the defendant reasonably believed the person was not

physically helpless. The defendant bears the burden of proof by a preponderance of

the evidence. RCW9A.44.030(1).

       In order to prevail on a claim of ineffective assistance of counsel, Grandlund

must demonstrate (1) deficient performance, that his attorney's representation fell below
No. 67655-5-1/10


the standard of reasonableness; and (2) resulting prejudice, that but for the deficient

performance, the result would have been different. Strickland v. Washington. 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bowerman, 115 Wn.2d

794, 808, 802 P.2d 116 (1990) (adopting the standards in Strickland). If a defendant

fails to establish either prong, we need not inquire further. State v. Hendrickson. 129

Wn.2d 61, 78, 917 P.2d 563 (1996).

       To establish deficient performance, Grandlund has the heavy burden of showing

that his attorney "made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland. 466 U.S. at

687. There is a strong presumption of effective representation of counsel, and the

defendant has the burden to show that based on the record, there are no legitimate

strategic or tactical reasons for the challenged conduct. State v. McFarland. 127 Wn.2d

322, 335-36, 899 P.2d 1251 (1995).

       Grandlund did not testify that he had a reasonable belief that K.C. was not

physically helpless. Grandlund testified that he did not have sexual intercourse with

K.C. However, for the first time on appeal, Grandlund relies on D.L.'s testimony that

K.C. appeared only "[a] little" drunk beforehand and "a little out of it" afterwards to

contend there was evidence to argue Grandlund reasonably believed K.C. was not

physically unable to communicate unwillingness. Grandlund takes D.L.'s testimony out

of context. D.L. testified, in pertinent part:

       Q. Did you make any statements to [K.C]?
       A.   Yeah. I told her not to touch me.
       Q.   Why did you -- were you angry with her?
       A.   Yeah, because she was throwing all of her weight on me.
       Q.   She was throwing all of her weight on you?
       A.   Yeah, like she put her arm around me and it just was not comfortable.

                                                 10
No. 67655-5-1/11


      Q. Has she put her arm around you before in the past?
      A. Nope.
      Q. Never put her hands on your shoulder to hold you as a friend?
      A.   No.
      Q. So when you say she was throwing all her weight on you, was she
         leaning on you?
      A. Yep.
      Q.   Did it seem like she was off balance?
      A.   Kind of.


      Q. Okay. Did she appear to you like she had been drinking?
      A. A little bit, yeah.

      State v. Powell. 150 Wn. App. 139, 206 P.3d 703 (2009); and In re Personal

Restraint of Hubert. 138 Wn. App. 924, 158 P.3d 1282 (2007), are distinguishable. In

Powell and Hubert, the defendants testified they believed the victims had agreed to

have sex. Powell. 150 Wn. App. at 148-49, 156: Hubert. 138 Wn. App. at 926-27, 929.

      We affirm.




WE CONCUR:




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