                                                                          FILED
                                                                        JUNE 9, 2015 

                                                                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. 31467-7-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
JONATHAN KEENAN GORDON,                       )        UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Jonathan Gordon appeals his Franklin County convictions for

second degree rape and second degree assault with sexual motivation, contending that his

time for trial right was violated and the evidence did not support the convictions. His

claims are without merit and we affirm.

                                          FACTS

       Mr. Gordon was charged after hospital staff reported to the police about injuries

suffered by the victim, B.B. She explained to officers that Mr. Gordon told her he was

going to rape her and took her into his bedroom. Several butcher knives were placed

throughout the room. Sexual intercourse then occurred during the course of which he

repeatedly struck her, bit her, and choked her.
No. 31467-7-III
State v. Gordon


       Mr. Gordon was arraigned and trial was initially scheduled for February 22, 2012.

That date was continued to April 25, 2012; Mr. Gordon signed a waiver of his time for

trial rights. The new trial date was stricken when Mr. Gordon failed to appear for trial. It

later was discovered that he was jailed in a neighboring county on additional charges. He

eventually was convicted there and sent to prison. He subsequently was transported to

Franklin County for trial.

       Upon his reappearance, trial was scheduled for November 28,2012. The parties

agreed to a two week continuance to December 12th in order for the defense to subpoena

its witnesses. The new date, however, conflicted with the treating physician's vacation

trip out of the country, leading the prosecutor to request another continuance. The

defense did not object to any of the scheduled trial dates. Trial began January 9, 2013,

approximately 15 months after arraignment.

       The jury convicted Mr. Gordon on the two noted charges and also found that the

assault was committed with sexual motivation. The court set the minimum term on each

count within the standard range. Mr. Gordon then timely appealed to this court.
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                                        ANALYSIS
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       The appeal presents a rule-based challenge to the timeliness of trial as well as a

claim of evidentiary sufficiency. We address the time for trial claim first.                   I
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No. 31467-7-II1
State v. Gordon


       Time for Trial

       This issue is largely driven by Mr. Gordon's pro se l arguments as both counsel

agree that there was no violation ofCrR 3.3. We concur in counsel's assessment. There

was no violation of the court rule.

       In its most basic terms, the rule requires trial within 60 days of arraignment if the

defendant is held in custody on the pending chargee s) or 90 days if the defendant is not in

custody. CrR 3.3(b); (c)(l). The same time periods apply if a new commencement date

is required for any of several reasons listed in CrR 3.3(c)(2), including the failure of the

defendant to appear for court proceedings. CrR 3.3(c)(2)(ii).

       A timely written objection to a trial date scheduled outside the requirements of the

rule must be brought to the court's attention by motion or the defendant loses the

opportunity to object. CrR 3.3(d). Various factors also act to exclude time from the 60­

or 90-day trial period, including proceedings on unrelated charges. CrR 3.3(e)(2).

Whenever any period of time is excluded, there is a 30-day minimum period of time

within which to bring a case to trial. CrR 3.3(b)(5). Finally, even if the trial period

passes without trial, a five day cure period may be invoked. CrR 3.3(g).




       I Mr. Gordon filed a lengthy Statement of Additional Grounds. Much of it repeats
arguments in the briefs and the rest of it makes either factual allegations unsupported by
the record or presents insufficiently supported legal arguments. For all of those reasons,
we do not otherwise address this filing. RAP lO.lO(a), (c).

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No. 31467-7-II1
State v. Gordon


        With these principles in mind, Mr. Gordon's time for trial argument fails on

numerous grounds. First, our record contains no written objections and no motion

challenging any trial date. Thus, he has waived any claimed violation of the rule. CrR

3.3(d)(4). Second, his failure to appear for trial in Franklin County led to a new

commencement date in the fall of2012. His continuance of the new trial to December

12,2012 resulted in an excluded period of time and an additional 30 days within which to

bring the case to trial. CrR 3.3(b)(5); (d)(3). Trial commenced on January 9, 2013, a
                                                                                            II
date within the 30-day period. Finally, the excluded periods created by both the defense
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continuance to December 12 and the State's continuance to January 9, 2013 also meant        I
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that the 90-day time for trial period never expired following the new commencement          I
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date.                                                                                       I
        F or all of these noted reasons, there was no violation of CrR 3.3.
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        Sufficiency ofthe Evidence
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        The remaining issue is whether the evidence supported both jury verdicts. With

proper deference to the fact-finding function of the jury, the evidence amply supported
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the verdicts.                                                                               II
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        Evidentiary sufficiency challenges are reviewed to see if there was evidence from   ~
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which the trier of fact could find each element of the offense proven beyond a reasonable
                                                                                            II
doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980) (citing Jackson v.         f
                                                                                            I
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing        I
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No. 31467-7-II1
State v. Gordon


court will consider the evidence in a light most favorable to the prosecution. ld.

Reviewing courts also must 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). "Credibility determinations are for the trier of

fact and are not subject to review." ld. at 874.

       Mr. Gordon largely reargues the case, but this court's focus is on whether there

was evidence to support each of the elements of the charged offenses rather than which

side's evidence was more believable. 2 With respect to the rape count, that required

evidence that Mr. Gordon had sexual intercourse with B.B. by forcible compulsion.

Clerk's Papers (CP) at 73. Forcible compulsion includes a threat or any physical force

that overcomes resistance to the intercourse. CP at 75. On the assault count, the State

was required to prove that Mr. Gordon assaulted B.B. by strangulation. CP at 77-78.

       As to the assault count, B.B. testified that he strangled her. That testimony alone

was sufficient to support the verdict. On the rape count, she testified that his stated intent

to rape her, accompanied by the display of the butcher knives in the bedroom, forced her

compliance in order to preserve her life. Even at that, Gordon physically abused her in

several different ways that also had the effect of overcoming any resistance. Again, the



       2 Even if we weighed credibility, Mr. Gordon's argument would fail. Both of his
housemates confirmed much of the testimony ofB.B., including the fact that sexual
intercourse occurred, contrary to the defendant's own testimony.

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No. 31467-7-II1
State v. Gordon


evidence of the threat and the actual physical force each supported the jury's

determination that intercourse was accomplished by forcible compulsion.

      The evidence was sufficient to support both verdicts. The convictions are

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: 





      Lawrence-Berrey J.




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