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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                      )      No. 69901-6-1
                                          )
              Respondent,                 )
                                          )
       v.                                 )
                                          )
MARK GREGORY,                             )      UNPUBLISHED OPINION
                                          )
              Appellant.                  )      FILED: May 6,2013
                                          )

       Verellen, J. — Mark Gregory appeals his convictions for third degree rape and

fourth degree assault with sexual motivation. Gregory argues his counsel was

ineffective for failing to raise a hearsay objection to testimony by law enforcement,

medical professionals, and the victim's family about what the victim had said about her

encounter with Gregory. But defense counsel's failure to object could be characterized

as legitimate trial strategy. The victim's trial testimony about the encounter was, at

times, inconsistent with the alleged hearsay testimony, and defense counsel highlighted

those inconsistencies in closing argument.

       Gregory also argues the State presented insufficient evidence to support both

convictions. Viewing the evidence and all reasonable inferences therefrom in the light

most favorable to the State, a rational trier of fact could have found the elements of both

crimes beyond a reasonable doubt.

       Finally, Gregory contends, and the State concedes, that the court erred in

imposing a maximum sentence under RCW 9.94A.507.
No. 69901-6-1/2


       We affirm the convictions, but remand for correction of Gregory's judgment and

sentence.


                                          FACTS

       On June 12, 2010, Anna Ray and her husband went out to a bar. Later that

evening, Ray and her husband got into an argument. Ray's husband left her at the bar.

Ray asked the bouncer to call a taxi for her. Gregory was already waiting in his taxi van

near the entrance to the bar. The bouncer asked Ray for her address, repeated it to

Gregory, and asked him to take Ray home. The bouncer opened the front door of the

taxi, and Ray got in. It appeared to Gregory that Ray was "tipsy."1
       Gregory asked Ray why she was alone, and Ray replied that her husband had

left her at the bar. Gregory testified that Ray grabbed Gregory's hand to hold it as they

drove. Gregory testified that while they were stopped at a traffic light, he and Ray

kissed each other. He asked Ray if she wanted to fool around, and, according to

Gregory, Ray responded that she did. Gregory testified that as they drove, he took

Ray's hand and placed it on top of his penis, and that Ray kept her hand there for about

five to ten minutes.

       Gregory pulled the taxi van over in some bushes nearby a Safeway. Ray asked

Gregory what they were doing there. Gregory replied that they were "taking a break"

and started to rub Ray's left leg.2 Ray testified that at this point, Gregory took her hand
and placed it on his pants, on top of his penis. Ray testified that she attempted to pull

her hand away from Gregory's penis, but Gregory kept Ray's hand there. Ray did not

say anything to Gregory or ask him to stop, because she was nervous and scared.

       1 Report of Proceedings (Apr. 4, 2011) at 315.
       2 Id. at 253.
No. 69901-6-1/3


      Gregory got out of the taxi and walked to the passenger's side. Gregory grabbed

Ray by the arm and lead her to the back of the van. Ray did not scream because she

thought Gregory might do "bad things" to her.3 Gregory attempted to remove Ray's
underwear. Ray again asked Gregory what he was doing. Gregory replied, "It's okay,

no problem."4 As Gregory removed her underwear, Ray understood "what's going to
happen."5 She told Gregory she was having her period. Gregory attempted to perform
oral sex on Ray, and she pushed his head away.

      According to Ray, Gregory took his penis out of his pants, opened Ray's legs and

removed her tampon. According to Gregory, Ray appeared ready to have sex and

removed the tampon herself. Gregory then had intercourse with Ray, which lasted for

approximately five to ten minutes. Ray testified that she did not say anything to Gregory

or attempt to push him away because she was "just so scared that night, and I feel that

I'm alone. Just scared."6 Ray did nottell Gregory that she wanted to have sex with him
or make any advances to indicate she wanted to have sex with him. According to

Gregory, however, Ray complimented his sexual performance. Gregory and Ray

returned to the front seat, and Gregory drove Ray home. During the course of the

interaction, Gregory did not overtly threaten Ray.

      Within a few minutes after arriving home, Ray went across the street to her in

laws' house. Ray's mother-in-law and Ray's husband testified they found Ray lying in a

ball on the floor, hysterical and crying. When Deputy Joe Hedstrom arrived at Ray's in-


      3JcL at 258.
      4jd
      5]cL
       6 Id.   at 262.
No. 69901-6-1/4


laws' home, he had difficulty getting information from Ray. Deputy Hedstrom called

Deputy Crystal Gray to the scene, as Ray said she would prefer to talk with a female

deputy. Ray appeared visibly distraught as she interacted with her husband, her in

laws, and Deputy Gray.

       After Ray had identified Gregory, Detectives Timothy Keeler and Chad Birkenfeld

contacted Gregory at his boat in a local marina. At first, Gregory denied he had any

sexual activity with Ray. After Detective Birkenfeld told Gregory that Ray had given law

enforcement a different account of the evening, Gregory admitted he had sex with Ray.

       The State charged Gregory with rape in the third degree, unlawful imprisonment,

and assault in the fourth degree with sexual motivation. The jury found Gregory guilty of

the rape and assault charges, but acquitted him on the unlawful imprisonment charge.

The trial court imposed a standard range sentence of 29 months. However, a box on

the judgment and sentence was checked which indicated that under RCW 9.94A.507,

the maximum sentence was confinement for life.

       Gregory appeals.

                                      DISCUSSION

                            Ineffective Assistance of Counsel


       Gregory contends he was denied effective assistance of counsel. A criminal

defendant has a constitutional right to effective assistance ofcounsel.7 Gregory bears
the burden of demonstrating both (1) that defense counsel's representation fell below an

objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable

probability that but for counsel's deficient performance, the result of the proceeding

       7 Strickland v. Washington. 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
No. 69901-6-1/5


would have been different.8 There is a "strong presumption" that counsel's performance
was reasonable.9 If a defendant fails to establish either prong, we need not inquire
further.10 We review ineffective assistance claims de novo.11

       Gregory contends various witnesses gave inadmissible hearsay testimony in

recounting what Ray had told them the evening of June 12. Where a defendant claims

ineffective assistance based on counsel's failure to challenge the admissibility of

evidence, the defendant must show that counsel lacked legitimate strategic or tactical

reasons to support the challenged conduct, that an objection would have likely been

sustained, and that the result of trial would have been different had the evidence been

excluded.12 If defense counsel's trial conduct can be characterized as legitimate trial
strategy or tactics, it cannot provide a basis for a claim of ineffective assistance of

counsel.13 The decision not to object may be a legitimate trial strategy.14
       Detective Birkenfeld testified that Ray had told him she was not forced to stroke

Gregory's penis, that Gregory had kissed her, and that she cried a little bit. Defense

counsel did not object. Ray's mother-in-law, Sheila Morgan, testified Ray told her she




       8State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
       9State v. Kvllo. 166Wn.2d 856, 862, 215 P.3d 177 (2009).
       10 State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
       11 State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
       12 McFarland. 127 Wn.2d at 336-37.
       13 State v. Aho. 137 Wn.2d 736, 745, 975 P.2d 512 (1999).
       14 In re Pers. Restraint of Davis. 152 Wn.2d 647, 714, 101 P.3d 1 (2004)
(defense counsel's decision not to object to possible improper victim impact evidence
was legitimate trial strategy, as counsel may not have wanted to risk emphasizing the
testimony with an objection).
No. 69901-6-1/6


had been raped by a taxi driver. Joseph Ray, Ray's husband, also testified that Ray
told him she was raped. Defense counsel did not object to eitherwitness's testimony.
       Deputy Hedstrom testified that he overheard Ray tell Deputy Gray that she was

raped by a taxi driver. Defense counsel did not object. Deputy Gray then testified that

Ray told her she was raped by a taxi driver named Mark. Defense counsel did not

object. Deputy Gray testified that Ray told her all the contact occurred in the front of the

taxi van, and that Ray attempted to resist Gregory and push him off.

       Finally, Nora Sullivan, a sexual assault nurse, examined Ray early on the

morning of June 13. Sullivan testified that Ray told her Gregory opened his pants and

put her hand directly on his penis, rather than on top of his pants. Sullivan also testified

that Ray told her she rubbed Gregory's belly after intercourse so he would take her

home and not hurt her. Defense counsel did not object.

      As the State suggests, defense counsel likely made a strategic decision to allow

the juryto hear the numerous variations in Ray's recounting of the events.15 Consistent

with such a strategy, defense counsel in closing argument highlighted the

inconsistencies between Ray's trial testimony and the alleged hearsay testimony.

Because defense counsel's failure to object could amount to legitimate trial strategy,

Gregory does not demonstrate ineffective assistance of counsel.16



      15 The State also correctly notes that even if defense counsel had objected to the
testimony, the objections would not have been sustained. See Resp't's Br. at 12;
McFarland. 127 Wn.2d at 336-37. The record contains ample evidence that Ray
remained under the stress of the rape when she made the statements, rendering those
statements admissible under the excited utterance exception to hearsay. ER 803(a)(2);
State v. Thomas. 150 Wn.2d 821, 853, 83 P.3d 970 (2004).
      16 Aho. 137 Wn.2d at 745. Gregory also argues that, absent the hearsay
testimony of these witnesses, he would not have been found guilty. See Appellant's Br.
                                             6
No. 69901-6-1/7


                                Sufficiency of the Evidence

       Gregory contends the State presented insufficient evidence to support his

convictions for third degree rape and fourth degree assault with sexual motivation. In

analyzing a challenge to the sufficiency of the evidence, we view the evidence in the

light most favorable to the State to determine whether any rational trier of fact could

have found elements ofthe crime beyond a reasonable doubt.17 When challenging the
sufficiency of the evidence, the defendant admits the truth of the State's evidence.18

We give great deference to the finder of fact in resolving conflicting testimony and

weighing the evidence.19 Circumstantial and direct evidence are accorded equal
weight.20

       To prove Gregory committed third degree rape, the State had to prove beyond a

reasonable doubt that Gregory engaged in sexual intercourse with another person, not

married to him, where the victim did not consent, and that lack of consent was clearly

expressed through the victim's words or conduct.21 Gregory contends the State
presented insufficient evidence that Ray clearly communicated her lack of consent to

intercourse.


      Gregory highlights that Ray never told him to stop as he took his penis out and

had intercourse with her, after she had told him to stop when he tried to perform oral


at 16. This argument is without merit, as a jury could have found from Ray's testimony
alone the elements of both third degree rape and fourth degree assault.
      17 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
      18 ]d
      19 Thomas. 150 Wn.2d at 874-75.
      20 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
      21 RCW 9A.44.060, .010(7).
No. 69901-6-1/8


sex. There is sufficient evidence demonstrating Ray's lack of consent: Gregory knew

Ray was tipsy, Ray tried to pull her hand away from Gregory's penis but Gregory kept

her hand there, Ray was nervous and scared to scream for help as she feared what

Gregory might do to her, Gregory grabbed Ray's arm and led her to the back seat and

would not respond to Ray's inquiry about what Gregory was doing, Ray pushed

Gregory's head away and told him to stop as he tried to perform oral sex, and Gregory

removed her tampon and had intercourse with her. While Gregory testified the sex was

consensual, the jury was solely responsible for making credibility determinations. The

jury was free to believe Ray's testimony, and based on Ray's testimony, a rational trier

of fact could have found the elements of third degree rape beyond a reasonable

doubt.22

       To prove Gregory committed fourth degree assault with sexual motivation, the

State had to prove Gregory assaulted another, with the purpose of sexual gratification.23
Gregory contends the State did not present sufficient evidence of an unwanted

touching. As with the evidence relating to the rape charge, the jury heard conflicting

testimony about the fourth degree assault charge. From Ray, the jury heard that

Gregory grabbed her arm, and when Gregory placed Ray's hand on top of his penis,

she tried to pull it away, but Gregory kept Ray's hand there. From Gregory, the jury

heard that Ray wanted to fool around with him, and that when he took Ray's hand and

       22 Salinas. 119 Wn.2d at 201.
       23 RCW 9A.36.041(2); State v. Mandanas. 163 Wn. App. 712, 719, 262 P.3d 522
(2011) ("An assault may consist of an intentional touching that is harmful or offensive;
an act performed with the intent to inflict bodily injury but failing, coupled with the
apparent present ability to inflict the injury if not prevented; or an act, with unlawful
force, done with the intent to create in another apprehension and fear of bodily injury,
and which creates in another a reasonable apprehension and imminent fear of bodily
injury.").

                                             8
No. 69901-6-1/9


placed it on top of his penis, Ray kept her hand there for at least few minutes. The jury

was free to believe Ray's testimony, and based on her testimony, a rational trier of fact

could have found the elements of fourth degree assault beyond a reasonable doubt.24

                               Errorin Judgment and Sentence

          The court sentenced Gregory to 29 months for the rape conviction and 365 days

for the assault conviction. The judgment and sentence form then contains a section

titled "Confinement Under RCW 9.94A.507."25 The court checked the box that

sentenced Gregory to a maximum term of life confinement for the rape charge. Gregory

argues, and the State concedes, that the court's imposition of the sentence under

RCW 9.94A.507 was erroneous. RCW 9.94A.507 allows indeterminate sentencing for

certain sex offenses but does not apply to the charge of rape in the third degree. We

remand for correction of Gregory's judgment and sentence.

                              Statement of Additional Grounds

          In Gregory's statement of additional grounds, he asserts his counsel was

ineffective for failing to investigate the victim's mental health. The record before us

does not allow us to reach this claim. He also asserts counsel was ineffective for failing

to object to the testimony by the police detectives, contending the detectives did not

read him his Miranda26 rights, and their testimony should have been suppressed. The
record demonstrates Gregory both stipulated to admissibility of the statements he gave

to law enforcement, and stipulated that Detective Birkenfeld read Gregory his Miranda

rights.


          24 Salinas. 119 Wn.2d at 201.
          25 Clerk's Papers at 147.
          26 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).
No. 69901-6-1/10


       Gregory also contends the court erred in allowing the State to "pursue" fourth

degree assault with sexual motivation. To the extent Gregory asserts insufficient

evidence supports the assault conviction, his argument fails. We cannot discern what

other error, if any, Gregory asserts with respect to the fourth degree assault charge.

Finally, Gregory asserts it was the victim who pulled out her tampon, rather than him.

The jury heard the victim's testimony that Gregory removed her tampon, and the jury

was free to accept or reject that testimony.

       We affirm Gregory's convictions and remand for correction of his judgment and

sentence.




WE CONCUR:



                                                        c^X.T.




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