State v. Clutinger

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STATE OF WASHINGTON, Respondent, v. DAVID MICHAEL CLUTINGER, Appellant.

No. 39101-9-III

Court of Appeals of Washington, Division 3

January 23, 2024

UNPUBLISHED OPINION

Lawrence-Berrey, A.C.J.

David Michael Clutinger appeals his conviction for second degree rape. He argues his trial counsel provided ineffective assistance by requesting an unnecessary and inapplicable affirmative defense instruction. We disagree and affirm.

FACTS

Around noon one spring day, N.D. arrived for her scheduled shift as a cocktail server at Borracho Tacos and Tequileria, a bar and restaurant in downtown Spokane. Because Borracho was not busy that day, N.D. was told she was not needed to work her shift. She decided to stay at Borracho and have some drinks with friends. She drank one shot of alcohol, then had another drink with a coworker who also was not working that day.

David Clutinger arrived at Borracho and joined N.D. and the coworker for drinks. N.D. knew Clutinger as a regular, who frequently drank at the bar. She recalled that Clutinger would flirt with her while she worked.

The group stayed at Borracho for less than an hour, then walked across the street to the Red Lion Pub and BBQ. Once there Clutinger bought N.D. an alcoholic drink. After a brief stay at that bar, the group made their way to another nearby bar Fast Eddie's, where Clutinger bought N.D. another alcoholic drink.

While at Fast Eddie's, N.D. saw her boss, who owned both Borracho and Fast Eddie's. N.D. recalled it his birthday so she and her coworker ordered shots for the three of them to drink together. N.D. left her drink unattended while she went to her boss's table to drink the shots. N.D. then returned and finished her drink. N.D. did not recall having any other drinks with Clutinger that day. The coworker left the group after finishing her drinks at Fast Eddie's because she felt dazed and foggy.

After N.D. finished her drink, she saw another coworker outside riding on an electric Lime Scooter. She posed for a picture on the scooter with her coworker and rode it around the block with him. N.D. recalled being "buzzed, like I'd had a few drinks, but not to the point where I couldn't function or hold onto a scooter or anything like that." Rep. of Proc. (RP) (May 24, 2022) at 308-09.

N.D. did not recall anything that happened that afternoon after riding the scooter. Although N.D. did not recall, witnesses testified that N.D. and Clutinger went to two nearby bar and restaurants, Saranac Public House and Zola, which are both within walking distance of Fast Eddie's. After leaving Zola at around 4:30 p.m., N.D. and Clutinger returned to Borracho.

The bartender at Borracho recalled seeing N.D. with Clutinger that day. He recalled N.D. being "[i]ntoxicated" and "[u]nable to properly stand without assistance." RP (May 24, 2022) at 378. He recalled hearing Clutinger say he was going to take N.D. home. He noticed N.D. was so intoxicated that "she wasn't really able to balance properly" and was using Clutinger to support her weight. RP (May 24, 2022) at 380. On the other hand, Clutinger was not visibly intoxicated.

N.D.'s next memory was waking up that evening in a bed, unable to move, and not sure where she was, wearing only her shirt and bra. She recalled that Clutinger was lying next to her, putting his fingers into her vagina. At that point, panic set in because she could not control her body and could not move or speak.

After five minutes of being awake but unable to move, N.D. was able to stand. When she asked for her purse and phone, Clutinger told her that she left her phone at Borracho. N.D. went to the bathroom to collect herself and to try to formulate a plan to leave. She intended to walk back to Borracho but when she learned it was too far, she accepted Clutinger's offer to drive her there. The two made small talk during the drive, and Clutinger dropped her off across the street from Borracho.

N.D. got out of Clutinger's Jeep and started to panic. She saw someone she knew, and ran up to him and started crying. The friend recalled seeing N.D. staring off into space, and when she approached him, she started crying immediately. He then walked N.D. inside Borracho to find her phone. Once there, N.D. told a coworker about what happened. The coworker called 911, and N.D. was taken by ambulance to a local hospital.

At the hospital, medical staff performed a sexual assault examination on N.D. and tested her blood and urine for alcohol and drugs. No substances other than alcohol were found. Law enforcement later obtained a warrant to collect a DNA sample from Clutinger to be compared with the evidence and DNA samples taken from N.D. A forensic scientist with the Washington State Patrol Crime Laboratory found the presence of semen on the vaginal and perineal swabs taken from N.D. but was unable to determine the DNA profile of the male contributor. However, the forensic scientist found "touch DNA" on N.D.'s underwear, likely transferred by touching or handling the underwear, that matched Clutinger's DNA. RP (May 26, 2022) at 123.

Pretrial procedure

The State charged Clutinger with second degree rape. Before trial, defense counsel proposed two jury instructions based on Washington Pattern Jury Instructions: Criminal (WPIC) 4.01a and WPIC 19.03. See Clerk's Papers (CP) at 82-83. WPIC 4.01a instructed jurors that Clutinger had pleaded not guilty, that the State had the burden to prove every element of the crime beyond a reasonable doubt, that Clutinger had no burden proving that a reasonable doubt exists as to the crime's elements, that he is presumed innocent, and that a reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence. WPIC 19.03 instructed jurors on Clutinger's affirmative defense and his burden of proof:

It is a defense to a charge of rape in the second degree that at the time of the acts the defendant reasonably believed that [N.D.] was not mentally incapacitated or physically helpless.

The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty as to this charge.

CP at 99.

Trial

During opening statements, defense counsel explained to the jury two theories of the case: (1) the State failed to meet its burden of proof on the elements of second degree rape, and (2) Clutinger had satisfied his burden to prove the affirmative defense. Defense counsel concluded opening argument by telling jurors,

the State will not be able to prove beyond a reasonable doubt that [N.D.] was physically helpless or mentally incapacitated on . . . May the 18th, 2019. In fact, I expect the evidence and facts to show that David Clutinger reasonably believed that [N.D.] was not mentally incapacitated or physically helpless.

RP (May 24, 2022) at 289.

During trial, the State's witnesses testified consistent with the facts above.

The defense first called N.D.'s boss to testify. He testified he had known Clutinger for over a decade and employed him occasionally as a maintenance worker. He recalled seeing Clutinger and N.D. at Fast Eddie's acting "[a]ffectionate" and "flirtatious" with each other. RP (May 26, 2022) at 132. He did not notice that they were intoxicated but did notice them drinking more than one drink together. He characterized their behavior as "out of character for both of them." RP (May 26, 2022) at 140.

The defense next called a corporate manager for Tangen Hospitalities. He testified he was with N.D. and Clutinger at Fast Eddie's having a few drinks. He recalled N.D. and Clutinger being flirtatious and seeing N.D. grab Clutinger's shoulder. He described N.D. as not intoxicated and as coherent. He recalled seeing N.D. and Clutinger after they left Fast Eddie's at Sarnac Public House and noticing that N.D. appeared buzzed.

A former owner of Zola also testified for the defense. She recalled Clutinger and N.D. walking into Zola ordering food and water. She testified N.D. and Clutinger did not appear intoxicated and were acting like casual friends.

Clutinger also testified in his defense. He testified he had never met N.D. before the day in question. He described bar hopping with her and the coworker and buying rounds of drinks. He described his time with N.D. at Fast Eddie's as "flirty" and testified she did not appear intoxicated after she rode the Lime scooter. RP (May 26, 2022) at 171. He testified he and N.D. went to Sarnac Public House and Zola after leaving Fast Eddie's. He testified that things got flirtier when the two returned to Borracho, and N.D. eventually asked him for a ride home.

He testified when N.D. got into his Jeep-which had a broken passenger door and required her to climb through the driver side door and over the stick shift-she did not seem overly intoxicated and was able to talk with him. He testified he was going to drive her to her home, but when she asked how close he lived, he drove her to his house. He testified they fell asleep together, fully clothed on his sectional couch, and then moved into his bedroom. He testified N.D. removed her pants, but he remained fully clothed. He described them falling asleep again and then waking up and chatting. He recalled them laying on the bed "snuggling" and "spooning" together, with N.D. moving her butt against his crotch. RP (May 26, 2022) at 183, 185. He eventually rubbed N.D. outside and inside of her underwear, then put his fingers in her vagina. He testified that he, at no point, believed N.D. was mentally incapacitated or...