State v. Degfu

STATE OF WASHINGTON Respondent, v. DEREJE ASRAT DEGFU, AKA DEREJE YAKAYO KEBEDE, Appellant.

No. 77445-0-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

September 23, 2019

UNPUBLISHED OPINION

SMITH, J. — Dereje Kebede,¹ an off-the-clock Uber driver, picked up 22-year-old J.A. from a taco stand at a known party spot on Capitol Hill at 1:55 a.m., drove her to a motel in Tukwila, and tried to have sex with her while she was incapacitated. Kebede testified J.A. was not drunk and she initiated and consented to sexual intercourse. A jury did not accept Kebede's testimony and convicted him of attempted second degree rape.

On appeal, Kebede argues that the State failed to prove he believed J.A. was incapacitated. But given the overwhelming evidence of J.A.'s obvious intoxication, sufficient evidence supports his conviction. The same overwhelming evidence supports a conclusion that any ambiguity within the jury instructions was harmless beyond a reasonable doubt. We also reject Kebede's claims ofprosecutorial misconduct, ineffective assistance of counsel, and improper exclusion of evidence. Finally, none of the issues in Kebede's statement of additional grounds for review (SAG) warrant reversal. We affirm Kebede's conviction but remand to the trial court to strike Kebede's court costs from his judgment and sentence due to his indigency at the time of sentencing.

FACTS

On March 28, 2015, J.A. worked a double shift until around 10:00 p.m. and then met her friends at a nightclub on Capitol Hill to celebrate her 22nd birthday. J.A., who weighed about 120 pounds, did not have time to eat that night, and after consuming Red Bull and vodka, shots, and beer, she blacked out. While in the nightclub, J.A. lost her cell phone. She was later kicked out of the club and a black "X" was drawn on her hand, signifying that she was too intoxicated to reenter the club.

Kebede, an Uber driver, dropped off his last passenger at 1:46 a.m. and signed off of the Uber application. He picked up J.A. at 1:55 a.m. while she was eating a taco in front of a taco truck. J.A. was trying to flag down a taxi in front of Kebede, but he honked so that the taxi would drive off and J.A. would get in his car. Kebede believed J.A. wanted to go to Des Moines, south of Seattle, but he drove her northeast to the Washington Park Arboretum (Arboretum Park). At the park, she looked for her lost cell phone in his car and urinated in some nearby bushes. Kebede then drove J.A. down Martin Luther King Jr. Way from Seattle to a motel in Tukwila, where he attempted to have sex with her but could not maintain an erection.

The next morning, J.A. awoke in the motel, still intoxicated, and did not know where she was or who Kebede was. Kebede told her that they had sex. J.A. used Kebede's phone to call a friend and Kebede dropped off J.A. at that friend's house. After processing that she had been raped, J.A. ran out of the house into the front yard and was kneeling and lying on the ground, screaming and hysterical. A police officer saw J.A. and offered assistance. After speaking with the officer, J.A. decided to go to the hospital for a sexual assault evaluation. The exam revealed Kebede's saliva DNA (deoxyribonucleic acid) on J.A.'s vaginal area as well as several vaginal injuries.

The State charged Kebede with attempted second degree rape. Kebede gave a statement to police that was videotaped and later admitted at trial. At trial, Kebede testified that J.A. was not drunk and that she initiated their sexual encounter. A jury convicted him as charged. Kebede appeals.

ANALYSIS

Sufficiency of the Evidence

Kebede argues that the State presented insufficient evidence that he intended to have intercourse with a mentally incapacitated person and, therefore, his conviction should be reversed. We disagree.

In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). A challenge to the sufficiency of the evidence admits the truth of the evidence.State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Further, "all 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. "In determining the sufficiency of the evidence, circumstantial evidence is not to be considered any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

"A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1). "A person is guilty of rape in the second degree when . . . the person engages in sexual intercourse with another person . . . [w]hen the victim is incapable of consent by reason of being . . . mentally incapacitated." RCW 9A.44.050(1)(b). "'Mental incapacity' is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause." RCW 9A.44.010(4). Therefore, to commit the crime of attempted rape in the second degree, "the defendant must intend to have intercourse with a victim incapable of consent." State v. Weaville, 162 Wn. App. 801, 816, 256 P.3d 426 (2011).

Second degree rape is a strict liability crime because it has no mens rea. Cf. State v. Deer, 175 Wn.2d 725, 731, 287 P.3d 539 (2012) ("As a strict liability crime, child rape in the third degree requires no proof of mens rea."). In other words, the defendant's "knowledge" of the victim's incapacity is not a statutoryelement of second degree rape. State v. Lough, 70 Wn. App. 302, 328 n.20, 853 P.2d 920 (1993), aff'd, 125 Wn.2d 847, 889 P.2d 487 (1995). Therefore, a defendant may assert an affirmative defense and "prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated." RCW 9A.44.030(1).

But when the crime is not completed and is charged as attempted second degree rape, there is a mens rea requirement because the State must prove that the defendant intended to have intercourse with a victim who is incapable of consent. Weaville, 162 Wn. App. at 816. Washington "require[s] the highest possible mental state for criminal attempt because criminal attempt focuses on the dangerousness of the actor, not the act." State v. Johnson, 173 Wn.2d 895, 905, 270 P.3d 591 (2012). Therefore, it is not sufficient for the State to prove only that the defendant intended to have sexual intercourse. The State must prove that the defendant intended to have sexual intercourse with an incapacitated victim. Cf. Johnson, 173 Wn.2d at 907 (disapproving of the statement in State v. Chhom, 128 Wn.2d 739, 743, 911 P.2d 1014 (1996), that defined the criminal result of rape of a child as sexual intercourse alone). That said, intent "may be inferred from all the facts and circumstances surrounding the commission of an act or acts." State v. Bergeron, 105 Wn.2d 1, 19, 711 P.2d 1000 (1985); State v. Abuan, 161 Wn. App. 135, 155, 257 P.3d 1 (2011) (Criminal intent may be inferred "from conduct that plainly indicates such intent as a matter of logical probability.").

In Johnson, the State charged the defendant with attempted promotion of commercial sexual abuse of a minor. Johnson, 173 Wn.2d at 909. There, the minor victims were fictitious and the actual communications for which the defendant was prosecuted occurred with adult women posing as minors. Johnson, 173 Wn.2d at 897. The Supreme Court held that its statement in State v. Patel, 170 Wn.2d 476, 485, 242 P.3d 856 (2010), that "a defendant who attempts to have sex with a person he believes is underage but is actually an adult may not be convicted" of attempted child rape, was dicta. Johnson, 173 Wn.2d at 904. It clarified that "[t]he State must prove the age of the intended victim to prove that the defendant intended to have sexual intercourse with a child." Johnson, 173 Wn.2d at 908. Similarly, to obtain a conviction for attempted second degree rape, the State must prove that the defendant intended to have intercourse with an incapacitated person.

Here, taking the evidence in the light most favorable to the State, there was sufficient evidence that Kebede intended to have intercourse with a person who was incapable of consent. J.A. testified that she blacked out at the nightclub, was kicked out, and had a black "X" on her wrist. One of J.A.'s friends testified that J.A. seemed very drunk and was hanging onto a friend for support outside of the nightclub after she was kicked out. Kebede testified that he turned off his Uber application just before he picked up J.A. in front of a taco stand on Capitol Hill. Instead of driving south and taking J.A. to Des Moines, where he believed she lived, he drove her northeast to Arboretum Park, where J.A. urinated in the bushes and looked for her lost phone in his car. Kebede admittedthat he told a detective that when he picked up J.A., she was "tipsy," would have been over the legal limit to drive, and was acting unlike "99 percent" of his other passengers. From this evidence, a rational juror could reasonably have inferred from the surrounding facts and circumstances that Kebede intended to have intercourse with J.A. while she was incapacitated. Although Kebede testified that J.A. was not drunk, the jury, who was in the best position to weigh the credibility and persuasiveness of Kebede's perceptions, clearly did not believe him.

Kebede argues that the evidence was insufficient because there was contradicting testimony regarding the level of J.A.'s intoxication. But on a...