State v. McKee

• Decision Date: 23 July 2007
• Docket Number: No. 56504-4-I.,56504-4-I.
• Citation: 167 P.3d 575,141 Wn. App. 22
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent/Cross-Appellant, v. Jeffrey R. McKEE, Appellant/Cross-Respondent.

167 P.3d 575

141 Wn. App. 22

STATE of Washington, Respondent/Cross-Appellant, v. Jeffrey R. McKEE, Appellant/Cross-Respondent.

No. 56504-4-I.

Court of Appeals of Washington, Division One.

July 23, 2007.

Publication Ordered September 14, 2007.

Dana M. Lind, Nielsen Broman & Koch PLLC, Attorney at Law, Seattle, WA, for Appellant/Cross-Respondent.

Jeffrey McKee/Doc # 882819 (Appearing Pro Se).

Prosecuting Atty. King County, King. Co. Pros./App. Unit Supervisor, Patrick C. Cook, The Walthew Law Firm, Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent/Cross-Appellant.

BAKER, J.

¶ 1 Jeffrey McKee was convicted of two counts of first degree rape while armed with a firearm. The trial court, noting that the victims were prostitutes, imposed an exceptional minimum sentence. McKee challenges the sufficiency of the evidence on one of the firearm enhancements and one of the rape convictions, as well as community custody provisions barring him from using pornography or alcohol. The State cross-appeals the exceptional minimum sentence. We affirm McKee's convictions and remand to the trial court to revise sentencing errors.

I.

¶ 2 On June 4, 2003, Jearlean Bradford contacted King County Sheriff's Detective Sue Peters. Peters was acquainted with Bradford through her work with the Highway Intelligence Team (HITS), a group of officers who work to document and establish rapport with prostitutes working the area around Pacific Highway South between SeaTac and Shoreline. Bradford said that she was sitting at a bus stop when a white male in a clean, red pickup truck pulled over and offered to give her a ride and some beer money. Bradford accepted. Eventually Bradford agreed to perform oral sex for $30. Bradford said that the man drove her to an area near a park, then suddenly grabbed her head, forced it toward his exposed penis, and ordered her to "suck his dick." Bradford said that when the man saw her "brothers" approaching, he pushed her out of the truck and drove away. Bradford provided a detailed description of the suspect and said that he was driving a red truck with Harley-Davidson floor mats and license plate number A98146J. The truck was registered to Jeffrey McKee.

¶ 3 On June 5, 2003, Detective Peters was contacted by Lynae Korbut, whom Peters also knew through the HITS program. Korbut said that two nights earlier she was walking on Kent-Des Moines road near Pacific Highway South when a clean-cut white male in a red pickup truck pulled over and asked if she needed a ride. Korbut said she did not plan to proposition the man for sex because she thought he was an undercover police officer, but she accepted his offer of a ride. He drove her to a convenience store, where he bought her a wine cooler and a pack of cigarettes. Korbut said that after they left the store, she tried to give the man directions to where she wanted to go, but instead he drove to a dead-end road, exposed his penis, put a gun to her head, and ordered her to "suck my dick, bitch." Korbut said that after he forced her to perform oral sex at gunpoint, he ordered her to undress and then raped her vaginally and anally from behind. Korbut said that when he was finished, he threw her clothes out of the truck and left her naked in the street. She described her attacker in detail and said his red truck had Harley-Davidson floor mats and a license plate number beginning with "A."

¶ 4 On June 18, 2003, Jamie Lee Ray reported to police that she had been raped a couple of weeks earlier by a clean-cut white male with short blondish-brown hair and a medium build. Ray said that she and her friend Muna Absiya were walking near Pacific Highway South when a man in a red truck pulled up and offered her a ride. Absiya recognized him as a man who had previously picked her up in his red truck and raped her orally and vaginally before she managed to escape. Absiya warned Ray not to get in the truck, but she did anyway. Ray said that the man drove to the parking lot of a daycare center, grabbed her by the hair, put a small black handgun to her head and said "suck my dick, bitch." After forcing her to perform oral sex, he ordered her to undress and raped her vaginally and anally at gunpoint. Ray said that when he was finished, he threw her and her clothes out of the truck and drove away.

¶ 5 Jeffrey McKee was arrested and charged with four crimes: count I, first degree rape of Lynae Korbut while armed with a firearm; count II, attempted second degree rape of Jearlean Bradford; count III, second degree rape of Muna Absiya; and count IV, first degree rape of Jamie Lee Ray while armed with a firearm. After McKee was arrested, Bradford was unable to select him from a lineup, but said McKee "would be perfect if he lost 40 or 50 pounds." Bradford did, however, identify McKee in court as the rapist. Korbut identified McKee in a photomontage, in a lineup, and in court. Absiya identified him in a lineup and in court as the man who had raped her and had picked up Ray. Absiya also identified photographs of the truck, noting the Harley-Davidson floor mats. Ray was unable to pick out McKee in a photomontage or lineup, nor could she identify him in court. However, she identified photos of McKee's truck, noting the seat covers and Harley-Davidson floor mats, and testified that McKee's gun looked like the one that was held to her head during the rape.

¶ 6 Jennifer Gauthier of the Washington State Patrol Crime Laboratory identified three DNA profiles in a semen stain on McKee's truck seat cover that were consistent with a mixture of genetic material from Ray, McKee, and an unknown female. Gauthier conservatively estimated that one in 9,400 individuals could potentially have contributed the DNA consistent with Ray's profile, but was confident that Ray's DNA was contained within the semen stain.

¶ 7 The trial court instructed the jury that evidence on each count was cross-admissible for the purposes of proving a common scheme or plan. The jury found McKee guilty as charged on counts I and IV, both with firearm enhancements, but not guilty on counts II and III.

¶ 8 McKee requested an exceptional minimum sentence below the standard range, arguing that the multiple offense policy of the Sentencing Reform Act of 1981¹ (SRA) resulted in a clearly excessive sentence. Noting that the victims were prostitutes who were willing to have sex for money, the trial court granted McKee's request and ordered that the minimum base sentences for each of the rapes be served concurrently rather than consecutively. The trial court also imposed conditions of community custody, including restrictions on alcohol and pornography. McKee appealed, and the State cross-appealed the exceptional minimum sentence.

II.

¶ 9 McKee argues that the evidence is insufficient to support his firearm enhancement for first degree rape of Lynae Korbut and his conviction for rape of Jamie Lee Ray. Evidence is sufficient to sustain a jury's verdict on a conviction or enhancement if, when viewed in the light most favorable to the State, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."² A defendant who challenges the sufficiency of the evidence admits the truth of the evidence and all rational inferences that may be drawn from it.³ All reasonable inferences must be drawn in favor of the State and against the defendant.⁴ The reviewing court must defer to the jury's determination as to the weight and credibility of the evidence and its resolution of conflicting testimony.⁵ For purposes of a firearm enhancement, the State must prove that the defendant was armed during commission of the crime with a "firearm," defined as a weapon "from which a projectile or projectiles may be fired by an explosive such as gunpowder."⁶ The State need not introduce the actual deadly weapon at trial; witness testimony alone may provide sufficient evidence.⁷

¶ 10 McKee argues that the evidence is insufficient to support the firearm enhancement because Korbut was unable to provide a detailed description of the gun at trial and because the only real gun accessible to McKee — the black semiautomatic recovered from his bedroom — did not match Korbut's initial description. Therefore, according to McKee, there is no evidence that the gun recovered from his residence was the actual weapon purportedly used against Korbut.

¶ 11 The record shows that Korbut initially told Detective Peters that the gun was chrome and looked like a .38 Special, which is a revolver. However, at trial, Korbut testified that although she was not able to see the make of the gun, she saw "this steel part of it." She said she knew the gun was real because of the weight and feel of the steel, and testified that she did not bite McKee's penis during the rape because of the gun to her head. On cross-examination, when challenged regarding her description of the gun, Korbut testified that she knew it was a real gun because McKee was holding it like a real gun and because of the texture of steel against her head. She acknowledged that she previously said she saw chrome, but explained that although she "might have seen something shiny," she could not give a specific description of the gun. When asked whether she saw a gun, Korbut said, "I saw a peripheral something to my head" and reiterated that it felt like a gun and was a gun because she would have bit McKee if it was not.

¶ 12 We hold that there is sufficient circumstantial evidence, viewed in the light most favorable to the State, from which a rational trier of fact could conclude beyond a reasonable doubt that McKee was armed with a real gun when he raped Korbut. Korbut's testimony regarding the weight and feel of the gun, seeing a "peripheral something to my head" and the way in which McKee wielded it, combined with evidence that McKee had a real gun and had access to other guns, provided the jury with sufficient evidence to support the...