State Of Wash. v. Gilger
| Decision Date | 09 November 2010 |
| Docket Number | No. 39250-0-II,39250-0-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JONATHAN GARTH GILGER, Appellant. |
Hunt, J. — Jonathan Garth Gilger appeals his jury conviction for second degree rape. He argues that the trial court erred in denying his request for a jury instruction on the lesser included offense of third degree rape. We affirm.
On Saturday night August 2, 2008, 17-year-old AF1 met acquaintance 17-year-old Jonathan Gilger at a McDonald's restaurant in Hazel Dell, 2 Clark County. Gilger's uncle3 drove them to Gilger's residence, parked the car, and walked inside a nearby camper. AF and Gilger approached Gilger's residence and spoke and smoked cigarettes with Ronald Smith, whom AF had known to live in the house with Gilger and others. AF and Gilger then walked to the camper, Gilger entered alone and returned with a bottle of whiskey.
Gilger and AF then entered Gilger's residence, and walked to the kitchen, where Gilger mixed the whiskey with soda in large cups. AF and Gilger went to Gilger's "very small" bedroom, and Gilger shut the door. I Report of Proceedings (Feb. 9, 2009) (RP) at 71. AF sat on the edge of the bed, near an open window, smoking a cigarette. Gilger stood, drinking and talking. A movie was playing on the television. At some point during this time, Smith appeared outside Gilger's bedroom window, spoke with him for approximately five minutes, and walked away from the window.
Gilger closed the window, shut the blinds, turned off the lights, sat next to AF on the bed, wrapped his arms around her, and"[t]r[ied] to kiss" her. I RP (Feb. 9, 2009) at 71. AF did notkiss Gilger back and told him that she had a boyfriend. Gilger told her that she did not have a boyfriend. After AF "said no" numerous times, Gilger stood up, began to remove AF's shoes, pulled her pants down from her hips, causing her underpants to "slide" with her pants, put on a condom, stood at the edge of the bed, "pushed" AF "backwards" to a prone position on her back on the bed and began having vaginal intercourse with her. I RP (Feb. 9, 2009) at 75, 77, 79. AF continued to tell him "no" and "stop," and pushed Gilger with her feet without any effect. I RP (Feb. 9, 2009) at 82. In August 2008, AF was five feet tall and weighed 112 pounds; AF stated that the "the only way" to describe Gilger is that I RP (Feb. 9, 2009) at 81.
Gilger then "flip[ped]" AF over on her stomach and began to have anal intercourse with her, as AF cried and continued to tell Gilger to stop. I RP (Feb. 9, 2009) at 82. Gilger told AF to stop crying, AF repeated her plea to stop, and Gilger told her he would stop if she ceased crying. Gilger momentarily stopped having anal intercourse with AF, but then he manipulated her legs, thighs, and hips to "flip[]" her onto her back, spread her legs, and again began vaginal intercourse. I RP (Feb. 9, 2009) at 91. When AF told Gilger she would urinate on his bed if he did not stop, Gilger let AF get up and go to the bathroom. AF got up from the bed, walked into to the bathroom, locked the door behind her, and noticed she was bleeding from her anus, which she wiped with some tissue paper.
About five minutes later, Gilger knocked on the bathroom door and told AF she needed to leave because his mother did not want Gilger to have "very many people" at the residence. I RP (Feb. 9, 2009) at 98. AF left the bathroom, went back to Gilger's room, put her clothes back on, exited onto the back patio, sat down next to Smith, and smoked a cigarette. AF did not tell Smithwhat had happened. Gilger, Gilger's uncle, Ronald Smith, and AF then drove back to the same McDonald's where AF exited the car and went across the street to an apartment complex. At this point, AF had been with Gilger for "a couple hours," during which time, AF had consumed "about half of the cup of alcohol that Gilger had served her. I RP (Feb. 9, 2009) at 101, 127.
At an apartment complex, AF told her friend Allen Barrett what had occurred at Gilger's residence. Barrett called the police. An ambulance took AF to the Legacy Salmon Creek Emergency Department where she met sexual assault nurse Kelly Brady. Brady evaluated AF's medical condition, attempted to calm her, and interviewed AF about her medical history, including AF's description of the earlier events. Dr. Shawn Van Deusen, M.D., then spoke with AF, who again recounted her medical history and the events of that night. Dr. Van Deusen completed an external exam of AF, but did not conduct an internal exam because of AF's "injuries and the pain involved." II RP at 267. In Dr. Van Deusen's presence, Brady took photographs of various parts of AF's body. These photographs depicted: contusions on AF's left calf (both Dr. Van Deusen and Brady testified that these contusions were consistent with fingerprint marks); abrasions on her left inner thigh, left medial knee, buttocks, inner labia minora and the posterior fourchette, lacerations on her rectum, and bruising around her anus.
During this time, Clark County Deputy Sheriff Brian Kessel responded to a report of an alleged rape and met Barrett at a nearby Chevron gas station. Kessel then drove to the Legacy Salmon Creek Emergency Department and interviewed AF. Kessel observed that AF was crying, shaking, and needed several minutes to regain her composure before continuing the interview. After interviewing AF, Kessel drove to Gilger's residence, asked Gilger to accompany him to aseparate location to conduct an interview, read Gilger his Miranda rights, 4 and took Gilger uncuffed in his patrol car to the Department of Corrections office. Meanwhile, Detective Kevin Harper spoke with AF at the Legacy Salmon Creek Emergency Department and observed her crying and shaking.
At the office, Kessel and trainee officer Chris Lukay began interviewing Gilger, who had waived his rights. After Harper joined them a few minutes later, the three interviewed Gilger for approximately one hour and forty-five minutes, paused, and then resumed for another thirty minutes with a tape recorder.
Gilger gave several inconsistent versions of the preceding night's events, later admitting that he had lied because he was embarrassed and afraid of incriminating himself. He claimed that: (1) AF had accused him of rape because she was upset that he did not want her to stay at his residence; and (2) he believed AF was "mad" because he and their mutual friend Amanda Nelson were involved in a romantic relationship and AF "wanted to be with" Gilger. II RP at 250.
The State charged Gilger with second degree rape by forcible compulsion under RCW 9A.44.050(1)(a). The Juvenile Department of Clark County Superior Court declined to exercise jurisdiction over Gilger because he was less than a month shy of his eighteenth birthday, he had prior experience with the juvenile justice system, and the charged offense was a serious one.
At trial, the State's witnesses testified to the facts recounted above. Gilger's uncle testified for the defense that: (1) on the way back to McDonald's after the alleged rape occurred, the "mood [in the car] was light," "everything seemed normal," and Gilger, Ronald Smith, and AF were "joking back and forth"; and (2) after exiting the car, AF told Gilger she would call him the following day. II RP at 325. Ronald Smith similarly testified that, during the ride back to McDonald's, "[e]verybody was happy" and "[t]here was no negativity." II RP at 340.
Amanda Nelson testified that, a few days after August 2, AF had called and told her (Nelson) that she (AF) had engaged in consensual intercourse with Gilger. A week later, AF called Nelson and told her that Gilger had "forced" her (AF) to have intercourse, and that AF said she had changed her story because she was afraid of losing Nelson as a friend. II RP at 346. Gilger did not testify.
Defense counsel requested an inferior third degree rape instruction. The trial court denied the request, stating:
All right [sic]. Having read Charles [State v. Charles, 126 Wn.2d 353, 894 P.2d 558 (1995)] and also the most recent case that came down yesterday5, it would seem to again follow that same basic philosophy, there's no question that the—there was force[] used as to one of the rapes, which would be the anal intercourse. Based on her version there was force used to turn her and to place her in a position where rape occurred. According to his version she willing turned over, so we—under consent, so it's a clear situation. It's one or the other that the jury is going to be required to believe. I'm denying the lesser [instruction].
The jury found Gilger guilty of second degree rape as charged. He appeals.
Gilger argues that the trial court abused its discretion in denying his request for a jury instruction on the inferior degree6 offense of third degree rape. More specifically, he contends that the following facts required a third degree rape jury instruction: (1) he never threatened AF; (2) his larger physical size alone did not imply that he was going to injure AF physically; (3) AF never screamed, or hit or scratched Gilger during the rape; (4) he did not hold AF down while he took off her shoes; and (5) AF did not get up from the bed while he was putting on a condom.
The State counters that there was insufficient evidence to support giving the requested inferior degree instruction. We agree with the State.
We review for abuse of discretion a trial court's decision to give an instruction that rests on a factual determination. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998) (citing State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700 (1997)). When determining whether the evidence was sufficient to support giving an instruction, we view the evidence in...
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