State v. Deer

• Decision Date: 25 October 2012
• Docket Number: No. 85511–1.,85511–1.
• Citation: 175 Wash.2d 725,287 P.3d 539
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Lindy DEER, Respondent.

175 Wash.2d 725

287 P.3d 539

STATE of Washington, Petitioner,

v.Lindy DEER, Respondent.

No. 85511–1.

Supreme Court of Washington, En Banc.

Argued Oct. 27, 2011.

Decided Oct. 25, 2012.

Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Petitioner.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Respondent.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Lenell Rae Nussbaum, Attorney at Law, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.

STEPHENS J.

[175 Wash.2d 727]¶ 1 Lindy Deer was convicted of third degree rape of a child after having sexual intercourse with a 15–year–old boy on multiple occasions. Deer claims that she was asleep during several acts of intercourse and cannot be guilty of rape because she did not act with volition. We hold that Deer's claimed lack of volition amounts to an affirmative defense, for which the defendant bears the burden of proof by a preponderance of the evidence. The trial court correctly refused Deer's request to instruct the jury that the State must prove beyond a reasonable doubt that she was awake during the acts at issue. We reverse the Court of Appeals.

FACTS

¶ 2 Lindy Deer, a 52–year–old woman, had sexual intercourse with 15–year–old R.R. on several occasions. Their relationship developed when R.R. moved in with his aunt in Auburn, Washington, to attend a private religious boarding school. Deer was an administrative assistant for R.R.'s aunt. Deer said she had “motherly” feelings for R.R., who would occasionally help her with chores and sleep over at her house. At one point, she gave R.R. “kissing lessons,” during which the two kissed on the mouth. 1 Report of Proceedings (RP) (2/11/09) at 24–25, 27–28. Deer told R.R. that she would have no problem having sex with him “if it wasn't wrong in the eyes of society.” Id. at 39. The “kissing lessons” eventually escalated into a sexual relationship. R.R. later revealed their sexual relationship to a school guidance counselor, and Deer was arrested and charged with rape of a child in the third degree. The charging document alleged three counts, involving two discrete time periods: June 6–December 15, 2006 (Count I) and January 1–June 11, 2007 (Counts II & III). Clerk's Papers (CP) at 64–65.

¶ 3 All told, between R.R.'s testimony and Deer's, the jury heard evidence of at least seven separate incidents of sexual intercourse. At trial, Deer argued that some of her sexual acts were not voluntary, or “volitional,” because she was asleep when they occurred. Pursuant to this theory, she asked the trial judge to instruct the jury to acquit if there was reasonable doubt that sexual intercourse was volitional on her part. The trial judge refused, instead instructing the jury to acquit if Deer proved by a preponderance of the evidence that sex had occurred without her knowledge or consent. The jury was instructed that it needed to unanimously agree on one act for each count but did not need to find that all of the alleged acts occurred. Id. at 23. Deer acknowledged she was not asleep during all of the incidents. Additionally, during some of the incidents Deer testified she slept through, R.R. testified she was an active participant. Deer also testified that she did not consent to some of the incidents though she was aware they took place.

¶ 4 With respect to the jury instructions, Deer did not object to the “to convict” instructions for the three counts, which said nothing about “volition” as an element of the alleged crimes. Id. at 20–22. Deer refused the giving of any instruction on the defense of duress. 2 RP (2/12/09) at 3–5. Her only objection was to instruction 11, which set forth a defense based on the defendant's lack of “knowledge or consent” to sexual intercourse. CP at 24. More specifically, Deer objected to placing upon her the burden of proving the defense by a preponderance of the evidence, but not to instructing the jury as to the meaning of “knowledge or consent.” 1 RP (2/12/09) at 111. Deer's theory was that her lack of knowledge or consent was akin to a diminished capacity defense. Her counsel argued:

Your Honor, we believe this case is much more like diminished capacity in that you have to have some mental capacity to consent. We picture the State legislature finding a person guilty of a crime that they have no knowledge of even taking place at all.

Could we imagine an initiative of any kind where there is a proposal to pass law finding people guilty of crimes that they were even unaware that they participated in and I think the answer is no. This case is most like a diminished capacity.

Id. at 6–7.

[175 Wash.2d 730]¶ 5 While Deer apparently proposed an alternative instruction to instruction 11, based on language the State had agreed to, it is not in the record. At trial, Deer's counsel described the instruction as stating that “volition goes to-really should go to reasonable doubt and if you have a reasonable doubt caused by lack of volition or evidence put on that we believe prove[s] lack of volition, that would go toward reasonable doubt, rather than a preponderance.” 2 RP (2/11/09) at 80. The State insists “the instruction that Deer proposed and the State agreed to would have required the defense to produce sufficient evidence to raise a reasonable doubt as to whether the acts of sexual intercourse were ‘volitional.’ RP (2/11/09–II) 78.” Suppl. Br. of Pet'r at 5 n. 1. In the end, the State advocated for the court's instruction 11, analogizing the defense of lack of volition to unwitting possession of contraband. 2 RP (2/12/09) at 3–5. Deer's counsel lodged his objection. Id. at 111. The jury returned guilty verdicts on all three counts of child rape in the third degree, and the judge sentenced Deer to two 46–month sentences to be served concurrently.

¶ 6 The Court of Appeals set aside Deer's conviction due to a charging error. State v. Deer, 158 Wash.App. 854, 861, 244 P.3d 965 (2010). ¹ Only because the issue could arise on remand did the Court of Appeals address Deer's challenge to instruction 11. Id. at 862, 244 P.3d 965. The court held that the State was required to prove beyond a reasonable doubt that Deer's actions were volitional, i.e., that she was awake during the encounters. Id. at 864, 244 P.3d 965. The State appealed and we granted review. State v. Deer, 171 Wash.2d 1012, 249 P.3d 1029 (2011). Thus, this case is in an unusual posture, as we are considering a claim of instructional error that has no practical effect on the validity of Deer's conviction. We are therefore not concerned with whether any error was harmless in light of the way the case was charged and tried. The question is simply whether the State bears the burden of disproving Deer's claim that she was asleep because volition is an element of every crime.²

ANALYSIS

¶ 7 The statute governing rape of a child in the third degree reads:

A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.

RCW 9A.44.079(1). The elements of the crime are thus (1) sexual intercourse with another (2) who is at least 14 years old but less than 16 years old and not married to the perpetrator and (3) the perpetrator is at least 48 months older than the victim. Due process requires the State to prove every element of a crime beyond a reasonable doubt. U.S. Const. amend. XIV; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

¶ 8 We generally consider a crime to be made up of two parts: (1) the actus reus and (2) the mens rea. State v. Eaton, 168 Wash.2d 476, 480, 229 P.3d 704 (2010). As a strict liability crime, child rape in the third degree requires no proof of mens rea. See State v. Chhom, 128 Wash.2d 739, 741–43, 911 P.2d 1014 (1996). Generally, the State must prove only that the act constituting a strict liability offense occurred. However, Deer argues that “[a]s part of the actus reus of any crime, the State must prove beyond a reasonable doubt that a defendant voluntarily engaged in the proscribed conduct.” Suppl. Br. of Resp't at 6. She claims that a perpetrator who was asleep during a criminal act has not voluntarily engaged in the prohibited act. Id. at 7–8. Deer urges this court to hold that once a defendant produces evidence of a lack of voluntary action, the State bears the burden of proving volition beyond a reasonable doubt. Id. at 9–11.³ In other words, Deer asks this court to hold, as the Court of Appeals did, that the State must prove beyond a reasonable doubt that she was awake when the acts of child rape took place.

¶ 9 Our review of this question reveals that little attention has been paid to the notion of actus reus, and courts and commentators find it difficult to draw a bright line between volition and the knowledge component of mens rea. A recent article advocating for treating volition as an element of the State's case acknowledged that “[n]otwithstanding the purportedly central role that actus reus inhabits in criminal law philosophy, it remains a relatively insignificant issue in case law,” and moreover, “courts are inconsistent on how they treat actus reus as an element.” Melissa Hamilton, Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post–Traumatic Stress Disorder, 16 Berkeley J.Crim. L. 340, 348, 349 (2011). While the author lauds the Court of Appeals opinion in this case, and would rely on Winship, 397 U.S. 358, 90 S.Ct. 1068, as a due process basis for treating volition as an element the State must establish, id. at 350, 90 S.Ct. 1068, she recognizes that “contemporary criminal law appears to have deviated from the long-standing voluntary act doctrine.” Id. at 351, 90 S.Ct. 1068.

¶ 10 The law has “deviated” for good reason; theory and practice...