State v. Gore

• Decision Date: 23 May 2011
• Docket Number: No. 66665-7-I,66665-7-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. LOGAN LENOX GORE, Appellant.

STATE OF WASHINGTON, Respondent, v. LOGAN LENOX GORE, Appellant.

No. 66665-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: May 23, 2011

UNPUBLISHED OPINION

Ellington, J. — Logan Gore was convicted of two counts of rape in the second degree. He contends he was denied a fair trial by prosecutorial misconduct, ineffective assistance of counsel, and the court's failure to question jurors who complained about having to pass close to him in the hallway. He also contends the evidence was insufficient and, for the first time on appeal, argues the court erred in sentencing. We agree his convictions should be treated as same criminal conduct and remand for resentencing. We otherwise affirm.

BACKGROUND

Sixteen-year-old J.L.C. was visiting from Kentucky. She attended a party where she was introduced to twenty-year-old Logan Gore, and they spent most of party together. When she refused to leave with her friends, her best friend, Taylor Gibbs, noticed J.L.C. was intoxicated and decided to stay with her.

J.L.C. and Gore were partners in a drinking game. Over the course of about three hours, J.L.C. consumed two mixed drinks, five or six quarter cups of beer during the drinking game, three pints of beer from the keg, and three or four shots of vodka. She became very intoxicated. "I remember having to hold myself up. I was like—I was like leaning up against the wall, and that was holding me up. I felt really dizzy."¹ When she tried to speak, she felt she "wasn't making sense."²

J.L.C. did not feel good and wanted to use the restroom, but needed help to walk there. Gore offered to take her, but took her to a bedroom instead. There, J.L.C. collapsed or was pushed onto the bed. Gore closed the door, turned off the lights and started kissing her. She repeatedly told him, "I'm a virgin, don't have sex with me."³ Gore digitally penetrated J.L.C.'s vagina, performed oral sex on her, and penetrated her vagina and anus with his penis. J.L.C. testified at length about her difficulty remaining conscious during the encounter, which lasted 15 to 30 minutes. She felt unable to talk and that if she did, she would not make sense. Eventually, people tried to get into the room. J.L.C. could not dress herself, so Gore did it for her. He led her down the hallway and out of the house.

Meanwhile, Gibbs had been unable to find J.L.C. and called her friend Marina Kaminsky, who came with her boyfriend Elan Marmaduke to help. Shortly after they arrived, J.L.C. emerged from the house. Gore was holding her up and helping her walk. When J.L.C. tried to walk away from Gore, she fell down and could not get up.Marmaduke and Gibbs asked Gore what he had done to J.L.C. He either did not respond or denied that anything had happened.

After leaving the party with her friends, J.L.C. was moaning and crying and her speech was fragmented. She repeated that she was in pain, her vagina hurt, and she felt like she was bleeding. The teens went to a friend's house and asked her mother, Karen Swift, for help.

Swift is a nurse practitioner and midwife. She spoke to J.L.C., who was distressed, couldn't stop talking, had trouble walking, had bloodshot, glassy eyes, and was disheveled. It was apparent to Swift that J.L.C. was under the influence. Swift took J.L.C. and her friends to the hospital but no sexual assault nurse examiner was available. They returned the next day and J.L.C. was examined by sexual assault nurse examiner Casey Stewart. Stewart noted abrasions and redness in the vaginal and anal areas and the hymen had been torn away. Her condition was consistent with J.L.C.'s reports. Stewart collected swabs from J.L.C.'s vagina, anus, and perineal area, which revealed the presence of semen later found to match Gore's DNA profile.

The State charged Gore with two counts of rape in the second degree. After a six day trial, the jury convicted Gore as charged.

DISCUSSION

Jurors

On the third day of trial, the bailiff informed the judge that several of the jurors "independently and individually had mentioned to the bailiff that they wereuncomfortable coming into the jury deliberation room because they had to walk by the defendant."⁴ The court called counsel in to discuss the matter, and the bailiff was sworn and examined. The bailiff reported that four jurors had expressed discomfort in having to pass the defendant at very close proximity. One of the jurors "used the term 'tactic,' felt that it was a conscious tactic. Another juror used the term 'staging.'"⁵

Defense counsel conceded the irregularity did not rise to the level of a mistrial but asked the court to bring the jurors in to inquire individually whether "they are aware of it, if there's been any discussions amongst the panel, because if in fact these jurors—even if one of these jurors feels intimidated by Mr. Gore my concern is—my legitimate concern is that he's not going to get a fair trial."⁶ The prosecutor opposed individual questioning because doing so would "put in their head well, I'm intimidated by this defendant, and it's going to create the issue of it."⁷

The court concluded such questions "would be creating more of a problem,"⁸observing that defense counsel had spoken to Gore about sitting elsewhere and that if necessary, jurors could be advised of a different route to the courtroom to avoid inadvertent contact. The court invited counsel to raise the matter again "if you have additional authority or additional information you want me to consider."⁹ Defensecounsel moved for a mistrial "just to preserve the issue for appeal," but did not raise the issue again or present additional authority.¹⁰

Gore now contends the court was required to interrogate the jurors to determine whether any juror could no longer be fair, and that its failure to do so violated its duty to excuse any juror who has manifested an unfitness to serve.¹¹

Washington courts have discretion as to how to determine whether jurors have engaged in misconduct "in a way that avoids tainting the juror, and, thus, avoids creating prejudice against either party."¹² Here, the court found there had been nothing "close to a showing of any kind of misconduct or any basis that the jury is tainted in any way,"¹³ and reasonably determined that individually questioning the jurors "would create more problems than it would fix."¹⁴ There was no error.¹⁵

Prosecutor's Conduct

Gore contends the court erred by failing to grant a mistrial based upon the prosecutor's misconduct during closing argument. A decision to grant or deny a mistrial is reviewed for abuse of discretion.¹⁶ Denial of a mistrial will be overturned "only when there is a 'substantial likelihood' the prejudice affected the jury's verdict."¹⁷ In determining whether an irregular occurrence affected the outcome, a reviewing court considers: (1) the seriousness of the irregularity; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it.¹⁸

When a mistrial motion is based upon prosecutorial misconduct, a defendant must first establish the improper conduct and then demonstrate its prejudicial effect.¹⁹ "[A]llegedly improper statements should be viewed within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in argument, and the jury instructions."²⁰

During closing argument, and despite numerous objections sustained by the court, the prosecutor used the words "lie," "lied," "lying," and "not telling the truth" to describe Gore and his testimony. She also suggested a defense witness was "a liar." Gore contends these comments improperly appealed to the passions of the jury and were not obviated by the court's reminder that arguments of counsel are not evidence and that the jury is the sole judge of credibility. Although we agree theprosecutor's behavior was improper, her comments were not reversible misconduct.

The State has wide latitude in drawing and expressing reasonable inferences from the evidence, including inferences about credibility.²¹ "Where a prosecutor shows that other evidence contradicts a defendant's testimony, the prosecutor may argue that the defendant is lying."²² Here, each time the prosecutor argued Gore was lying, she cited to evidence in the record.

First, referring to Gore's insistence to Gibbs and Marmaduke that "nothing happened," the prosecutor pointed out that Gore admitted he had had sex with J.L.C. She argued that "[h]e lied" and "[h]e admitted to lying to everyone."²³

Referring to Gore's testimony that he did not ejaculate during intercourse, she called it "a big fat lie," given that Gore's semen was found in J.L.C.'s body.²⁴ She asked, "Why lie about that?"²⁵

Next, the prosecutor discussed Gore's friend Casey Jones, who testified he had watched the encounter through an open window and believed J.L.C. was a willing and conscious participant. She argued, "Folks, he had four beers on this night. He's good friends with the defendant. He was probably mistaken. I'llprobably draw another objection if I call him a liar, but the point is—."²⁶ The evidence supported the inference that Jones was mistaken or may have observed other people. There was disagreement as to whether Jones was looking into the room J.L.C. and Gore were in, the room was dark, and Jones testified he consumed four beers during the course of the night. And Jones's friendship with Gore arguably supported an inference of bias.

Finally, the prosecutor urged the jury to consider the inconsistencies between Gore's testimony and the other evidence:

Look at the fact that he's not telling the truth and he's been proven . . . [t]o be inconsistent with the actual forensic evidence in this case. It's impossible for him to have the story that he has in this case and be consistent with the medical findings.²⁷

Because the prosecutor relied on specific evidence to illustrate inconsistencies in Gore's testimony, her argument that Gore was lying was permissible.²⁸

Gore relies upon State v. Reed, in...