State v. Al-Hamdani

• Decision Date: 24 December 2001
• Docket Number: No. 47227-5-I.
• Citation: State v. Al-Hamdani, 109 Wash.App. 599, 36 P.3d 1103 (Wash. App. 2001)
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Salah AL-HAMDANI, Appellant.

36 P.3d 1103

109 Wash.App. 599

STATE of Washington, Respondent, v.Salah AL-HAMDANI, Appellant.

No. 47227-5-I.

Court of Appeals of Washington, Division 1.

December 24, 2001.

James E. Lobsenz, Neal Philip, Carney Badley Smith and Spellman, Seattle, for appellant.

Keith P. Scully, King County Deputy Prosecutor, Seattle, for respondent.

COX, J.

Salah Al-Hamdani appeals his conviction for second degree rape.He primarily argues that there was insufficient evidence to prove that the victim was incapable of consent by reason of the "alternative means" of "mental incapacity" at the time of the admitted sexual intercourse.We hold that "mental incapacity" and "physical helplessness" are not alternative means within the second degree rape statute.Rather, these terms provide an understanding of ways in which the victim is incapable of giving consent to sexual intercourse.They do not constitute alternative means of committing second degree rape.Accordingly, our review of the record shows that there was sufficient evidence to support the conviction.Because his other claims have no merit, we affirm.

Al-Hamdani met N.J. and her female friend at a club and followed them to N.J.'s house.N.J. was so drunk when she left the club that she was vomiting, falling, and falling asleep.Al-Hamdani left N.J.'s house at her friend's request, but returned later that evening and let himself into the house.Al-Hamdani testified that he and N.J. had consensual sexual intercourse.

N.J. testified differently.She stated that she awoke to find him lying on top of her.She also testified that she refused his request that she perform oral sex.She further testified that she was unaware that they had sexual intercourse until she was examined at the hospital the next day.

The State charged Al-Hamdani with first degree burglary and second degree rape.At the close of all evidence, Al-Hamdani moved to dismiss the charge of second degree rape.He claimed there was insufficient evidence to show that N.J. was incapable of consent by reason of mental incapacity.The court denied this motion.The jury convicted Al-Hamdani as charged.

Following conviction, he moved for a new trial.He again argued that there was insufficient evidence that N.J. was mentally incapacitated.The court denied this motion.

Al-Hamdani appeals only the conviction for second degree rape.

Sufficiency of Evidence

A properly instructed jury found Al-Hamdani guilty of second degree rape under RCW 9A.44.050:

(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:

....

(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated.[¹]

RCW 9A.44.010, the definitional section, states that:

....

(4)"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.

(5)"Physically helpless" means a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

Al-Hamdani stipulated at trial that he and N.J. had sexual intercourse.Thus, the first part of the statute is not at issue.

Al-Hamdani argues that RCW 9A.44.050 (1)(b) creates two alternative means of committing second degree rape, when the victim's inability to consent is based either on mental incapacity or on physical helplessness.²Presuming that physical helplessness and mental incapacity are alternative means, he further argues that the State made no election as to means, had the burden to present sufficient evidence to support each of the two alternative means, and failed to meet its burden.³

The threshold question we must address is whether alternative means analysis, as discussed in Ortega-Martinez, applies here.We hold that it does not.

The Washington Supreme Court has rejected the application of this doctrine to "means within means."In In re Jeffries,⁴ our Supreme Court reviewed a personal restraint petition in a death penalty case.At trial, the jury had found by special verdict that two statutory aggravating circumstances had been proven.⁵They were:

(a) That the defendant committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime; or

(b) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the defendant; ...⁶

On collateral review, Jeffries argued that the jury must unanimously agree on the alternative ways he had satisfied each of the alternative aggravating circumstances.Specifically, he argued that the jury was required to agree unanimously that he had committed the murder either "to conceal the commission of a crime," or "to protect the identity of a person committing a crime," or "to conceal the identity of a person committing the crime."The court rejected this argument as creating "means within means."⁷It held that the trial court had properly instructed the jury, stating that it must unanimously agree whether either of the two alternatives, subparts (a) and (b), were proved beyond a reasonable doubt.There was no requirement to further instruct the jury as to unanimity within either subpart.Likewise, in State v. Laico⁸this court applied Jeffries in an appeal of a conviction for first degree assault.There, we held that the statutory definition of "great bodily harm" was merely definitional and did not create alternative means of committing the crime of assault in the first degree.To prove first degree assault, the State had to prove that the victim suffered great bodily harm.The term "great bodily harm" was defined in the definition section of the statute as "bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ[.]"⁹Laico argued that this created three alternative means of committing first degree assault, and that the jury must unanimously agree on one method.This court disagreed, stating: "Merely because a definition statute states methods of committing a crime in the disjunctive does not mean that the definition creates alternative means of committing the crime."¹⁰We held that "the definition of `great bodily harm' does not add elements to the first degree assault statute, but rather is intended to provide understanding."¹¹

In State v. Strohm¹²this court again applied the principles of Jeffries.Strohm appealed his convictions for leading organized crime, first degree trafficking in stolen property, and first degree theft.We held that the definition of "traffic," one of eight alternative means of committing the crime of trafficking in stolen property, which was contained in the definitions section of the statute, did not create an additional layer of alternative means that would require jury unanimity.¹³We cited the Jeffries court as holding that "[a]lthough the jury must be unanimous as to the alternative circumstances satisfying aggravated murder, it was not required to unanimously agree as to facts (alternative ways) satisfying each of the alternative circumstances."¹⁴We concluded that:

The various ways a person can "traffic" under RCW 9A.82.010(10) are merely factual circumstances which support the traffics alternative under RCW 9A.82.050(2).Thus, there is no requirement that the jurors agree on the facts supporting the "traffics" alternative means of committing the offense of "Trafficking in Stolen Property."¹⁵

Our court also stated in Strohm, however, that the State was required to prove each alternative means of the other charge against Strohm.¹⁶The statute governing that charge stated in relevant part that:

(1) A person commits the offense of leading organized crime by:

(a) Intentionally organizing, managing, directing, supervising, or financing any three or more persons with the intent to engage in a pattern of criminal profiteering activity; or....

Noting that the jury was instructed on every alternative means of committing the offense of leading organized crime, we held that there must be substantial evidence supporting each alternative means of leading organized crime.¹⁷

Here, unlike Strohm,the court did not instruct the jury that the terms "physically helpless" and "mentally incapacitated" represented alternative means of committing second degree rape.Jury instruction number 11 stated:

A person commits the crime of rape in the second degree when that person engages in sexual intercourse with another person when the victim is incapable of consent by reason of being physically helpless or mentally incapacitated.

This instruction, like the jury instructions in Jeffries, is correct.It does not necessitate application of the alternative means analysis, and does not require sufficient evidence under both the physical helplessness and mental incapacity circumstances.

Al-Hamdani relies heavily on State v. Ortega-Martinez.There, the court applied the alternative means analysis to the second degree rape statute.The court held that sufficient evidence supported each of the two alternative means of committing second degree rape that were considered by the jury: engaging in sexual intercourse by forcible compulsion or with someone incapable of consent by reason of mental incapacity.¹⁸Unlike the situation here, the two alternative means were contained in different subparts, RCW 9A.44.050(1)(a)andRCW 9A.44.050(1)(b).The two subparts clearly create alternative means.RCW 9A.44.010(6) defines "forcible compulsion" thus:

"Forcible compulsion" means physical force which overcomes resistance, or a threat, express or implied,

...