State v. Kone

• Decision Date: 27 December 2011
• Docket Number: 64423–8–I.,Nos. 64422–0–I,s. 64422–0–I
• Citation: 165 Wash.App. 420,266 P.3d 916
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mohammed J.L. KONE, Appellant.

165 Wash.App. 420

266 P.3d 916

STATE of Washington, Respondent,

v.Mohammed J.L. KONE, Appellant.

Nos. 64422–0–I

64423–8–I.

Court of Appeals of Washington, Division 1.

Dec. 12, 2011.As Amended Dec. 27, 2011.

Casey Grannis, Nielsen, Broman & Koch, Seattle, WA, for Appellant.

Dennis J. McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

PUBLISHED IN PART OPINION

SCHINDLER, J.

[165 Wash.App. 422] ¶ 1 A jury convicted Mohammed J.L. Kone of rape in the second degree of A.C. and attempted rape in the second degree and indecent liberties of A.B. Kone contends he is entitled to dismissal of the conviction of attempted rape in the second degree and indecent liberties because the trial court erred in denying his motion to dismiss under CrR 8.3(b). Kone asserts he is entitled to reversal of the conviction of rape in the second degree because the trial court erred in admitting evidence of prior consistent statements. Kone also asserts the court violated double jeopardy by failing to vacate the indecent liberties conviction, and erred in imposing a number of community custody conditions. We affirm the conviction of rape in the second degree of A.C. and attempted rape in the second degree of A.B. but remand to vacate the indecent liberties conviction and strike the community custody condition that prohibits access to the Internet and requires payment of counseling fees.

FACTS

Rape in the Second Degree of A.C.

¶ 2 On June 26, 2007, A.C. met Mohammed Kone while waiting at a bus stop near the QFC grocery store in Des Moines. Kone asked A.C. if she wanted to “go have a couple of beers at the park” near his house. A.C. agreed. Kone and A.C. took the bus to get to West Fenwick Park. Before going to the park, Kone purchased beer and wine. After drinking some beer and wine, Kone and A.C. walked to his house. Kone lived downstairs and his brother lived upstairs.

¶ 3 At the house, Kone became sexually “aggressive” and told A.C. he wanted to have sex with her. Kone grabbed A.C.'s breasts and her vaginal area, and told her to take her pants off. When A.C. said “that's not going to happen,” Kone got angry. Kone removed A.C.'s pants and repeatedly hit her on the buttocks with a paddle. A.C. was “screaming telling him to stop.” After forcing A.C. to get on her knees, Kone digitally penetrated her anus and then her vagina. ¹ A.C. went to the bathroom and locked the door, and tried to escape out the bathroom window. But Kone was standing outside. After Kone pushed her back inside, A.C. ran to the front door to escape, but Kone stopped her. Kone then hit A.C. again with the paddle and called her a “bad girl.” Shortly thereafter, A.C. was able to climb out the bathroom window and run to a neighbor's house. Kone chased after her, yelling at her to stop.

¶ 4 Wearing only a tee shirt and underpants, A.C. pounded on the neighbor's door, yelling for help and saying “don't let him in, don't let him in.” The neighbor, Ngoc Thach, let A.C. in and called 911. A.C. told Thach that Kone “picked her up, and they were playing around, or having fun at his house, and he started ... hurting her, and that's when she was scared and ran.” Another neighbor, Kathleen France, also called 911 after hearing a woman screaming “help, help, help, rape, rape, rape,” and an angry male voice yelling.

¶ 5 Officer Kevin Bateman arrived a couple of minutes after the 911 call, at approximately 2:45 a.m. Officer Bateman said A.C. was “crying so hysterically” that he “couldn't make out anything she was saying.” Eventually, A.C. said that “Mo had beat her with what she described as a paddle and prevented her from trying to escape.” A.C. told Officer Bateman, “I was like a prisoner in his dungeon.”

¶ 6 Officer Bateman saw the open window to the bathroom and a window screen lying on the ground at Kone's house. Kone did not respond to the officers loudly knocking on his door. However, Kone's brother responded, and agreed to get a key and let them in. When the police tried to open the door to Kone's apartment, the deadbolt was in place and the police left.

¶ 7 Officer Bateman took photographs of A.C.'s injuries and she agreed to give a taped-recorded statement at the police station. The taped interview lasted for approximately 30 minutes and ended because A.C. was too upset to continue. During the interview, A.C. told Officer Bateman that while at the park, Kone made her touch his penis, hit her on the buttocks, removed her pants, digitally raped her, and then forced her to go to his house.

¶ 8 Later, A.C. told medical treatment providers at the emergency room that she was vaginally and anally raped, and beaten with a paddle. A.C. had heavy bruising on her buttocks, lower back, and thighs that later turned purple and black. Forensic testing established the presence of sperm.

¶ 9 Later that day, Detective Kathy Holt met with A.C. A.C. agreed to drive with Detective Holt to West Fenwick Park. When they arrived at the park, Kone was standing in the parking lot. A.C. told Detective Holt, “That's him,” and “almost jump[ed] out of her seat and cower[ed] down in the car.” Detective Holt called for backup before contacting Kone.

[165 Wash.App. 425] ¶ 10 After reading Kone his Miranda² rights, Kone agreed to talk with Detective Holt. Kone told Detective Holt that he met A.C. at the bus stop. He said that A.C. had some beer and told him she was having a bad day. He said that after talking to her, “they decided to drink some beer together” at his house. Kone said they took the bus to his house, but went to the park because his brother was home. He said that they had sex at the park. Kone said that while at the park, “she started becoming sexual towards him, and that she wanted to have sex with him.” Kone told Detective Holt that A.C. wanted to have vaginal and anal sex.

And I asked, what type of sex basically they were talking about? And I said, Did you have vaginal sex?

And he said, Yes.

And I asked if they had anal sex?

And he said, Yes.

He told me that she asked him to do this, and so they stayed in the park for a while.

Q By asking him to do this, was he referring to the vaginal sex, anal sex, or both in general?

A I took that to mean both.

Q Did he indicate whether or not they were drinking at the apartment?

A Yes.

Q How much did he say and what did he say they were drinking?

A He said he had had two beers, and they drank the Cisco, and he said that she had had more because she told him she had been drinking all day.

Q Where did they go after the park, according to the Defendant?

A After that, then they did walk back to his house.

[165 Wash.App. 426] ¶ 11 Kone denied “putting his fingers in [A.C.'s] vaginal area” but admitted putting his fingers “in her rectal area” because “he said she asked him to feel her rectal area.”

¶ 12 Kone told Detective Holt that when they were at his house, A.C. left by going out the bathroom window but he did not know why. Kone said that after A.C. left, he went to bed.

¶ 13 When Detective Holt asked Kone about whether he used a paddle, he said that A.C. asked him if he had a paddle because she wanted him to hurt her.

And he said, Okay. He said that at the park she had asked him to hurt her and asked him if he had a paddle. He said he might have one at home.

And I asked him why he didn't tell me that previously?

And he said that in his opinion that wasn't considered the sex with her that he had been talking about.

Q Did he describe the paddle that he found? Did you in fact find a paddle?

A Yes, I did.

Q Well, I am asking, did he find a paddle?

A Yes.

Q Or did he?

A He did.

Q Did he confirm that he did in fact use a paddle with her?

A Yes.

Q And did he describe the paddle that he used on her?

A Yes.

¶ 14 Two days later, Detective Holt and a prosecutor conducted a joint interview with A.C. During the interview, A.C. said that contrary to her statements to Officer Bateman, she willingly went with Kone to his house and the sexual contact she described took place at Kone's house, and not at the park. The State did not file charges against Kone until after filing charges of attempted rape of A.B. in 2009.

Attempted Rape of A.B.

¶ 15 A.B. has been homeless off and on since 1978. A.B. stays primarily in San Francisco, California but was in Washington from January to April 2009.

¶ 16 In the early morning of February 21, 2009, A.B. was drinking with some of friends in an alley in Federal Way. At some point, Kone joined the group, and A.B. offered him some beer. Kone invited A.B. to his house to “smoke some pot and like stay the night, take a shower.” Kone's friend agreed to drive them to Kone's house. On the way, A.B. asked the driver for a cigarette. The friend dropped off Kone and A.B. in the parking lot of West Fenwick Park.

¶ 17 Kone was angry because A.B. tried to take his friend's pack of cigarettes, and called her a “bitch.” Kone and A.B. stopped at a table in the park. Kone was still angry and he continued to call A.B. a “bitch.” A.B. told Kone, “I can't deal with this. Have a good night. It was nice to meet you.... Thanks anyways, but no thanks.” As A.B. started walking away, A.B. said that Kone grabbed her and “started hitting me in my butt with his ... open hand” and “calling me a bitch.” Kone told A.B. to bend over because he wanted to have sex with her, saying “fuck you, bitch and bend over, ... I want to have sex with you.” Kone then grabbed A.B.'s breasts and tried to pull her pants down. A.B. broke away and tried to run to the parking lot but was unable to run very far because of an injured leg.

¶ 18 A.B. said that she decided to “act crazy” so Kone would not rape her, and began pulling her hair out and hitting herself. A.B. then tried to roll down a hill away from him. But before she rolled down the hill, Kone “started kicking me,” hitting her in the mouth. After A.B. reached the bottom of the hill, she gave Kone some crumpled dollar bills and begged him to leave her alone. A.B. then started yelling and tried to...