State v. Weaville

• Decision Date: 25 July 2011
• Docket Number: No. 66966–4–I.,66966–4–I.
• Citation: 256 P.3d 426,162 Wash.App. 801
• Parties: STATE of Washington, Respondent,v.Scott Elwood WEAVILLE, Appellant.
• Court: Washington Court of Appeals

162 Wash.App. 801

256 P.3d 426

STATE of Washington, Respondent,

v.Scott Elwood WEAVILLE, Appellant.

No. 66966–4–I.

Court of Appeals of Washington, Division 1.

July 25, 2011.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.Anthony Frank Golik, Michael C. Kinnie, Attorneys at Law, Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Respondent.DWYER, C.J.

[162 Wash.App. 806] ¶ 1 Penetration, an element of rape in the second degree, is not defined within chapter 9A.44 RCW. Nevertheless, mere contact between the sex organs of two individuals does not constitute penetration. A jury instruction defining penetration in this manner is erroneous. Here, the supplemental instruction given to the jury contained such an incorrect statement of the law. Accordingly, we reverse Scott Weaville's conviction of rape in the second degree. We affirm his remaining convictions.

I

¶ 2 On August 12, 2009, Weaville and his roommate, Thomas Wilson, purchased three “mollies,” which are a pill form of MDMA (3, 4–Methylenedioxymethamphetamine), a drug commonly referred to as ecstasy. Weaville and Wilson ingested one pill each. That same evening, Weaville invited his friend, A.S., over to his apartment, indicating that he had a gift for her. A.S. did not arrive at Weaville's apartment until sometime after 2:30 a.m. on August 13. By that time, Weaville had been drinking for many hours and was quite intoxicated. At some point, A.S. ingested a pill offered by Weaville.¹ Sometime thereafter, A.S. began to feel strangely, with her body numbing, noises sounding louder, and lights appearing brighter. According to A.S., she became entirely unable to move.

¶ 3 Hours after A.S.'s arrival, Wilson left the living room to go to bed. Weaville then removed A.S.'s shorts and underwear and proceeded to rub her calves, moving his hand up to her inner thigh. Weaville thereupon stopped his advances and, instead, entered Wilson's room, awakened Wilson, and asked Wilson if he wanted to have sex with A.S. Wilson was reluctant. Yet Weaville insisted that Wilson should “get at it,” suggested ways that Wilson could make it more appealing, and threatened Wilson that he could not remain Weaville's roommate if he did not do it. Report of Proceedings (RP) at 262. Weaville “kept tugging at [Wilson's] shorts and telling [him] to ... get at it.” RP at 261–62. Weaville gave Wilson a condom. Despite Wilson's claimed reluctance, he nevertheless then attempted to have sex with A.S. He put on the condom and masturbated in an attempt to obtain an erection. Wilson positioned himself behind A.S., but managed to get only “to the threshold .... up against” A.S., where he could feel his “penis touching her vagina.” RP at 265. Wilson “couldn't get hard” enough to enter her. RP at 264. Wilson then informed Weaville that he was going back to sleep, and he returned to his bedroom.

¶ 4 Weaville then picked A.S. up, carried her into his bedroom, and laid her on the bed. Weaville removed his clothes, put on a condom, and masturbated. Weaville claims that he was unable to obtain an erection and, as a result, did not penetrate A.S.'s vagina. On the other hand, A.S. recalls that Weaville penetrated her vagina with his penis.

¶ 5 Later, A.S. began to regain her ability to move. She stayed in Weaville's bed until she was sure that she would be able to walk, at which point she walked to the living room, dressed, managed to get out to the parking lot, and telephoned a friend. A.S. then returned to her apartment, where she took a shower, changed her clothes, and went to sleep.

¶ 6 Later that same day, A.S. went to her mother's house, where she described her ordeal to her mother. Her mother called the police so that A.S. could file a police report. A.S. provided the police with the clothing that she believed she had been wearing at the time of the incident. The responding police officer encouraged A.S. to go to the hospital. At the hospital, A.S. was examined by a sexual assault nurse. A.S.'s urine tested positive for MDMA.

¶ 7 The State then charged Weaville by amended information with rape in the second degree, attempted rape in the second degree, and delivery of a controlled substance, alleging that Weaville engaged in sexual intercourse with A.S. when she “was incapable of consent by reason of being physically helpless or mentally incapacitated; contrary to [RCW] 9A.44.050(1)(b), and/or was an accomplice to said crime pursuant to RCW 9A.28.020.” ² Clerk's Papers (CP) at 10.

¶ 8 During pretrial motions, the parties disputed the admission of certain evidence. Specifically, the defense wanted to admit the underwear that A.S. had provided to the police. Testing of the underwear revealed no semen from either Weaville or Wilson, but it did present a semen deposit from a man who had been incarcerated for several months. The trial court excluded the evidence.

¶ 9 The defense further desired to present evidence that Weaville and A.S. had engaged in consensual sex on one previous occasion a few months before the August 13 incident. As an offer of proof, Weaville submitted a declaration, which stated:

I have known [A.S.] for several years and considered her a good friend prior to this alleged incident. On March 21, 2009 I returned home on leave from active duty in the U.S. Marines. [A.S.] picked me up from the airport and we went to stay at a motel on Chaklov Drive in Vancouver. We had consensual sexual intercourse that night.

CP at 26. The State argued that evidence of a prior sexual relationship was irrelevant because lack of consent was not an element of the crime as charged against Weaville. The defense argued that its evidence established both that A.S. was capable of consent on August 13 and that she actually consented that night; consequently, the defense argued, the evidence of Weaville's and A.S.'s prior sexual encounter was relevant to determining the reasonableness of Weaville's belief that A.S. consented on August 13. The trial court accepted the State's position and excluded the evidence:

[M]y ruling is this: that sex months before, consensual sex, is irrelevant in light of the fact that lack of consent is not an element here.... So it would be like proving consent if she was 12 years old and it was a rape of a child charge. Consent is not an issue. You simply can't have sex with a person who's mentally or physically debilitated or incapacitated, whether they consent or not. That's my ruling.

RP at 16–17.

¶ 10 At trial, A.S. testified that her vagina had been penetrated by Wilson's penis on one occasion and by Weaville's penis on another occasion. This testimony was the first indication that Wilson's penis had penetrated her vagina, as she had previously told the sexual assault nurse that Wilson had been unable to “find the right place” and “could not penetrate her.” RP at 194–95.

¶ 11 The sexual assault nurse testified that her examination of A.S. revealed two sets of small contusions on A.S.'s arms and a small contusion on A.S.'s inner thigh. The nurse also found tears in two areas of A.S.'s external genitalia, the posterior fourchette ³ and the fossa navicularis. ⁴ The nurse testified that such tears would likely heal within two or three days and that A.S.'s tears had likely occurred only 10 to 12 hours earlier. The nurse then testified that the injuries she observed in A.S.'s vaginal area were consistent with physical force by an erect adult penis.

¶ 12 Wilson testified to the events of August 12 and 13, indicating that he had attempted to rape A.S. because of Weaville's encouragement. He testified that, shortly before and during the time that he was attempting to have sex with A.S., she appeared to be passed out or asleep. However, Wilson testified that, after he had attempted to have sex with A.S., she got up from the couch and walked into the bathroom.

¶ 13 Weaville testified in his own defense.⁵ He admitted to attempting to “hook up [A.S.] and Thomas together” and to providing Wilson with a condom. RP at 559–60. Weaville then testified that he and A.S. had attempted to have consensual sex but that he had been unable to obtain an erection. Weaville insisted that A.S. was talking and walking throughout the night. Specifically, he testified that, while they were watching the movie, she put her legs across his lap and that while he was rubbing A.S.'s leg, they were both “making small talk.” RP at 552. He further testified that she had raised her hips up off of the couch in order to help him remove her shorts and underwear. According to this testimony, when Weaville left the couch to get Wilson, he told A.S. that he would be back and she said “okay.” RP at 554. Weaville also testified, consistent with Wilson's testimony, that after Wilson's encounter with A.S., she got up from the couch and walked to the bathroom. Indeed, according to Weaville, A.S. vocally consented to sexual intercourse with Weaville himself: he asked her if she wanted to go to bed with him and she responded affirmatively, whereupon she rose from the couch of her own accord and walked to the bedroom with him. He denied carrying her to the bedroom.

¶ 14 Once in the bedroom, Weaville testified, he had been unable to obtain an erection, despite his own attempt and A.S.'s attempt to “stimulate” him. RP at 567. According to Weaville, after “five or ten minutes of [them] trying to have this intimate moment,” A.S. stated, “Wait, wait, wait, this is dumb.” RP at 568. A.S. then left the room and left the apartment.

¶ 15 Prior to its deliberations, the jury was instructed, as to Count 1:

To convict the defendant of the crime of Rape in the Second Degree, as charged in Count 1, each of the following three elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about August 13, 2009, the defendant engaged in sexual intercourse with A.E.S.

(2) That the sexual intercourse occurred when A.E.S. was incapable of consent by reason of being physically...