Appeal from Superior Court, Okanogan (91-1-00098-9) County; Honorable Harold Clarke, Judge. Judgment Date: 4-21-92.
Smith, J., Durham, C.j., Dolliver, Guy, Talmadge, J.j., Pekelis, J.p.t., concurring. Madsen J. (dissenting by separate opinion), Johnson, Alexander, J.j., dissenting. Sanders, J. (did not participate)
SMITH, J.--The State of Washington petitions for
discretionary review of a decision by the Court of Appeals, Division Three, which reversed an Okanogan County Superior Court conviction of Respondent Fred D. Bright on two counts of rape in the first degree. We granted review. We reverse.
The questions presented in this case are: (1) whether the mere presence of a firearm on the person of a uniformed and armed police officer while committing rape against a prisoner in custody, without additional evidence of a threat to use the firearm, is sufficient to satisfy the "uses or threatens to use a deadly weapon" element of first degree rape under RCW 9A.44.040(1)(a); and (2) whether the respondent is entitled to attorney fees under RAP 18.1(j) for answering the State's petition for review, where the petition was granted, and where respondent had not been awarded attorney fees by the Court of Appeals.
At approximately 2:00 a.m. in the dark and early morning of June 11, 1991, Colville Confederated Tribes Police Officer Fred D. Bright (Respondent) arrested Ms. L.*fn1 on an outstanding tribal warrant for violating a community service requirement imposed upon her conviction for shoplifting. Following the arrest, Respondent transported Ms. L. in his patrol car to a tribal police station in Nespelem, where she was booked on the outstanding warrant. Because the tribal jail did not have separate facilities for women detainees, a woman corrections officer offered to transport Ms. L. to the Okanogan County Jail, where she was to be held until her court appearance.*fn2 Respondent refused the offer and insisted upon transporting Ms. L. to
the Okanogan facility himself in his own patrol car,*fn3 even though jail rules provided that women prisoners would be transported by women correctional officers.
During the trip from Nespelem to Okanogan, Respondent and Ms. L. started a conversation. After a while, Respondent stopped the automobile and asked Ms. L. if she wanted to move from the back seat to the front seat.*fn4 Ms. L. responded affirmatively and Respondent allowed her to do so.*fn5 To make room on the front seat, Respondent moved various articles, including his rifle with bayonet, to the back seat.*fn6
Based upon a complaint made by Ms. L. that Respondent had sexually violated her during the trip, Respondent was charged on June 12, 1991 by information filed in the Okanogan County Superior Court with two counts of rape in the first degree for engaging in sexual intercourse by forcible compulsion and threatening to use a deadly weapon, a "pistol."*fn7 The information was amended by the Prosecuting Attorney on September 24, 1991 to alternatively charge use of either a Glock 9-millimeter handgun or a 7.62-caliber semiautomatic rifle.*fn8 The amended information also added two special deadly weapon allegations under RCW 9.94A.125.*fn9 The jury in Respondent's first trial could not reach a verdict and the court, the Honorable James R. Thomas, declared a mistrial on October 16, 1991.
On November 15, 1991, the prosecutor amended the information again, dropping the special deadly weapon allegations.*fn10
The second amended information in somewhat awkward language charged Respondent [Defendant] Fred D. Bright with two counts of rape in the first degree:
That on or about the 11th day of JUNE, 1991, in the County of Okanogan, State of Washington, then and there being said defendant did engage in oral sexual intercourse by forcible compulsion with . . . [Ms. L.], where said perpetrator used or threatened to use a deadly weapon, or what appeared to be a deadly weapon to-wit: a Glock 9mm handgun or a 7.62 caliber semi automatic rifle
All contrary to the form of the Statute 9A.44.040(1), the maximum penalty for which is life in a State penal institution and a fine of fifty thousand dollars, in such cases made and provided and against the peace and dignity of the State of Washington.
That on or about the 11th day of JUNE, 1991, in the County of Okanogan, State of Washington, then and there being said Defendant did engage in sexual intercourse by forcible compulsion with . . . [Ms. L.], where said perpetrator used or threatened to use a deadly weapon, or what appeared to be a deadly weapon to-wit: a Glock 9mm handgun or a 7.62 caliber semi automatic rifle
All contrary to the form of Statute 9A.44.040(1), the maximum penalty for which is life in a State penal institution and a fine of fifty thousand dollars, in such cases made and provided and against the peace and dignity of the State of Washington.*fn11
The case was retried on November 18, 1991 before a
new jury and a new judge, the Honorable Harold D. Clarke. The jury found Respondent "guilty" on both counts of rape in the first degree. On April 21, 1992, the court entered judgment and sentenced Respondent to concurrent terms of 102 months on each count.
What actually happened after Ms. L. moved to the front seat of the patrol car was disputed at trial. Ms. L. testified that shortly after moving to the front seat, Respondent began to fondle her breasts with one hand, while driving with the other.*fn12 She said this caused her to "feel frozen in [her] spot," and she was at a loss about what she should do.*fn13 She testified that a short time later Respondent grabbed the back of her neck and forced her to engage in an act of fellatio as he was driving down the highway.*fn14 She said resistance proved painful and futile, as she was unable to lift her head from Respondent's lap because of the tight grip he had on her neck.*fn15 According to Ms. L., Respondent then stopped the car on a dirt road, removed what appeared to be a condom from a brief case and got out of the patrol car.*fn16 She said that a few moments later he opened the passenger door and ordered her to get out, drop her pants and underwear, lean against the car, and face away from him.*fn17 She testified that, fearing for her safety, she complied with his orders and that Respondent then engaged her in an act of vaginal intercourse.*fn18
According to Ms. L., at all times during the encounter Respondent was armed with the handgun he carried in a holster strapped to his waist, and his rifle was on the back seat of the patrol car. Ms. L. stated she was aware of the presence of both weapons during the encounter, but at no
time did Respondent directly use or threaten to use either weapon to gain her compliance.*fn19 However, Ms. L. testified she thought about trying to get away while the patrol car was stopped, but feared Respondent might falsely accuse her of attempting to flee from custody, and possibly even shoot her.*fn20
Respondent Bright's testimony about the encounter was quite different from Ms. L.'s. In the police investigation following Ms. L.'s complaint, Respondent denied that anything happened. When later confronted by investigators with incriminating physical evidence against him, he then admitted the two sex acts, but impressed it with his own version. He testified at trial and admitted both acts. But, according to him, his sexual activity with Ms. L. was consensual. Indeed, he testified it was both initiated and invited by Ms. L.,*fn21 and concluded he simply showed poor judgment by not refusing her advances.*fn22 He even insisted he was the "rape victim" and that he was seduced by Ms. L. He gave questionable explanations about stains on his service trousers. However, Respondent did not deny he was armed with the handgun and had the rifle within reach during both sexual encounters. He was an able-bodied man 38 years of age in uniform with a service weapon in a holster around his waist. Ms. L. was a young woman prisoner 24 years of age whom he had in custody under arrest.*fn23
Respondent appealed his convictions to the Court of Appeals,
Division Three. That court reversed, finding insufficient evidence to support a conviction of first degree rape on either charge. The court reasoned that because the State had not proved Respondent had either used or threatened to use a deadly weapon while committing the rapes, one of the statutory elements of first degree rape, as charged, had not been established.*fn24 On April 11, 1995, the State petitioned this court for discretionary review which we granted on July 12, 1995.