Appeal from Superior Court of Snohomish County. Docket No: 94-1-00734-8. Date filed: 01/19/95. Judge signing: Hon. Richard J. Thorpe.
PER CURIAM. Justin Bergerson appeals his conviction for second degree rape, arguing that the evidence was insufficient to support the conviction and, alternatively, that the prosecutor committed misconduct requiring a new trial. He also challenges a sentence condition requiring him to submit to polygraph examinations as directed by his community corrections officer.
Because any misconduct was curable and there is sufficient evidence supporting accomplice liability, we affirm the conviction. The challenged sentence condition is too broad, however. We therefore strike it and remand for modification consistent with this opinion.
Bergerson and David Plump were charged and tried jointly for second degree rape. At trial, the victim testified that she went out for the evening with Plump and Bergerson. They drove in Bergerson's truck to a secluded area where there were no other people. Plump and Bergerson then made sexual advances toward her, which she rebuffed. Plump subsequently raped her.
The victim further testified that immediately prior to the rape, Plump held her arms down while someone else pulled down her pants and underwear. She assumed Bergerson pulled them off because Plump's hands were occupied.
Forensic testing showed that semen in the victim's underwear was consistent with Plump's blood type and DNA.
Plump testified and denied raping the victim. He claimed he was "grinding" on top of her when Bergerson suddenly pulled her pants off. At that moment, Plump ejaculated.
Bergerson also testified and admitted he attempted to kiss the victim. He denied pulling down her pants, however, and claimed he had walked away from the truck when the rape occurred.
The jury convicted Bergerson and Plump as charged. Prior to sentencing, Bergerson moved for a new trial based on the portions of the prosecutor's closing argument emphasized below:
Mr. Bergerson's story is the most different between Plump and [the victim]. They are right on just about everything else, but he's sitting around saying, oh, I didn't talk about sex. No, I didn't drink as much. I didn't bring out the marijuana. I didn't go over there. I didn't touch her. I didn't kiss her. I didn't do any of this stuff. . . .
Welcome back to [the victim], who told you exactly what happened, which is Plump is having sex with her forcibly against her will, after Bergerson pulls down her pants. Then why in the world is she here, to submit to all of what she has submitted to, unless it's exactly what happened?
Through your verdict I hope you tell her that that is indeed what happened and that these fellows need to be held responsible for what they did.
[The victim] says her pants were pulled down. And after the pants were pulled down would be when Mr. Plump would have pulled his pants down. He did have sex with her. There was a vaginal examination, which is called the wet mount. There was semen found ...