Appeal from Superior Court of Snohomish County. Docket No: 94-1-00048-3. Date filed: 01/25/95. Judge signing: Hon. Anita L. Farris.
PER CURIAM - Steven Phillips appeals his conviction by a jury of one count of rape of a child in the second degree. He contends that the court committed reversible error in failing to instruct the jury that to convict, the State must prove beyond a reasonable doubt that Phillips knew he was having intercourse with a child and not his girlfriend. We affirm because rape of a child has no mens rea element.
Phillips was charged with two counts of rape of a child in the second degree against his girlfriend's foster daughter, C.T. C.T., who was 13 years old at the time of the alleged offenses, testified that Phillips twice forced her to have sexual intercourse with him, once in June 1993 and once in August 1993.
Phillips intitially denied the incidents. Subsequently, Phillips made a statement in which he admitted one incident. He stated that C.T. initiated sex with him while he was asleep in bed:
[C.T.] approached the bed, asked what time I was getting up. I
told her what time. She started to leave and stopped on the stairs, came back, walked up to the bed and laid on top of me.
Asked me if I could do her a favor and have sex with her. I
protested but found myself aroused and curious. She undressed and climbed on top of me and I started to insert myself into her.
Made it about halfway in two or three times and stopped. Told her to go back to bed, what was happening wasn't right.
At trial Phillips testified that he made up this statement because he was trying to cooperate with police and had been threatened. His recollection of the incident was hazy because he had consumed at least twelve beers and had taken two muscle relaxants. Phillips testified that he remembered awakening when he felt a weight on top of him and heard someone asking him to have sex. He thought it was his girlfriend because they frequently engaged in sexual activity after awakening each other. When he realized it was C.T., he pushed her off him and told her to go to bed. Phillips testified that he still did not know what really happened that night.
The court instructed the jury that voluntary intoxication was not a defense to the charges, but over the prosecutor's objection instructed the jury that it is an affirmative defense if at the time of the intercourse the defendant was physically helpless, meaning unconscious, asleep or unable to communicate unwillingness to an act.
The jury found Phillips guilty of one count and acquitted him of the second count.
Phillips' sole contention on appeal is that the trial court committed reversible error in failing to instruct the jury that to convict for rape of a child in the second degree, it must find beyond a reasonable doubt that Phillips knowingly engaged in sexual intercourse with [C.T.], i.e., that he knew she was a child, and not his girlfriend. Phillips contends that the court's failure to instruct the jury on this implied knowledge element violates due process and may be raised for the first time on appeal. He also contends that the error was not harmless.
The short answer to Phillips' contentions is that the offense of rape of a child contains no mens rea element. State v. Chhom, 128 Wash. 2d 739, 743-44, 911 P.2d 1014 (1996). It would be error to require the State to prove that ...