Appeal from Superior Court of Pierce County. Docket No: 94-1-04206-0. Date filed: 03/02/95. Judge signing: Hon. Waldo F. Stone.
Authored by Karen G. Seinfeld. Concurring: J. Dean Morgan, Visiting Judge.
The opinion of the court was delivered by: Seinfeld
SEINFELD, C.J. -- James Grantham challenges his conviction and sentence for two counts of second degree rape against the same victim. We conclude that the evidence was sufficient to establish that the two counts did not constitute the same criminal conduct. We further conclude that the prosecutors' comments during closing argument were supported by the record and did not prejudice Grantham. Finding no error, we affirm.
The evening of the rapes, Grantham and L.S., the victim of the attacks, had been attending a party. When the party broke up, L.S. left with Grantham and, in response to Grantham's urging, agreed to go with him to a nearby apartment to meet some of his friends.
Upon entering the apartment, Grantham led L.S. past several other young men into a separate room. Once there, he grabbed her and tried to kiss her. In response to L.S.'s resistance and pleas to go home, Grantham slapped her, called her names, and forcibly removed her clothes. When L.S. continued to resist, Grantham repeatedly slammed her head into the wall.
Once he had her undressed and she was on her knees facing the corner of the room, Grantham anally raped her.
When Grantham finally stopped and withdrew, L.S. remained crouched in the corner. Grantham then started kicking her legs and telling her to get up and turn around. He called her names and repeatedly told her to "hurry up." When she didn't respond, he started kicking her harder, on the thigh, then in her ribs. L.S. remained on her knees until finally Grantham grabbed her face and chin and turned her to face him. At this point he was standing over her and threatening her not to tell. L.S. testified that Grantham then "kept like grabbing my face and I kept, you know, trying to stay as far back from him as I could. I'm grabbing my face and he said come here. And I look up and I was like what? Will you take me home?
Will you please stop? I was crying and I asked him to please stop." At this point, Grantham told her he wanted her to perform oral sex with him.
When she kept her mouth shut and head down, he slammed the back of her head into the wall, grabbed her hair, and pushed her towards him. And then he forced her to comply with his request.
The attack against L.S. was not over. After Grantham finished with L.S., six other males raped her in succession. She finally was able to flee the apartment and call her mother from a local convenience store to come pick her up.
The State charged Grantham with two counts of rape in the second degree by means of forcible compulsion: one count for each incident. *fn1 The jury found him guilty as charged and the trial court sentenced him to 102 months, the high end of the standard range based on an offender score of five. The trial court made a finding that the two acts of rape did not constitute the "same criminal conduct."
On appeal, Grantham argues that the trial court misapplied the law when it calculated his offender score and determined the standard range sentence because the two incidents of rape encompassed the same criminal conduct. He also claims that certain remarks that the prosecutors made during closing argument deprived him of a fair trial. Based on this ...