Appeal from Superior Court of Snohomish County. Docket No: 94-1-01636-3. Date filed: 06/30/95. Judge signing: Hon. Paul D. Hansen.
PER CURIAM. On the evening of July 23, 1994, Michael West, age 20, engaged in sexual intercourse with a 13-year old girl. He was subsequently charged with one count of second degree rape and one count of rape of a child in the second degree. On the morning of trial, West moved to continue the trial so that the defense could locate subpoenaed witness Liz Olsen and have her available for trial. Ms. Olsen had previously given a written statement to police in which she claimed to have been present when West had sex with the girl. In her statement, Ms. Olsen stated the girl was willing to have sex with West and claimed to be sixteen years of age. After hearing argument, the court denied the continuance. Thereafter, a jury convicted West of second degree rape of a child and the lesser degree crime of third degree rape. On appeal, West challenges the denial of his motion for a continuance, the denial of a motion for a new trial, and the sufficiency of the evidence. Because no abuse of judicial discretion occurred and the evidence was sufficient to sustain the crimes of conviction, we affirm.
On July 23, 1994, West met J.W. and invited her to a party at a residence in downtown Everett. J.W. attended the party and consumed several bottles of beer. At some point during the evening, West and J.W. had sex.
The next day, J. W. informed several of her family members that she had been raped. Although she initially claimed not to be able to identify her attacker, J.W. later told police and others that a person named "Chance" had raped her. She was taken to a nearby hospital for medical examination and treatment.
Police later took statements from several people who allegedly attended the party. Liz Olsen agreed to give a statement. In her written statement, Ms. Olsen stated that "[J.W.] was ready and willing to have sex with Mike West", that "when [J.W. said] stop he did stop", and that "she [said] that she was 16 years old." West was later charged with one count of second degree rape of a child and one count of second degree rape.
On the morning of trial, West moved for a continuance in order to secure the presence of Ms. Olsen. He argued that her testimony was necessary to support his defenses of consent and reasonable belief that J.W. was at least fourteen. The prosecutor conceded that Ms. Olsen was a material witness for the defense, but questioned whether a lengthy continuance should be granted. After considering a number of different factors, the trial court denied the continuance. However, the court did agree to issue a material witness warrant.
At the jury trial, J.W. positively identified West as being the person who raped her. She explained how she first met West and how she happened to be at the party where she was raped. J. W. admitted that she drank beer at the party and that she became quite intoxicated. But she denied ever telling anybody her age at the party. J.W. explained that she was originally afraid of identifying the rapist, but later changed her mind. She stated that West forced himself on her despite her verbal protestations, that he held her down on a mattress, that she was in a great deal of pain, and that she was yelling for him to get off her. According to J.W., another person named "No Good" then attempted to have sex with her, but she "freaked out" and he backed off. J.W. testified she was only 13 years old at the time of the sexual assault.
J.W.'s mother and grandmother also testified at the trial. They testified that J.W. was hysterical and crying when she told them about being raped. They also stated that J.W. was afraid to talk about the incident.
Arthur Brown testified he attended the party and heard a girl pleading with West to stop. He stated the girl kept saying "Chance, No." Brown testified that an acquaintance named "No Good" arrived and said it would be his turn next.
Breon Williams testified that he is known on the street as "No Good." According to Williams, West spoke with him after having intercourse with J.W. and West told him to "Get in where you fit in." Williams stated he then attempted to take advantage of J.W., but, after seeing she was crying and upset, decided he didn't want a rape "beef."
Brandon Gartland testified that J.W. and West were drinking together at the party and that they left for approximately 30 minutes. Gartland stated that he heard J.W. say she was "16 and almost 17." He testified that, when someone at the party said she looked twelve, J.W. said she was 16 years old.
An Everett police detective testified J.W. positively identified West in a photo line-up as being the person who raped her. The detective stated he interviewed Arthur Brown, Breon Williams, and Brandon Gartland and none of them mentioned that J.W. had given her age as sixteen. Another police officer testified that he spoke with West about the rape charge and he said the girl should not have come over to his house unless she wanted to play. The officer testified West told him "I fucked the bitch but No Good socked her in the eye."
A physician testified that he examined J.W. on July 24, 1994, and that she had bruising above both elbows. The doctor also testified that a remnant of tissue was found inside J.W.'s vagina, which the doctor characterized as being "not normal." The doctor opined that force was the likely cause of the trauma.
West took the stand in his own defense. West testified that his street name was "Chance." He admitted having sex with J.W., but asserted that she consented to have sexual intercourse with him and said her age was sixteen. He stated J.W. only grew angry with him and concocted the rape allegation after someone else at the party named "No Good" attacked her and demanded sex. The jury ...