Knapp appeals his conviction for second degree rape by
forcible compulsion. He argues the trial court erred when it
refused to give his proposed instruction on consent, which
required the State to prove lack of consent beyond a
reasonable doubt. We disagree. The trial court correctly
instructed the jury on consent, that evidence of consent may
be taken into consideration in determining whether the
defendant used forcible compulsion to have sexual
intercourse. The trial court's instruction was consistent
with State v. W.R., 181 Wn.2d 757, 336 P.3d 1134
(2014) and permitted Knapp to argue his theory of the case.
Knapp and Brandy Spaulding met in high school and were
friends for more than a decade. On February 7, 2016, Ms.
Spaulding was preparing to watch the Super Bowl when Knapp
came to her home. Ms. Spaulding let him in. The events
following this were disputed.
to Ms. Spaulding, Knapp began to make sexual comments toward
her and expressed an interest in having sex. Ms. Spaulding
denied his advances. Knapp then left, but soon returned to
the home, claiming he forgot his bandana. Ms. Spaulding let
him in again and while she was sitting on the couch, Knapp
threw her to the ground and attempted to pull down her pants.
Ms. Spaulding said "[n]o" and tried to pull up her
pants but Knapp was successful in pulling them down. Report
of Proceedings (Feb. 7, 2018) (RP Trial) at 617-18. Ms.
Spaulding screamed for her neighbors, but they did not hear
her. Knapp then used his bandana to gag her. The struggle
continued until Knapp pinned her against a wall and raped
her. Ms. Spaulding continued to say, "No,"
"Stop," and "Don't do this." RP Trial
at 623. Knapp left, and Ms. Spaulding called her mother and
then the police. Ms. Spaulding was taken to the hospital
where she underwent a sexual assault examination.
to Knapp, he and Ms. Spaulding were "friends with
benefits" for years and engaged in sex together on and
off. RP Trial at 638. After Ms. Spaulding let him in the
first time, Ms. Spaulding realized Knapp was high on
methamphetamine and she hinted that she wanted some. Knapp
refused to give her any. Ms. Spaulding became upset, and
Knapp decided to leave. After he left, Knapp realized he
forgot his bandana and returned to retrieve it. Ms. Spaulding
let him in again, and she pressed Knapp to get her high.
Eventually, Ms. Spaulding offered sex for drugs. At that
point, Knapp "gave in" and they had sex. RP Trial
at 643. Afterward, Knapp could not find the methamphetamine
to give to her. Ms. Spaulding became upset and threatened to
call the police and falsely accuse him of rape. Knapp left
and was later arrested. The State charged Knapp with rape in
the second degree by forcible compulsion.
trial, the State called Crissa Flink, a sexual assault nurse
examiner. Ms. Flink utilized a sexual assault kit on Ms.
Spaulding. Ms. Flink noted bruising to the prepuce and a tear
to the posterior fourchette. Ms. Flink testified that these
injuries could have been caused by consensual sex or rape.
State also called Alison Walker, a DNA scientist with
the Washington State Patrol Crime Laboratory. Ms. Walker
tested the bandana and found Ms. Spaulding's saliva and
skin cells on it. Ms. Walker also testified that the perineal
swabs gathered by Ms. Flink in the sexual assault kit matched
a mixture of Knapp and Ms. Spaulding.
requested an instruction that told the jury the State had the
burden of proving an absence of consent beyond a reasonable
doubt. The State opposed this instruction, arguing it was not
a correct statement of the law. The State instead proposed
Washington pattern jury instruction 18.25, which reads,
"Evidence of consent may be taken into consideration in
determining whether the defendant used forcible compulsion to
have sexual intercourse." RP Trial at 677-78; see
also 11 Washington Practice: Washington Pattern Jury
Instructions: Criminal (WPIC) 18.25 (4th ed. 2016). The trial
court declined to give Knapp's proposed instruction and
instead gave the State's.
jury found Knapp guilty of second degree rape. The trial
court sentenced Knapp to a midrange sentence-110 months to
life. The court also imposed a $200 criminal filing fee and a
$100 DNA fee.
contends the trial court erred when it declined to give his
proposed jury ...