* State Of Washington, Respondent V. Darren Gene, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
DARREN GENE,
Appellant.
DIVISION ONE
No. 82546-1-I
PUBLISHED OPINION
DWYER, J. — Darren Gene appeals from his conviction of rape in the
second degree. He contends that insufficient evidence supported one of the
alternative means upon which the jury could have based its verdict. Gene is
correct. The Fourteenth Amendment1 due process clause both requires that
every element of a charged crime be proved beyond a reasonable doubt and
guarantees a defendant the right to a unanimous jury verdict. Accordingly, to
give effect to Gene’s due process rights, we reverse the judgment and remand
for further proceedings.
I
Darren Gene and K.M. had a “brother-and-sister-like friendship.” During
the summer of 2018, they “hung out almost all the time every weekend” together
with a group of their friends. On the evening of August 29, 2018, Gene and two of
his friends, Jesus Montano and Sedrick Hill, went to K.M.’s apartment. K.M.’s
1 U.S. CONST. amend. XIV.
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No. 82546-1-I/2
2
friend Rachel Charles was already present. The group used the hot tub in K.M.’s
apartment complex, consumed alcohol, and listened to music. At some point
during the evening, they went up to K.M.’s apartment and played a drinking game.
Eventually, K.M. began to feel unstable and sick. She went to the
bathroom and began vomiting. Still feeling nauseous and dizzy, K.M. went to her
bedroom to sleep. K.M. felt uncomfortable and nauseous in her bed, so she took
a comforter and slept in a fetal position on the floor. At trial, K.M. testified that
Gene assaulted her while she slept on the floor. Her description of the events
included the following exchange with the prosecutor:2
[K.M.:] I had the comforter wrapped around me, just over me. I had
fallen asleep. I remember feeling it was a lot more comfortable than
my bed so it was easier for me to fall asleep. I remember Gene
coming -- trying to put his hands in my shorts, and --
[PROSECUTOR:] [K.], would it help if I asked some questions?
[K.M.:] Yes, please.
[PROSECUTOR:] Okay. When you went to sleep, who was in the
room?
[K.M.:] Rachel and Gene.
[PROSECUTOR:] When you went to sleep?
[K.M.:] Just Rachel.
[PROSECUTOR:] Okay. At some point did that change?
[K.M.:] Yes.
[PROSECUTOR:] How did it change? Who came in?
[K.M.:] Gene came in.
[PROSECUTOR:] When he came in did you see him come in or
were you asleep?
[K.M.:] I was asleep.
[PROSECUTOR:] Okay. How did you know he was there the first
time you knew he was there? Let me ask a different question.
When you were asleep, did you feel anything on your body?
[K.M.:] I did.
[PROSECUTOR:] Okay. What did you feel?
[K.M.:] I felt somebody trying to put their hands inside of my shorts.
2 We include K.M.’s complete testimony regarding the rape because Gene challenges the
sufficiency of the evidence with regard to the use of forcible compulsion and K.M.’s testimony is
the only evidence on this question.
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No. 82546-1-I/3
3
[PROSECUTOR:] Was the person able to put their hands inside
your shorts?
[K.M.:] No. They struggled.
[PROSECUTOR:] Okay. Did that change?
[K.M.:] Yes.
[PROSECUTOR:] How did that change?
[K.M.:] I was moved from the fetal position onto my back.
[PROSECUTOR:] When you say you were moved, what do you
mean?
[K.M.:] I was pulled from my ankles.
[PROSECUTOR:] How were you pulled from your ankles?
[K.M.:] Pulled away from the bed, grabbed.
[PROSECUTOR:] So you felt hands on your ankles?
[K.M.:] I felt hands first on my knees pulling my legs apart, and
then moving me down.
[PROSECUTOR:] At that point, [K.], did you -- were you fully
awake and conscious?
[K.M.:] No.
[PROSECUTOR:] Did you feel like you had control over your
body?
[K.M.:] No.
[PROSECUTOR:] After your ankles were pulled down, what
happened next?
[K.M.:] I felt fingers inside of my vagina.
[PROSECUTOR:] [K.], did you still have your shorts and your
bathing suit bottom on at that point?
[K.M.:] No.
[PROSECUTOR:] The first time?
[K.M.:] The first time? I don’t remember.
[PROSECUTOR:] Is it accurate that in your statement to law
enforcement you indicated you did have your shorts and bathing
suit bottoms on the first time?
[DEFENSE COUNSEL:] I’m going to object to leading.
THE COURT: Sustained. So ladies and gentlemen, when I sustain
an objection, that means that the attorney will ask a different
question. [Prosecutor], you may proceed.
[PROSECUTOR:] So [K.], the first time you felt fingers penetrate
your vagina did you have bathing suit and shorts on?
[K.M.:] The first time, yes.
[PROSECUTOR:] Was there more than one time?
[K.M.:] Yes.
[PROSECUTOR:] When you felt fingers in your vagina, how was
your body positioned?
[K.M.:] I was on my back with my legs spread open.
[PROSECUTOR:] The person who was using their fingers on you,
where were they positioned?
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No. 82546-1-I/4
4
[K.M.:] In front of me.
[PROSECUTOR:] So if you were on your back, were they above
you or next to you?
[K.M.:] They were above me, in between my legs.
[PROSECUTOR:] What do you mean between your legs?
[K.M.:] Above in front of me and in between my legs because my
legs were spread open.
[PROSECUTOR:] Did you spread your legs open or how did your
legs get spread open?
[K.M.:] They were spread apart by Gene.
[PROSECUTOR:] How did he do that?
[K.M.:] With his hands by moving me away from my bed.
[PROSECUTOR:] Where on your legs did he push in order to
spread your legs apart?
[K.M.:] My thighs, in between my thighs.
[PROSECUTOR:] When the person was putting his fingers inside
your vagina did you hear any noises, sounds or statements?
[K.M.:] I just heard, like, groaning. No statements, no words.
[PROSECUTOR:] How close was the person to you when they put
their hand down your pants and penetrated your vagina?
[K.M.:] Very close.
[PROSECUTOR:] At that point did you have your eyes open?
[K.M.:] No.
[PROSECUTOR:] Okay. How do you know that person was very
close?
[K.M.:] Because they were touching me. They were in front of me.
[PROSECUTOR:] Talking about your senses, did you feel anything
on your body other than penetration of your vagina?
[K.M.:] Just a body in between my legs.
[PROSECUTOR:] [K.], were you able to respond?
[K.M.:] No.
[PROSECUTOR:] Why not?
[K.M.:] Because I was unconscious. I was blacked out drunk from
earlier.
[PROSECUTOR:] You said “blacked out.” What does that mean?
[K.M.:] Just being too drunk to focus, to know what’s going on.
[PROSECUTOR:] At some point did the person who was putting
their fingers inside of you stop?
[K.M.:] Yes.
[PROSECUTOR:] Okay. Could he -- could that person have
stopped everything at that point?
[DEFENSE COUNSEL:] Objection. Speculation.
THE COURT: Sustained.
[PROSECUTOR:] Did that person stop the behavior at that point?
[K.M.:] No.
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No. 82546-1-I/5
5
[PROSECUTOR:] Instead of stopping the behavior, what
happened next?
[K.M.:] I was under the blanket completely covered in it, and so
was he. I remember hearing him pull off his shorts, rip mine off, and
then put his penis inside of my vagina, all while being over and front
and on top of me.
[PROSECUTOR:] So [K.], you said he ripped off your shorts. Did
you see any tears in the shorts?
[K.M.:] No.
[PROSECUTOR:] Did you see any tears in the bikini bottoms?
[K.M.:] No.
[PROSECUTOR:] Okay. Why were there no tears in those?
[K.M.:] They slip on and off. I didn’t need to pull any strings or
button any buttons.
[PROSECUTOR:] When you say “rip off,” do you mean literally the
fabric ripped?
[K.M.:] No. Pulled off.
[PROSECUTOR:] Okay. Why did you use the term “rip”?
[K.M.:] Because it was forceful.
[PROSECUTOR:] [K.], in a normal sexual encounter -- strike that.
Was your body physically ready to have an object like a penis
penetrate it?
[K.M.:] No.
[PROSECUTOR:] Why not?
[K.M.:] Because I wasn’t aroused. I wasn’t awake.
[PROSECUTOR:] How did it feel when his penis penetrated your
vagina?
[K.M.:] Rough, uncomfortable.
[PROSECUTOR:] Did it hurt?
[K.M.:] A little bit.
[PROSECUTOR:] Do you need a break? [K.], were you able to
stop him from putting his penis inside your vagina?
[K.M.:] No.
[PROSECUTOR:] What did he do when his penis was in your
vagina?
[K.M.:] It was obviously uncomfortable for the both of us so he
pulled out to finger me again.
[PROSECUTOR:] So going back for a minute. We’re going to
focus on the penile penetration part for a second. At that point were
you able to respond?
[K.M.:] No.
[PROSECUTOR:] Were you able to get him off of you?
[K.M.:] No.
[PROSECUTOR:] Did he stop?
[K.M.:] Yes.
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No. 82546-1-I/6
6
[PROSECUTOR:] Let’s talk about the third time you were sexually
assaulted that night. What was the third incident?
[K.M.:] He had his fingers in my vagina.
[PROSECUTOR:] Did he make any noise when he did that?
[K.M.:] I don’t remember.
[PROSECUTOR:] Were you able to respond?
[K.M.:] No.
[PROSECUTOR:] How did the third incident end, [K.]?
[K.M.:] I began to come out of the fog that I was in of being
unconscious and realized that it wasn’t in my head, it was
happening, and I got scared. I -- he pulled away, and I took the
chance to pull myself back into the fetal position and tuck myself
into my blanket.
[PROSECUTOR:] Your Honor, at this time the state offers for a
demonstrative exhibit, Exhibit No. 42.
THE COURT: The exhibit has previously, I believe, been admitted
as a demonstrative exhibit so you may proceed.
[PROSECUTOR:] [K.], I’m going to have you show us how you
wrapped the blanket around yourself.
[K.M.:] So --
[PROSECUTOR:] Your Honor, if I could have the witness step
down so she can show the jury how she wrapped the blanket
around herself.
THE COURT: You may.
[PROSECUTOR:] [K.], why don’t you stand right out here.
[K.M.:] I was laying on my -- against my bed with the blanket over
me, and I was in the fetal position with the corners tucked in.
[PROSECUTOR:] And for the record you’re demonstrating tucking
the corners around both of your knees so the wrapped blanket is
actually fully wrapped around your body.
[K.M.:] Yeah. It’s a big enough blanket.
[PROSECUTOR:] So and where was the defendant when you
wrapped the blanket all the way around your knees?
[K.M.:] Outside of the blanket on -- in front.
[PROSECUTOR:] Okay. Why did you wrap the blanket all the way
around your knees?
[K.M.:] Because I didn’t want him to get to me.
[PROSECUTOR:] Thank you, [K.]. All right. [K.], after you wrapped
the blanket around yourself and you sort of -- I guess you said
came out of your fog, what happened next?
[K.M.:] I was laying under the blanket. He was trying to pull it out
from under me, but because I was able to wrap myself in the
blanket, I held onto it with both my weight, the weight of my body,
and my hands, and he tried multiple time[s] to pull it out from under
me, and he -- I heard him groan and get frustrated so I got up onto
my bed and started screaming “Get out. Get the fuck out. Leave.”
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No. 82546-1-I/7
7
[PROSECUTOR:] When you say “screaming,” how loud were you?
[K.M.:] I was screaming at the top of my lungs. I woke up my
roommate.
[PROSECUTOR:] And your roommate was in a separate
bedroom?
[K.M.:] Yes.
[PROSECUTOR:] Why were you screaming to get out?
[K.M.:] Because I was angry that he was groaning and frustrated
that he couldn’t get to me, and I didn’t think it was okay.
[PROSECUTOR:] So [K.], I want to make sure we have a clear
identification here. Who were you screaming at?
[K.M.:] At Gene.
[PROSECUTOR:] Okay. And that’s the defendant Darren Gene.
[K.M.:] Yes.
[PROSECUTOR:] Okay. When he was in your bedroom, what was
he wearing?
[K.M.:] Shorts.
[PROSECUTOR:] Okay. Did he have a shirt on when you saw him
when you woke up and were screaming?
[K.M.:] No.
[PROSECUTOR:] [K.], did -- going back to the penile penetration,
did he ejaculate?
[K.M.:] No.
[PROSECUTOR:] Okay. How do you know?
[K.M.:] Because it didn’t go any further than trying to put it inside
and not -- and pulling out to finger me again.
[PROSECUTOR:] Does that have anything to do with your lack of
arousal?
[K.M.:] Yeah.
[PROSECUTOR:] After you were assaulted what were you
wearing?
[K.M.:] I was just wearing my tank top and bathing suit top.
[PROSECUTOR:] Did you have anything on below your waist?
[K.M.:] No, besides the blanket I was holding.
[PROSECUTOR:] So [K.], what did you do next?
[K.M.:] So after I screamed it woke Rachel up. Rachel got up
immediately, got them out, got Gene out and got Sedrick and Jesus
out as well. I took the chance to run into my closet where I also
have my undergarments. I pulled on a pair of underwear and a pair
of leggings I had so I would have clothes on after I ran back into
bed, and Rachel came back in to comfort me.
[PROSECUTOR:] At that point, [K.], how intoxicated did you feel?
[K.M.:] Very. I still wasn’t sure -- I was intoxicated. I wasn’t sure
what was going on I was so intoxicated.
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No. 82546-1-I/8
8
Gene was charged with three counts of rape in the second degree.
Counts 1 and 3 alleged digital penetration of K.M’s vagina by forcible compulsion
or while K.M. was incapable of consent. Count 2 alleged penile penetration of
K.M’s vagina by forcible compulsion or while K.M. was incapable of consent. A
jury found Gene not guilty of Counts 1 and 3, and guilty of Count 2.
Gene appeals.
II
Gene contends that insufficient evidence supported his conviction of rape
in the second degree, as it was charged. Because the record does not contain
sufficient evidence that Gene committed rape by one of the charged alternatives,
we agree.
Under both the United States and Washington Constitutions, a criminal
defendant is entitled to a unanimous jury verdict. Ramos v. Louisiana, ___ U.S.
___, 140 S. Ct. 1390, 1397, 206 L. Ed 2d 583 (2020); State v. Woodlyn, 188
Wn.2d 157, 162-63, 392 P.3d 1062 (2017). When a defendant is charged with
an alternative means crime, the jury need not be unanimous as to the means by
which the crime was committed, so long as there is sufficient evidence to support
each of the alternative means. State v. Owens, 180 Wn.2d 90, 95-96, 323 P.3d
1030 (2014). But “[w]hen one alternative means of committing a crime has
evidentiary support and another does not, courts may not assume the jury relied
unanimously on the supported means.” Woodlyn, 188 Wn.2d at 162. If “it is
impossible to rule out the possibility the jury relied on a charge unsupported by
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No. 82546-1-I/9
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sufficient evidence,” reversal is required. State v. Wright, 165 Wn.2d 783, 803
n.12, 203 P.3d 1027 (2009).
A
Gene contends that a constitutionally insufficient quantum of evidence
supports his conviction for rape in the second degree by means of forcible
compulsion.3 Rape in the second degree pursuant to RCW 9A.44.050 is an
alternative means crime. See State v. Ortega-Martinez, 124 Wn.2d 702, 705,
881 P.2d 231 (1994). On the count of which he was convicted, Gene was
charged with two alternative means, as follows:
COUNT 2 - RAPE IN THE SECOND DEGREE, RCW
9A.44.050(1)(a) and/or (1)(b) - CLASS A FELONY:
In that the defendant, DARREN GENE, in the State of Washington,
on or between August 29, 2018 and August 30, 2018, in an incident
separate and distinct from any other count, did engage in sexual
intercourse with K.M. (10/05/95), by forcible compulsion and/or
when the victim was incapable of consent by reason of being
physically helpless or mentally incapacitated. The sexual
intercourse alleged for this count was penile penetration of K.M.’s
vagina.
The jury was instructed that to convict Gene of rape in the second degree,
it “need not be unanimous as to which of [the] alternatives [by forcible
compulsion] or [when K.M. was incapable of consent by reason of being
physically helpless or mentally incapacitated] has been proved beyond a
reasonable doubt, as long as each juror finds that at least one alternative has
been proved beyond a reasonable doubt.” Jury Instruction 14.
3 Gene does not challenge the sufficiency of the evidence supporting his conviction for
rape in the second degree by means of engaging in sexual intercourse with K.M. while she was
incapable of consent.
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No. 82546-1-I/10
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After a verdict, the relevant question when reviewing a challenge to the
sufficiency of the evidence is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that
reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992). “[A]ll reasonable inferences from the evidence must be drawn
in favor of the State and interpreted most strongly against the defendant.”
Salinas, 119 Wn.2d at 201.
The essential elements of rape in the second degree by forcible
compulsion are set forth in RCW 9A.44.050(1)(a):
A person is guilty of rape in the second degree when, under
circumstances not constituting rape in the first degree, the person
engages in sexual intercourse with another person . . . [b]y forcible
compulsion.
“Forcible compulsion” is defined by statute:
“Forcible compulsion” means physical force which overcomes
resistance, or a threat, express or implied, that places a person in
fear of death or physical injury to herself or himself or another
person, or in fear that she or he or another person will be kidnapped.
RCW 9A.44.010(6).
In other words, for there to be forcible compulsion in the context of rape in
the second degree, there must have been force that was “directed at overcoming
the victim’s resistance and was more than that which is normally required to
achieve penetration.” State v. McKnight, 54 Wn. App. 521, 528, 774 P.2d 532
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No. 82546-1-I/11
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(1989). “‘Forcible compulsion is not the force inherent in any act of sexual
touching, but rather is that used or threatened to overcome or prevent resistance
by the [victim].’” State v. Corey, 181 Wn. App. 272, 277, 325 P.3d 250 (2014)
(alteration in original) (internal quotation marks omitted) (quoting State v. Ritola,
63 Wn. App. 252, 254-55, 817 P.2d 1390 (1991)). The resistance that forcible
compulsion overcomes need not be physical resistance, but it must be
reasonable resistance under the circumstances. McKnight, 54 Wn. App. at 528-
29 (reasonable juror could find forcible compulsion when defendant pushed
14-year-old victim down and disrobed her over her requests that the advances
stop).
Here, viewing the evidence in the light most favorable to the prosecution,
K.M. did not resist the penetration of her vagina by Gene’s penis. K.M.’s
testimony, set forth in full above, was that she was unconscious or unable to
respond when Gene engaged in sexual contact with her. Because K.M. was
unable to respond, she could not resist the penile-vaginal assault and there was
no resistance for Gene to overcome.4
The State asserts that evidence of Gene positioning K.M.’s body and
forcefully removed her clothing is evidence of force overcoming K.M.’s
resistance, citing McKnight. In so contending, the State misapprehends the
holding of McKnight. In McKnight, we explained that acts that overcome a
victim’s verbal resistance may constitute forcible compulsion:
Reasonable minds can differ as to whether the acts of slowly
pushing [the victim] to a prone position and then removing her
4 That K.M. successfully resisted Gene’s later attempt to rape her yet again is of no
moment. Gene was not charged with any attempt crime.
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No. 82546-1-I/12
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clothes in response to the victim’s requests that the advances stop
manifest a degree of force greater than that which is inherent in the
act of intercourse. A reasonable juror could, however, infer from the
evidence that these were acts of force over and above what is
necessary to achieve intercourse and that these acts were
employed to overcome [the victim]’s resistance.
McKnight, 54 Wn. App. at 528 (emphasis added).
Here, K.M. was unconscious or unable to voice any such resistance. The
circumstance that K.M. slept in—clothed and on her side—did not constitute
resistance to a sexual assault that K.M. had no reason to anticipate. Cf. Ritola,
63 Wn. App. at 254-55 (insufficient evidence of forcible compulsion when juvenile
suddenly grabbed and squeezed female camp counselor’s breast before
removing his hand because, as camp counselor was too surprised to resist, there
was no resistance to overcome). The force exerted by Gene was not employed
to overcome any resistance posed by K.M. Corey, 181 Wn. App. at 277.
Rather, the force Gene used to move K.M.’s body into a prone position,
separate her legs, and remove her shorts was nothing more than the force
“needed to bring about sexual intercourse or sexual contact.” Ritola, 63 Wn.
App. at 254. When K.M. was able, she did resist, both by wrapping herself in a
blanket and by yelling at Gene to “Get out. Get the fuck out. Leave.” This
resistance was successful, and Gene did not overcome it.5
Under these circumstances, no reasonable juror could find beyond a
reasonable doubt that Gene resorted to forcible compulsion to engage in penile
penetration of K.M.’s vagina. Thus, a constitutionally insufficient quantum of
5 During closing argument, the prosecutor indicated that Gene penetrated K.M. after her
resistance began. This statement to the jury was not supported by the evidence adduced at trial.
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No. 82546-1-I/13
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evidence supports Gene’s conviction for rape in the second degree by means of
forcible compulsion.
B
Gene concedes that he may be retried on the alternative means that we
have not determined to be unsupported by sufficient evidence—specifically, that
Gene engaged in sexual intercourse with K.M. while she was incapable of
consent by reason of being physically helpless or mentally incapacitated.6 We
accept this concession. “‘[A] defendant in such a position is entitled only to a
new trial, not an outright acquittal, unless the record shows the evidence was
insufficient to convict on any charged alternative.’” State v. Garcia, 179 Wn.2d
828, 844, 318 P.3d 266 (2014) (quoting Wright, 165 Wn.2d at 803 n.12).
However, the trial court may not retry such a defendant on the alternative
means for which we have held there is insufficient evidence. Garcia, 179 Wn.2d
at 844. Accordingly, retrial is limited to the alternative means which was
supported by sufficient evidence. See State v. Green, 94 Wn.2d 216, 234-35,
616 P.2d 628 (1980) (remanding case for new trial on one offense alternative
when there was insufficient evidence of another that was charged, and it was
impossible to know whether the jury had unanimously determined guilt based on
the first).
Thus, the trial court may retry Gene for rape in the second degree by
means of engaging in sexual intercourse with a person who is incapable of
consent by reason of being physically helpless or mentally incapacitated.
6 Gene made this concession in oral argument.
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No. 82546-1-I/14
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Reversed.
WE CONCUR:
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