State of Washington v. Michael Matthew Phillips ( 2016 )

FILED.
OCTOBER 4, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33208-0-111
)
Respondent, )
)
V. ) UNPUBLISHED OPINION
)
MICHAEL M. PHILLIPS, )
)
Appellant. )
PENNELL, J. - Michael Phillips appeals his rape conviction, arguing the State
produced insufficient evidence of forcible compulsion. We affirm.
FACTSI
While working as a prostitute, the victim, R.N., arranged to perform oral sex on
Mr. Phillips. After R.N. demanded payment, Mr. Phillips reached into his coat pocket
and pulled out a gun. He told R.N. to get him off or he would "put a bullet in [her] head."
2 Excerpt Verbatim Report of Proceedings (Dec. 17, 2014) at 195. R.N. then complied.
She also submitted to vaginal sex and resumed oral sex when Mr. Phillips could not reach
1
Because Mr. Phillips's challenge goes to the sufficiency of the evidence, we
construe the facts in the light most favorable to the State. State v. Salinas, 119 Wn.2d
192,201, 892 P.2d 1068 (1992).
No. 33208-0-III
State v. Phillips
full erection. After he was unable to ejaculate, Mr. Phillips allowed R.N. to leave. She
then called police. Mr. Phillips was arrested a short time later. A realistic-looking B.B.
gun was found on his person.
At trial on charges of first degree rape, Mr. Phillips testified he had consensual sex
with R.N. He claimed she made the rape report in retaliation for being stiffed payment.
He denied ever purposefully showing R.N. his B.B. gun. The jury found Mr. Phillips
guilty. He appeals.
ANALYSIS
Mr. Phillips argues the State produced insufficient evidence of forcible
compulsion, a required element of first degree rape. RCW 9A.44.040. Consent
necessarily negates the element of forcible compulsion. Thus, when a defendant produces
sufficient evidence of consent, the State must prove lack of consent beyond a reasonable
doubt. State v. W.R., 181 Wn.2d 757, 770-71, 336 P.3d 1134 (2014). 2
Assuming Mr. Phillips put on sufficient evidence to show consent, his argument
fails. Mr. Phillips's case turned on witness credibility. The jury was entitled to believe
2
The trial court instructed the jury on each element the State had to prove of the
crime beyond a reasonable doubt, but the court did not include an instruction on consent.
However, Mr. Phillips only challenges the sufficiency of the evidence. He does not argue
instructional error.
2
No. 33208-0-III
State v. Phillips
R.N.'s testimony that Mr. Phillips threatened her with a gun and that she feared violence
if she did not perform to his satisfaction. See State v. Bright, 129 Wn.2d 257, 265-68,
916 P .2d 922 ( 1996). Nothing further was required to show lack of consent. State v.
Thomas, 9 Wn. App. 160,163,510 P.2d 1137 (1973).
CONCLUSION
The judgment and sentence of the trial court is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Pennell, J.
WE CONCUR:
j
3