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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 69901-6-1 ) Respondent, ) ) v. ) ) MARK GREGORY, ) UNPUBLISHED OPINION ) Appellant. ) FILED: May 6,2013 ) Verellen, J. — Mark Gregory appeals his convictions for third degree rape and fourth degree assaultwith sexual motivation. Gregory argues his counsel was ineffective for failing to raise a hearsay objection to testimony by law enforcement, medical professionals, and the victim's family about whatthe victim had said about her encounterwith Gregory. But defense counsel's failure to object could be characterized

as legitimate trial strategy. The victim's trial testimony about the encounterwas, at times, inconsistent with the alleged hearsay testimony, and defense counsel highlighted those inconsistencies in closing argument. Gregory also argues the State presented insufficient evidence to support both convictions. Viewing the evidence and all reasonable inferences therefrom inthe light most favorable to the State, a rational trier offact could have found the elements ofboth crimes beyond a reasonable doubt. 

### Finally, Gregory contends, and the State concedes, that the court erred in imposing a maximum sentence under RCW 9.94A.507.No. 69901-6-1/2 We affirm the convictions, but remand for correction of Gregory'sjudgment and

sentence. FACTS On June 12, 2010, Anna Ray and her husband went out to a bar. Later that evening, Ray and her husband got into an argument. Ray's husband lefther at the bar. Ray asked the bouncerto call a taxi for her. Gregory was already waiting in his taxi van
nearthe entrance to the bar. The bouncer asked Ray for her address, repeated it to Gregory, and asked him to take Ray home. The bouncer opened the front door ofthe 

### taxi, and Ray gotin. It appeared toGregorythatRay was "tipsy."1 Gregory asked Ray why she was alone, and Ray replied that her husband had left her at the bar. Gregory testified that Ray grabbed Gregory's hand to hold itas they drove. Gregory testified that while they were stopped at a traffic light, he and Ray kissed each other. He asked Ray ifshe wanted to fool around, and, according to Gregory, Ray responded that she did. Gregory testified that as they drove, he took 

### Ray's hand and placed it on top of his penis, and that Ray kept her hand there forabout
five to ten minutes. 

### Gregory pulled the taxi van over in some bushes nearby a Safeway. Ray asked 

### Gregory what they were doing there. Gregory replied that they were "taking a break" 

### and started torub Ray'sleft leg.2 Ray testified that at thispoint, Gregory took herhand and placed it on his pants, on top of his penis. Ray testified that she attempted to pull her hand away from Gregory's penis, but Gregory kept Ray's hand there. Ray did not 

### say anything to Gregory or ask him to stop, because she was nervous and scared. 

### 1Report of Proceedings(Apr. 4, 2011) at 315. 2 Id. at 253.No. 69901-6-1/3 

### Gregory got out ofthe taxi and walked to the passenger's side. Gregory grabbed Ray by the arm and lead her to the back ofthe van. Ray did not scream because she 

### thought Gregory mightdo "bad things" toher.3 Gregory attempted toremove Ray's underwear. Ray again asked Gregory what he was doing. Gregory replied, "It's okay, 

### noproblem."4 AsGregory removed herunderwear, Ray understood "what's going to 

### happen."5 Shetold Gregory she washaving herperiod. Gregory attempted toperform oral sex on Ray, and she pushed his head away. 

### According to Ray, Gregory took his penis out of his pants, opened Ray's legs and removed hertampon. According to Gregory, Ray appeared ready to have sex and 

### removed the tampon herself. Gregory then had intercourse with Ray, which lasted for 

### approximately five to ten minutes. Ray testified that she did not say anything to Gregory

or attempt to push him away because she was "justso scared that night, and Ifeel that 

### I'm alone. Just scared."6 Ray did nottell Gregorythat she wanted to have sexwith him

or make any advances to indicate she wanted to have sex with him. According to 

### Gregory, however, Raycomplimented his sexual performance. Gregory and Ray returned to the front seat, and Gregory drove Ray home. Duringthe course of the interaction, Gregory did not overtly threaten Ray. 

### Within a few minutes after arriving home, Ray went across the streetto her in 

### laws' house. Ray's mother-in-law and Ray's husbandtestified theyfound Raylying in a ball on the floor, hysterical and crying. When DeputyJoe Hedstrom arrived at Ray's in
### 3JcL at 258. 

### 4jd 

### 5]cL 6Id. at 262.No. 69901-6-1/4 laws' home, he had difficulty getting information from Ray. Deputy Hedstrom called Deputy Crystal Gray to the scene, as Ray said she would preferto talk with a female deputy. Ray appeared visibly distraught as she interacted with her husband, her in laws, and Deputy Gray. After Ray had identified Gregory, Detectives Timothy Keeler and Chad Birkenfeld contacted Gregory at his boat in a local marina. At first, Gregory denied he had any sexual activity with Ray. After Detective Birkenfeld told Gregory that Ray had given law enforcement a different account ofthe evening, Gregory admitted he had sex with Ray. The State charged Gregory with rape in the third degree, unlawful imprisonment, and assault inthe fourth degree with sexual motivation. Thejury found Gregory guilty of the rape and assault charges, but acquitted him on the unlawful imprisonment charge. The trial court imposed a standard range sentence of 29 months. However, a box on thejudgment and sentence was checked which indicated that under RCW 9.94A.507, the maximum sentence was confinement for life. Gregory appeals.
DISCUSSION Ineffective Assistance ofCounsel Gregory contends he was denied effective assistance ofcounsel. A criminal 

### defendant has a constitutional righttoeffective assistance ofcounsel.7 Gregory bears the burden ofdemonstrating both (1) that defense counsel's representation fell below an objective standard ofreasonableness; and (2) resulting prejudice, i.e., a reasonable probability that but for counsel's deficient performance, the result ofthe proceeding 

### 7Strickland v. Washington. 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).No. 69901-6-1/5 

### would have been different.8 There is a "strong presumption" that counsel's performance wasreasonable.9 Ifadefendantfails toestablish eitherprong, weneed not inquire further.10 We review ineffective assistance claims de novo.11 Gregory contends various witnesses gave inadmissible hearsay testimony in recounting what Ray had told them the evening ofJune 12. Where a defendant claims ineffective assistance based on counsel's failure to challenge the admissibility of evidence, the defendant must show that counsel lacked legitimate strategic or tactical

reasons to support the challenged conduct, that an objection would have likelybeen sustained, and that the result oftrial would have been different had the evidence been 

### excluded.12 Ifdefense counsel's trial conductcan becharacterized as legitimatetrial strategy or tactics, itcannot provide a basis for a claim of ineffective assistance of 

### counsel.13 Thedecision nottoobjectmay be a legitimate trial strategy.14 Detective Birkenfeld testified that Ray had told him she was not forced to stroke Gregory's penis, that Gregory had kissed her, and that she cried a little bit. Defense counsel did not object. Ray's mother-in-law, Sheila Morgan, testified Ray told her she



### 8State v. McFarland. 127Wn.2d 322, 334-35, 899 P.2d 1251 (1995). 

### 9Statev. Kvllo. 166Wn.2d 856, 862, 215 P.3d 177(2009). 10 State v. Hendrickson. 129Wn.2d 61, 78, 917 P.2d 563 (1996). 11 State v. Sutherbv. 165Wn.2d 870, 883, 204 P.3d 916 (2009). 12 McFarland. 127 Wn.2d at 336-37. 

### 13 State v. Aho. 137Wn.2d 736, 745, 975 P.2d 512 (1999). 14 In re Pers. Restraint ofDavis. 152Wn.2d 647, 714, 101 P.3d 1 (2004) (defense counsel's decision not to object to possible improper victim impact evidence was legitimate trial strategy, as counsel may not have wanted to risk emphasizing the testimony with an objection).No. 69901-6-1/6 

### had beenraped by ataxi driver. Joseph Ray, Ray's husband, alsotestified thatRay told him she was raped. Defense counsel did notobjectto eitherwitness's testimony. DeputyHedstromtestified that he overheard Raytell DeputyGray that she was raped by a taxidriver. Defense counsel did not object. Deputy Gray then testified that Ray told her she was raped by a taxi driver named Mark. Defense counsel did not object. Deputy Gray testified that Ray told her allthe contact occurred inthe front ofthe 

### taxi van, and that Ray attempted to resist Gregory and push himoff. 

### Finally, NoraSullivan, a sexual assault nurse, examined Ray early on the morning ofJune 13. Sullivan testified that Ray told her Gregory opened his pants and put her hand directly on his penis, ratherthan on top of his pants. Sullivan also testified that Ray told her she rubbed Gregory's bellyafter intercourse so he wouldtake her home and not hurt her. Defense counsel did not object. As the State suggests, defense counsel likely made a strategic decision to allow 

### the juryto hear the numerousvariations in Ray's recounting of the events.15 Consistent withsuch a strategy, defense counsel in closing argument highlighted the inconsistencies between Ray's trialtestimony and the alleged hearsay testimony. Because defense counsel's failure to object could amount to legitimate trialstrategy, 

### Gregorydoes not demonstrate ineffective assistance ofcounsel.16



### 15The Statealso correctly notes thateven ifdefense counsel had objected tothe testimony, the objections would not have been sustained. See Resp't's Br. at 12; McFarland. 127 Wn.2d at 336-37. The record contains ample evidence that Ray remained under the stress ofthe rape when she made the statements, rendering those statements admissible under the excited utterance exception to hearsay. ER 803(a)(2); State v. Thomas. 150 Wn.2d 821, 853, 83 P.3d 970 (2004). 

### 16Aho. 137Wn.2d at745. Gregory also arguesthat, absentthehearsay testimony ofthese witnesses, he would not have been found guilty. See Appellant's Br. 6No. 69901-6-1/7 Sufficiency ofthe Evidence 

### Gregory contends the State presented insufficient evidence to support his convictions for third degree rape and fourth degree assault with sexual motivation. In analyzing a challenge to the sufficiency ofthe evidence, we view the evidence inthe 

### lightmost favorable to the State to determine whether any rational trier of fact could 

### havefound elements ofthecrime beyond a reasonable doubt.17 When challenging the sufficiency of the evidence, the defendant admits the truth of the State's evidence.18 We give great deference to the finder of fact in resolving conflictingtestimony and 

### weighing theevidence.19 Circumstantial and directevidence areaccorded equal weight.20 To prove Gregory committed third degree rape, the State had to prove beyond a reasonable doubt that Gregory engaged in sexual intercourse with another person, not married to him, where the victim did not consent, and that lack ofconsent was clearly 

### expressedthrough thevictim's words orconduct.21 Gregory contends the State presented insufficient evidence that Ray clearly communicated her lack ofconsent to intercourse. Gregory highlights that Ray never told him to stop as he took his penis out and had intercourse with her, after she had told him to stop when he tried to perform oral

at 16. This argument is without merit, as a jury could have found from Ray's testimony alone the elements of both third degree rape and fourth degree assault. 

### 17 State v. Salinas. 119Wn.2d 192,201, 829 P.2d 1068(1992). 18 ]d 19 Thomas. 150 Wn.2d at 874-75. 

### 20 State v. Delmarter. 94Wn.2d 634, 638, 618 P.2d 99 (1980). 21 RCW 9A.44.060, .010(7).No. 69901-6-1/8 

### sex. There is sufficientevidencedemonstrating Ray's lack of consent: Gregory knew Ray was tipsy, Ray tried to pull her hand awayfrom Gregory's penis butGregory kept her hand there, Ray was nervous and scared to scream for help as she feared what Gregory might do to her, Gregory grabbed Ray's arm and led her to the back seat and 

### would not respond to Ray's inquiry about what Gregory was doing, Ray pushed 

### Gregory's head away and told him to stop as he tried to perform oral sex, and Gregory removed her tampon and had intercourse with her. While Gregory testified the sex was consensual, thejurywas solely responsible for making credibilitydeterminations. The 

### jury was free to believe Ray's testimony, and based on Ray's testimony, a rational trier of fact could have found the elements of thirddegree rape beyond a reasonable doubt.22 To prove Gregory committed fourth degree assault with sexual motivation, the 

### State had toprove Gregory assaultedanother, with the purpose ofsexualgratification.23 Gregory contends the State did not present sufficient evidence ofan unwanted 

### touching. As withthe evidence relating to the rape charge, thejury heard conflicting testimony about the fourth degree assault charge. From Ray, thejury heard that Gregory grabbed her arm, and when Gregory placed Ray's hand on top of his penis, she tried to pull itaway, but Gregory kept Ray's hand there. From Gregory, thejury heard that Ray wanted to fool around with him, and that when he took Ray's hand and 22 Salinas. 119 Wn.2d at 201. 

### 23 RCW 9A.36.041(2); Statev. Mandanas. 163 Wn. App. 712, 719, 262 P.3d 522 (2011) ("An assault may consist of an intentional touching that is harmful or offensive; an act performed with the intent to inflict bodily injury but failing, coupled with the apparent present ability to inflictthe injury ifnot prevented; or an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which creates in another a reasonable apprehension and imminent fear of bodily injury.").
8No. 69901-6-1/9 

### placed iton top of his penis, Ray kept her hand there for at least few minutes. Thejury was free to believe Ray's testimony, and based on her testimony, a rational trier of fact 

### could havefound the elements offourth degree assault beyond a reasonable doubt.24 Errorin Judgment and Sentence 

### The court sentenced Gregory to 29 months for the rape conviction and 365 days forthe assault conviction. Thejudgment and sentence form then contains a section titled "Confinement Under RCW 9.94A.507."25 The court checked the box that 

### sentenced Gregory to a maximum term oflife confinementforthe rape charge. Gregory argues, and the State concedes, that the court's imposition ofthe sentence under 

### RCW 9.94A.507 was erroneous. RCW 9.94A.507 allows indeterminate sentencing for certain sex offenses but does not apply to the charge ofrape inthe third degree. We remand for correction ofGregory'sjudgment and sentence. Statement ofAdditional Grounds In Gregory's statement of additional grounds, he asserts his counsel was ineffective for failing to investigate the victim's mental health. The record before us does not allow us to reach this claim. He also asserts counsel was ineffective for failing to object to the testimony by the police detectives, contending the detectives did not 

### read him his Miranda26 rights, andtheirtestimony should have beensuppressed. The record demonstrates Gregory both stipulated to admissibility ofthe statements he gave to law enforcement, and stipulated that Detective Birkenfeld read Gregory his Miranda rights.
24 Salinas. 119 Wn.2d at 201. 

### 25 Clerk's Papers at 147. 26 Miranda v.Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).No. 69901-6-1/10 

### Gregory also contends the court erred inallowing the State to "pursue" fourth degree assault with sexual motivation. To the extent Gregory asserts insufficient evidence supports the assault conviction, his argumentfails. We cannot discern what othererror, ifany, Gregory asserts withrespect to the fourth degree assault charge. 

### Finally, Gregoryasserts itwas the victim who pulled out her tampon, rather than him. The jury heard the victim's testimony that Gregory removed her tampon, and the jury

was free to accept or reject that testimony. 

### We affirm Gregory's convictions and remand for correction of his judgment and

sentence.

WE CONCUR: 

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