2GI3 HAR -U Ah 8:53

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. DUSTY RAY GRANDLUND, Appellant. No. 67655-5-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: March 4, 2013 Schindler, J. — Dusty Ray Grandlund appeals his conviction of rape inthe 

### second degreeforengaging insexual intercourse with 15-year-old K.C. inviolation of RCW 9A.44.050(1 )(b). Grandlund contends insufficient evidence supports the 

### conviction. In the alternative, he argues his attorney provided ineffective assistance of counsel. We affirm. FACTS 

### In 2011, 15-year-old K.C, born February 18, 1995, lived with her brotherand 

### sister-in-law inArlington.1 K.C.'s 17-year-oldfriend D.L. andD.L.'s sister, 14-year-old S.G., lived withtheirfather Dusty Ray Grandlund on alternate weekends. Grandlund lived near K.C. and K.C. often stayed with D.L. and S.G. when they stayed withtheir
father.

1K.C.'s brother and sister-in-law adopted K.C. after her mother died about four years before the incident in this case.No. 67655-5-1/2 

### On January 8, 2011, K.C. wentto Grandlund's house to spend the night withD.L. and S.G. 

### Grandlund's house has two bedrooms, a living room, a kitchen area, and a shared bathroom. The girls had three computers intheir bedroom. K.C, D.L., and S.G. spent most ofthe evening inthe bedroom talking and on Facebook. Grandlund spent most ofthe evening drinking mixed drinks ofwhiskey and Pepsi inthe living room. 

### D.L. wentto sleep between midnight and 1:00 a.m. S.G. and K.C stayed up talking and playing on the computer. When S.G. fell asleep around 4:00 a.m., K.C. continued to use the computer. After S.G. was asleep, Grandlund came into the bedroom and asked K.C to help himtransfer music files from the computer in his bedroom onto a thumb drive. K.C went into Grandlund's bedroom to help him transferthe files. Grandlund was still drinking and wandered inand outofthe bedroom as K.C. transferred the musicfiles. After some time, Grandlund came into the room, put a big tumbler ofwhiskey and Pepsi

on the computer desk, and told K.C to drink it. K.C said she didn't want to. But when Grandlund mocked her, K.C drank the whiskey and Pepsi. Overthe nextfew hours, Grandlund gave K.C. abouttwo more tumblers of mixed whiskey and Pepsi. When K.C. finished transferring the files, Grandlund took K.C. to the kitchen and gave her aboutthree more mixed drinks ofwhiskey and Pepsi to drink from a shot glass. K.C. testified that she felt drunk and her vision was blurry. K.C. said Grandlund then "asked me ifIthought Icould handlejust alcohol and Isaid Idon't know." Grandlund then gave K.C two or three shots of straight whiskey.No. 67655-5-1/3 K.C said she was so intoxicated that she could not keep her balance, felt likethe

room was spinning, and had to lean on the kitchen counterfor support. K.C told Grandlund she couldn'tdrink anymore. Grandlund walked up to K.C, took her hand, and placed it on his penis. K.C pulled her hand away and moved away from Grandlund, standing on the other side ofthe kitchen counter. Atabout 6:00 a.m., D.L. woke up to walk her dog. D.L. came into the kitchen and

saw herfather and K.C D.L. also saw K.C. drinking from a shotglass. D.L.testified that after she got angry with K.C. for leaning on herfor support because "she was throwing all ofherweight on me," she went backto bed. Meanwhile, K.C. wentto the livingroom and sat on the couch. Grandlund went and sat beside K.C. Grandlund took K.C.'s hand and placed it on his erect penis. Grandlund told K.C. he liked her and wished she were 18 instead of 15 years old. Grandlund then rubbed the inside of K.C.'s thigh, telling her not to say anything to 

### anyone because he could get into trouble. K.C. said she "didn't reallyunderstand what [Grandlund] was saying though, because I-- like my reflexes were like slow and sluggish and itwas hard to interpret stuff." 

### K.C got offthe couch and tried to walk to the girls' bedroom. K.C. said that her vision was blurred and she stumbled as she walked. K.C felt very intoxicated and confused. 

### Grandlund stopped K.C. inthe hallway, put his hand down her shorts, and penetrated hervagina with his fingers. Grandlund then pulled K.C. into his bedroom, 

### pushed her down on the bed, and took off her shorts and underwear. Grandlund said, 

### "[L]letme show you how it's done," began licking her neck and breasts, and performedNo. 67655-5-1/4 oral sex on K.C K.C tried to get Grandlund to stop but she was only able to mumble unintelligibly and could not move her arms and legs. Grandlund put on a condom and penetrated her vagina. K.C said that before she lost consciousness, her last memory

was ofGrandlund's penis inside her vagina. Sometime laterthat morning, D.L. and S.G. found K.C. passed out on the bathroom floor without her shirt on. D.L. and S.G. helped K.C get to their bedroom, where she passed out again on the bed. D.L.found K.C.'s shirt on the floor in her father's bedroom. After K.C woke up around 11:00 a.m., she found herglasses underneath a pillow on Grandlund's bed. When Grandlund woke up, K.C. and his daughters were sitting inthe living room. Grandlund immediately went into the living

room and asked K.C and his daughters ifthey had seen his condom. Around 1:00 p.m., D.L., S.G., and K.C. got in Grandlund's car. Ratherthan drop 

### K.C off firstat her nearby house in Arlington, Grandlund drove to Lake Stevens to drop 

### off his daughters at their mother's house. Grandlund then drove back to Arlington and stopped at a store to buy an energy drinkand condoms. Grandlund told K.C. he wanted to take her backto his house so they could have sex again. K.C. insisted she had to go home because her brotherwas waiting for her. Laterthat afternoon, K.C. told two friends what happened and herfriends told K.C.'s sister-in-law. K.C.'s sister-in-law contacted the police. 

### Ataround 6:00 a.m. on January 10, police officers searched Grandlund's house. 

### The police found a quarter-full bottle of whiskey and two bottles of Pepsi on the kitchen floor, a shotglass withsome whiskey in it on the kitchen counter, glass tumblers 

### matching K.C.'s description of the glass that held the mixed whiskey and Pepsi drinks,No. 67655-5-1/5 three unopened condoms on a night stand inGrandlund's bedroom, and a condom wrapper in a garbage can inthe kitchen. That same morning, a nurse at Cascade Valley Hospital conducted a sexual assault examination of K.C. The State charged Grandlund with rape of a child inthe third degree, Count I, and rape inthe second degree, "when K.C was incapable ofconsent by reason of being physically helpless," Count II. Grandlund waived his right to ajury trial. The State called a number ofwitnesses to testify at the four-day trial, including K.C, D.L., S.G., and a forensic scientistfrom the Washington State Patrol Crime 

### Laboratory. Theforensic scientisttestified thatDNA2 obtainedfrom K.C. matched Grandlund's DNA. Grandlund unequivocally denied having sexual intercourse with K.C Grandlund said that he asked K.C. to transferthe computerfiles after his daughters went to sleep because he thought she was bored. Grandlund testified that after K.C. transferred the files on his computer, he asked herto perform the same task on S.G.'s computer, and he then went immediately to bed. Grandlund said he did not take K.C directly home from his house because he forgot she was inthe car. The courtfound Grandlund guilty ofrape of a child inthe third degree and rape in the second degree as charged. The court entered written findings offact and conclusions of law. The courtfound that Grandlund was guilty of rape inthe second degree because K.C was incapable ofconsent because she was physically helpless. The findings state, in pertinent part: 

### 20. Afterpenetrating K.C.'s vagina with his fingers for a little while, the defendanttook K.C bythe hand and pulled her into his bedroom and pushed herdown to sit on his bed. The defendanttook off K.C.'s 2(Deoxyribonucleic acid.]No. 67655-5-1/6 shorts and underwear. The defendanttook off his jean pants and underwear. 21. K.C. fell on her backto keep from toppling overto the floor. The defendant began kissing K.C.'s neck and breasts. The defendant kissed down K.C.'s body and then began performing oral sex on K.C The defendant penetrated K.C.'s vagina with his tongue. 22. K.C. tried to getthe defendantto stop but she could not move her limbs. K.C. tried to tell the defendantto stop but she was only able to mumble unintelligibly and could not understand her words. 23. The defendant stopped performing oral sex on K.C, put on a condom, and penetrated her vagina with his penis. 24. K.C.'s last memory before she lost consciousness was ofthe defendant's penis inside her vagina. 34. Atthe time the defendant engaged in sexual intercourse with K.C, she was incapable ofconsent by reason of being physically helpless. At sentencing, the court vacated the conviction for rape of a child inthe third degree to avoid doublejeopardy. The courtenteredjudgment on the conviction for rape in the second degree. ANALYSIS Grandlund contends insufficientevidence supports the conviction ofrape inthe second degree. 

### Achallenge to the sufficiency ofthe evidence admits the truth of the State's evidence. State v. Salinas. 119 Wn.2d 192. 201, 829 P.2d 1068 (1992). Weviewall 

### evidence inthe lightmostfavorable to the Stateto determine whether "any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt." State v. Jov. 121 Wn.2d 333, 338, 851 P.2d 654 (1993). "[A]ll reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most 

### strongly againstthe defendant." Salinas. 119 Wn.2d at 201. We deferto the trier of fact to resolve conflicting testimony, evaluate the credibility ofwitnesses, and generally 

### weigh the persuasiveness ofthe evidence. State v. Walton. 64 Wn. App. 410, 415-16,No. 67655-5-1/7 824 P.2d 533 (1992). Circumstantial and direct evidence are accorded equal weight. State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Where, as here, the trial court makes findings offact and conclusions of law following a bench trial, we review whether substantial evidence supports the trial court's findings offact and, in turn, whetherthe findings supportthe conclusions of law. State

v. Stevenson, 128 Wn. App. 179, 193, 114 P. 3d 699 (2005). "Substantial evidence is evidence sufficientto persuade a fair-minded, rational person ofthe finding's truth." Stevenson. 128 Wn. App. at 193. Unchallenged findings offact are verities on appeal. Stevenson. 128 Wn. App. at 193. Under RCW 9A.44.050(1 )(b), a person is guilty of rape inthe second degree "when, under circumstances not constituting rape inthe first degree, the person 

### engages insexual intercourse withanotherperson [w]henthe victim is incapable of consent by reason ofbeing physically helpless or mentally incapacitated." "Physically helpless" is defined as a person who "is unconscious orfor any other reason is 

### physically unable to communicate unwillingness to an act." RCW 9A.44.010(5). The State must prove each essential element ofthe crime beyond a reasonable doubt. In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Oster. 147 Wn.2d 141, 146, 52 P.3d 26 (2002). 

### Grandlund contends substantial evidence does not supportthe finding that K.C 

### "was incapableofconsentbyreason ofbeing physicallyhelpless."3 Grandlund asserts K.C. was not"unabletocommunicate unwillingness"4 because she initially "successfully rebuffed" himand was able to rememberthatwhile they were sitting on the couch,
3The Statedid notallegethatK.C. was"mentally incapacitated." 4RCW9A.44.010(5). 7No. 67655-5-1/8 Grandlund said "he liked having me come over" and "he hasn't had sexual intercourse in about like six years." Grandlund also points to K.C.'s testimony that while she was drinking the first two or three drinks, she successfully copied the computerfiles. Grandlund relies heavily on State v. Bucknell. 144Wn. App. 524, 183 P.3d 1078 (2008). Bucknell is easily distinguished. In Bucknell. the victim had Lou Gehrig's disease and was unable to move from the chest down, but was "able to talk, answer questions, and understand and perceive information." Bucknell. 144Wn. App. at 526, 529-30. The State charged the defendant with rape inthe second degree, alleging that the victim "was physically helpless because she was suffering from Lou Gehrig's disease." Bucknell. 144 Wn. App. at 528. We reversed thejury conviction because the 

### victim's "ability to communicate orally, despite her physical limitations, likely did not render her 'physically helpless' as contemplated by RCW 9A.44.050(1)(b)." Bucknell. 144Wn. App. at 530-31. 

### Here, unlike in Bucknell. overwhelming evidence supports the finding that K.C

was not able to communicate. Grandlund does not challenge the finding that "K.C. tried 

### to tellthe defendantto stop but she was only able to mumble unintelligiblyand could not understand herwords." K.C testified that after Grandlund pulled her into his bedroom and onto the bed, and he licked her neck and breasts, she felt numb and could not talk. 

### A. My body felt really numb and it felt like my - it felt like my heartwas slowing down, and Ididn't know whatwas going to happen. And then likeIwasjustthinking, trying to think about whatwas going on and I couldn't move my arms real well. Icouldn'ttalk, Icouldn't see that well, everything looked like itwas turning black. 

### Q. When you say your - your body was getting numb and itseemed like things [were] starting to become black, are you able to put in words exactly how your limbs were feeling, your arms and stuff?

8No. 67655-5-1/9 A. Itfelt like Igot hit by a caror something, and Icouldn't move. Itwas like Iwas pinned to the bed or something. Q. So you said at some point he was kissing you and kissing your breasts and your neck, and you said he began licking your vagina? A. Yes. Q. Could you feel him when he did that? A. Not really. Q. But you could tell thatwas inyour vagina? A. Yes. Q. Did you do anything at this pointwhen this was going on, that you recall? A. Not that Ican recall. All Iremember is staring at the ceiling, and he was inside of me and then everything went black. Q. Okay. Let's take that a step at a time. When you say he was inside you, was this when you said he was licking inside yourvagina? A. He was performing sexual intercourse when Iwas laying there and all Idid was - Iwas looking at the ceiling and then everythingjust- it like - itwas like a doorwas shutting and Icouldn't see anything else. Everything went black. Q. You blacked out? A. Yes. Q. [K.C], you said you blacked out, what is the last memory you have before you blacked out? A. He had his penis inside ofme. Viewing the evidence and the inferences inthe lightmostfavorable to the State, sufficient evidence supports the conviction of rape inthe second degree. Inthe alternative, Grandlund contends his attorney provided ineffective assistance ofcounsel by failing to argue that Grandlund had a "reasonable beliefthat K.C. was not physically helpless. Under RCW 9A.44.030(1), it is a defense to a charge 

### ofrape inthe second degree thatthe defendant reasonably believed the person was not 

### physically helpless. The defendant bears the burden of proof by a preponderance of the evidence. RCW9A.44.030(1). Inorderto prevail on a claim ofineffective assistance ofcounsel, Grandlund 

### mustdemonstrate (1) deficient performance, that his attorney's representation fell belowNo. 67655-5-1/10 the standard ofreasonableness; and (2) resulting prejudice, that but for the deficient performance, the result would have been different. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in Strickland). Ifa defendant fails to establish either prong, we need not inquire further. State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996). To establish deficient performance, Grandlund has the heavy burden ofshowing 

### that his attorney "made errors so serious that counsel was not functioning as the 

### 'counsel' guaranteed the defendant by the SixthAmendment." Strickland. 466 U.S. at 687. There is a strong presumption ofeffective representation ofcounsel, and the defendant has the burden to show that based on the record, there are no legitimate 

### strategic or tactical reasons for the challenged conduct. State v. McFarland. 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). 

### Grandlund did not testify that he had a reasonable beliefthat K.C. was not 

### physicallyhelpless. Grandlund testified that he did not have sexual intercoursewith K.C. However, forthe first time on appeal, Grandlund relies on D.L.'s testimony that 

### K.C. appeared only "[a] little" drunk beforehand and "a little out ofit" afterwards to contend there was evidence to argue Grandlund reasonably believed K.C. was not 

### physically unable to communicate unwillingness. Grandlund takes D.L.'s testimony out ofcontext. D.L. testified, in pertinent part: 

### Q. Did you make any statements to [K.C]? A. Yeah. Itold her not to touch me. 

### Q. Why did you --were you angry with her? A. Yeah, because she was throwing all of her weight on me. 

### Q. She was throwing all ofherweight on you? 

### A. Yeah, likeshe put her arm around me and it just was not comfortable.

10No. 67655-5-1/11 

### Q. Has she put her arm around you before inthe past? A. Nope. Q. Never put herhands on your shoulderto hold you as a friend? A. No. Q. So when you say she was throwing all herweight on you, was she leaning on you? A. Yep. Q. Did it seem like she was off balance? A. Kind of. Q. Okay. Did she appearto you like she had been drinking? A. A little bit, yeah. State v. Powell. 150Wn. App. 139, 206 P.3d 703 (2009); and In re Personal Restraint of Hubert. 138 Wn. App. 924, 158 P.3d 1282 (2007), are distinguishable. In Powell and Hubert, the defendants testified they believed the victims had agreed to have sex. Powell. 150 Wn. App. at 148-49, 156: Hubert. 138 Wn. App. at 926-27, 929.
We affirm.

WE CONCUR: 

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