IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
)
)
)
)
)
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Respondent,
v.
ABDIKAFAR ADAN,
No. 64856-0-I
DIVISION ONE
UNPUBLISHED OPINION
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Appellant.
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)
FILED: March 28, 2011
Schindler, J. — A jury convicted Abdikafar Adan of rape in the first degree and
robbery in the first degree. Adan contends the trial court erred in refusing to give jury
instructions on the inferior degree offenses of rape in the second degree, rape in the
third degree, and robbery in the second degree. Because the evidence does not
support the inference that only the inferior degree offenses were committed, and
Adan’s arguments in the statement of additional grounds on appeal are without merit,
we affirm.
FACTS
H.D. works as a prostitute. H.D. solicits clients by advertising her cell phone
number in weekly newspapers and on Craigslist.
In early August 2008, H.D. agreed to have sex with Adan at his apartment. Adan
paid H.D. $150, and she bought some marijuana from him. Afterwards, Adan called
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H.D. several times a day, leaving messages and asking to see her again. H.D. did not
want to see him again and ignored his cell phone calls.
But on August 15, H.D. agreed to have sex with Adan. Adan told H.D. to pick
him up in her car at his apartment. After H.D. picked up Adan, Adan pulled out a large
kitchen knife. At first H.D. thought Adan was joking. But Adan told H.D. “he wasn’t
playing games.” H.D. said that Adan slapped her arm with the flat side of the knife and
“almost cut me several times.”
Adan told H.D. to drive to the park behind his apartment. Adan yelled at H.D.,
telling her that he is a “good man” and that “it’s my fault that he’s doing what he’s
doing.” H.D. was afraid Adan was going to kill her.
Adan told H.D. to get into the backseat of her car. When she hesitated, Adan
“started grabbing me, acting like he was going to stab me in my chest.” When Adan
grabbed H.D.’s shirt, he cut his hand with the knife. After Adan told H.D. that if she did
not get in the backseat and remove her clothes that he would hurt her, H.D. got in the
backseat and removed her clothes. H.D. was “crying” and “hysterical.”
In an effort to make Adan stop, H.D. told him that she was pregnant and had
sexually transmitted diseases. Even though Adan did not want to use a condom, he
made H.D. “put it on for him.” While having sex with H.D., Adan held the tip of the knife
pointed at her throat and chest. Before leaving, Adan rifled through H.D.’s car and took
$700, an iPod, and a camera. As Adan got out of the car, he threw $200 in H.D.’s face,
dropped the used condom on the ground, and ran towards his apartment.
H.D. called 911 and drove to a nearby gas station to wait for the police. The
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responding officer said H.D. looked frightened and cried while she told him what
happened. H.D. showed the officer the used condom that Adan had dropped on the
ground at the park.
The officer then drove H.D. to Harborview Medical Center. A social worker,
Catherine Marks, interviewed H.D. H.D. told Marks that Adan had a knife and held the
knife to her throat while he raped her. Sexual assault examiner Jennifer DiPrima
conducted a physical examination of H.D. H.D. told DiPrima that Adan hit her and
forcibly raped her using a “large kitchen knife.” DiPrima did not find any physical marks
or blood on H.D.
The next day, E.S. called and talked to H.D. about the incident. On August 19,
E.S. contacted a detective in the sexual assault unit, Detective Christopher Young.
E.S. said she was a prostitute and that Adan threatened her with a knife and raped her.
However, E.S. was unable to identify Adan’s race.
E.S. met with Detective Young a few days later. E.S. told Detective Young that
as she was walking with Adan, he pulled out a kitchen knife and told her to keep quiet
or he would slit her throat. E.S. said Adan grabbed her purse and keys and forced her
to have sex with him in her car. E.S. said that Adan then rifled through her car and took
her iPod. When Detective Young showed E.S. a photo montage, she identified Adan.
Detective Young interviewed H.D. on August 26. H.D. told Detective Young that
during the rape, Adan accidentally called the voicemail on her cell phone. She gave
Detective Young a recording of the voicemail. When he showed H.D. a photo montage,
she immediately identified the photo of Adan.
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The State charged Adan with rape in the first degree and robbery in the first
degree of H.D. and E.S. Adan denied committing the crimes. The defense theory was
that E.S. and H.D. were not credible.
At trial, E.S. testified that she did not go to the hospital after Adan raped her
because she did not want to report the crime. E.S. explained that she decided to report
the crime only after she realized that he had hurt someone else.
Detective Young testified that when E.S. gave her initial statement over the
telephone, she gave an “inarticulate” description of the race of her assailant. Detective
Young also testified that E.S. disappeared for six months until a material witness
warrant was issued for her arrest.
H.D. testified that Adan used a “big huge kitchen knife” to threaten her and force
her to have sex with him. H.D. said Adan slapped her arm with the flat side of the large
kitchen knife, and she was afraid he was going to kill her.
I thought he was going to kill me. I thought like I was in immediate
danger. . . . I’ve never dealt with nothing like this before, so I was crying
hysterically. I didn’t know what to do. I just started sitting here and when
he told me to do something, I did it. I didn’t know what to do.
H.D. testified that he held the knife up to her throat and chest while having sex, and he
cut his hand with the knife and got blood on her clothes. H.D. also testified that Adan
called her from jail to tell her that “he was sorry and that he just wanted [her] to forgive
him.”
A recording of the call from jail was played for the jury. The State also played a
recording of H.D.’s 911 call and the voicemail recording from H.D.’s cell phone. In the
voicemail, H.D. is crying and says, “I’m a regular person.” In response, Adan says,
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“You say you’re a regular person?” and asks, “You’re pregnant?”
A forensic scientist from the Washington State Patrol confirmed that the DNA
(deoxyribonucleic acid) profile from the condom and the blood on H.D.’s clothes
matched Adan’s DNA profile. The forensic scientist testified that the chance of the
DNA belonging to a different person was 1 in 1.6 quintillion. The State also introduced
into evidence photos showing marks and cuts on Adan’s hands.
The nurse examiner testified that she did not find any blood or physical marks on
H.D.’s body during the physical examination, but explained that the absence of actual
injuries is common in sexual assault cases. The defense did not call any witnesses.
Adan requested jury instructions on the inferior degree offenses of rape in the
second degree, rape in the third degree, assault in the fourth degree, and robbery in
the second degree. The trial court agreed that as a matter of law, rape in the second
degree, rape in the third degree, and robbery in the second degree are inferior degree
offenses. However, the court refused to give the proposed instruction because the
evidence did not establish that only the inferior degree offenses were committed.
So the question is whether it meets the factual test. And I just don’t see
that there’s any evidence to support—understanding the defense’s point
about the credibility question, but I just don’t see that there’s any
evidence that supports an inference that only the lessers were committed,
which is the standard for giving a lesser, so. The defense objection is
noted.
The jury acquitted Adan of rape in the first degree and robbery in the first degree
of E.S. The jury convicted Adan of rape in the first degree and robbery in the first
degree of H.D. Adan appeals.
ANALYSIS
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Adan contends the trial court erred in denying his request to instruct the jury on
the inferior degree offenses of rape in the second degree, rape in the third degree, and
robbery in the second degree. A defendant is entitled to an instruction on an inferior
degree offense only if (1) the statutes for both the charged offense and the inferior
degree offense proscribe the same conduct, (2) the information charges an offense that
is divided into degrees and the proposed offense is an inferior degree of the charged
offense, and (3) there is evidence that the defendant committed only the inferior
offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000).
Here, the only dispute is whether there is evidence that Adan committed only the
inferior degree offenses. The evidence must raise an inference that only the inferior
degree offense was committed to the exclusion of the charged offense. FernandezMedina, 141 Wn.2d at 455. It is not enough that the jury may disbelieve the evidence
pointing to guilt, but rather the evidence must affirmatively establish the defendant’s
theory of the case. Fernandez-Medina, 141 Wn.2d at 456. We consider all of the
evidence presented at trial in the light most favorable to the party requesting the
instruction. Fernandez-Medina, 141 Wn.2d at 455-56.
We review a trial court’s decision to deny jury instructions based on the
evidence for abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d
883 (1998). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. State v. Powell, 126 Wn.2d 244, 258,
893 P.2d 615 (1995).
The State charged Adan with rape in the first degree and robbery in the first
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degree.1 Adan contends he was entitled to instructions on rape in the second degree
and robbery in the second degree because the testimony of the nurse examiner
supports the inference that a knife was not used during the commission of the crimes.2
Viewing the evidence in the light most favorable to Adan, the nurse examiner’s
testimony does not establish that he did not have a knife. The nurse examiner’s
testimony was not inconsistent with H.D.’s report that she was threatened with a knife
and raped. While the nurse examiner testified that she did not find any evidence of
physical marks during the physical examination, she explained the occurrence of actual
injuries is rare in sexual assault cases:
In my experience and in my training we were told that actual injuries from
sexual assault are rare and they really only occur in a small percentage of
rapes or sexual assaults. That you could have a very violent and
traumatic sexual assault without any injuries.
H.D. gave detailed testimony describing how Adan held the knife up to her while
he raped her and cut his hand with the knife:
And then he started to have sex with me. And then I started crying, I was
hysterical. I didn’t know what to do. I just kept crying and crying and he
kept telling me to shut up. . . . He had a knife at my throat the whole time
he was doing it. He had this big long knife and he had it pushed to my
throat like this when he was on top of me and I just didn’t move. I couldn’t
do anything. All you can do is sit there and cry when somebody else is in
control. . . . He grabbed me behind my shirt and my throat and then with
1
A person commits rape in the first degree if the person “engages in sexual intercourse with another
person by forcible compulsion where the perpetrator . . . [u]ses or threatens to use a deadly weapon.” RCW
9A.44.040(1)(a).
A person commits robbery in the first degree if the person “[d]isplays what appears to be a
firearm or other deadly weapon” while committing a robbery. RCW 9A.56.200(1)(a)(ii). “Robbery” is
defined, in part, as: “[U]nlawfully tak[ing] personal property from the person of another or in his presence
against his will by the use or threatened use of immediate force, violence, or fear of injury to that person
or his property or the person or property of anyone.” RCW 9A.56.190.
2
A person commits rape in the second degree if the person “engages in sexual intercourse with
another person . . . [b]y forcible compulsion” without the use of a deadly weapon. RCW 9A.44.050(1)(a).
“Forcible compulsion” includes “physical force which overcomes resistance, or a threat.” RCW 9A.44.010(6).
A person commits robbery in the second degree if the person does not use a firearm or deadly
weapon during a robbery. RCW 9A.56.210
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the other hand he was acting like he was going to stab me because I
wouldn’t shut up. And he cut one of his hands on the side and got blood
on my shirt and my shorts.
The forensic testimony confirmed that the DNA profile from the blood on H.D.’s
shirt and shorts matched Adan’s DNA profile. The photographs admitted into evidence
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also showed cuts and marks on Adan’s hands. The 911 call, the voicemail recording
during the rape, and the other testimony corroborated H.D.’s testimony. Even viewing
the evidence in the light most favorable to Adan, the evidence does not show that he
committed only the inferior degree offenses of rape in the second degree and robbery
in the second degree.
Adan also argues that he was entitled to an instruction on rape in the third
degree.3 In support of his argument, Adan again cites to the nurse examiner’s
testimony that she did not find physical marks or blood on H.D.’s body and H.D.’s
testimony on cross examination that “[h]e didn’t pay me for the sex that he took,
therefore it wasn’t consensual.”
Viewing the evidence in the light most favorable to Adan, the testimony of the
nurse examiner and H.D. does not show that H.D. was raped without forcible
compulsion. H.D. testified that she was afraid that Adan was going to kill her and that
he forced her to have sex:
[H]e was in control. He got me – I’ve never felt like that before. He had
every, he could have told me to do jumping jacks and I would have done
jumping jacks with a knife at my throat. . . . I thought he was going to stab
me.
The voicemail recording of the rape also shows that the rape was not consensual.
Because the evidence does not raise an inference that Adan only committed
rape in the second degree, robbery in the second degree, and rape in the third degree,
the trial court did not abuse its discretion in denying the inferior degree offense
3
A person commits rape in the third degree if “under circumstances not constituting rape in the first or
second degrees, such person engages in sexual intercourse with another person . . . [w]here the victim did not
consent.” RCW 9A.44.060(1)(a).
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instructions.
Statement of Additional Grounds
In his statement of additional grounds, Adan challenges the trial court’s denial of
his motion to dismiss for violation of his speedy trial rights and argues insufficient
evidence supports his conviction of robbery in the first degree.
Adan argues that the court did not have good cause to continue his trial date.
The trial date was continued because the prosecutor was in trial on another case,
which is an “unavoidable” or “unforeseen” circumstance that justifies the extension of a
criminal defendant’s speedy trial period. CrR 3.3(d)(8); State v. Williams, 104 Wn.
App. 516, 522, 17 P.3d 648 (2001).
We also conclude that sufficient evidence supports Adan’s conviction of robbery
in the first degree. H.D.’s undisputed testimony established that Adan took money, an
iPod, and a camera before leaving her car.
We affirm.
WE CONCUR:
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