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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                 FILED

                                                            APRIL 05, 2012

                                                      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

STATE OF WASHINGTON,                                      No.  29303-3-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
CURTIS ALAN PITTS,                              )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  The court can find a defendant guilty of a lesser degree offense 

when the facts support the elements of the lesser degree offense.  Here, the State charged 

the defendant with second degree rape and alleged that the victim was incapable of 

consent because of physical or mental incapacity.  The evidence showed that the victim 

was capable of consent and objected to the rape by both words and conduct.  The court 

then concluded that the defendant was guilty of third degree rape.  We conclude that the 

court could find the defendant guilty of the lesser degree crime of third degree rape and 

we affirm the conviction.

                                            FACTS 

No. 29303-3-III
State v. Pitts

       The State charged Curtis Pitts with second degree rape and alleged that he 

"engaged in sexual intercourse with a victim, L.C.H., who was incapable of consent by 

being physically helpless or mentally incapacitated."  Clerk's Papers (CP) at 3.  The case 

proceeded to a bench trial.  

       Mr. Pitts managed a business in Toppenish.  He hired L.C.H. in early 2008.  Mr. 

Pitts visited L.C.H. on August 28, 2008, after work and brought him beer.  L.C.H. drank 

two beers.  Then Mr. Pitts injected something into L.C.H. without permission.  L.C.H. 

started going in and out of consciousness and lost motor control.  

       Mr. Pitts then rolled L.C.H. onto his stomach, pulled his pants and underwear 

down, and had anal intercourse with L.C.H.  L.C.H. continued to drift in and out of 

consciousness during the intercourse.  Mr. Pitts held L.C.H. against the floor by lying on 

him and putting his forearm or hand on L.C.H.'s head.  L.C.H. tried to lift himself onto 

his elbows, but could not move.  L.C.H. said he "was telling him no, I didn't want to have 

sex with him."  3 Report of Proceedings (RP) at 355. L.C.H. still could not move after 

the intercourse.  Mr. Pitts cleaned L.C.H. with a tissue and helped L.C.H. onto a couch as 

L.C.H. regained motor control.  

       Mr. Pitts said that L.C.H. voluntarily used cocaine intravenously on August 28.  

He testified that he and L.C.H. had consensual oral intercourse, but that they never had 

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No. 29303-3-III
State v. Pitts

anal intercourse.  

       The trial judge did not believe Mr. Pitts' story and found that Mr. Pitts gave 

L.C.H. alcohol and then injected him with something.  The court found that the substance 

caused L.C.H. to go in and out of consciousness and that he could not move after the 

injection.  The court found that Mr. Pitts had anal intercourse with L.C.H. and that 

L.C.H. asked, "What are you doing?" and told Mr. Pitts "no" and to stop.  CP at 28.  The 

court found that L.C.H. still could not move after the intercourse and that Mr. Pitts 

cleaned L.C.H. with a tissue and helped him off the floor onto a couch.  

       The court found Mr. Pitts not guilty of second degree rape, but guilty of third 

degree rape:  "The evidence indicates . . . that [L.C.H.] understood the nature and extent 

of the sexual and other acts that were being committed with and upon him, and he did in 

fact object to these acts by words and conduct, by trying to push the Defendant off with 

what limited physical ability he had at that point, and by telling Mr. Pitts he was hurting 

him, and by telling the Defendant to stop."  9 RP at 1303-04.  

                                        DISCUSSION

       Mr. Pitts contends that the court could not find him guilty of the lesser degree

crime of third degree rape because the State charged him with second degree rape and 

alleged that L.C.H. was incapable of consent.  He argues that the State failed to prove 

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No. 29303-3-III
State v. Pitts

lack of consent and that should require dismissal, since lack of consent was the element at 

issue here.  He argues that to convict a defendant of a lesser degree offense, there must be 

insufficient evidence to convict on the charged offense, but some evidence to infer that 

the lesser degree offense was committed.  And here he says there was none. 

       The question presented -- whether the trial court could conclude Mr. Pitts was not 

guilty of second degree rape, as charged, but was guilty of third degree rape is a question 

of law that we will review de novo.  State v. Crittenden, 146 Wn. App. 361, 365, 189 

P.3d 849 (2008) (propriety of a lesser degree offense instruction is a question of law).

       "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: . . . [w]hen the victim is incapable of consent by reason of being physically 

helpless or mentally incapacitated." RCW 9A.44.050(1)(b).  Physically helpless refers to 

"a person who is unconscious or for any other reason is physically unable to 

communicate unwillingness to an act."  RCW 9A.44.010(5).  Mentally incapacitated

refers to a "condition existing at the time of the offense which prevents a person from 

understanding the nature or consequences of the act of sexual intercourse whether that 

condition is produced by illness, defect, the influence of a substance or from some other 

cause." RCW 9A.44.010(4).  Mr. Pitts was charged with engaging in sexual intercourse 

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No. 29303-3-III
State v. Pitts

"with a victim . . . who was incapable of consent by being physically helpless or mentally 

incapacitated." CP at 3.  

       There is also a statutory defense to second degree rape:

       In any prosecution under this chapter in which lack of consent is based 
       solely upon the victim's mental incapacity or upon the victim's being 
       physically helpless, it is a defense which the defendant must prove by a 
       preponderance of the evidence that at the time of the offense the defendant 
       reasonably believed that the victim was not mentally incapacitated and/or 
       physically helpless.

RCW 9A.44.030(1).  

       Third degree rape contemplates a lack of consent by a person who is capable of 

consent.  Compare RCW 9A.44.060, with RCW 9A.44.050(b).  Third degree rape is:

       [U]nder circumstances not constituting rape in the first or second degrees, 
       [a] person engages in sexual intercourse with another person, not married to 
       the perpetrator: (a) [w]here the victim did not consent as defined in RCW 
       9A.44.010(7), to sexual intercourse with the perpetrator and such lack of 
       consent was clearly expressed by the victim by words or conduct.  

RCW 9A.44.060(1).  

       As a general rule, a defendant charged with a crime may be found not guilty of 

that crime, but guilty of an inferior degree of the same offense or a lesser included 

offense.  RCW 10.61.003, .006.  There are two requirements -- one legal and one 

factual -- that must be met before a trier of fact considers a lesser included offense.  State 

v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). But where the legislature has 

already denominated the crime a lesser 

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No. 29303-3-III
State v. Pitts

degree offense, we need only consider the factual requirement.  State v. Ieremia, 78 Wn. 

App. 746, 755 n.3, 899 P.2d 16 (1995). The factual requirement is that the evidence 

supports an inference that the lesser degree crime was committed.  See Workman, 90 Wn. 

App. at 448.
       State v. Bucknell1 and State v. Charles2 both address whether third degree rape 

satisfies Workman's factual prong when a defendant is charged with second degree rape.  

In Bucknell, Mr. Bucknell threatened to hurt his female victim if she did not have 

intercourse with him.  144 Wn. App. at 526.  The woman had Lou Gehrig's disease and 

could not move from the chest down.  Id.  But she could communicate orally.  Id. Mr. 

Bucknell claimed that the two had consensual intercourse, but was convicted of second 

degree rape of a person "incapable of consent by reason of being physically helpless or 

mentally incapacitated."  Id. at 528.  

       We concluded that the woman was not "physically helpless" even though she was 

paralyzed from the chest down.  Id. at 528-29. A victim is physically helpless when "'a 

person who is unconscious or for any other reason is physically unable to communicate 

unwillingness to an act.'"  Id. at 528 (quoting RCW 9A.44.010(5)).  So a person is not 

physically helpless when that person was able to orally communicate "even if unable to 

       1 State v. Bucknell, 144 Wn. App. 524, 183 P.3d 1078 (2008).

       2 State v. Charles, 126 Wn.2d 353, 894 P.2d 558 (1995).  

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No. 29303-3-III
State v. Pitts

express an objection by any other means."  Id. at 529.  We ultimately concluded that the 

evidence was insufficient to support second degree rape, but sufficient to support third 

degree rape.  Id. at 530.

       In Charles, a woman alleged that Mr. Charles held her down, removed her clothes, 

and forced her to have intercourse.  126 Wn.2d at 354.  Mr. Charles claimed that they had 

consensual intercourse, but was convicted of second degree rape by forcible compulsion.  

Id. at 354-55; see RCW 9A.44.050(1)(a).  This court concluded that the jury should have 

been instructed on third degree rape.  Charles, 126 Wn.2d at 355.  The Supreme Court 

reversed, relying on Workman's factual prong.  Id. at 355-56 (citing State v. Fowler, 114 

Wn.2d 59, 67, 785 P.2d 808 (1990) (citing Workman, 90 Wn.2d at 447-48)).  The 

evidence suggested that the intercourse was either forced nonconsensual intercourse or 

consensual intercourse.  Id. The court explained that there was no evidence of unforced 

nonconsensual intercourse and therefore insufficient evidence to support a third degree 

rape instruction:

       Charles forced her to the ground, she struggled, and he forced her to have 
       sex with him.  If the jury believed this testimony, Charles was guilty of 
       second degree rape.  RCW 9A.44.050.  According to Charles, the two 
       engaged in a consensual act of intercourse, and he was not guilty of any 
       degree of rape. In order to find Charles guilty of third degree rape, the jury 
       would have to disbelieve both Charles' claim of consent and the victim's 
       testimony that the act was forcible.  But there is no affirmative evidence 
       that the intercourse here was unforced but still nonconsensual.  Thus, the 
       trial court properly refused to instruct the jury on third degree rape.

                                               7 

No. 29303-3-III
State v. Pitts

Id. at 355-56.  

       Mr. Pitts argues that Charles requires reversal.  He suggests that the trial court's 

reasoning here parallels the Court of Appeals' incorrect reasoning in Charles.  According 

to Mr. Pitts, this is because the court had to reject Mr. Pitts' evidence that he reasonably 

believed L.C.H. was capable of consent as well as the State's evidence that L.C.H. was 

incapable of consent. Br. of Appellant at 7; Reply Br. of Appellant at 3-4. But Charles

is distinguishable.  The court here did not reject both parties' evidence.  The trial court 

clearly believed the State's evidence.  Indeed, as Mr. Pitts notes, "The trial court's 

Findings of Fact essentially incorporate the testimony of L.C.H." Br. of Appellant at 5.  

The trial court merely rejected the State's conclusion about the evidence -- that is that it 

amounted to second degree rape.  

       Also, unlike Charles, there is sufficient evidence to support third degree rape here.  

In Charles, the evidence of third degree rape was insufficient because there was no 

evidence of rape that is "unforced but still nonconsensual." 126 Wn.2d at 355.  There, 

"forcible compulsion" was an element of second degree rape and the evidence of rape

showed forced intercourse. The evidence did not satisfy an element of third degree rape

because the evidence showed rape only under circumstances constituting second degree 

rape.  Id. at 355-56; see RCW 9A.44.060(1).  Here, second degree rape required that the 

"victim is incapable of consent by reason of 

                                               8 

No. 29303-3-III
State v. Pitts

being physically helpless or mentally incapacitated." RCW 9A.44.050(1)(b). According 

to Bucknell, evidence that a victim is physically unable to move but can otherwise 

communicate does not satisfy second degree rape's element that the victim is incapable of 

consent. 144 Wn. App. at 528.  But such evidence does satisfy third degree rape's 

requirement that there be intercourse under circumstances not constituting second degree 

rape.  Id. at 530-31.  Here, L.C.H. could not muster the strength to lift his body, but he 

could and did communicate with Mr. Pitts during the intercourse.  This evidence is 

sufficient to prove third degree rape.  See id.  Therefore, the trial court properly relied on 

Bucknell's conclusion that a person who can communicate orally is not incapable of

consent due to physical helplessness or mental incapacity.  

       The trial court properly found Mr. Pitts guilty of third degree rape.  

                   STATEMENT OF ADDITIONAL GROUNDS (SAG)

       SAG 1. Mr. Pitts claims that his trial counsel and appellate counsel were 

ineffective for many reasons, but mainly for failures to investigate.  To claim ineffective 

assistance of counsel, Mr. Pitts must show that "(1) defense counsel's representation was 

deficient, i.e., it fell below an objective standard of reasonableness based on 

consideration of all the circumstances; and (2) defense counsel's deficient representation 

prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's 

                                               9 

No. 29303-3-III
State v. Pitts

unprofessional errors, the result of the proceeding would have been different."  State v. 

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

       The record on appeal does not show whether counsel actually failed to investigate

anything.  Mr. Pitts then necessarily relies on information outside of the record and his 

complaint is more properly addressed in a personal restraint petition.  Id. at 335. 

       SAG 2.  Mr. Pitts argues that the trial court denied Mr. Pitts his "compulsory right 

to confront witnesses."  We presume that this is because the trial court, counsel for the 

State, and Mr. Pitts' counsel were allowed to examine L.C.H.'s mental health records, but 

Mr. Pitts was not personally allowed to examine those records.  He also charges that the 

prosecutor engaged in misconduct by not providing Mr. Pitts with exculpatory evidence.  

       The Fifth Amendment due process clause does require that the State disclose 

certain evidence to a criminal defendant.  See United States v. Agurs, 427 U.S. 97, 112-

13, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).  However, no constitutional error exists 

when undisclosed evidence does not create a reasonable doubt.  Id. Here, the trial court 

reviewed L.C.H.'s medical records in camera and determined that they were consistent 

with his testimony.  These documents contained no exculpatory evidence.

       SAG 3. Mr. Pitts argues that the State did not prove its case beyond a reasonable 

doubt because L.C.H. was an unreliable witness.  However, as Mr. Pitts points out, the 

                                               10 

No. 29303-3-III
State v. Pitts

trier of fact is the sole judge of witness credibility and the strength of the State's 

evidence.  The trial court is in a better position than this court to judge the credibility of 

witnesses and the strength of the State's evidence.  Accordingly, we will not review 

whether the State met its burden of persuasion.  

       SAG 4. Mr. Pitts states that the trial court abused its discretion and was biased, 

and that his speedy trial rights were violated.  However, he does not provide any 

supporting argument. 

       We affirm the conviction for third degree rape.

       A majority of the panel has determined that 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.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________
Brown, J.

________________________________
Siddoway, A.C.J.

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