State v. Washington

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                  TERRY WAYNE WASHINGTON,
                          Appellant.

                            Opinion
                        No. 20200209-CA
                    Filed November 4, 2021

          Fifth District Court, Cedar City Department
                 The Honorable Keith C. Barnes
                          No. 181500792

           Keith A. Fitzgerald, Attorney for Appellant
         Sean D. Reyes and Jonathan S. Bauer, Attorneys
                         for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
   JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1     Terry Wayne Washington lured Tiana1 into his home with
an offer of employment. Washington attempted to change the
terms of employment to include sex, but he soon discovered not
only would $200 be too little to persuade Tiana to have sex with
him on this occasion, but $1,000 a month for monthly sex would
not be enough either—the offer did not matter because Tiana
“was not that kind of person.” Washington, not to be denied,
then hugged Tiana and did not let go. Instead, he held her
shoulders, insisted sex would happen, and tried to throw her
onto a bed. Despite Washington’s efforts, Tiana escaped. After a

1. A pseudonym.
                       State v. Washington


bench trial, Washington was convicted of both sexual solicitation
and attempted rape. Washington appeals and we affirm.


                       BACKGROUND2

¶2     Money was tight for Tiana’s family. So, when she received
an opportunity to assist her husband’s boss, Washington, with a
cleaning job, Tiana agreed to do it.

¶3      When Washington picked her up, she assumed they
would go straight to the jobsite. She was therefore surprised
when Washington drove her to his house instead. But she
guessed Washington needed to pick something up, and seeing
Washington’s wife’s blue car in the driveway, she agreed to go
inside, thinking she would say hello. Once inside, Tiana
observed that the house appeared deserted. At Washington’s
request, Tiana followed him down the back hallway to a
bedroom, and she watched from the doorway as he pulled
money from a vanity. With $200 in hand, Washington then
informed Tiana that there was no cleaning job and that he would
pay her for letting him “make it with [her].” When Tiana
expressed confusion about what that phrase meant, Washington
clarified that he wanted to pay her to have sex. After Tiana
refused, he raised the offer to $1,000 per month for monthly sex,
and Tiana again rejected the offer.

¶4    After asking her to keep the proposition a secret,
Washington leaned in for what Tiana understood to be a “no
hard feelings hug.” But when the hug should have ended, it

2. “On appeal from a bench trial, we view and recite the
evidence in the light most favorable to the [district] court’s
findings; we present additional evidence only as necessary to
understand the issues on appeal.” State v. Jack, 

, 

.




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                       State v. Washington


didn’t. Washington did not let go. Instead, he “looked [her] in
[her] eyes” and, as if there was “no other choice,” he said, “I’m
going to make it with you.” Washington then gripped her
shoulders, as well as her sweatshirt, and turned, trying to throw
her onto the bed, but Tiana struggled free from her sweatshirt
and left it in Washington’s grasp. Tiana then ran, and
Washington, in hot pursuit, “[threw] himself towards the [front]
door” to block her path but “[fell] into the wall instead.” Despite
Washington’s efforts, Tiana escaped from the house and ran to
the nearest neighbor, screaming that Washington was trying to
rape her.

¶5      When police later searched Washington’s house pursuant
to a warrant, they found Tiana’s sweatshirt and phone still
inside. Subsequently, the State took Washington into custody
and charged him with two crimes: sexual solicitation and
attempted rape. But before trial, Washington’s competency
became an issue. Washington told his attorney that he had been
“hearing voices and hallucinating.” Defense counsel further
reported that Washington displayed “behavior consistent with
disorientation and confusion” and that he “appeared unable to
assist in his own defense or understand the proceedings against
him.” The district court therefore ordered a competency
evaluation. Ultimately, the court received two competency
evaluations, one finding Washington competent and the other
finding him incompetent, but likely that he could be restored to
competency.3 Then, at a competency review hearing,


3. We are sensitive to the confidentiality surrounding mental
health records, but Washington raises an issue on
appeal regarding the existence of two conflicting competency
reports. Because our resolution of the issue does not require us
to delve into the details of these reports, however, we
acknowledge their existence, but do not disclose the reports’
contents. See infra note 5.




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                        State v. Washington


Washington agreed with defense counsel’s representations that
he understood the charges against him, and defense counsel
stipulated to Washington’s competency based on one of the
competency reports. The district court, for its part, “accept[ed]
the findings from” that competency report. And when
Washington waived his right to a jury trial, the court set the
matter for a bench trial.

¶6     During the trial, Tiana testified about the attempted rape
as described above. And after the State rested its case, defense
counsel moved for a directed verdict on the attempted rape
charge, contending that the evidence presented was insufficient
to support the “substantial step” element of that charge. See infra
¶¶ 10–11. The court deferred ruling on the directed verdict
motion, heard closing arguments, and rendered its verdict at a
later proceeding. In denying the motion and simultaneously
rendering a verdict, the district court determined that
Washington’s grabbing Tiana’s shoulders to prevent her from
leaving the room—along with his statement that he was “going
to make it with” her—“showed there was additional preventive
action that constituted a substantial step . . . taken to commit the
crime charged.” And “[t]he fact that major steps still remained
before the crime of rape could be completed [did] not preclude
the [c]ourt from finding that the [steps Washington] already took
were substantial.” Thus, the district court found that “the
evidence establishe[d] beyond a reasonable doubt that
[Washington] took a substantial step in committing the crime of
rape.”

¶7    In the end, the court found Washington guilty of both
charges. Washington appeals.


            ISSUES AND STANDARDS OF REVIEW

¶8   Washington raises two issues for our review. First,
Washington claims that the evidence was insufficient to support


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                       State v. Washington


a conviction on the attempted rape charge. He advances this
argument in two separate ways: (a) he contends that the district
court erred in denying his motion for a directed verdict on the
charge for attempted rape and (b) he contends that the court
erred by finding him guilty on that count after the bench trial.
While these challenges raise the same underlying issue, they
involve different standards of review. “We review the district
court’s denial of a motion for directed verdict for correctness”;
and where a defendant “challenges the denial of a motion for a
directed verdict based on the sufficiency of the evidence, the
applicable standard of review is highly deferential,” and “we
will uphold the district court’s denial if, when viewed in the
light most favorable to the State, some evidence exists from
which . . . the elements of the crime [could be] proven beyond a
reasonable doubt.” State v. Barner, 

, 

 (cleaned up). But “when reviewing a bench trial for
sufficiency of the evidence,” our review is less deferential, and
we “sustain the district court’s judgment unless it is against the
clear weight of the evidence, or if we otherwise reach a definite
and firm conviction that a mistake has been made.” State v.
Holland, 

, 

 (cleaned up). We
need not, however, concern ourselves here with both standards
of review because, for the reasons discussed below, we conclude
that the district court did not err in finding Washington guilty
after a bench trial. That is, our conclusion under the less
deferential standard—that sufficient evidence existed to support
the guilty verdict—necessarily requires that we affirm a denial of
a motion for a directed verdict under the more deferential
standard. Accordingly, as the end result is the same in both
instances, we address only the argument that involves the less
deferential standard of review.

¶9    Second, Washington contends that defense counsel
rendered ineffective assistance in stipulating to his competency




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                       State v. Washington


in light of the conflicting competency reports.4 “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Bowen, 

, 

 (cleaned up).


                           ANALYSIS

                  I. Sufficiency of the Evidence

¶10 First, Washington contends that the district court erred in
finding him guilty on the attempted rape charge, asserting that
the evidence was insufficient to support the verdict. Specifically,
he asserts that the evidence could not support the “substantial
step” element of the attempted rape charge; that is, he claims
that he did not undertake a “substantial step” toward
completing the crime of rape. We find Washington’s argument
unpersuasive, in large part because the facts here do not escape
the scope of State v. Arave, 

, 

.

¶11 In Utah, rape is defined as “sexual intercourse with
another person without the victim’s consent.” 

(1) (LexisNexis 2017). And to “attempt” a crime, a
person must “intend[] to commit the crime” and must “engage[]



4. Washington also contends that defense counsel rendered
ineffective assistance “by not arguing consideration of
Washington’s mental health evaluations in sentencing.”
However, he has not engaged with this issue in his brief, and
thus we do not discuss the matter further. See State v. Davie, 

, 

 (“Briefs must contain reasoned
analysis based upon relevant legal authority. An issue is
inadequately briefed when the overall analysis of the issue is so
lacking as to shift the burden of research and argument to the
reviewing court.” (cleaned up)).




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                        State v. Washington


in conduct constituting a substantial step toward commission of
the crime.” 

 § 76-4-101(1) (emphasis added).

¶12 Here, intent is clear—while gripping Tiana by the
shoulders, Washington looked directly at her and said, “I’m
going to make it [i.e., have sex] with you.” So, the ultimate
question is whether the incident’s remaining aspects
(Washington’s grabbing Tiana’s shoulders and sweatshirt,
Washington’s attempt to throw her on the bed, and
Washington’s attempt to prevent Tiana’s escape through the
front door) constitute “substantial step[s] toward commission of
the crime.” Id. We conclude that they do.

¶13 As the district court stated, “conduct constitutes a
substantial step if it strongly corroborates the actor’s mental
state.” Id. § 76-4-101(2). In other words, a person has committed
a “substantial step” when that person takes an action that
indicates intent to actually commit the crime. See State v. Fowers,

, 

. And while a “substantial
step” must be “more than mere preparation,” Arave, 

 (cleaned up), we agree with the district court’s statement
that the action need not be “the last act necessary” to commit the
crime, see United States v. Washington, 

 (10th
Cir. 2011) (cleaned up). Instead, it needs to be only “a tangible
step toward commission of a crime that transcends intent, yet
fails to culminate in its planned accomplishment.” Arave, 

 (cleaned up).

¶14 In Arave, our supreme court applied these rules and
clarified the scope of what constitutes “attempt.” In that case, the
court determined that a defendant did not “attempt” to commit
sodomy on a child when he followed a young boy, blocked the
boy’s skateboarding path, and proposed to perform oral sex, but
did nothing to stop the boy from leaving after the boy refused.
Id. ¶¶ 1, 3–4. Rather, the court expressly explained that, to rise to
the level of “attempt,” the defendant would have had to have



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                       State v. Washington


gone beyond solicitation by engaging in some “additional
preventive action” such as blocking the boy’s escape, taking his
skateboard, or otherwise trying to restrain him. Id. ¶ 32.

¶15 Washington argues that Arave does not apply in this case
because “mere intent to violate a criminal statute is not
punishable as an attempt” and because solicitation cannot turn
into rape merely owing to the fact that Washington tried to
prevent Tiana’s escape. But Washington’s argument is
misplaced. As noted above, Washington’s intent was clear, and
Washington’s sexual solicitation (offering to pay for sex) stands
alone as an independent crime. See 

-
1313(1)(a) (LexisNexis Supp. 2021). We must determine whether
Washington’s actions, outside of his sexual solicitation and his
stated intent, rise to the level of “substantial step[s]” toward
commission of the rape.

¶16 In our view, various features present in this case
distinguish it from Arave in exactly the ways the supreme court
explained would be significant. In Arave, following his
solicitation (the commission of which the defendant conceded)
and following the boy’s rejection, the defendant offered a few
parting words and did nothing to prevent the boy from leaving.
Arave, 

. Without “additional preventive
action” to keep the boy from leaving, the defendant had taken no
steps toward committing the crime of sodomy on a child. Id.
¶¶ 1, 32. Like the defendant in Arave, Washington solicited sex.
See supra ¶ 3. And like the defendant in Arave, Washington made
his intent clear—he explicitly stated that he wanted to have sex
with Tiana. See supra ¶¶ 3–4. But unlike the defendant in Arave,
when Washington’s target rejected him, he did not stop. Instead
he (1) gripped Tiana’s shoulders and refused to let go, (2)
attempted to throw her on the bed, (3) grasped her sweatshirt so
tightly that it came off as she struggled to escape, and (4) ran to
the front door and attempted to prevent her from leaving the
house. All these actions represent steps beyond those taken by



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                        State v. Washington


the defendant in Arave, and each of them represent “additional
preventive action[s],” see Arave, 

, that, when
viewed in light of his intent to have sex with Tiana, plainly
constitute “substantial step[s]” toward commission of the rape.

¶17 Indeed, viewed “in the light most favorable to the
[district] court’s findings,” see State v. Jack, 

,

, we conclude that the district court’s judgment is
not “against the clear weight of the evidence,” and Washington
has not raised in us “a definite and firm conviction that a
mistake has been made,” see State v. Holland, 

, 

 (cleaned up). Accordingly, we sustain the
district court’s judgment.

                  II. Stipulation to Competency

¶18 Second, Washington contends that defense counsel
provided ineffective assistance by stipulating to his competency
based on one of the competency reports. To prevail on such a
claim, Washington must show both “that (1) his counsel’s
performance was deficient in that it fell below an objective
standard of reasonableness and (2) the deficient performance
prejudiced the defense.” See State v. Scott, 

, 

 (cleaned up). However, because Washington has failed
to provide the competency review hearing transcript as part of
the record, and because Washington has not requested a remand
under rule 23B to supplement the record, see Utah R. App. P.
23B, Washington is unable to meet his appellate burden of
persuasion with regard to the test’s first prong—that counsel
rendered deficient performance.

¶19 To evaluate counsel’s performance, we must “consider[]
all the circumstances” and review “counsel’s acts or omissions”
and assess whether they “were objectively unreasonable.” Scott,

. But, without the transcript of the competency
review hearing, we cannot consider the circumstances, review
counsel’s acts or omissions, or determine whether, counsel’s acts


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                        State v. Washington


or omissions fell within the acceptable range of reasonability. See

 In other words, we cannot evaluate counsel’s performance in
this instance, let alone determine whether it was deficient or
whether the performance at that hearing—including any
resulting representations, stipulations, and waivers—fell below
an objective standard of reasonableness.

¶20 Moreover, “when an appellant fails to provide an
adequate record on appeal, this court presumes the regularity of
the proceedings below,” and we presume the proceedings
“support the action of the [district] court.” State v. Case, 

, 

 (cleaned up). And, specifically
regarding effective assistance, “we presume that an attorney
performed in an objectively reasonable manner.” State v. Ray,

, 

 (cleaned up). So here—having no
way to know anything detailed about what the court said, what
the defendant said, what counsel said, and the discussions
surrounding the stipulation and other aspects of the critical
proceeding—we cannot speculate that the proceedings were
anything other than “regular[],” see Case, 

,
or that counsel’s performance was anything other than
“objectively reasonable,” see Ray, 

 (cleaned up).5



5. Attempting to side step his burden, Washington appears to
argue that effective counsel can never stipulate to competency in
the face of conflicting competency reports. However,
Washington has presented no authority to support this point,
and we are not prepared to hold that no reasonable attorney,
regardless of the circumstances, could ever stipulate to
competency given conflicting reports. Cf. State v. Galindo, 

, ¶¶ 9–10, 

 (applying the ineffective
assistance of counsel analysis to a stipulation of competency);
Burns v. Summerhays, 

, 199–200 (Utah Ct. App. 1996)
(“In this case, in which the appellant has failed to provide
                                                     (continued…)


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                        State v. Washington


                         CONCLUSION

¶21 Washington’s actions—grabbing and holding Tiana’s
shoulders and sweatshirt, attempting to throw her on a bed, and
attempting to prevent her escape—all in the context of his
contemporaneous statement of intent, provide supporting
evidence for the substantial step element of attempted rape;
thus, the district court committed no error in denying
Washington’s motion for a directed verdict or in finding him
guilty after trial. Further, without the transcript of the
competency review hearing, Washington cannot show
ineffective assistance. Accordingly, we affirm.




(…continued)
adequate legal analysis and legal authority in support of his
claims, appellant’s assertions do not permit appellate review.”).
Alternatively, Washington also appears as if he is trying to avoid
this burden by reframing his ineffective assistance argument as a
constitutional due process error that requires reversal per se,
regardless of any showing. But Washington has not raised a
preserved constitutional claim, nor has he raised a plain error
argument relating to an unpreserved constitutional issue. Cf.
State v. Brown, 

 (Utah Ct. App. 1993) (“As a
general rule, appellate courts will not consider an issue,
including a constitutional argument, raised for the first time on
appeal . . . .”). Washington has raised an ineffective assistance of
counsel claim. And for such a claim the standard is clear:
Washington must show that “his counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.” State v. Scott, 

, 

 (cleaned
up). And as explained, Washington cannot make the necessary
showing on this record.




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