People v. Terrell CA4/1

Filed 11/2/15 P. v. Terrell CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065431
Plaintiff and Respondent,
v. (Super. Ct. No. SCN320008)
MATTHEW TERRELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sim von Kalinowski, Judge. Affirmed.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Matthew Terrell guilty of assault with intent to commit rape or oral
copulation (Pen. Code, § 220, subd. (a))1 (count 1) and false imprisonment by force,
violence, menace, fraud, or deceit (§§ 236, 237) (count 2). The trial court sentenced
Terrell to the upper term of six years on the conviction for assault with intent to commit
rape or oral copulation and the upper term of three years on the conviction for false
imprisonment. The court stayed execution of the sentence on the false imprisonment
conviction pursuant to section 654.
On appeal, Terrell contends that there is insufficient evidence in the record to
support the jury's verdict finding him guilty of assault with the intent to commit rape or
oral copulation. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2013, Terrell contacted the 20-year-old victim, Emily M. (Emily), via a
Web site. Terrell offered Emily the opportunity to earn $50 an hour and get free athletic
wear in exchange for reviewing and modeling athletic wear, and agreeing to be
photographed in the clothes. Emily agreed. Terrell told Emily that the photo shoot
would take place at a beach the following day, and that she should meet him at his motel
room near the beach in order to change into the clothes.
1 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
2
Emily arrived at Terrell's motel room the following day, selected a pair of running
shorts that Terrell had placed on the bed, and went into the bathroom to change. When
she came out, Terrell asked her if she would like to pose in her sports bra or keep her
shirt on. Emily chose to keep her shirt on. Terrell instructed Emily to assume various
poses, including a backbend and a handstand, while he took photographs of her. Terrell
then asked Emily to assume a pose with her hands behind her back. Emily attempted the
pose, but Terrell told her that she was not doing it quite right. After obtaining Emily's
permission to touch her, Terrell began to reposition her arms behind her back. While
doing so, Terrell placed zip ties around Emily's wrists, explaining that this would help her
hold the pose.
Shortly after placing the zip ties around her wrists, Terrell grabbed Emily's
shoulders, dragged her toward the bed, and shoved her down on the bed. Emily was
"flailing and struggling," while lying on her back with her wrists zip tied underneath her
body. Terrell climbed on top of Emily, holding her shoulders down and pinning her to
the bed. A brief struggle ensued, during which Emily bit Terrell's neck. Terrell eased up
momentarily, allowing Emily to slip out from beneath him and off the bed. Emily began
screaming loudly.
Terrell pushed Emily back against the bed. She continued to loudly scream,
"Help, help!" Terrell attempted to place his hand over Emily's mouth while she was
screaming, but she bit his hand. Emily was able to free herself from the zip tie and get to
her feet. Terrell told Emily that he would let her go, but blocked the door to the room,
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preventing her from immediately leaving. Moments later, Terrell moved away from the
door and Emily was able to flee the room.
Two other male guests had heard Emily screaming. One of the men called 911
and the other walked toward the room from which the men had heard the screaming.
Police arrived and detained Terrell. A search of the room revealed the zip tie that
Terrell had used to restrain Emily, as well as two bags of similar zip ties in a cubicle
below the television. Police also found nine pairs of women's athletic shorts on the night
stand. Six of the shorts did not have "panty liners."2 With respect to at least one of the
pairs of shorts, it appeared the panty liner had been "cut out or removed." In addition,
police found a "ball gag" under the bed.3 In a backpack, police found additional zip ties,
duct tape, a belt with a buckle, a pair of scissors, a crescent wrench, several clothes pins,
part of an electrical cord, and a panty liner from women's athletic shorts. Police also
recovered a camera that contained photographs of Emily, wearing athletic shorts, striking
various poses.
Police also searched Terrell's bedroom and found additional zip ties, part of an
electrical cord that appeared to match a portion of an electrical cord found in Terrell's
backpack, and five panty liners that appeared to have been cut out from shorts or pants.
2 During questioning, the prosecutor described the panty liner as "a brief/liner in
women's running shorts."
3 An officer testified that the ball gag was comprised of a zip tie wrapped in duct
tape. The officer described the nature of the ball gag as follows:
"The way it's fashioned here, it looks like it's kind of bigger at one end, which
would probably be strapped deep into the mouth so the person cannot create any type of
noise or emit any type of screams or something like that."
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III.
DISCUSSION
There is sufficient evidence in the record to support the jury's verdict finding
Terrell guilty of assault with the intent to commit rape or oral copulation
Terrell contends that there is insufficient evidence in the record to support the
jury's verdict finding him guilty of assault with the intent to commit rape or oral
copulation. Specifically, Terrell contends that the jury's verdict rested on speculation that
his intent during the assault was to rape or orally copulate the victim.
A. Governing law and standard of review
1. The law governing challenges to the sufficiency of the evidence
"A state court conviction that is not supported by sufficient evidence violates the
due process clause of the Fourteenth Amendment and is invalid for that reason." (People
v. Rowland (1992) 4 Cal. 4th 238, 269, citing Jackson v. Virginia (1979) 443 U.S. 307,
313-324.) In determining the sufficiency of the evidence, "the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." (Jackson v. Virginia, supra, at p. 319.) "[T]he court must review the
whole record in the light most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt." (People v. Johnson (1980) 26 Cal. 3d 557, 578.) "The standard of
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review is the same in cases in which the prosecution relies mainly on circumstantial
evidence." (People v. Rodriguez (1999) 20 Cal. 4th 1, 11.)
2. The offense of assault with intent to commit rape or oral copulation
Section 220, subdivision (a) provides in relevant part: "[A]ny person who assaults
another with intent to commit . . . rape . . . [or] oral copulation . . . shall be punished . . . ."
"[S]ection 220 requires not only the specific intent to commit the underlying sexual act,
but a specific intent to commit that act without the consent of the victim." (People v.
Dillon (2009) 174 Cal. App. 4th 1367, 1378.)
3. Proof of a defendant's intent
"Intent is rarely susceptible of direct proof and usually must be inferred from the
facts and circumstances surrounding the offense." (People v. Pre (2004) 117 Cal. App. 4th
413, 420 (Pre).) " 'The specific intent with which an act is done may be shown by a
defendant's statement of his intent and by the circumstances surrounding the commission
of the act.' " (People v. Craig (1994) 25 Cal. App. 4th 1593, 1597, quoting People v. Duke
(1985) 174 Cal. App. 3d 296, 300 (Duke).)
B. Application
The People presented evidence that Terrell concocted an elaborate ruse in order to
lure the victim to a motel room. Once the victim was in the room, Terrell instructed her
to model revealing clothing. After the victim had donned the clothing, Terrell instructed
her to assume poses that the jury could have reasonably found were sexually suggestive
and began taking photographs of her. Then, using another ruse, Terrell bound the
victim's wrists in zip ties, before forcibly throwing her onto the bed and climbing on top
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of her. Terrell pinned the victim to the bed by holding her shoulders down. He relented
only when the victim bit him on the neck and engaged in a physical struggle during
which she was able to slide out from under him. While the victim was screaming, Terrell
placed his hand over her mouth in an attempt to silence her. Prior to luring the victim to
the motel room, Terrell hid items in the room that could be used to facilitate sexual
conduct, including a ball gag and clothes pins.4 In addition, the People presented
evidence that Terrell had cut the panty liners out of several of the shorts that he brought
to the room for the victim to model. A jury could reasonably infer that Terrell cut the
panty liners from the shorts in order to facilitate his access to the victim's genitalia. In
light of all of the evidence mentioned above, a reasonable jury could find that, at the time
Terrell assaulted the victim, he harbored the intent to rape or orally copulate her.
Terrell's arguments to the contrary are not persuasive. Terrell notes that "[h]e did
not tell [the victim] he wanted to have sexual intercourse." While there is no evidence
that Terrell stated his intentions, "intent is rarely susceptible of direct proof . . . ." (Pre,
supra, 117 Cal.App.4th at p. 420.) Terrell also argues that he did not "touch [the victim]
sexually." Even assuming that this is true,5 the jury could reasonably infer from the
evidence discussed above that Terrell intended to sexually assault the victim, and that he
was prevented from doing so only by her fierce resistance.
4 The jury was presented with testimony that ball gags are commonly used by
clients of prostitutes to engage in sexual fantasies. The prosecutor argued that the clothes
pins could be used as "nipple clamps" or "genital clamps."
5 The People contend that the jury could reasonably find that Terrell touched the
victim in a sexual way, when he threw her down on the bed and climbed on top of her.
7
Duke, supra, 174 Cal. App. 3d 296, cited by Terrell, does not compel a different
result. In Duke, the defendant groped the clothing covering the intimate parts of three
different women. (Id. at p. 299.) He was charged with three counts of attempted sexual
battery. (Id. at p. 298.) At the time, sexual battery required "actual direct contact with
the skin of the intimate part of the victim." (Id. at p. 299.) On appeal, the defendant
challenged the sufficiency of the evidence. (Id. at pp. 299-300.)
The Duke court reasoned that a judicially imposed limitation on the type of
evidence that could be deemed sufficient to satisfy proof of an attempted sexual battery
was necessitated by the fact the Legislature had mandated that the commission of a
completed sexual battery required contact with the victim's skin:
"Normally, the question whether the circumstances surrounding the act show the required
specific intent is for the jury. However, the Legislature has obviously recognized a fact
of life—that some sexually assaultive persons get a kick or gratification by touching
other persons in the clothed areas of their intimate parts without intending to go farther
by touching the skin of the intimate part—absent the victim's consent." (Duke, supra,
174 Cal.App.3d at p. 300.)
In order to preserve the "legislative policy" (Duke, supra, 174 Cal.App.3d at p.
300), that direct contact by the defendant to the skin of a victim was required in order to
commit a sexual battery, the Duke court developed a "bright line" rule (ibid.), that "there
must be some proof of the defendant's intent to touch the skin of the victim's intimate
parts in addition to the mere grabbing or touching of the victim through his or her
clothing." (Id. at p. 301.) Because there was no such evidence in Duke, the Court of
Appeal concluded that the evidence did not support the attempted sexual battery verdicts.
(Id. at p. 302.)
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Even assuming that we were to agree with the reasoning of the Duke court, we are
not aware of any analogous "bright line" rules (Duke, supra, 174 Cal.App.3d at p. 300)
concerning the sufficiency of the evidence necessary to prove assault with the intent to
commit rape or oral copulation.6 Thus, in determining whether a defendant intended to
rape or orally copulate a victim of an attack, the ordinary rule, namely, that the jury may
infer a defendant's intent from all of the "facts and circumstances surrounding the
offense," applies. (Pre, supra, 117 Cal.App.4th at p. 420; see Duke, supra, at p. 300
["Normally, the question whether the circumstances surrounding the act show the
required specific intent is for the jury."].) In this case, the facts, as described above, are
sufficient for the jury to infer that Terrell committed his assault of the victim with the
intent to rape or orally copulate her.
Terrell also "directs this [c]ourt" to People v. Greene (1973) 34 Cal. App. 3d 622
(Greene), in which the Court of Appeal concluded that there was insufficient evidence
that a defendant committed an assault with the intent to rape the victim. In Greene, the
People presented evidence that the defendant approached the 16-year-old victim (Linda)
as she was walking home from a babysitting job at approximately 11:00 p.m. (Id. at p.
629.) The Greene court summarized the evidence concerning the ensuring encounter as
follows:
"The defendant, who approached from the direction in which Linda was walking, put his
arm around her waist and turned her around. She thought his conduct was unusual, and
she was startled and afraid. Defendant spoke in a soft voice and said, 'Don't be afraid. I
6 In any event, unlike in Duke, there is no evidence that Terrell voluntarily stopped
his assault of the victim. (See Duke, supra, 174 Cal.App.3d at p. 299 ["After touching
Erica's groin area, 'he just kind of let go and started running out of the house.' "].)
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have a gun. Don't move.' The defendant was on her right with his left arm around her
waist, and she felt something hard against her right side. She did not look down to see
whether it was a gun and did not know whether it was his finger, or a piece of metal or
wood. The defendant told her to be quiet. At his request she placed her right arm around
his waist and they started walking in the opposite direction from which she had been
headed. Linda asked the defendant, 'What do you want?' or 'Oh God, what do you want?'
and he replied, 'I just want to play with you.' She also remonstrated, 'Don't hurt me.' As
they walked slowly the defendant had a hold of Linda and moved his left hand up and
down her waistline, a little bit, in a manner which she demonstrated to the jury. An
objection was sustained to Linda's volunteered statement, 'He just put his hand where he's
not supposed to,' and a question and answer indicating he did 'other things.' When
defendant indicated that he was going to play with her, Linda attempted to get away and
shook her head and said 'No, no.' The defendant told her to stop it and be quiet. Linda
remained quiet and then broke from defendant's embrace without a struggle, screamed
and ran to a friend's home. According to Linda she only walked with the defendant past a
couple of houses, and the whole incident took no more than six or seven minutes." (Id. at
p. 650.)
The People presented evidence that the defendant had committed another charged
sexual offense against a second victim (Terese). (Greene, supra, 34 Cal.App.3d at p.
627.)7 During this offense, which occurred less than a month prior to the charged
offense involving Linda, the defendant approached Terese on the street and asked her to
come with him. (Id. at p. 628.) When she declined, the defendant grabbed her with one
arm and shoved his other hand into her vaginal area. After approximately 30 seconds,
Terese was able to free herself and flee. (Ibid.)
The People also presented evidence of several additional incidents during which
the defendant attempted to have sex with a teenage girl whom he met on the street. Each
of the incidents occurred approximately 18 months before defendant's encounter with
Linda and involved the same victim, Miss K. (Greene, supra, 34 Cal.App.3d at p. 631.)
During one of the encounters, the defendant approached Miss. K. on the street and told
7 The Greene court concluded that the jury could consider evidence pertaining to the
defendant's offense against Terese in considering whether he was guilty of committing
the offense against Linda. (Greene, supra, 34 Cal.App.3d at p. 630.)
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her that he wanted to have sexual intercourse. The defendant then grabbed Miss. K.
before she was able to flee. (Ibid.) On another occasion, the defendant offered Miss K.
$100 to have sex with him, and then pushed her into some bushes before she was able to
run away. (Id. at p. 632.) On still another occasion, the defendant offered Miss K. $50 to
have intercourse, blocked her path when she attempted to leave, and grabbed her in the
crotch before she was able to flee. (Ibid.) Miss K. testified that the defendant exposed
himself during each of the incidents. (Ibid.)
In concluding that the evidence was insufficient to support the jury's verdict
finding the defendant guilty of assault with intent to rape Linda, the Greene court stated,
"The testimony of Linda when considered alone falls short of furnishing substantial
evidence that the defendant assaulted her with intent to commit rape." (Greene, supra, 34
Cal.App.3d at p. 651.) In support of this conclusion, the court cited the facts of several
cases in which the People had presented stronger evidence of the defendant's intent to
commit a rape. (Id. at pp. 651-652.) The Greene court also concluded that the evidence
of the defendant's commission of the other offenses "fail[ed] to rise to the dignity of
showing intent to overcome his victim's resistance by force or violence." (Id. at p. 653.)
In support of this conclusion, the Greene court again reasoned that the evidence did "not
measure up to the facts" of several other cases in which the People had presented stronger
evidence of a defendant's intent to rape. (Ibid.)
We are not persuaded that Greene requires reversal in this case. To begin with,
we disagree with the Greene court's conclusion that no reasonable jury could find that the
defendant committed an assault with the intent to rape Linda. In light of Linda's
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testimony concerning the defendant's threat, his statement that he wanted to "play" with
her, and the placement of his hand on her waist, together with the evidence that the
defendant had committed several other similar offenses that were clearly sexually
motivated, a juror could reasonably infer that the defendant assaulted Linda with the
intent to rape her.
The Greene court's reasoning to the contrary was based primarily on its
assessment that the evidence in that case was weaker than that presented in other cases.
However, the Supreme Court has cautioned against such an approach to evaluating
sufficiency claims. (See People v. Story (2009) 45 Cal. 4th 1282, 1299 ["The Court of
Appeal erred in focusing on evidence that did not exist rather than on the evidence that
did exist."].) Accordingly, we decline to follow Greene.
In any event, even if we were to follow Greene, it is distinguishable. Unlike the
brief encounter on the street in Greene, the defendant in this case executed an elaborate
plan to trick the victim into coming to a motel room in which he had placed several items
that a reasonable juror could find would facilitate a rape or oral copulation. In addition,
unlike in Greene, the defendant's act in binding the victim's wrists, throwing her on the
bed, and climbing on top of her, showed a clear "intent to overcome his victim's
resistance by force or violence." (Greene, supra, 34 Cal.App.3d at p. 653.)
Accordingly, we conclude that there is sufficient evidence in the record to support
the jury's verdict finding Terrell guilty of assault with the intent to commit rape or oral
copulation.
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IV.
DISPOSITION
The judgment is affirmed.
AARON, J.
WE CONCUR:
McINTYRE, Acting P. J.
O'ROURKE, J.
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