State Of Washington v. Steven Lee Cook

FILED
COURT-OF APPEALS DIV
STATE OF VIASHIMIt!:
2011 RI 19 An 8:5!
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 74872-6-1
)
Respondent,. )
)
v. ) UNPUBLISHED OPINION
)
STEVEN LEE COOK, )
)
Appellant. ) FILED: June 19, 2017
SCHINDLER, J. — A jury convicted Steven Lee Cook of indecent liberties by
forcible compulsion. Cook appeals denial of the motion for postconviction DNA1 testing.
Because the superior court did not abuse its discretion in concluding a favorable DNA
test result would not demonstrate Cook was innocent of indecent liberties by forcible
compulsion on a more probable than not basis, we affirm.
Indecent Liberties Count
This is the second appeal in this case. The facts are set forth in State v. Cook,
191 Wash. App. 1007, 2015 WL 6872295, and will be repeated only as necessary.
Cook is a licensed massage therapist. In June 2014, N.R. went to Cook for
massage therapy to treat injuries she sustained in a car accident. N.R. had four
massage appointments with Cook.
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On July 6, 2014, N.R. went to the fifth massage therapy appointment. During the
massage, Cook pressed on her lower back with one hand so that she could not get up.
N.R. stated Cook then touched her genitals with his other hand and repeatedly inserted
a finger into her vagina. N.R. testified that after she got home,"[t]he first thing I did was
take a shower. I just wanted all evidence of that off of me."
On July 8, N.R. reported what happened to the police. On July 10, N.R. met with
Lynnwood Police Department Detective Jacqueline Arnett. Forensic nurse examiner
Dale Fukura performed a sexual assault examination on N.R. and obtained four swabs
from her vagina. Between July 6 and July 10, N.R. had showered and used the
restroom numerous times.
Detective Arnett interviewed Cook on July 15. Cook admitted that he touched
N.R.'s vagina during the massage but denied inserting his fingers into N.R.'s vagina.
The State charged Cook with rape in the second degree in violation of RCW
9A.44.050(1)(d) and indecent liberties by forcible compulsion in violation of RCW
9A.44.100(1)(a).
The State called a number of witnesses at trial, including N.R., Detective Arnett,
and forensic nurse examiner Fukura.
Detective Arnett primarily worked on sexual assault cases. Detective Arnett
testified that when she interviewed Cook on July 15, Cook admitted he "touched the
outside of [N.R.'s] vagina." Cook denied inserting his finger into N.R.'s vagina.
Detective Arnett told the jury she did not request a DNA test of the swabs collected
during the sexual assault examination based on the low probability of obtaining DNA
evidence. Detective Arnett believed that "the likelihood of locating touch DNA was
incredibly unlikely." Detective Arnett also testified that the presence of Cook's DNA on
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the swabs "would have been consistent" with his admission that he had touched N.R.'s
vagina.
Nurse Fukura testified that it is standard practice to take vaginal swabs for a
sexual assault examination within seven days of the alleged assault. Nurse Fukura
testified she collected the four swabs by "insert[ing a Q-tip] into the vagina." Nurse
Fukura stated that in this case, where the exam took place four days after the alleged
assault, it was "possible" that there could be DNA evidence. She later described finding
DNA evidence on the swabs as a "slim possibility." Nurse Fukura further explained that
unless she swabbed the exact spot allegedly touched, DNA would not be detected.
Cook testified. Cook denied touching N.R. "in a sexual way" during the massage.
The jury acquitted Cook of rape in the second degree. The jury convicted Cook
of indecent liberties by forcible compulsion. We affirmed Cook's conviction. Cook,
2015 WL 6872295, at *1.
Motion for Postconviction DNA Testing
On December 9, 2015, Cook filed a pro se motion for postconviction DNA testing
of the swabs taken during N.R.'s sexual assault examination. Cook argued that "[i]f
there is no touch DNA and no traces of massage oil on the inside of[N.R.J's vagina it
would prove no sexual assault occurred." The court held a hearing on the motion. The
court denied Cook's motion.
Mr. Cook, I'm going to deny your motion for these reasons: First
. .. ,the reality is if that testing showed the existence of your DNA on a
swab that was taken from inside the complaining witness's vagina, it
would serve only to provide evidence of your guilt for a charge that the jury
acquitted you of.
If, on the other hand, the DNA evidence came back even
hypothetically showing someone else's DNA, it would not disprove the
allegation of a sexual touching which is the crux of the conviction at issue
here.
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Cook appeals, arguing the superior court erred in denying his request for
postconviction DNA testing.
A trial court's decision on a motion for postconviction DNA testing is reviewed
under an abuse of discretion standard. State v. Gentry, 183 Wash. 2d 749, 764, 356 P.3d
714 (2015); State v. Crumpton, 181 Wash. 2d 252, 257, 332 P.3d 448 (2014); State v.
Thompson, 173 Wash. 2d 865, 870, 271 P.3d 204 (2012); State v. Riofta, 166 Wash. 2d 358,
370, 209 P.3d 467(2009). A court abuses its discretion if its decision rests on facts
unsupported in the record or was reached by applying the wrong legal standard.
Gentry, 183 Wash. 2d at 764; Crumpton, 181 Wash. 2d at 257.
Cook claims DNA testing would refute the testimony of N.R. and create a
reasonable inference that he is innocent of indecent liberties by forcible compulsion.
Under RCW 10.73.170(3), the court can grant a motion requesting DNA testing
only if the "convicted person has shown the likelihood that the DNA evidence would
demonstrate innocence on a more probable than not basis." In determining whether the
evidence would prove his innocence,"'a court should presume DNA evidence would be
favorable to the convicted individual.'" Gentry, 183 Wash. 2d at 765 (quoting Crumpton,
181 Wash. 2d at 255). When determining whether a favorable result would likely
demonstrate innocence, the court must consider all the evidence presented at trial.
Gentry, 183 Wash. 2d 766-69; Crumpton, 181 Wash. 2d at 262; Riofta, 166 Wash. 2d at 367-69.
Under RCW 9A.44.100(1)(a), a person is guilty of indecent liberties by forcible
compulsion "when he or she knowingly causes another person to have sexual contact
with him or her or another. . .[b]y forcible compulsion." RCW 9A.44.010(2) defines
"sexual contact" as "any touching of the sexual or other intimate parts of a person done
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for the purpose of gratifying sexual desire of either party or a third party." The
distinguishing feature between the crimes of indecent liberties and rape is the element
of penetration. State v. Cain, 28 Wash. App. 462, 465,624 P.2d 732(1981). Penetration
is not an element of indecent liberties. RCW 9A.44.100,.010(1),(2).
Assuming a favorable DNA test result and considering all the evidence
presented at trial, the record supports the court's conclusion that Cook is not innocent
on a more probable than not basis of indecent liberties by forcible compulsion.
The evidence established Cook admitted he touched N.R.'s vagina. Detective
Arnett testified that Cook admitted he touched N.R.'s vagina.
He told me that while he was rubbing the inside of — rubbing her legs,
that he went up inside of her thigh, that his fingers touched the outside of
her vagina, and that he knew that he had touched her vagina because he
saw his hand touch her vagina, and that[N.R.] visually flinched when he
did that.
The court did not abuse its discretion in concluding a favorable DNA test result
would not demonstrate Cook was innocent of indecent liberties by forcible compulsion
on a more probable than not basis.
Statement of Additional Grounds
Cook raises a number of challenges to his 2014 conviction in his statement of
additional grounds. All of the issues Cook raises are issues he raised or could have
raised in his first appeal. A defendant may not raise issues in a second appeal that
were or could have been raised in an initial appeal. State v. Sauve, 100 Wash. 2d 84, 87,
666 P.2d 894 (1983); State v. Fort, 190 Wash. App. 202, 233, 360 P.3d 820 (2015); State
v. Mandanas, 163 Wash. App. 712, 716, 262 P.3d 522(2011). This rule applies even to
issues of constitutional magnitude. Sauve, 100 Wash. 2d at 87; Fort, 190 Wash. App. at 233-
34; Mandanas, 163 Wash. App. at 717. The proper method to raise new issues not
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No. 74872-6-1/6
addressed in a first appeal is through a personal restraint petition. Sauve, 100 Wash. 2d at
87; Fort, 190 Wash. App. at 234; Mandanas, 163 Wash. App. at 717.
Appellate Costs
Cook asks us to deny appellate costs. Appellate costs are generally awarded to
the substantially prevailing party on review. RAP 14.2. However, when a trial court
makes a finding of indigency, that finding remains throughout review "unless the
commissioner or clerk determines by a preponderance of the evidence that the
offender's financial circumstances have significantly improved since the last
determination of indigency." RAP 14.2. Cook was found indigent by the trial court.
Under RAP 14.2, if the State has evidence indicating that Cook's financial
circumstances have significantly improved since the trial court's finding, it may file a
motion for costs with the commissioner. State v. St. Clare, 198 Wash. App. 371, 382, 393
P.3d 836(2017).
We affirm.
WE CONCUR:
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