Rape Convictions Reversed—Prosecutor’s Factual Basis for Charges was Insufficient to Convict

The California Court of Appeals has held that, based on the case theory that the prosecution chose to argue during trial, there was insufficient evidence to support Darnell James Brown’s convictions for rape in concert and forcible rape.

Jane Doe was 15 years old. She claimed to have been gang raped after a friend, T.S., forced her to drink large amounts of alcohol. At trial, she and T.S. gave several different versions of what happened.

The evidence demonstrated that there were two separate instances where Doe may have been raped. The first was in a bedroom at T.S.’s apartment, where Doe remembered three men were present. The second was at a vacant apartment, where she woke up later in the night. She testified that she did not remember going to the vacant apartment.

Both Doe and T.S. testified that that they did not recognize defendant Brown, but Brown’s DNA was found in Doe’s vagina and rectum. Brown claimed that he was present that night but that when he arrived at T.S.’s house, he found everyone drinking and dancing, and then he had consensual sex with Doe.

The jury found Brown guilty of rape in concert of a minor 14 years of age or older, forcible rape, rape of an intoxicated person, and rape of an unconscious person. Brown appealed and argued that there was insufficient evidence to support the convictions.

The California Court of Appeals reviews convictions in such an appeal to see if substantial credible evidence of solid value was presented at trial. The question is whether a jury could reasonably have found the defendant guilty beyond a reasonable doubt.

At trial, the prosecutor argued to the jury that Brown arrived on the evening in question after the rapes in T.S.’s bedroom were complete, and that Brown brought Doe to the vacant apartment and raped her there.

A prosecutor’s argument is never evidence, and usually a jury may come to a verdict based on any evidence presented to it. However, there is an exception when the constitutional right to a unanimous jury verdict is at issue.

This right to a unanimous verdict is at issue when the prosecution charges the defendant with one criminal act but the evidence shows that the defendant may have committed more than one criminal act. Like Washington State law, California law has procedures to ensure that a jury does not convict a defendant unless all jurors agree the defendant committed one particular criminal act.

In both Washington and California, either the prosecution must choose which criminal act to rely on to convict the defendant, or the court must instruct the jury that it must unanimously agree on which crime the defendant committed. Washington State’s rule was established in the case of State of Washington v. Petrich, 101 Wn.2d 566 (1984).

Thus, when the prosecution in either Washington or California chooses a theory of the case—a reading of the evidence under which the defendant committed a particular criminal act—the court need not instruct the jury that it must decide unanimously what crime the defendant committed. If the jury convicts, the appellate court then must decide whether there was enough evidence at trial to support a conviction for that criminal act.

In Brown’s case, the court of appeals found that some jurors could have convicted him based on the rape in T.S.’s bedroom, and some jurors could have convicted him based on the rape (if any) in the vacant apartment. But the court of appeals only considered the evidence of a rape in the vacant apartment. It concluded there was insufficient evidence of forcible rape or rape in concert there, so it reversed those two convictions.