                                                                           FILED 

                                                                        SEPT 25,2014 

                                                                In tbe Office of the Clerk of Court 

                                                              WA . tatc Court of Appeals. Division 111 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )         No. 32290-4-III
                      Respondent,            )
                                             )
       v.                                    )
                                             )
PATRICK 1. McALLISTER,                       )         UNPUBLISHED OPINION
                                             )
                      Appellant.             )

       KORSMO, 1. -    Patrick McAllister appeals his 31 convictions for rape and assault

of his fiancee, a young woman whom he courted and brought to Washington from the

Philippines. We reverse one count of rape due to insufficient evidence, and affirm the

remaining counts after concluding that any errors in the prosecutor's closing argument

did not amount to prejudicial misconduct.

                                         FACTS

       Mr. McAllister was friends with Temur Perkins, a fellow resident of Jefferson

County. Mr. Perkins was married to Rosemarie, a native of the Philippines. The

Perkins's had met and married in that country before moving to Port Townsend where

their children were born. Rosemarie Perkins introduced Mr. McAllister to her younger

sister, S.L., over the telephone.
No. 32290-4-III
State v. McAllister

       Mr. McAllister and S.L. began a telephone relationship with him calling her

regularly over the next six to eight months. He then went to the Philippines to meet her

and her family. She accepted his marriage proposal and moved to Manila from her

village in Leyte in order to facilitate obtaining a visa to enter the United States.

       She received a K-I fiancee visa, which required her to marry within 90-days of

entering the United States. She arrived in this country in the spring of 20 1O. At that

point she was approximately 21 years of age and Mr. McAllister was approximately 47.

The two took up residence at Mr. McAllister's home in rural Jefferson County.

       Accounts of what transpired after that vary dramatically. Due to her religious

upbringing, S.L. did not believe in pre-marital intercourse and refused Mr. McAllister's

sexual advances. She described a litany of sexual abuse occurring over a 37-day period

that included forcible and non-consensual intercourse of various varieties and numerous

instances of assault, some of which occurred after sexual encounters and some that were

unrelated. In contrast, Mr. McAllister testified that the couple was happy and had

engaged in voluntary sexual intercourse on several occasions. He denied being

physically able to kick S.L. as she had alleged occurred several times.

       The defense theory at trial was that S.L. made up the story of abuse in order to

stay in the country under a U visa. An attorney, Elizabeth Li, testified as an expert for

the defense concerning how a person coming to this country on a K-I fiancee visa could

stay in the country under a U visa in order to assist in a prosecution of an abuser. Ms. Li


                                              2

No. 32290-4-111
State v. McAllister

testified that many who remain in the country under a U visa subsequently are able to

obtain permanent residency status, although there is a quota on the number of people who

can do so. She testified that the majority of her practice was in business immigration, but

that 40 percent involved "family cases. So that's just immigration that's related to having

a family member in the United States." Report of Proceedings (RP) at 476.

       The case was argued by the parties on the basis of credibility. The prosecutor

emphasized that Mr. McAllister was a controlling person who never left S.L. alone with

others and used "medicine" to perpetrate the sexual abuse. In contrast, the defense

presented photographic evidence that suggested the pair were a happy couple who visited

others and that S.L. made up the abuse allegations in order to gain permanent residency

status and live near her sister. Defense counsel argued that the only option for S.L. to

stay in the United States was to claim to be the victim of a crime. RP at 676.

       In rebuttal, the prosecutor took issue with the immigration motivation argument.

He argued that she did not need a U visa to seek residency due to her sister:

      [Prosecutor]: And I'll, and then they, they talk about her incentive to lie.
      Well, she has an incentive to lie because she wants to stay here. This is all
      part of her, her very, very clever plan to get here and stay. Well, you know,
      that's okay except there's a little problem with that. Her sister is a United
      States citizen. She came from the Philippines. . .. Her sister could sponsor
      her, you know? Ms. Li didn't tell you that, you know? So that's another
      one.
      [Defense Attorney]: Objection, Your Honor. This is outside of anything in
      evidence in this case and it's untrue.
      [Prosecutor] : Well, because . . .
      COURT: Ladies and gentlemen of the jury, I'll remind you, the attorney's
      remarks, statements and arguments are not evidence.

                                             3

No. 32290-4-111
State v. McAllister

       [Prosecutor]: Well, I'll say (inaudible). We'll get to that part where they're
       talking about Ms. Li. How Ms. Li on the stand told you all the ways she
       could legally stay in this country. But she didn't tell you about the other
       way.

       But she didn't tell us about how many people do come to this country
       through normal channels. They apply for entry into the United States.
       They're sponsored by family members. People who are other citizens. She
       didn't tell us that. She said, you know, the question to her was, you know,
       how do they come here and what are their options?

RP at 687-88,694.

       The Prosecutor also went on to indicate that S.L. did not have to cooperate in the

prosecution and could still maintain on the U visa:

      [Prosecutor:] And Li even said, Ms. Li even said, that [S.L.] doesn't need to
      stay to get a conviction in order for her to stay here on this new visa. So,
      you know, she could refuse to cooperate. She could refuse to testify. She
      could say, you know, 1just can't do this. Please don't make me testify.
      Please don't make me do this. 1 don't want to get up in front of a room full
      of strangers and tell them this stuff. 1just can't do it. And that happens all
      the time in courtrooms around this country.

RP at 697.

       The prosecutor also addressed Mr. McAllister's testimony that he had a bad ankle

and knee by arguing that there was no medical corroboration:

      [Prosecutor:] But let's talk about those medical records. Oh, wait, there
      are no medical records. Wouldn't you expect there to be medical records?
      Who controls the medical records? 1 don't control the medical records. No
      testimony from the defendant as to what he was operated on [sic]. He told
      you, "I've had a knee replacement." Did he tell you the date? Was it last
      year? Was it six months ago? Was it six years ago? He didn't tell you
      that. Who controls that information? Not me.




                                             4

No. 32290-4-II1
State v. McAllister

              No doctor to come testify about his mobility. Oh, yes. I was the
       doctor treating Mr. McAllister back in 2010 and I'm here to testify and tell
       you as his doctor ....

       When [defense counsel] is asking Mr. McAllister on the stand, on the
       direct, I mean he is his witness. And they're talking about this injury. I
       don't recall any questions from [defense counsel], when did you have this
       operation?

RP at 689-90.

       The defense objected to the argument as "burden shifting." RP at 690. The court

again cautioned the jury about attorney remarks. [d. After the jury had retired to

deliberate, the trial judge told defense counsel that he did not consider the argument to be

burden shifting because the prosecutor was not talking about "something they have to

prove." RP at 700.

       The court permitted 31 of the 40 counts to go to the jury. The jury returned guilty

verdicts on all 31 counts, found that each charge involved domestic violence, and also found

that the rapes were committed with the aggravating factor of deliberate cruelty. In total, the

jury found Mr. McAllister guilty of 13 counts of rape in the second degree, 10 counts of

rape in the third degree, and 8 counts of assault in the fourth degree.

       The trial court imposed a minimum sentence of 250 months on the second degree

rape counts, concurrent standard range terms of 60 months on the third degree rape counts,

and concurrent one year terms on the assault counts. Mr. McAllister then timely appealed.




                                              5

No. 32290-4-III
State v. McAllister

                                        ANALYSIS

       Mr. McAllister argues on several grounds that the prosecutor committed

misconduct and that his counsel performed ineffectively. He also argues that his right to

present a defense was impaired, the evidence was insufficient to support the second

degree rape allegation in count 18, and that third degree rape cannot constitute a crime of

domestic violence. We will address those arguments in the stated order.)

       Prosecutorial Misconduct

       Mr. McAllister strenuously argues that the prosecutor committed misconduct,

largely in his rebuttal argument, that deprived him of a fair trial. In particular, he alleges

that the prosecutor argued facts not in evidence, improperly shifted the burden to the

defense, and made references to the jury's personal experiences, with the cumulative

effect of these actions requiring a new trial. While there may have been some error, it did

not prejudice the defense.

       Well understood standards govern our review of this claim. The general rule is

that a prosecutor can properly draw reasonable inferences from the evidence admitted at

trial and argue those inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95,

804 P.2d 577 (1991); State v. Hale, 26 Wn. App. 211, 216, 611 P.2d 1370 (1980),


        ) Mr. McAllister personally filed two Statements of Additional Grounds. The
arguments largely address the prosecutorial misconduct and ineffective assistance claims
that are adequately addressed by counsel. See RAP 10.10(a). The other allegations of
court error are not sufficiently argued to explain the claim of error and alleged prejudice.
RAP 10.10(c). We accordingly will not further address them.

                                              6

No. 32290-4-111
State v. McAllister

review denied, 95 Wn.2d 1030 (1981). The prosecutor can also argue that the evidence

does not support the defendant's theory of the case. State v. Russell, 125 Wn.2d 24, 87,

882 P .2d 747 (1994). "Mere appeals to jury passion and prejudice, as well as prejudicial .

allusions to matters outside the evidence, are inappropriate." State v. Belgarde,

110 Wn.2d 504, 507, 755 P.2d 174 (1988). However, the defendant must object to the

prosecutor's allegedly improper argument to preserve a claim of error unless the

argument was so "flagrant and ill intentioned that no curative instructions could have

obviated the prejudice." Id. When improper argument is alleged, the defense bears the

burden of establishing the impropriety of the prosecuting attorney's comments as well as

their prejudicial effect. Hoffman, 116 Wn.2d at 93.

       In determining whether prosecutorial comments have denied the defendant a fair

trial, a reviewing court must decide whether the comments are improper and, if so, whether

there is a substantial likelihood that the comments affected the verdict. State v. Reed,

102 Wn.2d 140, 145,684 P.2d 699 (1984). "Allegedly improper arguments should be

reviewed in the context of the total argument, the issues in the case, the evidence addressed

in the argument, and the instructions given." State v. Graham, 59 Wn. App. 418,428,

798 P.2d 314 (1990). A failure to object to an improper remark constitutes a waiver

unless the comment is flagrant and ill-intentioned and the resulting prejudice so enduring

that jury admonitions could not neutralize its effect. State v. Charlton, 90 Wn.2d 657,

661,585 P.2d 142 (1978).


                                             7

No. 32290-4-111
State v. McAllister

       It also is inappropriate for a prosecutor to suggest that the defendant bears any

burden of proof. State v. Fiallo-Lopez, 78 Wn. App. 717, 728-29,899 P.2d 1294 (1995).

However, once a defendant presents evidence, a prosecutor can fairly comment on what

was not produced. State v. Barrow, 60 Wn. App. 869, 871-73, 809 P.2d 209, review

denied, 118 Wn.2d 1007 (1991); State v. Contreras, 57 Wn. App. 471, 788 P.2d 1114,

review denied, 115 Wn.2d 10 14 (1990).

       With these principles in mind, we tum to Mr. McAllister's arguments. He

contends that the prosecutor's argument about S.L. having her sister sponsor her was not

supported by the record, while the prosecutor argues that it was a reasonable inference

from the testimony of Ms. Li who had testified that 40 percent of her work was helping

family members lawfully enter the country.2 While it may have been a reasonable

inference from Li' s testimony that there were other processes that might have been

available for S.L. to gain residency in the United States, there was no testimony that her

sister could sponsor her or otherwise help her lawfully remain in the country. Thus, there

was no factual support in the record for the argument that her sister was a basis for S.L.

remaining in the country.

       The error, however, was not prejudicial. Immediately upon hearing the objection,

the trial court reminded the jury that an attorney's argument is not evidence. The prosecutor


       2 It appears that the parties argue the word "stay" from two different perspectives­
the defense using the word to mean "remain" in the country while the prosecution used it to
mean "immigrate" and obtain permanent residency status.

                                             8

No. 32290-4-111
State v. McAllister

did not dwell on the point, but moved on to the next stage of his argument. Furthermore,

the prosecutor's statement told the jury that there was no factual basis for his argument

when he told the jurors that "Ms. Li didn't tell you that." RP at 687. The trial court's

reminder to the jury-an instruction that we have to assume the jury followed-in

conjunction with the admission that there was no factual basis adequately addressed the

error. In the context of the prosecutor's lengthy argument, this error was harmless.

       Mr. McAllister also contends that the prosecutor argued outside the record of the case

when he generalized about domestic violence situations where the abuser uses mental and

physical abuse to "control them by fear and intimidation." RP at 648. He argues that there

was no expert witness testimony to explain the process for jurors. We need not decide

whether the overall effects of the domestic violence control process are commonly

understood3 so that they need not be the subject of expert testimony since there was no

objection to the prosecutor's statement. Even if beyond the record of the testimony, there

was nothing so "flagrant and ill intentioned" that it created irremediable harm. Russell,

125 Wn.2d at 86. The challenged statement does not directly speak to evidence outside the

record and we believe that a timely objection would have clarified the point. Having failed




      3  Expert testimony usually is only needed to explain "counter-intuitive" behavior
by an alleged victim. E.g., State v. Ciskie, 110 Wn.2d 263, 274,751 P.2d 1165 (1988)
("battered woman syndrome" testimony permitted to explain why victim would stay with
accused abuser).

                                             9

No. 32290-4-111
State v. McAllister

to do so below, Mr. McAllister's bald argument that this statement was "flagrant and ill

intentioned" is insufficient to carry his burden in this proceeding.

       Mr. McAllister also contends that the prosecutor argued outside the record when

he stated that S.L. "could refuse to cooperate. She could refuse to testify." RP at 697.

This challenge fails for several reasons. First, the essence of the defense argument is

that S.L. was required to continue cooperating once she received her U visa. However,

Ms. Li never testified to the factual basis for that argument. Ms. Li testified that S.L.

needed to cooperate to obtain a U visa and that once obtained it was good for four years.

RP at 481-83. She did not testify that if S.L. stopped cooperating after obtaining the visa

that it was subject to immediate withdrawal resulting in S.L. having to leave the country.

In re-direct and re-cross-examination, Ms. Li admitted that the visa remained good even

in cases where the prosecution did not proceed despite the cooperation of the victim.

RP at 499-500. Based on Ms. Li's testimony, the prosecutor was within the record when

he argued that S.L. had no continuing duty of cooperation once the visa issued.

       Second, as the prosecutor's remarks on the following page make clear, the

noted statements were argued as part of a general discussion of the credibility of the

witnesses who came forward rather than as a statement of the law governing the visas.

RP at 697-98. For instance, S.L. was able to withdraw from cooperating, but chose to

continue despite fear or embarrassment. As she would still be in the country for another

year or two on the U visa regardle~s of whether she continued to help or not, the


                                             10 

No. 32290-4-III
State v. McAllister

prosecutor urged the jury to find her credible. This was a proper argument given the

testimony and was not a statement of matters outside the record.

       Finally, defense counsel did not object to these arguments. Thus, they could only

be a basis for reliefifthey were ill intentioned and not subject to cure from objection.

That is not the case in this instance, either. To the extent that the defense thought the

prosecutor was outside the record, an objection would easily have cured the matter.

       None4 of the appellant's contentions that the prosecutor argued matters outside the

record have merit. These arguments do not present a basis for relief.

       Mr. McAllister also argues that the prosecutor committed misconduct by shifting

the burden to the defense when the prosecutor asked why the defense had not presented

medical records to support his testimony that his physical limitations precluded assaulting

S.L. in the manner she described. There was no error. As noted before, the prosecutor is

allowed to comment on the merits of the defendant's proof once the defense undertakes to

prove a claim. In Barrow, for instance, the defendant contended that the pipe containing

drug residue in his possession was one that he had borrowed from his brother without


        4 Appellant also argues that the prosecutor erred by challenging the defendant's
testimony that he took S.L. to an "immigration doctor" for tuberculosis testing by
claiming "that's probably taken care of at the U.S. Embassy before they even granted her
a K visa." RP at 694. Other than being an ineffectual argument (even if tested overseas,
an immigrant can be tested again after arrival to confirm that no diseases have been
acquired in the interim) that was also contrary to the testimony of S.L., the challenged
argument is not a statement of fact. The prosecutor did not say that S.L. had been tested
in the Philippines or that she had not been tested in the United States. A bad argument is
not necessarily an improper assertion of fact.

                                             11 

No. 32290-4-111
State v. McAllister

realizing it had drugs in it. 60 Wn. App. at 870-71. It was proper for the prosecutor to

argue in rebuttal "where is his brother?" and emphasize the failure of the defense to call

the brother as a witness. Id. at 871. In Contreras, the defense had personally provided his

alibi explaining who he was with during the crime at issue. 57 Wn. App. at 472-73. The

prosecutor cross-examined the defendant about not calling as witnesses the people he

claimed to be with, and then argued that point in closing. Id. at 473. This court agreed

that the prosecutor could properly make the argument. Id. at 476.

       In light ofthese authorities, we agree with the trial court that the prosecutor did

not attempt to shift the burden of proof to the defense when he asked in closing argument

why there was no medical corroboration for Mr. McAllister's contention that he was too

physically limited to have assaulted S.L. This was an appropriate argument.

       Mr. McAllister also argues that the prosecutor shifted the burden when it asked why

the defense did not present letters written by S.L., and apparently left at the defendant's

home, after defense counsel had cross-examined S.L. at some length about information

written in one of those letters. Unlike the previous challenge, the defense did not object to

the prosecutor's statement. As with the previous example, it was fair game for the

prosecutor to ask why S.L. was being examined about only one of the letters when she

testified that there were many others in the possession of the defense. The failure to object

to this statement also precludes any complaint about it now since it does not amount to

flagrant and ill intentioned misconduct.



                                             12 

No. 32290-4-III
State v. McAllister

       Both of Mr. McAllister's claims that the prosecutor shifted the burden are without

merit. He also contends that the prosecutor's comments on the dynamics of domestic

violence, discussed previously as an argument based on facts outside of the record, also

amounts to the prosecutor erroneously appealing to the jurors' personal experience. As

noted previously, there was no objection to the statement. Having previously decided

that this statement was not so clearly misconduct as to excuse the need to object, we need

say little more than to note that changing the label does not convert the statement to a

flagrant and ill intentioned one. If there was a perception that the prosecutor erred in

making the statement, the time to complain was when the trial court easily could have

countered the problem. Veteran trial counsel apparently did not see it as a problem of

consequence to the case, and neither do we.

       Mr. McAllister has not established that the prosecutor committed misconduct in

closing argument, let alone that he was harmed by the alleged misconduct. Accordingly,

his claims are without merit.

       Ineffective Assistance a/Trial Counsel

       Mr. McAllister next argues, also on several theories, that his counsel failed to

provide effective assistance at trial. He once again fails to meet his burden in these

arguments.

       Again, well settled standards govern our review of this claim. The Sixth

Amendment right to counsel requires more than the mere presence of an attorney. The


                                              13 

No. 32290-4-II1
State v. McAllister

attorney must perform to the standards of the profession and failure to live up to those

standards will require a new trial when the client has been prejudiced by counsel's failure.

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

ineffectiveness claims, courts must be highly deferential to counsel's decisions. A

strategic or tactical decision is not a basis for finding error. Strickland v. Washington,

466 U.S. 668, 689-91,104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). To prevail on a claim of

ineffective assistance, the defendant must show both that his counsel erred and that the

error was so significant, in light of the entire trial record, that it deprived him of a fair

trial. Id at 690-92. When a claim can be disposed of on one ground, a reviewing court

need not consider both Strickland prongs. Id. at 697; State v. Foster, 140 Wn. App. 266,

273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).

       Mr. McAllister argues that his counsel provided ineffective assistance by failing to

object to prosecutorial misconduct, failing to offer medical records to corroborate his

testimony, failing to make an offer of proof, and failing to object to some evidence. We

will address, in some cases summarily, the claims in the noted order.

       The claim of counsel error in failing to challenge some parts of the prosecutor's

argument is one claim that can be addressed summarily. Having found that Mr.

McAllister did not establish error by the prosecutor, there is no basis for concluding that

counsel's failure to object was error or that Mr. McAllister was prejudiced by his

attorney's action.


                                               14 

No. 32290-4-III
State v. McAllister

       Similarly, there is no basis for believing counsel erred in failing to corroborate his

client's testimony concerning his alleged physical deficiencies. There is nothing in the

record5 indicating that there is any medical evidence that would corroborate Mr. McAllister's

testimony. There also is nothing suggesting that counsel even knew such evidence existed at

the time of trial. 6 On this record there is no showing that counsel erred.

       A third alleged deficiency involves a failure of counsel to persuade the court to

admit impeachment evidence. Although we discuss the merits of this issue separately in

the next section of our analysis, we do note that counsel attempted to admit evidence that·

defense witness Geraldo Sabiniano had been threatened in the Philippines, supposedly by

family members of S.L., for agreeing to testifY on behalf of Mr. McAllister. The court




       5 If Mr. McAllister is to present such a claim, he will have to proceed by way of a
personal restraint petition in which he can make a record of his evidence and his counsel's
knowledge of that information before trial. See, e.g., State v. Norman, 61 Wn. App. 16,
27-28,808 P.2d 1159 (1991).
       6 After trial, defense counsel received Mr. McAllister's medical records from the
counsel representing him in his worker's compensation actions with the Department of
Labor and Industries. Although the records show that Mr. McAllister before and after the
charging period had difficulties with his right knee and ankle, causing severe pain,
nothing in the record expressly states that he was unable to kick another person. The
records also include mention of a surveillance tape in which Mr. McAllister was seen to
limp only when in the presence of others, but to walk normally otherwise. One report
also references a prior diagnosis of malingering. Defense counsel did not use these
records in support of the motion for a new trial, but instead presented them as part of the
sentencing memorandum.

                                             15 

No. 32290-4-III
State v. McAllister

rejected the evidence on relevance grounds. RP at 452-53. Defense counsel later

submitted the information as part of the defense motion for a new trial.1

       We know of no theory by which the attorney is a guarantor of the court reaching a

party's desired outcome. Counsel attempted to admit the evidence. The trial court was

not persuaded. The propriety of that decision is subject to review on its merits. Counsel's

presentation of the issue to the court could only constitute ineffective assistance if the

defendant could establish that the trial court would have ruled differently but for counsel's

argument. With discretionary rulings (such as most evidentiary issues), it would be

extremely unlikely that a defendant could meet this standard.

       We need not opine on that possibility in this case, however, as the trial court did

consider and reject the evidence in the new trial motion. Even if counsel could have

made a better offer of proof at trial, he did make an offer of proof in the motion for a new

trial. The trial judge continued to be unimpressed. There simply is no reason to believe

that the court would have ruled differently if it had faced the same offer of proof initially

at trial. Accordingly, the ineffective assistance claim fails due to the failure to establish

that counsel erred.

       The final claim of ineffective assistance involves four instances in which defense

counsel allegedly should have raised objections to testimony. Before addressing the

specific evidentiary questions, we note that as a general principle the decision whether or


       7   Appellant has not assigned error to the trial court's denial of the new trial motion.

                                               16 

No. 32290-4-III
State v. McAllister

not to object to evidence is a classic example of trial tactics, an area that Strickland

indicates 8 is not a basis for finding counsel performed ineffectively. E.g., State v. Madison,

53 Wn. App. 754, 763, 770 P.2d 662 (1989) ("The decision of when or whether to object is

a classic example oftrial tactics."). A reviewing court presumes that a "failure to object

was the product of legitimate trial strategy or tactics, and the onus is on the defendant to

rebut this presumption." State v. Johnston, 143 Wn. App. 1,20, 177 P.3d 1127 (2007)

(citing cases). Mr. McAllister has not satisfied his obligation to establish that the failures

to object were not trial tactics.

       The complaints he makes also do not establish any error by counsel, let alone that the

errors substantially prejudiced the defense. His initial challenge is an argument that counsel

should have objected to a detective's testimony when she stated that Temur Perkins told her

that his wife reported that S.L. stated Mr. McAllister had repeatedly raped her. If offered to

prove that Mr. McAllister had raped S.L., this statement constituted multiple levels

of hearsay. In context, however, the statement was not offered to prove the truth of

the statement and, thus, did not constitute hearsay. ER 801(c); State v. Edwards,

131 Wn. App. 611, 613-14,128 P.3d 631 (2006) (statement offered to prove effect on

listener was not offered to prove truth of statement). Here, the statement in question was

related to the detective to show why she began to investigate a rape case instead of provide

the civil "standby" assistance to S.L. for which she had been dispatched. It was quite



       8   Strickland, 466 U.S. at 689-91. 


                                               17 

No. 32290-4-III
State v. McAllister

understandable why defense counsel did not object. In context, this was not a hearsay

statement.

       Mr. McAllister next contends that his counsel should have objected when S.L.

testified that Rosemarie Perkins stated S.L.'s vagina did not appear normal. In context,

the evidence was not used as a diagnosis by Ms. Perkins, but simply an explanation why,

after this statement by her sister, S.L. was taken to the hospital for a medical

examination. Even if offered for the purpose of proving that the vagina was not normal,

however, it appears that the statement was admissible as Ms. Perkins's present sense

impression. ER 803(a)(l). For both reasons-the statement was not offered for the truth

of the assertion and, even ifit was, an exception applied-counsel understandably would

not object. 9

       Mr. McAllister next argues that counsel should have objected when Nurse Jolene

Culbertson identified her position as a sexual assault nurse practitioner. The

identification occurred after the court had denied a defense motion in limine that would

have prevented her from describing her position. RP at 39. Having already preserved

any error claim, we do not see why counsel needed to object to the testimony, and the

failure to object also could not have harmed Mr. McAllister in the least. His issue, ifhe




       9  There also was a tactical reason to not object. The parties had agreed not to
raise the topic of sexually transmitted diseases before the jury and understandably
defense counsel would not want to highlight the matter by objecting. RP at 36-37.

                                             18 

No. 32290-4-111
State v. McAllister

wanted to pursue it, involved the court's rejection of his motion in limine rather than his

counsel's failure to object after losing the motion. 10

       The final claim II is that counsel should have objected when Temur Perkins used

references to "Dove House" after he was precluded from mentioning that name during his

testimony.12 RP at 245. The parties had agreed to an order in limine precluding reference

to the fact that S.L. was receiving domestic violence services from Dove House. RP at

39-40. However, the topic twice came up when the defense was cross-examining Perkins

concerning who had aided S.L. and where he had seen her after she left Mr. McAllister.

Once again, we believe that counsel understandably would not want to highlight the fact

that S.L. was receiving services from domestic violence organizations after separating

from his client. Although he did not technically violate the motion in limine by referring

to Dove House by another name, Mr. Perkins's chosen sobriquets did not show him in a

good light to the jury and counsel also might have decided that there was no harm to the



         10 We also doubt that Mr. McAllister could possibly overcome the presumption of
trial tactics in this circumstance. Having failed to exclude the topic in limine, counsel
again reasonably could decide not to highlight the nurse's position by objecting in front
of the jury.
       II  Mr. McAllister also contends that the cumulative effect of counsel's errors
indicate that he provided ineffective assistance. Since there were not multiple errors by
counsel, we will not address this argument other than to note it is redundant. The
Strickland standards already require that counsel's actions be evaluated as a whole, so
there is no need to consider once again the cumulative effect of counsel's actions. 466
U.S. at 690-92.
      12 Perkins referred to Dove House as "the unsayable word" and "the unmentionable
name." RP at 245,249.

                                              19
No. 32290-4-III
State v. McAllister

defense from Perkins essentially expressing frustration with the court's ruling. Counsel

did not fail his client by not objecting to these trivial statements by Mr. Perkins.

            Mr. McAllister has not overcome the presumption that his counsel was engaging

in tactics by failing to object in these noted instances. He likewise has not shown that

counsel erred in any manner or that he suffered harm from counsel's alleged failings. For

all of these reasons, he has not established that his counsel provided ineffective assistance

at trial.

        Evidentiary Rulings

            Mr. McAllister also takes issue with some rulings by the trial court that we group

under the heading of evidentiary rulings. He again fails to establish any error by the trial

court, let alone prejudicial error entitling him to a new trial.

        A trial court had great discretion in the admission or exclusion of evidence.

Diaz v. State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rei. Carroll v. Junker,

79 Wn.2d 12,26,482 P.2d 775 (1971). An erroneous application of the law is an abuse

of discretion. Diaz, 175 Wn.2d at 462.

        Mr. McAllister first argues that the trial court erred in permitting Rosemary

Perkins to state that she had told S.L. that she could go or stay, but that she would not be

happy in the United States in light of what happened. The trial court overruled a defense.

hearsay objection. There was no error. We do not see this statement as being offered to


                                                20 

No. 32290-4-111
State v. McAllister

prove the truth of the assertion-S.L. would not be happy-but as simply an indication of

the advice given by a big sister to a little sister. It was marginally relevant given the

motive theory being presented by the defense, but we cannot say that the trial judge

abused his discretion in rejecting a hearsay objection. Id.

       Mr. McAllister also argues that the court did abuse its discretion by overruling his

objection to Temur Perkins's statement that he had seen Mr. McAllister walking normally

at the "initial restraining order hearing here at the courthouse." RP at 581. The defense

claimed this violated an order in limine. It is very questionable whether or not the court

even entered an order addressing the topic. The defense motion referencing prior hearings

was one of four items grouped under the heading of "404(b) evidence." Clerk's Papers

(CP) at 37. When addressed by the court and parties, the sole focus was on the first two

aspects of the motion-prior allegations of rape and sexual misconduct by Mr. McAllister

and his prior convictions. RP at 31. The judge asked the prosecutor, who assured the

court that the prior conviction was for fourth degree assault with sexual motivation and

that he would not be offering the conviction unless the defendant somehow opened the

topic up. The court responded, "that's granted." Id.

       The defense motion had been rather detailed, with several subparts addressing the

protection order hearing question. CP at 37. Since the trial court did not address any of

the aspects of that request, nor of the request that there be no mention concerning any

pending investigations of Mr. McAllister, it is difficult to say that the court granted any



                                             21 

No. 32290-4-111
State v. McAllister

relief, let alone the nuanced requests made by the defense. Accordingly, we cannot say

that the testimony violated any order in limine.

       Even if the court had intended to preclude mention of a protection order hearing,

there was no harm from the statement. In context, Mr. Perkins was simply detailing the

occasions when he had seen Mr. McAllister walking without apparent difficulty during

the relevant time periods. The reference to a "protection order hearing" did not state who

had sought any protection order or that the court had granted any party some relief.

There simply was no significant prejudice from the statement. Accordingly, the trial

court did not err.

       The final "evidentiary" topic is one addressed previously concerning Mr.

Sabiniano. 13 The court excluded on relevance grounds proposed testimony that relatives

ofS.L. had told Sabiniano not to testify, ostensibly at the direction ofS.L., although there

was no effort to tie the alleged threat to S.L. until the motion for a new trial. Evidence is

relevant if it has "any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable." ER 401. Whether or not

Sabiniano was unsuccessfully threatened before he testified at trial appears to have no




       13 McAllister also argues (p. 43) that he was denied his right to "confront" S.L.
when the court denied his proffered exhibit of a web page explaining how to seek a U
visa during Ms. Li's testimony. We do not understand how offering an exhibit during the
defense case "confronts" a witness who testified previously and was already asked about
the visa process. The evidence was cumulative to the testimony of Ms. Li and
understandably excluded by the court. ER 403. It does not present a confrontation claim.

                                             22 

No. 32290-4-111
State v. McAllister

relevance to the determination of whether or not Mr. McAllister raped his fiancee. The

trial court had a tenable basis for excluding this evidence.

       In some circumstances the constitution requires that state evidentiary rules give

way to the constitutional right to present a defense. E.g., State v. Jones, 168 Wn.2d 713,

719-21,230 P.3d 576 (2010). There is, however, no constitutional right to present

irrelevant evidence. Id. at 720. If a court excludes relevant evidence to the point where it

effectively prevents presentation of the defense, the constitutional right is violated. Id. at

721. Mr. McAllister argues that this is one of those occasions because he was denied the

opportunity to attack S.Lo's credibility. Br. of Appellant at 43-44.

       Washington long has excluded evidence that attempts to impeach a witness on

collateral matters. "It is a well recognized and firmly established rule in this jurisdiction,

and elsewhere, that a witness cannot be impeached upon matters collateral to the

principal issues being tried." State v. Oswalt, 62 Wn.2d 118, 120-21, 381 P.2d 617

(1963) (citing State v. Myers, 47 Wn.2d 840, 290 P.2d 253 (1955); State v. Fairfax,

42 Wn.2d 777, 258 P.2d 1212 (1953); State v. Gilmore, 42 Wn.2d 624,257 P.2d 215

(1953); State v. Putzell, 40 Wn.2d 174,242 P.2d 180 (1952); State v. Kritzer,

21 Wn.2d 710,152 P.2d 967 (1944); O'Neilv. Crampton, 18 Wn.2d 579,140 P.2d 308

(1943); Warren v. Hynes, 4 Wn.2d 128, 102 P.2d 691 (1940); State v. Johnson,

192 Wash. 467, 73 P.2d 1342 (1937); State v. Sandros, 186 Wash. 438, 58 P.2d 362

(1936); State v. Nolon, 129 Wash. 284, 224 P. 932 (1924); State v. Carroll,


                                             23
No. 32290-4-111
State v. McAllister

119 Wash. 623,206 P. 563 (1922); State v. Schuman, 89 Wash. 9,153 P. 1084 (1915);

State v. Stone, 66 Wash. 625, 120 P. 76 (1912); State v. Carpenter, 32 Wash. 254,

73 P. 357 (1903)).

       The defense did not ask S.L. about the alleged incident, so there was no basis for

attempting to impeach her by contradiction, something that the collateral matters

impeachment doctrine clearly would forbid. Instead, Mr. McAllister attempts to paint

this as simply further evidence that she was not credible, although he does not explain

how that is the case. On these facts, we doubt that he has adequately tied the alleged

threat to S.L. The fact that family members may have found him through her and

threatened him, if it occurred, does not mean that she requested or directed that action.

Regardless, any value this incident had for attacking S.L.'s credibility was quite minimal

and did not amount to a denial of the opportunity to present a defense. Mr. McAllister

introduced far more effective evidence of S.L.' s motivation, particularly her "boyfriend"

in the Philippines and her letter to him, than this incident provided. This incident added

little to the defense theory ofthe case and its exclusion simply did not impact the

outcome.

       The challenged rulings did not deprive the defendant of a fair trial.




                                             24 

No. 32290-4-111
State v. McAllister

       Count 18

       Mr. McAllister next argues that the evidence was insufficient to support the

conviction on count 18, a charge of rape in the second degree. We agree and reverse that

conviction.

       Evidence is sufficient to support a conviction if there is some evidence from which

a jury could find each element of the offense proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781,61 L. Ed. 2d 560 (1979);

State v. Green, 94 Wn.2d 216,221-22,616 P.2d 628 (1980). The evidence is viewed in

the light most favorable to the prosecution. Green, 94 Wn.2d at 221.

       As charged here, in order to convict the defendant of rape in the   ~econd   degree,

the State was required to prove that on April 3, 2010, Mr. McAllister engaged in sexual

intercourse with S.L. by forcible compulsion. RCW 9A.44.050(1)(a); CP at 6. Sexual

intercourse requires that the sex organs of one person penetrate the mouth or sex organs

of another. RCW 9A.44.010(1)(a), (c).

       There was no evidence of penetration on count 18. S.L. testified that Mr.

McAllister's "penis [was] strong" and that he "attacked" her. RP at 325. She did not

testify that the "attack" involved his penis penetrating any of the specified portions of her

body. The evidence did not permit the jury to find the element of penetration and, thus,

was insufficient to support the verdict.




                                             25 

No. 32290-4-III
State v. McAllister

       Count 18 is reversed and the trial court is directed to strike it from the judgment

and sentence. There is no need for re-sentencing as the count did not change the scoring

for the other 22 felony counts.

       Domestic Violence Aggravating Factor

       Finally, Mr. McAllister argues that the court erred in allowing the jury to consider

the domestic violence aggravating factor on the counts of third degree rape. This

challenge is moot and we need not address it.

       It appears that the jury was instructed to answer whether two aggravating factors

were present-that the rapes were committed with deliberate cruelty and constituted

domestic violence. RCW 9.94A.535(3)(a), (h). We use the word "appears" because the

jury instructions and verdict forms are not part of our record. The instructions as read to

the jury were transcribed, but the verdict forms were not. RP at 640. Based on the

briefing of the parties and the reading of the verdict forms, it appears, however, that the

jury was asked to discern the presence of these two aggravating factors.

       Mr. McAllister argues that the domestic violence aggravating factor is inapplicable

to the third degree rape counts because that offense is not listed as a domestic violence

crime in RCW 10.99.020, which provides a non-exclusive list of domestic violence

crimes. See RCW 10.99.020(5). Because first and second degree rape are expressly

included in the list of domestic violence offenses, Mr. McAllister argues that third degree

rape must be excluded despite the fact that the list eschews exclusivity.


                                             26
No. 32290-4-III
State v. McAllister

       Generally, this court must dismiss an issue on appeal if the question presented is

moot. State v. Enlow, 143 Wn. App. 463, 470, 178 P.3d 366 (2008). An appeal is moot

when an appellate court can provide no effective relief. In re Det.   0/ LaBelle,
107 Wn.2d 196,200, 728 P.2d l38 (1986); In re Matter a/Cross, 99 Wn.2d 373,376-77,

662 P.2d 828 (1983); In re Det. o/CM, 148 Wn. App. Ill, 115, 197 P.3d 1233, review

denied, 166 Wn.2d 1012 (2009). That is the situation we are in here.

       Even if we were to agree l4 with Mr. McAllister and strike the domestic violence

finding from the 10 counts of third degree rape, we could not provide him any relief

because the jury also found that the factor was present on the 12 remaining counts of

second degree rape, an offense expressly included in the list of domestic violence crimes.

The jury also found that all of the felony counts involved deliberate cruelty. Thus, in the

event that Mr. McAllister had to be sentenced again, the judge has more than ample

justification for imposing an exceptional sentence. Striking one aggravating factor from

some of the counts would not aid Mr. McAllister in the least.

      The challenge to the aggravating factors is moot.

      Affirmed in part and reversed in part.




        14 We note that Division Two has already rejected a similar argument in
State v. Lindahl, 114 Wn. App. 1,56 P.3d 589 (2002) (murder could constitute domestic
violence).

                                            27
No. 32290-4-111
State v. McAllister

       A majority of the panel has determined 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.




WE CONCUR: 





       Lawrence-Be ey, 1.




                                            28 

