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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                    No. 69005-1-1


                      Respondent,                       DIVISION ONE


              v.



LUIS ANDRE PEREZ,                                       UNPUBLISHED


                     Appellant.                         FILED: July 14. 2014




       Cox, J. — Luis Andre Perez appeals his judgment and sentence for one

count of assault in the second degree, two counts of rape in the second degree,

and one count of unlawful imprisonment. His custodial statements to police were

not involuntary and were admissible. The trial court properly exercised its

discretion in denying his mistrial motion following a trial irregularity. Likewise, it

properly denied his motion for a new trial following conviction. The evidentiary

rulings of the trial court do not warrant reversal. There was no cumulative error.

The charging document was constitutionally sufficient. And the State properly

concedes that the community custody term for count I, second degree assault, is

not authorized.

       In his statement of additional grounds, Perez claims errors based on jury

instructions, prosecutorial misconduct, ineffective assistance of counsel, and

sufficiency of the evidence. None warrant relief.
No. 69005-1-1/2


        We affirm except for the community custody term, which we vacate. We

remand for the trial court to amend or resentence on the community custody term

for count I, second degree assault.

        The events giving rise to the charges against Perez arose in January

2010.

        During this time, Perez lived in a house with Troy O'Dell, Candice

Sanders, and O'Dell and Sanders' two children. Christapher White, O'Dell's

cousin, and E.C., a woman who had known O'Dell for approximately 15 years,

also temporarily lived at the house.

        At trial, E.C. testified that in the two to three days prior to the incident, she

had been arguing with Sanders and was "fed up" with babysitting. She left the

house "to get a break." During this time she used crack cocaine and did not

sleep. When she returned to the house, another dispute arose between Sanders

and her. It turned physical when Sanders punched her in the face. E.C. said

that she tried to leave but Sanders, O'Dell, White, and Perez pulled her back into

the house. E.C. and Sanders continued to fight.

        White and Perez got involved and both punched E.C. in the face. She

sustained substantial physical injuries during the course of this assault. She bled

heavily, soaking her clothing and her blood pooled on the floor where the assault

occurred. She was not able to stand up, and she was dizzy. E.C. testified that

O'Dell threatened her, and she felt scared.

        Following this assault, White and Perez took her downstairs to clean her

up. She needed their assistance to walk because she was very unsteady.
No. 69005-1-1/3


      Once downstairs, they had E.C. disrobe without allowing her to do so

privately. They then threatened to kill her, saying they would not do so if she

allowed them to have sex with her. Despite her protests, they both raped her for

about 15 to 20 minutes.


       After White and Perez raped E.C, the evidence showed that the men

would not let her leave. This restraint went on for a period of a day or so. She

finally escaped.

       E.C. ran to a nearby house, and the neighbors gave her a ride to the

hospital. She was in pain. E.C. told the treating nurse that she was afraid she

would get hurt if she gave a lot of information. She told the attending emergency

room physician that she had been attacked, raped, and held hostage. E.C. was

reluctant to allow the physician to examine her, and she told him that she was

concerned that people who did this to her "would show up at the hospital and

execute her with handguns."

       E.C. had "fairly significant bruising" around her left eye, along her left jaw

and her right chin, and she had a cut above her left eye. Her CT scan revealed a

blowout fracture of the orbital bone on the left side of her face. She also had

scratches and bruising on her back and on her shin.

       E.C. was transferred to Harborview Medical Center for further evaluation

and for a sexual assault exam. A sexual assault nurse examiner performed an

exam. E.C. told the nurse that she had been anally raped.

       E.C. told a Harborview social worker that she was afraid that her

assailants would try to kill her for reporting the crime. She was reluctant to make
No. 69005-1-1/4


a police report, but she finally did so. A police officer took a recorded statement

from E.C.

       Based on E.C.'s report to authorities, police arrested Perez, White, O'Dell

and Sanders. Police questioned Perez on three occasions during the early

morning hours of January 23, 2010. After the first interview, police collected

Perez's clothing. While doing so, they found a bag of pills in his underwear.

Perez's second interview consisted of a polygraph exam. During his third

interview, Perez admitted to having anal sex with E.C. He claimed the sex was

consensual.

       The State charged Perez and White, by amended information, with one

count of assault in the second degree, and two counts of rape in the first degree.

In the alternative, the State charged two counts of rape in the second degree,

and one count of unlawful imprisonment.

       Perez moved to suppress the transcripts of the recorded statements made

during his interrogations, arguing that the statements were made involuntarily.

After a hearing, the trial court denied the motion. It entered written findings of

fact and conclusions of law in support of the denial. The court determined that

Perez's statements were not involuntary and were admissible.

       This case went to trial against both White and Perez in late 2011. O'Dell

and Sanders entered into plea agreements. They testified for the State at the

trial. Perez testified on his own behalf, denying all charges.
No. 69005-1-1/5


      The jury found both defendants guilty of assault in the second degree, two

counts of rape in the second degree, and unlawful imprisonment. Following the

verdict, Perez moved for a new trial, which the court denied.

       Perez appeals.

                             MOTION TO SUPPRESS

       Perez argues that the trial court erred when it determined that his

custodial statements to the police were voluntary and admissible. Specifically,

he contends that his statements were involuntary because they were induced by

a police sergeant's false promise of leniency. We disagree under the totality of

the circumstances in this case.

       "'[T]he determination whether statements obtained during custodial

interrogation are admissible against the accused is to be made upon an inquiry

into the totality of the circumstances surrounding the interrogation, to ascertain

whether the accused in fact knowingly and voluntarily decided to forgo his rights

to remain silent and to have the assistance of counsel.'"1 "[B]oth the conduct of

law enforcement officers in exerting pressure on the defendant to confess and

the defendant's ability to resist the pressure are important."2

       Circumstances that are potentially relevant in the totality of the

circumstances analysis include the "'crucial element of police coercion'; the

length of the interrogation; its location; its continuity; the defendant's maturity,
education, physical condition, and mental health; and whether the police advised

      1 State v. Unqa, 165 Wn.2d 95, 100, 196 P.3d 645 (2008) (quoting Fare v.
Michael C. 442 U.S. 707, 724-25, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979)).

       2 Id. at 101.
No. 69005-1-1/6


the defendant of the rights to remain silent and to have counsel present during

custodial interrogation."3

       "In assessing the totality of the circumstances, a court must consider any

promises or misrepresentations made by the interrogating officers."4 "A promise

made by law enforcement does not render a confession involuntary per se, but is

instead one factor to be considered in deciding whether a confession was

voluntary."5 "The court must determine whether there is a causal relationship

between the promise and the confession."6 "The inquiry is whether the

Defendant's will was overborne."7

          "A police officer's psychological ploys, such as playing on the suspect's

sympathies, saying that honesty is the best policy for a person hoping for

leniency, or telling the suspect that he could help himself by cooperating may

play a part in a suspect's decision to confess, 'but so long as that decision is a

product of the suspect's own balancing of competing considerations, the

confession is voluntary.'"8 "The question [is] whether [the interrogating officer's]




       3 Id. (quoting Withrow v. Williams, 507 U.S. 680, 693-94, 113 S. Ct. 1745, 123 L
Ed. 2d 407 (1993)).

          4 State v. Broadawav, 133 Wn.2d 118, 132, 942 P.2d 363 (1997).

          5 Unqa, 165 Wn.2d at 101.

          6 Broadawav, 133 Wn.2d at 132.

          7ld

          8 Unqa, 165 Wn.2d at 102 (quoting Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.
1986)).

                                                 6
No. 69005-1-1/7


statements were so manipulative or coercive that they deprived [the suspect] of

his ability to make an unconstrained, autonomous decision to confess.'"9

       Findings of fact entered following a CrR 3.5 hearing are verities on appeal

if unchallenged, and, if challenged, they are verities if supported by substantial

evidence in the record.10 A trial court's determination that a defendant's

statements were made voluntarily will not be disturbed on appeal if there is

substantial evidence in the record to support the court's decision.11

       In State v. Unqa, the supreme court considered Leaa'Esola Unga's claim

that his confession was involuntary because it was coerced by a detective's

promise.12 First, the supreme court noted that there was no "offer of immunity."13

That was because a police officer lacks authority to grant immunity from

prosecution, rather, a prosecutor has such authority.14

       The supreme court then considered whether Unga "reasonably perceived

that an offer of immunity had been made and, if so, whether his confession was

therefore involuntary."15 It applied a totality of the circumstances analysis.16 In

doing so, it identified several considerations. It noted that Unga was given


       9 Id. (alterations in original) (quoting Miller, 796 F.2d at 605).

       10 Broadawav, 133 Wn.2d at 131.

       11 id at 133; State v. Hepton, 113 Wn. App. 673, 685, 54 P.3d 233 (2002).

       12165 Wn.2d 95, 97, 196 P.3d 645 (2008).

       13 id at 104.

       14 id

       15 id at 104-05.

       16 id at 105-12.
                                                   7
No. 69005-1-1/8


Miranda warnings, knew what his rights were, waived his rights, did not lack

capacity, was old enough to make a statement intelligently and voluntarily, and

had completed the ninth grade.17 It also noted that Unga was aware he was

being questioned, the questioning was short in duration, he was in a room with

the door left open, he was not subjected to lengthy or repeated rounds of

questioning, there was no evidence that the detective used a threatening tone,

threatened, or intimidated Unga.18 Additionally, there was no evidence that Unga

was deprived of any necessities such as food, sleep, or bathroom facilities.19

The court then concluded, "Under all of these circumstances, we do not agree

that [the detective's] promise was coercive conduct that overbore Unga's will and

caused him to confess."20

       Here, Perez was interviewed on January 23, 2010 on three occasions: at

approximately 12:10 a.m., 3:05 a.m. and 4:30 a.m. Perez was in custody for all

of the questioning. He was advised of his Miranda warnings before all three

interviews. Perez signed written waivers with respect to these rights for the first

two interviews but not the third. Perez's first interview lasted approximately 35

minutes. Perez's second interview, a polygraph examination, lasted

approximately one hour and twenty minutes. During Perez's third interview, he

admitted to having anal sex with E.C. He claimed that the sex was consensual.


       17 id at 108-09.

       18 Id at 109.

       19id

       20 Id. at 111.


                                             8
No. 69005-1-1/9


       Perez argues that his statement was induced by a false promise of

leniency. The promise allegedly occurred after the first interview, as Sergeant

John Hall took Perez to a holding cell.

       As in Unqa, there is no claim that a prosecutor offered Perez immunity

from prosecution. Rather, the claim is that a police officer did so. Police officers

lack authority to grant immunity from prosecution. Only a prosecutor has such

authority, as the Unqa court observed.

       On appeal, Perez disputes the trial court's characterization of the alleged

promise. The trial court's finding stated:

       Shortly after the defendant's first interview with Det. Knudson, King
       County Sheriff's Office Sgt. Hall discussed the oxycodone pills that
       the defendant had secreted in his undershorts. The defendant
       testified that Sgt. Hall promised him leniency in his likely drug
       case if the defendant would talk to detectives about the rape
       allegations. The defendant testified he understood this to be a
       quid-pro-quo: if he talked about sex with E.C. he would receive
       leniency for possession of illegal narcotics.[21]

Specifically, Perez argues that Sgt. Hall promised him leniency on the rape

charge, not the drug charge. We need not resolve whether the trial court's

characterization of this alleged promise is correct.

       As the trial court determined, even //it took Perez's testimony at face

value, it was insufficient to amount to a promise or threat that would cause Perez

to involuntarily waive his right to remain silent:

              A. Sgt. Hall's brief encounter with the defendant, even if
       taken at face value as described by the defendant, is insufficient to
       amount to a promise or threat which would cause the defendant to



       21 Clerk's Papers at 246 (emphasis added).
No. 69005-1-1/10


       involuntarily waive his right to remain silent. The statement, as
       described by the defendant, was not coercive.[22]
       Looking to the totality of the circumstances, there is substantial evidence

to support the trial court's determination of voluntariness.

       In an unchallenged finding the trial court stated, "Mr. Brunson and Det.

Knudsen confronted the defendant with the fact that he had failed the polygraph.

Mr. Brunson told the defendant that his machine "did not lie." After being

confronted with the polygraph results, Mr. Perez admitted to having anal sex with

E.C."23 This finding shows that Perez's statement was not induced by the

alleged promise. The alleged promise occurred after the first interview and

before Perez's polygraph examination. During the polygraph, Perez maintained

that he did not have sex with E.C. As the trial court found, it was after being

confronted with his failed polygraph results that Perez admitted to having sex

with E.C. This finding supports the trial court's determination of voluntariness

because it shows there is not a causal relationship between the alleged promise

and the confession.

       Further, other circumstances also support the trial court's determination of

voluntariness. The following unchallenged findings are verities on appeal.

       In one finding the trial court stated, "During his stay with police, the

defendant had access to restroom facilities. Police also offered the defendant

food and water."24



       22 id at 247 (emphasis added).

       23 id at 246.

       24 Id

                                              10
No. 69005-1-1/11


      In another finding the court stated:

              B. The defendant's testimony at the CrR 3.5 hearing was
      generally not credible. In particular, the audio and visual recordings
      of the defendant's testimony reveal that the defendant appeared
      and sounded alert and coherent despite his trial testimony to the
      contrary. The defendant testified at trial that he did not understand
      that he could have a lawyer present during the polygraph
      examination. However, the defendant signed two waivers,
      including one immediately prior to the polygraph, in which he was
      advised he could have an attorney present. The defendant further
      testified he was not allowed to have anything to eat or drink during
      the time he was held. This statement was refuted by the testimony
      of multiple officers, including Det. Knudsen, who went so far as to
      offer the defendant a meal from a fast food restaurant. Finally, the
      defendant's assertion that bathroom facilities were unavailable to
      him is directly contradicted by the presence of a toilet in the holding
      cell at the Burien precinct.[25]

       Both of these findings show that Perez was offered food and had access

to restroom facilities. The second finding establishes that Perez was generally

not credible. Additionally, it shows that he was alert and coherent, understood

his rights, and signed two waivers. Like in Unqa, these factors support the

voluntariness of Perez's confession.

       Further, in other unchallenged findings, the court found that Perez was

advised of his Miranda rights three separate times and signed a waiver with

respect to his rights two times. In its oral ruling, the court noted that all waivers

were knowing, voluntary, and intelligent. The record also shows that Perez knew

that he was being questioned in relation to a criminal investigation. These were

also factors considered persuasive in Unqa.

       In sum, there is substantial evidence to support the trial court's

determination of voluntariness under the totality of the circumstances.

       25 id at 247-48.


                                              11
No. 69005-1-1/12


       Perez makes several arguments that his statements were involuntary.

None are persuasive.

       First, Perez argues that trial court found that Sgt. Hall promised Perez

leniency and that this is a verity on appeal. But the trial court never made such a

finding. Rather, the trial court found that "[Perez] testified that Sgt. Hall

promised him leniency . . . ."26 The trial court was not making its own

determination about this alleged promise.

       Perez also argues that the court "took [his] testimony at face value" and

"[t]hus, the record supports the conclusion that there is a direct causal connection

between Sergeant Hall's false promise of leniency and Mr. Perez's custodial

statement." But the record does not support this assertion. Rather, the trial court

expressly found that Perez was generally "not credible." Further, it stated "even

if it took Perez's testimony at face value, it was insufficient to amount to a

promise or threat to overcome voluntariness. This finding does not conclusively

establish a causal connection.

       Second, Perez argues that under the totality of the circumstances, his

statement was not voluntary for a variety of reasons. He asserts: (1) he was

interrogated three times over an eight hour period into the early morning hours,

(2) he was interrogated in full custody, (3) he did not eat during that period, (4) he

had only slept for four hours, (5) police asked him over and over whether he had

sex with E.C, and (6) his "weakened physical condition" and "lack of experience

and education" made him vulnerable to coercion.



       26 ]d at 246 (emphasis added).


                                              12
No. 69005-1-1/13


       It is true that the questioning in this case was longer than in Unqa, which

was only thirty minutes.27 But the record also shows that the questioning was not

continuous, that each interview was not that long in duration, and that there were

breaks in between the sessions.

       Further, Perez's eighth grade education does not establish that his

confession was involuntary. Although Perez testified that the last grade in school

he completed was eighth grade, the record also shows that Perez was 22 at the

time of the interrogation. In Unqa, the court concluded that Unga's confession

was voluntary even though he was only 16 1/2 years old and had only completed

the ninth grade.28 In support of this conclusion, the court cited cases holding that

minors and defendants as young as 14 have been found to voluntarily confess.29

In any event, the court found that Perez understood his rights and that all waivers

were knowing, voluntary, and intelligent.

       Moreover, some factors identified by Perez were explicitly rejected by the

trial court in its findings. For example, Perez argues that he did not eat, was

exhausted, and was in a weakened physical condition. But the trial court

expressly found that Perez was alert, coherent, and was offered food. These

findings are unchallenged verities on appeal




       27 See Unqa. 165 Wn.2d at 109.

       28 id at 108-09.

       29 id (citing Gachot v. Stalder. 298 F.3d 414 (5th Cir. 2002); Simmons v.
Bowersox. 235 F.3d 1124 (8th Cir. 2001); Gilbert v. Merchant. 488 F.3d 780 (7th Cir.
2007); Hardawav v. Young, 302 F.3d 757, 762-68 (7th Cir. 2002); Winfrey v. Wvrick, 836
F.2d 406, 410 (8th Cir. 1987)).


                                             13
No. 69005-1-1/14


       Third, Perez argues that the nature of the promise is directly relevant to its

coercive effect. This is true and was acknowledged by the supreme court in

Unqa, when it stated, "An unqualified promise not to prosecute that in fact

induces a confession may be 'of such a nature that it can easily be found to have

overcome a person's resistance to giving a statement to authorities.'"30

          But in Unqa, the court did not set forth a blanket rule that all promises of

leniency lead to a determination that the statement is involuntary. Rather, the

court expressly concluded, "The fact that a promise has been made not to charge

a defendant... does not alone render a subsequent confession involuntary."31

And the Unqa court, after evaluating all of the circumstances, determined that the

confession was nonetheless voluntary.32 For the reasons discussed previously,

the same is true here.

          Fourth, Perez relies on extra jurisdictional cases to argue that "in cases

where police officers made promises that misrepresented the law, courts

applying the totality of the circumstances test have held defendants' resulting

confessions involuntary."33 But again, a promise made by law enforcement "does


          30 id at 108 (quoting United States v. Conlev, 859 F. Supp. 830, 836 (W.D. Pa.
1994)).

          31 id at 113.

          32 id

        33 Appellant's Opening Brief (Amended) at 25-26 (citing United States v. Lall, 607
F.3d 1277, 1281-82 (11th Cir. 2010); Hopkins v. Cockrell, 325 F.3d 579, 584-85 (5th Cir.
2003); Henry v. Kernan, 197 F.3d 1021, 1027-28 (9th Cir. 1999); United States v.
Baldwin, 60 F.3d 363 (7th Cir. 1995), United States v. Walton. 10 F.3d 1024, 1030-32
(3d Cir. 1993); United States v. Rogers, 906 F.2d 189, 191-92 (5th Cir. 1990); Samuel v.
State. 898 So. 2d 233, 237 (Fla. Dist. Ct. App. 2005); State v. Rezk, 150 N.H. 483, 485,
840 A.2d 758 (2004)).


                                                 14
No. 69005-1-1/15


not render a confession involuntary per se ... ."34 Nor does such a promise give

rise to that presumption.35 Perez's reliance on these cases as setting forth a

general rule is not persuasive. The promise here was similar to that in Unqa,

which guides our analysis.

       Finally, Perez attempts to distinguish Unqa on the basis that in that case

the State made no false promise of leniency because it "kept its side of the

bargain" and did not charge Unga with graffiti. But Perez does not explain why it

matters whether he was offered a "false" promise of leniency or a promise of

leniency. And it is not clear why this distinction would make a difference when

examining his ability to make a rational decision at the time of the confession.

Further, in Unqa, the court stated that "[t]he mere fact that an unfulfilled promise

was made in exchange for a person's statement does not constitute coercion,

rendering the statement involuntary.' Such a promise, like any other promise of

leniency, is only one factor in the totality of the circumstances analysis . . . ."36

For these reasons, Perez's argument is not persuasive.

             SEVERANCE, MISTRIAL, AND NEW TRIAL MOTIONS

       Perez argues that the trial court abused its discretion when it denied his

severance and mistrial motions.37 He makes the same argument with respect to



       34 Unqa. 165 Wn.2d at 101.

       35 id at 112.

       36 ]d at 105 (alteration in original) (citation omitted) (quoting United States v.
Flemmi. 225 F.3d 78, 91-92 (1st Cir. 2000)).

       37 The record reflects that both the court and the parties used these different
terms to refer to the same motion. See Report of Proceedings (Dec. 12, 2011) at 1873.


                                                 15
No. 69005-1-1/16


his post-trial motion for a new trial. The basis for these motions was an alleged

trial irregularity during the testimony of E.C. Specifically, Perez argues that his

codefendant, White, nodded his head when E.C. testified that "snitches end up in

ditches." Perez argues that this "threatening gesture directed toward [E.C]

during her testimony unfairly prejudiced Mr. Perez." We reject this argument.

        Denial of a motion for a mistrial is reviewed under an abuse of discretion

standard.38 An abuse of discretion occurs if the court's decision is manifestly

unreasonable or rests on untenable grounds.39 "The trial court should grant a

mistrial only when the defendant has been so prejudiced that nothing short of a

new trial can insure that the defendant will be tried fairly. Only errors affecting

the outcome of the trial will be deemed prejudicial.'"40 Appellate courts determine

whether a mistrial should have been granted by considering (1) the seriousness

of the trial irregularity, (2) whether the trial irregularity involved cumulative

evidence, and (3) whether the trial court properly instructed the jury to disregard

it.41

        Similarly, "a new trial is necessitated only when the defendant 'has been

so prejudiced that nothing short of a new trial can insure that the defendant will




        38 State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994).

        39 State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012).

        40 Johnson, 124 Wn.2d at 76 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778
P.2d 1014(1989)).

        41 id


                                               16
No. 69005-1-1/17


be treated fairly.'"42 An appellate court reviews a trial court's decision on a

motion for a new trial for abuse of discretion.

       Here, the trial court did not abuse its discretion when it denied these

motions. In its written order denying Perez's post-trial motion for a new trial, the

court analyzed these three factors for determining the effect of the trial

irregularity.

        For the first factor—seriousness—the court noted that White's conduct

was not serious enough to warrant a mistrial. It also noted that it was unclear

whether any of the jurors observed White's gesture, that it was unclear whether

the defendants assaulted E.C. because she was a "snitch," that it was unclear

whether White was "sending a message to E.C." or "merely agreeing with her

that snitching is very risky business," that Perez confirmed that "snitches end up

in ditches" in his own testimony, and that the prosecutor did not link White's in-

court conduct to Perez.

        For the second factor—cumulative evidence—the court noted that "there

was significant evidence presented at trial that Mr. White and Mr. Perez both
assaulted and raped [E.C]." The court also pointed out that O'Dell and Sanders

corroborated these facts, and there was significant evidence that E.C.'s fear for

her life was reasonable. Additionally, it noted that all of the fact witnesses who

testified, including Perez, "admitted that 'snitching' is considered morally
reprehensible" and that "violent retribution can occur." Thus, the trial court



       42 State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997) (quoting State
v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)).


                                              17
No. 69005-1-1/18


concluded that White's in-court conduct was "merely cumulative of this

evidence."


       For the third factor—whether the trial court instructed the jury to disregard

the irregularity—the court acknowledged that it did not instruct the jury that it

could not infer guilt of Perez from White's behavior, because Perez's attorney

had not provided a limiting instruction. But the court also stated that this was

reasonable trial strategy and pointed out that White's attorney "defused the

impact" of White's behavior by stating during closing that the behavior was

"inappropriate" and that the trial had been "tedious and challenging" for White.

       After looking to these three factors, and also noting that "Perez's decision

to take the stand and testify did far more damage to his own case than did Mr.

White's conduct," the trial court concluded that "there was no irregularity in the

trial that prevented Mr. Perez from having a fair trial."

       The trial court carefully evaluated these factors and also considered the

effect of this irregularity in light of Perez's testimony. For the same reasons

identified by the trial court in its written order, we conclude that the court did not

abuse its discretion when it denied Perez's mistrial motion and his post-trial

motion for a new trial.

       Perez makes several arguments that White's conduct requires a new trial.

None are persuasive.

       First, Perez relies on State v. Taylor for the proposition that "when two

defendants are tried together, evidence admitted against one of them is




                                              18
No. 69005-1-1/19


prejudicial to the other."43 But in Taylor, that analysis was utilized by the trial

court to justify its conclusion that both defendants were entitled to a new trial.44

The court concluded that "if [Taylor] did not have a fair trial, the same thing must

be said as to the [other] defendant."45 Here, in contrast, the trial court did not

conclude that there was prejudice to either defendant, which by this logic, would

also warrant a new trial for the other. Accordingly, Taylor is not helpful.

       Next, Perez looks to State v. Beebe to argue that evidence of acts

committed by a codefendant before or after the crime is inadmissible to prove the

guilt of the other.46 Perez argues that White's threatening gesture, made after

the crime, was irrelevant to Perez's guilt and would have been inadmissible if he

had been tried alone.47 But even if this is true, and we were to construe this as

an evidentiary error, any error would be harmless. There was no prejudice,

because as the trial court noted, there was "significant evidence" presented at

trial that Perez assaulted and raped E.C, including Perez's own admissions,

corroborating testimony from E.C, O'Dell, and Sanders, and physical evidence of

Perez's swollen hand.




       43 Appellant's Opening Brief (Amended) at 32 (citing State v. Taylor. 60 Wn.2d
32,42,371 P.2d 617 (1962)).

       44 See Taylor, 60 Wn.2d at 42.

       45 id

       46 Appellant's Opening Brief (Amended) at 33-34 (citing State v. Beebe. 66
Wash. 463, 468, 120 P. 122 (1912)).

       47 ]d at 34.


                                              19
No. 69005-1-1/20


       Perez also relies on Braswell v. United States to argue that "when two or

more defendants are tried together, one defendant's misconduct during trial

inevitably prejudices the others in the eyes of the jury."48 But the conduct in

Braswell was far more serious than the conduct that occurred in this case.49

There, one of the defendants assaulted and struck a United States Marshal in the

presence of the jury and another defendant arose as if to assist in the assault.50

On that basis alone, Braswell is distinguishable. Further, the Braswell court also

considered prejudicial comments made by the Assistant United States Attorney

and the Court to conclude that the appellants did not have a fair and impartial

trial.51 Here, White's gesture is the only irregularity at issue, and it was not

prejudicial for the reasons already identified.

       Perez also argues that White's conduct was prejudicial because "it

bolstered the State's theory that the motive for the crime was to prevent [E.C]

from 'snitching.'" He relies on State v. Bourgeois, a case where a spectator

made a hand-gesture mimicking a gun pointing at the witness, and the court

noted that "[b]ecause fear and retaliation were such central themes in the State's

case, the gesture arguably reinforced the impression that the defendant and his

friends were the type of people that harm those who testify against them."52 But



       48 ]d at 32 (citing Braswell v. United States. 200 F.2d 597, 602 (5th Cir. 1952)).

       49 See Braswell. 200 F.2d at 600.

       50 id

       51 id at 600-01.

       52 Bourgeois, 133 Wn.2d at 409.


                                                20
No. 69005-1-1/21


even in Bourgeois, the court concluded that although the irregularity was fairly

serious, it was not so significant that it required a mistrial.53 Similarly, here, while

a comparable argument could be made that White's gesture reinforced the

State's theory, it was not so serious as to require a mistrial.

       Perez asserts that White's gesture was not cumulative of his own

testimony because Perez testified about snitches in general, not about E.C. in

particular. But even if this gesture was offered as evidence of a threat against

E.C, rather than a general comment agreeing that "snitches end up in ditches," it

is nonetheless cumulative. Numerous witnesses testified that E.C. was afraid of

the defendants and feared for her life.

       Finally, Perez argues that in denying his motion for new trial, the trial court

focused on the fact that Perez's attorney did not request a limiting instruction.

Perez argues that this failure should not be held against him. But the court

identified several reasons when it denied the motion for a new trial, and it did not

hinge its analysis on the absence of a proposed limiting instruction, which is just

one factor. Moreover, the jurors were instructed to decide the case against each

defendant separately. Jurors are presumed to follow the court's instructions,

absent evidence proving the contrary.54

                              EVIDENTIARY RULINGS


       Perez alleges two errors based on evidentiary rulings. Neither requires

reversal.




       53 id

       54 State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007).


                                              21
No. 69005-1-1/22


                                      Ski Masks

       Perez argues that the trial court abused its discretion when it admitted

evidence of ski masks found at the scene. He argues that this evidence was

relevant only for the improper purpose of suggesting that he was "a 'criminal

type.'" Assuming, without deciding, that admission was improper, the admission

of the ski masks was harmless.


       A trial court may admit evidence only if it is relevant.55 Relevant evidence

has any tendency to make a fact of consequence more likely or less likely.56 The

trial court has "wide discretion in balancing the probative value of evidence

against its potential prejudicial impact."57

       ER 404(b) prohibits a court from admitting evidence of other crimes,

wrongs, or acts to prove the character of a person in order to show action in

conformity therewith. "This prohibition encompasses not only prior bad acts and

unpopular behavior but any evidence offered to 'show the character of a person

to prove the person acted in conformity' with that character at the time of a

crime."58 This rule is "not designed 'to deprive the State of relevant evidence

necessary to establish an essential element of its case,' but rather to prevent the




       55 Gorman v. Pierce County. 176 Wn. App. 63, 84, 307 P.3d 795 (2013), review
denied. 179 Wn.2d 1010 (2014).

       56 id

       57 Cole v. Harvevland. LLC. 163 Wn. App. 199, 213, 258 P.3d 70 (2011).

       58 State v. Foxhoven. 161 Wn.2d 168, 175, 163 P.3d 786 (2007).


                                               22
No. 69005-1-1/23


State from suggesting that a defendant is guilty because he or she is a criminal-

type person who would be likely to commit the crime charged."59

       An appellate court reviews a trial court's evidentiary rulings for abuse of

discretion.60 An appellate court will overturn the trial court's rulings on the

admissibility of evidence only if its decision was "manifestly unreasonable,

exercised on untenable grounds, or based on untenable reasons."61 In close

cases "'the scale should be tipped in favor of the defendant.'"62

       When a trial court makes an erroneous evidentiary ruling, the question on

appeal "is whether the error was prejudicial, for error without prejudice is not

grounds for reversal."63 "Error will not be considered prejudicial unless it affects,

or presumptively affects, the outcome of the trial."64

        Here, the trial court concluded that evidence of two ski masks, two gun

clips, and a gun case were all admissible to show why E.C. was afraid when she

was down in the basement and why she did not leave. The court excluded drug

and other evidence discovered in other areas of the house.

       From our review of the record, the trial court was primarily concerned with

the potential for undue prejudice if the gun clips, gun case, and ski masks were


       59 ]d (quoting State v. Lough. 125 Wn.2d 847, 859, 889 P.2d 487 (1995)).

       60 Cole. 163 Wn. App. at 213.

       61 Gorman, 176 Wn. App. at 84.

      62 State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986) (quoting State v.
Bennett. 36 Wn. App. 176, 180, 672 P.2d 772 (1983)).

       63 Brown v. Spokane County Fire Prot. Dist. No. 1.100 Wn.2d 188, 196, 668
P.2d571 (1983).

       64 id
                                              23
No. 69005-1-1/24


admitted. They were all found in the basement where the rape and unlawful

imprisonment occurred. And the court properly concluded that the evidence

could be relevant to these charges for E.C.'s reasonable fear of Perez and White.

       Perez essentially contends on appeal that the ski masks are unlike the

other items in the group to which he does not object on appeal. In doing so, he

implicitly admits that the other items were properly admitted, being both relevant

to the crimes charged and not unduly prejudicial.

       Accordingly, we need not decide whether admission of the ski masks, by

themselves, was an abuse of discretion. Assuming, without deciding that they

should have been excluded, the evidentiary ruling was harmless. The other

items in the group offered for admission were clearly admissible to show E.C.'s

reasonable fear of Perez. Any error in also admitting the ski masks did not affect

the outcome of the trial.

                                 E.C.'s Statement


       Perez argues that the trial court abused its discretion when it admitted, as

a present sense impression, E.C.'s statement to Deputy Gerald Meyer at the

hospital that she was afraid of being killed. Assuming without deciding that

admission of this evidence was improper, the ruling is also harmless.

       As a threshold matter, the State argues that this claim is not preserved.

We disagree. Defense attorneys made a hearsay objection to this testimony on

the first day of Deputy Meyer's testimony. The following day, the court heard

additional argument and sustained its previous ruling. Deputy Meyer testified on

this day immediately following the court's second ruling. Even though there was


                                            24
No. 69005-1-1/25


no contemporaneous objection on the second day of testimony, we conclude that

the hearsay objection was preserved.

       The court's interpretation of the rules of evidence is reviewed de novo and

its application of the rules to particular facts is reviewed for abuse of discretion.65

       Under ER 803(a)(1), a statement "describing or explaining an event or

condition made while the declarant was perceiving the event or condition, or

immediately thereafter" is a "present sense impression" and is not excluded by

the hearsay rule. 'The statement must be a 'spontaneous or instinctive utterance

of thought,' evoked by the occurrence itself, unembellished by premeditation,

reflection, or design."66

       "Evidence that is merely cumulative of overwhelming untainted evidence is

harmless."67

       Here, Deputy Meyer testified that he talked to E.C. in the hospital following

the assault and rape, and she told him that she was scared of being killed. But

from our review of the record, there does not appear to be an "event" or

"condition" that E.C. was perceiving when she made this statement. Accordingly,

this statement likely does not qualify as a present sense impression.

       But any error in admitting this statement was harmless because Deputy

Meyer's testimony was cumulative with testimony of numerous other witnesses.

For example, a nurse at Highline Medical Center testified that E.C. was "afraid

       65
            State v. Sanchez-Guillen. 135 Wn. App. 636, 642, 145 P.3d 406 (2006).

        66 State v. Martinez, 105 Wn. App. 775, 783, 20 P.3d 1062 (2001) (Quoting Beck
v. Dye, 200 Wash. 1, 9-10, 92 P.2d 1113 (1939)), overruled on other grounds by State v.
Rangel-Reves. 119 Wn. App. 494, 81 P.3d 157 (2003).

       67 State v. Flores. 164Wn.2d 1, 19, 186 P.3d 1038(2008).

                                               25
No. 69005-1-1/26


she would get hurt if she gave a lot of information," a pastor testified that E.C.

said that "she was afraid that they were going to come back and maybe beat her

some more," a social worker testified that E.C. said that "she was worried that the

assailants will try and kill her because she was reporting the crime," and a

detective testified that E.C. said that "she was afraid to talk to the police" and

"was afraid she was going to be killed." This testimony was admitted without

objection and is not challenged on appeal.

                       RIGHT TO CONFRONT WITNESSES

       Perez claims that he "was denied his constitutional right to confront the

witnesses against him when a witness testified about Mr. White's out-of-court

statement that implicated Mr. Perez."68 Specifically, he points to Sanders's

testimony at trial that on the morning following her fight with E.C, White came

upstairs and said, "We f***ed her."69 Perez contends that his constitutional right

to confront his accusers was violated, because he had no opportunity to cross-

examine White about this statement. Because he failed to object below and is

not entitled to raise this issue for the first time on appeal, we do not reach the

substance of this claim.

       RAP 2.5(a) sets forth when an issue not preserved below may be raised

for the first time on appeal. The proper approach in analyzing alleged

constitutional error raised for the first time on appeal involves four steps.70 First,


       68 Appellant's Opening Brief (Amended) at 44.

       69 jd (quoting Report of Proceedings (Dec. 7, 2011) at 1467).

       70 State v. Lynn. 67 Wn. App. 339, 345, 835 P.2d 251 (1992).


                                              26
No. 69005-1-1/27


the reviewing court "make[s] a cursory determination as to whether the alleged

error in fact suggests a constitutional issue."71 Second, the court must determine

whether the alleged error is manifest.72 "Essential to this determination is a

plausible showing by the defendant that the asserted error had practical and

identifiable consequences in the trial of the case."73 Third, if the error is manifest,

the court "must address the merits of the constitutional issue."74 Fourth, "if the

court determines that an error of constitutional import was committed, then, and

only then, the court undertakes a harmless error analysis."75

          The Sixth Amendment confrontation clause provides that in all criminal

prosecutions "the accused shall enjoy the right... to be confronted with the

witnesses against him."76 "[T]he 'principle evil' at which the clause was directed

was the civil-law system's use of ex parte examinations and ex parte affidavits as

substitutes for live witnesses in criminal cases."77 This practice "denies the




          71 ]d

          72 id

          73 id

          74 id

          75 id

          76 U.S. Const, amend. VI.

        77 State v. Doerflinger. 170 Wn. App. 650, 655, 285 P.3d217 (2012) (alteration in
original) (quoting State v. Jasper. 158 Wn. App. 518, 526, 245 P.3d 228 (2010), aff'd.
174 Wn.2d 96, 271 P.3d 876 (2012)), review denied, by State v. Clark. 177 Wn.2d 1009
(2013).


                                               27
No. 69005-1-1/28


defendant the opportunity to test his accuser's assertions 'in the crucible of

cross-examination.'"78

       But not every out-of-court statement used at trial implicates the

confrontation clause.79 The confrontation clause only applies to testimonial

statements.80 A testimonial statement is a "'solemn declaration or affirmation

made for the purpose of establishing or proving some fact.'"81 The United States

Supreme Court has listed "three possible formulations for the 'core class' of

testimonial statements covered by the confrontation clause:"82

       [1] ex parte in-court testimony or its functional equivalent—that is,
       material such as affidavits, custodial examinations, prior testimony
       that the defendant was unable to cross-examine, or similar pretrial
       statements that declarants would reasonably expect to be used
       prosecutorially; [2] extrajudicial statements . . . contained in
       formalized testimonial materials, such as affidavits, depositions,
       prior testimony, or confessions; [3] statements that were made
       under circumstances which would lead an objective witness
       reasonably to believe that the statement would be available for use
       at a later trial.[83]

       Here, Sanders testified that she, Perez and O'Dell were sitting on the

couch, watching TV in the living room when White made the statement to which

Perez objects for the first time on appeal. White's testimony was not the


       78 Id. (guoting Crawford v. Washington. 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L
Ed. 2d 177 (2004)).

       79 id



       81 ]d (internal quotation marks omitted) (quoting Jasper, 158 Wn. App. at 526).

       82 id

       83 Jasper, 158 Wn. App. at 527 (alterations in original) (citing Crawford. 541 U.S.
at 51-52).


                                               28
No. 69005-1-1/29


equivalent of ex-parte in-court testimony, it was not an extrajudicial statement,

and it was not made under circumstances which would lead an objective witness

to reasonably believe that the statement would be later used at trial. We

conclude, and Perez does not assert otherwise, that White's statement was not

testimonial. Thus, the confrontation clause does not apply. Accordingly, Perez

fails to establish under RAP 2.5(a) that a constitutional claim is at issue.

       Perez relies on Bruton v. United States, for the proposition that "when two

or more defendants are tried in a joint proceeding, an out-of-court statement of

one which inculpates another may not be admitted in evidence when the maker

of the statement does not testify at trial, for the effect would be a denial of the

right [to] confrontation."84 He also cites State v. Vannoy to argue that if a

codefendant's confession contains the pronoun "we," and a jury could readily

conclude that the "we" includes the defendant, the Bruton rule applies.85

       While these general rules are true, these cases were decided before

Crawford v. Washington and Davis v. Washington, where the Supreme Court

clarified the contours of the confrontation clause.86 As recognized by several




       84 Appellant's Opening Brief (Amended) at 44 (citing Bruton v. United States. 391
U.S. 123, 132, 88 S. Ct. 1620, 20 L Ed. 2d 476 (1968)).

       85 id at 46 (citing State v. Vannoy, 25 Wn. App. 464, 472-74, 610 P.2d 380
(1980)).

       86 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004); Davis v. Washington. 547 U.S. 813, 126 S. Ct. 2266, 165 L Ed. 2d 224 (2006).


                                              29
No. 69005-1-1/30


courts, after Crawford, the Bruton rule similarly applies only to testimonial

statements.87 The First Circuit explained:

       The Bruton/Richardson framework presupposes that the aggrieved
       co-defendant has a Sixth Amendment right to confront the
       declarant in the first place. If none of the co-defendants has a
       constitutional right to confront the declarant, none can complain
       that his right has been denied. It is thus necessary to view Bruton
       through the lens of Crawford and Davis. The threshold question in
       every case is whether the challenged statement is testimonial. If it
       is not, the Confrontation Clause "has no application."1881

       Thus, because White's statement was nontestimonial, Perez's reliance on

Bruton and its progeny is not helpful. Perez fails to show a right to raise this

issue anew under RAP 2.5(a).

                           CUMULATIVE ERROR DOCTRINE

       Perez argues that numerous trial court errors cumulatively denied him a

fair trial. We disagree.

       The cumulative error doctrine "is limited to instances when there have

been several trial errors that standing alone may not be sufficient to justify

reversal but when combined may deny a defendant a fair trial."89




       87 See, e.g.. United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010)
(stating that "the Bruton rule, like the Confrontation Clause upon which it is premised,
does not apply to nontestimonial hearsay statements."); United States v. Johnson. 581
F.3d 320, 326 (6th Cir. 2009), cert, denied. 560 U.S. 966 (2010) (stating that "[b]ecause
it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause
itself, does not apply to nontestimonial statements"); People v. Arceo, 195 Cal. App. 4th
556, 574-75, 125 Cal. Rptr. 3d 436, cert, denied. 132 S. Ct. 851, 181 L. Ed. 2d 555
(2011) (holding that the Bruton rule does not apply to non-testimonial statements).

       88 United States v. Figueroa-Cartagena. 612 F.3d 69, 85 (1st Cir. 2010) (quoting
Whorton v. Bocktino. 549 U.S. 406, 420, 127 S. Ct. 1173 (2007)).

       89 State v. Greiff. 141 Wn.2d 910, 929, 10 P.3d 390 (2000).


                                               30
No. 69005-1-1/31


       Here, there is not an accumulation of several errors. Rather, there were at

most two evidentiary errors that had no effect on the outcome at trial. The

cumulative error doctrine does not warrant reversal.

                                CHARGING DOCUMENT

       Perez argues that the information was constitutionally deficient because it

omitted an essential element of the crime of unlawful imprisonment. Specifically,

he asserts that an essential element of the crime is that the restraint was "without

legal authority." We disagree.

       "[A] charging document is constitutionally adequate only if all essential

elements of a crime, statutory and nonstatutory, are included in the document so

as to apprise the accused of the charges against him or her and to allow the

defendant to prepare a defense."90 "'An essential element is one whose

specification is necessary to establish the very illegality of the behavior

charged.'"91

       The adequacy of a charging document is reviewed de novo.92

       The controlling case is State v. Johnson.93 There, the supreme court

concluded that the information charging the defendant with unlawful

imprisonment was constitutionally sufficient.94 The information charged Johnson


       90
            State v. Vangerpen. 125 Wn.2d 782, 787, 888 P.2d 1177 (1995).

       91 State v. Zillvette. 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (internal quotation
marks omitted) (quoting State v. Ward. 148 Wn.2d 803, 811, 64 P.3d 640 (2003)).

       92 State v. Johnson.       Wn. App.      , 325 P.3d 135, 137 (2014).

       93       Wn. App.      , 325 P.3d 135 (2014).

       94 id at 137-38.
                                                31
No. 69005-1-1/32


with "Unlawful Imprisonment—Domestic Violence" and alleged that Johnson "did

knowingly restrain [J.J.], a human being."95

        In concluding that the information was not deficient, the supreme court

rejected Johnson's argument that the information must include the statutory

definition of "restrain."96 It held that the State did not need to include definitions

of elements, and it was enough that the State alleged all of the essential

elements found in the unlawful imprisonment statute.97

        Here, as Perez acknowledges, the information is indistinguishable from

that in Johnson.98 It charged Perez with "Unlawful Imprisonment" and alleged

that Perez "did knowingly restrain E.C, a human being." Perez's argument that

the information must include that the restraint was "without lawful authority" was

expressly rejected in Johnson.99 Thus, the information is constitutionally

sufficient.


                            COMMUNITY CUSTODY TERM

        Perez argues that the trial court erred when it imposed a three-year term

of community custody for the second degree assault conviction. The State

concedes that the community custody term should be amended. We accept the

State's concession and remand for amendment of the judgment and sentence.


        95 jd. (emphasis omitted) (alteration in original).

        96]dat138.

        97 id

        98 See Appellant's Supplemental Assignment of Error and Supporting Brief at 4,
Johnson. 325 P.3d at 137-38, Clerk's Papers at 66.

        99 Johnson. 325 P.3d at 138.


                                                  32
No. 69005-1-1/33


       "A trial court only possesses the power to impose sentences provided by

law."100

       RCW 9.94A.701 provides that a court shall sentence an offender to

community custody for three years for a "serious violent offense" and to 18

months for "a violent offense that is not considered a serious violent offense."101

       Here, the trial court imposed 36 months of community custody for Perez's

conviction of assault in the second degree. But, under RCW 9.94A.030(45),

assault in the second degree is not a "serious violent offense." Rather, according

to RCW 9.94A.030(54)(viii), assault in the second degree is a "violent offense."

Thus, the court's imposition of the 36 month term was error.

       The proper remedy is to remand to the trial court to either amend the

community custody term or resentence on the assault in the second degree

conviction consistent with RCW 9.04A.701(2).102

                   STATEMENT OF ADDITIONAL GROUNDS


       Perez makes a number of claims in his statement of additional grounds.

None have merit.

                                   Jury Instructions

       Perez first argues that the trial court abused its discretion when "it refused

to provide an inferior degree instruction for rape in the third degree."103 Because


       100 In re Pers. Restraint of Carle. 93 Wn.2d 31, 33, 604 P.2d 1293 (1980).

       101 See RCW 9.94A.701(1)(b), (2).

       102 See State v. Boyd 174 Wn.2d 470, 473, 275 P.3d 321 (2012).

       103 Statement of Additional Grounds for Review / RAP 10.10 at 15.


                                              33
No. 69005-1-1/34


this record shows that there was no affirmative evidence that the intercourse was

unforced but nonconsensual, we disagree.

       An appellate court reviews de novo a trial court's decision to give an

instruction based on a ruling of law.104 If the trial court's refusal to give a lesser

instruction is based on a factual dispute, then it is reviewable for abuse of

discretion.105 A trial court may not submit a theory to the jury for which there is

insufficient evidence.106 When determining if the evidence at trial was sufficient

to support the giving of an instruction, an appellate court reviews the evidence in

the light most favorable to the instruction's proponent.107

       Third degree rape is an inferior degree offense to second degree rape.108

For the trial court to instruct on an inferior degree offense, the evidence must

support an inference that only the lesser crime was committed.109 "It is not

sufficient that the jury might simply disbelieve the State's evidence."110 "'Instead,

some evidence must be presented which affirmatively establishes the




       104 State v. Brightman. 155Wn.2d506, 519, 122 P.3d 150(2005).

       105 id

       106 State v. Munden. 81 Wn. App. 192, 195, 913 P.2d 421 (1996).

       107 State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000).

       108 State v. leremia. 78 Wn. App. 746, 753, 899 P.2d 16 (1995).

       109 id at 754-55.

       110 id at 755.


                                              34
No. 69005-1-1/35


defendant's theory on the lesser included offense before an instruction will be

given."'111

       To prove second degree rape, the State had to present evidence the

sexual intercourse was by forcible compulsion.112 "Forcible compulsion" means

"physical force which overcomes resistance, or a threat, express or implied, that

places a person in fear of death or physical injury to herself or himself or another

person ... ,"113 Third degree rape does not require proof of forcible

compulsion.114

       In State v. Charles, the supreme court concluded that the trial court

properly refused to instruct the jury on third degree rape.115 The supreme court

reached this conclusion because there was no affirmative evidence that the

intercourse was unforced but still nonconsensual.116

       Here, similarly, there is no affirmative evidence that intercourse was

unforced but still nonconsensual.

       According to E.C, White said, "If you let us f*** you, then we will not kill

you." The men had just assaulted her, and she had previously seen both men

with guns. This testimony evidences second degree forcible rape.


       111 State v. Charles. 126 Wn.2d 353, 355, 894 P.2d 558 (1995) (quoting State v.
Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990)).

       112 See RCW 9A.44.050(1)(a).

       113RCW9A.44.010(6).

       114 See RCW 9A.44.060(1).

       115 126Wn.2d353, 356, 894 P.2d 558 (1995).

        116 id


                                              35
No. 69005-1-1/36


       According to Perez, he either did not have sexual intercourse with E.C, or

he had consensual intercourse with her. This evidence supports an acquittal.

       In sum, like Charles, the evidence showed that the sexual contact was by

forcible compulsion, was consensual, or did not happen at all. But there is no

factual support that that intercourse was unforced but nonconsensual. It is not

sufficient that the jury might simply disbelieve the State's evidence. The trial

court properly concluded that a third degree rape instruction was not warranted.

       Perez makes several arguments to the contrary, but none are persuasive.

       First, Perez argues that there was affirmative evidence to support the

inferior instruction. Specifically, he argues that "the jury could have found lack of

consent without force based on a reasonable inference that [E.C.'s] self-induced

cocaine paranoia led her to misperceive threats."117 To support this argument,

he points to E.C.'s testimony where she admitted to smoking crack cocaine and

taking oxycodone prior to the incident, admitted that when she consumes crack

cocaine her senses are intensified, said she had not slept, and stated after the

incident that she thinks O'Dell would never hurt her.

       But again, it is not enough that the jury might disbelieve the State's

evidence of a threat. Further, this evidence does not support the inferior

instruction. The jury was instructed:

              To be a threat, a statement or act must occur in a context or
       under such circumstances where a reasonable person, in the
       position of the speaker, would foresee that the statement or act
       would be interpreted as a serious expression of intention to carry
       out the threat rather than as something said in jest or idle talk.11181

       117 Statement of Additional Grounds for Review/ RAP 10.10 at 21.

       118 Clerk's Papers at 149 (emphasis added).
                                              36
No. 69005-1-1/37




While E.C.'s testimony revealed drug use and sleep deprivation, E.C.'s state of

mind is not relevant to the determination of whether a reasonable person, in the

position of the speaker, would foresee that White's statement would be

interpreted as a threat. In sum, this testimony is not affirmative evidence that the

sex was "unforced."


       Perez argues that "a reasonable person in the position of the speaker,

would not 'foresee' that the statement would be interpreted as a serious

expression or intention to carry out the threat."119 We disagree, especially when

considering the context in which these statements were made—namely that

White and Perez had just violently assaulted E.C.

       Perez also argues that E.C. "gave in and said 'well, at least just use a

condom.'"120 Nothing about this testimony shows that the sex was unforced but

nonconsensual either.


       Next, Perez argues that parties' inconsistent theories of a case do not

warrant automatic denial of a request for an inferior degree instruction.121 But,

the trial court did not refuse to provide a rape in the third degree instruction

because of the parties' inconsistent theories. Rather, it declined to provide the

instruction because there was no affirmative evidence that intercourse was


unforced but nonconsensual. This was proper.




       119 Statement of Additional Grounds for Review / RAP 10.10 at 22.

       120 Id at 24 (quoting Report of Proceedings (Dec. 12, 2011) at 1791-93).

       121 id at 20.


                                              37
No. 69005-1-1/38


           Perez next argues that Charles is distinguishable based on the fact that

physical force was used against the victim.122 But even if physical force was not

used, the rape charge in this case was nonetheless based on forcible

compulsion. This factual distinction is irrelevant.

       Finally, Perez argues that State v. Fernandez-Medina controls.123 But in

that case, the State presented affirmative evidence from which the jury could find

that only the lesser degree offense occurred.124 Here, in contrast, there was no

such evidence. This case does not control.

                            Alleged Prosecutorial Misconduct

       Perez argues that the prosecutor committed "flagrant, prejudicial

misconduct" that deprived him of his constitutional right to a fair trial.125

Specifically, he contends that the prosecutor used an improper theme, expressed

personal beliefs about witness credibility, emphasized White's courtroom

gesture, misstated crucial evidence, and testified about facts not in evidence.126

We disagree with all of these claims.

       Prosecutorial misconduct is grounds for reversal if the prosecutor's

conduct was both improper and prejudicial.127 The court reviews a prosecutor's


       122 ]d at 19-20 (citing Charles. 126 Wn.2d at 353).

       123 Jd at 16 (citing State v. Fernandez-Medina. 141 Wn.2d 448, 6 P.3d 1150
(2000)).

       124 Fernandez-Medina, 141 Wn.2d at 462.

       125 Statement of Additional Grounds for Review / RAP 10.10 at 24.

       126 ]± at 24-34.

       127 State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551 (2011).


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No. 69005-1-1/39


conduct in the full trial context, including the evidence presented, the total

argument, the issues in the case, the evidence addressed in the argument, and

the jury instructions.128 "Generally the prosecutor's improper comments are

prejudicial 'only where there is a substantial likelihood the misconduct affected

the jury's verdict.'"129

        Perez's claims of misconduct fall within three main arguments.

       First, Perez argues that the prosecutor's theme in closing was improper

because he "bolstered and vouched" for E.C, and he "improperly invited the jury

to disbelieve Mr. Perez."130

         But "[t]he prosecutor has wide latitude in closing argument to draw

reasonable inferences from the evidence and to express such inferences to the

jury."131 Further, "counsel may comment on a witness' veracity as long as he

does not express it as a personal opinion and does not argue facts beyond the

record."132 Prejudicial error will not be found unless it is "'clear and unmistakable

that counsel is not arguing an inference from the evidence, but is expressing a

personal opinion.'"133 "Where a prosecutor shows that other evidence contradicts



       128
             Id.


       129 jd (emphasis omitted) (internal quotation marks omitted) (quoting State v.
Yates. 161 Wn.2d 714, 774, 168 P.3d 359 (2007)).

       130 Statement of Additional Grounds for Review / RAP 10.10 at 26, 27.

       131 State v. Stenson. 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).

       132 State v. Smith. 104 Wn.2d 497, 510-11, 707 P.2d 1306 (1985).

      133 State v. Sargent. 40 Wn. App. 340, 344, 698 P.2d 598 (1985) (quoting State v.
Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983)).


                                              39
No. 69005-1-1/40


a defendant's testimony, the prosecutor may argue that the defendant is lying."134

       Here, the prosecutor's statements were not improper. The prosecutor

pointed out several factors for the juryto consider when evaluating E.C.'s

credibility and this was based on the evidence presented at trial. Further, he did

not express a personal opinion. Additionally, Perez testified that he had lied

during all of his interviews with the police. Thus, the prosecutor was permitted to

argue that Perez was not credible.

       Second, Perez argues that the prosecutor repeatedly emphasized, during

closing argument, White's in-court gesture and that he urged the jury to find

Perez guilty based on this inappropriate conduct. He also argues that the

prosecutor "erroneously testified for and on behalf of [E.C]" regarding this action.

But during closing, the prosecutor made it clear that this action was made only by

White. Further, Perez does not cite any authority to evaluate these arguments.

Accordingly, we do not address them any further.

       Third, Perez argues that the prosecutor committed misconduct by

misstating crucial evidence. He argues that the prosecutor misstated the

evidence in three instances: (1) when the prosecutor argued that White and

Perez were "tag teaming" the victim back and forth; (2) when the prosecutor

declared that both White and Perez threatened to punch E.C. in the face; and (3)

when the prosecutor declared that White and Perez told E.C. they would not kill

her if they "let [them] f*** [her] in the ass," because only White made this

statement.



       134 State v. McKenzie. 157 Wn.2d 44, 59, 134 P.3d 221 (2006).


                                             40
No. 69005-1-1/41


       But examination of the record indicates that the prosecutor did not

misstate the evidence.


       E.C. testified that "[White] started having sex with [her]. .. and then

[Perez] did. And they kept trying to switch back and forth." Based on this

testimony, it was not improper to describe this as "tag teaming."

       Next, while it is true that it was White who threatened to punch E.C. in the

face, the prosecutor's argument focused on the fact that Perez and White were

working together, and he was speaking generally about the events that

transpired. His comments were not improper.

       Additionally, Perez is correct that White was the one who stated: "If you let

us f*** you, then we will not kill you." But Perez was present and was ready to

participate, as evidenced by his conduct that followed. It was not improper to

attribute this threat to both White and Perez.

       Finally, Perez argues that the misconduct had a cumulative effect of

depriving him of a fair trial. Because there was no misconduct, we reject this

argument.

                         Ineffective Assistance of Counsel

       Perez also argues that his counsel's failure to object to the prosecutorial

misconduct "amounted to deficient performance which prejudiced [him]."

Because there was no misconduct and no deficient performance, we disagree.




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No. 69005-1-1/42


                             Sufficiency of the Evidence

       Perez argues that the evidence was insufficient to sustain his convictions

of two counts of rape in the second degree and one count of unlawful

imprisonment. This argument is wholly unpersuasive.

       Evidence is sufficient when any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt.135 All reasonable inferences

must be drawn in favor of the State and against the defendant.136 An appellate

court considering a sufficiency challenge must defer to the jury's determination

as to the weight and credibility of the evidence and to the jury's resolution of any

conflicts in the testimony.137

       A person may commit rape in the second degree by engaging in sexual

intercourse with another person by forcible compulsion.138 Additionally,

accomplices are legally accountable for one another's actions.139

       Here, there is ample evidence to prove that Perez and White raped E.C.

by forcible compulsion. E.C testified that Perez and White both punched her in

the face, that White said, "If you let us f*** you, then we will not kill you." She

testified that she thought they would kill her if she did not have sex with them and

that she had seen them both with guns. Further, she described how both White



       135 State v. Green. 94 Wn.2d216, 221, 616 P.2d 628 (1980).

       136 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       137 State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       138RCW9A.44.050(1)(a).

       139RCW9A.08.020(1), (2)(c).


                                              42
No. 69005-1-1/43


and Perez took turns raping her and testified that both men put their penises in

her anus and touched their penises to her face.

       There is also sufficient evidence to support Perez's conviction for unlawful

imprisonment. A person commits unlawful imprisonment by knowingly

restraining another person.140 "Restrain" means "to restrict a person's

movements without consent and without legal authority in a manner which

interferes substantially with his or her liberty."141 Restraint can be "without

consent" if it is accomplished by physical force, intimidation, or deception.142

       Here, E.C. testified that Perez and White wouldn't let her leave the room.

She said that White made her sleep on the inside of the couch while he slept on

the other side, and that any time she got up to use the bathroom, they would

walk her to the bathroom. She testified that White and Perez told her she could


not leave. She said that in the days after the rape, she felt like she could not

leave the house because they would kill her.

       In sum, there is sufficient evidence to sustain Perez's convictions.

       Perez also argues that reversal should be granted because the cumulative

effect of the errors raised. We again reject this claim.




       140RCW9A.40.040(1).

       141 RCW9A.40.010(6).

       142RCW9A.40.010(6)(a).


                                             43
No. 69005-1-1/44


      We affirm except for the community custody term, which we vacate. We

remand for the trial court to amend the community custody term or resentence on

the conviction for count I, second degree assault.

                                                      CrjA,J~-.
WE CONCUR:




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