                                                                          FILED
                                                              CO117‘,1" OF APPEALS DIV I
                                                                            VAStittiGIC.1!
                                                                ST/SE OF

                                                               2011 VIM -1        11: 01




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                  )       No. 73850-0-1
                                          )
                     Respondent,          )
                                          )       DIVISION ONE
                     v.                   )
                                          )       UNPUBLISHED OPINION
DERRIUS D. FORCHA-WILLIAMS,               )
                                          )
                     Appellant.           )       FILED: May 1, 2017
                                          )

        MANN, J. — Derrius Forcha-Williams was charged with one count of first degree
rape, second degree assault, and the lesser included offenses of second degree rape

and third degree assault. At trial, the victim, P.C., testified inconsistently about the

types of intoxicants she consumed the day of the assault. When confronted with the

inconsistent statements, she stated she did not remember making them. Forcha-

Williams was found guilty of second degree rape. Forcha-Williams argues on appeal

that he was denied effective assistance of counsel when his attorney failed to follow the

correct procedure necessary to allow impeachment of P.C. We disagree and affirm the

trial court.
No. 73850-0-1/2


                                               I

       In December 2012, P.C. was homeless. On the morning of December 3, 2012, a

man, later identified as Forcha-Williams orally and vaginally raped P.C. in the dumpster

area behind a restaurant in Federal Way. During the course of the attack, Forcha-

Williams put P.C. in a chokehold from behind, kicked her, hit her several times in the

body, and hit her in the right eye.

       After Forcha-Williams left the dumpster area, P.C. went into a nearby Jack in the

Box. One employee took P.C. to the bathroom while another called 911. After giving a

formal statement to a police officer, P.C. was transported by ambulance to the hospital.

       At the hospital, Detective Kristopher Krusey asked P.C. if she was "intoxicated or

impaired from using any kind of drug or alcohol." P.C. told Krusey that "she had a few

beers that morning" and that "she had recently used OxyContin earlier that night and

also took an unknown blue pill that was given to her by an unknown subject not involved

in the sexual assault." Urinalysis and blood testing two hours after the incident

indicated that amphetamine, cocaine, and cannabis were present in her system. No

other detectable substance was found, such as alcohol or oxycodone. The

deoxyribonucleic acid (DNA)analysis of P.C.'s rape kit revealed the presence of DNA

from only two people: P.C. and Forcha-Williams. The forensic scientist testified that the

probability of selecting an unrelated individual from the U.S. population with a matching

profile was 1 in 3.4 sextillion.

       In February 2013, the police arrested Forcha-Williams. The State charged

Forcha-Williams with one count of rape in the first degree and one count of assault in

the second degree.

                                         -2-
No. 73850-0-1/3


       Before trial, Forcha-Williams sought to admit P.C.'s recent drug and alcohol use,

arguing the recent drug use was relevant to P.C.'s ability to accurately perceive and

remember the alleged incident. The State conceded P.C.'s recent drug use was

relevant to P.C.'s perception and memory of the events. The trial court agreed and

admitted evidence of P.C.'s use of intoxicants near the time of the alleged incident. In

her trial testimony, P.C. acknowledged consuming methamphetamine, cocaine, and

alcohol the day before the alleged incident. P.C. testified that she did not consume any

intoxicating substances after 6 p.m. the evening before the alleged incident. P.C.

denied feeling the effects of the drugs at the time of the incident.

       During cross-examination, defense counsel questioned P.C. about her use of

intoxicants in the hours before the alleged incident, asking if she remembered talking to

Krusey, and if she remembered telling one of the officers that she "had a few beers,"

"had had some Oxy," and "had taken a blue bill" that morning. P.C. said that she did

not remember telling an officer that she had consumed any beers, done "Oxy", or had

taken a "blue pill." In addition, she was unable to say what the blue pill would have

been, responding, "[t]he only blue pill I know of is not for women." She also stated that

she does not do "Oxy." P.C. was not asked to confirm or deny whether she made the

statements to Krusey. Defense counsel did not attempt to admit extrinsic evidence of

the prior inconsistent statements at that time.

       Throughout P.C.'s testimony, she was unable to remember several events from

that day, such as riding in an ambulance and being photographed by officers. P.C. did

add that her not remembering "doesn't mean it didn't happen." On redirect examination,

P.C. also indicated that she did not remember whether she had anything to drink on the

                                          -3-
No. 73850-0-1/4


day of or the day before the incident. Only that, at the time of the incident, she was not

feeling the effects of any drugs or alcohol.

       Krusey testified two days after P.C. On cross-examination, defense counsel

questioned Krusey about what P.C. had told him at the hospital. Krusey was asked

whether P.C. told him that she had used drugs or alcohol on the morning of the incident.

Krusey confirmed that P.C. told him that she had consumed "a few beers that morning."

The prosecutor objected to Krusey's testimony as hearsay. The objection was

sustained. The prosecution did not move to strike the testimony, and the jury was not

instructed to disregard it.

       Defense counsel requested a hearing outside the presence of the jury. Defense

counsel argued that his questions to Krusey were proper impeachment under ER 607

because P.C. either denied her statements to Krusey or claimed she did not have an

independent memory of them. The trial court confirmed its original ruling sustaining the

prosecutor's objection, and ruled that because P.C. testified only that she did not recall

making the statements, any impeachment was on the collateral matter of P.C.'s

memory. Defense counsel never requested for P.C. to be recalled as a witness so that

proper foundation could be established to admit extrinsic evidence of her inconsistent

statements.

       At the end of trial, the jury found Forcha-Williams guilty of the lesser offense of

second degree rape. Forcha-Williams appeals.

                                               II

       Forcha-Williams argues on appeal that he was denied effective assistance of

counsel when his attorney failed to follow the correct procedure necessary to allow

                                          -4-
No. 73850-0-1/5


impeachment of P.C. using her prior inconsistent statements regarding the type of

intoxicants she was on the morning of the attack. We disagree.

      Every accused person has a constitutional right to the effective assistance of

counsel. U.S. Const. Amend. VI; Const. art. 1, § 22; Strickland v. Washington, 466 U.S.

668,685-86, 104 S. Ct. 2052, 80L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17,

32, 246 P.3d 1260 (2011). The burden is on the defendant to demonstrate his counsel

was constitutionally ineffective. Grier, 171 Wn.2d at 33. We review ineffective

assistance of counsel challenges de novo. State v. Mitchell, 190 Wn. App. 919, 927-28,

361 P.3d 205 (2015), review denied, 185 Wn.2d 1024, 377 P.3d 709(2016).

      To prevail on a claim of ineffective assistance, Forcha-Williams must show (1) his

attorney's representation was deficient and (2) Forcha-Williams was prejudiced,

meaning there is a reasonable probability that the result of the trial would have been

different absent the challenged conduct. Strickland, 466 U.S. at 687-88.

      Performance is deficient if it falls "below an objective standard of

reasonableness." Strickland, 466 U.S. at 688. A defendant alleging ineffective

assistance must overcome "a strong presumption that counsel's performance was

reasonable." State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). "When

counsel's conduct can be characterized as legitimate trial strategy or tactics,

performance is not deficient." Kyllo, 166 Wn.2d at 863. "A criminal defendant can rebut

the presumption of reasonable performance by demonstrating that 'there is no

conceivable legitimate tactic explaining counsel's performance." Grier, 171 Wn.2d at

33(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80(2004)). "A fair

assessment of attorney performance requires that every effort be made to eliminate the

                                          -5-
No. 73850-0-1/6


distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the time."

Strickland, 466 U.S. at 689.

       To satisfy the prejudice prong, the defendant must establish that "there is a

reasonable probability that, but for counsel's deficient performance, the outcome of the

proceedings would have been different." Kyllo, 166 Wn.2d at 862. "A reasonable

probability is a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694. The defendant "need not show that counsel's deficient

conduct more likely than not altered the outcome in the case." State v. Thomas, 109

Wn.2d 222, 226, 743 P.2d 816(1987)(quoting Strickland, 466 U.S. at 693)).

       The trial court here ruled that defense counsel could not admit extrinsic evidence

of P.C.'s prior statements to Krusey because defense counsel only asked P.C. whether

she "remembered" telling Krusey that she had consumed a couple of beers that

morning, used OxyContin earlier that night, and had taken an unknown blue pill. The

trial court found that because counsel did not specifically ask P.C. whether she had

made the prior statement, any extrinsic evidence would only be on the "collateral matter

of her inability to recall."

        "Evidence offered to impeach is relevant only if(1) it tends to cast doubt on the

credibility of the person being impeached, and (2)the credibility of the person being

impeached is a fact of consequence to the action." State v. Allen S., 98 Wn. App. 452,

459-60, 989 P.2d 1222(1999). To impeach a witness with a prior inconsistent

statement under ER 613(b), the witness must be given an opportunity to admit or deny

the statement and to explain it. This can be done either before or after the extrinsic

                                          -6-
No. 73850-0-1/7


evidence is introduced. State v. Horton, 116 Wn. App. 909, 916,68 P.3d 1145(2003)

(citing State v. Johnson, 90 Wn. App. 54, 950 P.2d 981 (1998)). If the witness is asked

before the extrinsic evidence is admitted, and admits making the prior statement,

extrinsic evidence of the statement is cumulative and thus inadmissible. State v.

Babich, 68 Wn. App. 438, 443, 842 P.2d 1053(1993). If the witness denies making the

prior statement, extrinsic evidence of the statement is admissible unless it concerns

only a collateral matter. If the witness is not asked about the statement during direct or

cross-examination, impeachment may still be accomplished at a later point so long as

arrangements are made for the witness to be recalled. Horton, 116 Wn. App. at 915-16.

       This court held in Horton that a defense counsel's failure to comply with

ER 613(b) regarding the use of extrinsic evidence for a prior inconsistent statement,

may fall below an objective standard of reasonableness depending on the particular

facts and circumstances of the case. Horton, 116 Wn. App. at 917.

       The defendant in Horton was charged with rape of a 13-year-old child, S.S. A

medical examination of S.S. found "penetrating trauma to the hymen." Horton, 116 Wn.

App. at 911. Prior to trial, S.S. told a Child Protective Services(CPS) investigator that

she had been having sexual intercourse with a boy. Defense counsel also interviewed

one of S.S.'s friends that reported that S.S. had been bragging about having sexual

intercourse with a boy, M.P. Horton, 116 Wn. App. at 913. At trial, the prosecutor

asked S.S. whether she had engaged in sexual intercourse with any person other than

the defendant. She responded:"No." Horton, 116 Wn. App. at 913. Defense counsel

then asked S.S. during cross-examination to confirm that she had told the prosecutor

during direct examination that she had not engaged in sexual intercourse with anyone

                                          -7-
No. 73850-0-1/8


other than the defendant. Defense counsel did not ask S.S. to explain or deny her prior

statements to the CPS investigator or her friend, nor did she ask the court to have S.S.

remain in attendance. Horton, 116 Wn. App. at 913.

       In Horton, the defense counsel wanted to call the CPS investigator and S.S.'s

friend to relate S.S.'s pretrial statements about sexual activity with M.P. The trial court

sustained the State's motion to exclude the testimony because defense counsel had not

complied with ER 613(b). Horton, 116 Wn. App. at 914. On appeal, the court held that

defense counsel's failure to properly impeach the victim fell below the objective

standard for reasonableness. Horton, 116 Wn. App. at 916-17. The court held,

"noncompliance with ER 613(b) was entirely to Horton's detriment; . . . compliance with

ER 613(b) would have been only to his benefit; and thus.. . counsel's noncompliance

could not have been a strategy or tactic designed to further his interests." Horton, 116

Wn. App. at 916-17.

       Forcha-Williams contends that, like Horton, defense counsel's failure to follow the

proper procedure to admit the extrinsic evidence, and failure to recall P.C. in order to do

so, was constitutionally deficient performance. But here, unlike Horton, defense

counsel asked P.C. during cross-examination whether she remembered telling one of

the officers that she "had a few beers," "had some Oxy," and "had taken a blue bill" that

morning. P.C. said that she did not remember telling an officer that she had consumed

any beers, done "Oxy", or had taken a "blue pill." Defense counsel correctly laid the

foundation for Krusey's subsequent extrinsic evidence testimony. While Forcha-

Williams does not assign error to the trial court's decision, arguably, the trial court erred



                                           -8-
No. 73850-0-1/9


in sustaining the State's objection and not admitting Krusey's testimony to impeach P.C.

on her inconsistent statements.

       This case is consistent with this court's decision in State v. Newbern, 95 Wn.

App. 277, 293-94, 975 P.2d 1041 (1999). In Newbern, the State followed a similar

impeachment process as the defense counsel attempted in this case. The State

questioned the witness about prior inconsistent statements she made in an interview,

and, in response, the witness claimed to have no memory of the interview. Newbern,

95 Wn. App. at 282. The trial court then permitted the State to impeach this witness

with extrinsic evidence by calling the other party to the interview to testify about what

had been said, and play a recording of the interview. Newbern, 95 Wn. App. at 282.

       On appeal, the court reasoned that when a witness's prior statement is

inconsistent with her testimony at trial, but the witness responds by saying that she

does not remember making the statement, extrinsic evidence of the prior statement

remains admissible for impeachment purposes. Newbern, 95 Wn. App. at 293-94.

"This is because the purpose of using prior inconsistent testimony to impeach is to allow

an adverse party to show that the witness tells different stories at different times."

Newbern, 95 Wn. App. at 293. "Even if a witness cannot remember making a prior

inconsistent statement, if the witness testifies at trial to an inconsistent story, the need

for the jury to know that this witness may be unreliable remains compelling." Newbern,

95 Wn. App. at 293.

       In this case, the trial court erroneously focused on the form of defense counsel's

question,"do you remember saying" compared to "did you say," and held that the form

of the question meant the only available evidence for impeachment went to P.C.'s ability

                                           -9-
No. 73850-0-1/10


to remember the interview. Such a differentiation is unnecessary. Either way, defense

counsel asked P.C. about the statements during cross-examination and afforded her the

opportunity to confirm, deny, or explain those statements in accordance with ER 613(b).

In response, she said she did not remember making the statements, and at one point

went further saying she does not "do oxy." P.C. testifying that she did not remember the

interview is the functional equivalent of a denial for the purposes of impeachment, and

defense counsel should have been permitted to admit extrinsic evidence after P.C. left

the stand to impeach her credibility regarding her inconsistent story. Because defense

counsel followed the proper impeachment process, his actions were not deficient.

       Forcha-Williams also contends that defense counsel's conduct was deficient

because he failed to remedy the ruling by recalling P.C. so that he might question her in

the way described by the trial court, then admit the extrinsic evidence. Forcha-Williams

argues that this case is similar to Horton, as "there [was] no conceivable legitimate

tactic explaining counsel's performance." Grier, 171 Wn.2d at 33; Horton, 116 Wn. App.

at 916-17. We disagree.

       Defense counsel's conduct did not fall "below an objective standard of

reasonableness" because defense counsel could reasonably have determined that

recalling P.C. was unnecessary. The jury was already aware of the evidence that P.C.

had told a detective that she had consumed beer, OxyContin, and a blue pill on the

morning of the incident. While P.C. testified that she did not remember making the

statement, she also testified that she did not remember doing several other things that

were uncontested facts, such as riding in an ambulance and being photographed by

officers. Moreover, when defense counsel questioned Krusey about the interview,

                                         -10-
No. 73850-0-1/1 1


Krusey was able to confirm that P.C. told him that she had consumed several beers

before the prosecutor could object. That statement was not stricken from the record.

"When an objection is sustained with no further motion to strike the testimony and no

further instruction for the jury to disregard the testimony, the testimony remains in the

record for the jury's consideration." State v. Stackhouse, 90 Wn. App. 344, 361, 957

P.2d 218 (1998).

       Likewise, defense counsel's conduct can reasonably be characterized "as

legitimate trial strategy or tactics" as the defense could have determined that recalling

P.C. to the stand might have harmed the defense more than it would have helped.

KvIlo, 166 Wn.2d at 863. Recalling P.C. would have allowed defense counsel the

opportunity to again impeach her credibility, however, it would also give the State an

opportunity to have P.C. explain why she may not remember the interview, which would

likely encourage more highly prejudicial testimony about the severity of the attack and

her injuries.

       Forcha-Williams also cannot demonstrate that he was prejudiced by the entirety

of this evidence not being admitted. As stated above, substantial evidence made it into

the record and was available for the jury to consider. Evidence in the record had

already fulfilled the purpose of demonstrating P.C.'s lack of memory and inconsistency

in relaying the facts to detectives and at trial. The evidence was not available for any

other purpose, such as to prove that P.C. had taken these intoxicants. Prior

inconsistent statements are offered solely to show the witness is not truthful, such

evidence may not be used to argue that the facts contained in the prior statement are



                                          -11-
No. 73850-0-1/12


substantively true.1 State v. Burke, 163 Wn.2d 204, 219, 181 P.3d 1 (2008).

Considering all of the evidence, Forcha-Williams has failed to demonstrate there is a

reasonable probability that, had defense counsel found a way to admit the evidence in

its entirety, the outcome of the proceedings would have been different.

                                                  Ill

       Finally, Forcha-Wlliams asks that no costs be awarded on appeal. Appellate

costs are generally awarded to the substantially prevailing party on review. However,

when a trial court makes a finding of indigency, that finding remains throughout review

"unless the commissioner or clerk determines by a preponderance of the evidence that

the offender's financial circumstances have significantly improved since the last

determination of indigency." RAP 14.2. Here, Forcha-Williams was found indigent by

the trial court. If the State has evidence indicating that Forcha-Williams' financial

circumstances have significantly improved since the trial court's finding, it may file a

motion for costs with the commissioner.

       We affirm.



                                                             r(414.tet

WE CON          :




         Even if it could, the record also included urinalysis and blood testing that indicated that
amphetamine, cocaine, and cannabis were present in P.C.'s system, but no other detectable substance
was found, such as alcohol or oxycodone. This evidence explicitly refuted any statement by P.C. that she
had consumed any of the intoxicants she listed to Detective Krusey.
                                                -12-
