                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                      January 29, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                              No. 49992-4-II

                               Respondent,

          v.

 COREAN OMARUS BARNES,                                       UNPUBLISHED OPINION

                               Appellant.

       MELNICK, J. — The superior court in this case wrongly considered Corean Omarus

Barnes’s CrR 7.8 motion. However, rather than remand the matter, we dismiss his appeal, convert

the matter to a personal restraint petition (PRP), and deny the PRP.

       This is Barnes’s fourth appeal.       In 2009, a jury found Barnes guilty of unlawful

imprisonment and two counts of rape in the second degree. In 2010, we reversed Barnes’s

convictions. State v. Barnes, noted at 157 Wn. App. 1076, 2010 WL 3766574 (2010) (Barnes I).

After a retrial in 2012, the jury found Barnes guilty of two counts of rape in the second degree,

unlawful imprisonment, and burglary in the first degree with sexual motivation. In 2014, we

affirmed the unlawful imprisonment and burglary convictions but reversed the two counts of rape

in the second degree convictions. State v. Barnes, No. 44075-0-II (Wash. Ct. App. June 17, 2014

(unpublished), http://www.courts.wa.gov/opinions/ (Barnes II). On remand, the court resentenced

Barnes.
49992-4-II


           In 2016, Barnes appealed his sentence and filed a PRP challenging his convictions. We

affirmed Barnes’s sentence and denied his PRP. State v. Barnes, No. 47611-8-II (Wash. Ct. App.

July 19, 2016) (unpublished), http://www.courts.wa.gov/opinions (Barnes III). Barnes then filed

a timely CrR 7.8 motion to vacate his burglary conviction, arguing sufficient evidence did not

support his conviction because he legally and lawfully resided at the residence he allegedly

burglarized. The superior court denied his motion, concluding the issue had already been decided

by this court.

           Barnes appeals, contending we should address again the sufficiency of evidence issue in

the interests of justice and under the actual innocence doctrine. We vacate the superior court’s

order, dismiss the appeal, convert the matter to a PRP, and deny the PRP.

                                                 FACTS1

I.         CRIMES, FIRST TRIAL, AND FIRST APPEAL

           Barnes and Christina Russell dated in 2007 and 2008. Beginning in early July 2008,

Kenneth Johnson rented a room to Barnes, but Barnes was unable to pay rent after the first month

and stopped living with Johnson in mid-August 2008. Johnson allowed Barnes to keep some of

his possessions at the house. Barnes no longer slept at Johnson’s house, but Johnson permitted

him to come onto the property on the condition that Barnes would first contact Johnson, and that

Johnson would be at home when Barnes arrived.

           On August 15, 2008, Russell met Barnes at Johnson’s house. While the two were outside

Johnson’s house, Barnes sexually assaulted Russell. He pulled her out of her car and forcibly

carried her to his nearby camper, where he raped her.




1
     The majority of the facts are derived from Barnes I, II, and III.


                                                     2
49992-4-II


        Later the same day, Russell drove Barnes back to Johnson’s house. At trial, Johnson

testified that Barnes did not have permission to be in Johnson’s house on August 15, 2008. Russell

and Barnes entered the home. Barnes then picked Russell up, carried her into a bedroom, and

forcibly raped her while she struggled. Russell secretly recorded both incidents of sexual assault.

        The State charged Barnes with two counts of rape in the second degree by forcible

compulsion, one count of burglary in the first degree with sexual motivation, and one count of

unlawful imprisonment. During Barnes’s first trial, the trial court admitted the entirety of Russell’s

recordings. The jury found Barnes guilty of two counts of rape in the second degree and one count

of unlawful imprisonment. The jury did not reach a verdict on the burglary charge. Barnes

appealed, arguing that the admission of Russell’s recordings violated the Privacy Act, chapter 9.73

RCW. We reversed all of the convictions and remanded for a new trial, because the trial court

erred by admitting Russell’s entire recordings.

II.     SECOND TRIAL AND SECOND APPEAL

        Barnes proceeded to a second jury trial. After the close of testimony, the trial court

instructed the jury that a person is not guilty of rape if the sexual intercourse is consensual and that

the defendant has the burden of proving that sexual intercourse was consensual. Barnes objected,

arguing unsuccessfully that the instruction foisted an unwanted affirmative defense on him.

        The jury convicted Barnes of unlawful imprisonment, both counts of rape in the second

degree, and burglary in the first degree with sexual motivation.

        Barnes appealed a second time, arguing that the trial court violated his Sixth Amendment

right to the United States Constitution to control his defense by providing the jury instruction on

the affirmative defense of consent on the rape in the second degree charges. We agreed and

reversed the rape in the second degree convictions. We affirmed the convictions for unlawful



                                                   3
49992-4-II


imprisonment and burglary in the first degree, rejecting Barnes’s argument that insufficient

evidence supported his burglary conviction because Barnes’s presence at Johnson’s home was

unlawful because he had permission to be there.

III.   RESENTENCING AND THIRD APPEAL

       The State declined to retry Barnes for a third time on the rape in the second degree charges.

On remand, the court resentenced Barnes for burglary in the first degree with sexual motivation

and unlawful imprisonment.

       Barnes appealed his new sentence. Barnes also filed a PRP in this court. We consolidated

the PRP with Barnes’s direct appeal.

       In his PRP, Barnes again argued that insufficient evidence supported his burglary

conviction because he lawfully lived at Johnson’s residence. The State argued that Barnes may

not raise this issue again because it was fully litigated in a previous direct appeal. We agreed with

the State and dismissed the PRP, but affirmed Barnes’s sentence. Barnes III mandated on January

23, 2017.

IV.    CRR 7.8 MOTION

       On December 7, 2016, Barnes filed a timely CrR 7.8 motion to vacate his burglary in the

first degree with sexual motivation conviction. The superior court judge commented during the

motion hearing that he considered transferring the matter to the court of appeals but he “just

couldn’t in good conscious do that. Because, well, I personally know some of them and I think

what they would say is why would you send this.” Report of Proceedings (Feb. 10, 2017) at 31.




                                                  4
49992-4-II


       Barnes argued that he was innocent of the burglary conviction because he legally and

lawfully resided at Johnson’s residence. The trial court denied Barnes’s motion, concluding “the

matter at issue has been considered and resolved per the Washington Court of Appeals.” Clerk’s

Papers at 16. Barnes appeals.

                                              ANALYSIS

I.     REACHING MERITS OF CRR 7.8 MOTION

       As an initial matter, we consider whether the superior court abused its discretion in

reaching the merits of Barnes’s CrR 7.8 motion instead of transferring the matter to this court as a

PRP.

       We review a trial court’s ruling on a CrR 7.8 motion for abuse of discretion. State v.

Zavala-Reynoso, 127 Wn. App. 119, 122, 110 P.3d 827 (2005). Under this standard, the trial

court’s decision will not be reversed unless it was manifestly unreasonable or based on untenable

grounds or reasons. State v. Gentry, 183 Wn.2d 749, 761, 356 P.3d 714 (2015). An abuse of

discretion also occurs if the trial court bases its ruling on an erroneous view of the law. State v.

Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007).

       Under CrR 7.8(c)(2), the superior court “shall” transfer a CrR 7.8 motion to this court

unless it is timely AND “the defendant has made a substantial showing that he or she is entitled to

relief” or “resolution of the motion will require a factual hearing.” Barnes did not make a

substantial showing that he was entitled to relief to the superior court and there was no need for a

factual hearing to resolve Barnes’s issues.




                                                 5
49992-4-II


          Barnes timely filed his CrR 7.8 motion to vacate his burglary conviction, but the superior

court was still required to transfer the motion to this court to be considered as a PRP because there

was no substantial showing that Barnes was entitled to relief or that a factual hearing was required.

This amounted to an abuse of discretion. State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666

(2008).

          We, therefore, vacate the superior court’s order denying Barnes’s CrR 7.8 motion, dismiss

his appeal, convert the matter to a PRP, and deny the PRP.

II.       PRP STANDARD OF REVIEW

          To be entitled to collateral relief through a PRP, the petitioner must first establish error

“‘by a preponderance of the evidence.’” In re Pers. Restraint of Crow, 187 Wn. App. 414, 420-

21, 349 P.3d 902 (2015) (quoting In re Pers. Restraint of Monschke, 160 Wn. App. 479, 490, 251

P.3d 884 (2010)). Second, if the petitioner is able to show error, he or she then must also prove

prejudice, the degree of which depends on the type of error shown. Crow, 187 Wn. App. at 421.

If a constitutional error, the petitioner must demonstrate it resulted in actual and substantial

prejudice to him. In re Pers. Restraint of Davis, 152 Wn.2d 647, 671-72, 101 P.3d 1 (2004). If a

nonconstitutional error, the petitioner must meet a stricter standard and demonstrate the error

resulted in a fundamental defect which inherently resulted in a complete miscarriage of justice.

Davis, 152 Wn.2d at 672. If the petitioner fails to make a prima facie showing of either actual and

substantial prejudice or a fundamental defect, we deny the PRP. In re Pers. Restraint of Schreiber,

189 Wn. App. 110, 113, 357 P.3d 668 (2015). We also deny the PRP when a petitioner renews an

issue “that was raised and rejected on direct appeal, unless the interests of justice require the issue’s

relitigation.” Schreiber, 189 Wn. App. at 113.




                                                   6
49992-4-II


III.   BURGLARY IN THE FIRST DEGREE WITH SEXUAL MOTIVATION

       Barnes argues that insufficient evidence supports his burglary in the first degree with

sexual motivation conviction because he did not unlawfully enter a building. While this issue

was addressed in Barnes II and Barnes III, Barnes argues the issue should be relitigated in the

interest of justice. We disagree.

       A.      Sufficiency of Evidence

       We review sufficiency of the evidence de novo. State v. Berg, 181 Wn.2d 857, 867, 337

P.3d 310 (2014). When reviewing sufficiency of the evidence, we ask whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

that the State proved the crime’s essential elements beyond a reasonable doubt. Berg, 181 Wn.2d

at 867. We assume all of the State’s evidence and any reasonable inferences from it are true, and

all reasonable inferences from the evidence must be drawn in the State’s favor and interpreted

most strongly against the defendant. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).

Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d

634, 638, 618 P.2d 99 (1980). We defer to the jury to resolve issues of conflicting testimony,

credibility of witnesses, and persuasiveness of the evidence. State v. Rodriquez, 187 Wn. App.

922, 930, 352 P.3d 200 (2015).

       A person commits burglary in the first degree “if, with intent to commit a crime against a

person or property therein, he or she enters or remains unlawfully in a building and if, in entering

or while in the building or in immediate flight therefrom, the actor or another participant in the

crime (a) is armed with a deadly weapon, or (b) assaults any person.” RCW 9A.52.020(1).




                                                 7
49992-4-II


       Barnes argues he did not unlawfully enter a building because he had permission to be inside

Johnson’s residence as a former renter. We considered, and rejected, this argument in Barnes II

and Barnes III.

       In Barnes II, Barnes argued that the State failed to prove the elements of burglary in the

first degree because there was no evidence that his presence was unlawful. Viewing the evidence

in the light most favorable to the State, including Johnson’s testimony that Barnes did not have

permission to be inside Johnson’s home on the day in question, we held that sufficient evidence

supports the burglary conviction.

       In Barnes III, Barnes again argued that insufficient evidence supports his burglary in the

first degree conviction because he lawfully lived at Johnson’s residence. The State argued that

Barnes may not raise this issue again because it was fully litigated in a previous direct appeal. We

agreed with the State, and held that “Barnes does not now show that the interests of justice require

this issue’s relitigation.” Barnes III, No. 47611-8-II, slip op. at 4.

       Barnes now raises this issue for a third time. He argues that we should readdress this issue

in the interests of justice and because he is actually innocent.

       B.      Interests of Justice.

       In a request for collateral relief, the person requesting relief is prohibited from renewing

an issue that was raised and rejected on direct appeal unless the interests of justice require

relitigation of that issue. Davis, 152 Wn.2d at671. “[R]eexamination of an issue decided in a prior

appeal is limited to cases where an intervening change in the law or some other circumstance

justified the failure to raise a crucial argument on appeal.” In re Pers. Restraint of Mines, 190 Wn.

App. 554, 570, 364 P.3d 121 (2015).




                                                   8
49992-4-II


       Barnes raises the same arguments raised before with the additional argument that he

lawfully entered the premises based on the Residential Landlord-Tenant Act of 1973, chapter 59.18

RCW. But, this Act is not a new intervening change in the law. And Barnes does not raise any

new circumstances that justify a failure to raise the crucial argument previously. Accordingly,

Barnes has not shown that the interests of justice require relitigation of the sufficiency of the

evidence issue.

       C.      Actual Innocence Doctrine

       Barnes next claims that we should address his sufficiency of the evidence issue again

because he is actually innocent of the burglary conviction. We disagree.

       The actual innocence doctrine applies when a defendant can show by clear and convincing

evidence that an alleged constitutional error resulted in the conviction of an actually innocent

defendant and a “fundamental miscarriage of justice would otherwise result if the collateral attack

is dismissed.” In re Pers. Restraint of Carter, 172 Wn.2d 917, 923, 263 P.3d 1241 (2011). A

claim in such case is thus a gateway actual innocence claim because it is not a freestanding claim

of constitutional error, but rather an attempt to evade a procedural bar and reach the alleged error.

       Assuming without deciding that the actual innocence doctrine applies here, Barnes fails to

show constitutional error relating to his sufficiency of the evidence argument. A defendant

asserting an actual innocence claim must, at a minimum, make a threshold showing of innocence.

In re Pers. Restraint of Weber, 175 Wn.2d 247, 260, 262-63, 284 P.3d 734 (2012).

       Barnes continues to argue that he had permission to be at Johnson’s residence, but the

evidence in the record shows his rental agreement was terminated based on unpaid rent. Johnson

allowed Barnes to temporarily store his personal property at Johnson’s home, but Barnes could

only enter the home with Johnson’s permission. And Johnson did not give Barnes permission to



                                                 9
49992-4-II


enter the home on the day in question. While Barnes tells a different story, we leave credibility

determinations to the trier of fact. Rodriquez, 187 Wn. App. at 930. Moreover, we view this

evidence in a light most favorable to the State. Berg, 181 Wn.2d at 867. Accordingly, Barnes has

not met his burden of showing by clear and convincing evidence that he was actually factually

innocent of the burglary conviction.

        Because Barnes fails to show he is entitled to collateral relief, we deny his PRP.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                             Melnick, J.

We concur:




        Worswick, P.J.




        Sutton, J.




                                                 10
