          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON                         )
                                            )   No. 77445-0-I
                        Respondent,
                                            )   DIVISION ONE
              v.
                                            )
DEREJE ASRAT DEGFU, AKA
DEREJE YAKAYO KEBEDE,
                                            )   UNPUBLISHED OPINION
                                            )
                       Appellant.           )   FILED: September 23, 2019


       SMITH, J.   —   Dereje Kebede,1 an off-the-clock Uber driver, picked up 22-

year-old J.A. from a taco stand at a known party spot on Capitol Hill at 1:55 am.,

drove her to a motel in Tukwila, and tried to have sex with her while she was

incapacitated. Kebede testified J.A. was not drunk and she initiated and

consented to sexual intercourse. A jury did not accept Kebede’s testimony and

convicted him of attempted second degree rape.

      On appeal, Kebede argues that the State failed to prove he believed J.A.

was incapacitated. But given the overwhelming evidence of J.A.’s obvious

intoxication, sufficient evidence supports his conviction. The same overwhelming

evidence supports a conclusion that any ambiguity within the jury instructions

was harmless beyond a reasonable doubt. We also reject Kebede’s claims of


      1  Although the State charged the defendant as “Dereje Asrat Degfu,”
counsel for appellant and counsel for respondent refer to appellant’s last name
as “Kebede.” We therefore refer to appellant as “Kebede” throughout the
opinion.
No. 77445-0-1/2

prosecutorial misconduct, ineffective assistance of counsel, and improper

exclusion of evidence. Finally, none of the issues in Kebede’s statement of

additional grounds for review (SAG) warrant reversal. We affirm Kebede’s

conviction but remand to the trial court to strike Kebede’s court costs from his

judgment and sentence due to his indigency at the time of sentencing.

                                       FACTS

       On March 28, 2015, J.A. worked a double shift until around 10:00 p.m.

and then met her friends at a nightclub on Capitol Hill to celebrate her 22nd

birthday. J.A., who weighed about 120 pounds, did not have time to eat that

night, and after consuming Red Bull and vodka, shots, and beer, she blacked

out. While in the nightclub, J.A. lost her cell phone. She was later kicked out of

the club and a black ‘X” was drawn on her hand, signifying that she was too

intoxicated to reenter the club.

       Kebede, an Uber driver, dropped off his last passenger at 1:46 am. and

signed off of the Uber application. He picked up J.A. at 1:55 a.m. while she was

eating a taco in front of a taco truck. J.A. was trying to flag down a taxi in front of

Kebede, but he honked so that the taxi would drive off and J.A. would get in his

car. Kebede believed J.A. wanted to go to Des Moines, south of Seattle, but he

drove her northeast to the Washington Park Arboretum (Arboretum Park). At the

park, she looked for her lost cell phone in his car and urinated in some nearby

bushes. Kebede then drove J.A. down Martin Luther King Jr. Way from Seattle

to a motel in Tukwila, where he attempted to have sex with her but could not

maintain an erection.


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No. 77445-0-1/3

       The next morning, J.A. awoke in the motel, still intoxicated, and did not

know where she was or who Kebede was. Kebede told her that they had sex.

J.A. used Kebede’s phone to call a friend and Kebede dropped off J.A. at that

friend’s house. After processing that she had been raped, J.A. ran out of the

house into the front yard and was kneeling and lying on the ground, screaming

and hysterical. A police officer saw J.A. and offered assistance. After speaking

with the officer, J.A. decided to go to the hospital for a sexual assault evaluation.

The exam revealed Kebede’s saliva DNA (deoxyribonucleic acid) on J.A.’s

vaginal area as well as several vaginal injuries.

       The State charged Kebede with attempted second degree rape. Kebede

gave a statement to police that was videotaped and later admitted at trial. At

trial, Kebede testified that J.A. was not drunk and that she initiated their sexual

encounter. A jury convicted him as charged. Kebede appeals.

                                     ANALYSIS

                            Sufficiency of the Evidence

       Kebede argues that the State presented insufficient evidence that he

intended to have intercourse with a mentally incapacitated person and, therefore,

his conviction should be reversed. We disagree.

       In determining the sufficiency of the evidence, we view the evidence in the

light most favorable to the State and determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). A

challenge to the sufficiency of the evidence admits the truth of the evidence.


                                          3
No. 77445-0-1/4

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

reasonable inferences from the evidence must be drawn in favor of the State and

interpreted most strongly against the defendant.” Salinas, 119 Wn.2d at 201. “In

determining the sufficiency of the evidence, circumstantial evidence is not to be

considered any less reliable than direct evidence.” State v. Delmarter, 94 Wn.2d

634, 638, 618 P.2d 99(1980).

         “A person is guilty of an attempt to commit a crime if, with intent to commit

a specific crime, he or she does any act which is a substantial step toward the

commission of that crime.” ROW 9A.28.020(1). “A person is guilty of rape in the

second degree when             .   .   .   the person engages in sexual intercourse with another

person   .   .   .   [w]hen the victim is incapable of consent by reason of being       .




mentally incapacitated.” RCW 9A.44.050(1)(b). “Mental incapacity’ is that

condition existing at the time of the offense which prevents a person from

understanding the nature or consequences of the act of sexual intercourse

whether that condition is produced by illness, defect, the influence of a substance

or from some other cause.” ROW 9A.44.01 0(4). Therefore, to commit the crime

of attempted rape in the second degree, “the defendant must intend to have

intercourse with a victim incapable of consent.” State v. Weaville, 162 Wn. App.

801, 816, 256 P.3d 426 (2011).

       Second degree rape is a strict liability crime because it has no mens rea.

Ct State v. Deer, 175 Wn.2d 725, 731, 287 P.3d 539 (2012) (“As a strict liability

crime, child rape in the third degree requires no proof of mens rea.”). In other

words, the defendant’s “knowledge” of the victim’s incapacity is not a statutory


                                                         4
No. 77445-0-1/5

element of second degree rape. State v. Lough, 70 Wn. App. 302, 328 n.20, 853

P.2d 920 (1993), affd, 125 Wn.2d 847, 889 P.2d 487 (1995). Therefore, a

defendant may assert an affirmative defense and “prove by a preponderance of

the evidence that at the time of the offense the defendant reasonably believed

that the victim was not mentally incapacitated.” RCW 9A.44.030(1).

        But when the crime is not completed and is charged as attempted second

degree rape, there is a mens rea requirement because the State must prove that

the defendant intended to have intercourse with a victim who is incapable of

consent. Weaville, 162 Wn. App. at 816. Washington “require[sJ the highest

possible mental state for criminal attempt because criminal attempt focuses on

the dangerousness of the actor, not the act.” State v. Johnson, 173 Wn.2d 895,

905, 270 P.3d 591 (2012). Therefore, it is not sufficient for the State to prove

only that the defendant intended to have sexual intercourse. The State must

prove that the defendant intended to have sexual intercourse with an

incapacitated victim. Cl~ Johnson, 173 Wn.2d at 907 (disapproving of the

statement in State v. Chhom, 128 Wn.2d 739, 743, 911 P.2d 1014 (1996), that

defined the criminal result of rape of a child as sexual intercourse alone). That

said, intent “may be inferred from all the facts and circumstances surrounding the

commission of an act or acts.” State v. Bergeron, 105 Wn.2d 1, 19, 711 P.2d

1000 (1985); State v. Abuan, 161 Wn. App. 135, 155, 257 P.3d 1(2011)

(Criminal intent may be inferred “from conduct that plainly indicates such intent

as a matter of logical probability.”).




                                         5
No. 77445-0-1/6

       In Johnson, the State charged the defendant with attempted promotion of

commercial sexual abuse of a minor. Johnson, 173 Wn.2d at 909. There, the

minor victims were fictitious and the actual communications for which the

defendant was prosecuted occurred with adult women posing as minors.

Johnson, 173 Wn.2d at 897. The Supreme Court held that its statement in State

v. Patel, 170 Wn.2d 476, 485, 242 P.3d 856 (2010), that “a defendant who

attempts to have sex with a person he believes is underage but is actually an

adult may not be convicted” of attempted child rape, was dicta. Johnson, 173

Wn.2d at 904. It clarified that “[tjhe State must prove the age of the intended

victim to prove that the defendant intended to have sexual intercourse with a

child.” Johnson, 173 Wn.2d at 908. Similarly, to obtain a conviction for

attempted second degree rape, the State must prove that the defendant intended

to have intercourse with an incapacitated person.

       Here, taking the evidence in the light most favorable to the State, there

was sufficient evidence that Kebede intended to have intercourse with a person

who was incapable of consent. J.A. testified that she blacked out at the

nightclub, was kicked out, and had a black ‘X” on her wrist. One of J.A.’s friends

testified that J.A. seemed very drunk and was hanging onto a friend for support

outside of the nightclub after she was kicked out. Kebede testified that he turned

off his Uber application just before he picked up J.A. in front of a taco stand on

Capitol Hill. Instead of driving south and taking J.A. to Des Moines, where he

believed she lived, he drove her northeast to Arboretum Park, where J.A.

urinated in the bushes and looked for her lost phone in his car. Kebede admitted


                                          6
No. 77445-0-1/7

that he told a detective that when he picked up J.A., she was “tipsy,” would have

been over the legal limit to drive, and was acting unlike “99 percent” of his other

passengers. From this evidence, a rational juror could reasonably have inferred

from the surrounding facts and circumstances that Kebede intended to have

intercourse with J.A. while she was incapacitated. Although Kebede testified that

J.A. was not drunk, the jury, who was in the best position to weigh the credibility

and persuasiveness of Kebede’s perceptions, clearly did not believe him.

       Kebede argues that the evidence was insufficient because there was

contradicting testimony regarding the level of J.A.’s intoxication. But on a

sufficiency challenge, all evidence must be taken in the light most favorable to

the State. The evidence outlined above, when taken in the light most favorable

to the State, was sufficient to prove that Kebede believed J.A. was intoxicated

and incapable of consent.

                                  Jury Instructions

       Kebede argues that his right to due process was violated because the jury

instructions failed to clarify that the jury needed to find that he intended to have

sex with an incapacitated person. Because any error was harmless, we

disagree.

       “We review alleged errors of law in jury instructions de novo.” State v.

Nelson, 191 Wn.2d 61, 69, 419 P.3d 410 (2018) (quoting State v. Boss, 167

Wn.2d 710, 716, 223 P.3d 506 (2009)). “An omission or misstatement of the law

in a jury instruction that relieves the State of its burden to prove every element of

the crime charged is erroneous.” Nelson, 191 Wn.2d at 69 (quoting State v.


                                          7
No. 77445-0-1/8

Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004)). “The standard for clarity in a

jury instruction is higher than for a statute” because “a jury lacks   .   .   .   interpretive

tools and thus requires a manifestly clear instruction.” State v. LeFaber, 128

Wn.2d 896, 902, 913 P.2d 369 (1996), abrogated on other grounds ~y State v.

O’Hara, 167 Wn.2d 91, 217 P.3d 756 (2009). ‘[Am omission or misstatement

may nevertheless be subject to harmless error analysis.” Nelson, 191 Wn.2d at

69. An omission or misstatement is harmless if it appears beyond a reasonable

doubt that the error complained of did not contribute to the verdict obtained.

Nelson, 191 Wn.2d at 69.

       LeFaber is instructive here. In that case, the trial court gave the jury the

pattern instruction on self-defense, which separated the terms “reasonably

believed” and “imminent danger” in separate subsections. LeFaber, 128 Wn.2d

at 901. The Supreme Court held that the grammatical structure of the instruction

created an ambiguity that “permit[ed] an erroneous interpretation of the law.”

LeFaber, 128 Wn.2d at 902. The court reasoned that “[a]lthough a juror could

read instruction 20 to arrive at the proper law, the offending sentence lacks any

grammatical signal compelling that interpretation over the alternative, conflicting,

and erroneous reading.” LeFaber, 128 Wn.2d at 902-03.

       The same is true here, where the trial court gave this to-convict

instruction, which is based on the pattern instruction:

             To convict the defendant of the crime of Attempted Rape in
      the Second Degree, each of the following elements of the crime
      must be proved beyond a reasonable doubt:
             (1) That between the dates of March 28, 2015 and March 29,
      2015, the defendant did an act that was a substantial step toward
      the commission of rape in the second degree;

                                          8
No. 77445-0-1/9

               (2) That the act was done with the intent to commit rape in
       the second degree; and
               (3) That the act occurred in the State of Washington.
               If you find from the evidence that each of these elements
       has been proved beyond a reasonable doubt, then it will be your
       duty to return a verdict of guilty.
               On the other hand, if, after weighing all the evidence, you
       have a reasonable doubt as to any one of these elements, then it
       will be your duty to return a verdict of not guilty.

A previous instruction stated that “[a] person commits the crime of rape in the

second degree when he engages in sexual intercourse with another person when

the other person is incapable of consent by reason of being mentally

incapacitated.”

       Although the to-convict instruction properly states the intent element, the

separation of the definition of second degree rape from the intent element

creates an ambiguity. As discussed in the previous section, the State must prove

that Kebede intended to have intercourse with an incapacitated person. But the

jury could have read the instructions to require it to find only that Kebede

intended to have intercourse with J.A. when she was incapacitated, without

believing that she was incapacitated. Put another way, it is not clear from the

instructions that Kebede must have intended to have intercourse with a person

who he believed was incapacitated, and not just a person who happens to be

incapacitated.

       This analysis is consistent with our decision in In re Personal Restraint of

Hubert, 138 Wn. App. 924, 158 P.3d 1282 (2007), an attempted second degree

rape case where the victim was asleep and helpless, rather than incapacitated.

Although that case considered whether defense counsel was ineffective for


                                          9
No. 77445-0-1110

failing to request an affirmative defense instruction, its analysis of the to-convict

instruction is helpful. We explained:

               There is no intent element for rape. To commit an attempt,
       however, the defendant must intend to commit the crime charged.
        Here, that means the defendant must intend to have intercourse
       with a victim incapable of consent. The jury was so instructed. But
       this did not illuminate for the jury whether the defendant must be
       found to intend intercourse with a person he knows to be helpless,
       or merely intercourse with a person who happens to be helpless
       whether or not the defendant realizes it. The jury was unaware that
       if Hubert reasonably believed Wood had capacity to consent, his
       belief constituted a defense to the charge. The jury thus had no
       way to understand the legal significance of the evidence supporting
       the reasonableness of Hubert’s belief that Wood was awake and
       capable of consenting to his advances. The attempt instruction
       does nothing to cure the absence of the reasonable belief
       instruction.

Hubert, 138 Wn. App. at 931-32 (footnote omitted). As in Hubert, the instructions

here did not make clear to the jury that intending to have intercourse with a

person who happens to be incapacitated is not sufficient to convict.

       The State argues that Kebede’s reliance on Hubert and Johnson is “out of

context” because neither case reversed on the grounds of an instructional error.

In Hubert, the issue was whether defense counsel was ineffective for failing to

propose an affirmative defense instruction, and in Johnson, the issue was

whether there was sufficient evidence to convict the defendant. While these

cases may not constitute controlling authority on the propriety of the instruction

given here, they are persuasive because they address what the State must prove

and why the pattern instructions might be confusing. Therefore, the State’s

attempt to distinguish these cases is not persuasive.




                                          10
No. 77445-0-Ill I

       Because the instruction was ambiguous, we must next consider whether

the ambiguity was harmless. An omission or misstatement is harmless if it

appears beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained. Nelson, 191 Wn.2d at 69.

       During oral argument, the State argued that the ambiguity was harmless,

and we agree that there was overwhelming evidence from which the jury could

have found Kebede reasonably believed that J.A. was intoxicated and unable to

consent. Although Kebede maintained J.A. was not drunk and did consent to

intercourse, the evidence presented established that he intended to have

intercourse with her while believing she was incapacitated such that any

instructional ambiguity was harmless beyond a reasonable doubt.

       For example, Kebede’s own testimony is evidence that he intended to

have intercourse with J.A. while she was obviously intoxicated. Kebede testified

that he dropped off his last passenger at 1:46 am. and signed off of the Uber

application. Kebede then picked J.A. up at 1:55 a.m. on Capitol Hill at a known

party spot. Even though J.A. was trying to flag down a taxi in front of him,

Kebede honked so that the taxi would drive off and J.A. would get into his car.

Kebede explained that passengers who are drunk throw up, converse

inappropriately, and complain that he is not going the right direction. Although he

asserted that J.A. was not drunk, Kebede stated that once J.A. got in the car, she

began “messing around” and telling him “go straight. Go right. Go Left.” He

also said that although “99 percent [of passengers] are respectful and talk to you

properly; she’s above that.” He testified that J.A. also sat in his front seat and


                                         11
No. 77445-0-1/12

held his hand, whereas most customers sit in the back. Kebede then testified he

followed J.A.’s nonsensical directions and drove northeast to Arboretum Park,

which is in the opposite direction of J.A.’s alleged destination. J.A.’s failure to

give accurate directions makes no sense if she were sober. When they stopped

at the park, J.A. searched the car for her cell phone, even looking for it in his

glove box (where it could not have been) and urinated in the nearby bushes.

Furthermore, Kebede admitted that he thought J.A. had been drinking.

Specifically, he testified that although he could not tell whether J.A. had any

alcohol, he “guess{ed] maybe she had some.” Previously, he told a detective

that she was “tipsy.”

       Kebede’s testimony describes the behavior of someone who was

extremely intoxicated. Despite his self-serving statements that he did not believe

J.A. was intoxicated, the rest of his testimony is evidence that he believed she

was. This, combined with the fact that she was kicked out of the nightclub and

had a large “X” on her hand, is overwhelming evidence that Kebede believed J.A.

was intoxicated and unable to consent. Therefore, the trial court’s failure to more

clearly instruct thejury that it must find he intended to have intercourse with an

incapacitated person was harmless beyond a reasonable doubt.

       Kebede argues that the instructions were prejudicial because there was

conflicting evidence about how drunk J.A. was and Kebede’s own behavior was

consistent with consent. We disagree.

       First, Kebede places too much weight on the other club-goers’ testimony.

It is true that one of J.A.’s friends from that night testified that he told a detective


                                           12
No. 77445-0-1/13

that J.A. “didn’t sound crazy” that night. But when asked what he meant by

“crazy,” the witnesses stated, “She didn’t seem—I mean, she seemed drunk, yes;

but was she out of her mind, completely crazy, no. I’ve never seen—you don’t

see people like that. She wasn’t on drugs or anything.” Another witness

reported that J.A. seemed “pretty normal” that night and he did not remember

anyone “getting out of hand.” But he also admitted that he “d[idjn’t know [J.A.]

well enough.” Finally, a witness who was not drinking that night testified that she

had a one minute conversation with J.A. after 10:30 p.m. and J.A. did not appear

“wasted.” But that witness also testified that she had no information about how

intoxicated J.A. was later in the night when J.A. left the club. None of this

testimony, when taken in context, directly conflicts with the other overwhelming

evidence of J.A.’s obvious intoxication.

       Second, Kebede’s behavior was not consistent with consent. Although he

stayed the night with J.A., let her use his phone, gave her a ride home, and later

cooperated with police, the morning after the attempted rape, he lied to J.A.,

telling her that they met at a bar the night before, that he was not an Uber driver,

and that they had sex. Presumably, he told these lies in order to conceal his

activities from the previous night. Furthermore, Kebede’s bold-faced lies indicate

that he believed J.A. was too drunk to remember what happened. For these

reasons, Kebede has not shown that he was prejudiced.

                         Ineffective Assistance of Counsel

       Kebede argues that defense counsel was ineffective for withdrawing a

statutory affirmative defense instruction that the jury could acquit if he proved by


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No. 77445-0-1/14

a preponderance of the evidence that he believed J.A. was not mentally

incapacitated. We disagree.

       To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel’s performance was deficient and that the deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-

35, 899 P.2d 1251 (1995). “Performance is deficient if it falls ‘below an objective

standard of reasonableness based on consideration of all the circumstances.”

State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting McFarland,

127 Wn.2d at 334-35). There is a strong presumption that counsel’s

representation was reasonable and that performance is not deficient if counsel’s

conduct can be characterized as legitimate trial strategy or tactics. Estes, 188

Wn.2d at 458.

       A defendant accused of second degree rape can raise an affirmative

defense that “at the time of the offense the defendant reasonably believed that

the victim was not mentally incapacitated.” RCW 9A.44.030(1). The affirmative

defense must be proved by a preponderance of the evidence.

RCW 9A.44.030(1).

       Here, defense counsel proposed an instruction on this affirmative defense

but later requested that it be removed from the jury instructions. This decision

was a legitimate trial strategy. The affirmative defense is available for the crime

of second degree rape because that crime has no mens rea. But the affirmative

defense is not necessary for the crime of attempted second degree rape because


                                         14
No. 77445-0-1/15

the State must prove that the defendant intended to have intercourse with an

incapacitated person, which necessitates a finding that the defendant believed

the victim was incapacitated. Ct Johnson, 173 Wn.2d at 907. In this

circumstance, use of the affirmative defense would have shifted the burden from

the State to Kebede to prove that he did not believe that J.A. was incapacitated.

Because the State bore the burden to prove that Kebede believed J.A. was

incapacitated beyond a reasonable doubt, defense counsel legitimately withdrew

the affirmative defense instruction that would have shifted that burden of proof

from the State to Kebede.

       Kebede argues that Hubert requires reversal. There, the defendant was

also charged with attempted second degree rape. Despite evidence that the

defendant believed the victim consented to a sexual encounter, defense counsel

did not argue that this constituted an affirmative defense or request an instruction

on the affirmative defense. Hubert, 138 Wn. App. at 929. Defense counsel

admitted that he failed to do so because he was not familiar with the defense.

Hubert, 138 Wn. App. at 929. We held that defense counsel’s performance was

deficient. Hubert, 138 Wn. App. at 930. But Hubert was decided before Johnson

clarified that the State must prove a higher mens rea for attempted second

degree rape than for second degree rape. Furthermore, defense counsel in

Hubert admitted that his failure to request the affirmative defense instruction was

not a trial tactic. Here, defense counsel was very familiar with the affirmative

defense and the holding in Johnson and made a strategic decision to leave the




                                         15
No. 77445-0-1116

burden of proving Kebede’s belief of J.A.’s state of intoxication with the State.

Hubert does not require reversal.

       Kebede also cites State v. Powell, 150 Wn. App. 139, 206 P.3d 703

(2009), as requiring reversal. There, the defendant was charged with second

degree rape, and the Court of Appeals held that defense counsel deficiently

failed to request the affirmative defense instruction. Powell, 150 Wn. App. at

155. But here Kebede was charged with attempted second degree rape. As

already explained, Johnson requires that the State prove Kebede intended to

have intercourse with an incapacitated J.A. This is an additional mens rea

element not found in second degree rape. Therefore, Kebede’s counsel was not

deficient in choosing to hold the State to its burden, rather than shift it to Kebede.

Powell does not require reversal.

                             Prosecutorial Misconduct

       Kebede argues that the prosecutor committed reversible misconduct by

repeatedly misstating the law in closing argument. We disagree.

       “To prevail on a claim of prosecutorial misconduct, the defendant must

establish ‘that the prosecutor’s conduct was both improper and prejudicial in the

context of the entire record and the circumstances at trial.” State v. Thorcierson,

172 Wn.2d 438, 442, 258 P.3d 43(2011) (internal quotation marks omitted)

(quoting State v. Maqers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). “A

prosecuting attorney commits misconduct by misstating the law.” State v. Allen,

182 Wn.2d 364, 373, 341 P.3d 268 (2015). But “[i]f the defendant did not object,

he is deemed to have waived any error, unless the prosecutor’s misconduct was


                                         16
No. 77445-0-1117

so flagrant and ill intentioned that an instruction could not have cured the

resulting prejudice.” State v. Whitaker, 6 Wn. App. 2d 1, 15-16, 429 P.3d 512

(2018), review ciranted, 193 Wn.2d 1012 (2019). “Underthis heightened

standard, the defendant must show that (1) ‘no curative instruction would have

obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in

prejudice that had a substantial likelihood of affecting the jury verdict.” State v.

Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting Thorgerson, 172

Wn.2d at 455).

       Here, during closing argument, the prosecutor explained:

              So really, it will get down to these two questions, did the
       defendant take a substantial step towards committing the act of
       rape in the second degree. So what is rape in the second degree?
       How do you know if someone has the intent to commit rape in the
       second degree? Rape in the second degree is sexual intercourse
       with another person who was incapable of consent by reason of
       being mentally incapacitated.

She then argued that the jury needed to consider only two contested elements.

For example, the prosecutor stated, “[cjurrently we’re asking ourselves, did he try

to have sex with her, and was she too drunk for him to be doing that; that’s it.

That’s what it comes down to.” Additionally, she stated that there was

“compelling medical evidence that the defendant not only took that substantial

step towards having sex with [J.A.], but that she also was incapable of

consenting at the time and didn’t consent.” Later, the prosecutor stated, “[t]hose

two aspects of this case are incredibly compelling   .   .   .—did he try to have sex

with her, was she too drunk to consent.”




                                         17
No. 77445-0-1/18

       During these arguments, the prosecutor also argued that J.A.’s

incapacitation was obvious: witness testimony highlighted “why it’s so likely that

[J.A.] was clearly incapable of consent that night” and testimony that J.A. was

hanging onto her friends was evidence of her drunkenness that “would likely

have been usable [sic] to Mr. Kebede.” She also disagreed with Kebede’s

observations of J.A.’s sobriety:

       All the (inaudible) that you heard; oh, no, no, it’s not because she’s
       drunk, guys. She’s not drunk even though every single sign points
       towards she is. It’s 1:40 in the morning on Capitol Hill, a girl
       dressed up in party clothes, chowing down on some tacos at the
       taco stand, gets in the car, “let’s go,” starts swearing again, and
       grabs your hand and you’re saying that girl’s not drunk?
               Well, somehow, Mr. Kebede wanted you to believe that he is
       a great judge of character, and that’s part of his job, and he can
       read people, and that’s an important aspect of his career, and he
       can tell when people are drunk; but then when specifically asked
       about [J.A.], he won’t commit. At first he wants to say, no, no I
       can’t [tell] if she’s drinking milk versus alcohol; but then when
       confronted, you actually did say she was drinking. You did say she
       was tipsy, and starts to start backpedaling. You saw that a lot
       throughout his testimony, a lot of backpedaling, a lot of excuses,
       explanations, not answering the direct question. It was clear [J.A.]
       was drunk, and he even said it to the detective, “She’s tipsy.”

       Defense counsel did not object to any of the prosecutor’s closing

arguments. In his own closing argument, defense counsel argued that

J.A. was not that drunk and highlighted testimony from J.A.’s friends at the

club that she did not seem drunk. He also acknowledged that as argued

by the prosecutor, consent is “the central issue in this case.” In explaining

the to-convict instruction, defense counsel correctly explained what the

State must prove based on Johnson:

            So the State needs to prove beyond a reasonable doubt that
      Mr. Kebede knew [J.A.] was mentally incapacitated in order to be

                                         18
No. 77445-0-1/19

        able to prove intent; they have to prove he knew it. And the intent
        definition is instructed in Instruction 8. It’s a very straightforward,
        “Acting with the objective or purpose to accomplish a result that
        constitutes a crime.” What is his purpose? What was he trying to
        accomplish? Accomplishing a sexual act is not enough to
        constitute a crime. It has to be sex with a mentally incapacitated
        person, and they have to prove he knew it.
                    And in order for him to have that specific intent, they
        have to prove he knew she was mentally incapacitated.

        On rebuttal, the prosecutor again focused on J.A.’s incapacitation,

arguing, “Remember there’s the, did he try to have [sex] with her, and was she

too drunk to consent is kind of what it comes down to.” The prosecutor argued

further, “it really comes down to was she too intoxicated to consent” and “really, it

comes down to was she too drunk to have sex.” But she also responded to

defense counsel’s argument that Kebede did not know J.A. was intoxicated:

       you know she’s drunk because it’s 1:40 in the morning on Capitol
        Hill, because her friends say she was hanging onto a buddy for
       support, because she was acting erratic and unusual is far different
       than 99 percent of the people that he drove, because he said that
       almost always he’s picking up drunk people, because he said that
       she was tipsy, because she’s peeing on the side of a bush in front
       of a stranger, because she’s acting disrespectful, mouthy, bossy,
       rude, because she can’t remember where her phone is. She can’t
       remember where her money is, she’s searching on her hands and
       knees crawling in the back of the car, because she doesn’t even
       know who that guy is when she wakes up. If all of those things can
       tell you that she was too drunk, and those were all of the bits of
       information that that man had.

Taken in context, the prosecutor’s argument was not a misstatement of the law.

Both in closing and rebuttal, the prosecutor explained that J.A.’s extreme

intoxication was obvious and that Kebede’s testimony to the contrary was not

credible.




                                          19
No. 77445-0-1120

          But even if the prosecutor’s repeated focus on the substantial step and

J.A.’s incapacitation was a misstatement of the law, these misstatements are not

reversible misconduct because they could have been cured by an instruction to

the jury. The trial court agreed that Johnson was applicable to this case. But

during closing arguments, defense counsel did not object to the prosecutor’s

arguments or request that the trial court further instruct the jury or clarify the

intent required under Johnson. Therefore, Kebede has not demonstrated that

the prosecutor’s statements were prejudicial. Ct State v. Blizzard, 195 Wn. App.

717, 733, 381 P.3d 1241 (2016) (“A defendant who waits until appeal to raise

misconduct arguments bears a heavy burden.”), review denied, 187 Wn.2d 1012

(2017).

          Kebede argues that the prosecutor’s misstatement of the law could not

have been cured by an instruction to the jury because the trial court “consistently

refused to instruct the jury on the specific intent element” and the jury instructions

were ambiguous. It is true that the trial court refused to give Kebede’s proposed

to-convict instruction, which required the State to prove that “the defendant knew

[J.A.] was incapable of consent by reason of being mentally incapacitated.” The

trial court did so because it believed that the pattern instruction adequately stated

the intent element, as required in Johnson, which it agreed was an accurate

statement of the law. Therefore, it does not follow from the trial court’s refusal to

give defense counsel’s proposed to-convict instruction that the court would also

have refused to give an instruction to correct a misstatement of the law based on

Johnson.


                                          20
No. 77445-0-1/21

       Kebede next cites In re Personal Restraint of Glasmann, 175 Wn.2d 696,

286 P.3d 673 (2012) (plurality opinion), to argue that the prosecutor’s repeated

misrepresentation of the law prejudiced him. But in Glasmann, the prosecutor

improperly expressed his personal opinion of Glasmann’s guilt. Glasmann, 175

Wn.2d at 706. Here, the prosecutor’s argument was not an improper

misstatement of the law. In fact, she argued during closing and rebuttal that

J.A.’s level of intoxication was obvious and Kebede’s testimony that she

appeared sober was not credible. Therefore, reversal is not warranted.

                            Exclusion of DNA Evidence

       Kebede argues that the trial court denied his right to present a defense by

excluding DNA evidence of J.A.’s additional sexual encounters under the rape

shield statute. We disagree.

       “The right of an accused in a criminal trial to due process is, in essence,

the right to a fair opportunity to defend against the State’s accusations.” State v.

Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting Chambers v.

Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). But the

right to present a defense is not absolute. Jones, 168 Wn.2d at 720. “Evidence

that a defendant seeks to introduce ‘must be of at least minimal relevance.”

Jones, 168 Wn.2d at 720 (quoting State v. Darden, 145 Wn.2d 612, 622, 41 P.3d

1189 (2002)). If the defendant seeks to admit relevant evidence, “the burden is

on the State to show the evidence is so prejudicial as to disrupt the fairness of

the fact-finding process at trial.” Jones, 168 Wn.2d at 720 (quoting Darden, 145

Wn.2d at 622). “The State’s interest in excluding prejudicial evidence must also


                                        21
No. 77445-0-1/22

‘be balanced against the defendant’s need for the information sought,’ and

relevant information can be withheld only ‘if the State’s interest outweighs the

defendant’s need.” Jones, 168 Wn.2d at 720 (quoting Darden, 145 Wn.2d at

622). “[FJor evidence of high probative value ‘it appears no state interest can be

compelling enough to preclude its introduction consistent with the Sixth

Amendment and Const. art. 1,   § 22.” Jones, 168 Wn.2d at 720 (quoting State v.
Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983)).

       The rape shield statute provides:

       Evidence of the victim’s past sexual behavior including but not
       limited to the victim’s marital history, divorce history, or general
       reputation for promiscuity, nonchastity, or sexual mores contrary to
       community standards is inadmissible on the issue of credibility and
       is inadmissible to prove the victim’s consent.
RCW 9A.44.020(2). The statute applies only to past sexual behavior and “was

not designed to prevent defendants from testifying as to their version of events

but was instead created to erase the misogynistic and antiquated notion that a

woman’s past sexual behavior somehow affected her credibility.” Jones, 168

Wn.2d at 723.

       In Jones, the defendant wanted to testify that his sexual contact with his

niece was consensual and took place during an all-night sex party in which his

niece engaged in consensual sex with two other men. Jones, 168 Wn.2d at 717.

The trial court excluded the defendant’s testimony under the rape shield statute.

Jones, 168 Wn.2d at 717-18. The Supreme Court ultimately concluded that the

rape shield statute did not apply because the excluded evidence referred to

conduct onthe night of the alleged rape, not to past sexual conduct. Jones, 168

Wn.2d at 723. It also concluded that the sex party evidence was the defendant’s
No. 77445-0-1/23

‘entire defense,” and that “even if the rape shield statute did apply, the sex party

testimony is of extremely high probative value and cannot be barred without

violating the Sixth Amendment.” Jones, 168 Wn.2d at 724.

       Here, J.A. wore a one-piece swimsuit with a skirt over it on the night of the

attempted rape. During her sexual assault exam, the nurse collected the

swimsuit and obtained a perineal vulvar swab of J.A.’s person. A piece of the

swimsuit’s crotch and the swab were submitted for DNA testing. Testing of the

perineal vulvar swab identified Kebede’s DNA as well as a smaller amount of

DNA from an unknown male, referred to as “Individual A.” Testing of the

swimsuit sample identified DNA from at least four male individuals, but due to the

complexity of the mixture, no additional information could be obtained from it.

       The State moved to exclude the DNA evidence from the swimsuit. In

response, Kebede argued that the rape shield statute did not apply because

there was “no reason to believe that the biological evidence was left behind at

some point prior to the night in question” and, therefore, it was not evidence of

past sexual behavior. Kebede also argued that the evidence was necessary to

support his statement to poHce that J.A. smelled like she had sex already that

night and to rebut the State’s theory that he caused J.A.’s vaginal injuries. The

trial court granted the motion to exclude the DNA evidence from the swimsuit,

holding that it was “far less relevant” than the DNA evidence from Individual A,

which was admitted, and that its probative value was far outweighed by the

prejudice it would cause.




                                        23
No. 77445-0-1/24

       The trial court’s decision did not violate Kebede’s right to present a

defense. The trial court admitted the DNA evidence from Individual A, which

supported Kebede’s theory that J.A. had sex earlier that night and that Individual

A caused her vaginal injuries. In comparison, the swimsuit evidence was neither

highly probative nor vital because no further information about how or when the

DNA was left on the swimsuit could be obtained and the DNA from Individual A

was admitted. Therefore, this case is distinguishable from Jones because the

excluded evidence was not Kebede’s entire defense.

       Kebede argues that the State opened the door to the swimsuit DNA

evidence during J.A.’s testimony and the trial court erred by denying his motion

to admit it. ‘A party may open the door to otherwise inadmissible evidence by

introducing evidence that must be rebutted in order to preserve fairness and

determine the truth.” State v. Wafford, 199 Wn. App. 32, 36-37, 397 P.3d 926,

review denied, 189 Wn.2d 1014 (2017). ‘The decision to admit evidence lies

within the sound discretion of the trial court and should not be overturned absent

a manifest abuse of discretion.” Wafford, 199 Wn. App. at 36.

       Here, J.A. testified that she did not consent to having sex with Kebede and

she “would never.” She also testified that she told police that as a young girl in

her early twenties, she did not need to go to a motel “to get laid,” that she had

never had a one-night stand, and that if she wanted to have one there were other

age-appropriate peers at the nightclub she could have gone home with. Kebede

then moved to admit the swimsuit DNA evidence, arguing it suggested that

perhaps J.A. did have sex with an age-appropriate peer that night. The trial court


                                         24
No. 77445-0-1/25

denied Kebede’s motion, finding that although the prosecutor “got pretty close” to

opening the door, the prejudice of the evidence far outweighed its probative

value. When Kebede asked the court to reconsider its decision, the trial court

declined, explaining that the swimsuit DNA evidence was not relevant because

there was no information about when or how the DNA got onto the swimsuit.

           The trial court did not abuse its discretion in denying Kebede’s motion.

Kebede was able to argue that J.A. had sex that night with Individual A. The

swimsuit DNA evidence was highly prejudicial and of low probative value given

the admission of the DNA of Individual A. Furthermore, in the absence of any

evidence of how the DNA got onto the swimsuit, the swimsuit evidence was

irrelevant to Kebede’s theory because there was no way to tell whether the DNA

was transferred during the night of the attempted rape or during a one-night

stand, as Kebede suggested. Kebede’s right to present a defense was not

violated by its exclusion.

                                       Court Costs

           Kebede challenges the imposition of $110 in court costs as part of his

legal financial obligations, and the State concedes that the court costs must be

struck from his judgment and sentence. We accept the State’s concession.

           RCW 10.01.160(3) prohibits trial courts from imposing costs on

defendants who are indigent at the time of sentencing. This statute, amended

effective June 7, 2018, applies prospectively to cases on direct appeal when the

amendment was enacted. State v. Ramirez, 191 Wn.2d 732, 749, 426 P.3d 714

(201 8).


                                            25
No. 77445-0-1/26

       Here, Kebede declared that he was indigent at the time of sentencing. His

judgment and sentence was filed on September 14, 2017, and is still on direct

appeal. Therefore, the costs must be struck from his judgment and sentence.

We accept the State’s concession and remand for the trial court to strike the

court costs.

                                        SAG

       Kebede filed a SAG that includes 15 numbered topics. We hold that none

of them require reversal.

       When considering issues raised in a SAG, we will consider only

arguments that are not repetitive of briefing. RAP 10.10(a). We also will not

consider a defendant’s SAG if it does not inform the court of the nature and

occurrence of the alleged errors. RAP 10.10(c); State v. Bluehorse, 159 Wn.

App. 410, 436, 248 P.3d 537 (2011). We are not required to search the record in

support of claims made in the SAG. RAP 10.10(c). Complaints about attorney

performance cannot be entertained if the attorney’s conduct “can be

characterized as legitimate trial strategy or tactics.” State v. McNeal, 145 Wn.2d

352, 362, 37 P.3d 280 (2002). “Finally, issues that involve facts or evidence not

in the record are properly raised through a personal restraint petition, not a

[SAG].” State v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496 (2013).

      The first two issues Kebede raises are claims of ineffective assistance of

counsel. They involve his attorney’s failure to retest DNA evidence or investigate

whether his police interview video was altered and his attorney’s

recommendation to proceed to a jury trial rather than a bench trial. All of these


                                         26
No. 77445-0-1/27

decisions can be characterized as legitimate trial strategies. Therefore, reversal

is not required. Kebede also claims that he was not given “items from the

evidence.” Although he includes page numbers for these items, he does not

specify what they are, and it is impossible to determine what he is referring to.

Because he has not properly identified the missing items, we need not reach this

issue.

         The third issue Kebede raises is a jury selection issue. Without any

citation to the record, he states that five jurors were unfairly excused during voir

dire and one biased juror was retained. Because he does not provide any

citation to the record or identify the jurors by number, we need not consider this

argument.

         Issues 4 through 12 point out alleged inconsistencies in various witnesses’

testimony. But “[cjredibility determinations are for the trier of fact and are not

subject to review.” State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).

As determined above, sufficient evidence supported Kebede’s conviction. His

recitation of conflicting evidence does not warrant reversal.

         Issues 13 and 14 involve the trial court. First, Kebede asserts that the trial

court asked defense counsel if he was ready for trial and defense counsel said

that he was not. It is unclear what error Kebede is alleging, and there is no

citation to the record. Therefore, we need not review it. Kebede also alleges that

he was disrespected because the prosecutor was smiling during trial, but he

does not explain how this affected his trial. Kebede states that he could not

understand most of the jury instructions and he could not see most of the


                                           27
No. 77445-0-1/28

exhibits. His SAG does not indicate that he brought this to the attention of the

court or alerted defense counsel. Therefore, he has waived any claim on this

basis. Finally, Kebede claims that it was unfair that evidence that he tore J.A.’s

clothes was admitted but the trial court excluded DNA evidence from J.A.’s

swimsuit. As discussed above, the trial court did not abuse its discretion in

excluding the swimsuit evidence. None of these issues require reversal.

        Issue 15 includes errors Kebede accuses the prosecutor of making. First,

he argues that she erred in stating that J.A.’s alcohol content was 1 .5 times the

legal limit because her blood alcohol level was measured at 0.00 during her

sexual assault exam. But the alcohol in her urine was measured at 0.12, so the

prosecutor’s statement was not incorrect. Next, he claims that the prosecutor

stood too close to the jury and influenced them by doing so. Because Kebede

did not object to the prosecutor’s positioning during trial, he has waived this

argument on appeal. Finally, he asserts that the prosecutor failed to turn over

the video of an interview J.A. gave to a news reporter. But the record indicates

that the trial court denied Kebede’s motion to subpoena the video from the news

station and excluded the evidence. Therefore, the record does not support his

argument that the State refused to give him the video.

       Finally, in issue 16, Kebede contends that the police interview video was

altered. Because this claim relies on evidence outside the record, we cannot

consider it. ~ McFarland, 127 Wn.2d at 338 n.5 (“[A] personal restraint petition

is the appropriate means of having the reviewing court consider matters outside

the record.”).


                                         28
No. 77445-0-1/29

      We affirm but remand for the trial court to strike Kebede’s court costs from

his judgment and sentence.


                                                ~AAAjA’

WE CONCUR:



                                                   V   ~




                                       29
