                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          March 17, 2020



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 52115-6-II

                                Respondent,
                                                               UNPUBLISHED OPINION
        v.

 DONALD McELFISH,

                                Appellant.



       MAXA, C.J. – Donald McElfish appeals the trial court’s order denying his motion for a

new trial based on newly discovered evidence on his convictions of attempted second degree

rape, first degree kidnapping, and second degree assault with sexual motivation. The court

initially granted McElfish’s motion after finding that the victim, CM, had recanted her

accusations against him. In the State’s appeal of that decision, Division One of this court held

the trial court had abused its discretion by relying on findings that were unsupported by the

record and reversed the order. On remand, the trial court denied McElfish’s motion for a new

trial, finding that CM had not recanted her trial testimony.

       McElfish argues that we should review and reject Division One’s decision under RAP

2.5(c)(2) because the decision was clearly erroneous and allowing the decision to stand would

result in a manifest injustice. We disagree, and we decline to review Division One’s decision
No. 52115-6-II


under RAP 2.5(c)(2). Accordingly, we affirm the trial court’s denial of McElfish’s motion for a

new trial.

                                               FACTS

Trial Testimony

       In March 2014, McElfish was convicted of attempted second degree rape, first degree

kidnapping, and second degree assault with sexual motivation for his role in an attack against

CM that occurred in October 2012. This court affirmed his convictions on appeal.

       At trial, CM testified that a person named Brandt Jensen forced her to remove her clothes

and duct-taped her to a chair in a garage where McElfish lived. CM testified that Jensen left, and

while he was gone McElfish touched her breast and tried to touch her vagina. CM stated that she

eventually escaped, although McElfish tried to stop her.

Motion for New Trial

       In April 2015, McElfish filed a motion for a new trial or hearing on the basis of newly

discovered evidence, supported by an affidavit signed by CM. In the affidavit, CM apologized

for giving false testimony that incriminated McElfish at trial. The affidavit stated that McElfish

was not involved in the attack and actually helped her to escape by convincing Jensen to leave

the room, then telling CM to escape out the back door once Jensen was gone. In the affidavit,

CM credited McElfish with saving her life.

       The trial court held an evidentiary hearing so that CM could answer questions about her

affidavit and her earlier testimony. At the hearing, CM acknowledged that she had signed the

affidavit before a notary but stated that a friend of McElfish’s had drafted and typed the affidavit

without discussing its contents with her. She stated that the affidavit “said a lot of things that

weren’t true,” including that that McElfish had tried to help her escape. Clerk’s Papers (CP) at




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154. CM stated that when friends of McElfish presented the drafted affidavit to her at their

home, she was scared, intimidated, and feeling unwell, and that she did not read the whole

affidavit.

        CM stated that the affidavit was “a lot wrong.” CP at 167. However, neither party

specifically asked her which portions of the affidavit were wrong and which portions she agreed

with.

        When McElfish’s counsel asked if McElfish had done “anything sexual” to her, CM

responded, “Well, not really,” but added that McElfish had “tried.” CP at 149-50. The State

asked CM whether McElfish had touched her breast, and she replied that he had. Later, CM

rejected McElfish’s counsel’s suggestion that McElfish had accidentally touched her breast when

he was giving her something to drink. McElfish’s counsel also asked if there was anything she

could “point to, to show that any touching was sexual in nature.” CP at 166. CM said she could

not, but that it “must’ve been something.” CP at 166. At several points, CM was unable to

remember details about McElfish’s actions.

        The trial court concluded that CM’s testimony at the hearing “and in part the affidavit”

constituted a recantation of her trial testimony and that based on CM’s new testimony, the results

of a new trial likely would be different. CP at 116. The court granted McElfish’s motion for a

new trial and vacated his judgment and sentence.

State’s Appeal of New Trial Order

        The State appealed the trial court’s order granting a new trial. See State v. McElfish, No.

76737-2-I, slip op. at 1 (Wash. Ct. App. Aug. 7, 2017) (unpublished), http://www.courts.wa.gov/

opinions/pdf/767372.pdf. Division One held that substantial evidence did not support the trial

court’s findings of fact 6, 8, and 9. Id. at 12. Division One stated that because the trial court




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relied on these findings when granting a new trial, the court abused its discretion. Id. Division

One concluded, “We reverse the trial court’s order and remand for a determination based only on

findings that are supported by substantial evidence.” Id.

        The Supreme Court denied McElfish’s petition for review. State v. McElfish, 189 Wn.2d

1037, 407 P.3d 1149 (2018).

Remand to Trial Court

        On remand, the trial court reviewed CM’s testimony from both the trial and the post-trial

hearing and heard argument from counsel. The trial court orally ruled that CM had not recanted

her testimony and denied McElfish’s motion for a new trial.

        The trial court entered new findings of fact and conclusions of law and denied McElfish’s

motion for a new trial. The court found that (1) CM did not read her entire affidavit before she

signed it, (2) CM flatly contradicted the majority of her affidavit, (3) CM’s hearing testimony

was consistent with her trial testimony in that she stated that McElfish touched her breast, and

(4) CM did not testify at the hearing that McElfish did not touch her in a sexual manner.

        The trial court concluded that CM’s afﬁdavit “purporting to recant her trial testimony is

not reliable and thus is not a recantation.” CP at 107. And the court stated that CM’s testimony

at the hearing also was not a recantation of her trial testimony.

        McElfish appeals the trial court’s order denying his motion for a new trial. But he does

not directly challenge the trial court’s most recent order. Instead, he argues that we should

affirm the trial court’s initial order granting a new trial.

                                              ANALYSIS

        McElfish argues that in this appeal, we should review Division One’s decision reversing

the trial court’s original new trial order under RAP 2.5(c)(2) because Division One erroneously




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concluded that substantial evidence did not support findings of fact 6, 8, and 9 and because those

findings were not material to the trial court’s grant of a new trial. We disagree.

       Under the law of the case doctrine, the holding of an appellate court decision must be

followed in all of the subsequent stages of the same litigation. State v. Schwab, 163 Wn.2d 664,

672, 185 P.3d 1151 (2008). This doctrine promotes finality and efficiency. Id.

       RAP 2.5(c)(2) restricts application of the law of the case doctrine in certain situations.

Schwab, 163 Wn.2d at 672. That rule states:

       The appellate court may at the instance of a party review the propriety of an earlier
       decision of the appellate court in the same case and, where justice would best be
       served, decide the case on the basis of the appellate court’s opinion of the law at
       the time of the later review.

RAP 2.5(c)(2).

       Our application of RAP 2.5(c)(2) is discretionary, not mandatory. Schwab, 163 Wn.2d at

672. Under RAP 2.5(c)(2), “the appellate court may reconsider a prior decision in the same case

where that decision is ‘clearly erroneous, . . . the erroneous decision would work a manifest

injustice to one party,’ and no corresponding injustice would result to the other party if the

erroneous holding were set aside.” Id. (quoting Roberson v. Perez, 156 Wn.2d 33, 42, 123 P.3d

844 (2005)).1

       Division One concluded in the prior appeal that substantial evidence did not support

findings of fact 6, 8, and 9. McElfish, No. 76737-2-I, slip op. at 7-12. We have reviewed

Division One’s opinion and the applicable record, and we conclude that the court’s decision was




1
 RAP 2.5(c)(2) also applies when there has been an intervening change in the law. Schwab, 163
Wn.2d at 672-73. The original decision may be set aside if no injustice results. State v.
Gregory, 192 Wn.2d 1, 32, 427 P.3d 621 (2018).


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not clearly erroneous and does not create a manifest injustice. Therefore, we exercise our

discretion and decline to review that decision under RAP 2.5(c)(2).

        McElfish does not argue that the trial court erred in denying his motion for a new trial

after remand. Therefore, the trial court’s denial of the motion for new trial stands.

                                          CONCLUSION

        Because Division One’s decision in the prior appeal was not clearly erroneous, we

decline to review that decision under RAP 2.5(c)(2). Therefore, we affirm the trial court’s order

denying McElfish’s motion for a new trial.

        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.



                                                      MAXA, C.J.



 We concur:



 MELNICK, J.




 SUTTON, J.




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