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    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                             DIVISION II



STATE OF WASHINGTON,                                                            No. 44075 -0 -II


                                   Respondent,


         v.



COREAN BARNES,                                                          UNPUBLISHED OPINION


                                    Appellant.




          MAXA, J. —   Corean Barnes appeals his jury convictions for two counts of second degree

rape, unlawful imprisonment, and first degree burglary with sexual motivation. We hold that the

trial court violated Barnes' s Sixth Amendment right by instructing the jury, over Barnes' s

objection, on an affirmative defense of consent to the rape charges. Therefore, we reverse

Barnes'   s second   degree   rape convictions and remand      for   retrial.   We   also   hold that: ( 1) Barnes


did not provide a sufficient record or argument to allow us to address whether the trial court

erred under   the   Privacy Act   in admitting   a redacted   version of   secret    recordings; ( 2) Barnes' s


ineffective assistance of counsel claim fails because he cannot show that his counsel' s failure to

object   to the   recordings on   ER 401, ER 402    and   ER 403     grounds prejudiced        him; ( 3) Barnes was


not entitled to a jury instruction on the lesser included charge; and ( 4) the State presented

sufficient evidence     that Barnes unlawfully     entered a   third   person' s   property to   commit rape.
44075 -0 -II



And we reject Barnes' s Statement of Additional Grounds ( SAG) arguments. Accordingly, we

affirm Barnes' s convictions for unlawful imprisonment and first degree burglary.

           The State also cross -appeals, asserting that the trial court erred in ruling that the burglary

and rape convictions were the same criminal conduct when calculating Barnes' s offender score

for sentencing purposes. Because we vacate Barnes' s second degree rape convictions, we do not

reach the State' s arguments on cross -appeal.


                                                           FACTS


Rape and Burglary

           Corean Barnes and Christina Russell met in 2007 and dated between 2007 and 2008.


They   developed       a sexual   relationship.       By August 2008, Russell decided that she did not want to

have   a     further relationship      with   Barnes, but      agreed   to drive Barnes   on   various   errands.   On


August 15, Russell purchased a digital tape recorder and placed it in her purse in order to

surreptitiously record her conversations with Barnes.

           Later that day, Russell met Barnes at the house of Kenneth Johnson, who had rented a

room    to Barnes starting in          July   2008.    According to Russell, Barnes began making unwanted

sexual contact with        her.    Russell testified that Barnes reached through her car window, touched


her breasts,     and put   his hand down her          pants.    She told him to stop and said she did not want to

do   that.    Barnes then pulled Russell out of the car by her wrists and forcibly carried her to his

nearby       camper.   Russell testified that after a struggle, Barnes put his hand down her pants and

penetrated her vagina with his finger. During this time, Russell was trying to break free and was

telling Barnes      that   she   did   not want   to do this.    Barnes admitted touching Russell' s breasts over

her shirt but denied the remainder of Russell' s testimony.




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44075 -0 -II



          Russell also described another incident later that day, after she picked up Barnes and

drove him to Johnson'       s    house.     She     and   Barnes   entered   Johnson'   s   house.   Russell testified that


they started kissing, but she decided she did not want to continue and attempted to pull away.

Barnes then      picked   her up       and carried    her into     a   bedroom.     As she attempted to get away, he

closed the door and pushed her into a corner. Russell testified that she continued to struggle, but

Barnes forced her       pants     down.      Although she kept telling him no, he had intercourse with her

before    she   broke away.      Barnes testified that Russell was a willing participant in the intercourse

until she decided to stop after about two minutes, at which time Barnes stopped as well.

          Russell secretly       recorded    both incidents.           She also recorded lengthy conversations with

Barnes     around    the til'
                            ne   of    the incidents.      Some of the statements involved Barnes' s threats to


harm Russell.


           On August 19, Johnson            arrived   home to find Barnes inside his house. Johnson objected


to him being there without permission and called the police.

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

compulsion ( counts        one        and   two),    one count of burglary in the first degree with sexual

motivation ( count      three),       and one count of unlawful          imprisonment ( count four), and two counts


of harassment ( counts five and six).


First Trial and Appeal


           A jury convicted Barnes of two counts of second degree rape and one count of unlawful

imprisonment.)         State     v.    Barnes,    noted    at   157 Wn.      App.   1076, 2010 WL 3766574,           at *   1


     unpublished).     Barnes     appealed,       challenging the trial court' s admission of Russell' s tape

 1
     The jury in the first trial did not reach a verdict on the burglary charge.



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44075 -0 -II



recordings.      Barnes, WL 3766574,                    at *   2.    The State argued that the entire transcript of Barnes' s


recorded statements were admissible under the threats and hostage holder exceptions to the

Privacy    Act. Barnes, WL 3766574,                      at *   2.       We reversed in an unpublished opinion, holding that

it   was error   to   admit   the   entire      transcript          of   the   recordings.          Barnes, WL 3766574,      at *   3 -4.   We


noted that a number of Barnes' s recorded remarks did not fall under the threats exception.

Barnes, WL 3766574,                at *   3.    We       stated      that "     the trial court should have conducted a more


detailed analysis of the recording before admitting those selected portions that met the threats

exception      to the   Privacy     Act."       Barnes, WL 3766574,                     at *   3.    Similarly, we held that recordings

made during the period of imprisonment were admissible under the hostage holder exception, but
that it   was error     to   admit    the      entire     recording.           Barnes, WL 3766574,            at *   3.   Accordingly, we

remanded for a new trial. Barnes, WL 3766574, at * 4.

Second Trial


          Before the second trial, the State and Barnes appeared at a hearing to redact portions of

the    recordings     in   order    to comply           with our          decision.      The trial court admitted portions of the


recordings under both the threats exception and the unlawful requests or demands exception to

the   Privacy    Act, RCW 9. 73. 030( 2).                The court played a redacted version of the recordings for the


jury.

          The trial court approved a jury instruction stating that a person is not guilty of rape if the

sexual intercourse was consensual, and that Barnes had the burden of proving that the sexual

intercourse      was       consensual          by   a    preponderance             of   the     evidence.     Barnes objected to this


 affirmative defense instruction, stating that it "forc[ ed a] consent instruction on us when it' s not

 requested."      Report      of    Proceedings ( RP)                at    487.    Barnes argued that this instruction placed a




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44075 -0 -II



burden    on   him to   prove consent, and       that this burden shifting       would confuse     the   jury.    The trial


court gave this instruction despite Barnes' s objection.

          A    jury   convicted       Barnes    of   both   counts   of   rape   in the   second      degree,     unlawful




imprisonment,         and   first degree'   burglary   with sexual motivation.          During sentencing, the trial

court ruled     that the second        degree          and    first degree   burglary   convictions were         the "   same




criminal      conduct"      and,   therefore, merged        for sentencing    purposes.     RP   at    563       The State


objected.



          Barnes      appeals   his   convictions.    The State cross -appeals the trial court' s merging of the

second degree rape and first degree burglary convictions for sentencing purposes.

                                                       ANALYSIS


A         AFFIRMATIVE DEFENSE INSTRUCTION


          Barnes argues that the trial court violated his Sixth Amendment right to control his


defense by instructing the jury on the affirmative defense of consent over his objections. Barnes

asserts that the affirmative defense instruction improperly shifted the burden of proof to the

defense to prove that the sexual intercourse was consensual in order to avoid a conviction for

second degree rape. We agree based on our Supreme Court' s decisions in State v. Coristine, 177

Wn.2d 370, 378, 300 P. 3d 400 ( 2013) and State v. Lynch, 178 Wn.2d 487, 491, 309 P. 3d 482

 2013).    We reverse Barnes' s convictions on both counts of second degree rape.




2 The trial court did not specify which second degree rape conviction was the same criminal
conduct as the first degree burglary. However, we fairly can assume that the trial court was
referring to count two, which involved the rape in Johnson' s house.



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44075 -0 -II



         1.     Defendant' s Right to Control Defense


         A criminal defendant has a right under the Sixth Amendment to the United States

Constitution to       control   his   or   her       own   defense. Lynch, 178 Wn.2d      at   491. "   Instructing the jury

on an affirmative defense over the defendant' s objection violates the Sixth Amendment by

interfering    with   the defendant'        s   autonomy to       present a   defense.   Lynch, 178 Wn.2d at 492


 quoting Coristine, 177 Wn.2d                   at   375).   We review allegations of constitutional violations de-

novo. Lynch, 178 Wn.2d at 491.


         In Coristine, the State charged the defendant with second degree rape, and was required

to prove that the alleged victim lacked the capacity to consent to sexual intercourse because she

was   physically helpless        or   mentally incapacitated.            177 Wn.2d at 373 ( citing RCW

9A.44. 050( 1)( b)).     The defendant testified that the alleged victim initiated and willingly

participated in the sexual intercourse. Coristine, 177 Wn.2d at 373 -74. The State proposed an

instruction on the statutory defense of reasonable belief, under which the defendant had the

burden of proving that he reasonably believed the alleged victim was not mentally incapacitated

or   physically helpless.       Coristine, 177 Wn.2d at 374. At trial, the defendant argued that his

defense was that the State had failed to prove that the alleged victim was incapacitated.

Coristine, 177 Wn.2d at 374. The trial court gave the affirmative defense instruction over the

defendant' s objection. Coristine, 177 Wn.2d at 374.


          Our Supreme Court held that instructing a jury to consider an affirmative defense over

the defendant' s objection interferes with the defendant' s Sixth Amendment right to control his or

her defense. Coristine, 177 Wn.2d at 378. The court emphasized that the Sixth Amendment

 places the " important strategic decision" of whether to assert an affirmative defense " squarely in



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44075 -0 -II



the hands   of   the defendant,   not   the   prosecutor or   the trial   court."   Coristine, 177 Wn.2d at 378.


 Imposing a defense on an unwilling defendant impinges on the independent autonomy the

accused must      have to defend   against charges."        Coristine, 177 Wn.2d at 377.


        In Lynch, the State charged the defendant with second degree rape based on the victim' s

allegation of    forcible   compulsion.       178 Wn.2d at 489. The defendant admitted that he had sexual


contact with the alleged victim, but claimed that she consented to his conduct. Lynch, 178

Wn.2d at 490. The defendant objected to the State' s proposed instruction on the affirmative

defense of consent " on the grounds that he had the right to control his defense and because he did

not want    to bear the burden    of    proving   consent."       Lynch, 178 Wn.2d at 490. The defendant


argued that he presented evidence of consent to create reasonable doubt as to whether the State

had proved forcible compulsion. Lynch, 178 Wn.2d at 490. The trial court gave the affirmative

defense instruction over the defendant' s objection. Lynch, 178 Wn.2d at 490.

         Our Supreme Court held that its decision in Coristine was dispositive. Lynch, 178 Wn.2d

at 492. The court confirmed that giving an affirmative defense instruction over the defendant' s

objection violated the Sixth Amendment. Lynch, 178 Wn.2d at 492. The court stated that a

defendant must be allowed to " cast doubt on an element of the State' s case" without assuming

the burden     of proof.    Lynch, 178 Wn.2d       at   493. The court also rejected the State' s argument that


giving the affirmative defense instruction was justified because the defendant introduced
evidence that the alleged victim consented. Lynch, 178 Wn.2d at 493 -94.

         Here, as in Coristine and Lynch, Barnes objected to instructing the jury on the affirmative

 defense of consent, which stated that Barnes had to prove by a preponderance of the evidence

 that his sexual intercourse with Russell was consensual. Barnes objected on the grounds that the




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44075 -0 -II



instruction ( 1) would confuse the jury, (2) would relieve the State of proving every element

beyond a reasonable doubt, and ( 3) would require him to pursue an affirmative defense of

consent. And the record does not show that Barnes expressly argued an affirmative defense of

consent. Instead, he argued that the State failed to meet its burden on either rape charge.

        The facts here cannot be distinguished from Coristine and Lynch. As in Lynch, the fact

that Barnes testified that Russell consented to sexual contact did not justify giving an affirmative

defense instruction. Lynch, 178 Wn.2d at 494. Accordingly, we hold that the trial court erred

when it instructed the jury on the affirmative defense of consent.

        2.      Harmless Error Analysis


        We conduct a constitutional harmless error analysis to determine whether the trial court' s

violation of Barnes' s Sixth Amendment rights warrants vacating his conviction. Coristine, 177

Wn.2d   at   379 -80. "[   I] f trial error is of constitutional magnitude, prejudice is presumed and the

State bears the burden       of   proving it   was   harmless beyond   a reasonable   doubt." Coristine, 177


Wn.2d at 380.


        Here, the State did not argue that giving the affirmative defense instruction over Barnes' s

objection was harmless beyond a reasonable doubt. In fact, the State does not even argue that

the error was harmless. As a result, we hold that the State failed to prove that the error was not

harmless beyond a reasonable doubt.

         We hold that the trial court violated Barnes' s Sixth Amendment right to control his own

defense by instructing the jury on an affirmative defense that Barnes did not want to pursue.

Because the State has failed to meet its burden of proving this constitutional violation was not




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44075 -0 -II



harmless beyond a reasonable doubt, we reverse both of Barnes' s second degree rape

                  and remand for a new trial on those charges.


B.      ADMISSIBILITY OF SECRET RECORDINGS


        Barnes argues that Russell' s secret recording of their conversations violated the Privacy

Act, RCW 9. 73. 030, and therefore under RCW 9. 73. 050 the trial court erred in allowing the jury

to listen to      a redacted version of      the   recordings.           The State argues that the recordings were


admissible     under    two     exceptions   listed in the        Privacy      Act.   First, the Privacy Act exempts

communications         that "   convey threats of extortion, blackmail, bodily harm, or other unlawful

requests or    demands."         RCW 9. 73. 030( 2)( b).     Second, it exempts communications by a hostage

holder, RCW          9. 73. 030( 2)( d),   defined as someone who commits kidnapping or unlawful

imprisonment. RCW 70. 85. 100( 2)( a).


           In Barnes' s first appeal, we stated that selected portions of the recordings may qualify for

the threats    exception.       Barnes, WL 3766574,        at *   3.     We also stated that, under the hostage holder


exception, the trial court could admit the portion of the recording made during the period of

unlawful     imprisonment. Barnes, WL 3766574,                    at *   3.   As a result, at least some portions of the


recordings are admissible. Barnes does not dispute this conclusion.

           But Barnes did not provide sufficient argument to allow us to evaluate his claim that


many   of   the   portions of    the recordings    were    inadmissible. He has made no attempt to designate


which portions of the 22 minute redacted version of the recordings are admissible under the




3 The trial court instructed the jury on the affirmative defense only for count 2, and the State
argued that the instruction applied only to count 2. But the instruction' s language was broad
enough that its terms necessarily applied to both counts. Accordingly, we reverse on both
 counts.




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44075 -0 -II



Privacy        Act        exceptions and which portions are           inadmissible.    The appellant has the burden of


providing         an      adequate    record on    appeal.    State   v.   Tracy,   158 Wn.2d 683, 691,        147 P. 3d 559


 2006); RAP 9. 2( b).              We need not search for the applicable portions of the record in support of a

         s     argument.           State   v.   Brousseau,   172 Wn.2d 331,          353,   259 P. 3d 209 ( 2011);      RAP
party'


10. 3(   a)(   6) (   a   party   must cite " references     to   relevant parts of   the   record ").   Barnes' s failure to


provide an adequate record precludes our review. Stiles v. Kearney, 168 Wn. App. 250, 259, 277

P. 3d 9,       review       denied, 175 Wn. 2d 1016, 287 P. 3d 11 ( 2012).              Here, because Barnes failed to


designate which portions of the redacted version of the recordings he disputes as inadmissible,

we are unable to address whether the trial court erred in admitting certain portions under the

Privacy Act exceptions.

               On remand, the trial court will be free to reevaluate the admissibility of particular

portions of the redacted version of the recordings based on Barnes' s specific objections.

C.             INEFFECTIVE ASSISTANCE OF COUNSEL


               Barnes argues that he received ineffective assistance of counsel because his attorney

failed to        object      to the   redacted version of    the   recordings under     ER 401, 402,      or   403.   We need


not address this issue with regard to the second degree rape convictions because, on remand,

Barnes' s counsel will have the opportunity to object to the recordings on grounds not asserted at

trial.       But we must consider Barnes' s argument with respect to the wrongful imprisomnent and

first degree burglary convictions because ineffective assistance of counsel could require a new

trial    on    those convictions.          We hold that Barnes is not entitled to a reversal of those convictions


based on ineffective assistance of counsel.




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44075 -0 -II



            To prevail on an ineffective assistance of counsel claim, the defendant must show both

that ( 1)    defense    counsel' s        representation          was     deficient,   and (   2) the deficient representation


prejudiced     the defendant.            Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L.


Ed. 2d 674 ( 1984); State           v.   Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).                  The defendant' s


failure to    show either element ends our                   inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917

P. 2d 563 ( 1996),     overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649,

166 L. Ed. 2d 482 ( 2006).               Representation is deficient if, after considering all the circumstances,

it falls below      an objective standard of reasonableness.                     Grier, 171 Wn.2d at 33 Prejudice exists


if there is a reasonable probability that, except for counsel' s errors, the result of the proceeding

would       have been different. Grier, 171 Wn.2d                    at   34.   We review claims of ineffective assistance

of counsel de novo. State. v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).

            Even assuming Barnes is correct that defense counsel' s performance was deficient for not

objecting to the redacted version of the recordings based on ER 401, ER 402, and ER 403, he

must establish prejudice by showing that the trial court would have sustained these objections.

Grier, 171 Wn.2d         at   34.        This is   a   difficult task: " The threshold to admit relevant evidence is


very low. Even minimally                  relevant evidence          is   admissible."     State v. Darden, 145 Wn.2d 612,


621, 41 P. 3d 1189 ( 2002).              And a trial court has broad discretion in determining the admissibility

of evidence under these rules. State v. Dye, 178 Wn.2d 541, 547 -48, 309 P. 3d 1192 ( 2013).

            Barnes   relies   primarily       on   State     v.   Briejer, 172 Wn.       App.     209, 289 P. 3d 698 ( 2012), to


argue    that the    recordings were not relevant res gestae evidence.                         But we need not address his res


gestae      argument    because          portions      of   the   recordings     are   directly    relevant.   To prove second


degree rape, the State had to prove that Barnes engaged in sexual intercourse with another person




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by   forcible   compulsion.        RCW 9A.44. 050( 1)(      a). "    Forcible compulsion" means physical force


that   overcomes       resistance.    RCW 9A. 44. 010( 6).           Russell' s statement on the recordings that


Barnes hurt her wrist, supported by her testimony that Barnes grabbed her wrists to pull her out

of the car and into the camper is relevant to show that during the first incident Barnes used

physical   force to      overcome      Russell'   s   resistance     to have   sex.    The same evidence may be

admissible      to    show    unlawful      imprisonment.           And Barnes' s      conversations   with   Russell


demanding that she have sex with him, as well as Russell' s objections, are relevant to the

question of whether during either incident Barnes used forcible compulsion to get what he

wanted.



         Barnes argues that certain portions of the recordings are irrelevant and inadmissible under

ER 402, but once again he has made no attempt to designate which portions of the 22 minute

redacted   version      of   the   recordings   are    irrelevant.     He makes only general references to the

recordings.          Similarly, Barnes has presented no argument that specific statements in the

recordings      are   more    prejudicial   than      probative     under   ER 403.     He simply asserts, without

analysis or argument,         that the trial   court would    have    excluded   the   recordings under   ER 403.   As


a result, we cannot determine whether the trial court would have sustained relevancy or ER 403

objections to particular portions of the recordings.


          Because Barnes fails to show that any deficient performance by his trial counsel

prejudiced him, we reject his ineffective assistance of counsel claim with respect to the unlawful


imprisonment and first degree burglary convictions.




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D.        LESSER INCLUDED OFFENSE INSTRUCTION


          The trial court instructed the jury on the crime of second degree rape. Barnes argues that

the trial court erred in denying his request for a jury instruction on the lesser included offense of

third degree      rape.    We disagree, and hold that the trial court properly refused to instruct the jury

on third degree rape.


           A person is guilty of third degree rape if he or she engages in sexual intercourse with

another person without consent, "                   and such lack of consent was clearly expressed by the victim' s

words     or   conduct."        RCW 9A.44. 060( 1)(             a).    A person is guilty of second degree rape when,

under circumstances not constituting first degree rape, he or she engages in sexual intercourse

with     another        person "[     b] y    forcible      compulsion."             RCW        9A.44. 050( 1)(    a). " `     Forcible


compulsion' means physical force which overcomes resistance, or a threat, express or implied,

that     places    a    person       in fear       of   death   or    physical      injury     to   herself   or   himself."     RCW


9A.44. 010( 6).

           When the State            charges       a    defendant     with an      offense "   divided by inferior degrees of a

crime, the jury may find the defendant not guilty of the charged offense, but guilty on any lesser

degrees     of    the   crime."       State   v.   Buzzell, 148 Wn.          App.     592, 602, 200 P. 3d 287 ( 2009) ( citing


RCW 10. 61. 003, . 006).              A defendant is entitled to a jury instruction on a lesser included offense

if (1)    each of the elements of the lesser offense is a necessary element of the offense charged

 legal prong);          and (   2)    the evidence in the case supports an inference that the defendant

committed         the    lesser   crime       to the      exclusion     of   the    greater    crime (   factual prong).       State v.


                            48, 584 P. 2d 382 ( 1978); see State v. Berlin, 133 Wn.2d 541, 546-
 Workman, 90 Wn.2d 443, 447 -


47, 947 P. 2d 700 ( 1997).               The court must view the evidence in the light most favorable to the




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44075 -0 -II



party requesting the instruction.            State v. Fernandez- Medina, 141 Wn.2d 448, 455 -56, 6 P. 3d

1150 ( 2000).


         We review de novo the legal prong of a request for a jury instruction on a lesser included

offense.     State   v.   LaPlant, 157 Wn.       App. 685, 687,        239 P. 3d 366 ( 2010) .     But we review the


factual prong of a request for a jury instruction on a lesser included offense for abuse of

discretion. LaPlant, 157 Wn. App. at 687.

         The State does not dispute that third degree rape is a lesser degree offense of second

degree     rape;   its    elements    plainly satisfy the legal prong       of   the Workman test.      But the State


disputes the factual prong. Therefore, the question is whether the evidence supports a finding of
third degree       rape —    i. e., that Barnes had nonconsensual sexual intercourse with Russell without


forcible compulsion.


         Regarding the first incident, Russell testified that Barnes used forcible compulsion to

have   nonconsensual sexual            intercourse     with   her.   Barnes denied that he had sexual intercourse


with   Russell     at, all   during   this incident.    As a result, there is no evidence that would support a


finding that in this incident they had sexual contact to which Russell did not consent but Barnes
did not use force.


           Regarding         the   second   incident,    Russell again testified that Barnes used forcible


compulsion         to have    nonconsensual sexual       intercourse    with    her.   Barnes testified that the sexual


intercourse was consensual. Once again, there is no evidence that would support a finding that in

this incident Russell did          not consent   but Barnes did       not use   force. Our Supreme Court has held


that a defendant is not entitled to an instruction on a lesser offense where " a victim' s testimony




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that she was physically overpowered negates any inference that sexual intercourse was

nonconsensual         but   still unforced."         Buzzell, 148 Wn.   App.   at   604.   Buzzell applies here.


            Russell testified that the         sexual contact was       through forcible      compulsion.   According to

Barnes'     s    testimony, there was no sexual intercourse in the first incident and the sexual

intercourse was consensual in the second incident. Even taking all the evidence in the light most

favorable to Barnes, there is no evidence that Barnes made nonconsensual sexual contact without

the   use       of physical   force.     Therefore, we hold that the trial court properly refused to give an

instruction of rape in the third degree.


E.          SUFFICIENT EVIDENCE OF BURGLARY


            Barnes also argues that the State failed to prove the elements of first degree burglary with

sexual motivation.          4 The statute governing burglary provides that " A person ` enters or remains

unlawfully' in or upon premises when he is not then licensed, invited, or otherwise privileged to

so enter or remain."           Former RCW 9A. 52. 010( 3) ( 2008).                  Barnes disputes the State' s assertion


that   he "     enter[ ed] or remain[ ed]      unlawfully." Br. of Appellant at 22. He contends that there was


no evidence that his presence was unlawful. We hold that the State presented sufficient evidence

of first degree burglary with sexual motivation.

            Evidence is sufficient to support a conviction if, viewed " in the light most favorable to

the State, any        rational   trier   of   fact   could   have found   guilt   beyond   a reasonable   doubt."   State v.


Kintz, 169 Wn.2d 537, 551, 238 P. 3d 470 ( 2010).                       When a defendant challenges the sufficiency



4 Although Johnson called the police when he encountered Barnes at his residence on August 19,
the State charged Barnes with first degree burglary for his entry onto the property on August 15,
and the jury convicted Barnes of first degree burglary with a sexual motivation for his August 15
rape of         Russell   while on     the property.         Thus, this issue on appeal is limited to whether Barnes
 committed burglary on August 15, not August 19.


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44075 -041



of the evidence in a criminal case, the court draws all reasonable inferences from the evidence . .

in favor    of   the State     and ...        most               against     the defendant.         Kintz, 169 Wn.2d      at   551   A
                                                     strongly


claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can be drawn therefrom. Kintz, 169 Wn.2d at 551


        Beginning in early July 2008, Johnson rented a room to Barnes, but Barnes was unable to

pay rent after the first month and stopped living with Johnson approximately in the " middle of

August" 2008.           RP     at    306.    When Barnes left, he " couldn' t take all of his things so [ Johnson]


allowed     him to      keep        some of    his things"      at   the house.      RP    at     307.    Barnes no longer slept at


Johnson' s house, but Johnson orally 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.    At trial, Johnson testified that Barnes did not have permission to be in Johnson' s house

on August 15, 2008, the date of Russell' s encounter with Barnes.


         Barnes claims that Johnson kept the doors to his house unlocked so that Barnes could

enter when        he needed to.             But Johnson' s testimony contradicts Barnes' s assertion that Johnson

permitted       Barnes to      enter    the property on August 15.              Johnson was clear that, after Barnes was


unable to pay rent for August, Johnson placed conditions on Barnes' s entry onto the property.

           Our    analysis      is   whether, "      viewing the evidence in the light most favorable to the State,

      rational    trier   of   fact   could    have found       guilt   beyond    a reasonable           doubt."   State v. Kintz, 169
any


Wn.2d      at   551.   And we " defer to the trier of fact on issues of conflicting testimony, credibility of

witnesses, and         the   persuasiveness of         the   evidence."      State   v.   J.P.,   130 Wn. App. 887, 891 -92, 125

P. 3d 215 ( 2005).           Thus, even if Barnes' s testimony could support an alternate scenario in which

he lawfully entered Johnson' s property, the jury had sufficient evidence to conclude that Johnson



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44075 -0 -II



did   not permit   Barnes to       enter and remain on           his property      on   August 15, 2008.       Consequently,

we hold that sufficient evidence supports the first degree burglary conviction.

F.       STATEMENT OF ADDITIONAL GROUNDS ( SAG)


         In his SAG, Barnes          makes    four    additional arguments.             First, he argues that the trial court


violated   his due      process rights   when        it   admitted     the recording.       Barnes bases his due process


argument on his assertion that the trial court violated the Privacy Act when it admitted the

recording.      But as discussed above, Barnes did not provide sufficient argument to allow us to


evaluate   this    claim.     Barnes' s SAG also provides no specific designation of the allegedly

inadmissible recorded statements. As a result, we need not address this issue.

         Second, Barnes argues that the State failed to present sufficient evidence to prove that he

entered Johnson' s property with the intent to commit a crime, one of the elements of first degree

burglary. He claims that Russell voluntarily entered Johnson' s house, which negates the intent

element.       But Russell testified that, once inside Johnson' s house, Barnes forced her to have


nonconsensual sex. Based on this evidence, a rational jury could find beyond a reasonable doubt

that Barnes intended to            commit a crime         against      Russell    on   the property.   Therefore, we reject


Barnes' s second argument.


         Third, Barnes argues that the trial court abused its discretion when it allowed the State to

introduce evidence of Barnes' s violation of a . no- contact order against a former girlfriend.


Barnes apparently         refers   to defense   counsel' s statement, outside              the   presence of   the   jury: "[   I] t


appeared that the Court initially allowed evidence of the violation of a no contact order in, but

then   changed    its   mind and    decided    not   to   allow   that in."      RP at 142. In this conversation, defense

counsel was       discussing   the   history    of   the trial    court' s orders.       There is no other evidence in the




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record that Barnes violated a no- contact order against a former girlfriend, nor any evidence that

the jury heard this information. Thus, we reject Barnes' s unfounded argument.

          Fourth, Barnes argues that the trial court abused its discretion when it allowed the State to

introduce Russell'      s    statements    regarding assaulting         other women.      Barnes apparently refers to

Russell' s testimony that, on one occasion, Barnes said that he wished he could pour gasoline

 over all women and watch them burn" and, on another occasion, that he " wish[ ed he] could slit

 his former    girlfriend' s]     throat   and watch    the dust        pour out."   RP   at   203.   But Barnes did not


object to these statements at trial, thereby failing to preserve the issue for appeal. State v. Embry,

171 Wn.     App.   714, 739, 287 P. 3d 648 ( 2012), review denied, 177 Wn.2d 1005, 300 P. 3d 416


 2013).     To raise an error for the first time on appeal, a defendant must show a manifest error


affecting   a constitutional right.        RAP 2. 5(   a)(   3).   Because Barnes fails to show that his claim falls


within    RAP 2. 5(   a)(   3), we need not consider this issue.


G.        CROSS -APPEAL: SAME CRIMINAL CONDUCT


          The State also appeals Barnes' s sentence and argues that the trial court erred in ruling

that the crimes of first degree burglary and second degree rape constituted the same criminal

conduct for sentencing purposes. Because we vacate Barnes' s second degree rape convictions,

we need not reach the State' s cross -appeal.


          We reverse and remand for a new trial on both of Barnes' s second degree rape

convictions. We affirm Barnes' s convictions for unlawful imprisonment and first degree


burglary.




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        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 pursuant to RCW 2. 06. 040, it is

so ordered.




We concur:




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