       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                           )        No. 78265-7-I

                    Respondent,                )        DIVISION ONE
                                               )
             v.                                )        UNPUBLISHED OPINION

ALAN JAMES SINCLAIR, II,                      )
                                              )
                    Appellant.                )         FILED: October 28, 2019



       ANDRUS, J.   —   A jury convicted Alan James Sinclair, II, of raping his young

 teenage granddaughter, I.S. James Zesati, l.S.’s stepfather, was subsequently

 arrested and convicted for raping IS. Sinclair sought a new trial based on the

 newly discovered evidence that Zesati had abused IS. at the same time Sinclair

was molesting her. The trial court denied this motion, concluding that the evidence

would not have changed the outcome of Sinclair’s trial. We agree and affirm.

                                        FACTS

       A jury found Sinclair guilty of sexually abusing his granddaughter, I.S. We

 affirmed his convictions of two counts of second degree rape of a child, two counts

of third degree child molestation, and one count of communicating with a minor for

 immoral purposes. State v. Sinclair, 192 Wn. App. 380, 367 P.3d 612, review

denied, 185 Wn.2d 1034, 377 P.3d 733 (2016).
No. 78265-7-1/2

        James Zesati, I.S.’s stepfather, was also convicted of sexually abusing l.S.,

and the details of his crimes are set out in our decision affirming his convictions.

State v. Zesati, No. 75716-4-I (Wash. Ct. App. Aug. 6, 2018) (unpublished),

http://www.courts.wa.gov/opinions/pdf/7571 64.pdf, review denied, 192 Wn.2d

1007, 430 P.3d 242 (2018).

        When Sinclair learned of Zesati’s crimes, he moved to vacate his judgment,

under CrR 7.8(b)(5), and for a new trial under CrR 7.5(a)(3). At trial, Sinclair had

admitted his guilt as to the charges of child molestation and communicating with a

minor for immoral purposes. Sinclair, 192 Wn. App. at 384-85. The only charges

Sinclair disputed were the two counts of second degree child rape, arguing that

the State had presented insufficient evidence to prove that he had engaged in

sexual intercourse with l.S. before her 14th birthday.1 j~ In his motion for a new

trial, Sinclair argued that had he known of Zesati’s abuse of l.S., he would not have

conceded guilt to any of the charges. Instead, he would have taken the stand to

explain that I.S.’s allegations against him were false and stemmed from a poor

relationship with I.S.’s mother, January, and from Zesati seeking to hide his sexual

relationship with I.S.

        In addition, Sinclair contends that he would have taken the stand to explain

away sexually explicit images of I.S. found on Sinclair’s computer, camera, and

cell phone. Sinclair asserts he would have testified that I.S. had unsupervised and



           IS’s age when raped by Sinclair was relevant to the severity of Sinclair’s crimes. Rape
of a child in the second degree is a class A felony and requires proof of “sexual intercourse” with a
child who is at least 12 but less than 14 years old. RCW 9A.44.076. A defendant convicted of
second degree child rape is subject to an indeterminate sentence under RCW 9.94A.507, with a
maximum sentence of life in prison. RCW 9A.20.021(1)(a).

                                                -2-
No. 78265-7-1/3

frequent access to his many electronic devices, including at least two times when

he suspected that I.S. was engaging in sexual activity with someone else. Sinclair

conceded that this evidence was available at the time of his trial, but he had no

evidence that l.S. was sexually active with anyone else and his testimony would

not have been credible until Zesati’s relationship with I.S. was uncovered.

       The State countered that the trial outcome would have been the same

because its evidence against Sinclair was overwhelming—l.S. had testified

consistently that Sinclair had abused her sexually for years, the State had

photographic evidence of Sinclair engaging in sex with I.S., and the State had a

voice recording of Sinclair captured on January’s cell phone in which he was

overheard making sexually explicit statements to l.S. Additionally, Zesati’s abuse

differed from Sinclair’s abuse, both in location and manner.

       The trial court denied Sinclair’s motion. It based its ruling on the fact that

I.S. had not recanted and that Sinclair’s exculpatory explanations for th~ voice mail

and photos were known at trial and could have been presented without the

existence of another named abuser. It concluded that “having presided over the

trial, the [c]ourt is firmly convinced that the new evidence would not probably have

changed the result of the trial and that the proffered evidence would have been

cumulative or impeaching at best.”

       Sinclair appeals.

                                     ANALYSIS

      The State argues Sinclair is judicially estopped from retracting the prior

admissions that he sexually abused I.S. Judicial estoppel prevents a party from


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No. 78265-7-1/4

taking inconsistent factual positions from one proceeding to the next. State v.

Sweany, 162 Wn.App. 223, 228-29, 256 P.3d 1230 (2011), afrd, 174 Wn.2d 909,

281 P.3d 305 (2012). The State must establish (1) that Sinclair’s current factual

defense is clearly inconsistent with his earlier defense, (2) that accepting the new

defense would create the perception that the trial court was misled, and (3) that

Sinclair would gain an unfair advantage from the change in his defense. State v.

Wilkins, 200 Wn. App. 794, 803-04, 403 P.3d 890 (2017). The doctrine should

apply only when the inconsistent position first asserted was successfully

maintained and when the party claiming estoppel was misled into changing its

position. See Markleyv. Markley, 31 Wn.2d 605, 614-15, 198 P.2d 486 (1948).

       Sinclair’s current argument—that, if granted a new trial, he would deny all

sexual contact with I.S.—is clearly inconsistent with his defense at trial. In closing

argument, Sinclair’s attorney told the jury:

       Convict Mr. Sinclair of the crimes the government has proven.
       Convict him of child molestation in the third degree. Convict him of
       communicating with a minor for immoral purposes.

He also admitted that Sinclair had engaged in sexual intercourse with I.S., but

denied that it occurred before she turned 14:

       Folks, there was sexual intercourse between Mr. Sinclair and [I.S.].
       But as I said at the beginning of this case, [the question] is whether
       there was sexual intercourse before July 9, 2012[,J when [IS.] turned
       14.

      Although Sinclair’s current theory is inconsistent with his trial admissions,

Sinclair did not prevail at trial, and the State—the party claiming estoppel—was

not misled by Sinclair’s admissions and did not change its legal position in reliance

on his admissions. Because Sinclair’s admissions of sexual abuse did not benefit

                                         -4-
No. 78265-7-1/5

him, and any assertion of inconsistent facts caused no prejudice to the State, we

conclude that judicial estoppel does not apply. ~ State v. Hamilton, 179 Wn.

App. 870, 887, 320 P.3d 142 (2014) (defendant not estopped from claiming on

appeal that she had privacy interest in purse searched by police after denying any

ownership of purse at trial).

       Turning to the merits, Sinclair argues the trial court erred in denying his

motion for a new trial. Except where questions of law are involved, a trial judge

has broad discretion in deciding motions for new trial. State v. Williams, 96 Wn.2d

215, 221, 634 P.2d 868 (1981).        “The exercise of that discretion will not be

disturbed on appeal absent an abuse of discretion.” ki. The superior court abuses

its discretion only when its decision is manifestly unreasonable, based on

untenable grounds, or based on untenable reasons. State v. Scott, 150 Wn. App.

281, 290, 207 P.3d 495 (2009); see also State v. Downinci, 151 Wn.2d 265, 272,

87 P.3d 1169 (2004).

       A new trial may be granted based on newly discovered evidence only if the

moving party demonstrates that the evidence (1) will probably change the result of

the trial, (2) was discovered since the trial, (3) could not have been discovered

before trial by the exercise of due diligence, (4) is material, and (5) is not merely

cumulative or impeaching. Williams, 96 Wn.2d at 222-23; see also CrR 7.5(a)(3).

The only questions in this appeal are whether the newly discovered evidence is

material, or merely cumulative or impeaching, and whether it would probably

change the result of the trial.




                                        -5-
No. 78265-7-116

A. Materiality

       Relying on California v. Trombetta, 467 U.S. 479, 488 & n.8, 104 S. Ct.

2528, 81 L. Ed. 2d 413 (1984), Sinclair argues that the newly discovered evidence

is material because it would have altered his defense. But Trombetta involved the

scope of the State’s duty to preserve potentially exculpatory evidence under Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In State v.

Mullen, 171 Wn.2d 881, 259 P.3d 158 (2011), our Supreme Court expressly

recognized that the Brady materiality standard is different than the materiality

standard set out in CrR 7.5(a)(3), k1. at 905-06, because Brady does not require a

defendant to demonstrate that “the evidence if disclosed probably would have

resulted in acquittal,”   at 894 (quoting United States v. Bagley, 473 U.S. 667,

680, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)); see also Kyles v. Whitley, 514 U.S.

419, 433-34, 115 5. Ct. 1555, 131 L. Ed. 2d 490 (1995). We decline to apply the

materiality standard advanced by Sinclair.

       Instead, when evaluating newly discovered evidence on a CrR 7.5(a)(3)

motion, the evidence is material only “if it strongly indicates that the defendant did

not commit the crime.” State v. Gassman, 160 Wn. App. 600, 611, 248 P.3d 155

(2011); see also State v. Hawkins, 181 Wn.2d 170, 180, 332 P.3d 408 (2014)

(evidence was material because it would have allowed defendant to argue that

someone planted stolen property on defendant’s property).

       The trial court summarized the newly discovered evidence, which Sinclair

does not challenge: Zesati began abusing I.S. when she was a freshman in high




                                        -6-
No. 78265-7-1/7

school2 and raped her on multiple occasions over a six-month period in the family’s

living room, I.S.’s bedroom, or the master bedroom that Zesati shared with l.S.’s

mother. Unlike Sinclair, Zesati did not request videos or photographs of l.S. Zesati

stopped raping l.S. when Sinclair was investigated for child rape but began again

after Sinclair was sent to prison. IS. testified in Zesati’s trial and admitted that

Sinclair had sexually abused her.

        Based on this evidence, Sinclair contends that he could have presented an

“other suspect” defense. “In the classic other suspects case, the defendant blames

the specific crime for which he has been charged on someone else.” State v.

Hawkins, 157 Wn. App. 739, 751, 238 P.3d 1226 (2010).                       “The standard for

relevance of other suspect evidence is whether there is evidence tending to

connect someone other than the defendant with the crime.” State v. Franklin, 180

Wn.2d 371, 381, 325 P.3d 159 (2014) (quotations and citations omitted). Some

combination of facts or circumstances must point to a nonspeculative link between

the other suspect and the specific crime charged. j~ç~ This link is missing here.

        At trial, l.S. described specific incidents of sexual molestation and rape that

occurred in Sinclair’s basement computer room, his truck, and her house. She

described his forcing her to engage in oral sex on multiple occasions and his taking

photos of her while this occurred. She has never recanted this version of events.

        The State presented sexually explicit photos and videos that had been

recovered from electronics seized from Sinclair’s computer, an external hard drive,



        2 Zesati was convicted of rape of a child in the third degree because IS. was over the age

of 14 when the rapes first occurred. Zesati, No. 75716-4-I, slip op. at 1, 8-9.

                                              -7-
No. 78265-7-1/8

and media cards from several cameras. Law enforcement also found photos of

I.S. engaging in sexual acts taken in Sinclair’s computer room, and in his truck,

identifiable by its distinctive seat covers. They had photos of Sinclair’s blue jeans

and white tennis shoes—visible in the recovered photos and video. The items or

locations depicted in the photos corroborated I.S.’s testimony that Sinclair had

taken the photos.

       Despite this evidence, Sinclair contends the evidence of Zesati’s abuse is

exculpatory because it could rebut the inference that Sinclair took the sexually

explicit photographs of l.S., providing a link between Zesati and the specific crimes

with which Sinclair was charged. Relying on State v. Kilciore, 107 Wn. App. 160,

26 P.3d 308 (2001), and State v. Carver, 37 Wn. App. 122, 678 P.2d 842 (1984),

he argues that evidence of another abuser is material as a matter of law. We

disagree.

       In Kil~ore, the defendant was charged with first degree child rape of a    10-
year-old girl. 107 Wn. App. at 166. A nurse practitioner examined the child and

testified that the condition of the child’s hymen suggested abuse and was

consistent with the child’s version of events. jçj. at 170. The State sought to

exclude evidence that the child had been sexually abused by others, but Kilgore

argued the evidence that another individual had pleaded guilty to digitally

penetrating the child was relevant to rebut the assertion that Kilgore’s actions led

to the nurse practitioner’s diagnosis. j~ at 178. The court reversed the conviction

based on the exclusion of this evidence, reasoning that the diagnosis was relevant

to rebut the State’s allegation that Kilgore had penetrated the child. k1. at 178-79,


                                        -8-
No. 78265-7-1/9

190. Because Kilgore’s evidence that another individual had digitally penetrated

the child could have been the cause of the nurse practitioner’s physical finding,

and exculpated Kilgore, it was relevant. k~. at 178-79.

       But Kilgore did not arise in the context of a post-trial motion for a new trial.

The test for relevance is not the same as the test for materiality. Under Gassman,

the newly discovered evidence must “strongly indicate” Sinclair did not commit

child rape or molestation. Here, the fact that Zesati raped I.S. does not lead to the

conclusion that Sinclair did not.

       Nevertheless, Sinclair claims that the photos and video could still provide

the link to support his “other suspect” theory. He points out that all of the photos

and videos introduced at trial were taken after I.S.’s 14th birthday and could have

depicted I.S. with Zesati, rather than with Sinclair. If there were evidence to link

Zesati and the photos and video, the newly discovered evidence could be

exculpatory. The problem, however, is that there is no evidence that Zesati had

access to Sinclair’s computer, camera, or cell phone, no evidence Zesati was ever

in Sinclair’s computer room or truck at the same time as l.S., and no evidence

Zesati ever forced l.S. to pose for photos. Any suggestion that Zesati took the

photos of I.S. is pure speculation and insufficient to provide the necessary link to

exculpate Sinclair.

       Carver is also distinguishable.    In that case, the defendant appealed a

conviction for indecent liberties and second degree statutory rape. 37 Wn. App. at

123. He claimed the trial court erred in excluding evidence that the victims, his two

stepdaughters, had suffered similar sexual abuse by their grandfather. ki. The


                                         -9-
No. 78265-7-1/10

court deemed the evidence relevant to Carver’s defense because it rebutted the

inference that the victims could describe the alleged sexual acts only if they had

been abused by Carver. jç~ at 124. “Without the evidence the jury logically could

draw the inference that [the victims] were conversant with such things only

because [the] defendant was guilty as charged.” j~ The court also held that the

trial court erred in denying Carver the opportunity to cross-examine one of the girls

regarding a prior statement that she had been abused only by her grandfather. k~.

at 125. It held that the statement that only her grandfather had abused her was

inconsistent with her trial testimony that Carver had abused her and, therefore, the

evidence was admissible under ER 613 as impeachment evidence. jçL

       In this case, as in Carver, the evidence of Zesati’s abuse could have been

admissible to rebut an inference that l.S.’s familiarity with the alleged sexual acts

had to come from Sinclair, when that knowledge could have resulted from Zesati’s

abuse. But to be materially exculpatory, rather than merely relevant, there needs

to be some evidence linking Zesati to the sexual abuse I.S. endured at the time

she gained this familiarity. The fact that Zesati raped l.S. after she turned 14 would

not rebut any such inference because Sinclair forced IS. into engaging in sex

between the ages of 11 and 13. As the State persuasively argued, “although Zesati

is properly considered a different suspect in different crimes, he is not an other

suspect as to these crimes.” (Emphasis omitted.)

      Also like Carver, 1.S. had denied in a pretrial interview having had sex with

anyone other than Sinclair. Evidence that l.S. was being abused by Zesati would

have been admissible at trial to impeach her credibility. But newly discovered


                                        -10-
No. 78265-7-I/il

evidence that has impeachment value only is not material and not a basis for

granting a new trial. Williams, 96 Wn.2d at 222-23.

       Because the newly discovered evidence does not exculpate Sinclair, it is

not material and does not warrant a new trial.

B. Probability of Different Outcome

       Even if the evidence were material, we cannot conclude it would have

changed the outcome of Sinclair’s trial. Sinclair must show that the outcome would

probably change, not just possibly change. Gassman, 160 Wn. App at 609; see

also In re Pers. Restraint of Fero, 190 Wn.2d 1, 18, 409 P.3d 214 (2018) (citing

Gassman for newly discovered evidence standard). “When considering whether

newly discovered evidence will probably change the trial’s outcome, the trial court

considers the credibility, significance, and cogency of the proffered evidence.”

Gassman, 160 Wn. App. at 609. The “trial court may utilize the knowledge that it

gained from presiding at the trial.” State v. Barry, 25 Wn. App. 751, 758-59, 611

P.2d 1262 (1980). The trial judge who has seen and heard the witnesses is in a

better position to evaluate and adjudge the newly discovered evidence than this

court can “from a cold, printed record.” State v. Moran, 181 Wn. App. 316, 325,

324 P.3d 808 (2014) (quoting State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221

(1967)).

       The trial court conducted the appropriate analysis based on its knowledge

of the trial evidence and assessment of the witnesses’ credibility. It concluded:

              Given the wealth of testimony and physical evidence
       presented against Sinclair, his claim that he might have changed his
       theory of defense or offered testimony given the new evidence does
       not persuade this [c]ourt that the results would probably have

                                       -ii   -
No. 78265-7-1/12

       changed. Furthermore, evidence of simultaneous abuse by the
       victim’s stepfather is merely impeaching. Sinclair asserts that the
       victim might have been confused between abusers but the testimony
       given by the victim in both trials clearly distinguishes the frequency
       and sexual abuse by Sinclair and Zesati.

                   [H]aving presided over the trial, the [c]ourt is firmly
       convinced that the new evidence would not probably have changed
       the result of the trial and that the proffered evidence would have been
       cumulative or impeaching at best.

       Again, Sinclair argues that the evidence of Zesati’s abuse of l.S. would have

led him to change his entire defense strategy. He contends he would have taken

the stand to testify that he had no sexual contact with I.S., that l.S. had access to

all of his electronic equipment and likely put the photos on his computer and cell

phone without his knowledge, and that the male depicted in the photos was not

him. But when determining whether newly discovered evidence would probably

change the result of trial, we do not consider what effect that evidence may have

on the defendant’s case; instead, we weigh the newly discovered evidence against

the strength of the State’s case. In re Pers. Restraint of Faircloth, 177 Wn. App.

161, 167-68, 311 P.3d 47 (2013); see also Fero, 190 Wn.2d at 18 (“[S]trengthening

the defense’s trial theory is not the standard for newly discovered evidence.”).

       Here, the State’s evidence against Sinclair was overwhelming, and the

evidence of Zesati’s crimes do not undercut the strength of that evidence. At best,

the evidence would allow Sinclair to suggest that l.S. fabricated the entire series

of events and somehow set him up by uploading sexually explicit photos of her

onto every one of his electronic devices, SD cards, and cell phone. But in light of

the corroborating evidence, this defense theory not only seems far-fetched but one



                                       -   12-
No. 78265-7-1/13

highly unlikely to be accepted by the jury. Thus, Sinclair has not established that

the trial outcome would probably change.

       Sinclair also argues that the evidence would have bolstered his argument

that I.S. was confused as to when Sinclair abused her, leading to reasonable doubt

as to whether any rape occurred before l.S. turned 14. But if Sinclair used the

newly discovered evidence to support his original trial strategy that he did not rape

l.S. until after her 14th birthday, the newly discovered evidence would do nothing

more than impeach l.S.’s testimony. ‘Impeachment evidence” refers to ‘[ejvidence

used to undermine a witness’s credibility.” BLACK’S LAW DICTIONARY 700 (11th ed.

2019). Impeachment evidence typically tests a witness’s ability to perceive or

recall matters, highlights defects in a witness’s character, or underscores a bias

that may lead the witness to distort his or her testimony, either consciously or

unconsciously. ROGER PARK & TIM LININGER, THE NEW WIGMORE: A TREATISE ON

EVIDENCE: IMPEACHMENT AND REHABILITATION             § 2.1, at 65 (2012). Substantive
evidence conveying a different story is not impeachment evidence because it does

not directly attack a witness’s credibility. ki.   § 2.1.5.
       While Sinclair’s testimony that the rapes did not occur would be substantive

because it would convey a different story, his testimony is not the “newly

discovered evidence” at issue here. He could have taken the stand to provide this

testimony at trial. The newly discovered evidence that I.S. was raped by Zesati

would have been merely impeaching because Sinclair would have used it, not as

substantive evidence to challenge the fact that certain events occurred, but to test

1.5.5 recollection of when those events occurred.


                                          -13-
No. 78265-7-1/14

        Lastly, Sinclair argued that because the photographic evidence post-dated

l.S.’s 14th birthday, l.S. could have been confused as to which abuser did what to

her and when. But the fact that the photos and video post-dated l.S.’s 14th birthday

was known to Sinclair at trial, and his counsel repeatedly challenged l.S.’s

recollection of dates and her credibility in testifying that certain events occurred

before she turned 14.           And the jury still found Sinclair guilty as charged.

Furthermore, the trial court explicitly rejected Sinclair’s contention that IS. may

have been confused between her abusers because “the victim in both trials clearly

distinguishes the frequency and the sexual abuse by Sinclair and Zesati.” The

record supports the trial court’s findings.

        The trial court in this case had the opportunity to observe the demeanor and

credibility of the witnesses at trial and to view the photographic and video evidence.

The trial court properly evaluated the strength of the State’s evidence as well as

the credibility, significance, and cogency of the proffered new evidence. The trial

court’s ruling was based on well-articulated, logical reasons. Its decision was not

manifestly unreasonable or based on untenable grounds or based on untenable

reasons. We find no abuse of discretion.3




        ~ Because we conclude that Sinclair is not entitled to a new trial, we need not revisit our
previous conclusion that admission of the pocket-dial voice mail on January’s cell phone was
harmless error. Sinclair, 192 Wn. App. at 384-85.

                                              -   14   -
No. 78265-7-1/15

      Affirmed.




WE CONCUR:


              F
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                   -15-
