I
lI                                                                            FILED
;)                                                                         APRIL 14, 2016
                                                                    In the Office of the Clerk of Court
1                                                                  WA State Court of Appeals, Division III




I
l
,,


                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION THREE

     STATE OF WASHINGTON,                         )
                                                  )         No. 32220-3-111
                         Respondent,              )
                                                  )
           V.                                     )
                                                  )
     LUIS ALBERTO DUENAS BARRETO,                 )         UNPUBLISHED OPINION
                                                  )
                         Appellant.               )

           FEARING, J. -In 2014, the Washington Supreme Court overturned twenty-five


l    years of precedent in prosecuting rape charges. The Supreme Court held that due process

     precludes requiring a defendant, accused of second degree rape, to prove the defense of

     consent by a preponderance of the evidence since the second degree rape statute imposes

     the burden of proving forcible compulsion on the State. State v. WR., 181 Wn.2d 757,

     336 P.3d 1134 (2014). The court reasoned that the concepts of nonconsent and forcible

     compulsion intertwine such that the State must also show the absence of consent in order



I    to prove forcible compulsion. Thus, a jury in a second degree rape case must be

     instructed that the State carries the burden to show beyond a reasonable doubt that the


l]
No. 32220-3-111
State v. Barreto

alleged victim did not consent. Before the Supreme Court's watershed decision, superior

courts routinely instructed juries that the defendant carried the burden to prove consent.

Appellant Luis Alberto Duenas Barreto's trial court delivered this standard instruction.

       Alberto Barreto appeals his conviction for second degree rape. He contends the

teachings of WR. require a new trial. The State concedes instructional error, but argues

the error was harmless. We take serious our duty to insure that constitutional error does

not impact the outcome of a trial. Nevertheless, after reviewing the entire trial record, we

hold the error to be harmless and affirm the conviction because of the lack of evidence of

any consent by the victim.

       Alberto Barreto also appeals a conviction for attempted second degree rape. He

argues insufficient evidence supports the conviction. We disagree and also affirm this

second conviction.

                                          FACTS

       The jury convicted Alberto Barreto of raping and attempting to rape Netta Arturo.

Netta Arturo is a fictitious name. The two convictions arise from discrete facts on

distinct days. Our statement of facts derives solely from trial testimony.

       Netta Arturo and her close friend Veronica Zelaya met Alberto Barreto, in

September 2012, at Broetje Orchards in Walla Walla County, where all three worked.

Barreto volunteered to the two ladies that he repaired cars. Each woman's car needed

mending. Barreto began repairing Arturo's vehicle first.



                                             2
 No. 32220-3-111
 State v. Barreto

        Alberto Barreto worked on Netta Arturo's car outside her Pasco apartment.

 Barreto performed the work in afternoons for about two months. Barreto loaned Arturo

 another car while he completed the work. He never fixed Arturo's car. Arturo

 occasionally drove her car, during the two month period, only to discern no difference in

 the operation of the car. When she questioned Barreto about the repairs, Barreto

 responded that the car encountered no difficulties while he drove it.

        Netta Arturo intended to remunerate Alberto Barreto for the repair work. She

 never paid because Barreto never repaired the car.

        During the time of the car repairs, Alberto Barreto occasionally asked Netta

 Arturo for a date. She declined. She had a boyfriend. Arturo and Barreto remained on

 friendly terms, and once Arturo, who had already prepared dinner for herself, invited

 Barreto to remain for dinner after he finished working on her car that evening.

        On November 4, 2012, Alberto Barreto went to Netta Arturo's apartment to work

 on her car. According to Arturo, Barreto entered the apartment, grabbed her, and started

 snogging her. Arturo slapped Barreto in the face and asked him to leave the home.

 Barreto opened the front door, and Arturo believed Barreto intended to leave. Arturo

 walked toward her bedroom when Barreto grabbed her from behind. He threw her down

 on the bed where her two-year-old daughter lay sleeping, restrained her on the bed,

 removed her clothing, forcefully opened her legs, and penetrated her vagina with his

. penis. Arturo unsuccessfully attempted to kick Barreto.



                                              3
I
i

l    No. 32220-3-111


I
I
     State v. Barreto

            According to Netta Arturo, the attack lasted less than five minutes. Arturo

I    suffered bruises on one leg. As he left the apartment, Barreto threatened to hang Arturo


lI   if she called the police. On appeal, Barreto claims the two engaged in a consensual

     sexual encounter.


l           Upon Alberto Barreto's exit from the apartment, Netta Arturo showered. From



l    fear, she did not call the police. She sought no medical attention.

            Within three days of November 4, Veronica Zelaya visited Netta Arturo. Arturo

j    told her friend of the rape. Zelaya encouraged Arturo to notify the police. Zelaya also

1    urged Arturo to photograph a bruise on her left leg caused by Barreto. Arturo rejected
I
I    the advice to contact the police, but she photographed her leg. The photograph was

     shown the jury during trial.

            After November 4, 2012, Alberto Barreto sent frequent text messages to Netta
1
1    Arturo. All messages were in Spanish, but translated into English for trial purposes. On
J
1    November 9, 2012, Barreto texted Arturo and apologized:
j                  I want to apologize for being so a fool.
i
                   A mistake I made. There is no forgiveness. I deserve it. I
            understand you. You really didn't like it. Or otherwise you will be with
            me. I consider myself lost. Good bye forever. I ask God for you to be
            happy.

                    I hope you get your love back in your life and to continue waiting
            for it. And a man like him that wasn't going to find.




                                                  4
No. 32220-3-111
State v. Barreto

1 Verbatim Report of Proceedings (VRP) (Dec. 6, 2013) at 122-23. In another text,

Barreto expressed his joy that his wish of going to bed with Arturo came true.

        In late November on an unidentified day, Alberto Barreto appeared at Netta

Arturo's apartment again, ostensibly to discuss the repairs to her car. Arturo did not

invite Barreto inside. Barreto, nonetheless, entered the apartment, grabbed Arturo, and

threw her on the living room floor. Arturo screamed, and Barreto left.

        On November 25, 2012, Netta Arturo became pregnant with twins. Alberto

Barreto later learned of the pregnancy and, believing to have fathered the children,

threatened Arturo with hiring an attorney to gain custody of the twins when they were

born.

        On December 1, 2012, Alberto Barreto texted Netta Arturo and asked if she

continued to date her boyfriend. Arturo replied affirmatively and directed Barreto to

cease contacting and bothering her. The textative Barreto responded by directing Arturo

to tell the boyfriend that Barreto had sex with her. He threatened to inform the boyfriend

of the encounter if she refused. Barreto texted that he would "make it hurt as much as it

hurt with him." 1 VRP (Dec. 6, 2013) at 124-25. In the text, Barreto labeled Arturo a

"slut." 1 VRP (Dec. 6, 2013) at 125.

        On December 2, Alberto Barreto texted Netta Arturo:

              I left you all fucked, didn't I, little bitch? They are waiting for you
        when you come out. The whole town is going to find out that I fucked you.

1 VRP (Dec. 6, 2013) at 132. Barreto also texted that he was sad and humiliated.

                                              5
       No. 32220-3-111
       State v. Barreto

       Arturo's boyfriend sent Barreto several text messages asking him to leave Arturo alone,

       to no avail. On December 19, Barreto sent another text, asking ifhe could give Arturo's

       daughter a gift. Arturo replied: no.

              Alberto Barreto continued to harass Netta Arturo into the next year. On July 25,

       2013, Barreto texted Arturo

                    I'm going to leave you alone, my love ... Until I don't fuck you
              through in the place that I want.

       1 VRP (Dec. 6, 2013) at 131-32. On July 27, 2013, Barreto texted and threatened to take

       the unborn children:

                      I feel that I want to go and take them away, get them out, out of your
              belly, to bring what's mine. They belong to me, not to you. I made them.

       1 VRP (Dec. 6, 2013) at 130.

              Netta Arturo's close friend, Veronica Zelaya, disliked Alberto Barreto. Barreto

       texted Zelaya in the middle of the night and solicited Zelaya's assistance in convincing

       Arturo to date him. Barreto once asked Zelaya for a date, but she fibbed and said she had

       a boyfriend.



l
             On August 6, 2013, Netta Arturo, with the help of Veronica Zelaya, reported the



l
       November 2012 rape to the police. Pasco Police Detective Jesus Romero spoke with

       Arturo at her home, and Romero devised a plan to lure Barreto to the home. Although

J      nervous, Arturo agreed to text Barreto and invite him to her apartment. Barreto had

I
\
i.f'
       earlier texted Arturo while Romero interviewed Arturo.


                                                    6
i
1
    No. 32220-3-111
    State v. Barreto

           Alberto Barreto arrived at Netta Arturo's apartment fifteen minutes after Arturo's

    texted invitation. Detective Jesus Romero greeted Barreto and identified himself as a

    police officer. In response, Barreto protested that he did not harass anyone and that he

    needed to talk to Arturo. Detective Romero placed Barreto under arrest and transported

    him to the Franklin County jail.

          During questioning at the jail, Alberto Barreto first denied any sexual relationship

    with Netta Arturo. He admitted loving and pursuing, but not harassing, her. When

    Detective Jesus Romero later asked Barreto ifhe fathered Netta Arturo's twins, Barreto

    conceded a sexual relationship. He denied, however, being the father of the two. He

    cried upon admitting a sexual relationship. RP at 67. He confirmed that Arturo hit him

    in the face when he kissed her.

          In key passages for this appeal, Detective Jesus Romero testified at trial:

                 Q Did he admit that the sex had been a rape?
                 A Yes and no.
                 Q Describe what you mean by that.
                 A Initially he stated if she's saying so, then I must have done it, go
          ahead and lock me up. I ma[ d]e sure that I got a clarification on it and he
          said, no, afterwards.

    1 VRP (Dec. 6, 2013) at 70-71. During cross-examination, Romero repetitively added:

                 Q You asked him whether or not-him being my client-you asked
          my client whether or not he in fact raped [Netta]; right?
                A Correct.
                 Q And he said no.
                 A Initially he said yes.

I
3
"


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                                                7
No. 32220-3-111
State v. Barreto

             Q Well, let's read your report. I asked Luis [Alberto Barreto] ifhe
      was saying he did rape [Netta]. And he said no. But backing up, Luis said
      that he wouldn't rape anyone.
             A Correct.
             Q He wouldn't do that; correct?
             A That is in my report.
             Q So he didn't say that he raped her, did he?
             A He did during our interview. That's why I had clarification at the
      end.
             Q Let's read your report then. I told Luis that [Netta] was accusing
      him of raping her during that time; right?
             A Correct.
             Q Luis said, or stated he wouldn't rape anyone, mentioned that
      [Netta]'s daughter was on the bed with them, he wouldn't do that; correct?
             A Correct. His statement.
             Q All right. He stated that if she stated that's so then he wanted to
      be locked up.
             A Correct.
             Q He didn't say that he raped her, did he?
             A That statement alone leads you to believe that.
             Q Those are your words; right?
             A Those are my words; correct.
             Q But then he tells you after you asked him, did you rape [Netta], he
      said no.
             A Correct.
             Q And then at the end you asked him directly, did he rape her,
      [Netta], and he said no.
             A Correct, to get a clarification as I would before.
             Q So I'm asking you once again, did he say to you that he raped
      her?
             A He implied.
             Q He did not use the words he raped her, did he?
             A Correct.
             Q The word implication is coming from you, not from him; right?
             A From our interview; correct. That's why I clarified at the end.
             Q And he said no; correct?
             A And he said no.

1 VRP (Dec. 6, 2013) at 89-91.


                                           8
No. 32220-3-111
State v. Barreto

       Detective Jesus Romero speaks both English and Spanish, but Spanish is his

principal language. He spoke to Netta Arturo in Spanish. RP at 55. He also interviewed

Alberto Barreto in Spanish.

                                       PROCEDURE

       The State of Washington charged Alberto Barreto with second degree rape

occurring on November 4, 2012. The State later added a count of attempted second

degree rape occurring in late November 2012. In an omnibus application, Barreto

asserted a general denial and consent as a defense to the charges.

       During trial, Netta Arturo, Veronica Zelaya, Pasco Police Officer Aiden Alaniz,

and Detective Jesus Romero testified for the State. During Arturo's cross-examination,

Alberto Barreto's defense counsel sought to elicit testimony that Barreto sent the text

messages because he was unhappy that Arturo rejected him, not because of any rape. In

his aggressive cross-examination of Netta Arturo, defense counsel suggested that Arturo

befriended Barreto, never agreed to pay for Barreto's repair services, invited him to many

meals, and willingly engaged in sex in part because of favors Barreto bestowed. Alberto

Barreto did not testify.

       At the close of trial, the trial court instructed the jury on the elements of second

degree rape:

             To convict the defendant of the crime of rape in the second degree,
       each of the following three elements of the crime must be proved beyond a
       reasonable doubt:
             (1) That on or about November 1st to November 9th, 2012 the

                                              9
        No. 32220-3-111
        State v. Barreto

               defendant engaged in sexual intercourse with [Netta Arturo];
                     (2) That the sexual intercourse occurred by forcible compulsion; and
                     (3) That this act occurred in the State of Washington.

        Clerk's Papers (CP) at 84. The trial court also instructed the jury on the defense of

        consent. Jury instruction 15 read:

                       A person is not guilty of rape if the sexual intercourse is consensual.
               Consent means that at the time of the act of sexual intercourse there are
               actual words or conduct indicating freely given agreement to have sexual
               intercourse.
                       The defendant has the burden of proving that the sexual intercourse
    I          was consensual by a preponderance of the evidence. Preponderance of the

l              evidence means that you must be persuaded, considering all of the evidence
               in the case, that it is more probably true than not true. If you find that the
               defendant has established this defense, it will be your duty to return a



I
               verdict of not guilty.

        CP at 90. Instruction 15 was the standard instruction given before State v. WR., 181
i       Wn.2d 757 (2014) and the instruction that WR. declares unconstitutional. Alberto


l       Barreto did not object to the giving of instruction 15.


l   j
               During closing argument, defense counsel argued:

                      But in terms of evidence to determine what actually happened-was

I              there forcible compulsion used-something is lacking. What is lacking is
               physical evidence. There is no physical evidence of force being used. Now

i
l
I
               what we have are some bruises on a photograph. Photographs taken on a
               cellphone that are not dated. You don't know when those pictures were
               taken. You simply just don't know.
                      So in essence, what we have is perhaps a case of a simple assault
i              turning into a rape. It turns into something like that when Ms. Arturo's
I              boyfriend finds out that she had had some form of a sexual relationship

I              with my client.


I
,.
                      The State alleges that in November 2012, two separate incidents
               took place. But even after the first incident my client apparently was


l
J
                                                     10
I   No. 32220-3-111
    State v. Barreto

          allowed, and did not use force, to enter into Ms. Arturo's apartment. And
          then there is an allegation of a second incident. But again, the first incident
          took place, why would you allow a second incident to take place?
          Somehow that doesn't make sense. There was no 911 call. There was
          never an effort made on the part of Ms. Arturo to see a medical doctor, to
          go to the emergency room. Those are key components of evidence that one
          should have, that one would want to have, especially in a case where there
          is a dispute about what took place between two different people. Those
          things are missing ....

                 Whether or not my client, on one occasion, the first occasion, used
          forcible compulsion between November 1st and November 9th of 2012, to
          have sexual intercourse with a person who is the complaining witness. And
          then on the second occasion, the State alleges that my client used force in
          an attempt, plus a substantial step, to accomplish Rape in the Second
          Degree. There is no evidence to suggest that.

                 Now I'll submit to each and every one of you the words that are on
          those texts aren't the most pleasant. They aren't. Some may find them
          offensive, some may find them disgusting. However there is a distinction
          between what is offensive and disgusting as opposed to what was a crime.
                 There may very well have been a crime committed, but it's not rape.
          What you have is maybe physical evidence of some other assaultive
          behavior, but not rape. There is no evidence of that.

                  We also heard the testimony of Ms. Zelaya. Ms. Zelaya admitted
          that she is the best friend of the complaining witness in this case. She has a
          bias. She does not like my client. My client apparently tried to date her or
          ask her out. And apparently she rejected him, told him a minor fib, which
          is her right to do, but my client left her alone.

    2 VRP (Dec. 9, 2013) at 239-43. During closing argument defense counsel did not

    expressly contend that Netta Arturo consented to sexual relations, but counsel implied the

    absence of forcible compulsion.

          The jury found Alberto Barreto guilty of second degree rape and attempted second

    degree rape. The trial court convicted Barreto on both charges and sentenced him to one

                                                11
No. 32220-3-111
State v. Barreto

hundred and twenty months to life imprisonment for second degree rape and one hundred

and two months to life imprisonment for attempted second degree rape.

                                 LAW AND ANALYSIS

                                     Rape Conviction

       Alberto Barreto appeals both his second degree rape and attempted rape

convictions. We address the completed rape conviction first.

       Alberto Barreto contends that the trial court provided the jury with an erroneous

instruction on the affirmative defense of consent. He argues that, under State v. WR.,

181 Wn.2d 757, 336 P.3d 1134 (2014), decided after his trial, jury instruction 15 violated

his right to due process because it required him to prove consent by a preponderance of

the evidence and relieved the State of its burden to prove the element of forcible

compulsion beyond a reasonable doubt. He asks this court to apply WR. retroactively to

his case, reverse his conviction for second degree rape, and remand for a new trial with

the proper allocation of the burden of proof.

       The State argues that Alberto Barreto, under WR. 's holding, failed to raise

sufficient evidence of consent to implicate the due process clause. In a related argument,

the State contends that the consent instruction constitutes harmless error. The

contentions raised by the parties requires a discussion of WR. The contentions also raise

the question of the retroactive application of the landmark decision and whether the

giving of the consent instruction constitutes harmless error.


                                                12
No. 32220-3-111
State v. Barreto

                                           W.R.

       State v. W.R., 181 Wn.2d 757 (2014) addresses the politically difficult and

conceptually delicate difference between forcible compulsion and lack of consent in the

context of the dreadful, misogynistic crime of rape. Some history lays the backdrop for

State v. W.R., 181 Wn.2d 757 (2014) and the distinction between forcible compulsion and

absence of consent. Washington's 1909 criminal code described rape as:

              sexual intercourse ... committed against [the person's] will and
       without [the person's] consent. ... (2) When [the person's] resistance is
       forcibly overcome; or (3) When [the person's] resistance is prevented by
       fear of immediate and great bodily harm which [the person] has reasonable
       cause to believe will be inflicted upon her or him ....

Former RCW 9.79.010 (1909). The law was well settled under this statute that the State

bore the burden of proving an alleged rape victim's lack of consent. State v. Chambers,

50 Wn.2d 139, 140, 309 P.2d 1055 (1957); State v. Thomas, 9 Wn. App. 160, 163, 510

P.2d 1137 (1973). Courts often shortened the statutory phrase "without the person's

consent" to the nonword "nonconsent."

       When the Washington Legislature recodified the criminal law in 1975, the

legislature replaced the concept of nonconsent with that of forcible compulsion. Under

the current statutory scheme, both first and second degree rape are defined as "sexual

intercourse" "by forcible compulsion." RCW 9A.44.040, RCW 9A.44.050. Neither the

first degree rape nor the second degree rape statute mention the want of consent.

      Alberto Barreto was convicted under RCW 9A.44.050 for the crime of second


                                            13
No. 32220-3-111
State v. Barreto

degree rape. The statute declares:

              ( 1) A person is guilty of rape in the second degree when, under
       circumstances not constituting rape in the first degree, the person engages
       in sexual intercourse with another person:
              (a) By forcible compulsion.

In tum, RCW 9A.44.010 (6) defines "forcible compulsion" as:

               "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 or another person, or in fear
       that she or he or another person will be kidnapped.

Under RCW 9A.44.060, lack of consent is an element to the charge of third degree rape,

but forcible compulsion is not needed to convict:

             ( 1) A person is guilty of rape in the third degree when, under
       circumstances not constituting rape in the first or second degrees, such
       person engages in sexual intercourse with another person:
             (a) Where the victim did not consent as defined in RCW
       9A.44.010(7), to sexual intercourse with the perpetrator and such lack of
       consent was clearly expressed by the victim's words or conduct.

RCW 9A.44.010(7) describes "consent" as:

              "Consent" means that at the time of the act of sexual intercourse or
       sexual contact there are actual words or conduct indicating freely given
       agreement to have sexual intercourse or sexual contact.

      In most circumstances, the absence of consent is the opposite side of the same coin

as forcible compulsion. If the offender employs forcible compulsion, the victim

necessarily did not consent. The converse is not true. In other words, the concepts of

forcible compulsion and nonconsent overlap, but are not coextensive. The victim may

not consent to sexual relations, yet the offender may not utilize forcible compulsion. In

                                             14
No. 32220-3-111
State v. Barreto

other words, the offender may not employ physical force or a threat despite nonconsent.

In the latter circumstance, the defendant may be convicted of third degree rape, but not

second degree rape.

       Our Supreme Court first faced the conundrum of addressing consent and

nonconsent, under the 197 5 recodification, with a charge of second degree rape in State v.

Camara, 113 Wn.2d 631, 781 P.2d 483 (1989), overruled by State v. W.R., 181 Wn.2d

757 (2014). The high court observed that nonconsent traditionally has been the essence

of the crime of rape. The court reasoned that the concept of consent was retained in the

new rape statutes in the element of forcible compulsion, its conceptual opposite. Thus,

although the first degree and second degree rape statutes no longer expressly mention

nonconsent as an element of rape, the eminent court held that consent remains a valid

defense to a rape charge. The court failed to mention that consent is not always the

organic reverse of forcible compulsion. The court recognized that the third degree rape

statute did not require forcible compulsion but demanded nonconsent. Nevertheless, the

court did not explain how the two concepts could be the opposite when the third degree

rape statute allows a conviction for nonconsent when forcible compulsion is absent.

       The difficult question posed on appeal, in State v. Camara, was on whom the

burden of proving the defense of consent lies. The court observed the burden of proof

with respect to a criminal defense has two dimensions, one statutory, the other

constitutional. The statutory aspect is determined by reference to legislative intent: on


                                             15
I   No. 32220-3-111
    State v. Barreto
t

I
I
    whom did the legislature intend that the burden of proof should lie? The constitutional

    dimension arises from the due process requirement that the State bears the burden of

    proving every element of a crime beyond a reasonable doubt. The high court concluded

    that, on the statutory question, the removal from the prior rape statute of language

    expressly referring to nonconsent evidenced a legislative intent to shift the burden of

    proof on that issue to the defense. The new law channeled the jury's focus, via

    instructions, on the culpability of the actor rather than the response of the victim.

    Turning to the constitutional part of the burden-of-proof analysis, the court rejected the

    argument that, because consent negated the element of forcible compulsion, the State

    could not constitutionally impose the burden of consent on the defendant.

           The Supreme Court affirmed State v. Camara in State v. Gregory, 158 Wn.2d 759,

    147 P.3d 1201 (2006), overruled by State v. W.R., 181 Wn.2d 757 (2014). The high court

    noted the conceptual overlap between nonconsent and forcible compulsion.

    Nevertheless, the court trusted the jury to still hold the State to bear its burden to prove

    forcible compulsion beyond a reasonable doubt, despite a jury instruction informing the

    jury that the defendant carried the burden of establishing the defense of consent.

           In State v. W.R., 181 Wn.2d 757 (2014), the state Supreme Court overruled both

    State v. Camara and State v. Gregory. The court observed that, when an affirmative

    defense negates an essential element of the charged offense, a criminal defendant need

    only present sufficient evidence to create a reasonable doubt as to his guilt, rather than


                                                  16
    No. 32220-3-111

I   State v. Barreto



l   prove the defense by a preponderance of the evidence. The court disagreed with its prior

    precedent and concluded that the affirmative defense of consent negates the element of



l   forcible compulsion in the crime of second degree rape.

           In State v. WR., the State charged W.R., a minor, with second degree rape of

    another minor, J.F. W.R. admitted to having intercourse with J.F., but testified that the

    interaction was consensual. He also testified that J .F. and he had once previously

    engaged in sexual activity. J.F. testified to rape on both occasions. W.R.'s sister testified

    that J.F. held a crush on W.R., and, although she did not witness the alleged rape, she was

    in proximity when the intercourse occurred. After a bench trial, the trial court found

    W.R. guilty and explained that W.R. failed to prove consent by a preponderance of the

    evidence. On appeal, W.R. argued that, although the trial court's allocation of the burden

    of proof was consistent with prior decisions, the allocation violated his right to due

    process by requiring him to disprove an essential element of the rape charge. The court

    held that a criminal defendant need only provide sufficient evidence to put the victim's

    consent in controversy, at which time the burden shifts to the State to disprove the

    defense beyond a reasonable doubt. Thus, "credible evidence of consent necessarily

    raises doubt as to the defendant's guilt." WR., 181 Wn.2d at 766.

           In W.R., the State argued that consent will often, but not always, negate forcible

    compulsion. Therefore, the two concepts do not completely overlap, and imposing the

    obligation to prove consent on the defendant does not violate due process. The Supreme


                                                 17
No. 32220-3-111
State v. Barreto

Court answered by emphasizing the statutory definition of "forcible compulsion," which

is "physical force which overcomes resistance, or a threat ... that places a person in fear

of death or physical injury." RCW 9A.44.010(6). Under this definition, consent always

negates forcible compulsion.

                                    Application of WR.

       The Supreme Court issued WR. after Alberto Barreto's trial. We must therefore

decide whether to apply WR. to Barreto's appeal. We hold that Barreto gains the benefit

of WR.

       When a decision results in a new rule, that rule applies to all criminal cases

pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L.

Ed. 2d 649 (1987); State v. Carney, 178 Wn. App. 349, 359, 314 P.3d 736 (2013), review

denied, 187 Wn.2d 1008, 331 P.3d 1172 (2014). A rule is "new" under a retroactivity

analysis if it breaks new ground or was not dictated by precedent existing at the time of

the defendant's conviction. In re Pers. Restraint of Markel, 154 Wn.2d 262, 270, 111

P .3d 249 (2005). WR. must be considered as announcing a new rule since it contradicted

years of precedence and overruled two Supreme Court decisions.

      Alberto Barreto did not object before the trial court to jury instruction 15 that

imposed the burden of showing consent on him. The first sentence of RAP 2.5(a) reads:

              Errors Raised for First Time on Review. The appellate court
      may refuse to review any claim of error which was not raised in the trial
      court.


                                             18
I   No. 32220-3-111
    State v. Barreto

    No procedural principle is more familiar than that a constitutional right, or a right of any

    other sort, may be forfeited in criminal cases by the failure to make timely assertion of

    the right before a tribunal having jurisdiction to determine it. United States v. Olano, 507

    U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); Yakus v. United States, 321

    U.S. 414, 444, 64 S. Ct. 660, 88 L. Ed. 834 (1944).

           RAP 2.5(a) contains a number of exceptions to the forfeiture or waiver rule. RAP

    2.5(a)(3) allows an appellant to assert for the first time "manifest error affecting a

    constitutional right." Constitutional errors are treated specially under RAP 2.5(a)

    because they often result in serious injustice to the accused and may adversely affect

    public perceptions of the fairness and integrity of judicial proceedings. State v. Scott, 110

    Wn.2d 682, 686-87, 757 P.2d 492 (1988).

           Washington courts and even decisions internally have announced differing

    formulations for "manifest error." Under one formulation, manifest error is one "truly of

    constitutional magnitude." State v. Scott, 110 Wn.2d at 688. Since jury instruction 15

    infringed on Alberto Barreto's due process right to require the State to prove all elements

    of the crime, we hold the error to be manifest constitutional error. The error infringes the

    fundamental rule of due process that the State prove all elements of a crime beyond a

    reasonable doubt. We accept review of Alberto Barreto's appeal of the jury instruction,
j
    and we apply W.R. to his trial. Application of W.R. does not necessarily result, however,


l
i
    in reversal of the conviction for second degree rape.




I
                                                 19
No. 32220-3-111
State v. Barreto

                                   Evidence of Consent

       The State asks us not to reverse Alberto Barreto's conviction, despite WR. The

State contends that Barreto failed to provide sufficient evidence of consent to impose any

burden on the State to disprove consent beyond a reasonable doubt. Although Barreto

raised consent as an affirmative defense at his omnibus hearing and the trial court

instructed the jury accordingly, the State argues that the jury did not consider whether

Barreto had met his burden of proving consent because neither side mentioned the

consent during closing argument. Under this argument, the jury instruction on consent

was irrelevant. The State distinguishes WR. on the grounds that W.R testified in his own

defense and provided affirmative evidence of consent. Barreto did neither.

       We agree with the State that, at least in dicta, the WR. court held that a criminal

defendant must provide sufficient evidence to put the victim's consent in controversy,

only after which time the burden shifts to the State to disprove the defense beyond a

reasonable doubt. WR., 181 Wn.2d at 766-67. The defendant may be tasked with

producing evidence to put consent in issue, but the evidence need only create reasonable

doubt as to the victim's nonconsent. WR., 181 Wn.2d at 768.

      The WR. court did not discuss the quantum of evidence needed to create a

reasonable doubt of nonconsent, a reason why the court's mention that the defendant

must present some evidence may be dicta. We decide to follow the rule, nonetheless,

because we find no contrary statements from the Supreme Court on the question of


                                            20
No. 32220-3-111
State v. Barreto

whether the defendant must supply some evidence of consent before the State holds the

duty to prove nonconsent. In the analogous setting of voluntary intoxication, the

defendant holds a burden of producing sufficient evidence to raise a jury question of

intoxication, before the burden shifts to the State to prove beyond a reasonable doubt that

intoxication did not negate an element of the crime. State v. Carter, 31 Wn. App. 572,

575, 643 P.2d 916 (1982). In another parallel circumstance of self-defense, to be entitled

to a jury instruction on self-defense, the defendant must produce some evidence

demonstrating self-defense. State v. Walden, 131 Wn.2d 469, 473-74, 932 P.2d 1237

(1997); State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993); State v. McCreven, 170

Wn. App. 444, 462, 284 P.3d 793 (2012). Once the defendant produces some evidence,

the burden shifts to the prosecution to prove the absence of self-defense beyond a

reasonable doubt. State v. Walden, 131 Wn.2d at 4 73-74; State v. McCreven, 170 Wn.

App. at 462.

       Alberto Barreto' s assignment of error to jury instruction 15 is similar to arguing

that the trial court should have given a jury instruction imposing on the State the burden

of proving nonconsent beyond a reasonable doubt. Barreto's argument assumes that the

jury heard sufficient evidence of consent to shift the burden of proof on the State. Thus,

we analyze the appeal as raising the question of whether there was sufficient evidence to

raise a jury question of absence of consent.




                                               21
No. 32220-3-111
State v. Barreto

       A defendant is entitled to a jury instruction that is supported by substantial

evidence in the record. State v. Griffith, 91 Wn.2d 572, 574, 589 P.2d 799 (1979).

Substantial evidence means evidence in sufficient quantum to persuade a fair-minded,

rational person of the truth of a declared premise. Helman v. Sacred Heart Hosp., 62

Wn.2d 136, 147, 381 P.2d 605 (1963); In re Marriage of Vander Veen, 62 Wn. App. 861,

865, 815 P.2d 843 (1991). An issue supported only by a scintilla of evidence should be

withdrawn from the case. State v. Zamora, 6 Wn. App. 130, 133, 491 P.2d 1342 (1971).

In determining whether the evidence is sufficient to support a jury instruction on an

affirmative defense, the court must view the evidence in the light most favorable to the

defendant. Wilson v. Stone, 71 Wn.2d 799, 802, 431 P.2d 209 (1967); State v. Ginn, 128

Wn. App. 872, 879, 117 P.3d 1155 (2005). In evaluating the adequacy of the evidence,

the court cannot weigh the evidence. In determining whether the evidence is a scintilla

only, the court cannot weigh the evidence. Judgment as to the credibility of witnesses

and the weight of evidence is the exclusive function of the jury. State v. Smith, 31 Wn.

App. 226, 228, 640 P.2d 25 (1982).

       Assuming the State argues that Alberto Barreto needed to personally testify in

order to create a question of consent and impose a duty on the State to establish

nonconsent, we disagree. Such a rule would infringe on a defendant's right to remain

silent. Also, a party's defense may be based solely on evidence presented by the State.

An affirmative defense must be considered in light of all the evidence presented at trial,



                                             22
No. 32220-3-III
State v. Barreto

without regard to which party presented it. State v. George, 146 Wn. App. 906, 915, 193

P.3d 693 (2008); State v. Olinger, 130 Wn. App. 22, 26, 121 P.3d 724 (2005). Sufficient

evidence to gain an instruction on a defense can even be evidence inconsistent with the

defendant's testimony. State v. Callahan, 87 Wn. App. 925, 933, 943 P.2d 676 (1997).

If a defendant's defense can be based on the State's evidence, it follows that the burden

of proof should switch to the State if the State presents some evidence that supports a

defense that negates an element of the crime.

       Alberto Barreto did not testify at trial. Netta Arturo consistently testified at trial

and declared before trial that the sexual encounter was by forcible compulsion and not by

consent. She provided details of the forcible compulsion. The aggressive cross-

examination of Netta Arturo may have created some doubt in her testimony, but the

responses provided no affirmative evidence of consent. The only other trial testimony

addressing the sexual encounter between Netta Arturo and Alberto Barreto came from

Detective Jesus Romero. Thus, we ask if the testimony of Romero, particularly his

recitation of the interview with Barreto, presents sufficient testimony of consent. To

repeat, "consent" is defined under Washington statute to mean that, at the time of the act

of sexual intercourse or sexual contact, there are actual words or conduct indicating freely

given agreement to have sexual intercourse or sexual contact. RCW 9A.44.010(7); State

v. Mares, 190 Wn. App. 343, 353, 361 P.3d 158 (2015).




                                              23
No. 32220-3-111
State v. Barreto

       Detective Jesus Romero testified that Alberto Barreto claimed to have denied

raping Netta Arturo. We do not know, however, what Barreto considers to be rape.

Barreto never expressly declared that Netta Arturo engaged in consensual sex with him.

Barreto disclosed to Romero no words spoken or actions taken by Arturo that could be

considered consent.

       A reviewing court encounters difficulty in determining the dividing line between

sufficient evidence or substantial evidence that allows the defendant a jury instruction on

one of his theories, on the one hand, and a scintilla of evidence that does not afford the

defendant a jury instruction on the theory, on the other hand. Therefore, we look to other

decisions that discuss the sufficiency or insufficiency of the evidence of consent. Many

Washington cases address the sufficiency of evidence of nonconsent, but none directly

discuss the sufficiency of evidence to show consent. We look for assistance from other

jurisdictions, although we find little assistance elsewhere.

       In Morse v. Commonwealth, 17 Va. App. 627, 440 S.E.2d 145 (1994), the trial

court refused to give a jury instruction on consent of the victim, who was defendant

Michael Morse's wife. The wife testified that she withheld consent and only submitted to

intercourse because of threats of force. Morse testified in his defense, admitted to

intercourse, but denied that the sex was the result of threats. He conceded that his wife

was not responsive to his sexual advances and had said that she was tired, but he

maintained that she did not object to the intercourse on the night in question. The


                                             24
No. 32220-3-III
State v. Barreto

reviewing court reversed the conviction because Morse submitted sufficient evidence of

consent. The failure to give the jury instruction was not harmless error.

       In People v. Simmons, 213 Cal. App. 3d 573, 261 Cal. Rptr. 760 (Cal. Ct. App.

1989), two defendants argued that the trial court erred in not giving the jury an instruction

on the defense of consent or a reasonable belief of consent. The reviewing court noted

that, even when the defendant does not testify, circumstantial evidence of consent can be

sufficient to warrant instruction on this defense. Neither of the two appellants testified.

The victim, a prostitute, testified to sex resulting from forcible compulsion from both

defendants in a hotel room. Neither of the defendants submitted any evidence supporting

consent to sexual relations on the date at issue. One defendant, however, forwarded

testimony that the victim willingly engaged in a sexual relationship at an earlier time.

The court noted however that "[n]othing in the victim's conduct at the time of the

offenses would support giving this instruction." People v. Simmons, 213 Cal. App. 3d at

580. Therefore, no instruction on the defense of consent was warranted.

       Admittedly neither Simmons nor Morse are directly on point. Simmons addresses

more a reasonable belief of consent rather than consent itself, but that distinction should

favor the State in this appeal, since a reasonable belief is easier for the defendant to show

than consent itself. At any rate, we judiciously read the decisions to require the

defendant to show some conduct or comments by the victim preceding the encounter to

support a finding of consent or some relationship between the parties, such as marriage,


                                             25
No. 32220-3-III
State v. Barreto

that usually leads to consent before consent becomes an issue for resolution by a jury and

for an instruction by the court to the jury.

       In State v. WR., we find little evidence beyond the defendant's testimony that the

sex was consensual to support a finding of consent. The sister's testimony that J .F. held a

crush on W.R., and, although she did not witness the alleged rape, she was in proximity

when the intercourse occurred is weak testimony. Still, in our appeal, we lack Alberto

Barreto' s testimony under oath denying rape and we lack testimony from any witness to a

sexual attraction between Netta Arturo and Barreto, let alone testimony of circumstances

leading to the sexual encounter on which a jury could find consent.

       In the end, the statutory definition of "consent" controls. Consent means that, "at

the time of the act of sexual intercourse or sexual contact there are actual words or

conduct indicating freely given agreement to have sexual intercourse or sexual contact."

RCW 9A.44.010(7). The trial testimony contains a complete absence of words or

conduct of Netta Arturo preceding the encounter that could be construed as consent.

                                       Harmless Error

       We have already ruled that Alberto Barreto was not entitled to a jury instruction

imposing a burden on the State to show nonconsent beyond a reasonable doubt, since

Barreto advanced insufficient evidence of consent. We now conflate this ruling with

principles of harmless error and hold that the rendering of jury instruction 15 was

harmless.


                                               26
No. 32220-3-111
State v. Barreto

       Jury instructional errors are presumed to be prejudicial. State v. Rice, 102 Wn.2d

120, 123, 683 P.2d 199 (1984). Nevertheless, a jury instruction that misstates an element

of the crime is subject to harmless error analysis to determine whether the error has

relieved the State of its burden to prove each element of the charged offense. State v.

Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). In order for an appellate court to hold

that an erroneous jury instruction was harmless, the court must be convinced beyond a

reasonable doubt that the jury verdict would have been the same absent the error. Neder

v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); State v.

Brown, 14 7 Wn.2d at 341. When applied to an element omitted from, or misstated in, a

jury instruction, the error is harmless if that element is supported by uncontroverted

evidence. State v. Brown, 147 Wn.2d at 341; State v. Weaville, 162 Wn. App. 801, 815,

256 P.3d 426 (2011). The same should be true when no evidence supports the correction

of an erroneous instruction.

       Alberto Barreto's evidence of consent elicited on cross-examination consisted of

Barreto fixing Netta Arturo's car and loaning her a vehicle to use in the meantime, the

two being on friendly terms before the rape, and Arturo's failure to immediately report

the rape to police or seek medical attention. None of the evidence shows any conduct or

words consenting to intercourse.

       We note that Alberto Barreto, during closing, did not claim the encounter was

consensual. Barreto instead argued that there may be evidence of assault in his case, but


                                            27
No. 32220-3-111
State v. Barreto

not rape. Neither party mentioned the erroneous jury instruction during closing. In State

v. WR., the Supreme Court emphasized the trial court's mention of the defendant

possessing the burden of proof.

      Morse v. Commonwealth, 17 Va. App. 627 (1994) and People v. Simmons, 213

Cal. App. 3d 573 ( 1989), involved the failure to give any instruction. Our trial court gave

a wrongful instruction. One might argue that the wrongful instruction that imposed a

burden on Alberto Barreto confused the jury. WR. speaks of the danger of reaching a

wrong conclusion when the trier of fact acts within the incorrect framework. 181 Wn.2d

at 770. At the same time, WR. does not stand for the proposition that a jury instruction

imposing the burden of proof on the defendant of consent is always reversible error.

Supreme Court precedent compels us to engage in a harmless error analysis. A harmless

error analysis leads to the conclusion that any confusion of the jury would occur only if

Barreto forwarded some evidence of consent.

      We note that, for the jury to have convicted Alberto Barreto of both crimes, the

jury must have concluded that Netta Arturo was a credible witness and victim. In other

words, the jury believed that Barreto forcibly imposed himself on Arturo. For this

additional reason, the erroneous jury instruction may be considered harmless.

      A decision of some import is State v. Buzzell, 148 Wn. App. 592, 200 P.3d 287

(2009). A jury convicted David Buzzell of indecent liberties. Consent is not a defense to

indecent liberties under the criminal statute. Nevertheless, Buzzell argued on appeal,


                                            28
No. 32220-3-III
State v. Barreto

based on State v. Camara, that the trial court should have instructed the jury on the

defense of consent even if the instruction imposed the burden of proving the defense on

him. This court agreed but found the error to be harmless because the jury necessarily

believed the victim's story rather than Buzzell' s story.

       At trial, David Buzzell presented a defense that the sexual contact with the victim

was consensual. He did not testify that the victim verbally expressed consent, but that the

two hugged, held hands, and cuddled before he rubbed her breasts and otherwise engaged

in sexual contact. Buzzell declared that the victim never asked him to stop and did not

physically resist. The victim testified that Buzzell forcibly overcame her resistance. This

court reasoned that the case turned on which testimony the jury believed. Even with the

missing jury instruction, this case turned on whether the jury believed Buzzell. His

testimony was the only way he could meet his burden of establishing consent. The jury

could not have accepted his testimony and returned a conviction.· Therefore, the

instructional error was harmless beyond a reasonable doubt. Evidence supported consent,

but the jury necessarily disregarded the evidence.

                                Attempted Rape Conviction

       Alberto Barreto next contends that his conviction for attempted second degree

rape is not supported by sufficient evidence. Netta Arturo testified concerning the second

November 2012 incident that Barreto returned to her apartment, grabbed her, threw her

on the floor of her living room, and left when she started screaming. Barreto contends


                                             29
No. 32220-3-III
State v. Barreto

that this testimony fails to show a "substantial step" toward committing rape in the

second degree. The State responds that circumstantial evidence, such as the actual rape

that occurred two weeks earlier and the text messages sent before and after Barreto threw

Arturo to the ground in her apartment, sufficiently support the conviction. We agree with

the State.

       Evidence is sufficient if, after viewing it in the light most favorable to the State, a

rational trier of fact could find each element of the crime beyond a reasonable doubt.

State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980); State v. Witherspoon, 180

Wn.2d 875, 883, 329 P.3d 888 (2014). A defendant challenging the sufficiency of the

evidence at trial admits the truth of the State's evidence and all reasonable inferences

therefrom. Witherspoon, 180 Wn.2d at 883. Both direct and indirect evidence may

support the jury's verdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986).

Only the trier of fact weighs the evidence and judges the credibility of witnesses. State v.

Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).

       A jury may draw inferences from evidence so long as those inferences are

rationally related to the proven facts. State v. Jackson, 112 Wn.2d 867, 875, 774 P.2d

1211 (1989). A rational connection must exist between the initial fact proven and the

further fact presumed. Jackson, 112 Wn.2d at 875. An inference should not arise when

other reasonable conclusions follow from the circumstances. State v. Bencivenga, 137

Wn.2d 703, 711, 974 P.2d 832 (1999). The jury may infer from one fact the existence of


                                              30
No. 32220-3-111
State v. Barreto

another essential to guilt, if reason and experience support the inference. Tot v. United

States, 319 U.S. 463, 467, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943).

       A person commits the crime of attempted rape in the second degree when, with

intent to commit that crime, he performs any act that is a "substantial step" toward the

commission of that crime. RCW 9A.28.020(1). A "substantial step" is conduct that

strongly indicates a criminal purpose and that is more than mere preparation. State v.

Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). The State is not required to present

evidence of a specific intent or an overt act toward attempted penetration in order to

support a conviction for attempted rape. State v. Kroll, 87 Wn.2d 829, 842, 558 P.2d 173

( 197 6). Circumstantial evidence "may be just as telling." Kroll, 87 Wn.2d at 842.

       Sufficient evidence supports Alberto Barreto's conviction for attempted second

degree rape. After repeated rejections by Netta Arturo, Barreto raped Arturo while her

child slept on the bed next to her, and he then threatened her with more physical violence

if she reported the attack. In the first incident, Barreto grabbed and threw Arturo to her

bed in the same manner in which he grabbed and threw her to the floor of her living room

a few weeks later. Barreto's multiple subsequent text messages to Arturo are sexual in

nature and include threats of additional physical and sexual violence.

                                     CONCLUSIONS

       We affirm Alberto Barreto's convictions for second degree rape and attempted

second degree rape.


                                            31
    No. 32220-3-111
    State v. Barreto

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

    Washington Appellate Reports, but it will be filed for public record pursuant to RCW

    2.06.040.


                                                     d
                                                 Fearing~
                                                                      )~
I   WE CONCUR:

I
I
1

l   Lawrence-Berrey, J.




                                                32
