                                                                2013 DEC 30 AH 10= 32




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             No. 68852-9-

                          Respondent,            DIVISION ONE


                v.
                                                 PUBLISHED OPINION
MICHAEL WILLIAM MCCONNELL,

                          Appellant.             FILED: December 30, 2013

       Schindler, J. — The 10-year statute of limitations for rape in the first degree

begins on the date of commission of the crime or one year from the date "on which the

identity of the suspect is conclusively established by deoxyribonucleic acid [(DNA)]

testing . . . , whichever is later."1 Michael William McConnell appeals his conviction for
rape in the first degree arguing the State did not charge him within the 10-year statute of

limitations. In the alternative, McConnell claims the delay in filing the charges violated

due process. Because DNA testing did not conclusively establish the identity of

McConnell until 2011 and the delay in filing the charges did not violate his due process

rights, we affirm.




       1 RCW9A.04.080(1)(b)(iii)(A), (3).
No. 68852-9/2


                                           FACTS

         At around 8:30 a.m. on June 24, 1998, E.C. went to her portable classroom at

Discovery Elementary School to prepare for the upcoming summer school session. Of

the five portable classrooms located at the north end of the school campus, E.C.'s

portable classroom was the farthest away to the east. E.C. locked the door to the

portable but opened the southeast window. Over the course of the morning, E.C. left

the classroom several times. Each time E.C. left, she locked the door but left the

window open.

         E.C. locked the door after returning to the classroom after lunch. While she was

sitting at her desk, a male voice said," 'Okay, here we go. Get down on the floor.'"

E.C. turned around and saw a man dressed in black. The man was wearing a black knit

cap with his face partially covered and only his eyes and nose visible, a black long-

sleeved shirt, black pants, black gloves, and black lace-up boots. The man pointed a

large-caliber revolver at E.C. and told her to lay face-down on the floor and demanded

money. E.C. told the man where to find her purse and heard him going through the

purse.


         The man told E.C. not to move, scream, or look at him or he would " 'blow [her]

fucking head off.'" The man then knelt down beside her and put his hand between her

legs. The man told E.C. to remove her pants and underwear. The man held the gun to

her neck with one hand while he digitally raped her with his other hand. The man then

moved behind E.C and raped her anally. When E.C. screamed in pain, the man put the

gun to "her head and cocked it, reminding her of the consequences." After anally raping

E.C, the man ordered her to roll onto her back and vaginally raped her. The man then
No. 68852-9/3


got dressed and asked E.C. where the telephone was located. The man tore the

telephone cord and wires from the wall and told E.C. "that he would shoot her if he saw

her outside before he was gone." Approximately five minutes after the man left, E.C.

ran to an adjacent portable classroom and called 911.

       Snohomish County and Everett Police Department officers responded to the 911

call. E.C." 'was crying and her whole body was trembling. . . . [S]he collapsed on the

floor sobbing and trembling.'" E.C. gave the police officers a brief summary of what

happened before going to the hospital. Officers searched the classroom and

surrounding area. The officers observed scuff marks on the exterior wall below the

southeast window and found a black sweater south of the school. A K-9 dog tracked a

scent from the portable classroom to a grassy area nearby where the K-9 officer

observed bicycle tracks. The officers took plaster casts of the bicycle tracks. A latent

fingerprint analysis of the telephone found no fingerprints of value.

       The hospital performed a sexual assault examination of E.C. Before meeting

with E.C. the next day, officers collected E.C.'s clothing and the sexual assault evidence

from the hospital.

       E.C. told the officers that she locked the door to the classroom but left the

southeast window open. E.C. said that after returning from lunch, she was sitting at her

desk looking out the north window and did not hear the man climb inside. E.C.

described the man who raped her as a white male, between 18 and 24 years old, and

possibly blond. E.C. believed the man was between 5 feet 10 inches and 6 feet tall and

weighed 170 pounds. The Snohomish County Sheriff's Office issued a news release

with a description of the suspect and a composite drawing based on E.C.'s description.
No. 68852-9/4


       On September 10, 1998, Washington State Patrol Crime Laboratory (WSPCL)

forensic scientist Brian Smelser obtained semen samples from the swabs and

underwear taken from E.C.2 Using restriction fragment length polymorphism (RFLP)
testing, WSPCL forensic scientist Jodi Sass identified the DNA of two male contributors.

One contributor was identified as E.C.'s spouse. The other contributor was an unknown

male. The DNA profile of the unknown male did not match any DNA profile in the

WSPCL convicted felon database.

        In 1998, the Federal Bureau of Investigation (FBI) started maintaining a national

DNA index system, the "Combined DNA Index System" (CODIS). The FBI uses short

tandem repeat (STR) DNA testing for the CODIS database. In 2000, the WSPCL

transitioned from using RFLP to STR DNA testing. When the WSPCL transitioned from

RFLP to STR testing, 957 unknown DNA profiles in the WSPCL database were

"classified as closed work requests."

       On October 12, 2000, the court sentenced Michael William McConnell for the

crime of residential burglary. On December 5, 2000, the court sentenced McConnell for

committing the crime of residential burglary with a deadly weapon. As a result of the

felony convictions, McConnell was ordered to submit to DNA testing.

        In 2003, the lead detective in the 1998 rape investigation, Snohomish County

Detective George Wilkins, authorized the release and destruction of the evidence from

the unsolved 1998 rape case. According to Detective Wilkins, "[T]here was a big push

at the Sheriff's office to help the property room clear out evidence" and he mistakenly

believed the statute of limitations for the 1998 rape had expired. Detective Wilkins said

       2DNA extraction involves both removing cells from the objects to which they are attached
(clothing, blood samples, etc.) and removing the DNA from inside the cell. State v. Cauthron, 120 Wn.2d
879, 893, 846 P.2d 502 (1993).
No. 68852-9/5


he did not contact the prosecutor's office to confirm whether the statute of limitations

had expired before authorizing destruction of the evidence retained at the Snohomish

County Sheriff's Office. The destroyed evidence included the black sweater found near

the school, photographs of the classroom, photographs of the abrasions on E.C.'s neck,

photographs of the area surrounding the school, the plaster casts of the bicycle tracks,

the telephone the suspect had pulled out of the wall, and E.C.'s clothing.

       In June 2010, Snohomish County Detective James Scharf was assigned to the

cold case unit and was investigating a 1995 homicide. The 1995 homicide occurred in

the same area as the 1998 rape and involved a suspect who rode a bicycle. Detective

Scharf had worked on the 1998 rape investigation. Detective Scharf said that because

the case "stuck out in my mind," he decided to look into the case again "to determine if

the DNA profile was ever compared in CODIS." Detective Scharf contacted the WSPCL
and learned "there was plenty of DNA extracted from the victim's panties that could be

tested again using the current [STR] process." Detective Scharf requested the WSPCL
conduct STR testing.

       On January 7, 2011, WSPCL forensic scientist Jodi Sass contacted Detective
Scharf about the results from the STR analysis on a sample previously extracted from

the victim's underwear. After identifying the major male DNA profile, Sass searched the
CODIS database. The DNA profile matched the DNA from "Michael W. McConnell,

date of birth 12-18-80." Sass asked Detective Scharf to obtain "a known sample

directly" from McConnell to confirm the match. Sass told Detective Scharf that "there is
still plenty of DNA extract to use for further testing."
No. 68852-9/6


       Detective Scharf obtained a copy of McConnell's 1998 driver's license. The 1998

driver's license described McConnell as a white male with blond hair, 5 feet 8 inches

tall, and 163 pounds. Detective Scharf determined that based on McConnell's date of

birth, "McConnell would have been 17 years and 6 months old at the time this rape

occurred."


       On February 28, 2011, the court issued a search warrant to obtain DNA from

McConnell. On March 2, Detective Scharf and Detective Patrick VanderWeyst took

saliva swabs from McConnell for DNA testing. During an interview with the detectives,

McConnell said that in 1998 he lived with his parents, two brothers, and a sister in a

house located eight-tenths of a mile from Discovery Elementary School. McConnell

said he "had a bunch of bikes."


       On March 17, Sass completed the DNA analysis of the saliva swabs from

McConnell. Sass confirmed that the major male DNA from E.C.'s underwear "matches

the DNA typing profile obtained from the reference sample of Michael McConnell." The

WSPCL forensic report states the "estimated probability of selecting an unrelated

individual at random from the U.S. population with a matching profile is 1 in 19

quadrillion."

       On March 25, 2011, the State charged McConnell with the 1998 rape in the first

degree of E.C. McConnell filed a motion to dismiss on the grounds that the State did

not charge him within the 10-year statute of limitations under RCW

9A.04.080(1 )(b)(iii)(A) and (3). The 10-year statute of limitations for rape in the first

degree runs from the date of commission of the crime or one year from "the date on
No. 68852-9/7



which the identity ofthe suspect is conclusively established" by DNA testing.3
McConnell argued his identity was conclusively established in 1998 when the WSPCL

obtained a unique genetic profile using RFLP analysis. In the alternative, McConnell

asserted the delay in filing the charges violated due process. In support of the motion to

dismiss, McConnell submitted court records showing the Snohomish County

Prosecutor's Office had previously charged unknown suspects using a DNA profile

rather than by name.

       The State argued the identity of McConnell was not conclusively established until

the WSPCL conducted STR testing and was able to match the DNA profile from the

1998 rape to the DNA obtained from McConnell. The State submitted the declaration of

WSPCL DNA manager Gary Shutler, the 2011 WSPCL forensic report, and the 1998

WSPCL forensic report. The 1998 WSPCL forensic report states that "[n]o matches

were found between the DNA profile of the semen donor and the DNA profiles in the

data bank."


       Shutler states that after the FBI began using STR testing for the CODIS

database, the WSPCL began transitioning from RFLP to STR testing, and an increased

and ongoing demand for DNA testing and analysis resulted in a backlog. Shutler

explains that "[d]ue to the limitation of resources!,] no systematic process was ever

employed to evaluate old RFLP data base cases for suitability of performing STR

analysis." But Shutler states that if an agency working on a cold case submitted a

request for analysis, the remaining DNA extract sample would be reanalyzed using STR

testing.



       3RCW 9A.04.080(1 )(b)(iii)(A), (3).
No. 68852-9/8


        The State also presented legislative history related to the 2006 amendment to

the statute of limitations for rape in the first degree stating that the 10-year limitations

period runs from the date the identity of the suspect is conclusively established by DNA

testing.4 According to the House Bill Report for Substitute Senate Bill 5042, the
Washington Association of Criminal Defense Lawyers (WACDL) and the Washington

Defenders Association (WDA) expressed concerns about whether a preliminary match

from a DNA database would be sufficient to "conclusively" establish a suspect's identity.

H.B. Rep. on Substitute S.B. 5042, at 3-4, 59th Leg., Reg. Sess. (Wash. 2005).

WACDL and WDA suggested adding language to expressly state "that the statute of

limitations is triggered when a DNA profile is matched with a DNA profile from any

certified database." H.B. Rep. on Substitute S.B. 5042, at 4.5

        The court denied the motion to dismiss. The court entered findings of fact and

conclusions of law and incorporated its oral ruling. The court concluded the State filed

the charge of rape in the first degree within the statute of limitations. The court ruled

that the statute of limitations "did not begin until the suspect's identity was 'conclusively

established,' which occurred on or after December 13, 2010 when the Defendant's DNA

profile was matched with the suspect's DNA profile" in the CODIS database and

        4Laws of 2006, ch. 132, §1.
        5The House Bill Report for Substitute Senate Bill 5042 states, in pertinent part:
        Defense attorneys understand and generally agree that the advances in [DNA]
        technology should be fully utilized, including in cold cases, to advance the cause of
        justice in the court system - the victims deserve no less. . . . [T]here are concerns with the
        triggering language in that it requires "conclusive" establishment of a suspect's
        identification. What about the situation where the lab finds a "preliminary" or "tentative"
        match by running it through a single database? This preliminary identification would
        probably trigger an investigation by police but it would not trigger the statute of limitations.
        ... It is not clear from the bill who is responsible for reaching the conclusion that a
        suspect has been "conclusively" identified. One suggestion ... is to amend this section
        to state that the statute of limitations is triggered when a DNA profile is matched with a
        DNA profile from any certified database.
H.B. Rep. on Substitute S.B. 5042, at 3-4.

                                                       8
No. 68852-9/9


confirmed by the subsequent DNA analysis. The court rejected McConnell's

interpretation of the statute:

        In this statute, the critical word that needs to be focused in on is the term
        "conclusively." Ifthe argument of the defense is accurate, there would
        have been no need for the legislature to insert the term "conclusively" in
        the statute.
                Each DNA profile has a unique genetic sequence of DNA. Ifthe
        intent for the statute of limitations was to run when a person had been
        identified by their DNA profile and the unique genetic makeup of the
        profiles, the word "conclusively" would be superfluous. The intent behind
        adding the term "conclusively" meant more than having a unique DNA
        profile. The identity of the suspect was conclusively established when
        either there was the actual comparison between the two samples, or,
        when there was the match in the CODIS system, because, under either
        scenario in this case, the case was filed timely.

         The court also rejected McConnell's argument that prosecutorial delay violated

due process:

        The passage of time that occurred in this case - between entry of the
        Defendant's DNA profile into CODIS using STR testing methods in late
        2000 or early 2001, and resubmission of the rape suspect's DNA profile
        into CODIS using STR testing methods in January, 2011 (as opposed to
        the RFLP method originally used in 1998) - does not amount to "delay" in
        the sense that word ("delay") is used to evaluate governmental
        mismanagement or negligence in the context of preaccusatorial delay
        claims. Given that no "delay" occurred, actual prejudice, reason for delay,
        and a balancing thereof are not addressed.

        McConnell agreed to a stipulated bench trial. The parties submitted over 200

pages of documentary evidence, including the police reports from the 1998 rape

investigation, transcripts of the 1998 interview with E.C, the 2011 interview with

McConnell, and the1998 and 2011 WSPCL forensic reports.6 The court found
McConnell guilty of rape in the first degree. At sentencing, E.C told the court, "To this



        6The court also considered "all previously admitted evidence and exhibits admitted during pre
trial proceedings."
No. 68852-9/10


day, I have no idea who he is, how he found me, or why he did this to me. He is a

complete stranger to me." The court sentenced McConnell to 161 months.

                                              ANALYSIS


Statute of Limitations


        McConnell contends he is entitled to dismissal of the rape in the first degree

conviction because the State did not charge him within the 10-year statute of limitations.

        RCW 9A.04.080 sets forth the statute of limitations for rape in the first degree.

RCW 9A.04.080 states, in pertinent part:

        (1) Prosecutions for criminal offenses shall not be commenced after the
        periods prescribed in this section.

               (b) [T]he following offenses shall not be prosecuted more than ten
        years after their commission:

               (iii)(A) Violations of RCW 9A.44.040 or 9A.44.050 if the rape is
        reported to a law enforcement agency within one year of its commission.

              (3) In any prosecution for a sex offense as defined in RCW
        9.94A.030, the periods of limitation prescribed in subsection (1) of this
        section run from the date of commission or one year from the date on
        which the identity of the suspect is conclusively established by [DNA]
        testing or by photograph as defined in RCW 9.68A.011, whichever is
        later.[V1
        The parties dispute the meaning of the phrase, "date on which the identity of the

suspect is conclusively established by [DNA] testing." RCW 9A.04.080(3). McConnell

argues that the phrase, "date on which the identity of the suspect is conclusively


        7(Emphasis added.) Between 1998 and 2013, the legislature amended RCW 9A.04.080 several
times. See Laws of 2006, ch. 132, § 1; Laws of 2009, ch. 53, § 1; Laws of 2009, ch. 61, § 1; Laws of
2012, ch. 105, § 1; Laws of 2013, ch. 17, § 1. In 2006, the legislature amended the statute to state that
the 10-year statute of limitations runs from the date of the commission of the act or from the date a
defendant's identity is conclusively established by DNA testing, whichever is later. Laws of 2006, ch.
132, § 1. Because the amendments do not affect our analysis here, we cite to the current version of the
statute. See also State v. Hodgson, 108 Wn.2d 662, 666-67, 740 P.2d 848 (1987) ("When the Legislature
extends a criminal statute of limitation, the new period of limitation applies to offenses not already time
barred when the new enactment was adopted and became effective.").

                                                    10
No. 68852-9/11


established by [DNA] testing," means the date when the unique DNA profile of a rape

suspect is identified, not when the State matches the unknown DNA profile to a

particular person. McConnell argues his identity was conclusively established when the

1998 forensic report identified a unique DNA profile. The State argues that the words

"conclusively established" mean more than obtaining a unique DNA profile from an

unknown suspect. The State asserts that the identity of an unknown rape suspect is not

conclusively established until the DNA profile of an unknown suspect is matched to the

DNA profile of a known suspect. The State argues McConnell's identity was not

conclusively established until the DNA analysis in 2011 identified McConnell through

CODIS and the DNA test of the swab from McConnell confirmed his DNA matched the

profile of the unknown 1998 rape suspect.

      The interpretation of a statute is a question of law that we review de novo. State

v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010). Our goal in interpreting a

statute is to carry out the legislature's intent. Gonzalez, 168 Wn.2d at 263. We must

avoid an interpretation that would produce an unlikely, absurd, or strained result. State

v. Fiermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990). We first examine the plain

language of the statute. Gonzalez, 168 Wn.2d at 263. We determine the plain meaning

"from the ordinary meaning of the language at issue, the context of the statute in which

that provision is found, related provisions, and the statutory scheme as a whole." State

v. Enqel. 166 Wn.2d 572, 578, 210 P.3d 1007 (2009).




                                            11
No. 68852-9/12



       We interpret statutes to give effect to all language used, rendering no portion

meaningless or superfluous. City of Seattle v. State. 136 Wn.2d 693, 698, 965 P.2d

619 (1998). Ifthe meaning of a statute is plain on its face, we give effect to the plain

meaning as an expression of legislative intent. State v. J.M.. 144 Wn.2d 472, 480, 28

P.3d 720 (2001).

       Because the statute does not define "conclusively established," we look to the

ordinary meaning of the words. "When a statutory term is undefined, the words of a

statute are given their ordinary meaning, and the court may look to a dictionary for such

meaning." Gonzalez. 168 Wn.2d at 263. "Conclusive" means "forming an end or

termination . . . : putting an end to debate or question [especially] by reason of

irrefutability : involving a conclusion or decision." Webster's Third New International

Dictionary 471 (2002). "Establish" means "to make firm or stable : ... to settle or fix

after consideration . .. : to prove or make acceptable beyond a reasonable doubt."

Webster's Third New International Dictionary at 778.

       To determine whether a match conclusively establishes the identity of a rape

suspect, a forensic scientist must compare an unknown DNA profile with a known DNA

profile. See State v. Gore, 143 Wn.2d 288, 302, 21 P.3d 262 (2001) ("DNA typing

methods are designed to extract portions of DNA molecules and determine whether the

genetic profile resulting from a forensic sample matches that of a suspect."), overruled

on other grounds by State v. Hughes. 154 Wn.2d 118,110 P.3d 192 (2005); State v.

Copeland. 130 Wn.2d 244, 262, 922 P.2d 1304 (1995) (once a suspect's blood sample

is found to " 'match'" a forensic sample, scientists calculate the likelihood of a random

match). Accordingly, the identification of a DNA profile from an unknown suspect does


                                             12
No. 68852-9/13


not "put[] an end to debate or question" or "involvefj a conclusion or decision," or "settle"

or "prove" a defendant's identity. Webster's Third New International Dictionary at

471, 778. We conclude that under the plain language of the statute, the identity of a

suspect is not "conclusively established" until DNA testing matches the DNA profile of

an unknown suspect to the DNA profile of a known suspect.

Preaccusatorial Delay

       In the alternative, McConnell contends he is entitled to reversal because

preaccusatorial delay violated due process. Whether preaccusatorial delay violates due

process is a question of law we review de novo. State v. Oppelt. 172 Wn.2d 285, 290,

257 P.3d 653 (2011). Preaccusatorial delay violates due process if prosecution of the

case "violates] fundamental conceptions of justice." Oppelt. 172 Wn.2d at 295.

       The court uses a three-part test to determine whether preaccusatorial delay

violates due process. First, the defendant must specifically show actual prejudice from

the delay. Oppelt. 172 Wn.2d at 295. A defendant is not required to show bad faith;

"negligent delay can violate due process." Oppelt. 172 Wn.2d at 292. However,

"[w]here the State's reason for delay is mere negligence, establishing a due process

violation requires greater prejudice to the defendant than cases of intentional bad faith

delay." Oppelt. 172 Wn.2d at 296. Ifthe defendant establishes prejudice, the burden

shifts to the State to show the reasons for the delay. Oppelt. 172 Wn.2d at 295. The

court then examines the entire record to weigh the reasons for the delay against the

prejudice and "determine whether fundamental conceptions of justice would be violated

by allowing prosecution." Oppelt. 172 Wn.2d at 295.




                                             13
No. 68852-9/14



       McConnell claims the delay resulted in prejudice because his mother is no longer

alive to testify and the State destroyed all the evidence. McConnell also argues the 12-

year delay in filing the charges is more prejudicial than the six-year delay in Oppelt.

       In Oppelt. the minor victim told her great-grandmother that her stepfather

molested her. Oppelt. 172 Wn.2d at 287. The great-grandmother gave the victim lotion

to apply to her vagina. Oppelt, 172 Wn.2d at 287. A nurse examined the victim and

observed redness and swelling of the genitalia. Oppelt. 172 Wn.2d at 287. The great-

grandmother reported the abuse to police a few days later but "[t]he report never made

it to the prosecutor's office." Oppelt. 172 Wn.2d at 288. The State did not charge

Oppelt with child molestation until six years later. Oppelt. 172 Wn.2d at 287-88. At trial,
the great-grandmother could not recall whattype of lotion she gave the victim. Oppelt.

172Wn.2dat296.

       The Supreme Court held that the delay was the result of the State's negligence

but did not violate Oppelt's due process rights. Oppelt. 172 Wn.2d at 296. The court

concluded that the great-grandmother's memory loss caused only "very slight prejudice"
because the defendant was not precluded from arguing that the lotion caused the

redness and swelling. Oppelt, 172 Wn.2d at 296.

       Here, McConnell does not show actual prejudice from the delay in filing charges.

McConnell does not identify what his mother's testimony would have shown. While
McConnell argues his mother was a potential alibi or fact witness, he does not identify
what his mother would have said if called to testify. Nor does McConnell explain why

the other members of his family, his father, brothers, or sister, could not provide the

same or similar testimony.



                                             14
No. 68852-9/15


        McConnell also claims he was prejudiced by the destruction of evidence,

including the black sweater believed to have been worn by the suspect, plaster casts of

the suspect's bicycle tracks, and photographs taken of the crime scene and the victim's

injuries. But McConnell does not identify exactly how the destroyed evidence resulted

in actual prejudice. Further, there is no dispute that the destruction of the evidence was

unrelated to the delay in filing charges.

        In addition, McConnell asserts that because E.C.'s clothing was destroyed, he

was unable to extract an independent sample for DNA testing. Contrary to his

assertion, the record establishes there was "plenty of DNA extractQ" to use for further

testing.8
       Without citation to authority, McConnell also contends that the State should have

compared the unknown sample to the DNA database and retested the DNA using STR

analysis before 2010.9 But "investigative and administrative delays in the processing of
a case are fundamentally unlike delay undertaken by the [State] solely 'to gain tactical

advantage over the accused.'" State v. Alvin, 109 Wn.2d 602, 606, 746 P.2d 807

(1987)10 (quoting United States v. Lovasco. 431 U.S. 783, 795, 97 S. Ct. 2044, 52 L. Ed.
2d 752 (1977)). Here, the record shows that the delay in retesting the DNA from the

unsolved 1998 rape case was not undertaken to gain a tactical advantage. Due to

limited resources, the WSPCL retested DNA profiles from the RFLP database only

when a specific request was made. We conclude the record establishes the delay in


       8 McConnell also cites Howell v. Barker, 904 F.2d 889 (4th Cir. 1990). Howell is distinguishable.
In Howell, the State conceded actual prejudice. Howell, 904 F.2d at 895.
       9 McConnell also claims the State should have used the DNA profile from the RFLP testing to
charge him as an unknown suspect. But McConnell cites no authority for the proposition that the State
should have done so.
        10 (Alteration in original.)
                                                   15
No. 68852-9/16


filing the charge of rape in the first degree against McConnell did not violate

fundamental conceptions of justice.

       We affirm the conviction of rape in the first degree.




                                                  V Q ^M#&fVy ,
                                                     A
WE CONCUR:




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