State Of Washington, Respondent/cross-appellant v. Corean Barnes, Appellant/cross-respondent ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
STATE OF WASHINGTON, No. 44075 -0 -II
Respondent,
v.
COREAN BARNES, UNPUBLISHED OPINION
Appellant.
MAXA, J. — Corean Barnes appeals his jury convictions for two counts of second degree
rape, unlawful imprisonment, and first degree burglary with sexual motivation. We hold that the
trial court violated Barnes' s Sixth Amendment right by instructing the jury, over Barnes' s
objection, on an affirmative defense of consent to the rape charges. Therefore, we reverse
Barnes' s second degree rape convictions and remand for retrial. We also hold that: ( 1) Barnes
did not provide a sufficient record or argument to allow us to address whether the trial court
erred under the Privacy Act in admitting a redacted version of secret recordings; ( 2) Barnes' s
ineffective assistance of counsel claim fails because he cannot show that his counsel' s failure to
object to the recordings on ER 401, ER 402 and ER 403 grounds prejudiced him; ( 3) Barnes was
not entitled to a jury instruction on the lesser included charge; and ( 4) the State presented
sufficient evidence that Barnes unlawfully entered a third person' s property to commit rape.
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And we reject Barnes' s Statement of Additional Grounds ( SAG) arguments. Accordingly, we
affirm Barnes' s convictions for unlawful imprisonment and first degree burglary.
The State also cross -appeals, asserting that the trial court erred in ruling that the burglary
and rape convictions were the same criminal conduct when calculating Barnes' s offender score
for sentencing purposes. Because we vacate Barnes' s second degree rape convictions, we do not
reach the State' s arguments on cross -appeal.
FACTS
Rape and Burglary
Corean Barnes and Christina Russell met in 2007 and dated between 2007 and 2008.
They developed a sexual relationship. By August 2008, Russell decided that she did not want to
have a further relationship with Barnes, but agreed to drive Barnes on various errands. On
August 15, Russell purchased a digital tape recorder and placed it in her purse in order to
surreptitiously record her conversations with Barnes.
Later that day, Russell met Barnes at the house of Kenneth Johnson, who had rented a
room to Barnes starting in July 2008. According to Russell, Barnes began making unwanted
sexual contact with her. Russell testified that Barnes reached through her car window, touched
her breasts, and put his hand down her pants. She told him to stop and said she did not want to
do that. Barnes then pulled Russell out of the car by her wrists and forcibly carried her to his
nearby camper. Russell testified that after a struggle, Barnes put his hand down her pants and
penetrated her vagina with his finger. During this time, Russell was trying to break free and was
telling Barnes that she did not want to do this. Barnes admitted touching Russell' s breasts over
her shirt but denied the remainder of Russell' s testimony.
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Russell also described another incident later that day, after she picked up Barnes and
drove him to Johnson' s house. She and Barnes entered Johnson' s house. Russell testified that
they started kissing, but she decided she did not want to continue and attempted to pull away.
Barnes then picked her up and carried her into a bedroom. As she attempted to get away, he
closed the door and pushed her into a corner. Russell testified that she continued to struggle, but
Barnes forced her pants down. Although she kept telling him no, he had intercourse with her
before she broke away. Barnes testified that Russell was a willing participant in the intercourse
until she decided to stop after about two minutes, at which time Barnes stopped as well.
Russell secretly recorded both incidents. She also recorded lengthy conversations with
Barnes around the til'
ne of the incidents. Some of the statements involved Barnes' s threats to
harm Russell.
On August 19, Johnson arrived home to find Barnes inside his house. Johnson objected
to him being there without permission and called the police.
The State charged Barnes with two counts of rape in the second degree by forcible
compulsion ( counts one and two), one count of burglary in the first degree with sexual
motivation ( count three), and one count of unlawful imprisonment ( count four), and two counts
of harassment ( counts five and six).
First Trial and Appeal
A jury convicted Barnes of two counts of second degree rape and one count of unlawful
imprisonment.) State v. Barnes, noted at 157 Wn. App. 1076, 2010 WL 3766574, at * 1
unpublished). Barnes appealed, challenging the trial court' s admission of Russell' s tape
1
The jury in the first trial did not reach a verdict on the burglary charge.
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recordings. Barnes, WL 3766574, at * 2. The State argued that the entire transcript of Barnes' s
recorded statements were admissible under the threats and hostage holder exceptions to the
Privacy Act. Barnes, WL 3766574, at * 2. We reversed in an unpublished opinion, holding that
it was error to admit the entire transcript of the recordings. Barnes, WL 3766574, at * 3 -4. We
noted that a number of Barnes' s recorded remarks did not fall under the threats exception.
Barnes, WL 3766574, at * 3. We stated that " the trial court should have conducted a more
detailed analysis of the recording before admitting those selected portions that met the threats
exception to the Privacy Act." Barnes, WL 3766574, at * 3. Similarly, we held that recordings
made during the period of imprisonment were admissible under the hostage holder exception, but
that it was error to admit the entire recording. Barnes, WL 3766574, at * 3. Accordingly, we
remanded for a new trial. Barnes, WL 3766574, at * 4.
Second Trial
Before the second trial, the State and Barnes appeared at a hearing to redact portions of
the recordings in order to comply with our decision. The trial court admitted portions of the
recordings under both the threats exception and the unlawful requests or demands exception to
the Privacy Act, RCW 9. 73. 030( 2). The court played a redacted version of the recordings for the
jury.
The trial court approved a jury instruction stating that a person is not guilty of rape if the
sexual intercourse was consensual, and that Barnes had the burden of proving that the sexual
intercourse was consensual by a preponderance of the evidence. Barnes objected to this
affirmative defense instruction, stating that it "forc[ ed a] consent instruction on us when it' s not
requested." Report of Proceedings ( RP) at 487. Barnes argued that this instruction placed a
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burden on him to prove consent, and that this burden shifting would confuse the jury. The trial
court gave this instruction despite Barnes' s objection.
A jury convicted Barnes of both counts of rape in the second degree, unlawful
imprisonment, and first degree' burglary with sexual motivation. During sentencing, the trial
court ruled that the second degree and first degree burglary convictions were the " same
criminal conduct" and, therefore, merged for sentencing purposes. RP at 563 The State
objected.
Barnes appeals his convictions. The State cross -appeals the trial court' s merging of the
second degree rape and first degree burglary convictions for sentencing purposes.
ANALYSIS
A AFFIRMATIVE DEFENSE INSTRUCTION
Barnes argues that the trial court violated his Sixth Amendment right to control his
defense by instructing the jury on the affirmative defense of consent over his objections. Barnes
asserts that the affirmative defense instruction improperly shifted the burden of proof to the
defense to prove that the sexual intercourse was consensual in order to avoid a conviction for
second degree rape. We agree based on our Supreme Court' s decisions in State v. Coristine, 177
Wash. 2d 370, 378, 300 P.3d 400 ( 2013) and State v. Lynch, 178 Wash. 2d 487, 491, 309 P.3d 482
2013). We reverse Barnes' s convictions on both counts of second degree rape.
2 The trial court did not specify which second degree rape conviction was the same criminal
conduct as the first degree burglary. However, we fairly can assume that the trial court was
referring to count two, which involved the rape in Johnson' s house.
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1. Defendant' s Right to Control Defense
A criminal defendant has a right under the Sixth Amendment to the United States
Constitution to control his or her own defense. Lynch, 178 Wash. 2d at 491. " Instructing the jury
on an affirmative defense over the defendant' s objection violates the Sixth Amendment by
interfering with the defendant' s autonomy to present a defense. Lynch, 178 Wash. 2d at 492
quoting Coristine, 177 Wash. 2d at 375). We review allegations of constitutional violations de-
novo. Lynch, 178 Wash. 2d at 491.
In Coristine, the State charged the defendant with second degree rape, and was required
to prove that the alleged victim lacked the capacity to consent to sexual intercourse because she
was physically helpless or mentally incapacitated. 177 Wash. 2d at 373 ( citing RCW
9A.44. 050( 1)( b)). The defendant testified that the alleged victim initiated and willingly
participated in the sexual intercourse. Coristine, 177 Wash. 2d at 373 -74. The State proposed an
instruction on the statutory defense of reasonable belief, under which the defendant had the
burden of proving that he reasonably believed the alleged victim was not mentally incapacitated
or physically helpless. Coristine, 177 Wash. 2d at 374. At trial, the defendant argued that his
defense was that the State had failed to prove that the alleged victim was incapacitated.
Coristine, 177 Wash. 2d at 374. The trial court gave the affirmative defense instruction over the
defendant' s objection. Coristine, 177 Wash. 2d at 374.
Our Supreme Court held that instructing a jury to consider an affirmative defense over
the defendant' s objection interferes with the defendant' s Sixth Amendment right to control his or
her defense. Coristine, 177 Wash. 2d at 378. The court emphasized that the Sixth Amendment
places the " important strategic decision" of whether to assert an affirmative defense " squarely in
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the hands of the defendant, not the prosecutor or the trial court." Coristine, 177 Wash. 2d at 378.
Imposing a defense on an unwilling defendant impinges on the independent autonomy the
accused must have to defend against charges." Coristine, 177 Wash. 2d at 377.
In Lynch, the State charged the defendant with second degree rape based on the victim' s
allegation of forcible compulsion. 178 Wash. 2d at 489. The defendant admitted that he had sexual
contact with the alleged victim, but claimed that she consented to his conduct. Lynch, 178
Wash. 2d at 490. The defendant objected to the State' s proposed instruction on the affirmative
defense of consent " on the grounds that he had the right to control his defense and because he did
not want to bear the burden of proving consent." Lynch, 178 Wash. 2d at 490. The defendant
argued that he presented evidence of consent to create reasonable doubt as to whether the State
had proved forcible compulsion. Lynch, 178 Wash. 2d at 490. The trial court gave the affirmative
defense instruction over the defendant' s objection. Lynch, 178 Wash. 2d at 490.
Our Supreme Court held that its decision in Coristine was dispositive. Lynch, 178 Wash. 2d
at 492. The court confirmed that giving an affirmative defense instruction over the defendant' s
objection violated the Sixth Amendment. Lynch, 178 Wash. 2d at 492. The court stated that a
defendant must be allowed to " cast doubt on an element of the State' s case" without assuming
the burden of proof. Lynch, 178 Wash. 2d at 493. The court also rejected the State' s argument that
giving the affirmative defense instruction was justified because the defendant introduced
evidence that the alleged victim consented. Lynch, 178 Wash. 2d at 493 -94.
Here, as in Coristine and Lynch, Barnes objected to instructing the jury on the affirmative
defense of consent, which stated that Barnes had to prove by a preponderance of the evidence
that his sexual intercourse with Russell was consensual. Barnes objected on the grounds that the
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instruction ( 1) would confuse the jury, (2) would relieve the State of proving every element
beyond a reasonable doubt, and ( 3) would require him to pursue an affirmative defense of
consent. And the record does not show that Barnes expressly argued an affirmative defense of
consent. Instead, he argued that the State failed to meet its burden on either rape charge.
The facts here cannot be distinguished from Coristine and Lynch. As in Lynch, the fact
that Barnes testified that Russell consented to sexual contact did not justify giving an affirmative
defense instruction. Lynch, 178 Wash. 2d at 494. Accordingly, we hold that the trial court erred
when it instructed the jury on the affirmative defense of consent.
2. Harmless Error Analysis
We conduct a constitutional harmless error analysis to determine whether the trial court' s
violation of Barnes' s Sixth Amendment rights warrants vacating his conviction. Coristine, 177
Wash. 2d at 379 -80. "[ I] f trial error is of constitutional magnitude, prejudice is presumed and the
State bears the burden of proving it was harmless beyond a reasonable doubt." Coristine, 177
Wash. 2d at 380.
Here, the State did not argue that giving the affirmative defense instruction over Barnes' s
objection was harmless beyond a reasonable doubt. In fact, the State does not even argue that
the error was harmless. As a result, we hold that the State failed to prove that the error was not
harmless beyond a reasonable doubt.
We hold that the trial court violated Barnes' s Sixth Amendment right to control his own
defense by instructing the jury on an affirmative defense that Barnes did not want to pursue.
Because the State has failed to meet its burden of proving this constitutional violation was not
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harmless beyond a reasonable doubt, we reverse both of Barnes' s second degree rape
and remand for a new trial on those charges.
B. ADMISSIBILITY OF SECRET RECORDINGS
Barnes argues that Russell' s secret recording of their conversations violated the Privacy
Act, RCW 9. 73. 030, and therefore under RCW 9. 73. 050 the trial court erred in allowing the jury
to listen to a redacted version of the recordings. The State argues that the recordings were
admissible under two exceptions listed in the Privacy Act. First, the Privacy Act exempts
communications that " convey threats of extortion, blackmail, bodily harm, or other unlawful
requests or demands." RCW 9. 73. 030( 2)( b). Second, it exempts communications by a hostage
holder, RCW 9. 73. 030( 2)( d), defined as someone who commits kidnapping or unlawful
imprisonment. RCW 70. 85. 100( 2)( a).
In Barnes' s first appeal, we stated that selected portions of the recordings may qualify for
the threats exception. Barnes, WL 3766574, at * 3. We also stated that, under the hostage holder
exception, the trial court could admit the portion of the recording made during the period of
unlawful imprisonment. Barnes, WL 3766574, at * 3. As a result, at least some portions of the
recordings are admissible. Barnes does not dispute this conclusion.
But Barnes did not provide sufficient argument to allow us to evaluate his claim that
many of the portions of the recordings were inadmissible. He has made no attempt to designate
which portions of the 22 minute redacted version of the recordings are admissible under the
3 The trial court instructed the jury on the affirmative defense only for count 2, and the State
argued that the instruction applied only to count 2. But the instruction' s language was broad
enough that its terms necessarily applied to both counts. Accordingly, we reverse on both
counts.
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Privacy Act exceptions and which portions are inadmissible. The appellant has the burden of
providing an adequate record on appeal. State v. Tracy, 158 Wash. 2d 683, 691, 147 P.3d 559
2006); RAP 9. 2( b). We need not search for the applicable portions of the record in support of a
s argument. State v. Brousseau, 172 Wash. 2d 331, 353, 259 P.3d 209 ( 2011); RAP
party'
10. 3( a)( 6) ( a party must cite " references to relevant parts of the record "). Barnes' s failure to
provide an adequate record precludes our review. Stiles v. Kearney, 168 Wash. App. 250, 259, 277
P.3d 9, review denied, 175 Wash. 2d 1016, 287 P.3d 11 ( 2012). Here, because Barnes failed to
designate which portions of the redacted version of the recordings he disputes as inadmissible,
we are unable to address whether the trial court erred in admitting certain portions under the
Privacy Act exceptions.
On remand, the trial court will be free to reevaluate the admissibility of particular
portions of the redacted version of the recordings based on Barnes' s specific objections.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Barnes argues that he received ineffective assistance of counsel because his attorney
failed to object to the redacted version of the recordings under ER 401, 402, or 403. We need
not address this issue with regard to the second degree rape convictions because, on remand,
Barnes' s counsel will have the opportunity to object to the recordings on grounds not asserted at
trial. But we must consider Barnes' s argument with respect to the wrongful imprisomnent and
first degree burglary convictions because ineffective assistance of counsel could require a new
trial on those convictions. We hold that Barnes is not entitled to a reversal of those convictions
based on ineffective assistance of counsel.
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To prevail on an ineffective assistance of counsel claim, the defendant must show both
that ( 1) defense counsel' s representation was deficient, and ( 2) the deficient representation
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 ( 1984); State v. Grier, 171 Wash. 2d 17, 32 -33, 246 P.3d 1260 ( 2011). The defendant' s
failure to show either element ends our inquiry. State v. Hendrickson, 129 Wash. 2d 61, 78, 917
P.2d 563 ( 1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct. 649,
166 L. Ed. 2d 482 ( 2006). Representation is deficient if, after considering all the circumstances,
it falls below an objective standard of reasonableness. Grier, 171 Wash. 2d at 33 Prejudice exists
if there is a reasonable probability that, except for counsel' s errors, the result of the proceeding
would have been different. Grier, 171 Wash. 2d at 34. We review claims of ineffective assistance
of counsel de novo. State. v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 ( 2009).
Even assuming Barnes is correct that defense counsel' s performance was deficient for not
objecting to the redacted version of the recordings based on ER 401, ER 402, and ER 403, he
must establish prejudice by showing that the trial court would have sustained these objections.
Grier, 171 Wash. 2d at 34. This is a difficult task: " The threshold to admit relevant evidence is
very low. Even minimally relevant evidence is admissible." State v. Darden, 145 Wash. 2d 612,
621, 41 P.3d 1189 ( 2002). And a trial court has broad discretion in determining the admissibility
of evidence under these rules. State v. Dye, 178 Wash. 2d 541, 547 -48, 309 P.3d 1192 ( 2013).
Barnes relies primarily on State v. Briejer, 172 Wn. App. 209, 289 P.3d 698 ( 2012), to
argue that the recordings were not relevant res gestae evidence. But we need not address his res
gestae argument because portions of the recordings are directly relevant. To prove second
degree rape, the State had to prove that Barnes engaged in sexual intercourse with another person
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by forcible compulsion. RCW 9A.44. 050( 1)( a). " Forcible compulsion" means physical force
that overcomes resistance. RCW 9A. 44. 010( 6). Russell' s statement on the recordings that
Barnes hurt her wrist, supported by her testimony that Barnes grabbed her wrists to pull her out
of the car and into the camper is relevant to show that during the first incident Barnes used
physical force to overcome Russell' s resistance to have sex. The same evidence may be
admissible to show unlawful imprisonment. And Barnes' s conversations with Russell
demanding that she have sex with him, as well as Russell' s objections, are relevant to the
question of whether during either incident Barnes used forcible compulsion to get what he
wanted.
Barnes argues that certain portions of the recordings are irrelevant and inadmissible under
ER 402, but once again he has made no attempt to designate which portions of the 22 minute
redacted version of the recordings are irrelevant. He makes only general references to the
recordings. Similarly, Barnes has presented no argument that specific statements in the
recordings are more prejudicial than probative under ER 403. He simply asserts, without
analysis or argument, that the trial court would have excluded the recordings under ER 403. As
a result, we cannot determine whether the trial court would have sustained relevancy or ER 403
objections to particular portions of the recordings.
Because Barnes fails to show that any deficient performance by his trial counsel
prejudiced him, we reject his ineffective assistance of counsel claim with respect to the unlawful
imprisonment and first degree burglary convictions.
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D. LESSER INCLUDED OFFENSE INSTRUCTION
The trial court instructed the jury on the crime of second degree rape. Barnes argues that
the trial court erred in denying his request for a jury instruction on the lesser included offense of
third degree rape. We disagree, and hold that the trial court properly refused to instruct the jury
on third degree rape.
A person is guilty of third degree rape if he or she engages in sexual intercourse with
another person without consent, " and such lack of consent was clearly expressed by the victim' s
words or conduct." RCW 9A.44. 060( 1)( a). A person is guilty of second degree rape when,
under circumstances not constituting first degree rape, he or she engages in sexual intercourse
with another person "[ b] y forcible compulsion." RCW 9A.44. 050( 1)( a). " `` Forcible
compulsion' means physical force which overcomes resistance, or a threat, express or implied,
that places a person in fear of death or physical injury to herself or himself." RCW
9A.44. 010( 6).
When the State charges a defendant with an offense " divided by inferior degrees of a
crime, the jury may find the defendant not guilty of the charged offense, but guilty on any lesser
degrees of the crime." State v. Buzzell, 148 Wn. App. 592, 602, 200 P.3d 287 ( 2009) ( citing
RCW 10. 61. 003, . 006). A defendant is entitled to a jury instruction on a lesser included offense
if (1) each of the elements of the lesser offense is a necessary element of the offense charged
legal prong); and ( 2) the evidence in the case supports an inference that the defendant
committed the lesser crime to the exclusion of the greater crime ( factual prong). State v.
48, 584 P.2d 382 ( 1978); see State v. Berlin, 133 Wash. 2d 541, 546-
Workman, 90 Wash. 2d 443, 447 -
47, 947 P.2d 700 ( 1997). The court must view the evidence in the light most favorable to the
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party requesting the instruction. State v. Fernandez- Medina, 141 Wash. 2d 448, 455 -56, 6 P.3d
1150 ( 2000).
We review de novo the legal prong of a request for a jury instruction on a lesser included
offense. State v. LaPlant, 157 Wn. App. 685, 687, 239 P.3d 366 ( 2010) . But we review the
factual prong of a request for a jury instruction on a lesser included offense for abuse of
discretion. LaPlant, 157 Wash. App. at 687.
The State does not dispute that third degree rape is a lesser degree offense of second
degree rape; its elements plainly satisfy the legal prong of the Workman test. But the State
disputes the factual prong. Therefore, the question is whether the evidence supports a finding of
third degree rape — i. e., that Barnes had nonconsensual sexual intercourse with Russell without
forcible compulsion.
Regarding the first incident, Russell testified that Barnes used forcible compulsion to
have nonconsensual sexual intercourse with her. Barnes denied that he had sexual intercourse
with Russell at, all during this incident. As a result, there is no evidence that would support a
finding that in this incident they had sexual contact to which Russell did not consent but Barnes
did not use force.
Regarding the second incident, Russell again testified that Barnes used forcible
compulsion to have nonconsensual sexual intercourse with her. Barnes testified that the sexual
intercourse was consensual. Once again, there is no evidence that would support a finding that in
this incident Russell did not consent but Barnes did not use force. Our Supreme Court has held
that a defendant is not entitled to an instruction on a lesser offense where " a victim' s testimony
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that she was physically overpowered negates any inference that sexual intercourse was
nonconsensual but still unforced." Buzzell, 148 Wn. App. at 604. Buzzell applies here.
Russell testified that the sexual contact was through forcible compulsion. According to
Barnes' s testimony, there was no sexual intercourse in the first incident and the sexual
intercourse was consensual in the second incident. Even taking all the evidence in the light most
favorable to Barnes, there is no evidence that Barnes made nonconsensual sexual contact without
the use of physical force. Therefore, we hold that the trial court properly refused to give an
instruction of rape in the third degree.
E. SUFFICIENT EVIDENCE OF BURGLARY
Barnes also argues that the State failed to prove the elements of first degree burglary with
sexual motivation. 4 The statute governing burglary provides that " A person `` enters or remains
unlawfully' in or upon premises when he is not then licensed, invited, or otherwise privileged to
so enter or remain." Former RCW 9A. 52. 010( 3) ( 2008). Barnes disputes the State' s assertion
that he " enter[ ed] or remain[ ed] unlawfully." Br. of Appellant at 22. He contends that there was
no evidence that his presence was unlawful. We hold that the State presented sufficient evidence
of first degree burglary with sexual motivation.
Evidence is sufficient to support a conviction if, viewed " in the light most favorable to
the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v.
Kintz, 169 Wash. 2d 537, 551, 238 P.3d 470 ( 2010). When a defendant challenges the sufficiency
4 Although Johnson called the police when he encountered Barnes at his residence on August 19,
the State charged Barnes with first degree burglary for his entry onto the property on August 15,
and the jury convicted Barnes of first degree burglary with a sexual motivation for his August 15
rape of Russell while on the property. Thus, this issue on appeal is limited to whether Barnes
committed burglary on August 15, not August 19.
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of the evidence in a criminal case, the court draws all reasonable inferences from the evidence . .
in favor of the State and ... most against the defendant. Kintz, 169 Wash. 2d at 551 A
strongly
claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably
can be drawn therefrom. Kintz, 169 Wash. 2d at 551
Beginning in early July 2008, Johnson rented a room to Barnes, but Barnes was unable to
pay rent after the first month and stopped living with Johnson approximately in the " middle of
August" 2008. RP at 306. When Barnes left, he " couldn' t take all of his things so [ Johnson]
allowed him to keep some of his things" at the house. RP at 307. Barnes no longer slept at
Johnson' s house, but Johnson orally permitted him. to come onto the property on the condition
that Barnes would first contact Johnson, and that Johnson would be at home when Barnes
arrived. At trial, Johnson testified that Barnes did not have permission to be in Johnson' s house
on August 15, 2008, the date of Russell' s encounter with Barnes.
Barnes claims that Johnson kept the doors to his house unlocked so that Barnes could
enter when he needed to. But Johnson' s testimony contradicts Barnes' s assertion that Johnson
permitted Barnes to enter the property on August 15. Johnson was clear that, after Barnes was
unable to pay rent for August, Johnson placed conditions on Barnes' s entry onto the property.
Our analysis is whether, " viewing the evidence in the light most favorable to the State,
rational trier of fact could have found guilt beyond a reasonable doubt." State v. Kintz, 169
any
Wn.2d at 551. And we " defer to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence." State v. J.P., 130 Wash. App. 887, 891 -92, 125
P.3d 215 ( 2005). Thus, even if Barnes' s testimony could support an alternate scenario in which
he lawfully entered Johnson' s property, the jury had sufficient evidence to conclude that Johnson
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did not permit Barnes to enter and remain on his property on August 15, 2008. Consequently,
we hold that sufficient evidence supports the first degree burglary conviction.
F. STATEMENT OF ADDITIONAL GROUNDS ( SAG)
In his SAG, Barnes makes four additional arguments. First, he argues that the trial court
violated his due process rights when it admitted the recording. Barnes bases his due process
argument on his assertion that the trial court violated the Privacy Act when it admitted the
recording. But as discussed above, Barnes did not provide sufficient argument to allow us to
evaluate this claim. Barnes' s SAG also provides no specific designation of the allegedly
inadmissible recorded statements. As a result, we need not address this issue.
Second, Barnes argues that the State failed to present sufficient evidence to prove that he
entered Johnson' s property with the intent to commit a crime, one of the elements of first degree
burglary. He claims that Russell voluntarily entered Johnson' s house, which negates the intent
element. But Russell testified that, once inside Johnson' s house, Barnes forced her to have
nonconsensual sex. Based on this evidence, a rational jury could find beyond a reasonable doubt
that Barnes intended to commit a crime against Russell on the property. Therefore, we reject
Barnes' s second argument.
Third, Barnes argues that the trial court abused its discretion when it allowed the State to
introduce evidence of Barnes' s violation of a . no- contact order against a former girlfriend.
Barnes apparently refers to defense counsel' s statement, outside the presence of the jury: "[ I] t
appeared that the Court initially allowed evidence of the violation of a no contact order in, but
then changed its mind and decided not to allow that in." RP at 142. In this conversation, defense
counsel was discussing the history of the trial court' s orders. There is no other evidence in the
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record that Barnes violated a no- contact order against a former girlfriend, nor any evidence that
the jury heard this information. Thus, we reject Barnes' s unfounded argument.
Fourth, Barnes argues that the trial court abused its discretion when it allowed the State to
introduce Russell' s statements regarding assaulting other women. Barnes apparently refers to
Russell' s testimony that, on one occasion, Barnes said that he wished he could pour gasoline
over all women and watch them burn" and, on another occasion, that he " wish[ ed he] could slit
his former girlfriend' s] throat and watch the dust pour out." RP at 203. But Barnes did not
object to these statements at trial, thereby failing to preserve the issue for appeal. State v. Embry,
171 Wn. App. 714, 739, 287 P.3d 648 ( 2012), review denied, 177 Wash. 2d 1005, 300 P.3d 416
2013). To raise an error for the first time on appeal, a defendant must show a manifest error
affecting a constitutional right. RAP 2. 5( a)( 3). Because Barnes fails to show that his claim falls
within RAP 2. 5( a)( 3), we need not consider this issue.
G. CROSS -APPEAL: SAME CRIMINAL CONDUCT
The State also appeals Barnes' s sentence and argues that the trial court erred in ruling
that the crimes of first degree burglary and second degree rape constituted the same criminal
conduct for sentencing purposes. Because we vacate Barnes' s second degree rape convictions,
we need not reach the State' s cross -appeal.
We reverse and remand for a new trial on both of Barnes' s second degree rape
convictions. We affirm Barnes' s convictions for unlawful imprisonment and first degree
burglary.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record pursuant to RCW 2. 06. 040, it is
so ordered.
We concur:
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