State Of Washington v. Michael A. Williams

Filed
Washington State
Court of Appeals
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
Division Two
DIVISION II April 13, 2021
STATE OF WASHINGTON, No. 53518-1-II
Respondent,
v.
MICHAEL ANDREW WILLIAMS, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—In January 2016, JP lost his apartment and began temporarily staying with
a coworker, Michael Andrew Williams. A few weeks later, JP and Williams spent an evening
drinking, and then Williams held JP down, strangled him, and raped him. The next day, JP notified
law enforcement and went to the hospital, where a nurse performed a sexual assault examination.
The nurse later testified at trial.
Williams appeals his conviction for second degree rape, arguing that the trial court erred
by admitting certain statements JP made to the nurse during the sexual assault examination under
the hearsay exception for statements made for medical diagnosis or treatment. Williams also
argues that the use of JP’s initials in court documents violated his constitutional rights. Williams
contends that the trial court abused its discretion by denying his motion for a new trial. Williams
also challenges the $200 criminal filing fee and interest on nonrestitution legal financial
obligations, and he raises other arguments in a statement of additional grounds for review (SAG).
We conclude one statement that JP made to the sexual assault nurse was inadmissible, but
the error was harmless. We remand to strike the provision in Williams’s judgment and sentence
No. 53518-1-II
imposing interest on nonrestitution legal financial obligations. Otherwise, we affirm Williams’s
conviction and sentence.
FACTS
A. Background
JP grew up in Tacoma, Washington and Georgia, where he lived with foster parents. He
returned to Tacoma in 2014 at age 18. JP began working for a logistics company at the Tacoma
port, where he worked with Williams.
In late 2015 and early 2016, JP lived in an apartment with his fiancée, Aislinn Turner. By
January 2016, Turner had ended their relationship and moved out. JP was then evicted after starting
an accidental grease fire that damaged the apartment.
In late January 2016, JP asked Williams if he could stay with him because he had nowhere
else to go. Williams agreed and charged JP a modest rent to sleep on the couch at his studio
apartment. JP did not know Williams well. JP, who was 20 years old, thought of Williams, who
was 47, as an “uncle type” and felt he could trust him. Verbatim Report of Proceedings (VRP)
(Aug, 30, 2018) at 344.
Williams told JP that he was bisexual when JP moved in. Williams then indicated he was
interested in a sexual relationship with JP. JP told Williams he was straight and did not want a
sexual relationship with Williams.
B. Sexual Assault
JP and Williams worked the nightshift on weeknights for the logistics company. In mid-
February 2016, JP and Williams spent a Saturday sleeping most of the day, and JP woke up around
8:00 or 9:00 p.m.
2
No. 53518-1-II
JP drank some alcohol that evening at the apartment before he and Williams walked to a
bar in downtown Tacoma. JP was underage, but Williams gave him fake identification. JP testified
that he had six shots of tequila and some beer. Initially, JP bought the drinks, but Williams bought
at least one drink for JP.
JP testified that when he left the bar, he was drunk to the point of “[s]tupidity” and had
never felt that drunk before, but Williams was only slightly intoxicated. VRP (Aug. 30, 2018) at
369. JP ate a couple of slices of pizza after leaving the bar. Back at the apartment, JP lay down
because he still felt very drunk. Although the plan had been to go out again, JP felt too intoxicated
to leave.
JP testified that Williams suddenly approached him and choked him. JP became dizzy,
could not breathe, and urinated on himself. Williams removed all of JP’s clothes while JP tried
unsuccessfully to resist. Williams also took his own clothes off at some point.
JP testified that Williams then licked and bit his body. JP tried to get away but Williams
dragged him across the floor. Williams performed oral sex on JP. JP continued to try to crawl
away, but Williams dragged him back by the feet. Williams poured baby oil all over JP’s body.
Williams then anally raped JP without using a condom. JP testified that when Williams penetrated
him, “[i]t really, really hurt” and he was in pain “until the next day.” VRP (Aug. 30, 2018) at 395.
JP dressed, grabbed clothes and personal items, and quickly left the apartment. Williams’s
apartment was near Wright Park, so JP went to the park and called his ex-fiancée, Turner, while
crying.
Turner lived in the neighborhood and happened to be walking near Wright Park when JP
called, so she immediately found him. Turner testified that JP was “very upset[,] . . . in distress,”
“couldn’t stop crying,” and he repeatedly said that “he had been raped.” VRP (Sept. 4, 2018) at
3
No. 53518-1-II
31-32. Turner did not have a car, so she called her grandmother. Turner and her grandmother drove
JP to a hotel and dropped him off for the night.
C. Sexual Assault Examination and Investigation
The next morning, JP’s father took him to UW Medicine Valley Medical Center in Renton.
A trained sexual assault nurse examiner, Monica Brown, examined JP. Brown interviewed JP
using a standard sexual assault questionnaire. Brown asked JP to describe what happened and
wrote verbatim statements in her notes. In the portion of the sexual assault questionnaire for the
patient’s current medical history, Brown addressed the amount of alcohol JP consumed, where it
came from, and whether there was any “suspicion of surreptitious drug use” or “forced drug
ingestion.” Ex. 19A at 3. The medical history section also contained Brown’s notes about JP’s
emotional state during and after the rape, including that Williams called JP names, threatened him,
and JP felt his life was in danger. Brown also described the nature of the contact between Williams
and JP.
Because JP reported strangulation, which may have life threatening consequences days
after the event, Brown looked for symptoms of serious injury from strangulation and instructed JP
to continue checking for symptoms at home. Brown collected swabs from various parts of JP’s
body for DNA testing. After the examination, Brown made treatment recommendations to other
providers at the hospital and spoke to JP and his father about follow-up care.
Tacoma Police Officer Ryan Beck met with JP at the hospital after the examination. JP told
Beck that Williams was the perpetrator, and Brown gave the completed sexual assault kit to Beck.
A few days later, Tacoma Police Detective Philip Hoschouer interviewed JP and Turner and
collected a reference sample of JP’s DNA.
4
No. 53518-1-II
Hoschouer collected a reference sample of Williams’s DNA after his arrest. Based on
Hoschouer’s investigation, the State charged Williams with second degree rape. The trial court
appointed Travis Currie to represent Williams, who was indigent.
D. Trial
The Pierce County Superior Court issued a bench warrant in October 2016, but law
enforcement was unable to find and arrest Williams until December 2017. The trial took place a
year and a half after the assault.
At trial, JP’s testimony was mostly consistent with his prior statements. But on several
occasions, JP’s testimony was internally inconsistent, diverged from his prior statements, or he
was unable to recall details. The State refreshed JP’s memory using the transcript of his interview
with Hoschouer when he testified about what kind of alcohol he drank, who purchased the drinks,
whether Williams poured an oil on his body, and what names Williams called him during the
assault.
During cross-examination, the defense impeached JP multiple times, including by asking
JP to acknowledge he previously said he lay down on a futon that Williams normally slept on,
rather than the floor, when he returned to the apartment. The defense impeached JP with prior
inconsistent statements about when they purchased pizza and how much JP ate, and that a man
named Jesse sometimes stayed at the apartment.
The State moved to admit JP’s statements to Brown under the medical treatment or
diagnosis hearsay exception. Outside the presence of the jury, the parties and the trial court
discussed limitations on Brown’s testimony and the trial court excluded several statements.
Brown testified about her examination of JP, and she quoted some statements JP made that
she wrote down in her report. Williams attempted to raise a standing objection to all hearsay
5
No. 53518-1-II
testimony by Brown, but the trial court overruled the objection, instructing counsel to object to
individual statements when appropriate.
Williams objected when Brown stated that JP told her they had been hanging out and
drinking at a club. Williams also objected when Brown testified about drinking shots at the bar,
explaining that JP said Williams “‘just kept bringing them to me, and I just kept drinking them.’”
VRP (Sept. 4, 2018) at 74.
Next, Williams objected when Brown testified that JP said Williams called him names and
threatened him before the rape. Williams objected when Brown said JP told her penetration was
the worst part and that he cried, screamed, and begged JP to stop. Williams also objected to the
State’s question about where the rape occurred and how Williams and JP were positioned.
Williams again objected when Brown testified about what happened at the park after the
assault, reporting, “[JP] said that he sat there crying. He said, ‘My ex-girlfriend came and helped
and took me to a hotel for the night.’” Id. at 82. Finally, Williams objected when Brown stated that
JP told her an oil was poured all over on his body.
Brown also described her examination of JP, noting that he had “bruising and marks on his
neck” and small red dots behind his left ear, which Brown said can be signs of strangulation. Id.
at 88, 94-98. JP also had visible blood vessels, known as petechiae, in the corners of his eyes,
which was also consistent with strangulation. Brown saw some abrasions on the back of JP’s right
hand. Pictures of these injuries were admitted and published to the jury. Brown also noticed some
swelling on JP’s anus and JP reported tenderness, but she did not see lacerations or other significant
injury. Brown testified that she collected swabs from JP’s body for DNA testing.
Sean Carhart, a Washington State Patrol forensic scientist who analyzed the DNA
evidence, also testified. Taken together, the swabs were consistent with JP’s own DNA, Williams’s
6
No. 53518-1-II
DNA, and that of an unknown male contributor. Williams’s DNA was excluded as a source for
one of the swabs containing unknown male DNA.
During the trial, the parties and the court referred to JP by his full name. The to convict
instruction and a few pretrial documents referred to JP by his initials.
The jury found Williams guilty of second degree rape.
E. Motion for New Trial and Sentencing
After trial and before sentencing, the trial court granted Williams’s request for new counsel.
Williams moved for a new trial, arguing that his original attorney provided ineffective assistance
by failing to talk to or present the testimony of possible defense witnesses, including Jesse Ramirez
and James Bloom, two acquaintances Williams said were at his apartment the evening of the
alleged assault.
The defense investigator could not find Ramirez or Bloom, so Williams described the
testimony he thought they would have given in his own affidavit. The trial court denied Williams’s
motion for a new trial. It found that even if Ramirez1 had testified according to Williams’s
affidavit, that testimony would not have changed the outcome of the trial. The trial court concluded
that Williams failed to establish ineffective assistance of counsel because he did not show
prejudice resulted from the failure to locate and call additional witnesses.
During the sentencing hearing, the trial court asked Williams about his financial resources
before imposing the $200 criminal filing fee. Williams’s judgment and sentence contains a
boilerplate provision imposing interest on all legal financial obligations at the rate applicable to
civil judgments.
1
The trial court’s ruling focused on the effect of Ramirez’s purported testimony because Williams
stated his testimony was most germane.
7
No. 53518-1-II
Williams appeals his conviction, the $200 criminal filing fee, and the provision imposing
interest on nonrestitution legal financial obligations. Williams also filed a SAG.
ANALYSIS
I. STATEMENTS MADE FOR TREATMENT OR DIAGNOSIS
Williams contends the trial court erred by ruling that Brown could testify about statements
JP made during the sexual assault examination because the State failed to lay a foundation that
Brown reasonably relied on the statements for medical treatment or diagnosis. Williams argues he
was prejudiced by the error because the statements were necessary to corroborate JP’s testimony,
especially given the scant physical evidence. We disagree and conclude that all but one statement
qualified for the medical treatment and diagnosis hearsay exception and the single improperly
admitted statement was harmless.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered . . . to prove the truth of the matter asserted” and is generally inadmissible. ER
801(c), 802. There is an exception for “[s]tatements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.” ER 803(a)(4). The exception encompasses diagnosis or
treatment of psychological conditions. See, e.g., State v. Woods, 143 Wn.2d 561, 602, 23 P.3d
1046 (2001).
Under ER 803(a)(4), the proponent must show that “the declarant’s motive in making the
statement [was] to promote treatment and the medical professional . . . relied on it for the purposes
of treatment.” State v. Burke, 196 Wn.2d 712, 740, 478 P.3d 1096 (2021). In Burke, a rape victim
did not expressly state her motive for going to the hospital, but the Washington Supreme Court
8
No. 53518-1-II
held that the trial court properly allowed the sexual assault nurse examiner to quote the victim’s
description of the assault because the description “was an answer to the first question [the nurse]
asked,” and “[m]edical professionals often ask patients how their injuries are caused.” Id. at 741.
The court inferred that the victim’s answers to the nurse’s specific questions about the assault were
“likely motivated by a desire to promote medical treatment specific to sexual assault.” Id. The
court relied on inferences about the declarant’s likely motive without requiring direct evidence of
the declarant’s motive. Id.A declarant’s statement may be admissible even if made for a combination of purposes,
including both medical and forensic purposes. See id. at 717, 739-42; see also State v. Williams,
137 Wn. App. 736, 746-47, 154 P.3d 322 (2007).2 In Williams, the State sought to admit testimony
from a sexual assault nurse examiner about a rape victim’s statements during the examination. 137
Wn. App. at 745. The victim testified that she originally went to the hospital for forensic purposes
and did not initially feel she needed medical treatment. Id. at 747. However, we held that the
victim’s testimony did not render her statements to the nurse ineligible for the hearsay exception.
Id.
Not all statements by a victim to a medical professional are admissible under this hearsay
exception. Burke, 196 Wn.2d at 742. In Burke, the Supreme Court held that the victim’s statement
to the nurse describing the physical appearance of an unknown assailant was not admissible
because no evidence suggested that the victim’s “description of her assailant was made to promote
medical treatment” nor was it relevant to preventing “the continued danger of intimate partner
violence,” since the victim and the assailant did not know each other. Id.
2
This 2007 case involved a different defendant also named Michael Williams.
9
No. 53518-1-II
We review admissibility of evidence under a hearsay exception for abuse of discretion. Id.
at 741.3 Abuse of discretion occurs “when the trial court ‘relies on unsupported facts, takes a view
that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an
erroneous view of the law.’” State v. Arndt, 194 Wn.2d 784, 799, 453 P.3d 696 (2019) (quoting
State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007)).
A. JP’s motive
Williams claims that the proponent of testimony admissible under this exception may not
rely on an inference about the declarant’s motives. Williams argues that JP lacked a treatment
motive because he never expressly stated his reason for going to the hospital and Brown did not
explicitly tell JP that the examination was related to medical treatment.
But we may infer JP’s motive from testimony and context. Burke, 196 Wn.2d at 741. And,
under Williams, JP may have had both medical and forensic motives. 137 Wn. App. at 746-47. JP
went to the hospital and did not testify that his motives were purely forensic. Instead, JP testified
that at the hospital “[t]hey checked me out from head to toe, swabbed me” and he talked to the
nurse about what had happened, which is consistent with seeking medical care. VRP (Aug. 30,
2018) at 406. JP’s description of his intoxication, how the rape occurred, including the
strangulation, and his emotional state in its immediate aftermath, occurred in response to Brown’s
request that he describe what happened. As in Burke, “it is reasonable to believe that [JP]
understood [that] question . . . to be the starting point for a medical exam.” 196 Wn.2d at 741.
3
Williams argues that we review the admissibility of JP’s statements to Brown de novo, citing
State v. Gonzalez-Gonzalez, which reviewed de novo whether an out-of-court statement was
offered to prove the truth of the matter asserted. 193 Wn. App. 683, 689-90, 370 P.3d 989 (2016).
But Gonzalez-Gonzalez distinguished between statements admitted as nonhearsay under ER 801,
subject to de novo review, and statements subject to ER 803’s hearsay exceptions, reviewed for
abuse of discretion. Id. at 688-89.
10
No. 53518-1-II
B. Brown’s reliance on JP’s statements
Brown explained that JP’s description of the rape informed “what I was going to be looking
for in terms of injuries and evidence collection” and was important to guide treatment. VRP (Sept.
4, 2018) at 68. Brown testified that JP’s report of strangulation was crucial for her treatment
recommendations because strangulation can have serious health effects that arise hours or days
after the incident. After hearing JP’s description of the event and conducting an examination,
Brown spoke “to the medical personnel at the hospital, which is standard, let them know what
[her] recommendations were in terms of follow-up assessment and care, [and] what kind of
diagnostics and medication he might need.” Id. at 69. Brown relied on JP’s description of the rape
for treatment purposes.
JP’s statements about his intoxication and the circumstances around his drinking the night
of the incident were reasonably pertinent to Brown’s treatment. The current medical history
portion of the sexual assault questionnaire prompted Brown to inquire whether JP was under the
influence of substances and if there was any “suspicion of surreptitious drug use.” Ex. 19A at 3.
Brown noted that JP had consumed five to six shots of tequila and checked the no box for
surreptitious drug use. Inquiries relevant to treatment reasonably included whether others had
access to JP’s drinks and whether it was possible a drug was added to a drink he had consumed.
Whether Williams was giving JP drinks was responsive to the sexual assault questionnaire and
relevant to Brown’s treatment and diagnosis.
JP’s description of being strangled, dragged, and held on the floor during the assault and
rape, and his discussion of pain, including his comment that penetration was the worst part and
that he cried, screamed, and begged Williams to stop, also informed Brown’s examination and
influenced her treatment recommendations. In the current medical history section of the
11
No. 53518-1-II
questionnaire, Brown noted “name calling” and recorded one of the comments JP reported
Williams making during the assault. Ex. 19A at 3. Because Brown had an obligation to assess JP’s
need for psychological treatment, these statements were relevant to Brown’s assessment of JP’s
trauma and need for mental health treatment or counseling. In fact, the sexual assault questionnaire
prompted Brown to ask questions about the patient’s emotional state and interest in counseling,
and Brown checked the maybe box next to the question about interest in counseling and the yes
boxes corresponding to questions about whether the patient perceived a life threat and whether the
patient had social support. For these same reasons, JP’s statements about his emotional state during
and after the rape were also reasonably pertinent to Brown’s assessment of JP’s need for mental
health treatment.
JP’s statement that Williams poured an oil on his body was also pertinent to diagnosis or
treatment. Brown documented this statement in the current medical history portion of the
questionnaire in a subsection specifically addressing the type of contact between perpetrator and
defendant. As part of the sexual assault examination, Brown had to look for and assess the severity
of injuries only detectable due to visible marks on JP’s body, such as abrasions, contusions,
lacerations, swelling, redness, and bite marks. Oil or other lubrication on JP’s skin could affect the
appearance of these types of injuries, thus making JP’s comment that Williams poured an oil on
his body during the assault relevant to Brown’s diagnosis and treatment.
Williams points out that Brown said, “Treatment is generally left to the medical personnel
in whatever facility you’re in.” VRP (Sept. 4, 2018) at 62. But viewed in context, this comment
reflects Brown’s understanding of the practical and professional limits of her role as an on-call
sexual assault nurse examiner who responded to hospitals throughout King County. Regardless of
whether Brown administered treatment herself, JP’s statements guided Brown’s examination and
12
No. 53518-1-II
informed her treatment recommendations to other medical professionals and suggestions to JP and
his family members for follow-up care.
Even if a different judge would have come to a different conclusion, we review evidentiary
rulings for an abuse of discretion and reverse if no reasonable fact finder would have reached the
same conclusion. Burke, 196 Wn.2d at 741. The trial court reasonably concluded that the
statements described above were consistent with seeking medical care and Brown reasonably
relied on JP’s statements to guide her examination and make recommendations for treating JP’s
physical and psychological needs. The trial court did not abuse its discretion by admitting these
statements under ER 803(a)(4). Accordingly, we do not address harmless error.
However, the trial court admitted Brown’s testimony describing JP’s comment that Turner
“‘came and helped and took [JP] to a hotel for the night.’” VRP (Sept. 4, 2018) at 82. That
information, like the Burke victim’s statement to the nurse describing the physical appearance of
an unknown assailant, was not related to treatment or diagnosis. Thus, the trial court abused its
discretion when it admitted this statement. But its admission was harmless error because both
Turner and JP testified to these facts themselves and there was no dispute that Turner picked up
JP and took him to a hotel for the night.
The admission of JP’s statements to Brown does not constitute reversible error.
II. USE OF JP’S INITIALS
Williams contends that the use of JP’s initials in the to convict instruction was an
impermissible judicial comment on the evidence that violated his due process rights and the
presumption of innocence. Williams also argues that the use of JP’s initials in court documents
violated his right to a public trial. Applying State v. Mansour, we reject these arguments. 14 Wn.
App. 2d 323, 329-33, 470 P.3d 543 (2020), review denied, 196 Wn.2d 1040 (2021).
13
No. 53518-1-II
In Mansour, Division One recently held that using a victim’s initials in the jury instructions
was not a judicial comment on the evidence because it did not convey an assumption that the
defendant was guilty or otherwise violate the defendant’s constitutional rights. Id. at 331. The
Mansour court also concluded that use of initials in the to convict instruction and other court
documents was not a court closure where the victim was referred to by their full name “in open
court . . . throughout the proceedings . . . [and their] name was fully accessible . . . to any member
of the public who appeared in court or read a transcript of the court proceedings.” Id. at 333.
There is no reason to depart from Mansour here. The use of JP’s initials in the to convict
instruction was not a judicial comment on the evidence. Id. at 330. Nor did the use of JP’s initials
relieve the State of its burden of proof or violate Williams’s constitutional rights. Id. at 331. The
jury was instructed that the State had “the burden of proving each element of the crime beyond a
reasonable doubt” and Williams was not required to prove reasonable doubt. Clerk’s Papers (CP)
at 28. And, as in Mansour, JP’s full name was used throughout the trial and it appears throughout
the report of proceedings. 14 Wn. App. 2d at 333. The presence of JP’s initials in the jury
instructions or other court documents was not a court closure and did not violate Williams’s public
trial rights.
III. WILLIAMS’S CRR 7.5 MOTION FOR A NEW TRIAL
Williams argues that the trial court abused its discretion by denying his motion for a new
trial on the basis that Currie’s performance was deficient because he failed to call Ramirez and
Bloom to testify. We reject this argument.
A trial court may grant a motion for a new trial if “substantial justice has not been done.”
CrR 7.5(a)(8). Ineffective assistance of counsel may constitute substantial injustice. State v.
Dawkins, 71 Wn. App. 902, 906-07, 911, 863 P.2d 124 (1993). We review the trial court’s denial
14
No. 53518-1-II
of a CrR 7.5 motion, including one brought on the basis of ineffective assistance of counsel, for
an abuse of discretion. Id. at 906-07. We may affirm on any basis supported by the record. Id.
As an initial matter, Williams presented nothing beyond his own declaration stating what
he thought Ramirez and Bloom would have said. Because Williams did not offer declarations from
the witnesses themselves, the trial court properly denied the motion on that basis alone. See State
v. Bandura, 85 Wn. App. 87, 93-94, 931 P.2d 174 (1997) (where defendant’s posttrial motion “‘is
based on knowledge in the possession of others, [the defendant] may not simply state what [they
think] those others would say, but must present their affidavits or other corroborative evidence.’”
(quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992))).
The trial court also did not abuse its discretion by concluding that Williams failed to
establish ineffective assistance of counsel. The Sixth Amendment to the United States Constitution
and article I, section 22 of the Washington Constitution guarantee effective assistance of counsel.
See Strickland v. Washington, 466 U.S. at 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). Ineffective assistance of counsel is a two-
pronged inquiry. Grier, 171 Wn.2d at 32. Williams must show both that his counsel’s performance
was deficient and that counsel’s deficient performance prejudiced him. Id. at 32-33. To prove
prejudice, Williams would have to show that but for counsel’s deficient performance, “there is a
reasonable probability that the result of the proceeding would have been different.” In re Pers.
Restraint of Lui, 188 Wn.2d 525, 538, 397 P.3d 90 (2017). We assess the “practical effect” of
alleged ineffective assistance. In re Pers. Restraint of Yates, 180 Wn.2d 33, 41, 321 P.3d 1195(2014).
Even if Williams’s counsel performed deficiently, an issue we do not decide, Williams
failed to show that he was prejudiced. According to Williams, Ramirez would have said that he let
15
No. 53518-1-II
himself into Williams’s apartment “around midnight” on the night of the incident and did not
witness a sexual assault. CP at 46-47. Williams claims Ramirez would have testified that he
overheard Williams tell Turner on the phone that JP assaulted him and he encouraged Turner to
contact law enforcement. Williams also said that Bloom would have testified that he was at
Williams’s apartment that evening and saw JP arrive high on drugs.
Even if Ramirez testified exactly as Williams described, there was no reasonable
probability that the outcome of the trial would have been different. Testimony at trial indicated the
rape most likely occurred between about 11:00 p.m. and 12:00 a.m. or 12:30 a.m. A reasonable
jury could have found that Williams raped JP before Ramirez arrived. Moreover, Williams fails to
establish how Ramirez could have testified about Williams’s phone call with Turner in light of the
hearsay rule and he could not have been prejudiced by the absence of inadmissible testimony. ER
801(c). And Bloom’s purported testimony that JP was high on drugs likely would not have affected
the outcome of the trial, given that JP himself testified that he was drunk to the point of
“[s]tupidity.” VRP (Aug. 30, 2018) at 369.
Williams asserts that even if “Ramirez was not present during [JP’s] purported time frame
of the alleged rape,” Ramirez’s testimony would have undermined JP’s credibility, which was
crucial to the State’s case. Br. of Appellant at 40. But despite some inconsistencies, JP never
wavered in his assertion that Williams raped him. Turner’s testimony, Brown’s findings that JP’s
symptoms were consistent with strangulation, and the pictures of JP’s injuries corroborated core
elements of JP’s testimony. The practical effect of contradictory testimony from a witness present
for only part of the evening would likely have been minimal. Yates, 180 Wn.2d at 41.
The trial court properly concluded that Williams failed to establish ineffective assistance
of counsel. We affirm the denial of Williams’s motion for a new trial.
16
No. 53518-1-II
IV. LEGAL FINANCIAL OBLIGATIONS
Williams argues that the trial court erred by imposing the $200 criminal filing fee because
he was indigent. We disagree.
Williams did not object below to the trial court’s limited inquiry into his ability to pay legal
financial obligations. But we exercise our discretion to reach Williams’s legal financial obligation
arguments, as other courts have done under State v. Blazina, 182 Wn.2d 827, 834-35, 344 P.3d
680 (2015). See, e.g., State v. Glover, 4 Wn. App. 2d 690, 693, 423 P.3d 290 (2018); see also RAP
2.5(a), 1.2(a) (liberally interpreting the rules of appellate procedure to promote justice and
facilitate the decision of cases on the merits).
RCW 36.18.020(2)(h) prohibits imposing the criminal filing fee “on a defendant who is
indigent as defined in RCW 10.101.010(3) (a) through (c).” Under RCW 10.101.010(3)(a) through
(c), a person is indigent if he or she receives certain types of public assistance, is involuntarily
committed to a public mental health facility, or receives an annual after tax income of 125 percent
or less of the current federally established poverty level. But if the defendant is indigent under
RCW 10.101.010(3)(d) (unable to pay the anticipated costs of counsel based on available funds),
the trial court is not prohibited from imposing the criminal filing fee. See RCW 36.18.020(2)(h).
The trial court asked about Williams’s income, assets, child support obligations, and debts,
and Williams said he received a monthly army pension of $2,500, did not own real estate or
valuable personal property, and had no child support obligations or other significant debt.
Although the trial court signed an order of indigency under RCW 10.101.010(3)(d) for purposes
of appellate counsel, it did not find him indigent under RCW 10.101.010(3)(a) through (c). The
trial court thus appropriately inquired into Williams’s income and debt and then decided to impose
the criminal filing fee.
17
No. 53518-1-II
We agree with Williams that the trial court erred by imposing interest on nonrestitution
legal financial obligations under RCW 10.82.090(1). The boilerplate provision in Williams’s
judgment and sentence imposing interest on all legal financial obligations at the rate applicable to
civil judgments is improper, and we remand to strike this provision. State v. Ingram, 9 Wn. App.
2d 482, 501, 447 P.3d 192 (2019), review denied, 194 Wn.2d 1024 (2020).
V. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
A. Matters We Do Not Reach
Williams argues that his counsel failed to introduce exculpatory evidence in the form of
receipts from a bar and Domino’s Pizza. The receipts are not in the record. Under State v.
McFarland, “if a defendant wishes to raise issues on appeal that require evidence or facts not in
the existing trial record, the appropriate means of doing so is through a personal restraint petition.”
127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Williams may raise this issue in a personal restraint
petition, but we do not further review this issue here. Id.Williams argues that his “[c]ounsel was unprepared for trial and failed to advance a defense
authorized by statute where there [was] evidence to support the defense.” SAG at 2. Under RAP
10.10(c), an appellant who files a SAG must “inform the court of the nature and occurrence of
alleged errors.” This assertion of error is too vague because Williams does not identify what
defense that counsel failed to advance, and we do not further consider this argument.
Williams also argues that he lived three blocks from Multicare Tacoma General Hospital,
but JP went to UW Medicine Valley Medical Center in Renton the next day. Because Williams
does not identify the nature of any alleged error relating to this assertion, we do not reach the
merits of this argument.
18
No. 53518-1-II
B. Ineffective Assistance of Counsel
Williams argues that Currie’s representation was ineffective because he failed to argue that
JP made inconsistent statements about the incident. But Currie impeached JP with prior
inconsistent statements multiple times and discussed JP’s inconsistent testimony in closing.
Williams has not shown deficient performance on this basis, and we reject this argument.
Williams also argues that Currie was ineffective because he failed to speak with witnesses
Williams told him to contact. But where reasonable under the circumstances, a decision not to
investigate a line of defense that counsel chose not to employ is not deficient performance. Riofta
v. State, 134 Wn. App. 669, 693, 142 P.3d 193 (2006). Currie made a tactical decision to suggest
that JP and Williams had consensual sex. To the extent Williams’s argument refers to Currie’s
failure to speak with Ramirez and Bloom, for the reasons discussed above, including that neither
person was present at the time of the assault, their testimony would not have helped Currie’s
chosen defense, and it was reasonable not to pursue these witnesses. We reject this ineffective
assistance of counsel argument.
Finally, Williams argues that Currie did not adequately cross-examine the State’s DNA
expert because he did not ask the expert to disclose the facts or data underlying his
acknowledgment that Williams’s DNA could have been transferred to JP because they shared a
living space. But there is no indication that additional questions about the basis for Carhart’s expert
opinion would have helped Williams’s defense, especially where Carhart acknowledged that the
defense’s theory about transfer DNA was possible. Currie’s cross-examination of Carhart did not
fall below an objective standard of reasonableness and we reject this ineffective assistance
argument. Lui, 188 Wn.2d at 538.
19
No. 53518-1-II
CONCLUSION
We affirm Williams’s conviction. We remand to strike the provision in Williams’s
judgment and sentence imposing interest on nonrestitution legal financial obligations. Otherwise,
we affirm Williams’s sentence.
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 in accordance with RCW
2.06.040, it is so ordered.
Glasgow, J.
We concur:
Sutton, A.C.J.
Maxa, J.
20