IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

NIKOLAY IVANOVICH KALACHIK,

Appellant.

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No. 37346-1-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Nikolay Kalachik appeals his conviction for first degree 

rape. He argues the admission of his nontestifying accuser’s statements to a police officer 

and a sexual assault nurse examiner (SANE) violated his state and federal constitutional 

rights to confront his accuser. He also argues the trial court abused its discretion by 

admitting these hearsay statements under the rules of evidence. 

We conclude that the trial court abused its discretion by applying the wrong legal 

standard for the medical treatment hearsay exception and the statements through the nurse 

were inadmissible. We also conclude that the admission of the accuser’s statements 

FILED

DECEMBER 14, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37346-1-III

State v. Kalachik

2

through the police officer violated Kalachik’s constitutional right to confront his accuser. 

Because these errors were not harmless, we vacate Kalachik’s conviction and remand.

FACTS

Around 7:30 a.m. on April 20, 2018, a young woman approached a courthouse 

security officer in Vancouver, Washington, said she had been raped and kicked out of a 

car, and asked for a deputy sheriff. The courthouse deputies were not on duty until 8:00

a.m., so the security officer called 911. 

Officer Suvada1

Officer Kendrick Suvada of the Vancouver Police Department responded to the 

call. He approached the woman, who we refer to by her initials as S.B. Officer Suvada 

asked her if she was injured, and she said she was not. S.B. spoke very rapidly in an 

excited and disorganized fashion. She told Officer Suvada she was taken to a place past 

the Vancouver Port and raped by a man named Nikolay. He told her to get in the back 

seat and he got on top of her to have sex. When he finished, he grabbed some wipes and

told her to clean up. She discarded the wipes outside of the car. 

 

1 The facts in this section are those considered by the trial court when deciding 

whether to allow Officer Suvada to testify about what S.B. told him. 
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Officer Suvada asked questions about Nikolay. S.B. described him as a white

Russian man, really tall and big with black hair. S.B. gave Officer Suvada the telephone 

number she had for Nikolay. Law enforcement later determined the phone number 

belonged to Nikolay Kalachik. 

S.B. showed Officer Suvada her hands and said her fingernails had broken off and 

were probably in Nikolay’s car. Officer Suvada took a picture of her hands. He then 

discussed the case with a detective, including where to find the discarded wipes. 

Officer Suvada asked S.B. if she was willing to participate in a “rape exam.” 

Report of Proceedings (RP) at 101. She answered yes. An ambulance drove S.B. to the 

hospital, and Officer Suvada followed. They arrived at the hospital around 8:30 a.m. 

Once there, Officer Suvada asked S.B. additional questions while they waited two 

hours for the forensic nurse. By this time, S.B. had calmed down and her answers to 

Officer Suvada’s questions were organized and rational. Despite being there for two 

hours, S.B. did not seek or receive any medical treatment from hospital staff. 

During this delay, S.B. repeatedly told Officer Suvada she wanted to leave the 

hospital because she was afraid her roommates would find out she was cooperating with 

law enforcement. She said it was taking too long and she was worried Nikolay would 

find out she was reporting him, but she knew she needed to do it. Officer Suvada 
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encouraged her to be patient and told her that they were trying to get the nurse there from 

Portland as soon as possible. 

Nurse Stern2

Around 10:30 a.m., SANE Cynthia Stern began S.B.’s exam. Nurse Stern works 

for an agency that contracts with different area emergency departments to perform sexual 

assault exams. When performing such exams, she obtains a patient history, which 

includes asking what happened. This guides her exam in terms of looking for physical 

injuries. In addition, she offers patients medication for sexually transmitted infections

and emergency contraception. 

S.B. thoroughly described the assault to Nurse Stern. S.B. told the nurse she got 

into Nikolay’s car at 5:45 that morning and he drove to the Port of Vancouver. During 

this drive, he threatened to shoot or kill her, and he had her perform oral sex on him. He 

then parked the car and got on top of her. She tried to protect and cover herself, but she

could not because he was too big. She did not know if Nikolay had ejaculated inside her. 

Nurse Stern asked S.B. if Nikolay had threatened her. S.B. said Nikolay made a gesture 

indicating he had a gun and he threatened to shoot her and blow her brains out. As she 

 

2 The facts in this section are those considered by the trial court when deciding 

whether to allow Nurse Stern to testify about what S.B. told her. 
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described what happened, S.B. would cry at times and then calm down. 

Nurse Stern saw a bruise on S.B.’s right thigh and an abrasion on her left thigh. 

She swabbed S.B.’s vagina for suspect deoxyribonucleic acid (DNA) and noticed some

blood on the swab. S.B. said she had noticed some bleeding when she wiped herself 

immediately after the assault. 

That afternoon, Nurse Stern completed a 15-page report and submitted it to the 

Vancouver Police Department. This report contained: (1) a detailed report of the incident 

—including whether threats or force was used, and extensive quotes by S.B. describing 

the assault, (2) information about where the assault occurred and the identity of the 

assailant, (3) a detailed head-to-toe physical examination of S.B., (4) a description of 

evidence collected (leggings, tank top, and forensic swabs), and (5) on the last page, a 

section where a law enforcement officer could sign to signify who received the evidence

and at what time.

Police found wipes at the scene of the crime that tested positive for Kalachik’s 

DNA. Kalachik’s DNA was also present on the swabs collected by Nurse Stern.

When police went to find Kalachik, they located him at his apartment. Police set 

up a perimeter and used a loud speaker to call out to him. Kalachik ran out the back door, 
No. 37346-1-III

State v. Kalachik

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but when he saw police, he turned and jumped a fence to get back into his apartment. He 

soon after gave himself up. Police found a B.B. gun in the trunk of Kalachik’s car. 

Case procedure

The State charged Kalachik with rape in the first degree and rape in the second 

degree. As the trial date approached, the State was unable to locate S.B. It therefore filed 

a motion to admit testimony from Officer Suvada and Nurse Stern about what S.B. had 

told them.

The State argued S.B.’s statements to Officer Suvada were admissible hearsay 

under the excited utterance exception, ER 803(a)(2), and did not violate the Sixth 

Amendment to the United States Constitution because the primary purpose for obtaining 

the information was to resolve an ongoing emergency. Kalachik disputed both 

arguments. 

The trial court mostly granted the State’s motion with respect to Officer Suvada, 

but excluded the statements S.B. made to him at the hospital. The trial court reasoned, by 

the time S.B. spoke with Officer Suvada at the hospital, she no longer was emotional, and 

she was conveying information in a very understandable fashion.

The State argued S.B.’s statements to Nurse Stern were admissible hearsay under 

the medical treatment exception, ER 803(a)(4), and did not violate the Sixth Amendment 
No. 37346-1-III

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because statements to healthcare providers typically are not testimonial. Kalachik 

responded that there was no evidence that S.B. went to the hospital to obtain medical 

treatment, so ER 803(a)(4) did not apply. He also argued the primary purpose of the 

sexual assault exam was to obtain evidence for the State, not to provide medical 

treatment, so admission of S.B.’s statements to Nurse Stern violated the confrontation 

clause. 

The trial court agreed with the State. With respect to the confrontation clause, it 

found the primary purpose of the sexual assault exam was to obtain medical treatment, 

and concluded statements for medical treatment generally are not testimonial statements. 

With respect to the medical treatment hearsay exception, it found the primary purpose for 

Nurse Stern’s questions and S.B.’s statements was for medical treatment. With respect to 

the excited utterance hearsay exception, it found S.B.’s recounting of the events to Nurse

Stern caused S.B. to reenter a shocked state, so her statements were excited utterances. 

It therefore ruled that S.B.’s statements to Nurse Stern were admissible.

The State never did locate S.B. At trial, the State called Officer Suvada and Nurse

Stern to testify about what S.B. had told them. Kalachik testified in his defense. 
No. 37346-1-III

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Kalachik’s testimony

Kalachik and S.B. first met in early April 2018, after S.B. moved in with one of his 

friends. That evening, after the three drank beer and drove to Oregon for cigarettes, 

Kalachik and S.B. decided to continue the night by getting more drinks and driving to 

Janzen Beach. The two had sex on an unoccupied boat, after which he dropped S.B. off 

at the home of her friend, Victor. They met the following day, picked up drinks and went 

to a park. They were intimate at the park, but did not have sexual intercourse. 

Two weeks later, on April 20, Kalachik went to S.B’s home around 5:30 a.m. 

Kalachik’s friend was sleeping, but S.B. was awake, so the two went outside to smoke 

cigarettes. They got in his car, and Kalachik started to drive to Victor’s house, but S.B. 

did not want to go there and she began to touch him. He drove toward the same park 

where they had been intimate, but stopped the car on the side of the road because the park 

was not yet open. S.B. performed oral sex on him and pulled down her pants for him to 

get on top of her. As they began to have sex, he felt she was acting strangely, pulling him 

toward her while also trying to use her shirt to cover her genitalia. Kalachik thought he 

saw a rash on her genitalia, pulled out and ejaculated on her shirt. They both cleaned 

themselves with wet wipes, which he told her to throw out the window. 
No. 37346-1-III

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Kalachik described how he immediately became scared and angry that S.B. might 

have a sexually transmitted infection that she tried to hide from him. The two began to 

fight as he drove, and he eventually told her to get out of the car. At the time, they were 

about a mile and one-half from the courthouse. 

Closing arguments and verdict

After both sides presented their evidence, the trial court instructed the jury. One 

instruction defined “consent.” Clerk’s Papers at 119. During closing, the deputy 

prosecutor argued Kalachik did not have consent because he was threatening S.B. with 

physical violence. The deputy prosecutor continued:

But you really don’t even get there because consent or proving lack 

of consent is not an element to rape in the first degree, and it is not an 

element to rape in the second degree. 

You won’t see on those to convict sheets that I have to prove she did 

not consent. The reason for that is somebody cannot consent once they’ve 

been threatened. Once fear is in the room, there can be no consent. So with 

that instruction, I mean, again she did not freely give consent, but other than 

that, there’s nowhere to apply that instruction in the elements because we do 

not have to prove that she didn’t consent.

RP at 828. Kalachik did not object to this argument.

The jury found Kalachik guilty of both rape in the first degree and rape in the 

second degree. At sentencing, the trial court vacated the lesser verdict and imposed a 

standard range sentence. Kalachik timely appealed. 
No. 37346-1-III

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Appellate proceedings

This court stayed Kalachik’s appeal pending a decision and mandate by the 

Washington Supreme Court in State v. Burke, 196 Wn.2d 712, 478 P.3d 1096 (2021). 

Following that decision, this court lifted the stay and granted the parties permission to file 

supplemental briefing addressing Burke. 

ANALYSIS

Kalachik argues the admission of S.B.’s statements to Officer Suvada and Nurse 

Stern violated his constitutional right to confront witnesses under the Sixth Amendment 

to the United States Constitution and article I, section 22 of the Washington State 

Constitution. He also argues the trial court committed evidentiary error when it admitted 

the statements. Kalachik also argues the deputy prosecutor committed flagrant and illintentioned misconduct when she informed the jury the State was not required to prove 

lack of consent.

A. EVIDENTIARY ERROR CLAIMS

Kalachik contends the trial court erred by allowing Officer Suvada and Nurse 

Stern to testify about what S.B. told them. He argues S.B.’s statements to both witnesses 

were not admissible under ER 803(a)(2), the hearsay exception for excited utterances. He 
No. 37346-1-III

State v. Kalachik

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also argues S.B.’s statements to Nurse Stern were not admissible under ER 803(a)(4), the 

hearsay exception for statements for medical treatment.

This court reviews a trial court’s evidentiary rulings for abuse of discretion. State 

v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). Abuse of discretion is found only 

when the decision is “‘manifestly unreasonable, or exercised on untenable grounds, or for 

untenable reasons.’” State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009) 

(quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). 

“Untenable reasons include errors of law.” Cook v. Tarbert Logging, Inc., 190 Wn. App. 

448, 461, 360 P.3d 855 (2015).

1. S.B.’s first statements to Officer Suvada were admissible under 

ER 803(a)(2)

Hearsay evidence is generally inadmissible. ER 802. But ER 803(a) contains 

various exceptions to this rule, based on the premise that evidence within those 

exceptions is inherently reliable. One such exception is an excited utterance. An excited 

utterance is a “statement relating to a startling event or condition made while the 

declarant was under the stress of excitement caused by the event or condition.” 

ER 803(a)(2). Hearsay is admissible under this exception if (1) a startling event occurred, 

(2) the declarant made the statement while under the stress or excitement of the startling 
No. 37346-1-III

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event, and (3) the statement relates to the event. State v. Magers, 164 Wn.2d 174, 187-

88, 189 P.3d 126 (2008). 

Kalachik contests the second element. In determining whether the second element 

is met, the critical question is whether the declarant was still under the influence of the 

startling event or condition to the extent the statement could not have been the result of 

fabrication, intervening actions, or the exercise of choice or judgment. State v. Woods, 

143 Wn.2d 561, 597, 23 P.3d 1046 (2001). 

Various decisions have upheld trial court rulings where the declarant’s excited 

statements were made hours after the startling event. See, e.g., State v. Thomas, 150 

Wn.2d 821, 853-55, 83 P.3d 970 (2004) (statement to friend by visibly shaken and fearful 

murder witness made 90 minutes after shooting held admissible); State v. Guizzotti, 60 

Wn. App. 289, 296, 803 P.2d 808 (1991) (statement to 911 operator by emotional rape 

victim who hid seven hours from assailant held admissible); State v. Fleming, 27 Wn. 

App. 952, 956, 621 P.2d 779 (1980) (statements to friend by scared rape victim three

hours after rape held admissible).

Here, S.B. said she was raped between 6 and 7 in the morning. About one hour 

later, she spoke with Officer Suvada and told him what had happened. Officer Suvada 

noticed she appeared alarmed, excited, and spoke very quickly in a disorganized fashion. 
No. 37346-1-III

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This is sufficient to sustain the trial court’s ruling on this evidentiary issue. We conclude 

the trial court did not abuse its discretion when it ruled S.B.’s statements to Officer 

Suvada were admissible under ER 803(a)(2) as excited utterances. 

2. S.B.’s statements to Nurse Stern were not admissible under 

ER 803(a)(2)

As previously mentioned, the critical question is whether the declarant was still 

under the influence of the startling event or condition to the extent the statement could not 

have been the result of fabrication, intervening actions, or the exercise of choice or 

judgment. Woods, 143 Wn.2d at 597. 

Here, S.B. said she was raped between 6 a.m. and 7 a.m., and she spoke a second 

time with Officer Suvada around 8:30 a.m. The trial court properly excluded this second 

discussion because S.B. had calmed down and was able to organize her thoughts. She no 

longer was under the stress of the exciting event. Two hours later, at 10:30 a.m., Nurse

Stern interviewed S.B. In the hours between 8:30 a.m. and 10:30 a.m., S.B. had the 

opportunity to fabricate or exercise judgment. S.B.’s statements to Nurse Stern therefore 

did not qualify as excited utterances. There is no legal authority, either cited by the State 

or located by this court, which resurrects excited utterances after the declarant had calmed 

down for a period of time. The trial court erred as a matter of law in concluding 
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otherwise and, in doing so, abused its discretion. We conclude S.B.’s statements to Nurse

Stern were not admissible under ER 803(a)(2).

3. Legal error in applying ER 803(a)(4) to Nurse Stern

Another exception to the hearsay rule is statements made for purposes of medical 

treatment. The scope of this exception encompasses “[s]tatements made for purposes 

of medical diagnosis or treatment and describing . . . [the] general character of the cause 

or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” 

ER 803(a)(4). Hearsay is admissible under the medical treatment exception if (1) the 

declarant’s motive in making the statement was to promote treatment, and (2) the medical 

professional reasonably relied on the statement for purposes of treatment. In re Pers. 

Restraint of Grasso, 151 Wn.2d 1, 20, 84 P.3d 859 (2004). 

Kalachik contends the trial court abused its discretion by applying the wrong legal 

standard. He argues the trial court ignored the first element of the medical treatment 

hearsay exception and conflated the second element of that exception with the 

confrontation clause’s primary purpose test. We agree.

In making its ER 803(a)(4) ruling, the trial court commented:

The nurse here testified that the primary purpose is to provide 

prophylactic medication options at the time of the interview that would

address potential [sexually transmitted diseases], emergency contraceptives, 

. . . and to assess other injuries[—]here, some cervical bleeding as well as 
No. 37346-1-III

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the fingernail removed, an abrasion and bruising on either of her thighs, the 

front of her thighs. 

. . . .

And so the primary purpose . . . of her statements . . . describing the 

incident do[es] relate to treatment. . . . That—those statements better enable 

the nurse to assess whether she might benefit from some of these treatment 

options. And so not only does the nurse state that that’s the reason and—

but the questions asked and the information gathered relate to treatment. 

And so I think [ER] 803(a)(4) is satisfied.

RP at 184-85. 

The trial court’s comments conflate the standards for admitting medical treatment 

hearsay with the confrontation clause’s primary purpose test, which we discuss later. In 

applying the wrong legal standard, the trial court abused its discretion.

Applying the correct legal standard, it is clear the medical treatment exception 

does not apply. After the alleged attack, S.B. walked to the courthouse, not a hospital. 

She asked for a police officer, not a doctor. Once Officer Suvada arrived at the 

courthouse and asked S.B. a series of questions, he asked if she was willing to participate 

in a “rape exam.” RP at 101. She agreed. Officer Suvada then called an ambulance, S.B. 

got in, and the officer followed the ambulance to the hospital. Two hours passed between 

when S.B. arrived at the hospital and when the sexual assault exam began. During this 

time, S.B. did not seek any medical treatment. She became concerned that her roommates

might learn she was cooperating with law enforcement and repeatedly said she wanted to 
No. 37346-1-III

State v. Kalachik

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leave, but remained when Officer Suvada told her they were trying to get the nurse there 

from Portland as soon as possible.

The State presented no evidence that S.B. made statements to Nurse Stern to 

promote medical treatment. She never indicated any desire for medical treatment, either 

before going to the hospital or while waiting at the hospital for two hours. She went there 

because Officer Suvada asked if she would undergo a “rape exam,” and remained there at 

the urging of law enforcement. Her concern at the hospital was that her roommates might 

find out she was cooperating with law enforcement. We conclude that S.B.’s statements 

to Nurse Stern were inadmissible under the medical treatment exception to hearsay and 

that those statements should have been excluded. 

Because S.B.’s statements to Nurse Stern should have been excluded under 

evidentiary principles, we do not address whether those statements were also barred by 

the confrontation clause.

B. SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES

Kalachik contends S.B.’s statements to Officer Suvada were barred under the 

confrontation clause and the trial court erred by admitting them. We review alleged

confrontation clause violations de novo. State v. Wilcoxon, 185 Wn.2d 324, 329, 373 

P.3d 224 (2016) (plurality opinion). 
No. 37346-1-III

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The confrontation clause of the Sixth Amendment provides, “In all criminal 

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses 

against him . . . .” This right protects a criminal defendant from defending against 

testimony given out of court by witnesses who are unavailable unless the defendant had 

the opportunity to cross-examine the witness at another time. Crawford v. Washington, 

541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Burke, 196 Wn.2d at 725.

Using a textual approach, Crawford determined that the confrontation clause 

“applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’”

541 U.S. at 51 (quoting 2 Noah Webster, AN AMERICAN DICTIONARY OF THE ENGLISH 

LANGUAGE (1828)). Only testimonial statements cause the declarant to be a “witness” 

within the meaning of the confrontation clause. Davis v. Washington, 547 U.S. 813, 821, 

126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006); Burke, 196 Wn.2d at 725.

Crawford and Davis advise how to answer the threshold question of whether a 

statement is testimonial. “In general, where the statement is functionally trial testimony, 

it is testimonial; where it is just a casual statement made to a friend, it is nontestimonial.” 

Wilcoxon, 185 Wn.2d at 332. Crawford listed examples of testimonial statements, 

including statements that declarants would reasonably expect to be used prosecutorially. 

541 U.S. at 51. Generally, statements taken by law enforcement in the course of 
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interrogations are testimonial, whereas casual remarks to acquaintances are not. Id. at 51-

52. 

Constitutional error with respect to Officer Suvada’s testimony

Not all statements to law enforcement are deemed testimonial. One recognized 

exception is statements to law enforcement officers to help resolve an ongoing 

emergency. Davis, 547 U.S. at 822; Burke, 196 Wn.2d at 727. Courts look at four factors 

when determining whether there was an ongoing emergency: (1) “the timing of the 

statements relative to when the described events occurred,” (2) “the nature of what was 

asked and answered during the interrogation to determine whether the elicited statements 

were necessary to resolve a present emergency or merely to determine what happened in 

the past,” (3) “the threat of harm posed by the situation as judged by a ‘reasonable 

listener,’” and (4) “the level of formality of the interrogation.” State v. Reed, 168 Wn. 

App. 553, 563-64, 278 P.3d 203 (2012).

Kalachik relies on State v. Koslowski, 166 Wn.2d 409, 209 P.3d 479 (2009), in 

contending the statements were testimonial. In Koslowski, a woman was assaulted by 

robbers and tied up. Id. at 414. Police officers responded to a 911 call reporting the 

robbery but, by the time they arrived, the attackers were gone. Id. They asked the victim 

a number of questions, including what had happened and any descriptors of the attackers, 
No. 37346-1-III

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which she answered. Id. The victim was unavailable at trial and the trial court allowed a

police officer to relate her statements to the jury. Id. at 430-31.

The Washington Supreme Court reversed and held the statements were testimonial. 

Id. at 432-33. The court noted, “[I]nitial inquiries at the scene of a crime might yield 

nontestimonial statements when officers need to determine with whom they are dealing in 

order to assess the situation and the threat to the safety of the victim and themselves.” Id. 

at 425-26. However, the court cited examples where the initial inquiries were very short 

and sought minimal detail. The Koslowski court distinguished its facts—where the victim 

had the protection of police around her, from Davis—where the victim was alone and 

reported the crime to 911. Id. at 426.

Officer Suvada’s questioning in this case is similar to Koslowski where officers

asked the victim for details when the attackers were no longer around. When S.B. spoke 

with Officer Suvada, she was far away from Kalachik and under the aegis of police 

protection. Objectively, there was no ongoing emergency. Officer Suvada’s questions 

were about what had happened in the past, the name of the person who did it, and how to 

locate him. During this questioning, there was no threat of harm to S.B. We conclude the 

trial court erred when it ruled S.B.’s statements to Officer Suvada did not violate the 

Sixth Amendment’s confrontation clause.
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C. CONSTITUTIONAL ERROR NOT HARMLESS BEYOND A REASONABLE DOUBT

A confrontation clause violation is presumed prejudicial unless the prosecution 

proves “‘beyond a reasonable doubt that the error complained of did not contribute to the 

verdict obtained.’” State v. Jasper, 174 Wn.2d 96, 117, 271 P.3d 876 (2012) (quoting 

Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). The 

error is harmless only where “the untainted evidence is so overwhelming that it 

necessarily leads to a finding of the defendant’s guilt . . . .” Koslowski, 166 Wn.2d at 

431. 

Here, without S.B.’s description of what happened through Nurse Stern and 

Officer Suvada, the evidence to sustain Kalachik’s conviction is limited to the courthouse 

security officer’s testimony that S.B. told her she was raped and kicked out of a car and to

descriptions of what witnesses observed about S.B.’s physical condition and demeanor. 

But given Kalachik’s testimony, the evidence to sustain his conviction is not so 

overwhelming that it necessarily leads to a finding of guilt. We conclude that the 

constitutional error was not harmless beyond a reasonable doubt. 
No. 37346-1-111 

State v. Kalachik 

CONCLUSION 

We conclude the trial court erred when it admitted S.B.'s statements to Officer 

Suvada and Nurse Stem. We vacate Kalachik's conviction for first degree rape and 

remand.3 

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

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

RCW 2.06.040. 

Lawrence-Berrey, J. 

WE CONCUR: 

O)douJ~. fC {f Siddoway, A.CJ .f~~.:r; Fearing, J. 

3 Because we reverse on evidentiary and constitutional grounds, we need not 

address Kalachik' s prosecutorial misconduct claim. 

21