### rILEi _ 

## DIVISION If Z11111JUN 17 

### All 8: 3 ST ;yI` ' WA a_Tall 

### IN THE COURT OF APPEALS OF THE STATE OF WASHING

STATE OF WASHINGTON,

v. COREAN BARNES, DIVISION II

Respondent,

Appellant. No. 44075 - 0 -II

UNPUBLISHED OPINION

MAXA, J. —

### Corean Barnes appeals hisjury convictions fortwo counts ofsecond degree rape, unlawful imprisonment, and first degree burglary with sexual motivation. We holdthatthe trial court violated Barnes' s Sixth Amendment right by instructing thejury,over Barnes' s objection, on an affirmative defense ofconsent 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 ofcounsel claim fails because he cannot showthat 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 ajury instruction onthe lesserincluded charge; and (4) the Statepresented sufficient evidence that Barnes unlawfully entered a third person' s property to commit rape.44075 -0 -II

And we reject Barnes' s Statement ofAdditional Grounds (SAG) arguments. Accordingly, we 

### affirm Barnes' s convictions for unlawful imprisonment and first degree burglary. 

### The State also cross -

appeals, asserting thatthe trial court erred in ruling thatthe burglary and rape convictions were the same criminal conduct when calculating Barnes's offender score 

## forsentencing purposes. Becausewevacate 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. 

### ByAugust 2008, Russell decided that she did notwantto 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 ofthe 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 hervaginawith his finger. During this time, Russell was trying to breakfree 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 ofRussell' s testimony.

244075 - 0 -II 

### 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 abouttwo minutes, atwhichtime 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 andAppeal 

### Ajury convicted Barnes oftwo counts ofsecond degree rape and one count ofunlawful 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 

### Thejury inthe firsttrial did notreach averdict on the burglary charge.
344075 -0 -II 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 ofthe 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 duringthe period ofimprisonmentwere admissible underthehostage 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 ofthe recordings for the 

### jury. 

## Thetrial court approved ajury instruction stating thataperson is not guilty ofrape ifthe 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
444075 -0 -II

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 ofthe 

### 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 byinstructingthejury onthe affirmative defense ofconsent overhis objections. Barnes asserts thatthe affirmative defense instruction improperly shifted the burden ofproofto 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 Wn.2d 370, 378, 300 P.3d 400 (2013) and State v. Lynch, 178 Wn.2d 487, 491, 309 P.3d 482 2013). We reverse Barnes' s convictions on both counts ofsecond degree rape.


## 2Thetrial court did not specifywhich second degree rape convictionwasthe same criminal conduct asthefirst degree burglary. However,we fairly can assume thatthetrial courtwas referring to counttwo,which involved the rape in Johnson's house.
544075 -0 -II 1. Defendant' s Right to Control Defense 

### A criminal defendant has a right underthe Sixth Amendmentto the United States Constitution to control his or her own defense. Lynch, 178 Wn.2d at 491. " 

### Instructingthejury 

### on an affirmative defense overthe defendant's objection violates the Sixth Amendment by interfering with the defendant' s autonomy to present a defense. Lynch, 178 Wn.2d at 492 quoting Coristine, 177 Wn.2d at 375). We review allegations ofconstitutional violations denovo. Lynch, 178 Wn.2d at 491. In Coristine, the State charged the defendant with second degree rape, and was required 

### to prove thatthe alleged victim lackedthe capacityto consentto sexual intercourse because she

was physically helpless or mentally incapacitated. 

### 177 Wn.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 Wn.2d at 373 -74. The State proposed an 

### instruction onthe statutorydefense ofreasonable belief,underwhichthe defendant hadthe 

## burden ofprovingthathe reasonablybelievedthe allegedvictimwas not mentally incapacitated

or physically helpless. Coristine, 177 Wn.2d at 374. Attrial,the defendant argued that his 

### defense was thatthe State had failed to prove thatthe alleged victim was incapacitated. Coristine, 177 Wn.2d at 374. The trial court gave the affirmative defense instruction overthe defendant' s objection. Coristine, 177 Wn.2d at 374. 

### Our Supreme Courtheldthat instructing ajuryto consider an affirmative defense over the defendant's objection interferes with the defendant' s Sixth Amendment rightto control his or her defense. Coristine, 177 Wn.2d at 378. The court emphasized thatthe Sixth Amendment 

### places the " important strategic decision" ofwhether to assert an affirmative defense " squarely in
644075 - 0 -II the hands ofthe defendant, not the prosecutor or the trial court." Coristine, 177 Wn.2d at 378. 

### Imposing adefense on an unwilling defendant impinges onthe independent autonomythe
accused must have to defend against charges." Coristine, 177 Wn.2d at 377. 

### In Lynch,the State charged the defendantwith second degree rape based on the victim's allegation offorcible compulsion. 178 Wn.2d at 489. The defendant admitted that he had sexual 

### contact with the alleged victim, but claimed that she consentedto his conduct. Lynch, 178 Wn.2d at 490. The defendant objected to the State' s proposed instruction on the affirmative 

### defense ofconsent "on the grounds that he had the rightto control his defense and because he did
not want to bear the burden of proving consent." Lynch, 178 Wn.2d at 490. The defendant 

### argued that he presented evidence ofconsentto create reasonable doubt as to whetherthe State had proved forcible compulsion. Lynch, 178 Wn.2d at 490. The trial court gave the affirmative defense instruction over the defendant's objection. Lynch, 178 Wn.2d at 490. Our Supreme Court held that its decision in Coristine was dispositive. Lynch, 178 Wn.2d 

### at492. The court confirmedthat giving an affirmative defense instruction overthe defendant's objection violated the Sixth Amendment. Lynch, 178 Wn.2d at 492. The court stated that a defendant must be allowed to " cast doubt on an element ofthe State' s case" without assuming the burden of proof. Lynch, 178 Wn.2d at 493. The court also rejected the State' s argument that 

## givingthe affirmative defense instructionwasjustified becausethe defendant introduced evidence that the alleged victim consented. Lynch, 178 Wn.2d at 493 -94. 

### Here, as in Coristine and Lynch, Barnes objectedto instructing thejury onthe affirmative defense ofconsent, which stated that Barnes hadto prove by apreponderance ofthe evidence that his sexual intercourse with Russell was consensual. Barnes objected on the grounds that the

744075 - 0 -II 

### instruction (1) would confusethejury, ( 2) would relieve the State ofproving every element beyond a reasonable doubt, and (3) would require him to pursue an affirmative defense of 

### consent. Andthe record does not showthat 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 cannotbe distinguished from Coristine and Lynch. As in Lynch,the fact that Barnes testified that Russell consented to sexual contact did notjustify giving an affirmative 

### defense instruction. Lynch, 178 Wn.2d at494. Accordingly, we hold that the trial court erred 

### when it instructedthejury onthe affirmative defense ofconsent.

2. Harmless Error Analysis We conduct a constitutional harmless error analysis to determine whetherthe trial court's 

### violation ofBarnes's Sixth Amendment rights warrants vacating his conviction. Coristine, 177 Wn.2d at 379 -80. "[ I]ftrial 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 Wn.2d at 380. 

### Here,the State did not arguethat givingthe affirmative defense instruction overBarnes' 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 courtviolated Barnes' s Sixth Amendment rightto control his own 

### defense by instructing thejury on an affirmative defense that Barnes did notwantto pursue. Because the State has failed to meet its burden ofproving this constitutional violation was not

844075 -0 -II



### harmless beyond a reasonable doubt,we reverse both ofBarnes' s second degree rape

and remand for a newtrial on those charges. B. ADMISSIBILITY OF SECRET RECORDINGS 

### Barnes argues that Russell' s secret recording oftheir conversations violated the Privacy Act, RCW 9.73.030, and therefore under RCW 9.73.050 the trial court erred in allowing thejury 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 ofthe 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 Thetrial court instructed thejuryonthe affirmative defense onlyfor count2, andthe State argued thatthe instruction applied onlyto count2. Butthe instruction's language was broad enoughthat itsterms necessarily appliedto both counts. Accordingly,we reverse on both counts.
944075 - 0 -II 

### Privacy Act exceptions and which portions are inadmissible. The appellant has the burden of providing an adequate record on appeal. State v. 

### Tracy, 158 Wn.2d 683, 691, 147 P.3d 559 2006); RAP 9.2(b). We need not search forthe applicable portions ofthe record in support ofa party' s argument. State v. Brousseau, 172 Wn.2d 331, 353, 259 P.3d 209 ( 2011); RAP 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 Wn.App. 250, 259, 277 P. 3d 9, review denied, 175 Wn.2d 1016, 287 P.3d 11 ( 2012). Here, because Barnes failed to designate which portions ofthe redacted version ofthe 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 ofthe redacted version ofthe 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 ofthose convictions based on ineffective assistance of counsel.

1044075 - 0 -II 

### 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 Wn.2d 17, 32 - 33, 246 P. 3d 1260 (2011). The defendant' s failure to show either element ends our 

### inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 ( 1996), 

### overruled on othergrounds by Careyv.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 Wn.2d at 33 Prejudice exists 

### ifthere is a reasonable probability that, except for counsel' s errors, the result ofthe proceeding would have been different. Grier, 171 Wn.2d at 34. 

### We review claims of ineffective assistance 

### ofcounsel de novo. State.v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). 

### Even assuming Barnes is correctthat defense counsel's performance was deficientfornot 

### objecting to the redacted version ofthe 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 Wn.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 Wn.2d 612, 621, 41 P. 3d 1189 (2002). 

### And atrial court has broad discretion in determining the admissibility ofevidence under these rules. State v. Dye, 178 Wn.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
1144075 -0 -I1



### 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 herwrist,supported by hertestimonythat 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 ofthe 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.

1244075 -0 -II

D. LESSER INCLUDED OFFENSE INSTRUCTION 

### The trial court instructed thejury on the crime ofsecond degree rape. Barnes argues that 

### the trial court erred in denying his request for ajury instruction on the lesser included offense of third degree rape. 

### We disagree, and hold that the trial court properly refused to instruct thejury on third degree rape. 

### A person is guilty ofthird degree rape if he or she engages in sexual intercourse with
another person without consent, " 

### and such lack of consentwas 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,thejury mayfind the defendant not guilty ofthe 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 ajury instruction on a lesser included offense if (1) 

### each ofthe elements ofthe 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. Workman, 90 Wn.2d 443, 447 - 48, 584 P.2d 382 ( 1978); see State v. Berlin, 133 Wn.2d 541, 546- 47, 947 P. 2d 700 ( 1997). The court must view the evidence in the light most favorable to the

1344075 - 0 -II party requesting the instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455 -56, 6 P.3d 1150 (2000). 

### We review de novo the legal prong ofa request forajury 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 Wn.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 

## disputesthefactual prong. Therefore,the question iswhetherthe evidence supports afinding 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 incidentthey had sexual contactto 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 afinding 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

1444075 - 0 -II 

## 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 inthe 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 ofrape in the third degree. E. SUFFICIENT EVIDENCE OF BURGLARY 

### Barnes also argues that the State failed to prove the elements offirst 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 notthen 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. ofAppellant at 22. He contends that there was no evidence that his presence was unlawful. We hold that the State presented sufficient evidence 

### offirst degree burglarywith 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 Wn.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 forhis entry onto the property on August 15, 

### andthejury convicted Barnes offirst degree burglarywith asexual 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, notAugust 19. 1544075 -041



### ofthe evidence in a criminal case, the court draws all reasonable inferences from the evidence . . in favor of the State and ... most strongly against the defendant. Kintz, 169 Wn.2d at 551 A 

### claim ofinsufficiency admits the truth ofthe State's evidence and all inferences that reasonably can be drawn therefrom. Kintz, 169 Wn.2d at 551 

### Beginning in earlyJuly2008, Johnson rented aroomto Barnes, but Barnes was unableto 

### 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 payrentforAugust,Johnson placed conditions on Barnes's entry onto theproperty.

Our analysis is whether, "

### viewing the evidence 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 Wn.2d at 551. 

### And we " deferto the trier offact on issues ofconflicting testimony, credibility of witnesses, and the persuasiveness ofthe evidence." State v. J.P., 

### 130 Wn.App. 887, 891 -92, 125 P.3d 215 ( 2005). 

### Thus, even ifBarnes' s testimony could support an alternate scenario in which 

### he lawfully entered Johnson's property,thejury had sufficient evidence to concludethat Johnson

1644075 - 0 -II 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 intentto commit a crime, one ofthe elements offirst 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 onthis evidence, arationaljury could find beyond areasonable 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 ofthe 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

1744075 - 0 -II record that Barnes violated a no-contact order against a former girlfriend, nor any evidence that 

### thejury heardthis information. Thus,we reject Barnes' s unfounded argument. Fourth, Barnes argues thatthe 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 

### objectto these statements attrial,therebyfailingto preserve the issue for appeal. State v. Embry, 171 Wn. 

### App. 714, 739, 287 P. 3d 648 ( 2012), review denied, 177 Wn.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 thatthetrial court erred in ruling 

### thatthe crimes offirst degree burglary and second degree rape constituted the same criminal 

### conductfor sentencing purposes. Because wevacate 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.

1844075 -0 -II



### A majority ofthe panel having determined that this opinion will not be printed in the Washington Appellate Reports butwill be filed for public record pursuant to RCW 2.06.040, it is

so ordered.

We concur:

19