IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

EASTON CHARLES YALLUP,

Appellant.

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No. 34925-0-III

PUBLISHED OPINION

KORSMO, J. — Easton Yallup appeals from his convictions at bench trial on two 

counts of first degree rape of a child. We affirm the convictions and remand to strike an 

award of restitution.

FACTS

This case revolved around allegations by M.V., 14 years old at trial, that Mr. 

Yallup had licked her vagina on multiple occasions when she was 10 and 11. After a late 

decision to waive jury trial, the matter proceeded to a bench trial in the Klickitat County 

Superior Court before the Honorable Brian Altman on October 5, 2016. 

Investigation revealed that Mr. Yallup lived with M.V. and her mother in three 

different locations in Goldendale. The child reported that incidents of sexual abuse 

FILED

MAY 10, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34925-0-III

State v. Yallup

2

occurred at all three locations. The prosecutor charged two counts of first degree child 

rape occurring between January 1, 2010, and December 31, 2013. At trial, M.V. testified 

that the first incidents of abuse occurred when she was 10 and finishing the fourth grade. 

The abuse ended shortly before her 12th birthday. Since she was born in August 2002,

and her fourth grade year ended in 2013, there was a comparatively narrow window (last 

16 months) of the charging period in which the offenses occurred.

At the conclusion of trial, Judge Altman explained his decision in detail:

[M.V.] who is now fourteen, testified that the Defendant had sexual 

intercourse with her as it’s defined in Washington law at least ten times she 

said and fewer than fifteen times during an approximate three year period. 

The incidents of intercourse ended . . . when her mother, [L.J.], finally 

kicked the Defendant out of the house where he had been staying off and on 

as her paramour for a period of a couple of years at least.

. . . . 

[Regarding] issues that reasonably go to doubt, the Court has to analyze 

those issues in the context of [M.V.]’s testimony. Thus, the three year old 

timeframe of the charging instrument is not dispositive. Victims this age 

subjected to multiple assaults rarely remember exact times and dates. 

Especially when, as in this case, at least initially, she couldn’t understand 

what was actually going on. . . .

My finding was that her entire story from her testimony here today, 

her interview, the reaction of the troubled alcoholic mother, Ms. [W]’s 

participation as a friend, all have a heft as a fact finder and determiner of 

credibility and feel and patina of the truth. I believed [M.V.]

The very graphic details of her narrative had those idiosyncratic 

details that ring of truth. An invented tail [sic] does not sound like this. 

She told it consistently without variation, without coercion, with 

embarrassment and reluctance, but she told it. In my view, she was 
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State v. Yallup

3

victimized by the Defendant consistently and repeatedly and the statutory 

elements of the crime have been proven beyond a reasonable doubt.

Report of Proceedings at 114-15.

A mandatory presentence investigation (PSI) was completed and sentencing 

occurred November 21, 2016. Included in the criminal history was a 1996 federal 

offense of Abusive Sexual Contact. Clerk’s Papers at 99. The court and PSI both 

calculated an offender score of 10 that included 3 points for the federal offense. No 

comparability analysis was conducted on the record. The court used the offender score of 

10 to impose a minimum term of 318 months. 

Mr. Yallup timely appealed to this court. Judge Altman retired the following 

month. The findings of fact required by CrR 6.1 had not been entered at that time. 

Counsel for Mr. Yallup filed the brief of appellant in early May 2017. Judge Altman 

filed findings of fact on August 24, 2017. The brief of respondent was filed the following 

day. A reply brief was timely filed. A panel of this court considered the matter without 

hearing argument.

ANALYSIS

The appeal raises four substantive issues: (1) whether the evidence supported the 

conviction for two counts within the charging period, (2) whether the untimely entry of 

findings prejudiced Mr. Yallup, (3) whether counsel performed ineffectively by failing to 

urge a comparability analysis of the federal conviction, and (4) whether the court erred in 
No. 34925-0-III

State v. Yallup

4

directing that restitution be made as a condition of community custody.1 We address 

those contentions in the order listed. 

Sufficiency of the Evidence

Appellant contends that because his victim could not identify the particular dates 

on which she was abused, it is unclear if both of the events occurred during the charging 

period. This issue is governed by longstanding precedent.

“Following a bench trial, appellate review is limited to determining whether 

substantial evidence supports the findings of fact and, if so, whether the findings support 

the conclusions of law.” State v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014) 

(citing State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005)). “‘Substantial 

evidence’ is evidence sufficient to persuade a fair-minded person of the truth of the 

asserted premise.” Id. at 106. In reviewing insufficiency claims, the appellant 

necessarily admits the truth of the State’s evidence and all reasonable inferences drawn 

therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Finally, this 

court must defer to the finder of fact in resolving conflicting evidence and credibility 

determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

 

1 Mr. Yallup also asks that we not impose appellate costs in the event the State 

substantially prevails. We leave that issue to our commissioner in the event costs are 

claimed. RAP 14.2.
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This approach applies the evidentiary sufficiency standard dictated by the 

Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 

307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Specifically, Jackson stated the 

test for evidentiary sufficiency under the federal constitution to be “whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. 

at 319. Washington promptly adopted this standard in State v. Green, 94 Wn.2d 216, 

221-22, 616 P.2d 628 (1980) (plurality); Id. at 235 (Utter, C.J., concurring); accord, State 

v. Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016). 

Under Jackson, the test is whether the trier of fact could find the element(s) 

proved. In the context of testimony of repetitive abuse overlapping a charging period, the 

case law also provides an answer to Mr. Yallup’s challenge. See generally, State v. 

Hayes, 81 Wn. App. 425, 914 P.2d 788 (1996). That answer is derived from two settled 

principles.

The first principle is that the charging period is more flexible than the mere time 

frame alleged in the information. When charging using “on or about” or similar 

language, the proof is not limited to the delineated time period. State v. Osborne, 39 

Wash. 548, 81 P. 1096 (1905); see Hayes, 81 Wn. App. at 432 n.12 (citing cases). Hayes

distilled the general rule: “where time is not a material element of the charged crime, the 

language ‘on or about’ is sufficient to admit proof of the act at any time within the statute 
No. 34925-0-III

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of limitations, so long as there is no defense of alibi.”2 81 Wn. App. at 432. Time is not 

an element of most sex offenses. Id. at 433, 437; State v. Cozza, 71 Wn. App. 252, 258-

59, 858 P.2d 270 (1993).3

The second principle involves the situation of the “resident child molester:” a 

person who has regular access and frequently abuses his victim, leading to a lack of 

specificity of timing for each offense. State v. Brown, 55 Wn. App. 738, 748-49, 780 

P.2d 880 (1989). In those cases, alibi or misidentification are not genuine defenses. Id. 

at 748. Rather, the true issue is credibility. Id.; Hayes, 81 Wn. App. at 433. Hayes

described the three factors that were needed to prove sex abuse based on “generic” 

testimony:

First, the alleged victim must describe the kind of act or acts with sufficient 

specificity to allow the trier of fact to determine what offense, if any, has 

been committed. Second, the alleged victim must describe the number of 

acts committed with sufficient certainty to support each of the counts 

alleged by the prosecution. Third, the alleged victim must be able to 

describe the general time period in which the acts occurred. The trier of 

fact must determine whether the testimony of the alleged victim is credible 

on these basic points.

Id. at 438.

 

2 The victim’s testimony placed the incidents between the spring of 2013 (end of 

fourth grade) and August 2014 (12th birthday), a period that extends nearly eight months 

past the end of the charging period and is within the statute of limitations period. 

3 The charging language here stated “on or between,” arguably a narrower 

construction than “on or about,” but appellant has presented no authority suggesting that 

Osborne does not remain good law in this context. 
No. 34925-0-III

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Hayes answers Mr. Yallup’s argument. As to the first element, M.V. described 

acts of sexual intercourse (committed with the tongue or by penetration with a finger)—

the essential component of a rape charge. She testified that these acts occurred more than 

10 times; only two counts were charged. Third, the victim provided specific testimony 

about location and age to adequately describe the time period when the acts occurred.4 

The Hayes factors are satisfied. More specificity from the victim was not 

required. Judge Altman applied the correct factors and was satisfied that two counts 

occurred within the charging period. The evidence supported that determination.

The evidence was sufficient.

Late Findings

Mr. Yallup next challenges the trial court’s entry of late findings, arguing that they 

were tailored to answer his appellate challenges. We are unhappy with both the late 

findings—a problem that seems to be increasing of late5—and the way they were 

 

4 Although the members of this panel appreciate the sensitivity with which young 

witnesses must be treated, particularly when dealing with the topic of sexual abuse, better 

questioning to tie down the time frame of events in light of the victim’s testimony, could 

have resolved this issue more readily. Whenever trial testimony might suggest that 

behavior occurred outside the charging period, clarification typically is in order. 

5 This is the third case assigned to the writing judge within the past six weeks in 

which necessary findings were missing, but the appellant did not seek this court’s 

assistance before filing his brief.
No. 34925-0-III

State v. Yallup

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addressed to this court. Ultimately, we conclude that Mr. Yallup has not established that 

the findings were tailored to prejudice his appeal.

Court rules and statutes mandate that trial courts enter written findings in several 

different circumstances, including bench trials in civil and criminal cases, along with 

specific findings required for termination trials, marriage dissolution proceedings, etc. 

Criminal rules mandating the entry of written findings include CrR 3.5, CrR 3.6, and CrR 

6.1(d). Although the obligation is placed on the trial judge to enter the findings, we 

recognize the near universal practice of delegating the drafting of findings to the 

prevailing party. 

Here, Judge Altman’s pending retirement (and desire to spend much of that time at 

sea) was well known, even to the bench of this court. Trial was held more than two 

months before his departure from the bench. In an ideal world, the findings necessitated 

by CrR 6.1(d) would have been entered at the time of sentencing when Judge Altman 

would be sitting in Goldendale and the parties would be present. When that did not 

occur, the prosecutor should have proceeded to bring the matter to the judge’s attention 

before his retirement and departure.

Some time prior to the filing of appellant’s brief, counsel for the appellant 

discovered that the findings mandated by CrR 6.1(d) were not present. Our record does 
No. 34925-0-III

State v. Yallup

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not reflect what efforts, if any, the parties made to resolve that situation.6 This court’s 

records carry no indication that either party brought it to the attention to our clerk of court 

or our commissioner’s office. Instead, appellant filed a brief and attempted to use the 

absence of findings for his own benefit. Respondent made efforts to get the findings 

entered and delayed its own briefing to accomplish that fact. Appellant filed a reply brief 

challenging the findings.

This process ultimately served no one. The purpose of findings of fact is to 

facilitate review. State v. Head, 136 Wn.2d 619, 621-22, 964 P.2d 1187 (1998). Instead, 

our focus here was turned to the process by which the findings were created rather than 

the merits of the findings. Accordingly, and with the knowledge that this is not the only 

recent case where similar events occurred, we set forth how the parties should have 

behaved.

The initial failure is with the respondent.7 The prevailing party must make efforts 

to get findings entered in a manner that facilitates timely review of an appeal. Although 

the ultimate responsibility rests with a trial judge, the reality is that the prevailing party 

 

6 Although not in our record, both parties acknowledge in their briefing that 

appellant’s counsel contacted the prosecutor about the problem and that he then began an 

effort to obtain defense trial counsel’s agreement with the proposed findings while the 

court clerk attempted to locate Judge Altman in transitu. We commend counsel for her 

professionalism in starting efforts to resolve the problem in an informal manner.

7 We know that sometimes other actors—judges, court clerks, trial counsel—may 

be the cause of delay, but that is not what happened here. 
No. 34925-0-III

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has the most at risk and should make sure that a busy trial judge is presented with the 

opportunity to enter appropriate findings in a timely manner.

When that initial responsibility is not met, the appellant should, as counsel did 

here, make best efforts to alert respondent that action is needed.8 Basic principles of 

civility and professionalism dictate that all counsel should attempt to resolve problems 

before they grow into bigger issues. If informal methods fail, then appellant should enlist 

this court’s assistance. Notification that required findings are missing and an indication 

that a continuance of the briefing obligation is necessary would be one way to approach 

the problem. Another would be to file a motion to compel entry of findings. In either 

instance, notifying this court and obtaining its assistance should lead to a timely 

resolution of the finding issue so that counsel can obtain the necessary record to address 

the client’s case.9 This approach should lead to a speedier consideration of the case than 

attempting to address the issue by the briefing process.

However, that did not happen here, so we must consider the issue of the late 

findings. Mr. Yallup argues that the late findings were tailored to address his appeal. 

 

8 Counsel also may learn that the findings process already is underway simply by 

speaking to the other side.

9 Counsel for appellant has an obligation to review the record and determine 

whether meritorious issues exist for appeal. That obligation cannot be met without 

having an adequate record for review that includes findings required by our rules and 

statutes. It usually will not serve the client’s best interests to file a brief with an 

inadequate understanding of the record. 
No. 34925-0-III

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They were not. The written findings address exactly what would be expected from a 

bench trial and are not an expansion of Judge Altman’s oral ruling. There is no mention 

of the issue actually raised by appellant’s brief—whether the testimony placed the two 

counts within the charging period or not. The findings do not address the issue. Instead, 

the findings simply reflect that the two events occurred within the charging period rather 

than within the specific period described by the testimony.

The findings were not tailored. This argument is without merit.

Ineffective Assistance of Counsel

Mr. Yallup next argues that trial counsel was ineffective by failing to demand a 

comparability analysis. On this record, he cannot establish he was harmed by his 

attorney’s alleged failure to act.10

Well settled standards govern review of this contention. An attorney must 

perform to the standards of the profession; counsel’s failure to live up to those standards 

will require a new trial when the client has been prejudiced by the attorney’s failure. 

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). In evaluating 

ineffectiveness claims, courts must be highly deferential to counsel’s decisions. A 

 

10 Respondent alleges in its briefing that defense counsel was shown a copy of the 

documents and decided not to challenge use of the federal conviction. Appellant rightly 

argues that this information is not part of the record and cannot be used on appeal. We 

agree and decline to consider the information. The trial prosecutor should have noted the 

agreement on the record at sentencing and/or encouraged defense counsel to either agree 

with the calculation or express any concerns that might have existed. 
No. 34925-0-III

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strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 

466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim of 

ineffective assistance, the defendant must show both that his counsel erred and that the 

error was so significant, in light of the entire trial record, that it deprived him of a fair 

trial. Id. at 690-92. When a claim can be disposed of on one of the Strickland prongs, a 

reviewing court need not consider both prongs. Id. at 697; State v. Foster, 140 Wn. App. 

266, 273, 166 P.3d 726 (2007). 

When considering a conviction from another jurisdiction, Washington courts will 

compare the foreign offense with Washington offenses in order to properly classify the 

crime. RCW 9.94A.525(3). Here, Mr. Yallup was convicted of “abusive sexual contact.” 

18 U.S.C. § 2244. That is an umbrella statute covering aggravated sexual abuse of adults 

and children, general sexual abuse, and sexual abuse of minors or wards. 18 U.S.C. §§ 

2241-43. 

We need only address the prejudice question.11 Typically, when counsel is alleged 

to have failed to file an appropriate motion or lodge a proper objection, a defendant must 

establish that he would have prevailed in the trial court in order to show that he was 

 

11 Given the serious nature of most of the federal crimes listed under the “abusive 

sexual contact” label, it is conceivable that counsel would not challenge the classification 

lest the facts reveal that Mr. Yallup’s federal offense was one that would qualify him as a 

persistent offender under the “two strikes” statute applied to sex offenders. RCW 

9.94A.030(38)(b). As explained above, we simply do not have enough information to 

know whether counsel made a strategic choice or not.
No. 34925-0-III

State v. Yallup 

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prejudiced by counsel’s failure to act. McFarland, 127 Wn.2d at 333-34. Mr. Yallup 

cannot meet that burden in this appeal because the necessary evidence is not in the 

record. Without having the federal court information, it is not possible to determine 

whether the trial court (and the PSI writer) incorrectly classified the offense.12 Without 

establishing prejudice, Mr. Yallup cannot show that his counsel performed ineffectively. 

Id. 

Mr. Yallup has not established ineffective assistance of counsel. Because any 

showing of error requires a better record than we have here, his remedy is to bring a 

personal restraint petition (PRP) wherein he can marshal his evidence and argument. 

E.g., McFarland, 127 Wn.2d at 338 n.5; State v. Norman, 61 Wn. App. 16, 27-28, 808

P.2d 1159 (1991).

13

The allegation of ineffective assistance is, on this record, without merit.

Restitution Award 

The final argument we address is Mr. Yallup’s contention that the court erred in 

ordering restitution as a condition of his community custody. The State concedes that the 

12 Compare, State v. Thiefault, 160 Wn.2d 409, 158 P.3d 580 (2007). There, 

defense counsel performed deficiently when he failed to object to the trial court’s 

incorrect comparability analysis. Since the trial court’s legal analysis was incorrect and 

resulted in a persistent offender finding, the prejudice to Mr. Thiefault was clear; the 

matter was remanded for another comparability analysis. Id. at 417. 

13 Mr. Yallup is cautioned to carefully review his evidence and the law before 

bringing a PRP lest a new sentencing hearing worsen his position. See footnote 11. 
No. 34925-0-111 

State v. Yallup 

restitution order should be stricken because no restitution was ordered within the six 

month period dictated by the statutes. We accept the concession and direct that the 

restitution order be stricken. 

Affirmed and remanded to strike. 

WE CONCUR: 

Pennell, A.CJ. 

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