IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

CHARLES WILLIAM KUNEKI,

Appellant.

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No. 34174-7-III

UNPUBLISHED OPINION

SIDDOWAY, J. — While serving time in the Klickitat County Jail, Charles Kuneki 

was accused by a cellmate of twice raping him late at night, with accompanying threats to 

kill if the cellmate did not submit. Mr. Kuneki admitted to intercourse with his cellmate, 

but claimed it was consensual. The State filed twin sets of first degree rape and felony 

harassment charges against him for the two alleged events. Following a jury trial, Mr. 

Kuneki was acquitted of the charges related to the first alleged event but was found guilty 

of the charges related to the second.

FILED

FEBRUARY 13, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34174-7-III

State v. Kuneki

2

On appeal, he contends (1) the trial court improperly admitted forensic testimony 

over valid hearsay and confrontation clause objections, (2) the two convictions violated 

double jeopardy, (3) the trial court failed to give a “true threat” instruction, violating his 

rights under the First Amendment to the United States Constitution, and (4) his trial 

lawyer provided ineffective assistance of counsel when he failed to argue the two 

convictions were the same criminal conduct for sentencing purposes. 

Because the State relied on the same evidence to prove the elements of first degree 

rape and the elements of felony harassment, double jeopardy applies. We vacate the 

conviction for felony harassment, rendering moot the other assignments of error relating 

to that conviction. We affirm the conviction for first degree rape.

FACTS AND PROCEDURAL BACKGROUND

One morning in August 2014 corrections officer Gloria Rosales was distributing 

inmate medications in the Klickitat County Jail when inmate R.M.1 whispered that he 

wanted to speak with her. He was red-eyed, “like he’d been either crying or hadn’t got 

any sleep.” Verbatim Transcript of Proceedings (VTP) at 327. She took him to the 

booking room to talk but he started sobbing and was unable to speak. Another 

corrections officer, Andrew Gonzalez, took R.M. to a more private area, where R.M. told 

the officer that he had been raped by his cellmate, Charles Kuneki. 

 

1 We use the initials of the victim, R.M., to protect his privacy.
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Sheriff’s Deputy Randy Wells was called in to investigate and took R.M. to the 

hospital for a sexual assault examination. Under the supervision of an emergency room 

physician, a nurse took oral and rectal swabs. Together with blood, urine, and pubic hair 

samples, the swabs were sealed in a sexual assault evidence collection kit and given to 

Deputy Wells. Once back at the jail, R.M. provided the deputy with a written statement 

describing the rapes.

Mr. Kuneki was charged with two counts of first degree rape and two counts of 

felony harassment (threats to kill). A search warrant was obtained to take a DNA2

sample from Mr. Kuneki. That, and R.M.’s sexual assault kit were forwarded to the 

Washington State Patrol Crime Laboratory. The lab determined that the DNA result from 

the anal swab of R.M. taken at the emergency room was a mixture of two individuals,

and that the DNA profile from the nonsperm fraction of the anal swab matched R.M.’s

DNA profile, while the DNA profile from the sperm fraction of the anal swab matched 

Mr. Kuneki. 

At Mr. Kuneki’s trial, the prosecutor told jurors in his opening statement, “We 

know that there was sexual intercourse. And the only issue is consent.” VTP at 199. Mr. 

Kuneki’s lawyer delivered his opening statement immediately thereafter, agreeing there 

was sexual intercourse and “it is a question of whether or not there was consent.” Id. 

 

2 Deoxyribonucleic acid.
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The defense lawyer reminded jurors that “as we discussed in selecting you as jurors,” a

homosexual act in and of itself is not a crime.

3

Id. at 206-07.

R.M. and Mr. Kuneki testified at trial to their different versions of their

relationship and the nights of the alleged rapes. R.M. testified that on the first occasion, 

after accusing R.M. of having used his toothpaste, which R.M. denied, Mr. Kuneki

grabbed a pencil, moved to where R.M. was lying on the bed, and told R.M. to be quiet—

that if R.M. yelled, or screamed, or pushed a call button on the wall he would kill him. 

Holding the pencil to R.M.’s neck, he then pulled down R.M.’s pants and underwear to 

his knees. Repeating his threat to kill if R.M. made a sound, made R.M. raise his feet in 

the air (R.M. was on his back) and raped him anally for between 30 to 45 minutes.

R.M. testified that the next day, Mr. Kuneki followed him everywhere, making it 

impossible for R.M. to tell anyone what had happened. That night, he was sleeping on 

his stomach when, sometime between lockdown and midnight or 1:00 a.m., he awoke to 

find that Mr. Kuneki was on top of him, again armed with the pencil that he held to 

R.M.’s neck. According to R.M., he said to Mr. Kuneki, “Don’t do this again,” but Mr. 

Kuneki told him to shut up, penetrated his anus with his penis, and again raped R.M. for 

 

3 This portion of the opening statement is reported by the verbatim transcript of 

proceedings as partially inaudible, but based on what was discussed during jury selection, 

we are confident of this substance of the opening statement. See, e.g., jury selection at 

Verbatim Transcript of Proceedings at 183 (obtaining juror agreement that if the sex is 

consensual, it is not rape, and that homosexual activity is not a crime). 
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30 to 45 minutes. VTP at 243. R.M. testified that Mr. Kuneki again threatened that if 

R.M. said anything or pushed the call button he would kill him.

In the defense case, Mr. Kuneki testified there had been a single instance of 

consensual sex. According to him, R.M. was openly gay and would grab at Mr. Kuneki’s

and other inmates butts during basketball games. Mr. Kuneki said he jokingly made

comments like “[y]ou want that” after R.M. would grab at him. Id. at 463. 

Mr. Kuneki stated that he and R.M. became “pretty close.” Id. at 461. The men

expected R.M. to be released before Mr. Kuneki, who was looking at prison time, and 

Mr. Kuneki told R.M. that when released, he could live in Mr. Kuneki’s trailer free of 

charge in exchange for watching his place and his dogs and cashing checks Mr. Kuneki 

received from his tribe. Mr. Kuneki also said that when he was released, he would give 

R.M. a job. Eventually, following a proposition by R.M., Mr. Kuneki said they engaged 

in five minutes of consensual anal sex one Saturday morning around 1:00 a.m. Mr. 

Kuneki denied threatening R.M. in any way. 

Mr. Kuneki said that it was after the two had an argument later that Saturday and 

Mr. Kuneki withdrew his offer of housing that R.M. made the rape allegations. 

In the State’s case, it called Heather Pyles, a forensic DNA analyst with the state 

patrol crime lab, to provide further evidence of the anal intercourse. Before she testified, 

and outside of the hearing of the jury, the trial judge asked, “[W]hy do we need all the 

forensic evidence[?]” observing “this is a consent case.” Id. at 216. The prosecutor 
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stated that beyond the testimony of R.M. and the forensic evidence, the only evidence 

that intercourse occurred would be the possible testimony of Mr. Kuneki, and “there’s 

nothing to guarantee Mr. Kuneki’s going to testify.” Id. at 217. He also told the court 

that the forensic evidence “should go really quickly.” Id. at 218. 

Ms. Pyles testified to the crime lab’s analysis of a sexual assault kit reportedly 

collected from R.M. and an oral swab reportedly collected from Mr. Kuneki, which the 

lab had determined to be a match for sperm in R.M.’s anal swab. After first describing 

the DNA analysis process, she was asked “who did the initial testing” of evidence in Mr. 

Kuneki’s case and answered it had been Wendy Cashawbara, who was no longer 

employed by the state patrol. Id. at 309.

When Ms. Pyle began to testify to the results of the lab’s analysis, the defense 

lodged a hearsay objection. The objection was overruled but the State still elicited 

clarifying testimony from Ms. Pyles that although Ms. Cashawbara did the analysis, Ms. 

Pyles did the “technical review” of Ms. Cashawbara’s report, which she testified is 

standard laboratory procedure: 

[A]s part of the process of completing a case, every case goes through a 

process called technical review. . . . [W]hat that means is . . . that I looked 

over all of the case file that she created, looked over all of her notes, and I 

compared that with our standard operating procedures and verified that 

everything that [Ms. Cashawbara] did was within our operating procedures, 

that it was technically sound and scientifically relevant, and that I agreed 

with her conclusions based on my review of her notes as well as the 

electronic data.
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Id. at 311-12 (emphasis added). 

The trial court overruled a second defense objection that Ms. Pyles “didn’t do the 

testing,” Id. at 312, and heard a few more complaints from defense counsel about the 

testimony. It allowed Ms. Pyles to testify to the lab’s test result detecting semen in the 

anal swab taken from R.M., her conclusion that the profile from the sperm fraction of that

anal swab matched Mr. Kuneki’s DNA profile, and her calculation that the odds of some 

other individual having a DNA profile that would match the sperm fraction profile was 

one in 160 quadrillion.

The jury acquitted Mr. Kuneki of the first set of rape and harassment charges, but 

convicted him of the second set. It returned a special verdict stating that it had been 

unable to agree whether Mr. Kuneki was armed with a deadly weapon during the rape.

The trial court calculated Mr. Kuneki’s offender score as a nine for the rape and an 

eight for the felony harassment. It sentenced Mr. Kuneki to the high end of the standard 

range on both counts, with the sentences to run concurrently. Mr. Kuneki appeals. 

ANALYSIS

Of the five assignments of error made by Mr. Kuneki, three prove dispositive. 

Given the State’s evidence and argument at trial, we accept its concession that Mr. 

Kuneki’s Fifth Amendment right to be free of double jeopardy was violated by entering 

judgment convicting him of both felony harassment and first degree rape. We vacate the 

felony harassment conviction.
No. 34174-7-III

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As to the remaining conviction of first degree rape, we reject Mr. Kuneki’s 

arguments that the trial court erroneously overruled his hearsay and confrontation clause 

objections. Alternatively, we would find any error harmless.

We address the issues in the order stated.

Double jeopardy

Mr. Kuneki argues that his double jeopardy right was violated when he was 

punished for both first degree rape and felony harassment. The State conceded the 

double jeopardy violation in its brief without elaboration At oral argument, we 

questioned whether we should accept the State’s concession. The State’s counsel on 

appeal, who also represented the State at trial, explained that its concession was based on 

the factual basis for the rape charge. E.g., Wash. Court of Appeals oral argument, State 

v. Kuneki, No. 34174-7-III (Oct. 18, 2017), at 13 min., 41 sec. to 14 min., 10 sec.4

The federal and state double jeopardy clauses protect against multiple punishments 

for the same offense. U.S. CONST. amend. V; WASH. CONST. art. I, § 9; State v. Gocken, 

127 Wn.2d 95, 100, 896 P.2d 1267 (1995). “Within constitutional constraints, the 

legislative branch has the power to define criminal conduct and assign punishment,” so 

“the question whether punishments imposed by a court, following conviction upon 

criminal charges, are unconstitutionally multiple cannot be resolved without determining 

 

4 Available at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets

/index.cfm?fa=appellateDockets.showDateList&courtId=a03&archive=y.
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what punishments the legislative branch has authorized.” State v. Calle, 125 Wn.2d 769, 

776, 888 P.2d 155 (1995). Appellate courts review claims of double jeopardy de novo. 

State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006).

The Washington Supreme Court has identified several steps to be taken in making 

the determination of what punishments the legislative branch has authorized. The first is 

to see whether the legislature expressed its intent in the criminal statute. A paradigm is

the express provision that a burglary shall be punished separately from other crimes 

committed during commission of the burglary. State v. Freeman, 153 Wn.2d 765, 772, 

108 P.3d 753 (2005) (citing RCW 9A.52.050). In this case, neither RCW 9A.44.040(1), 

which identifies when a person is guilty of the crime of rape in the first degree, nor RCW 

9A.46.020(1), which identifies when a person is guilty of felony harassment, expressly 

authorize multiple punishment.

If the legislative intent is not clear, we may apply what Washington courts have 

called a “‘same evidence’” or Blockburger5test, as rules of statutory construction for

discerning legislative purpose. Calle, 125 Wn.2d at 778; Freeman, 153 Wn.2d at 772. 

Under the test, “If each crime contains an element that the other does not, we presume 

that the crimes are not the same offense for double jeopardy purposes.” Id. In applying 

 

5 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
No. 34174-7-III

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the test, we do not compare the statutory elements of each crime at their most abstract 

level; rather, “‘where the same act or transaction constitutes a violation of two distinct 

statutory provisions, the test to be applied to determine whether there are two offenses or 

only one, is whether each provision requires proof of a fact which the other does not.’” 

In re Pers. Restraint of Orange, 152 Wn.2d 795, 817, 100 P.3d 291 (emphasis omitted) 

(quoting Blockburger, 284 U.S. at 304). Accordingly, a generic term that acquires 

meaning only from the facts of the case must be given its factual definition in order to 

assess whether one crime requires proof of a fact not required to prove the other. Id. at 

818. 

RCW 9A.44.040(1)(a) provides that “[a] person is guilty of rape in the first degree 

when such person engages in sexual intercourse with another person by forcible 

compulsion where the perpetrator . . . [u]ses or threatens to use a deadly weapon or what 

appears to be a deadly weapon.” The “forcible compulsion” element acquires meaning 

only from the facts of the case. “‘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 [oneself] or another person.” RCW 9A.44.010(6) (emphasis added). 

The State agreed at oral argument that in Mr. Kuneki’s case, the type of forcible 

compulsion relied on was not “physical force which overcomes resistance,” but was

instead a threat that placed R.M. in fear of death or physical injury. This is borne out by 

the record. See VTP at 533, 535 (State’s closing argument).
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RCW 9A.46.020(1)(a) provides in relevant part that “[a] person is guilty of 

harassment if: . . . Without lawful authority, the person knowingly threatens: (i) To cause 

bodily injury immediately or in the future to the person threatened or to any other person; 

. . . [and] (b) The person by words or conduct places the person threatened in reasonable 

fear that the threat will be carried out.” Applying the Blockburger test at the concrete (as 

opposed to abstract) level, first degree rape includes an element that felony harassment 

does not: sexual intercourse. But felony harassment includes only elements that are 

elements of first degree rape as applied in Mr. Kuneki’s case: a threat and resulting fear. 

Application of the Blockburger test supports the finding of a double jeopardy violation.

Although the result of the Blockburger test is presumed to be the legislature’s 

intent, it is not controlling if there is clear evidence of contrary legislative intent. 

Freeman, 153 Wn.2d at 777.6 Neither party suggests nor do we find that other evidence 

of legislative intent supports a conclusion that the legislature intended multiple 

 

6

In State v. Eaton, 82 Wn. App. 723, 919 P.2d 116 (1996), reversed on other 

grounds by State v. Frohs, 83 Wn. App. 803, 811 n.2, 924 P.2d 384 (1996), this court 

held that a defendant’s convictions of both first degree rape and felony harassment did 

not violate double jeopardy. But in that case, the dispute was over whether the merger 

doctrine applied and this court correctly held that it did not. The merger doctrine is an 

additional tool for determining legislative intent. Under Calle’s approach, it is applied 

after the Blockburger test. We assume the Blockburger test was not urged as a basis for 

finding a double jeopardy violation in Eaton because in that case the acts constituting 

felony harassment were alleged and proved to continue after the rape.
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punishments for the crimes with which Mr. Kuneki was charged. Because conviction of 

both crimes violates double jeopardy, we vacate the conviction for felony harassment.7

Hearsay and confrontation clause objections

Mr. Kuneki assigns error to the admission of Ms. Pyles’s testimony, arguing it was 

hearsay and violated his confrontation right. We first consider whether a confrontation 

clause objection was made or was waived. 

Any challenge under the confrontation clause was waived

Before error can be predicated on a ruling that admits evidence, an objection 

“stating the specific ground of [the] objection, if the specific ground was not apparent 

from the context” must be made. ER 103(a)(1). Mr. Kuneki’s lawyer stated a specific 

ground for objection only once, and the ground was hearsay:

Q You did not do the tests.

A That is correct.

Q So you’re going to be testifying as to Wendy’s document.

A As to her report, yes.

[DEFENSE COUNSEL]: Now, I’m going to object that it’s going to be 

hearsay.

THE COURT: Overruled. Please proceed.

VTP at 311.

 

7 The finding of a double jeopardy violation renders moot Mr. Kuneki’s 

assignments of error to the trial court’s failure to give a “true threat” instruction and his 

claim that counsel was ineffective for failing to argue same criminal conduct at 

sentencing.
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Shortly thereafter, he objected without stating a specific ground for objection, but 

only that Ms. Pyles “didn’t do the testing”:

A . . . I looked over all of the case file that she created, looked over all of 

her notes, and I compared that with our standard operating procedures 

and verified that everything that Wendy did was within our operating 

procedures, that it was technically sound and scientifically relevant, and 

that I agreed with her conclusions based on my review of her notes as 

well as the electronic data.

[DEFENSE COUNSEL]: Your Honor, I’m going to object because she 

didn’t do the testing. And—she doesn’t—

THE COURT: She—

[DEFENSE COUNSEL]: —testify.

THE COURT: She agrees she did not do the testing so she’s responding as 

an expert in this field to a report [a] colleague of her[s] produced.

[DEFENSE COUNSEL]: Yeah. So,—

Q —you—you have reviewed?

A Yes. I have reviewed the data and independently came to the same 

conclusions as [Ms. Cashawbara] did.

[DEFENSE COUNSEL]: Yeah. I’m still going to object. She didn’t do 

the testing.

VTP at 312. If Mr. Kuneki’s lawyer had a confrontation clause challenge in mind, he 

never stated it. The words “confrontation” or “Sixth Amendment” were never used. It 

was also not apparent from the context. The trial court could reasonably understand 

defense counsel to be repeating his hearsay objection. It evidently did, since the court’s 

ruling (“she’s responding as an expert in this field to a report [a] colleague of her[s] 

produced”) was implicitly based on ER 703 and/or 705, which would apply to a hearsay 

objection but not to a challenge under the confrontation clause. 
No. 34174-7-III

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Mr. Kuneki argues that a confrontation clause violation is a manifest constitutional 

error that can be raised for the first time on appeal under RAP 2.5(a)(3). But we never 

reach that rule because the defendant’s obligation to assert the right to confrontation at 

or before trial is more fundamental—it “is part and parcel of the confrontation right 

itself. . . . When a defendant’s confrontation right is not timely asserted, it is lost.” State 

v. O’Cain, 169 Wn. App. 228, 240, 279 P.3d 926 (2012) (citing Melendez-Diaz v. 

Massachusetts, 557 U.S. 305, 326, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)).

We also point out that a further consequence of defense counsel not making a 

confrontation clause challenge is that the record is not well-developed on which steps of 

the analysis Ms. Pyles repeated independently. At the time of trial, Ms. Pyles had been 

performing DNA analysis for nine years, and was competent to perform and explain it to 

jurors. Mr. Kuneki bases his argument on appeal to Ms. Pyle’s statements that she did 

not do “the testing,” but Ms. Pyles’s testimony also includes a number of statements that 

she performed an independent analysis. E.g., VTP at 312 (“I agreed with her 

conclusions” and “I have reviewed the data and independently came to the same 

conclusions”), 313 (Pyles was “able to develop DNA profiles”), 317 (“I did do a 

statistical estimate” for the profile from the sperm fraction.). As far as we can tell from 

the record, Ms. Pyle’s involvement is indistinguishable from the testifying DNA analyst

in State v. Lui, 179 Wn.2d 457, 489, 315 P.3d 493 (2014), aff’d, 188 Wn.2d 525, 397 

P.3d 90 (2017), whose testimony did not violate the confrontation clause. That analyst 
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was held to be sufficiently involved to “produce her own analysis, ‘an original product 

that can be tested through cross-examination.’” Id. (quoting United States v. Johnson,

587 F.3d 625, 635 (4th Cir. 2009)). 

She reviewed the results of the control samples, she reviewed the testing 

procedures, and she reviewed her subordinate analysts’ results at each step 

in the process. She was ‘a supervisor, reviewer, or someone else with a 

personal, albeit limited, connection to the scientific test at issue.’ 

Bullcoming [v. New Mexico], [564 U.S. 647, 672,] 131 S. Ct. [2705, 180 L. 

Ed. 2d 610 (2011)] (Sotomayor, J., concurring).

Id. at 490-91. Mr. Kuneki cannot demonstrate from the record developed that Ms. Pyles 

could not be cross-examined about how she arrived at her interpretation and conclusions. 

That is all that the confrontation clause requires. Id. at 491.

Hearsay

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at 

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 

801(c). We can infer from the trial court’s ruling that it overruled Mr. Kuneki’s objection 

based on ER 703 and/or 705. ER 703 permits an expert to base her opinion on facts that 

are not otherwise admissible if they are of a type reasonably relied on by experts in the 

particular field. ER 705 grants the trial court discretion to allow an expert to relate 

hearsay or otherwise inadmissible evidence to the trier of fact to explain the reasons for 

her expert opinion. While we review many evidentiary decisions for manifest abuse of 
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discretion, we review whether or not a statement was hearsay de novo. State v. Hudlow, 

182 Wn. App. 266, 281, 331 P.3d 90 (2014).

Mr. Kuneki points to the distinction between the expert’s right to base an opinion

on otherwise inadmissible facts and whether the expert should be allowed to tell jurors

about those inadmissible facts. Notably, the most significant facts on which Ms. Pyles 

based her opinion were the testing results, which would probably have been admissible as 

business records under RCW 5.45.020,8although we recognize that the State did not 

attempt to offer the records themselves.

As to facts that were otherwise inadmissible, ER 705 grants the trial court 

discretion to allow an expert to relate hearsay or otherwise inadmissible evidence to the 

trier of fact to explain the reasons for her expert opinion. Mr. Kuneki does not 

demonstrate an abuse of discretion. For otherwise inadmissible facts that Ms. Pyles

related under this rule, Mr. Kuneki was entitled to a limiting instruction if requested. ER 

105 (providing that court “upon request” shall restrict the evidence to its proper scope 

and instruct the jury accordingly); State v. Lui, 153 Wn. App. 304, 323 and n.20, 221 

 

8 RCW 5.45.020 provides: “A record of an act, condition or event, shall in so far 

as relevant, be competent evidence if the custodian or other qualified witness testifies to 

its identity and the mode of its preparation, and if it was made in the regular course of 

business, at or near the time of the act, condition or event, and if, in the opinion of the 

court, the sources of information, method and time of preparation were such as to justify 

its admission.”
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P.3d 948 (2009), aff’d, 188 Wn.2d 525, 397 P.3d 90 (2017). He did not request a limiting 

instruction, however. 

Finally, if the evidence had been admitted in error, it was harmless. An erroneous 

evidentiary ruling “is not prejudicial unless, within reasonable probabilities, the outcome 

of the trial would have been materially affected had the error not occurred.” State v. 

Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). It was uncontested that Mr. Kuneki 

engaged in anal intercourse with R.M. Ms. Pyles’s opinion that the odds were one in 160 

quadrillion that someone other than Mr. Kuneki would match the sperm fraction profile 

was irrelevant. Her testimony did not shed light on the disputed issues of whether 

intercourse took place once or twice, or whether it was consensual or not. 

Mr. Kuneki argues that he was prejudiced because only Ms. Pyles provided 

evidence of “Mr. Kuneki’s ‘semen in the rectum of the alleged victim,’” which he 

contends would have been “inflammatory” for jurors. Br. of Appellant at 21. But Mr. 

Kuneki never objected to Ms. Pyles’s testimony on ER 403 grounds. And we disagree 

that Ms. Pyle’s necessary references to “sperm,” “semen,” “anus” and “rectum” would 

have discomfited jurors any more than the testimony of R.M., or Mr. Kuneki, or the 

emergency room physician.
No. 34174-7-III 

State v. Kuneki 

We vacate the conviction for felony harassment and remand to the superior court 

for any further proceedings consistent with our disposition. 9 

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. 

WE CONCUR: 

j 

9 Mr. Kuneki asked that we exercise discretion to not impose appellate costs if the 

State substantially prevailed. Since it has not, his request is moot. 

18