FILED 


SEPTEMBER 15,2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 29033-6-III 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

CLAYTON GENE STAFFORD, ) 


) 


Appellant. ) 


LAWRENCE-BERREY, J. -Ajury convicted Clayton Gene Stafford of aggravated 

first degree murder. On appeal, he contends (1) the trial court erred in not suppressing his 

statements made during police interrogation because he did not waive his right to have an 

attorney present, (2) the Sixth Amendment confrontation clause was violated when the 

court allowed DNA1 expert testimony from a witness who was not the person who tested 

the evidence, (3) the court abused its discretion in allowing irrelevant and unfairly 

prejudicial testimony ofa witness, (4) the State failed to prove the essential elements of 

aggravated first degree murder, and (5) the jury was erroneously instructed that it had to 

1 Deoxyribonucleic acid. 
No. 29033-6-II1 

State v. Stafford 

be unanimous to answer "no" to the special verdict. We disagree with his contentions and 

affinn. 

FACTS 

On June 12, 1993, Shawna Yandell and her boyfriend, Travis Sinden, wentto 

Sportsman's Park by the Yakima River. While they were there, Mr. Sinden passed out in 

the public restroom after drinking too much. Ms. Yandell awakened Mr. Sinden because 

she was cold, tired, and wanted to go home. Around midnight, the couple tried to get a 

ride from the park ranger, but the ranger refused. The couple was staying with Mr. 

Sinden's relatives, the Wilkeys, and Mr. Sinden called them for a ride. Members ofthe 

Wilkey family told Mr. Sinden that they would not pick him up, primarily because ofthe 

late hour. 

Unable to secure a ride, Mr. Sinden went back into the restroom and fell asleep. 

He awoke while it still was dark. Ms. Yandell was gone. He yelled for her but could not 

find her. He began walking back to the Wilkeys, thinking that Ms. Yandell may have 

done the same. 

Ms. Yandell was not at the Wilkeys. Mr. Sinden was worried and went back to the 

park to search for her. He did not find her, so he went back to the Wilkeys' house and 

waited. Eventually, Mr. Sinden called the police and reported her missing. 

2 

No. 29033-6-III 

State v. Stafford 

Meanwhile, a group ofBoy Scouts on a canoe trip found Ms. Yandell's body in the 

Yakima River. The location was about two and one-half miles upstream from 

Sportsman's Park. Ms. Yandell's body was nude, except for a black bra pushed up over 

her shoulders. Officers responded and observed that Ms. Yandell's scalp was open. A 

search was conducted ofthe area but no additional evidence was found. 

Dr. Norman Thiersch, a medical pathologist, conducted an autopsy the following 

day and determined that the cause of Ms. Yandell's death was a blow to her head by a 

blunt object. There were also signs ofstrangulation. Dr. Thiersch swabbed Ms. 

Yandell's mouth, anus, and vagina. Dr. Thiersch found spermatozoa on the vaginal 

swabs. 

Ms. Yandell's homicide remained unresolved for over 15 years. In 2008, the 

Yakima police had the swabs further tested. Spermatozoa were found on both the vaginal 

swab and the oral swab. A DNA analysis ofthe spermatozoa was completed and the 

results were entered into CODIS.2 On May 20,2009, a match was discovered between 

the DNA found on Ms. Yandell's body and a DNA profile in CaDIS. Further testing 

confirmed that the DNA matched Mr. Stafford. 

2 Combined DNA Index System. 

3 

No. 29033-6-II1 

State v. Stafford 

Yakima County officers went to Mr. Stafford's home in Yakima, handcuffed him, 

took him to police headquarters, and interrogated him. Yakima County charged Mr. 

Stafford with Ms. Yandell's homicide on May 26, 2009. Later, and by amended 

information, the State charged Mr. Stafford with aggravated first degree murder and first 

degree rape ofMs. Yandell. 

Prior to trial, Mr. Stafford moved to suppress his statements made during the 

interrogation, claiming that officers ignored his request for counsel. A CrR 3.5 hearing 

was held to determine the admissibility ofMr. Stafford's statements. The recording of 

the interrogation was played at the hearing. The first mention ofthe right to counsel came 

at the very beginning ofthe interview. Yakima Police Lieutenant Noland Wentz handed 

Mr. Stafford a list ofrights and asked him to follow along. In going over the list, 

Lieutenant Wentz asked, "Do you understand that this statement is being recorded?" 

Report ofProceedings (RP) at 43. Mr. Stafford responded, "Yes, I (inaudible) hear that. 

And I understand that I should have an attorney present most, pretty soon." RP at 43. 

Lieutenant Wentz replied, "Okay. Well, let me go through this." RP at 43. 

After a few biographical questions, Lieutenant Wentz then went over Mr. 

Stafford's constitutional rights. He asked that Mr. Stafford write his initials by each right 

as they were addressed. Lieutenant Wentz informed Mr. Stafford that he had the right to 

4 

No. 29033-6-111 

State v. Stafford 

an attorney before answering any questions and also during questioning. Mr. Stafford 

said he understood the rights as explained by Lieutenant Wentz. Lieutenant Wentz asked 

Mr. Stafford ifhe wished to talk. Mr. Stafford responded that he wanted to know what 

was going on. Lieutenant Wentz further explained the right to counsel. 

[Lieutenant Wentz:] And I haven't filled you in entirely yet, so. 

Do you understand that you may r6-claim any ofthese rights at any 

time during this statement, including the right to stop questioning altogether 

and the right to the presence of an attorney? 

[Mr. Stafford:] Yes 

[Lieutenant Wentz:] What does that mean to you? 

[Mr. Stafford:] That means that if I want, you guys will go get an 

attorney before we go any further than we are right at this moment. 

[Lieutenant Wentz:] And it means that ifwe decide-ifyou decide 

to talk to me at some time and you decide at some point that-while you're 

talking to me, that you want to change that and ask for an attorney, we stop. 

[Mr. Stafford:] Yeah, that's what I just said. 

RP at 45-46. Mr. Stafford signed an explanation of rights. 

Next, Lieutenant Wentz gave Mr. Stafford a waiver of constitutional rights. 

Lieutenant Wentz explained, 

[Lieutenant Wentz:] Well, this is a (inaudible) waiver of 

constitutional rights. This is ifyou're willing to talk with me to begin with. 

[Mr. Stafford:] Yeah, I'm not going to sign none ofthat unless an 

attorney asks me to sign something like that. 

[Lieutenant Wentz:] Okay. Well, I'm not an attorney. 

[Mr. Stafford:] Right. 

[Lieutenant Wentz:] And I told you before that I can't advise you. 

[Mr. Stafford:] Right. 

5 

No. 29033-6-II1 

State v. Stafford 

[Lieutenant Wentz:] All right. What I'm going to do is kind oftell 

you a little story. 

[Mr. Stafford:] Okay, tell me a little story. 

RP at 46-47. 

Lieutenant Wentz told Mr. Stafford ofhow the body ofMs. Yandell was found in 

the river and asked Mr. Stafford about his connection to the Yakima area. Mr. Stafford 

responded to Lieutenant Wentz's questions. He denied knowing Ms. Yandell or Mr. 

Sinden. Lieutenant Wentz then told Mr. Stafford that he was a person of interest in the 

case. Mr. Stafford denied any knowledge ofinvolvement in the matter. Lieutenant 

Wentz also told Mr. Stafford that Ms. Yandell was sexually assaulted before she was 

murdered and that Mr. Stafford's DNA was found. Mr. Stafford disagreed. After more 

questions, Mr. Stafford requested an attorney, saying, "I need an attorney, you know? 1 

mean, you guys are-it looks like you're serious about this shit, so 1 guess it's time for me 

to get serious about it." RP at 65. 

Mr. Stafford argued to the trial court that all ofhis statements should be 

suppressed because he was denied the right to counsel. He contended that he invoked the 

right to counsel during the advisement of rights. He testified that he asked for an attorney 

6 

No. 29033-6-III 

State v. Stafford 

three or four times and assumed that an attorney was on the way. He admitted to having 

prior experience with reading rights and was familiar with Miranda3 warnings. 

The trial court found that Mr. Stafford did not unequivocally request an attorney 

until the officers stopped the interview. The court explained that Mr. Stafford's refusal to 

sign the waiver was not an unequivocal assertion ofhis right to an attorney. The State 

offered at trial, and the court admitted Mr. Strafford's statements made prior to the 

request for counsel. 

At trial, Dr. Roger Vielbig testified that he was with the group ofBoy Scouts when 

Ms. Yandell's body was found. He said that Ms. Yandell had blood on her face and 

bruises on her knees. Regarding the location, he testified that the portion ofthe river 

. where Ms. Yandell's body was found had deep channels and a swift current. He noted 

that entering the river in that location was dangerous. A person could be towed under and 

suffer bumps, bruises, and scratches from the logs and rocks in the river. 

Mr. Sinden also testified. He recounted the events ofthe evening, including 

passing out in the park and walking to the Wilkeys without Ms. Yandell. He also testified 

that he and Ms. Yandell came to Yakima about three weeks prior to the incident and were 

looking for work picking cherries. Mr. Sinden said that he and Ms. Yandell were always 

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

7 

No. 29033-6-111 

State v. Stafford 

together and neve); did anything apart. Mr. Sinden also said that he did not know Mr. 

Stafford. 

Theresa LaFray was called to testify for the State. A week prior to being called to 

testify, Ms. LaFray came forward with new information. Mr. Stafford objected, and 

argued that her testimony was more prejudicial than probative, was uncorroborated, was 

inconsistent with information she provided in prior interviews, and was disclosed 

untimely. The trial court conducted a hearing outside the presence ofthe jury to hear 

argument and consider Mr. Stafford's objections. The court overruled Mr. Stafford's 

objections, and noted that the objections provided good fodder for cross-examination. 

The new information consisted ofthe following: Ms. LaFray testified that one 

night during the middle ofthe summer in 1993, Mr. Stafford showed up at her house 

covered in blood. At the time, Mr. Stafford lived next door with his sister. Ms. LaFray 

estimated that her home was about three-quarters of a mile from Sportsman's Park. Mr. 

Stafford told Ms. LaFray that he was in a fight with some Mexicans and wanted to know 

how to get blood out ofhis clothes. Ms. LaFray told Mr. Stafford, "[D]on't say another 

word. 1 want you to get in the shower and throw your clothes out to me and 1 will wash 

them for you, and 1 will tell you when they are washed and dried. And then leave." RP at 

1454. According to Ms. LaFray, Mr. Stafford had no injuries but had blood on his jeans, 

8 

No. 29033-6-II1 

State v. Stafford 

t-shirt, over-shirt or light jacket, and the top ofhis underwear band. After Ms. LaFray 

returned Mr. Stafford's clothes, he left as directed. 

Ms. LaFray admitted that she did not come forward with this information until the 

middle oftrial. She came forward because she thought there was a chance that Mr. 

Stafford would not be convicted and felt like she needed to come forward even though 

she was scared. She also said that she had been stressed over the matter and felt that she 

needed to report it. She admitted that she did not like Mr. Stafford. 

Dr. Thiersch testified to Ms. Yandell's autopsy results. Dr. Thiersch attributed 

Ms. Yandell's death to a blunt impact to the head with bruising ofthe brain. Ms. 

Yandell's scalp was lacerated on the front ofher head and her skull was fractured. On the 

back ofher head, there were four more lacerations with skull fractures. Dr. Thiersch 

testified that the skull fractures were significant, lethal injuries causing damage to the 

brain, and that these injuries were consistent with being hit with an object. He said that 

floating down the river would not have caused the lethal injuries. 

He also noted evidence ofstrangulation on her body. Ms. Yandell had bruising on 

her chin and along the side ofher face and hemorrhages in the structure ofher neck. Dr. 

Thiersch concluded that the head injuries and strangulation appeared to have occurred 

about the same time. 

9 

No. 29033-6-111 

State v. Stafford 

Dr. Thiersch found evidence of defensive wounds on Ms. Yandell's arms, legs, 

and feet. In addition, Dr. Thiersch saw injuries with a linear pattern on Ms. Yandell's left 

thigh, right hip, lower abdomen, and the back of her left leg. He testified that these could 

have been caused by someone dragging her or possibly by bumping on rocks and 

branches when floating down the stream. He also testified that the bruises were purple or 

red, which was indicative ofbeing caused while still alive. Dr. Thiersch estimated that 

Ms. Yandell's body was in the water for at least a couple of hours, perhaps longer. 

Dr. Thiersch testified that he found spermatozoa on the vaginal swabs taken from 

Ms. Yandell. He said that the spermatozoa could have been up to seven days old when 

they were found, depending on temperature and other conditions. However, he said 

spermatozoa typically last only 24 to 30 hours. Dr. Thiersch further testified that he was 

unable to tell whether Ms. Yandell was raped or had consensual Syx. He was also unable 

to tell whether the person Ms. Yandell had sex with was the same person who inflicted 

the lethal head injuries. 

The State called Valencia Ward, a DNA analyst for Orchid Cellmark, to testify 

about the 2008 DNA testing ofthe vaginal and oral swabs. Ms. Ward stated that she did 

not personally perform the DNA testing ofthe swabs. Mr. Stafford objected to Ms. Ward 

testifying about the DNA tests based on Crawfordv. Washington, 541 U.S. 36, 124 S. Ct. 

10 

No. 29033-6-III 

State v. Stafford 

1354, 1581. Ed. 2d 177 (2004) and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 

S. Ct. 2527,1741. Ed. 2d 314 (2009). The trial court overruled the objection based on 

the appellate court decision ofState v. Lui, 153 Wn. App. 304,221 P.3d 948 (2009), affd, 

l79Wn.2d457, 315 P.3d493 (2014). 

Ms. Ward testified that the person who personally tested the swabs no longer 

worked for Orchid Cellmark. She also testified that each case processed in her lab goes 

through a significant review process. Ms. Ward explained that she reviews all work in 

the lab with a second review completed by another person. Ms. Ward testified that for 

Mr. Stafford's case, she reviewed the entire case file sent to her by the Yakima Police 

Department and then generated a report. Ms. Ward was one ofthe reviewers for every 

report that was submitted for Mr. Stafford's case and personally signed the reports before 

sending them. 

Ms. Ward testified that DNA was found on the swabs ofMs. Yandell's mouth and 

her vagina, and this DNA matched (to a high mathematical probability) Mr. Stafford's 

DNA profile. Regarding these results, Ms. Ward testified that she did not simply rely on 

the conclusions made by other analysts. Rather, she came to her own conclusions. In 

reviewing Mr. Stafford's case, Ms. Ward found no evidence of contamination. Also, she 

11 

No. 29033-6-III 

State v. Stafford 

found no inconsistency in raw data or case file information that caused her professional 

concern. 

After both sides rested, the trial court dismissed the count for first degree rape. 

However, the court allowed the State to argue the elements offirst degree rape to support 

the aggravating factor for the other count of aggravated first degree murder. 

The jury was asked, by special verdict form, to find the aggravating circumstance 

that the murder was committed in the course of, in furtherance of, or in immediate flight 

from the crime offirst or second degree rape. The jury was instructed on the elements of 

first degree rape. The jury was also instructed in pertinent part regarding the special 

verdict form: 

Because this is a criminal case all twelve ofyou must agree in order to 

answer the special verdict form. In order to answer the special verdict form 

"yes", you must unanimously be satisfied beyond a reasonable doubt that 

''yes'' is the correct answer. Ifyou have reasonable doubt as to the question, 

you must answer "no". 

Because this is a criminal case, each ofyou must agree for you to 

return a verdict. When all ofyou have so agreed, fill in the proper form of 

verdict or verdicts to express your decision. 

Clerk's Papers (CP) at 43-44. Mr. Stafford did not object to these instructions. 

The jury found Mr. Stafford guilty of aggravated first degree murder and answered 

''yes'' on the special verdict form. CP at 11. The court imposed a sentence of life without 

the possibility ofparole. 

12 

No. 29033-6-111 

State v. Stafford 

ANALYSIS 

1. Whether the trial court erred in admitting Mr. Stafford's custodial statements 

We review a trial court's challenged findings of fact from a CrR 3.5 suppression 

hearing for substantial evidence. State v. Grogan, 147 Wn. App. 511, 516, 195 P.3d 1017 

(2008). '" Substantial evidence is evidence sufficient to persuade a fair-minded, rational 

person ofthe truth ofthe finding.'" Id. (quoting State v. Solomon, 114 Wn. App. 781, 

789,60 P.3d 1215 (2002)). We apply de novo review to the court's challenged 

conclusions of law that are derived from the findings offact. Id. (quoting Solomon, 114 

Wn. App. at 789). 

Mr. Stafford contends that once he made even an equivocal request for an attorney 

during the police interrogation, the officer was prohibited from continuing the 

interrogation and could only ask questions clarifying his request. 

The Fifth and Sixth Amendments to the United States Constitution guarantee the 

right to counsel. The Fifth Amendment prohibition against compelled self-incrimination 

requires that custodial interrogation be preceded by advice to the accused that he or she 

has the right to remain silent and the right to the presence of an attorney. Miranda v. 

Arizona, 384 U.S. 436,479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Once the right to 

counsel is invoked, the police cannot initiate further interrogation or seek a waiver until 

13 

No. 29033-6-III 

State v. Stafford 

the suspect has an opportunity to meet with counsel and, further, that counsel must be 

present during any future interrogation. State v. Warness, 77 Wn. App. 636, 639,893 

P.2d 665 (1995). 

A defendant's request for an attorney must be unequivocal. State v. Nysta, 168 

Wn. App. 30,41,275 P.3d 1162 (2012). To be unequivocal, the defendant must 

sufficiently and clearly articulate his desire to have counsel present so that a reasonable 

police officer under the circumstances would understand the statement to be a request for 

an attorney. Id. (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 

L. Ed. 2d 362 (1994)). The courts look to the specific wording ofthe accused's statement 

to police and the circumstances leading up to the request to determine whether the 

accused unequivocally invoked his or her right to counsel. Smith v. Illinois, 469 U.S. 91, 

97-98, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). 

Where an accused makes an ambiguous or equivocal statement regarding the 

invocation ofhis or her rights, officers may carry on questioning. In re Pers. Restraint of 

Cross, 180 Wn.2d 664,682,327 P.3d 660 (2014). Law enforcement officers have no 

obligation to ask clarifYing questions or to cease the interrogation. Id. "If a defendant 

fails to unequivocally invoke his Miranda rights, a waiver may be inferred when a 

defendant freely and selectively responds to [further] police questioning." Id. at 687. 

14 

No. 29033-6-III 

State v. Stafford 

Mr. Stafford did not invoke his right to counsel in the beginning ofthe interview. 

He did not make an unequivocal request when he said that he understood that he should 

have an attorney present. Nor did he make an unequivocal request when he refused to 

sign the consent form. Mr. Stafford's continuing to answer police questions allows us to 

infer his nonassertion of his rights. 

Even ifthe request was equivocal, the State did not have a duty to stop 

interrogation and ask for clarification simply because he had not expressly waived his 

rights. "A suspect may choose to invoke [Miranda] rights at any time prior to or during 

questioning." Id. at 682. Miranda rights must be invoked unambiguously. State v. 

Piatnitsky, 180 Wn.2d 407,413,325 P.3d 167 (2014), cert. denied, 135 S. Ct. 950 (2015). 

Accordingly, a defendant's request for an attorney must be unambiguous, regardless of 

when the request is made. Law enforcement does not need to ask for clarification on 

whether the defendant is invoking Miranda rights. Id. at 415. Here, there was no need 

for Lieutenant Wentz to ask for clarification ofMr. Stafford's statement given during the 

advisement ofrights. 

The court properly concluded that Mr. Stafford invoked his right to have counsel 

present during questioning when he said "I need an attorney, you know?" RP at 65. Prior 

to this statement, Mr. Stafford did not invoke his Miranda right to counsel but, instead, 

15 

No. 29033-6-III 

State v. Stafford 

waived the right by voluntarily answering Lieutenant Wentz's questions. The trial court 

did not err in admitting Mr. Stafford's statements. Mr. Stafford's right to counsel was not 

violated. 

2. 	 Whether the trial court's decision to admit the forensic scientist's DNA testimony 

violated Mr. Stafford's constitutional right to confront his accuser 

We apply de novo review to confrontation clause challenges. State v. Jasper, 174 

Wn.2d 96, 108,271 P.3d 876 (2012). Mr. Stafford contends that Ms. Ward's testimony 

violated the confrontation clause because she testified about the DNA analysis and match 

with Mr. Stafford even though she was not the person who perfonned the DNA tests. 

The Sixth Amendment confrontation clause provides that in all criminal 

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

them. U.S. CONST. amend. VI. This right is binding on the states through the Fourteenth 

Amendment. Pointer v. Texas, 380 U.S. 400, 403,85 S. ct. 1065, 13 L. Ed. 2d 923 

(1965). Similarly, article I, section 22 ofthe Washington Constitution provides that in 

criminal prosecutions, the accused shall have the right to meet the witnesses against him 

face to face. Here, the United States Constitution and the Washington Constitution 

compel the same result. See Lui, 179 Wn.2d at 468. 

The confrontation clause prohibits the admission oftestimonial statements against 

a defendant unless the witness making the statements appears at trial or the defendant has 

16 

No. 29033-6-III 

State v. Stafford 

a prior opportunity for cross-examination. Melendez-Diaz, 557 U.S. at 309. Testimonial 

statements include documents created solely for an evidentiary purpose, made in the aid 

ofa police investigation. Bullcoming v. New Mexico, _ U.S. _, 131 S. Ct. 2705, 2717, 

180 L. Ed. 2d 610 (2011). A witness is a declarant who makes a factual statement to a 

tribunal. Lui, 179 Wn.2d at 482. "Ifthe witness's statements help to identify or inculpate 

the defendant, then the witness is a 'witness against' the defendant." Id. 

The Washington Supreme Court in Lui determined that the confrontation clause is 

not violated when an expert witness at trial presents an independent DNA analysis based 

on data generated by work of others in the DNA testing process. "[T]he DNA testing 

process does not become inculpatory and invoke the confrontation clause until the final 

step, where a human analyst must use his or her expertise to interpret the machine 

readings and create a profile." Id at 486. When DNA evidence is presented, the witness 

against the defendant is the final analyst who examines the machine-generated data, 

creates a profile, and makes a determination that the defendant's profile matches some 

other profile. Id. at 489. 

"An expert witness may not parrot the conclusions ofothers and circumvent the 

confrontation clause[.] An expert may, however, rely on the work oflaboratory 

technicians when reaching his or her conclusion." Id. at 484. Other persons who may 

17 

No. 29033-6-II1 

State v. Stafford 

have contributed to certifying a DNA match by participating in the DNA testing process 

are not a witness against a defendant. [d. at 486. 

Based on Lui, the testimony ofMs. Ward regarding the DNA results did not 

violate the confrontation clause. As an expert witness for the State, Ms. Ward reviewed 

Mr. Stafford's entire file and generated a report. She also reviewed the reports of others 

in the lab. From the data, she was able to determine a match between the DNA found on 

Ms. Yandell and Mr. Stafford's DNA. Ms. Ward did not rely on the conclusions made by 

other analysts but reached her own conclusions. 

The analyst who actually ran the test did not need to be the person who presented 

the evidence. That analyst was not a witness against Mr. Stafford, but rather facilitated 

Ms. Ward's role as an expert witness. Mr. Stafford's right to confront each witness 

against him was not violated by Ms. Ward's DNA testimony. 

3. 	 Whether the trial court erred when it admitted the new testimony ofTheresa 

LaFray 

Mr. Stafford contends that the testimony ofTheresa LaFray should have been 

excluded because it was irrelevant and its probative value was substantially outweighed 

by the danger of unfair prejudice. He argues that Ms. LaFray's testimony regarding her 

encounter with Mr. Stafford was irrelevant because she could not identify the date it 

occurred. He also argues that the validity ofthe testimony is questionable because Ms. 

18 

No. 29033-6-111 

State v. Stafford 

LaFray did not like Mr. Stafford, was late in the disclosure, and admitted that she came 

forward only because she was afraid he would not be convicted. 

The detennination ofrelevance is within the broad discretion ofthe trial court and 

will not be disturbed absent a manifest abuse of discretion. State v. Swan, 114 Wn.2d 

613,658, 790 P.2d 610 (1990). Similarly, a detennination ofwhether the probative value 

outweighs substantial prejudice is within the broad discretion ofthe trial court and will 

only be reversed in the exceptional circumstance of a manifest abuse of discretion. State 

v. Gould, 58 Wn. App. 175, 180,791 P.2d 569 (1990). 

Generally, all relevant evidence is admissible and all irrelevant evidence is 

inadmissible. ER 402. Relevant evidence is any "evidence having any tendency to make 

the existence of any fact that is of consequence to the detennination ofthe action more 

probable or less probable than it would be without the evidence." ER 401. "Relevancy 

means a logical relation between evidence and the fact to be established. Any evidence 

which tends to identify the accused as the person guilty is relevant." State v. Whalon, 1 

Wn. App. 785, 791, 464 P.2d 730 (1970) (citation omitted). Material evidence is also 

admissible. Id. Material evidence is evidence that logically tends to prove a defendant's 

connection with a crime either alone or from whatever inferences may be drawn when it 

is considered with other evidence. Id. "Where identity ofthe perpetrator of a crime is at 

19 

No. 29033-6-III 

State v. Stafford 

issue, any evidence tending to identify the accused as the guilty person is relevant." State 

v. Coe, 101 Wn.2d 772, 781-82, 684 P.2d 668 (1984). 

Even relevant evidence can be excluded "ifits probative value is substantially 

outweighed by the danger ofunfair prejudice." ER 403. Unfair prejudice is that which is 

more likely to arouse an emotional response rather than a rational decision by the jury. 

Gould, 58 Wn. App. at 183. Crucial consideration is given to the word "unfair" when 

applying ER 403 to prejudicial evidence. State v. Bernson, 40 Wn. App. 729, 736, 700 

P.2d 758 (1985). "In almost any instance, a defendant can complain that the admission of 

potentially incriminating evidence is prejudicial in that it may contribute to proving 

beyond a reasonable doubt he committed the crime with which he is charged. Addition of 

the word 'unfair' to prejudice obligates the court to weigh the evidence in the context of 

the trial itself, bearing in mind fairness to both the State and defendant." Id. 

The trial court did not abuse its discretion in allowing the testimony ofMs. LaFray. 

The testimony that Mr. Stafford came to her house covered in blood on a midsummer 

night in 1993 was relevant to the crime charged. A logical relation exists between Ms. 

LaFray's testimony and Mr. Stafford's alleged involvement in Ms. Yandell's death. The 

validity and credibility ofMs. LaFray's testimony and her alleged bias against Mr. 

Stafford were questions for the jury. See State v. Thomas, 150 Wn.2d 821,874-75,83 

20 

No. 29033-6-III 

State v. Stafford 

P.3d 970 (2004). Mr. Stafford had the opportunity to challenge the credibility ofMs. 

LaFray's statements during cross-examination. See ER 611(b). The trial court did not 

abuse its discretion when it considered Ms. LaFray's testimony to be relevant. 

The trial court also did not abuse its discretion when it determined that the 

probative value ofMs. LaFray's testimony was not substantially outweighed by its unfair 

prejudice. The fact that Mr. Stafford went to Ms. LaFray's home covered in blood is not 

likely to arouse an emotional response rather that a rational decision by the jury. Also, 

despite Mr. Stafford's contention, the testimony is not unfairly prejudicial simply because 

he considers it to be the only evidence besides the DNA evidence that is indicative of 

guilt. While the testimony is naturally prejudicial because it incriminates Mr. Stafford in 

the crime charged, this alone is not a reason to conclude that the evidence was unfairly 

prejudicial. Rather, it was highly relevant information that a jury would likely consider 

rationally rather than emotionally. The trial court was well within its discretion when it 

determined that the unfair prejudice ofthe evidence, if any, was not substantially 

outweighed by its probative value. 

4. 	 Whether the State presented sufficient evidence to prove the essential elements of 

aggravated first degree murder 

Mr. Stafford contends that the State failed to prove the essential elements of 

aggravated first degree murder. He focuses his attention on the elements of identity, 

21 

No. 29033-6-III 

State v. Stafford 

causation, intent, and premeditation. He also contends that there is no evidence that 

connects him to the murder-that at the most, the evidence shows that he had consensual 

sex with Ms. Yandell. 

The standard ofreview for a sufficiency ofthe evidence challenge in a criminal 

case is '" whether, after reviewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements ofthe crime 

beyond a reasonable doubt.'" State v. Bingham, 105 Wn.2d 820,823, 719 P.2d 109 

(1986) (emphasis in original) (quoting Jackmn v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 

2781,61 L. Ed. 2d 560 (1979)). A defendant challenging sufficiency ofthe evidence 

"admits to the truth ofthe State's evidence and all inferences that can reasonably be 

drawn from that evidence." State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995). 

We defer to the trier of fact on issues of conflicting testimony, credibility ofwitnesses, 

and the persuasiveness ofthe evidence. Thomas, 150 Wn.2d at 874-75. "[I]nferences 

based on circumstantial evidence must be reasonable and cannot be based on 

speculation." State v. Vasquez, 178 Wn.2d 1, 16,309 P.3d 318 (2013). 

In a criminal prosecution, the Fourteenth Amendment's due process clause 

requires the State to prove each essential element ofthe crime charged beyond a 

22 

No. 29033-6-III 

State v. Stafford 

reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 1471. 

Ed. 2d 435 (2000). 

The jury instructions contained the essential elements offirst degree murder: 

(1) That on or about June 13, 1993, the defendant acted with intent 

to cause the death ofShawna Yandell; 

(2) That the intent to cause the death was premeditated; 

(3) That Shawna Yandell died as a result ofthe defendant's acts; 

and 

(4) That any ofthese acts occurred in the State ofWashington. 

CP at 29. The jury was also asked to find the aggravating circumstance that the murder 

was committed in the course of, in furtherance of, or in immediate flight from the crime 

offirst or second degree rape. The evidence is sufficient to establish the elements of 

aggravated first degree murder. 

Identity and Causation. The State presented sufficient evidence to show that Mr. 

Stafford caused Ms. Yandell's death. The jury could infer from the evidence that Mr. 

Stafford was with Ms. Yandell on the night ofher death. Mr. Stafford's DNA taken from 

the spermatozoa found in Ms. Yandell's vagina and mouth establishes that he had contact 

with her prior to her death. The presence ofthe spermatozoa also sets the time frame of 

the contact. While Dr. Thiersch said that semen could last for up to 7 days in the vagina, 

he also testified that the typical time frame was more like 24 hours. Considering that the 

autopsy was conducted the morning after Ms. Yandell's body was found, the 24 to 30 

23 

No. 29033-6-111 

State v. Stafford 

hour time frame is consistent with Mr. Stafford having contact with Ms. Yandell on the 

night she died. 

The jury could also infer that Mr. Stafford was the person who caused Ms. 

Yandell's death. The testimony ofMs. LaFray established that Mr. Stafford was seen 

covered in blood sometime during the summer when Ms. Yandell was killed. Although 

Mr. Stafford told Ms. LaFray that he was in a fight with a bunch ofMexicans, the fact 

that he had no wounds on his body, yet was covered in blood, allowed the jury to 

disbelieve Mr. Stafford's explanation, and conclude that the truth was more sinister. The 

jury could find that the amount ofblood on Mr. Stafford was consistent with the head 

injury suffered by Ms. Yandell. Furthermore, Mr. Stafford was seen covered in blood 

close to the location where Ms. Yandell was last seen alive. Ms. LaFray's home was less 

than one mile from Sportsman's Park. 

Intent. The State presented sufficient evidence that the person who inflicted Ms. 

Yandell's injuries had the intent to kill her. The cause of death was blunt force trauma by 

multiple blows to the head. The force was strong enough to fracture her skull more than 

once. The jury could find that a person had to act with intent to cause such wounds. 

Also, Ms. Yandell had multiple scrapes and bruises on her body that Dr. Thiersch testified 

were consistent with defensive wounds. The defensive wounds do not point to an 

24 
No. 29033~6-II1 

State v. Stafford 

accidental death but instead an intentional act. Considering that the jury could infer that 

Mr. Stafford was present with Ms. Yandell on the night ofher death and that he in fact 

did cause her death, Ms. Yandell's injuries allowed the jury to also conclude that Mr. 

Stafford acted with the requisite intent to kill. 

Premeditation. The State also presented sufficient evidence ofpremeditation. 

"Premeditation" involves a deliberate formation of and reflection on the intent to take a 

human life. State v. Hoffman, 116 Wn.2d 51,82, 804 P.2d 577 (1991). It includes the 

mental process ofthinking beforehand, deliberation, reflection, weighing, or reasoning 

for a period oftime, however short. Gentry, 125 Wn.2d at 597~98 (quoting State v. 

Ollens, 107 Wn.2d 848,850, 733 P.2d 984 (1987)). Premeditation must involve more 

than a moment in point oftime. RCW 9A.32.020(1). 

Both direct and circumstantial evidence can be used to establish premeditation. 

Bingham, 105 Wn.2d at 823-24. Circumstantial evidence can be used where the 

inferences drawn by the jury are reasonable and the evidence supporting the jury's verdict 

is substantial. Id. at 824. Facts that have been found to support an inference of 

premeditation are multiple wounds inflicted with a knife or other weapon, signs ofa 

struggle, striking a victim from behind, and evidence that sexual assault or robbery was 

an underlying motive. Gentry, 125 Wn.2d at 599. 

25 
No. 29033-6-111 

State v. Stafford 

The autopsy evidence shows that Mr. Stafford engaged in some sort ofsexual 

activity with Ms. Yandell and then killed her. There was also evidence ofrape as an 

underlying motive, considering Ms. Yandell's multiple defensive wounds. The numerous 

defensive and offensive wounds, including both strangulation and severe head wounds, is 

evidence that the attack was prolonged and savage. As noted above, this type of evidence 

is sufficient for a jury to infer premeditation. 

Aggravating Factor. The State also presented sufficient evidence to support the 

aggravating factor, i.e., that the murder was committed in the course of, or in furtherance 

of, or in immediate flight from the crime offirst or second degree rape. Ms. Yandell was 

found with Mr. Stafford's spermatozoa in both her vagina and her mouth. Additionally, 

Ms. Yandell's body showed evidence ofdefensive wounds. Ms. Yandell did not know 

Mr. Stafford. From this evidence, the jury could infer that the sex was not consensual and 

that Mr. Stafford murdered Ms. Yandell in the course of, in furtherance of, or in 

immediate flight from rape. 

In conclusion, after reviewing the evidence in the light most favorable to the 

prosecution, a rational trier of fact could have found, beyond a reasonable doubt, that Mr. 

Stafford committed aggravated first degree murder. 

26 

No. 29033-6-II1 

State v. Stafford 

5. 	 Whether the jury instruction, which required the jury to be unanimous when 

answering the special verdict form, was erroneous 

Mr. Stafford contends that the trial court improperly instructed the jury that a 

unanimous decision was needed to answer "no" on the special verdict form. Instead, he 

contends that trial court was required to give a nonunanimity instruction as required by 

State v. Bashaw, 169 Wn.2d 133, 146-47,234 P.3d 195 (2010), overruled by State v. 

Guzman Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). 

We review alleged errors oflaw in jury instructions de novo. Boeing Co. v. Key, 

101 Wn. App. 629, 632, 5 P.3d 16 (2000). Failure to timely object usually waives the 

issue on appeal, including issues regarding instructional errors. RAP 2.5(a); State v. 

Williams, 159 Wn. App. 298, 312, 244 P.3d 1018 (2011). This court has held that a trial 

court's failure to instruct a jury that it could be nonunanimous to acquit a defendant ofan 

aggravating factor is not an issue ofconstitutional magnitude. State v. Guzman Nunez, 

160 Wn. App. 150, 159, 162-63,248 P.3d 103 (2011), ajJ'd in part by Guzman Nunez, 

174 Wn.2d 707. 

Mr. Stafford did not object to the unanimity instruction and, therefore, waives the 

right to raise the issue on appeal. In any case, his challenge to the jury instruction fails. 

Prior to the Washington Supreme Court's recent decision in Guzman Nunez, the 

court in Bashaw recognized the nonunanimity rule developed in State v. Goldberg, 149 

27 

No. 29033-6-III 

State v. Stafford 

Wn.2d 888, 72 P.3d 1083 (2003), that "a unanimous jury decision is not required to find 

that the State has failed to prove the presence of a special fmding increasing the 

defendant's maximum allowable sentence." Bashaw, 169 Wn.2d at 146. However, in 

Guzman Nunez, our Supreme Court reconsidered and overruled the nonunanimity rule in 

Bashaw. Guzman Nunez, 174 Wn.2d at 709. The Guzman Nunez court concluded that 

such a rule "conflicts with statutory authority, causes needless confusion, does not serve 

the policies that gave rise to it, and frustrates the purpose ofjury unanimity." Id. at 709­

10. The court concluded that the challenged jury instructions, which required a 

unanimous "yes" or "no" decision on the special verdict form, were correct. Id. at 710­

11, 719. Here, based on Guzman Nunez, the trial court correctly instructed the jury that it 

had to unanimously agree ''yes'' or "no" when answering the special verdict fonn. 

Statement ofAdditional Grounds for Review 

In his statement ofadditional grounds for review, Mr. Stafford contends that his 

counsel was ineffective for allowing the court to charge him with rape even though the 

prosecution was barred by the statute oflimitations. 

"To demonstrate ineffective assistance ofcounsel, a defendant must make two 

showings: (1) defense counsel's representation was deficient, i.e., it fell below an 

objective standard ofreasonableness based on consideration ofall the circumstances; and 

28 

No. 29033-6-III 

State v. Stafford 

(2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a 

reasonable probability that, except for counsel's unprofessional errors, the result ofthe 

proceeding would have been different." State v. McFarland, 127 Wn.2d 322, 334-35, 

899 P.2d 1251 (1995) (emphasis in original). 

Mr. Stafford's counsel was not deficient for consenting to the rape charge. The 

statute of limitations on the rape charge had not expired. The statute of limitations on 

first degree rape is 10 years from the date of commission or one year from the date on 

which the identity ofthe suspect is conclusively established by DNA testing or 

photograph, whichever is later. State v. McConnell, 178 Wn. App. 592, 603, 315 P.3d 

586 (2013) (quoting RCW 9A.04.080), review denied, 180 Wn.2d 1015 (2014). Identity 

is "conclusively established" when "DNA testing matches the DNA profile of an 

unknown suspect to the DNA profile ofa known suspect." Id. at 605. Here, Mr. 

Stafford's identity as a suspect in Ms. Yandell's rape was conclusively established in May 

2009, and he was charged later that month. The statute oflimitations for the rape charge 

therefore had not run. His counsel's representation was not deficient. 

Mr. Stafford also contends that the chain of evidence for the DNA was broken and 

that the evidence was tainted. A physical object connected with the commission ofa 

crime must be satisfactorily identified and shown to be in substantially the same condition 

29 

No. 29033-6-II1 

State v. Stafford 

as when the crime was committed before it may properly be admitted into evidence. State 

v. Campbell, 103 Wn.2d 1,21,691 P.2d 929 (1984). "'A failure to present evidence of 

an unbroken chain of custody does not render an exhibit inadmissible if it is properly 

identified as being the same object and in the same condition as it was when it was 

initially acquired by the party.'" State v. Picard, 90 Wn. App. 890, 897,954 P.2d 336 

(1998) (quoting State v. DeCuir, 19 Wn. App. 130, 135,574 P.2d 397 (1978)). The 

witness testifYing to the chain of custody does not need to positively identifY the 

challenged evidence and eliminate every possibility ofsubstitution or alteration. State v. 

Roche, 114 Wn. App. 424, 436, 59 P.3d 682 (2002). 

Minor discrepancies or uncertainty on the part ofthe witness affect the weight of 

the evidence and not admissibility. Id. (quoting Campbell, 103 Wn.2d at 21). "Evidence 

ofsloppy police work in gathering physical evidence, such as fingerprints and DNA 

samples, or in establishing chain of custody generally is relevant and admissible." State 

v. Rafay, 168 Wn. App. 734, 803, 285 P.3d 83 (2012). 

The evidence identification report produced by Mr. Stafford in his statement of 

additional grounds does not show a broken chain ofcustody. The report documents how 

evidence technician Kristen Drury tracked down the stored evidence from Ms. Yandell's 

case and her difficulties in locating the evidence, but it does not show that the chain was 

30 

No. 29033-6-II1 

State v. Stafford 

broken. Furthermore, the chain of custody issue was appropriately addressed in the trial 

court. Ms. Drury appeared at trial and was subject to cross-examination regarding 

interruptions in the chain of custody. Mr. Stafford had the opportunity to discredit the 

evidence based on the difficulty in locating it. The evidence was properly admitted. 

Affirm. 

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: 

31