### FILED SEPTEMBER 15,2015 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, 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### v. ) UNPUBLISHED OPINION ) CLAYTON GENE STAFFORD, ) ) Appellant.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 ofaggravated 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 DNA1expert 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 ofawitness, (4) the State failed to prove the essential elements of aggravated first degree murder, and (5) thejurywas erroneously instructed that ithad to

1Deoxyribonucleic 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 OnJune 12, 1993, Shawna Yandell and herboyfriend, Travis Sinden, wentto Sportsman's Parkby 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 rangerrefused. The couple was staying with Mr. Sinden'srelatives, the Wilkeys, and Mr. Sinden called them for a ride. Members ofthe Wilkey family told Mr. Sindenthat 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 herbut 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 backto the parkto search for her. He did not find her, so he wentbackto the Wilkeys' house and waited. Eventually, Mr. Sinden called the police and reported her missing.


### 2No. 29033-6-III State 

### v. Stafford Meanwhile, a group ofBoy Scouts on a canoe trip found Ms. Yandell's body inthe YakimaRiver. The location was about two and one-halfmiles upstream from Sportsman's Park. Ms. Yandell's body was nude, except for a blackbrapushed up over her shoulders. Officers responded and observed thatMs. Yandell's scalp was open. A search was conducted ofthe areabutno additional evidence was found. Dr. NormanThiersch, a medical pathologist, conducted an autopsy the following day and determined that the cause ofMs. Yandell's death was a blow to herhead by a blunt object. There were also signs ofstrangulation. Dr. Thiersch swabbed Ms. Yandell's mouth, anus, and vagina. Dr. Thiersch found spermatozoa onthe vaginal swabs.Ms. Yandell's homicide remained unresolved for over 15 years. In 2008, the Yakimapolicehad 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 OnMay 20,2009, a matchwas discovered between the DNA found on Ms. Yandell's body and a DNAprofile in CaDIS. Furthertesting confirmed that the DNA matched

### Mr. Stafford.

2Combined DNAIndex System. 3No. 29033-6-II1 State 

### v. Stafford
Yakima County officers went to Mr. Stafford'shome 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, claimingthat 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, "Doyou understand that this statement is beingrecorded?" 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." RPat43. Lieutenant Wentz replied, "Okay. Well, let me go through this." RP at43. After a few biographical questions, Lieutenant Wentz then went overMr. Stafford's constitutional rights. He asked thatMr. Stafford write his initials by each right
as they were addressed. Lieutenant Wentz informed Mr. Stafford thathe had the right to


### 4No. 

### 29033-6-111 State 

### v. Stafford

an attorney before answering any questions and also during questioning. Mr. Stafford said he understood the rights as explainedby Lieutenant Wentz. Lieutenant Wentz asked Mr. Stafford ifhe wished to talk. Mr. Stafford responded that he wantedto know what
was going on. LieutenantWentz further explained the right to counsel. [LieutenantWentz:] And I haven't filled you in entirely yet, so. Doyou understand thatyou may r6-claim any ofthese rights at any time during this statement, including the right to stop questioning altogether andtherightto thepresence ofan attorney? [Mr. Stafford:] Yes [Lieutenant Wentz:] What does that meanto you? [Mr. Stafford:] Thatmeans that ifI want, you guys will go get an attorney beforewe go any further than we are right atthis moment. [LieutenantWentz:] And it meansthat ifwe decide-ifyou decide to talkto me at some time and you decide at some pointthat-whileyou're talking to me, thatyou wantto change that and ask for an attorney, we stop. [Mr. Stafford:] Yeah, that's what Ijust said. RP at45-46. Mr. Stafford signed an explanation ofrights. Next, Lieutenant Wentz gaveMr. Stafford a waiver ofconstitutional 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 meto sign something likethat. [LieutenantWentz:] Okay. Well, I'm not an attorney. [Mr. Stafford:] Right. [Lieutenant Wentz:] And I told youbefore that I can't adviseyou. [Mr. Stafford:] Right.
5No. 29033-6-II1 State 

### v. Stafford [LieutenantWentz:] All right. WhatI'm going to do is kind oftell you a little story. [Mr. Stafford:] Okay, tell me a little story. RP at46-47. LieutenantWentztold Mr. Stafford ofhow the body ofMs. Yandell was found in the river and asked Mr. Stafford about his connectionto the Yakima area. Mr. Stafford responded to Lieutenant Wentz's questions. He denied knowing Ms. Yandell or Mr. Sinden. LieutenantWentzthentold Mr. Stafford thathe was a person ofinterest inthe
case. Mr. Stafford denied any knowledge ofinvolvementinthe matter. Lieutenant Wentz also told Mr. Stafford thatMs. Yandell was sexually assaulted before shewas murdered and thatMr. Stafford's DNAwas found. Mr. Stafford disagreed. After more questions, Mr. Stafford requested an attorney, saying, "I need an attorney, youknow? 1 mean, you guys are-it looks like you're serious about this shit, so 1guess it's time for me to get serious about it." RP at 65. Mr. Stafford argued to the trial courtthat all ofhis statements should be suppressed because he was denied the right to counsel. He contended thathe invokedthe right to counsel during the advisement ofrights. Hetestified thathe asked for an attorney



### 6No. 29033-6-III State 

### v. Stafford
three or four times and assumed that an attorney was onthe way. He admitted to having prior experience with reading rights and was familiar withMiranda3 warnings. The trial court found thatMr. Stafford did not unequivocally request an attorney until the officers stopped the interview. The court explained thatMr. Stafford's refusal to sign the waiver was not an unequivocal assertion ofhis right to an attorney. The State offered attrial, and the court admitted Mr. Strafford's statements made prior to the request for counsel. Attrial, 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 onher face and bruises onher knees. Regarding the location, he testified that theportion ofthe river

.where Ms. Yandell's body was found had deep channels and a swift current. He noted that enteringthe river inthat location was dangerous. A person could be towed under and sufferbumps, bruises, and scratches from the logs and rocks in the river. Mr. Sinden also testified. He recounted the events ofthe evening, including passing outin the park and walkingtothe Wilkeys without Ms. Yandell. He also testified thathe and Ms. Yandell came to Yakima aboutthree weeks prior to the incident and were looking for workpicking cherries. Mr. Sinden said that he and Ms. Yandell were always

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

### 7No. 29033-6-111 State v. Stafford together and neve); did anything apart. Mr. Sinden also said that he did notknow Mr. Stafford. Theresa LaFray was called to testify for the State. A weekpriorto 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 ofthejuryto hear argument and considerMr. Stafford's objections. The court overruled Mr. Stafford's objections, and noted thatthe 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. Atthetime, Mr. Stafford lived next door with his sister. Ms. LaFray estimated that her home was about three-quarters ofa 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 getblood out ofhis clothes. Ms. LaFray told Mr. Stafford, "[D]on't say another word. 1wantyou to get in the shower and throw your clothes outto me and 1will wash them for you, and 1will tell you when they are washed and dried. And then leave." RPat 1454. According to Ms. LaFray, Mr. Stafford had no injuries buthad blood on hisjeans,


### 8

### No. 29033-6-II1 State v. Stafford t-shirt, over-shirt or lightjacket, 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 hadbeen stressed over the matter and felt that she neededtoreport 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 tothe head with bruising ofthe brain. Ms. Yandell's scalp was lacerated onthe front ofherhead and her skull was fractured. On the back ofherhead, there were four more lacerations with skull fractures. Dr. Thiersch testified that the skull fractures were significant, lethal injuries causing damagetothe brain, and that these injuries were consistentwith being hitwith an object. He said that floating down the river would not have caused the lethal injuries. He also noted evidence ofstrangulation on herbody. Ms. Yandell hadbruising on her chin and along the side ofher face and hemorrhages inthe structure ofherneck. Dr. Thiersch concluded that the head injuries and strangulation appearedto have occurred about the sametime.


### 9No. 29033-6-111 

### State v. 

### Stafford
Dr. Thiersch found evidence ofdefensive wounds on Ms. Yandell's arms, legs, and feet. In addition, Dr. Thiersch saw injuries with a linearpattern on Ms. Yandell's left thigh, right hip, lower abdomen, and the back ofher left leg. He testified that these could have been caused by someone dragging her orpossibly by bumping on rocks and branches when floating down the stream. He also testified that the bruises werepurple 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 ofhours, 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 ontemperature 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 orhad 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 DNAtesting ofthe vaginal and oral swabs. Ms. Ward stated that she did not personally perform the DNAtesting ofthe swabs. Mr. Stafford objected to Ms. Ward testifying about the DNAtests based on 

### Crawfordv. Washington, 541 U.S. 36, 124 S. Ct.
10No. 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 overruledthe objection based on the appellate court decision of

### State v. 

### Lui, 153 Wn. App. 304,221 P.3d 948 (2009), 

### affd, l79Wn.2d457, 315 P.3d493 (2014). Ms. Wardtestified thatthe person whopersonally tested the swabs no longer worked for Orchid Cellmark. She also testified that each case processed in her lab goes through a significantreviewprocess. Ms. Ward explained that she reviews all work in the lab with a secondreview completed by anotherperson. Ms. Ward testified that for Mr. Stafford's case, she reviewed the entire case file senttoher by the YakimaPolice Department and then generated a report. Ms. Ward was one ofthereviewers for every report that was submitted for Mr. Stafford's case and personally signedthe reports before sending them. Ms. Wardtestified that DNA was found on the swabs ofMs. Yandell's mouth and hervagina, and this DNAmatched (to a high mathematical probability) Mr. Stafford's DNAprofile. Regardingthese results, Ms. Ward testified that she did not simply rely on the conclusions made by other analysts. Rather, she cameto her own conclusions. In reviewing Mr. Stafford's case, Ms. Ward found no evidence ofcontamination. Also, she

11No. 29033-6-III 

### State v. 

### Stafford
found no inconsistency in raw data or case file informationthat caused herprofessional
concern. Afterboth 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 ofaggravated first degree murder. Thejury was asked, by special verdict form, to find the aggravating circumstance thatthe murderwas committed inthe course of, in furtherance of, or in immediate flight from the crime offirst or second degree rape. Thejury was instructed on the elements of first degree rape. Thejurywas also instructed inpertinentpartregarding 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 mustunanimously be satisfied beyond a reasonable doubt that ''yes'' is the correct answer. Ifyou have reasonable doubt as tothe 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 objectto these instructions. Thejury found Mr. Stafford guilty ofaggravated first degree murder and answered ''yes'' on the special verdict form. CP at 11. The court imposed a sentence oflife without the possibility ofparole. 12No. 29033-6-111 

### State v. Stafford
ANALYSIS 

### 1. Whether the trial court erred in admittingMr. Stafford's custodialstatements We review a trial court's challenged findings offact 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 oflaw 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 thepolice interrogation, the officer was prohibited from continuing the interrogation and could only ask questions clarifyinghis request. The Fifth and Sixth Amendments tothe United States Constitution guarantee the right to counsel. The FifthAmendmentprohibition against compelled self-incrimination requires that custodial interrogation bepreceded by advice to the accused thathe or she has the right to remain silent and the right tothe presence ofan attorney. 

### Miranda v. 

### Arizona, 384 U.S. 436,479, 86 S. Ct. 1602, 16 

### L. Ed. 2d 694 (1966). Once the rightto counsel is invoked, thepolice cannotinitiate further interrogation or seek a waiver until
13No. 29033-6-III 

### State 

### v. Stafford
the suspect has an opportunity tomeet with counsel and, further, that counsel mustbe 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 tohave 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. UnitedStates, 512 

### U.S. 452, 459, 114 

### S. Ct. 2350, 129 

### L. Ed. 2d 362 (1994)). The courts looktothe specific wording ofthe accused's statement to police and the circumstances leading up tothe request to determine whetherthe accused unequivocally invoked his or herright 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 statementregarding the invocation ofhis orherrights, 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 orto cease the interrogation. 

### Id. "Ifa defendant fails to unequivocally invoke his

### Miranda rights, a waivermay be inferred when a defendant freely and selectively responds to [further] police questioning." 

### Id. at 687.
14No. 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 continuingto answerpolice questions allows us to inferhis nonassertion ofhis rights. Even ifthe request was equivocal, the State did nothave a duty to stop interrogation and ask for clarification simply because he had not expressly waived his rights. "A suspectmay choose to invoke [Miranda] rights at any timepriorto 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 whetherthe defendant is invokingMiranda 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 courtproperly concluded that Mr. Stafford invoked his right to have counsel present during questioning whenhe said "Ineed an attorney, you know?" RP at 65. Prior to this statement, Mr. Stafford did not invoke hisMiranda rightto counsel but, instead,
15No. 29033-6-III 

### State 

### v. Stafford
waived the rightby voluntarily answeringLieutenant Wentz's questions. The trial court did not err in admitting Mr. Stafford's statements. Mr. Stafford's rightto counsel was not violated. 

### 2. Whether the trial court's decision to admit theforensic scientist'sDNA testimony violatedMr. Stafford's constitutional right to confronthis accuser We apply de novo reviewto 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 eventhough she was notthe personwhoperfonned the DNA tests. The Sixth Amendment confrontation clauseprovides that in all criminal prosecutions, the accused shall enjoy the right to be confronted withthe 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 sameresult. 

### 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 orthe defendant has 16No. 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. 

### Bullcomingv. 

### 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 at482. "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

### Luidetermined thatthe confrontation clause is notviolated when an expertwitness at trial presents an independent DNA analysis based
on data generatedby work ofothers in the DNAtestingprocess. "[T]he DNAtesting process does notbecome inculpatory and invoke the confrontation clause until the final step, where a human analyst must use his orher expertise to interpret the machine readings and create a profile." 

### Id at486. 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 otherprofile. 

### Id. at489. 

### "An expert witness may not parrotthe conclusions ofothers and circumvent the confrontation clause[.] 

### An expertmay, however, rely on the work oflaboratory technicians whenreaching his orher conclusion." 

### Id. at 484. Other persons who may
17No. 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. at486. Based on

### Lui, the testimony ofMs. Ward regarding the DNAresults did not violate the confrontation clause. As an expertwitness for the State, Ms. Ward reviewed Mr. Stafford's entire file and generated a report. She also reviewed the reports ofothers inthe lab. From the data, she was able to determine a match betweenthe DNA found on Ms. Yandell and Mr. Stafford's DNA. Ms. Ward did notrely onthe conclusions made by other analysts butreached her own conclusions. The analystwho actually ran the test did not need to be the person who presented the evidence. That analyst was not a witness against Mr. Stafford, butrather facilitated Ms. Ward'srole as an expertwitness. Mr. Stafford's rightto confront each witness against him was not violated by Ms. Ward'sDNAtestimony. 

### 3. Whether the trial court erredwhen it

### admittedthe new testimony of Theresa LaFray Mr. Stafford contends thatthe testimony ofTheresa LaFray should have been excluded because itwas irrelevant and its probative value was substantially outweighed by the danger ofunfairprejudice. 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. 

### 18No. 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 ofdiscretion. 

### State v. 

### Swan, 114 Wn.2d 613,658, 790 P.2d 610 (1990). Similarly, a detennination ofwhetherthe probative value outweighs substantial prejudice is within the broad discretion ofthe trial court and will only be reversed in the exceptional circumstance ofa manifest abuse ofdiscretion. 

### 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 "evidencehaving any tendency to make the existence ofany fact that is ofconsequence to the detennination ofthe action more probable or less probable than itwould be without the evidence." ER 401. "Relevancy
means a logical relation between evidence andthe 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 evidencethat 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 ofa crime is at
19No. 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 canbe excluded "ifits probative value is substantially outweighedby the danger ofunfairprejudice." ER403. Unfairprejudice is that which is
more likely to arouse an emotional response rather than a rational decision by thejury. 

### Gould, 58 Wn. App. at 183. Crucial consideration is givento the word "unfair" when applying ER403 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 

### itmay contribute to proving beyond a reasonable doubt he committedthe crime with which he is charged. Addition of the word 'unfair' to prejudice obligates the courtto 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 herhouse covered in blood on a midsummer night in 1993 was relevant to the crime charged. A logical relation exists between Ms. LaFray'stestimony andMr. 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 thejury. 

### See State v. 

### Thomas, 150 Wn.2d 821,874-75,83
20No. 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). Thetrial court did not abuse its discretion when itconsidered 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'stestimony 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 anemotional response rather that a rational decision by thejury. Also, despite Mr. Stafford's contention, the testimony is notunfairly prejudicial simply because he considers itto 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 ajurywould likely consider rationally ratherthan emotionally. The trial court was well within its discretion when it determined thatthe unfairprejudice ofthe evidence, ifany, was not substantially outweighed by its probative value. 

### 4. Whether the Statepresentedsufficient evidence toprove the essential elements of aggravated first degree murder Mr. Stafford contends thatthe State failed to prove the essential elements of aggravated first degree murder. He focuses his attention onthe elements ofidentity, 21No. 29033-6-III 

### State 

### v. Stafford causation, intent, and premeditation. He also contends that there is no evidence that connects him tothe 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 lightmost favorable tothe prosecution, 

### any rational trier offact 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 defertothe trier offact on issues ofconflictingtestimony, credibility ofwitnesses, and the persuasiveness ofthe evidence. 

### Thomas, 150 Wn.2d at 874-75. "[I]nferences based on circumstantial evidence mustbe reasonable and cannot bebased on speculation." 

### State 

### v. Vasquez, 178 Wn.2d 1, 16,309P.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

22No. 29033-6-III State 

### v. Stafford
reasonable doubt. Apprendiv. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 1471. Ed. 2d435 (2000). Thejury 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) Thatthe intentto cause the death waspremeditated; (3) That Shawna Yandell died as a result ofthe defendant's acts; and (4) That any ofthese acts occurred inthe State ofWashington. CP at 29. Thejury was also asked to find the aggravating circumstance that the murder
was committed inthe course of, in furtherance of, or in immediate flight from the crime offirst or second degree rape. The evidence is sufficientto 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. Thejury could infer from the evidence that Mr. Stafford was with Ms. Yandell onthe night ofher death. Mr. Stafford's DNAtaken from the spermatozoa found in Ms. Yandell's vagina and mouth establishes that he had contact withherprior to her death. Thepresence ofthe spermatozoa also sets the time frame of the contact. While Dr. Thiersch said that semen could last for up to 7 days inthe vagina, he also testified thatthe typical time frame was more like 24 hours. Considering that the autopsy was conducted the morning after Ms. Yandell's bodywas found, the 24 to 30 23

### No. 29033-6-111 State 

### v. Stafford
hourtime frame is consistentwith Mr. Staffordhaving contactwith Ms. Yandell onthe night she died. Thejury could also infer that Mr. Stafford was the person who caused Ms. Yandell's death. Thetestimony ofMs. LaFray established that Mr. Stafford was seen covered in blood sometime during the summerwhenMs. Yandell was killed. Although Mr. Stafford told Ms. LaFray that he was in a fight with a bunch ofMexicans, the fact thathehad no wounds onhis body, yetwas covered inblood, allowed thejury to disbelieve Mr. Stafford's explanation, and concludethatthe truth was more sinister. The jury could find thatthe amount ofblood onMr. Stafford was consistent with the head injury suffered by Ms. Yandell. Furthermore, Mr. Stafford was seen covered in blood close tothe location where Ms. Yandell was last seen alive. Ms. LaFray's home was less than one mile from Sportsman'sPark. Intent. The Statepresented sufficient evidence thatthe personwho inflicted Ms. Yandell's injuries had the intent to kill her. The cause ofdeath was blunt force trauma by multiple blows tothe head. The force was strong enough to fracture her skull more than
once. Thejury could find that a person hadto act with intentto cause such wounds. Also, Ms. Yandell had multiple scrapes and bruises on herbody thatDr. Thierschtestified
were consistent with defensive wounds. The defensive wounds do notpoint to an
24No.**29033~6-II1** State 

### v. Stafford
accidental death but instead an intentional act. Considering thatthejury could infer that Mr. Staffordwas present with Ms. Yandell onthe night ofher death and that he in fact did cause her death, Ms. Yandell's injuries allowed thejuryto also conclude that Mr. Stafford acted with the requisite intenttokill. Premeditation. The State also presented sufficient evidence ofpremeditation. "Premeditation" involves a deliberate formation ofand reflection on the intentto take a human life. State 

### v. Hoffman, 116 Wn.2d 51,82, 804 P.2d 577 (1991). Itincludes 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 inpoint oftime. RCW 9A.32.020(1). Both direct and circumstantial evidence canbe used to establish premeditation. Bingham, 105 Wn.2d at 823-24. Circumstantial evidence can be used where the inferences drawn by thejury are reasonable and the evidence supporting thejury'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 otherweapon, signs ofa struggle, striking a victim from behind, and evidence that sexual assault orrobbery 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 withMs. 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 thatthe attack was prolonged and savage. As noted above, this type ofevidence is sufficient for ajury to infer premeditation. AggravatingFactor. 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 hervagina and her mouth. Additionally, Ms. Yandell'sbody showed evidence ofdefensive wounds. Ms. Yandell did notknow Mr. Stafford. From this evidence, thejury 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. 

### Inconclusion, after reviewing the evidence in the light most favorable to the prosecution, a rational trier offact could have found, beyond a reasonable doubt, that Mr. Stafford committed aggravated first degree murder.



### 26No. 29033-6-II1 State v. Stafford
5. Whether the jury instruction, which requiredthejury to be unanimous when answering the special verdict form, was erroneous Mr. Stafford contends thatthe trial court improperly instructed thejury 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), overruledbyState v. Guzman Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). We review alleged errors oflaw injury 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 ajurythat 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'dinpart by GuzmanNunez, 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 challengeto thejury instruction fails. Priorto the Washington Supreme Court's recent decision in GuzmanNunez, the court in Bashaw recognized the nonunanimity rule developed in State 

### v. Goldberg, 149 27No. 29033-6-III State 

### v. Stafford
Wn.2d 888, 72 P.3d 1083 (2003), that "aunanimousjury decision is notrequiredto find thatthe State has failed to prove the presence ofa special fmding increasing the defendant's maximum allowable sentence." Bashaw, 169 Wn.2d at 146. However, in GuzmanNunez, 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 of juryunanimity." Id. at 709­ 10. The court concluded thatthe challengedjury instructions, which required a unanimous "yes" or "no" decision onthe special verdict form, were correct. Id. at 710­ 11, 719. Here, based on GuzmanNunez, the trial court correctly instructedthejurythat it hadto unanimously agree ''yes'' or "no" when answering the special verdict fonn. Statement of Additional Grounds for Review 

### Inhis statement ofadditional grounds for review, Mr. Stafford contends that his counsel was ineffective for allowing the courtto charge him with rape even though the prosecution was barred by the statute oflimitations. "Todemonstrate 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
28No. 29033-6-III 

### State 

### v. Stafford (2) defense counsel's deficientrepresentation 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 oflimitations onthe rape charge had not expired. The statute oflimitations on first degree rape is 10 years from the date ofcommission or oneyear from the date on which the identity ofthe suspect is conclusively established by DNAtesting 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 "DNAtesting matches the DNAprofile ofan unknown suspectto the DNAprofile 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 laterthat 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 ofevidence for the DNA was broken and thatthe evidence was tainted. A physical object connected with the commission ofa crime mustbe satisfactorily identified and shown to be in substantially the same condition
29No. 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). "'Afailure to present evidence of
an unbroken chain ofcustody does not render an exhibit inadmissible ifit is properly identified as being the same object and in the same condition as it was when it was initially acquired by theparty.'" 

### 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 ofcustody 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 oruncertainty onthepart 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 ofcustody generally is relevant and admissible." 

### State


### v. Rafay, 168 Wn. App. 734, 803, 285 P.3d 83 (2012). The evidence identification reportproduced by Mr. Stafford in his statement of additional grounds does not show a broken chain ofcustody. Thereport documents how evidence technician Kristen Drury tracked down the stored evidence from Ms. Yandell's
case and her difficulties in locating the evidence, but 

### itdoes not show thatthe chain was
30No. 29033-6-II1 State v. Stafford
broken. Furthermore, the chain ofcustody issue was appropriately addressed in the trial court. Ms. Drury appeared at trial and was subject to cross-examination regarding interruptions in the chain ofcustody. Mr. Stafford had the opportunity to discredit the evidence based on the difficulty in locating it. The evidence was properly admitted. Affirm. A majority ofthe 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