IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON 

### ) ) No. 77445-0-I Respondent, 

### ) DIVISION ONE v. 

### ) DEREJE ASRAT DEGFU, AKA DEREJE YAKAYO KEBEDE, 

### ) UNPUBLISHED OPINION 

### ) Appellant. 

### ) FILED: September23, 2019
SMITH, J.

— Dereje Kebede,1 an off-the-clock Uberdriver, picked up 22- year-old J.A. from ataco stand at a known party spot on Capitol Hill at 1:55 am., drove herto a motel in Tukwila, and tried to have sexwith herwhile she was incapacitated. Kebede testified J.A. was not drunk and she initiated and consented to sexual intercourse. Ajury did not accept Kebede’s testimony and convicted him ofattempted second degree rape. On appeal, Kebede argues thatthe State failed to prove he believed J.A.
was incapacitated. But given the overwhelming evidence ofJ.A.’s obvious intoxication, sufficientevidence supports his conviction. The same overwhelming evidence supports a conclusion that any ambiguitywithin thejury instructions
was harmless beyond a reasonable doubt. We also reject Kebede’s claims of

1 Although the State charged the defendant as “Dereje Asrat Degfu,” counsel for appellant and counsel for respondent referto appellant’s last name as “Kebede.” We therefore referto appellant as “Kebede” throughoutthe opinion.No. 77445-0-1/2

prosecutorial misconduct, ineffective assistance ofcounsel, and improper exclusion ofevidence. Finally, none ofthe issues in Kebede’s statement of additional grounds for review (SAG) warrant reversal. We affirm Kebede’s conviction but remand to the trial courtto strike Kebede’s court costs from his judgment and sentence due to his indigency atthe time ofsentencing. FACTS On March 28, 2015, J.A. worked a double shift until around 10:00 p.m. and then met herfriends at a nightclub on Capitol Hill to celebrate her22nd birthday. J.A., whoweighed about 120 pounds, did not have time to eatthat night, and after consuming Red Bull and vodka, shots, and beer, she blacked out. While in the nightclub, J.A. lost hercell phone. She was later kicked out of the club and a black ‘X” was drawn on her hand, signifying that she was too intoxicated to reenterthe club. Kebede, an Uberdriver, dropped off his last passenger at 1:46 am. and signed offofthe Uberapplication. He picked up J.A. at 1:55 a.m. while she was eating ataco in front ofa taco truck. J.A. was trying to flag down a taxi in front of Kebede, but he honked so thatthe taxi would drive offand J.A. would get in his
car. Kebede believed J.A. wanted to go to Des Moines, south of Seattle, but he drove her northeastto theWashington ParkArboretum (Arboretum Park). Atthe park, she looked for her lost cell phone in his car and urinated in some nearby bushes. Kebede then drove J.A. down Martin Luther King Jr. Wayfrom Seattle to a motel in Tukwila, where he attempted to have sexwith her but could not maintain an erection.

2No. 77445-0-1/3 The next morning, J.A. awoke in the motel, still intoxicated, and did not knowwhere she was orwho Kebede was. Kebede told herthatthey had sex. J.A. used Kebede’s phone to call a friend and Kebede dropped offJ.A. atthat friend’s house. After processing that she had been raped, J.A. ran out ofthe house into the frontyard and was kneeling and lying on the ground, screaming and hysterical. A police officersawJ.A. and offered assistance. Afterspeaking with the officer, J.A. decided to go to the hospital fora sexual assault evaluation. The exam revealed Kebede’s saliva DNA (deoxyribonucleic acid) on J.A.’s vaginal area as well as several vaginal injuries. The State charged Kebede with attempted second degree rape. Kebede gave a statementto police thatwas videotaped and later admitted attrial. At trial, Kebede testified thatJ.A. was not drunk and that she initiated theirsexual encounter. Ajury convicted him as charged. Kebede appeals. ANALYSIS Sufficiency ofthe Evidence Kebede argues thatthe State presented insufficient evidence that he intended to have intercourse with a mentally incapacitated person and, therefore, his conviction should be reversed. We disagree. In determining the sufficiency ofthe evidence, we viewthe evidence in the light mostfavorable to the State and determinewhether any rational trieroffact could have found the essential elements ofthe crime beyond a reasonable doubt. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). A challenge to the sufficiency ofthe evidence admits the truth ofthe evidence.

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Statev. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Further, “all reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly against the defendant.” Salinas, 119 Wn.2d at 201. “In determining the sufficiency ofthe evidence, circumstantial evidence is notto be considered any less reliable than direct evidence.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99(1980). “A person is guilty ofan attemptto commit a crime if, with intent to commit
a specific crime, he orshe does any actwhich is a substantial step toward the commission ofthat crime.” ROW 9A.28.020(1). “A person is guilty of rape in the second degree when

. . . the person engages in sexual intercourse with another person

. . . [w]hen the victim is incapable ofconsent by reason of being

. mentally incapacitated.” RCW 9A.44.050(1)(b). “Mental incapacity’ is that condition existing atthe time ofthe offense which prevents a person from understanding the nature or consequences ofthe act ofsexual intercourse whetherthat condition is produced by illness, defect, the influence ofa substance
orfrom some othercause.” ROW 9A.44.01 0(4). Therefore, to committhe crime ofattempted rape in the second degree, “the defendant must intend to have intercourse with a victim incapable ofconsent.” State v. Weaville, 162 Wn. App. 801, 816, 256 P.3d 426 (2011). Second degree rape is a strict liability crime because it has no mens rea. Ct State v. Deer, 175 Wn.2d 725, 731, 287 P.3d 539 (2012) (“As a strict liability crime, child rape in the third degree requires no proofof mens rea.”). In other words, the defendant’s “knowledge” ofthe victim’s incapacity is not a statutory

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element ofsecond degree rape. State v. Lough, 70 Wn. App. 302, 328 n.20, 853 P.2d 920 (1993), affd, 125 Wn.2d 847, 889 P.2d 487 (1995). Therefore, a defendant may assert an affirmative defense and “prove by a preponderance of the evidence that atthe time ofthe offense the defendant reasonably believed thatthe victim was not mentally incapacitated.” RCW 9A.44.030(1). Butwhen the crime is not completed and is charged as attemptedsecond degree rape, there is a mens rea requirement because the State must prove that the defendant intendedto have intercoursewith a victim who is incapable of consent. Weaville, 162 Wn. App. at 816. Washington “require[sJ the highest possible mental state forcriminal attempt because criminal attemptfocuses on the dangerousness ofthe actor, notthe act.” State v. Johnson, 173 Wn.2d 895, 905, 270 P.3d 591 (2012). Therefore, it is not sufficientforthe State to prove onlythatthe defendant intended to have sexual intercourse. The State must prove thatthe defendant intended to have sexual intercourse with an incapacitated victim. Cl~ Johnson, 173 Wn.2d at 907 (disapproving ofthe statement in State v. Chhom, 128 Wn.2d 739, 743, 911 P.2d 1014 (1996), that defined the criminal result of rape ofa child as sexual intercourse alone). That said, intent “may be inferred from all the facts and circumstances surrounding the commission ofan act oracts.” State v. Bergeron, 105 Wn.2d 1, 19, 711 P.2d 1000 (1985); State v. Abuan, 161 Wn. App. 135, 155, 257 P.3d 1(2011) (Criminal intent may be inferred “from conductthat plainly indicates such intent
as a matterof logical probability.”).

5No. 77445-0-1/6 In Johnson, the State charged the defendantwith attempted promotion of commercial sexual abuse ofa minor. Johnson, 173 Wn.2d at 909. There, the minorvictims were fictitious and the actual communications forwhich the defendantwas prosecuted occurred with adultwomen posing as minors. Johnson, 173 Wn.2d at 897. The Supreme Court held that its statement in State
v. Patel, 170 Wn.2d 476, 485, 242 P.3d 856 (2010), that “a defendantwho attempts to have sexwith a person he believes is underage but is actually an adult may not be convicted” ofattempted child rape, was dicta. Johnson, 173 Wn.2d at 904. It clarified that “[tjhe State must prove the age ofthe intended victim to prove thatthe defendant intended to have sexual intercoursewith a child.” Johnson, 173 Wn.2d at 908. Similarly, to obtain a conviction for attempted second degree rape, the State must prove thatthe defendant intended to have intercourse with an incapacitated person. Here, taking the evidence in the light mostfavorable to the State, there
was sufficient evidence that Kebede intended to have intercoursewith a person who was incapable ofconsent. J.A. testified that she blacked out atthe nightclub, was kicked out, and had a black ‘X” on herwrist. One ofJ.A.’s friends testified thatJ.A. seemed very drunk and was hanging onto afriend forsupport outside ofthe nightclub aftershe was kicked out. Kebede testified that he turned off his Uberapplication just before he picked up J.A. in front ofa taco stand on Capitol Hill. Instead ofdriving south and taking J.A. to Des Moines, where he believed she lived, he drove her northeast toArboretum Park, where J.A. urinated in the bushes and looked for her lost phone in his car. Kebede admitted

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that he told a detective thatwhen he picked up J.A., she was “tipsy,” would have been overthe legal limitto drive, and was acting unlike “99 percent” of his other passengers. From this evidence, a rationaljuror could reasonably have inferred from the surrounding facts and circumstances that Kebede intended to have intercourse with J.A. while she was incapacitated. Although Kebede testified that J.A. was not drunk, thejury, whowas in the best position to weigh the credibility and persuasiveness of Kebede’s perceptions, clearly did not believe him. Kebede argues thatthe evidence was insufficient because there was contradicting testimony regarding the level ofJ.A.’s intoxication. But on a sufficiency challenge, all evidence must be taken in the light mostfavorable to the State. The evidence outlined above, when taken in the light mostfavorable to the State, was sufficientto prove that Kebede believed J.A. was intoxicated and incapable ofconsent. Jury Instructions Kebede argues that his rightto due process was violated because thejury instructions failed to clarifythatthejury needed to find that he intended to have
sexwith an incapacitated person. Because any errorwas harmless, we disagree. “We review alleged errors of law injury instructions de novo.” State v. Nelson, 191 Wn.2d 61, 69, 419 P.3d 410 (2018) (quoting State v. Boss, 167 Wn.2d 710, 716, 223 P.3d 506 (2009)). “An omission or misstatement ofthe law in ajury instruction that relieves the State of its burden to prove every element of the crime charged is erroneous.” Nelson, 191 Wn.2d at 69 (quoting State v.

7No. 77445-0-1/8

Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004)). “The standard for clarity in a jury instruction is higherthan fora statute” because “ajury lacks

. . . interpretive tools and thus requires a manifestly clear instruction.” State v. LeFaber, 128 Wn.2d 896, 902, 913 P.2d 369 (1996), abrogated on othergrounds ~y State v. O’Hara, 167 Wn.2d 91, 217 P.3d 756 (2009). ‘[Am omission or misstatement may nevertheless be subjectto harmless error analysis.” Nelson, 191 Wn.2d at 69. An omission or misstatement is harmless if it appears beyond a reasonable doubtthatthe error complained ofdid not contribute to the verdict obtained. Nelson, 191 Wn.2d at 69. LeFaber is instructive here. In that case, the trial court gave thejurythe pattern instruction on self-defense, which separated the terms “reasonably believed” and “imminent danger” in separate subsections. LeFaber, 128 Wn.2d at 901. The Supreme Court held thatthe grammatical structure ofthe instruction created an ambiguitythat “permit[ed] an erroneous interpretation ofthe law.” LeFaber, 128 Wn.2d at 902. The court reasoned that “[a]lthough ajuror could read instruction 20 to arrive atthe proper law, the offending sentence lacks any grammatical signal compelling that interpretation overthe alternative, conflicting, and erroneous reading.” LeFaber, 128 Wn.2d at 902-03. The same is true here, where the trial court gave this to-convict instruction, which is based on the pattern instruction:

To convictthe defendant ofthe crime ofAttempted Rape in the Second Degree, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: (1) That between the dates of March 28, 2015 and March 29, 2015, the defendant did an actthatwas a substantial step toward the commission of rape in the second degree; 8No. 77445-0-1/9 (2) Thatthe actwas done with the intentto commit rape in the second degree; and (3) Thatthe act occurred in the State ofWashington. Ifyou find from the evidence thateach ofthese elements has been proved beyond a reasonable doubt, then itwill be your dutyto return a verdict ofguilty. On the other hand, if, afterweighing all the evidence, you have a reasonable doubt as to any one ofthese elements, then it will be yourdutyto return a verdict of not guilty. A previous instruction stated that “[a] person commits the crime of rape in the second degreewhen he engages in sexual intercourse with another person when the other person is incapable ofconsent by reason of being mentally incapacitated.” Although the to-convict instruction properly states the intent element, the separation ofthe definition ofsecond degree rape from the intent element creates an ambiguity. As discussed in the previous section, the State must prove that Kebede intended to have intercourse with an incapacitated person. Butthe jury could have read the instructions to require itto find onlythat Kebede intended to have intercourse with J.A. when she was incapacitated, without believingthat she was incapacitated. Put anotherway, it is not clearfrom the instructions that Kebede must have intended to have intercoursewith a person who he believed was incapacitated, and notjust a person who happensto be incapacitated. This analysis is consistentwith ourdecision in In re Personal Restraint of Hubert, 138 Wn. App. 924, 158 P.3d 1282 (2007), an attempted second degree rape case where the victim was asleep and helpless, ratherthan incapacitated. Although that case considered whetherdefense counsel was ineffective for

9No. 77445-0-1110

failing to request an affirmative defense instruction, its analysis ofthe to-convict instruction is helpful. We explained:

There is no intent elementfor rape. To commit an attempt, however, the defendant must intend to committhe crime charged. Here, that means the defendant must intend to have intercourse with a victim incapable ofconsent. Thejurywas so instructed. But this did not illuminate forthejurywhetherthe defendant must be found to intend intercourse with a person he knows to be helpless, or merely intercoursewith a person who happens to be helpless whetheror notthe defendant realizes it. Thejurywas unaware that if Hubert reasonably believed Wood had capacityto consent, his beliefconstituted a defense to the charge. Thejurythus had no wayto understand the legal significance ofthe evidence supporting the reasonableness of Hubert’s beliefthatWood was awake and capable ofconsenting to his advances. The attempt instruction does nothing to cure the absence ofthe reasonable belief instruction. Hubert, 138 Wn. App. at 931-32 (footnote omitted). As in Hubert, the instructions here did not make clearto thejurythat intending to have intercourse with a person who happens to be incapacitated is not sufficientto convict. The State argues that Kebede’s reliance on Hubert and Johnson is “out of context” because neither case reversed on the grounds ofan instructional error. In Hubert, the issue was whether defense counsel was ineffective forfailing to propose an affirmative defense instruction, and in Johnson, the issue was whetherthere was sufficient evidence to convictthe defendant. While these
cases may not constitute controlling authority on the propriety ofthe instruction given here, they are persuasive because they address whatthe State must prove and whythe pattern instructions might be confusing. Therefore, the State’s attemptto distinguish these cases is not persuasive.

10No. 77445-0-Ill I Because the instruction was ambiguous, we must next considerwhether the ambiguitywas harmless. An omission or misstatement is harmless if it appears beyond a reasonable doubtthatthe error complained ofdid not contribute to the verdict obtained. Nelson, 191 Wn.2d at 69. During oral argument, the State argued thatthe ambiguitywas harmless, and we agree thatthere was overwhelming evidence from which thejury could have found Kebede reasonably believed thatJ.A. was intoxicated and unableto consent. Although Kebede maintained J.A. was not drunk and did consentto intercourse, the evidence presented established that he intended to have intercoursewith herwhile believing she was incapacitated such that any instructional ambiguitywas harmless beyond a reasonable doubt. Forexample, Kebede’s own testimony is evidence that he intended to have intercourse with J.A. while she was obviously intoxicated. Kebede testified that he dropped off his last passengerat 1:46 am. and signed offofthe Uber application. Kebede then picked J.A. up at 1:55 a.m. on Capitol Hill at a known partyspot. Even though J.A. was trying to flag down a taxi in front of him, Kebede honked so thatthe taxi would drive offand J.A. would get into his car. Kebede explained that passengers who are drunk throw up, converse inappropriately, and complain that he is not going the right direction. Although he asserted thatJ.A. was not drunk, Kebede stated that once J.A. got in the car, she began “messing around” and telling him “go straight. Go right. Go Left.” He also said that although “99 percent [of passengers] are respectful and talkto you properly; she’s above that.” He testified thatJ.A. also sat in his front seat and

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held his hand, whereas most customers sit in the back. Kebede then testified he followed J.A.’s nonsensical directions and drove northeasttoArboretum Park, which is in the opposite direction ofJ.A.’s alleged destination. J.A.’s failure to give accurate directions makes no sense ifshe were sober. When they stopped atthe park, J.A. searched the carfor her cell phone, even looking for it in his glove box (where it could not have been) and urinated in the nearby bushes. Furthermore, Kebede admitted that he thought J.A. had been drinking. Specifically, he testified that although he could nottell whetherJ.A. had any alcohol, he “guess{ed] maybe she had some.” Previously, he told a detective that she was “tipsy.” Kebede’s testimony describes the behaviorofsomeone who was extremely intoxicated. Despite his self-serving statements that he did not believe J.A. was intoxicated, the rest of his testimony is evidence that he believed she
was. This, combined with the factthat she was kicked out ofthe nightclub and had a large “X” on her hand, is overwhelming evidence that Kebede believed J.A.
was intoxicated and unable to consent. Therefore, the trial court’sfailure to more clearly instructthejurythat it mustfind he intended to have intercourse with an incapacitated person was harmless beyond a reasonable doubt. Kebede argues thatthe instructions were prejudicial because there was conflicting evidence about howdrunkJ.A. was and Kebede’s own behaviorwas consistent with consent. We disagree. First, Kebede places too much weight on the other club-goers’ testimony. It is true that one ofJ.A.’s friends from that nighttestified that he told a detective

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that J.A. “didn’t sound crazy” that night. Butwhen asked what he meant by “crazy,” the witnesses stated, “She didn’t seem—I mean, she seemed drunk, yes; butwas she out of her mind, completely crazy, no. I’ve never seen—you don’t
see people like that. She wasn’t on drugs oranything.” Anotherwitness reported that J.A. seemed “pretty normal” that night and he did not remember anyone “getting out of hand.” But he also admitted that he “d[idjn’t know [J.A.] well enough.” Finally, a witness who was not drinking that nighttestified that she had a one minute conversation with J.A. after 10:30 p.m. and J.A. did not appear “wasted.” Butthatwitness also testified that she had no information about how intoxicated J.A. was later in the nightwhen J.A. leftthe club. None ofthis testimony, when taken in context, directly conflicts with the other overwhelming evidence ofJ.A.’s obvious intoxication. Second, Kebede’s behaviorwas not consistentwith consent. Although he stayed the nightwith J.A., let her use his phone, gave her a ride home, and later cooperated with police, the morning afterthe attempted rape, he lied to J.A., telling herthatthey met at a barthe night before, that he was not an Uberdriver, and thatthey had sex. Presumably, he told these lies in orderto conceal his activities from the previous night. Furthermore, Kebede’s bold-faced lies indicate that he believed J.A. was too drunkto rememberwhat happened. Forthese reasons, Kebede has not shown that he was prejudiced.

Ineffective Assistance of Counsel Kebede argues that defense counsel was ineffective forwithdrawing a statutory affirmative defense instruction thatthejury could acquit if he proved by

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a preponderance ofthe evidence that he believed J.A. was not mentally incapacitated. We disagree. To prevail on a claim of ineffective assistance ofcounsel, a defendant must showthat his counsel’s performance was deficient and thatthe deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334- 35, 899 P.2d 1251 (1995). “Performance is deficient if itfalls ‘belowan objective standard of reasonableness based on consideration ofall the circumstances.” Statev. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting McFarland, 127 Wn.2d at 334-35). There is a strong presumption that counsel’s representation was reasonable and that performance is not deficient ifcounsel’s conduct can be characterized as legitimate trial strategy ortactics. Estes, 188 Wn.2d at458. A defendant accused ofsecond degree rape can raise an affirmative defense that “atthe time ofthe offense the defendant reasonably believed that the victim was not mentally incapacitated.” RCW 9A.44.030(1). The affirmative defense must be proved by a preponderance ofthe evidence. RCW 9A.44.030(1). Here, defense counsel proposed an instruction on this affirmative defense but later requested that it be removed from thejury instructions. This decision
was a legitimate trial strategy. The affirmative defense is available forthe crime ofsecond degree rape because that crime has no mens rea. Butthe affirmative defense is not necessaryforthe crime ofattempted second degree rape because

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the State must prove thatthe defendant intended to have intercourse with an incapacitated person, which necessitates a finding thatthe defendant believed the victim was incapacitated. Ct Johnson, 173 Wn.2d at 907. In this circumstance, use ofthe affirmative defense would have shifted the burden from the State to Kebede to prove that he did not believe thatJ.A. was incapacitated. Because the State bore the burden to prove that Kebede believed J.A. was incapacitated beyond a reasonable doubt, defense counsel legitimatelywithdrew the affirmative defense instruction thatwould have shifted that burden of proof from the State to Kebede. Kebede argues that Hubert requires reversal. There, the defendantwas also charged with attempted second degree rape. Despite evidence thatthe defendant believed the victim consented to a sexual encounter, defense counsel did not argue thatthis constituted an affirmative defense or request an instruction
on the affirmative defense. Hubert, 138 Wn. App. at 929. Defense counsel admitted that he failed to do so because he was notfamiliarwith the defense. Hubert, 138 Wn. App. at 929. We held that defense counsel’s performance was deficient. Hubert, 138 Wn. App. at 930. But Hubertwas decided before Johnson clarified thatthe State must prove a higher mens rea forattemptedsecond degree rape than forsecond degree rape. Furthermore, defense counsel in Hubert admitted that his failure to requestthe affirmative defense instruction was not a trial tactic. Here, defense counsel was veryfamiliarwith the affirmative defense and the holding in Johnson and made a strategic decision to leave the

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burden of proving Kebede’s beliefofJ.A.’s state of intoxication with the State. Hubert does not require reversal. Kebede also cites State v. Powell, 150 Wn. App. 139, 206 P.3d 703 (2009), as requiring reversal. There, the defendantwas charged with second degree rape, and the Court ofAppeals held that defense counsel deficiently failed to requestthe affirmative defense instruction. Powell, 150 Wn. App. at 155. But here Kebede was charged with attempted second degree rape. As already explained, Johnson requires thatthe State prove Kebede intended to have intercourse with an incapacitated J.A. This is an additional mens rea element notfound in second degree rape. Therefore, Kebede’s counsel was not deficient in choosing to hold the State to its burden, ratherthan shift itto Kebede. Powell does not require reversal. Prosecutorial Misconduct Kebede argues thatthe prosecutorcommitted reversible misconduct by repeatedly misstating the law in closing argument. We disagree. “To prevail on a claim of prosecutorial misconduct, the defendant must establish ‘thatthe prosecutor’s conductwas both improper and prejudicial in the context ofthe entire record and the circumstances attrial.” State v. Thorcierson, 172 Wn.2d 438, 442, 258 P.3d 43(2011) (internal quotation marks omitted) (quoting State v. Maqers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). “A prosecuting attorney commits misconduct by misstating the law.” State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). But “[i]fthe defendant did not object, he is deemed to have waived any error, unless the prosecutor’s misconductwas

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so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.” State v. Whitaker, 6 Wn. App. 2d 1, 15-16, 429 P.3d 512 (2018), review ciranted, 193 Wn.2d 1012 (2019). “Underthis heightened standard, the defendant must showthat (1) ‘no curative instruction would have obviated any prejudicial effect on thejury’ and (2) the misconduct resulted in prejudice that had a substantial likelihood ofaffecting thejuryverdict.” State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting Thorgerson, 172 Wn.2d at455). Here, during closing argument, the prosecutorexplained: So really, itwill get down to these two questions, did the defendanttake a substantial step towards committing the act of rape in the second degree. So what is rape in the second degree? Howdo you know ifsomeone has the intentto commit rape in the second degree? Rape in the second degree is sexual intercourse with another person who was incapable ofconsent by reason of being mentally incapacitated. She then argued thatthejury needed to consideronlytwo contested elements. For example, the prosecutorstated, “[cjurrentlywe’re asking ourselves, did he try to have sexwith her, and was she too drunkfor him to be doing that; that’s it. That’s what it comes down to.” Additionally, she stated thatthere was “compelling medical evidence thatthe defendant not onlytookthat substantial step towards having sexwith [J.A.], butthat she alsowas incapable of consenting atthe time and didn’t consent.” Later, the prosecutorstated, “[t]hose two aspects ofthis case are incredibly compelling

. . .—did he tryto have sex with her, was she too drunkto consent.”

17No. 77445-0-1/18 During these arguments, the prosecutoralso argued thatJ.A.’s incapacitation was obvious: witness testimony highlighted “why it’s so likelythat [J.A.] was clearly incapable ofconsentthat night” and testimonythatJ.A. was hanging onto herfriends was evidence of herdrunkenness that “would likely have been usable [sic] to Mr. Kebede.” She also disagreed with Kebede’s observations ofJ.A.’s sobriety: All the (inaudible) thatyou heard; oh, no, no, it’s not because she’s drunk, guys. She’s not drunkeven though everysingle sign points towards she is. It’s 1:40 in the morning on Capitol Hill, a girl dressed up in party clothes, chowing down on some tacos atthe taco stand, gets in the car, “let’s go,” starts swearing again, and grabs your hand and you’re saying that girl’s not drunk? Well, somehow, Mr. Kebede wanted you to believe that he is a greatjudge ofcharacter, and that’s part of hisjob, and he can read people, and that’s an important aspect of his career, and he can tell when people are drunk; butthen when specifically asked about [J.A.], he won’t commit. Atfirst he wants to say, no, no I can’t [tell] ifshe’s drinking milkversus alcohol; butthen when confronted, you actually did sayshe was drinking. You did sayshe was tipsy, and starts to start backpedaling. You sawthat a lot throughout his testimony, a lot of backpedaling, a lot ofexcuses, explanations, not answering the direct question. Itwas clear [J.A.] was drunk, and he even said itto the detective, “She’s tipsy.” Defense counsel did not objectto any ofthe prosecutor’s closing arguments. In his own closing argument, defense counsel argued that J.A. was notthat drunkand highlighted testimony from J.A.’s friends atthe club that she did not seem drunk. He also acknowledged that as argued bythe prosecutor, consent is “the central issue in this case.” In explaining the to-convict instruction, defense counsel correctly explained whatthe State must prove based on Johnson:

So the State needs to prove beyond a reasonable doubtthat Mr. Kebede knew [J.A.] was mentally incapacitated in orderto be 18No. 77445-0-1/19 able to prove intent; they have to prove he knew it. And the intent definition is instructed in Instruction 8. It’s a very straightforward, “Acting with the objective or purpose to accomplish a resultthat constitutes a crime.” What is his purpose? Whatwas he trying to accomplish? Accomplishing a sexual act is not enough to constitute a crime. It has to be sexwith a mentally incapacitated person, and they have to prove he knew it.

And in orderfor him to have that specific intent, they have to prove he knewshe was mentally incapacitated. On rebuttal, the prosecutor again focused on J.A.’s incapacitation, arguing, “Rememberthere’s the, did he tryto have [sex] with her, and was she too drunkto consent is kind ofwhat it comes down to.” The prosecutor argued further, “it really comes down to was she too intoxicated to consent” and “really, it
comes down to was she too drunkto have sex.” But she also responded to defense counsel’s argument that Kebede did not knowJ.A. was intoxicated: you knowshe’s drunk because it’s 1:40 in the morning on Capitol Hill, because herfriends say she was hanging onto a buddyfor support, because she was acting erratic and unusual is fardifferent than 99 percent ofthe people that he drove, because he said that almost always he’s picking up drunk people, because he said that she was tipsy, because she’s peeing on the side ofa bush in front ofa stranger, because she’s acting disrespectful, mouthy, bossy, rude, because she can’t rememberwhere her phone is. She can’t rememberwhere her money is, she’s searching on her hands and knees crawling in the back ofthe car, because she doesn’t even knowwho that guy is when she wakes up. Ifall ofthose things can tell you that she was too drunk, and those were all ofthe bits of information thatthat man had. Taken in context, the prosecutor’s argumentwas not a misstatement ofthe law. Both in closing and rebuttal, the prosecutorexplained that J.A.’s extreme intoxication was obvious and that Kebede’s testimonyto the contrary was not credible.

19No. 77445-0-1120 But even ifthe prosecutor’s repeated focus on the substantial step and J.A.’s incapacitation was a misstatement ofthe law, these misstatements are not reversible misconduct because they could have been cured by an instruction to thejury. The trial court agreed thatJohnson was applicable to this case. But during closing arguments, defense counsel did not object to the prosecutor’s arguments or requestthatthe trial courtfurther instructthejury or clarifythe intent required underJohnson. Therefore, Kebede has not demonstrated that the prosecutor’s statements were prejudicial. Ct Statev. Blizzard, 195 Wn. App. 717, 733, 381 P.3d 1241 (2016) (“A defendantwho waits until appeal to raise misconduct arguments bears a heavy burden.”), review denied, 187 Wn.2d 1012 (2017).Kebede argues thatthe prosecutor’s misstatement ofthe law could not have been cured by an instruction to thejury because the trial court “consistently refused to instructthejury on the specific intent element” and thejury instructions
were ambiguous. It is true thatthe trial court refused to give Kebede’s proposed to-convict instruction, which required the State to prove that “the defendant knew [J.A.] was incapable ofconsent by reason of being mentally incapacitated.” The trial court did so because it believed thatthe pattern instruction adequately stated the intent element, as required in Johnson, which it agreed was an accurate statement ofthe law. Therefore, it does notfollowfrom the trial court’s refusal to give defense counsel’s proposed to-convict instruction thatthe courtwould also have refused to give an instruction to correct a misstatement ofthe law based on Johnson.

20No. 77445-0-1/21 Kebede next cites In re Personal Restraint ofGlasmann, 175 Wn.2d 696, 286 P.3d 673 (2012) (plurality opinion), to argue thatthe prosecutor’s repeated misrepresentation ofthe law prejudiced him. But in Glasmann, the prosecutor improperlyexpressed his personal opinion ofGlasmann’s guilt. Glasmann, 175 Wn.2d at 706. Here, the prosecutor’s argumentwas not an improper misstatementofthe law. In fact, she argued during closing and rebuttal that J.A.’s level of intoxication was obvious and Kebede’s testimony that she appeared soberwas not credible. Therefore, reversal is notwarranted. Exclusion of DNA Evidence Kebede argues thatthe trial courtdenied his rightto present a defense by excluding DNA evidence ofJ.A.’s additional sexual encounters underthe rape shield statute. We disagree. “The right ofan accused in a criminal trial to due process is, in essence, the rightto a fair opportunityto defend againstthe State’s accusations.” State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). Butthe rightto present a defense is not absolute. Jones, 168 Wn.2d at 720. “Evidence that a defendantseeks to introduce ‘must be ofat least minimal relevance.” Jones, 168 Wn.2d at 720 (quoting State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)). Ifthe defendant seeks to admit relevant evidence, “the burden is
on the State to showthe evidence is so prejudicial as to disruptthe fairness of the fact-finding process attrial.” Jones, 168 Wn.2d at 720 (quoting Darden, 145 Wn.2d at 622). “The State’s interest in excluding prejudicial evidence must also

21No. 77445-0-1/22

‘be balanced against the defendant’s need forthe information sought,’ and relevant information can be withheld only ‘ifthe State’s interest outweighs the defendant’s need.” Jones, 168 Wn.2d at 720 (quoting Darden, 145 Wn.2d at 622). “[FJorevidence ofhigh probative value ‘it appears no state interest can be compelling enough to preclude its introduction consistentwith the Sixth Amendment and Const. art. 1, 

### § 22.” Jones, 168 Wn.2d at 720 (quoting State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983)). The rape shield statute provides: Evidence ofthe victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, orsexual mores contraryto community standards is inadmissible on the issue ofcredibility and is inadmissible to prove the victim’s consent. RCW 9A.44.020(2). The statute applies onlyto past sexual behavior and “was not designed to prevent defendants from testifying as to theirversion ofevents butwas instead created to erase the misogynistic and antiquated notion that a woman’s past sexual behaviorsomehow affected her credibility.” Jones, 168 Wn.2d at 723. In Jones, the defendantwanted to testifythat his sexual contactwith his niece was consensual and took place during an all-night sex party in which his niece engaged in consensual sexwith two other men. Jones, 168 Wn.2d at 717. The trial court excluded the defendant’s testimony underthe rape shield statute. Jones, 168 Wn.2d at 717-18. The Supreme Court ultimately concluded thatthe rape shield statute did not apply because the excluded evidence referred to conduct onthe night ofthe alleged rape, notto past sexual conduct. Jones, 168 Wn.2d at 723. It also concluded thatthe sex party evidence was the defendant’sNo. 77445-0-1/23

‘entire defense,” and that “even ifthe rape shield statute did apply, the sex party testimony is ofextremely high probative value and cannot be barred without violating the Sixth Amendment.” Jones, 168 Wn.2d at 724. Here, J.A. wore a one-piece swimsuitwith a skirt over it on the night ofthe attempted rape. During hersexual assault exam, the nurse collected the swimsuit and obtained a perineal vulvar swab ofJ.A.’s person. A piece ofthe swimsuit’s crotch and the swab were submitted for DNAtesting. Testing ofthe perineal vulvar swab identified Kebede’s DNA as well as a smalleramount of DNAfrom an unknown male, referred to as “Individual A.” Testing ofthe swimsuitsample identified DNAfrom at leastfour male individuals, but due to the complexity ofthe mixture, no additional information could be obtained from it. The State moved to exclude the DNA evidence from the swimsuit. In response, Kebede argued thatthe rape shield statute did not apply because there was “no reason to believe thatthe biological evidence was left behind at
some point priorto the night in question” and, therefore, itwas not evidence of past sexual behavior. Kebede also argued thatthe evidence was necessary to support his statement to poHce thatJ.A. smelled like she had sex alreadythat night and to rebutthe State’s theorythat he caused J.A.’s vaginal injuries. The trial court granted the motion to exclude the DNA evidence from the swimsuit, holding that itwas “far less relevant” than the DNA evidence from Individual A, which was admitted, and that its probative value was far outweighed bythe prejudice itwould cause.

23No. 77445-0-1/24 The trial court’s decision did notviolate Kebede’s rightto present a defense. The trial court admitted the DNA evidence from Individual A, which supported Kebede’s theorythatJ.A. had sex earlierthat night and that Individual A caused hervaginal injuries. In comparison, the swimsuit evidence was neither highly probative norvital because no further information about how orwhen the DNAwas left on the swimsuit could be obtained and the DNAfrom Individual A
was admitted. Therefore, this case is distinguishable from Jones because the excluded evidence was not Kebede’s entire defense. Kebede argues thatthe State opened the doorto the swimsuit DNA evidence during J.A.’s testimony and the trial court erred by denying his motion to admit it. ‘A party may open the doorto otherwise inadmissible evidence by introducing evidence that must be rebutted in orderto preserve fairness and determinethe truth.” State v. Wafford, 199 Wn. App. 32, 36-37, 397 P.3d 926, review denied, 189 Wn.2d 1014 (2017). ‘The decision to admit evidence lies within the sound discretion ofthe trial court and should not be overturned absent
a manifest abuse ofdiscretion.” Wafford, 199 Wn. App. at 36. Here, J.A. testified that she did not consentto having sexwith Kebede and she “would never.” She also testified that she told police that as a young girl in herearlytwenties, she did not need to go to a motel “to get laid,” thatshe had
never had a one-night stand, and that ifshe wanted to have one there were other age-appropriate peers atthe nightclub she could have gone home with. Kebede then moved to admitthe swimsuit DNA evidence, arguing it suggested that perhaps J.A. did have sexwith an age-appropriate peerthat night. The trial court

24No. 77445-0-1/25

denied Kebede’s motion, finding that although the prosecutor “got pretty close” to opening the door, the prejudice ofthe evidence faroutweighed its probative value. When Kebede asked the courtto reconsider its decision, the trial court declined, explaining thatthe swimsuit DNA evidence was not relevant because there was no information aboutwhen or howthe DNA got onto the swimsuit. The trial court did not abuse its discretion in denying Kebede’s motion. Kebede was able to argue that J.A. had sexthat nightwith Individual A. The swimsuit DNA evidence was highly prejudicial and of low probative value given the admission ofthe DNA of Individual A. Furthermore, in the absence ofany evidence of howthe DNA got onto the swimsuit, the swimsuit evidence was irrelevantto Kebede’s theory because there was no wayto tell whetherthe DNA
was transferred during the night ofthe attempted rape orduring a one-night stand, as Kebede suggested. Kebede’s rightto present a defense was not violated by its exclusion. Court Costs Kebede challenges the imposition of$110 in court costs as part of his legal financial obligations, and the State concedes thatthe court costs must be struckfrom hisjudgment and sentence. We acceptthe State’s concession. RCW 10.01.160(3) prohibits trial courts from imposing costs on defendants who are indigent atthe time ofsentencing. This statute, amended effective June 7, 2018, applies prospectivelyto cases on direct appeal when the amendmentwas enacted. State v. Ramirez, 191 Wn.2d 732, 749, 426 P.3d 714 (201 8).

25No. 77445-0-1/26 Here, Kebede declared that he was indigent atthe time ofsentencing. His judgment and sentence was filed on September 14, 2017, and is still on direct appeal. Therefore, the costs must be struckfrom hisjudgment and sentence. We acceptthe State’s concession and remand forthe trial courtto strike the court costs. SAG Kebede filed a SAG that includes 15 numbered topics. We hold that none ofthem require reversal. When considering issues raised in a SAG, we will consideronly arguments that are not repetitive of briefing. RAP 10.10(a). We alsowill not consider a defendant’s SAG if it does not inform the court ofthe nature and
occurrence ofthe alleged errors. RAP 10.10(c); State v. Bluehorse, 159 Wn. App. 410, 436, 248 P.3d 537 (2011). We are not required to search the record in support ofclaims made in the SAG. RAP 10.10(c). Complaints about attorney performance cannot be entertained ifthe attorney’s conduct “can be characterized as legitimate trial strategy ortactics.” State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). “Finally, issues that involve facts or evidence not in the record are properly raised through a personal restraint petition, not a [SAG].” State v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496 (2013). The firsttwo issues Kebede raises are claims of ineffective assistance of counsel. They involve his attorney’s failure to retest DNA evidence or investigate whether his police interviewvideo was altered and his attorney’s recommendation to proceed to ajurytrial ratherthan a bench trial. All ofthese

26No. 77445-0-1/27

decisions can be characterized as legitimate trial strategies. Therefore, reversal is not required. Kebede also claims that hewas not given “items from the evidence.” Although he includes page numbers forthese items, he does not specifywhatthey are, and it is impossible to determine what he is referring to. Because he has not properly identified the missing items, we need not reach this issue. The third issue Kebede raises is ajuryselection issue. Without any citation to the record, he states thatfivejurors were unfairly excused during voir dire and one biasedjurorwas retained. Because he does not provide any citation to the record or identifythejurors by number, we need not considerthis argument. Issues 4 through 12 point out alleged inconsistencies in various witnesses’ testimony. But “[cjredibility determinations are forthe trieroffact and are not subjectto review.” State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). As determined above, sufficient evidence supported Kebede’s conviction. His recitation ofconflicting evidence does notwarrant reversal. Issues 13 and 14 involve the trial court. First, Kebede asserts thatthe trial court asked defense counsel if he was readyfortrial and defense counsel said that he was not. It is unclearwhat error Kebede is alleging, and there is no citation to the record. Therefore, we need not review it. Kebede also alleges that he was disrespected because the prosecutorwas smiling during trial, but he does not explain howthis affected his trial. Kebede states that he could not understand most ofthejury instructions and he could not see most ofthe

27No. 77445-0-1/28

exhibits. His SAG does not indicate that he broughtthis to the attention ofthe court oralerted defense counsel. Therefore, he has waived any claim on this basis. Finally, Kebede claims that itwas unfairthat evidence that he tore J.A.’s clothes was admitted butthe trial court excluded DNA evidence from J.A.’s swimsuit. As discussed above, the trial court did not abuse its discretion in excluding the swimsuit evidence. None ofthese issues require reversal. Issue 15 includes errors Kebede accuses the prosecutor of making. First, he argues that she erred in stating that J.A.’s alcohol contentwas 1 .5 times the legal limit because her blood alcohol level was measured at 0.00 during her sexual assault exam. Butthe alcohol in her urine was measured at 0.12, so the prosecutor’s statementwas not incorrect. Next, he claims thatthe prosecutor stood too close to thejury and influenced them by doing so. Because Kebede did not objectto the prosecutor’s positioning during trial, he has waived this argument on appeal. Finally, he asserts thatthe prosecutorfailed to turn over the video ofan interview J.A. gave to a news reporter. Butthe record indicates thatthe trial court denied Kebede’s motion to subpoena the video from the news station and excluded the evidence. Therefore, the record does not support his argumentthatthe State refused to give him the video. Finally, in issue 16, Kebede contends thatthe police interviewvideo was altered. Because this claim relies on evidence outside the record, we cannot consider it. ~ McFarland, 127 Wn.2d at 338 n.5 (“[A] personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record.”).

28No. 77445-0-1/29 We affirm but remand forthe trial courtto strike Kebede’s court costs from hisjudgment and sentence.

~AAAjA’ WE CONCUR:

V

~

29