IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ~ DIVISION ONE STATE OF WASHINGTON, Respondent,

v. WILLIE DARNELL BLAKENEY, Appellant. m 

### No. 72367-7-1 2

en 

# UNPUBLISHEDOPINION jf
CO
FILED: December 15, 2014 

### Schindler, J. — A jury convictedWillie Darnell Blakeney of rape in the second 

### degree. Blakeney appeals, arguing the court erred in admitting the victim's prior consistent statement under ER 801(d)(1)(ii). Because the error was harmless beyond a reasonable doubt, we affirm. FACTS 

### In October2011, 49-year-old F.M. was homeless and living on the streets in 

### downtown Tacoma. In the earlymorning of October 19, F.M. was walking along 9th and 

### IStreet looking for her daughter and son-in-law. Willie Darnell Blakeneypassed F.M.
on the street and said, "What's up?" F.M. responded, "Not you." Blakeney got angry 

### and said, "Oh, youlooking for yourboyfriend?" F.M. told Blakeneyto "leave[her] alone." Blakeney hitF.M. in the back of the head, knocking her to the ground. F.M. tried to call911 on her cellphone but Blakeney started hitting her in the face with hisNo. 72367-7-1/2 

### closed fists, causing her to drop the phone. F.M. said the punches were "coming so fast" she could not say how many times Blakeney hit her. 

### When Blakeney stopped hitting F.M., he said, "I'm going to show you whatwe do to people like you." Blakeney took his pants offand forced F.M. to put his penis in her 

### mouth and perform oral sex. Blakeneythen made F.M. pull down her pants and had vaginal intercourse with her. F.M. testified that she told Blakeneyto stop but "he wouldn't." F.M. said Blakeneytold her to "tell him it felt good" and threatened to hit her inthe face again when she refused. Afterward, Blakeneytold F.M., "[H]e never [did] anything like this" and "he wasn'tthis kind ofperson," and then he left. F.M. started walking to St. Joseph Medical Center located a few blocks away. 

### F.M. called 911 on her way to the hospital and said that she had just been assaulted and raped. OfficerJoseph Mettlerand OfficerJerryWishard met F.M. at St. Joseph. F.M. testified that she told the police what hadjust happened and provided a description of Blakeney. 

### In December, F.M. recognized Blakeney as he was getting off a bus and called 

### the police. Police officersdetained Blakeney and confirmed his identity. Detective Jennifer Quilio created a photomontage and showed it to F.M. F.M. identified Blakeney


### as the man who raped her and a warrant was issued for his arrest. In November2012, 

### the police took Blakeney into custody. The State charged Blakeneywith one count of rape in the second degree. 

### Anumber ofwitnesses testified during the three-dayjury trial, includingF.M., the sexual assault nurse who examined F.M., Officer Metier, OfficerWishard, DetectiveNo. 72367-7-1/3 Quilio, and a forensic scientistfrom the Washington State Patrol Crime Laboratory (WSPCL). F.M. testified she was "scared [she] was going to die that night." F.M. said Blakeney broke her upper denture plate and made her nose bleed. F.M. testified that when she was at the hospital, the police asked herto write a statement about what occurred. F.M. said that she told the police the same thing that she testified to attrial. F.M. identified exhibit 21 as a copy ofher statement. The State soughtto admit exhibit 21 as a prior consistent statement. Defense counsel objected, arguing there was no implication "that [F.M.] gave inconsistent statements to the police regarding consent." The court sustained the objection. OfficerWishard testified that he spoke with F.M. at the hospital and she 

### "appeared very distraught, and
. . .frightened." OfficerWishard said F.M. "had a 

### swollen bloody lip and dried blood on her face" and the "collar of her shirt was stained with blood." The court admitted into evidence photographs taken at the hospital 

### documenting F.M.'s injuries. OfficerWishard testified that F.M. agreed to write a

statement. Officer Mettler testified that he went to the sidewalk where F.M. said the rape 

### occurred and observed blood droplets "in the street and along the curb" and what looked like semen in the street. Crime lab technician Lisa Rossi testified that she collected samples ofthe blood and semen found on the sidewalk. Forensic Sexual Assault Nurse Examiner Kelly Morris testified that at 

### approximately 8:00 a.m. on October 19, she examined F.M. at St. Joseph. Morris testified that F.M. told her "that she had been out and been attacked by a person, hadNo. 72367-7-1/4 been hit inthe face, and then sexually assaulted." Morris said F.M. "appeared to be 

### very upset" and "was crying at times" and "many times, had to stop and compose herselfwhen was she was actually telling me . . . what happened." Morris said F.M. had "blood all underneath her nose and caked on her lips and around her chin area. That 

### whole area was dried and - very, very dark, deep, dark red." Morristestified F.M. 

### complained about pain and "said her face hurt." F.M. also said she was "hurting quite a 

### bit. . . in the genital area." Morris observed a "small laceration to [F.M.'s] genital area" that was "consistent with what she told me" and "consistent with a sexual assault." 

### Morrissaid that she took oral, vaginal, and anal swabs from F.M. and gave them to the police.WSPCL forensic scientist Chris Sewell testified that the swabs collected from 

### F.M. contained a mixedprofile consistentwith the DNA1 of both F.M. and Blakeney. Sewell testified the semen collected from the sidewalk and from F.M.'s clothing 

### contained a profile that matched Blakeney. Sewell testified that the probability of a random match was one in 1.1 sextillion. Detective Quilio testified thatwhen she interviewed Blakeney after his arrest in 

### November2012, Blakeney "indicated that he did not have anything to dowith whatI
was talking about." DetectiveQuilio testified that when she told Blakeney a woman 

### picked him out of a photodisplay as the man who assaulted her, hecontinuedto deny he had assaulted someone and said he never had sex with anyone on the sidewalk
near 9th and IStreet. On cross-examination, Detective Quiliotestified that 9th and I Street is a known prostitution area. Deoxyribonucleic acid.No. 72367-7-1/5

The court admitted into evidence the 911 call F.M. made on October 19. On the recording, F.M. states that she has "just been raped" and is "scared this [inaudible] is following me." F.M. describes the assault, saying, "[A]ll of a sudden he came up behind
me and hit me." F.M. says that she does not know the man who attacked her and describes him as African American, thin, "about 6 foot," in his fifties, with "an afro with a gray spot." F.M. is crying throughout the 911 call and says several times that she is "really scared." F.M. tells the 911 operator that she is afraid the man willreturn and is
on herway to the emergency room at St. Joseph. The defense did not dispute that Blakely and F.M. had sex. Blakeney testified that he often went to downtown Tacoma because he "could find prostitutes inthat area." Blakeney testified he saw F.M. on Tacoma Avenue and 9th and thought she "was just a 

### working girl." Blakeney said he approached F.M. and said, "[H]ello," and "she answered me really rude." Blakeney testified F.M. asked if he had any money and offered him "head," meaning oral sex. Blakeney testified that F.M. "attemptfed] to give me some head, but Iwasn't satisfied, so Igot upset. Istarted--! assaulted herwith my hand, 

### open, twice. Twice, and Itold her that she could do betterthan this." Blakeney testified that he "smacked" F.M. "a couple times" "hard enough to where her lipbust open." 

### Blakeney said he "was really losinginterest. . . and all ofsudden [F.M.] said, 'Put it in.'" Blakeney testified F.M. told himshe "hadn't had sex in sixyears . . . and that changed my mind again, and I'm like, huh. Sixyears. Okay. Put itin." Blakeney said he had vaginal intercourse withF.M. on the side ofIStreetforabout 10 minutes. 

### Blakeney testified that there was a carparked on the opposite side of the street 

### with two people sitting in it "smoking, getting high or something," and at some point, the
5No. 72367-7-1/6

car drove closer and the driver asked if"everything was all right." Blakeney replied, "We all right," and then "looked at [F.M.] and she didn't say nothing, so they took off." Blakeney said afterthey had sex, he wiped some ofthe blood offF.M.'s face and said,

" 'This is not me. Idon't hit ladies.' And l-and Iapologized to her, but Itried to explain, 

### you know, because she disappointed me on oral sex, she disappointed me, and so, you know, she was bleeding." Blakeney denied threatening to kill F.M. and denied restraining her inany way. On cross-examination, Blakeney admitted he lied to Detective Quiliowhen he denied having oral or vaginal sex with anyone on the sidewalk
of I Street. 

### AfterBlakeneytestified, the State moved to admit the handwritten statement F.M. 

### gave to OfficerWishard at St. Joseph as a priorconsistent statement. Defense counsel objected on the ground that itwas hearsay. The court ruled that the handwritten statementwas admissible as a priorconsistent statement "to rebut the implied and 

### express charge that the witness fabricated the threats to be hit oreven killed in her testimony." 

### Detective Quilio testified without objection that F.M. told her she was looking for 

### her daughter in the early morning of October 19when she encountered Blakeney. Detective Quilio testified F.M. said Blakeney started following her and then punched her 

### in the face and orally and vaginally raped her. Detective Quilio testified F.M. "made it 

### very clear that there were threats ofviolence," and F.M. said she "feltthat. . . she had tocomply or she was going to get hit again." In the handwritten statement F.M. made at St. Joseph, F.M. states Blakeneyhit her, threatened her, and raped herorally andNo. 72367-7-1/7 

### vaginally. F.M. states she was "af[rai]d for my life" and scared Blakeneywas going to kill her.Inclosing, the defense argued F.M. was a prostitute and "she was walking up a hill to an area of high prostitution for a reason, such as prostitution." Defense counsel asserted the "lack ofevidence that [F.M.] sought help" showed there was no forcible compulsion and F.M. "could have asked for help a couple different times. She neverdid until this was over, and then she wanted to get cleaned up and then she made these claims of sexual assault." Thejury found Blakeney guilty of rape inthe second degree. The court imposed
a standard range sentence. ANALYSIS Blakeney seeks reversal, arguing the court erred in admitting the written statement F.M. made at the hospital as a prior consistent statement under ER 801(d)(1)(ii). Blakeney asserts the record establishes there was no implication ofrecent fabrication. We agree but conclude admission ofthe statementwas harmless beyond a reasonable doubt. Whether a prior statement is admissible under ER 801(d)(1)(ii) is within the trial court's discretion and will not be reversed absent a showing ofmanifest abuse of discretion. State v. Dictado, 102 Wn.2d 277, 290, 687 P.2d 172 (1984).No. 72367-7-1/8
Prior consistent statements of a witness are not hearsay ifoffered to rebut the 

### suggestion thatthe witness's testimony is a recentfabrication.2 This rule allows admission of a witness's out-of-court statements to rehabilitate testimony that has been impugned by a suggestion of recentfabrication. State v. Bargas, 52 Wn. App. 700, 702, 763 P.2d 470 (1988). To constitute an express or implied charge, recentfabrication, or improper influence or motive, cross-examination or impeachment ofthe witness "must raise an inference sufficient to allow counsel to argue the witness had a reason to fabricate her story later." Bargas, 52 Wn. App. at 702-03. "The alleged fabrication must be recent because ifthe statementwas made afterthe events giving rise to the inference offabrication, itwould have no probative value in counteracting the charge of fabrication." State v. Makela, 66 Wn. App. 164, 168, 831 P.2d 1109 (1992). A claim of recent fabrication "can be rebutted by the use of prior consistent statements only if those statements were made under circumstances indicating that the witness was 

### unlikely to have foreseen the legal consequences of his or her statements." Makela, 66 Wn. App. at 168-69. The State contends defense counsel's cross-examination of F.M. and Blakeney's 

### testimony raised the inference that F.M. had reason to fabricate because she was actually engaged inprostitution and the sex with Blakeney was consensual. During the cross-examination of F.M., defense counsel pointed out inconsistencies in her account. Defense counsel asked F.M. why she was walking

2ER 801(d)(1)(ii) provides in pertinent part: A statement is not hearsay if— (1) PriorStatementbyWitness. The declaranttestifies at the trial or hearing and is subjectto cross examination concerning the statement, and the statement is
... (ii) consistentwith the declarant's testimony and is offered to rebut an express or implied charge against the declarant ofrecent fabrication or improperinfluence or motive. 8No. 72367-7-1/9 

### around downtown Tacoma so early inthe morning, and why she did not use her phone to try to contact her son-in-law and daughter. 

### Q. . . . [Y]ouwere trying to get ahold of a relative at 5:00 inthe morning; is that right? 

### A. Iwas calling --yeah, Iwas getting hold of a relative. Iwas looking for my son-in-law and mydaughter because we went one way and the otherway, you know. We separated. 

### Q. Okay. You got separated at 5 a.m., right, and you -- instead of calling on your phone to meetthem, you were walking up and down 9th Avenue? 

### A. Because [the] phone he gave me didn't have no minutes on it. He told mejustto use it for emergency. 

### Q. And being homeless and being on South 9th Street at 5 a.m. on an 

### October morningwasn't sufficientemergencyto use a half a minute of phone time? 

### Defense counsel also asked F.M. why she did not scream for help. 

### Q. Do you remember a cardriving by and slowing down? A. Yes. 

### Q. Did you tellthe police aboutthat? A. Yes. Q. You could have screamed for help at that time? 

### A. Hetold meifIyelled, he'd hit mein the mouth again. Hetold me I better not say nothing. Even when Iwent towards the car, hetold me to stop. 

### Q. Okay. You could have gone to that car and screamed, "Help me, please"? 

### Q. Okay. So the reason you didn't scream for help is that hetold you not to; is that right? A. Right. 

### Q. Do you remember any neighbor looking around? A. No. Ididn't even know there was anybody else there. Q. Well, there's a church there, correct? A. Right. 

### Q. And there are some apartmentbuildings there, correct? A. Right. 

### Q. And you aretestifying in courttoday, so weknowthatyou can speak, and on that day, weknow you had the strength and the wherewithal to say, "Not you," correct? 

### Q. Soyou could have screamed, butyou chose not to because hetold you not to; is that right? A. Right. 9No. 72367-7-1/10

While cross-examination of F.M. implies she was a prostitute and Blakeney testified F.M. was a prostitute, there is no inference that F.M. fabricated a story after making a written statement atthe hospital. The defense theory was that F.M. fabricated her account ofwhat happened from the beginning. Moreover, even ifthe questions did imply recent fabrication, F.M. made the statement to police afterthe rape occurred, at a time when she could foresee its legal consequences. We conclude the courterred in admitting the handwritten statement under ER 801(d)(1)(ii). The State asserts even ifadmission ofF.M.'s statement was error, itwas harmless. We agree. Underthe constitutional harmless error standard, we will not vacate thejury's finding if itappears beyond a reasonable doubt that the alleged error did not affect the verdict. State v. Monday. 171 Wn.2d 667, 680, 257 P.3d 551 (2011). On direct examination, F.M. testified that she told the police the same thing she testified to on the stand—that Blakeney repeatedly hit her, threatened her, and raped 

### her orallyand vaginally. On the 911 call F.M. made immediately afterthe attack, she tells the 911 operatorthat she has "justbeen raped" and is "really scared." Officer Wishard testified that F.M. appeared distraught and frightened. Forensic nurse Morris testified that F.M. told her she had just been attacked, hit inthe face, and sexually assaulted. Morris also testified that F.M. appeared to be very upset and that her injuries

were consistent with the sexual assault she described. Detective Quilio testified that 

### F.M. told her Blakeney punched her in the face and orallyand vaginallyraped her. The photographs admitted intoevidence showthat F.M. had injuries consistentwith a violent assault. Blakeney admitted he struck F.M. hard enough to split her lipopen.

10No. 72367-7-1/11 In light ofthe overwhelming testimony, we conclude beyond a reasonable doubt that the error in admitting F.M.'s prior consistent statement did not affect the verdict of rape inthe second degree. We also conclude that unlike in State v. W.R.. No. 88341-6, 2014 WL 5490399 (Wash. Oct. 30, 2014), the record establishes thatthe State, not Blakeney, bore the 

### burden of proving whether sex was consensual.3 

# SrjL^MP..t

WE CONCUR:


# rjWcJ'v

3The court gavejury instruction 8 that complied with 11 Washington Practice: Washington PatternJury Instructions: Criminal41.02, at 760 (3d ed. 2008) (WPIC) defining the elements ofrape in the second degree. Jury instruction 8 makes clearthe State must prove beyond a reasonable doubt that "the sexual intercourse occurred by forcible compulsion." The court also gave the WPIC jury instruction defining "consent,"jury instruction 6. See WPIC 45.04, at 835. In closing, the State 

### emphasizedthatitborethe burden ofproving all ofthe elements ofthecrime. "[Tjheburden ofproofis on me. It'sbeyond a reasonable doubt. It's always on me. What Ihave to prove is contained in Jury Instruction Number 8. .
.. [T]o convict the defendant of rape in the second degree, Ineed to prove . . . that the sexual intercourse that occurred between [F.M.] and the defendant was done with forcible compulsion." The State argued F.M. "did not want to have sex with the defendant. She tells you that. She tells you this was notconsensual.
. . . [This] is notconsensual sex. [This] is rape. She complies only because she doesn'twant to get hit anymore." 11