Docket Number: 57823-5
Title of Case: State Of Washington, Respondent V. Bryan K. Borsheim, Appellant
File Date: 08/27/2007
SOURCE OF APPEAL
Appeal from King County Superior Court
Docket No: 03-1-02477-1
Judgment or order under review
Date filed: 02/27/2006
Judge signing: Honorable Gain Brian D
Authored by Stephen J Dwyer
Concurring: C. Kenneth Grosse
COUNSEL OF RECORD
Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Seattle, WA, 98101
Nancy P Collins
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Bryan Keith Borsheim - Info Only (Appearing Pro Se)
20918 109th Pl Se #1922
Kent, WA, 98031
Counsel for Respondent(s)
Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104
Brian Martin Mcdonald
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA, 98104-2362
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 57823-5-I
) DIVISION ONE
) PUBLISHED OPINION
BRYAN KEITH BORSHEIM, )
Appellant. ) FILED: August 27, 2007
DWYER, J. -- Following a jury trial in King County Superior Court, Bryan
Borsheim was convicted of four counts of rape of a child in the first degree.
Borsheim appeals from the judgment entered on the verdicts, contending that
the trial court violated both his right to be free from double jeopardy and his right
to a unanimous jury verdict by failing to instruct the jury that a conviction on each
of the four charged counts must be predicated upon a different underlying event.
Borsheim also contends that the trial court erred by ruling that statements made
by him during a custodial interrogation were admissible for impeachment
purposes, that he was denied a fair trial by the admission of expert witness
testimony that he asserts invaded the province of the jury, and that his attorneys
wrongly coerced him not to testify.
No. 57823-5-I / 2
We agree that the trial court's instructions allowed the jury to base each
of Borsheim's four convictions on proof of a single underlying event, in violation
of Borsheim's right to be free from double jeopardy. That error requires vacation
of Borsheim's convictions on the second, third, and fourth counts submitted to
the jury. We affirm the trial court's rulings in all other challenged respects and,
accordingly, affirm Borsheim's conviction on the first count submitted to the jury.
Audra Granger and her daughter, B.G., lived with Borsheim between
February 2001 and September 2003, during which time Granger and Borsheim
were involved in a romantic relationship. In September 2003, then 11-year old
B.G. told her grandparents that Borsheim had been sexually abusing her. Her
grandparents contacted the police, who placed Borsheim under arrest.
On September 11, 2003, the State charged Borsheim with three counts of
rape of a child in the first degree -- domestic violence. The State later filed an
amended information adding a fourth count. Each of the identical counts alleged
that Borsheim raped B.G. "during a period of time intervening between
September 1, 2000 through September 8, 2003."
Prior to trial, the trial court held a CrR 3.5 hearing concerning the
admissibility of statements made by Borsheim during a custodial interrogation.
The trial court ruled that the statements were voluntarily made and, therefore,
were admissible as possible impeachment evidence should Borsheim testify at
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No. 57823-5-I / 3
The matter proceeded to jury trial on September 28, 2004. Borsheim did
not testify at trial. Consequently, the State never offered into evidence testimony
regarding the statements made by Borsheim during the custodial interrogation.
B.G. testified that Borsheim would take showers with her on a daily basis
and that Borsheim forced her to submit to either vaginal or oral sex, usually
during those showers, almost every week-day for the two and one half years she
and her mother lived with Borsheim, and in eight of the approximately nine
homes in which they lived during that time. A medical witness for the State
testified that she had reviewed B.G.'s medical files, that her observations were
consistent with B.G.'s reports of sexual abuse, and that her medical diagnosis
was that B.G. had been sexually abused.
The jury returned verdicts of guilty on all four counts. The trial court
imposed a sentence at the high end of the standard sentencing range, with the
sentences for each of the counts to be served concurrently.
A few days later, Borsheim filed a pro se motion for a new trial, claiming
that his counsel had prevented him from testifying at trial. After an evidentiary
hearing, the trial court denied the motion.
This appeal followed.
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No. 57823-5-I / 4
Borsheim first contends that the trial court's instructions to the jury
deprived him of a fair trial by compromising both his right to be free from double
jeopardy and his right to jury unanimity. We agree that the jury instructions were
inadequate in that they exposed Borsheim to multiple punishments for the same
offense, in violation of his right to be free from double jeopardy.
The relevant instructions provided to the jury are as follows:
There are allegations that the Defendant committed acts of
rape of child on multiple occasions. To convict the Defendant, one
or more particular acts must be proved beyond a reasonable doubt
and you must unanimously agree as to which act or acts have been
proved beyond a reasonable doubt. You need not unanimously
agree that all the acts have been proved beyond a reasonable
Instruction 3 (emphasis added).
A separate crime is charged in each count. You must
decide each count separately. Your verdict on one count should
not control your verdict on any other count.
Instruction 4 (emphasis added).
To convict the defendant of the crime of Rape of a Child in the First
Degree, as charged in counts 1, 2, 3, and 4, each of the following
elements of the crime must be proved beyond a reasonable doubt
as to each count:
(1) That during a period of time intervening between
February 1, 2001, and September 5, 2003, the defendant had
sexual intercourse with [B.G.]
(2) That [B.G.] was less than twelve years old at the time of
the sexual intercourse and was not married to the defendant;
(3) That the defendant was at least twenty-four months older
than [B.G.]; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements
has been proved beyond a reasonable doubt, then it will be your
duty to return a verdict of guilty on that count.
On the other hand, if, after weighing all the evidence you
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No. 57823-5-I / 5
have a reasonable doubt as to any of these elements, then it will
be your duty to return a verdict of not guilty on that count.
Instruction 9 (emphasis added).
As Borsheim argues, none of the preceding instructions specifically state
that a conviction on each charged count must be based on a separate and
distinct underlying incident and that proof of any one incident cannot support a
finding of guilt on more than one count. Borsheim contends, therefore, that the
instructions allowed the jurors to base a conviction on all four counts on a finding
that a single underlying event occurred.
As an initial matter, we note that this contention implicates Borsheim's
right to be free from double jeopardy, not his right to a unanimous jury verdict.
A defendant's right to a unanimous jury verdict is the guarantee that a
defendant may be convicted only when a unanimous jury concludes that the
criminal act charged in the information has been committed. State v. Petrich,
101 Wn.2d 566, 569, 683 P.2d 173 (1984). Pursuant to this right, a jury must be
unanimous as to which act or incident constitutes a particular charged count of
criminal conduct. State v. Noltie, 116 Wn.2d 831, 842-43, 809 P.2d 190 (1991);
Petrich, 101 Wn.2d at 572. Thus, in cases where several acts could form the
basis of one charged count, in order to convict the defendant on that count either
the State must elect the specific act on which it relies for conviction or the court
must instruct the jury that it must unanimously agree that a specific criminal act
has been proved beyond a reasonable doubt. Noltie, 116 Wn.2d at 843; Petrich,
101 Wn.2d at 572.
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No. 57823-5-I / 6
Here, instruction 3 provides the protection required by these principles.
That instruction states that, to convict the defendant, the jurors must
unanimously agree that a specific criminal act had been proved beyond a
reasonable doubt.1 Thus, the instruction ensured that a conviction on any given
count would be predicated on the jury's unanimous agreement regarding the
commission of a specific criminal act. Borsheim's right to jury unanimity was not
The right to be free from double jeopardy, on the other hand, is the
constitutional guarantee protecting a defendant against multiple punishments for
the same offense. U.S. Const. amend. V; Wash. Const. art I, § 9; Noltie, 116
Wn.2d at 848. Here, Borsheim asserts that the jury instructions allowed the jury
to base a conviction on more than one identical count on a single underlying
event, thereby exposing him to multiple punishments for a single offense. This
contention implicates his right to be free from double jeopardy, as opposed to
the right to juror unanimity.2
1 Instruction 3 mirrors Washington Pattern Jury Instruction 4.25, which was designed to
ensure the constitutional protected right to juror unanimity. 11 Washington Practice: Washington
Pattern Jury Instruction: Criminal 4.25 (2d ed. 1994); State v. Watkins, 136 Wn. App. 240, 243-
44, 148 P.3d 1112 (2006).
2 In discussing the merits of a contention similar to the one raised here, the court in
State v. Ellis, 71 Wn. App. 400, 404, 859 P.2d 632 (1993), explained the difference between a
contention based on the right to unanimity and one based on the right to be free from double
jeopardy as follows:
[A contention] asserting that all jurors must agree on the same act underlying
any given count has to do with jury unanimity and the right to jury trial. [A
contention] asserting that the jury could not use the same act as a factual basis
for more than one count has to do with the right against double jeopardy; at least
in the context here, to use one act as the basis for two counts is to convict twice
for the same crime.
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No. 57823-5-I / 7
We agree that the jury instructions given violated Borsheim's right to be
free from double jeopardy by exposing him to multiple punishments for the same
offense. As an initial proposition, jury instructions "must more than adequately
convey the law. They must make the relevant legal standard manifestly
apparent to the average juror." State v. Watkins, 136 Wn. App. 240, 241, 148
P.3d 1112 (2006) (internal quotation marks omitted) (quoting State v. LeFaber,
128 Wn.2d 896, 900, 913 P.2d 369 (1996)). Accordingly, if it is not manifestly
apparent to a criminal trial jury that the State is not seeking to impose multiple
punishments for the same offense, the defendant's right to be free from double
jeopardy may be violated. See Noltie, 116 Wn.2d at 848-49.
In keeping with these principles, we made clear more than a decade ago
that, in sexual abuse cases where multiple identical counts are alleged to have
occurred within the same charging period, the trial court must instruct the jury
"that they are to find 'separate and distinct acts' for each count." State v. Hayes,
81 Wn. App. 425, 431, 914 P.2d 788 (1996) (quoting Noltie, 116 Wn.2d at 846).
Here, multiple counts of sexual abuse were alleged to have occurred within the
same charging period. Thus, pursuant to the rule articulated in Hayes, an
instruction that the jury must find "separate and distinct" acts for convictions on
each count was required. However, no such instruction was proposed by the
State and none was given by the trial court.
The instructions actually given the jury did not cure this defect. As herein
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No. 57823-5-I / 8
discussed, instruction 3 adequately informed the jurors as to the need for jury
unanimity regarding which act formed the basis for any given count. It did not,
however, convey the need to base each charged count on a "separate and
distinct" underlying event. Similarly, although instruction 4 states that "a
separate crime is charged in each count," neither this instruction, nor any other,
informed the jury that each "crime" required proof of a different act. Finally,
instruction 9, the "to convict" instruction, states that each of the elements of the
crime must be proved "as to each count." However, this instruction does not
state that the first such element, "sexual intercourse with [B.G.]," requires a
finding of a "separate and distinct" act of sexual intercourse for each count on
which a conviction is rendered.
The error in omitting an instruction addressing this double jeopardy
concern is further compounded by the fact that instruction 9, somewhat
confusingly, encompasses all four identical counts in a single instruction rather
than setting the counts out in separate instructions, as would be preferable.
See, e.g., Noltie, 116 Wn.2d at 849 (two separate "to convict" instructions given
for two counts of rape); State v. Ellis, 71 Wn. App. 400, 401-02, 859 P.2d 632
(1993) (four separate "to convict" instructions given for two counts of child
molestation and two counts of child rape).
Thus, read together, the instructions given by the trial court neither
contained the "separate and distinct act" instruction expressly required by the
rule articulated in Hayes, nor made the need for a finding of "separate and
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No. 57823-5-I / 9
distinct acts" manifestly apparent to the average juror.
The State's reliance on Ellis, 71 Wn. App. 400, a decision filed several
years before Hayes, does not militate otherwise. In the Ellis case, the court
considered a similar argument to that raised here, i.e., that the instructions given
by the trial court allowed the jury to use the same underlying act to convict the
defendant on more than one count. Ellis, 71 Wn. App. at 406. The court
rejected the defendant's argument under the particular facts of that case, stating,
"It is our view that the ordinary juror would understand that when two counts
charge the very same type of crime, each count requires proof of a different act."
Ellis, 71 Wn. App. at 406. However, that conclusion was based on consideration
of instructions that differed in significant respects from those given in this case.
Most significantly, the trial court in the Ellis case gave four separate "to
convict" instructions, one for each charged count. The first and the second
count charged identical crimes, but the instruction for the second count explicitly
stated that the act underlying that count had to have occurred "on a day other
than Count I." Ellis, 71 Wn. App. at 401-02. The third and the fourth count
similarly charged identical crimes, but each alleged that the charged act had
occurred during a different period of time.3
3 We recognize that there was a brief overlap in the time periods alleged pursuant to the
third and the fourth counts charged in the Ellis case. However, the appellate court's holding was
also based on its consideration of several other factors, including the language of other
instructions offered, which reasonably informed the jurors that each of the charged counts
required proof of a different act. The court's holding was based on the information given to the
jurors by the instructions viewed as a whole, rather than by an element of a single instruction
viewed in isolation. Ellis, 71 Wn. App. 401-06.
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No. 57823-5-I / 10
Based both on the four separate "to convict" instructions, and the
distinguishing language therein contained, it is apparent that the trial court in the
Ellis case was attempting to draw the jury's attention to the principle that each
count charged the commission of a separate event. Here, in contrast, the trial
court merely proffered a single "to convict" instruction, encompassing all four
identical counts but listing the elements of the charged crime only once.
Additionally, the unanimity instruction provided by the trial court in the
Ellis case further alluded to the requirement that each charged count must be
based on a different act:
Evidence has been introduced of multiple acts of sexual
contact and intercourse between the defendant and [C.R.].
Although twelve of you need not agree that all the acts have
been proved, you must unanimously agree that at least one
particular act has been proved beyond a reasonable doubt for each
Ellis, 71 Wn. App. 402 (emphasis added). The unanimity instruction given in this
case, in contrast, did not contain the "for each count" language. Thus, although
it adequately instructed the jury with regard to the concern for jury unanimity, it
did not adequately instruct the jury with regard to the concern of double
In its Ellis opinion, the court also relied on the fact that the trial court had
provided an instruction, similar to instruction 4 in this case, which stated, "A
separate crime is charged in each count. You must decide each count
separately." Ellis, 71 Wn. App. at 402. However, contrary to the State's
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No. 57823-5-I / 11
contention, the Ellis decision did not hold that this instruction, standing alone,
was sufficient to convey to the jury the need for it to base its decision on each
charged count on a different underlying event. Rather, the Ellis decision held
that the instructions were adequate when viewed as a whole, considering both
the separate and separately worded "to convict" instructions, as well as the "for
each count" language of the unanimity instruction. Ellis, 71 Wn. App. at 402-06.
Furthermore, the Ellis decision noted that the instructions there are at
issue were only "marginally" adequate. Ellis, 71 Wn. App. at 407. Focusing
specifically on the unanimity instruction, the court stated that the instruction was
only barely adequate because it attempted to convey both "the idea that all 12
jurors must agree on the act used as a factual basis for any given count"
(unanimity) and "the idea that the same act cannot be used to convict twice"
(double jeopardy). The court further noted that the two concepts should,
preferably, be described "in separate instructions, or at least in separate
sentences." Ellis, 71 Wn. App. at 407.
Here, language conveying the need to base each conviction on a different
act was neither contained in the unanimity instruction, as held to be only
marginally adequate by the court in Ellis, nor was it set out in any other
instruction, as required by the rule articulated by us in Hayes. Therefore, the
jury instructions failed to make manifestly apparent to the jury that each of the
four counts must be based on a different underlying act. In other words, the
instructions allowed the jury to unanimously find that one act of sexual
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No. 57823-5-I / 12
intercourse had been proved beyond a reasonable doubt, and to base all four
convictions on that single act. This error exposed Borsheim to multiple
punishments for a single offense and, thus, violated his right to be free from
However, as the unanimity instruction insured that the jury unanimously
agreed as to the commission of at least one act of child rape, our holding
requires only that we reverse and order vacated Borsheim's convictions on
counts two, three, and four. In order to determine whether any of the other
errors alleged by Borsheim requires reversal of his conviction on the first count,
we must examine the remaining issues raised.
Ruling on Admissibility of Borsheim's Statements
Borsheim next contends that the trial court erred by ruling, after
conducting the pre-trial CrR 3.5 hearing,4 that statements made by him during a
jail-house interrogation were potentially admissible to impeach his testimony
should he testify at trial. We disagree.5
4 "When a statement of the accused is to be offered in evidence, the judge at the time of
the omnibus hearing shall hold or set the time for a hearing, if not previously held, for the
purpose of determining whether the statement is admissible." CrR 3.5(a).
5 As a preliminary matter, the State asserts that we should refuse to review this issue
because Borsheim did not actually testify at trial and, thus, the disputed statements were not
actually offered into evidence. However, we have previously held that a criminal defendant need
not testify in order to preserve for appellate review a trial court's ruling that evidence suppressed
to protect a defendant's Fourth Amendment rights is admissible for impeachment purposes.
State v. Greve, 67 Wn. App. 166, 169, 834 P.2d 656 (1992). In so holding, we noted that,
because use of such evidence raises constitutional concerns, a contrary rule may "unacceptably
infringe upon the defendant's rights." Greve, 67 Wn. App. at 169 (quoting State v. Brown, 113
Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989)).
As was the case in Greve, Borsheim also asserts that the potential use of the contested
evidence implicated a constitutional right. See U.S. Const. amend. V; Miranda v. Arizona, 384
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No. 57823-5-I / 13
A defendant's statements are admissible as impeachment evidence, even
when such statements are obtain in violation of Miranda safeguards,6 so long as
the statements are voluntarily made. Michigan v. Harvey, 494 U.S. 344, 350-51,
110 S. Ct. 1176, 108 L. Ed. 2d 293 (1989); Harris v. New York, 401 U.S. 222,
223-26, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1970). As the Supreme Court stated in
Harris, 401 U.S. at 225-26:
Every criminal defendant is privileged to testify in his own
defense, or to refuse to do so. But that privilege cannot be
construed to include the right to commit perjury. . . .
The shield provided by Miranda cannot be perverted into a
license to use perjury by way of a defense, free from the risk of
confrontation with prior inconsistent utterances.
A trial court determines whether a statement is voluntary by inquiring
whether, under the totality of the circumstances, the statement was coerced.
State v. Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997). Relevant
circumstances include the condition of the defendant, the defendant's mental
abilities, and the conduct of the police. State v. Rupe, 101 Wn.2d 664, 678-79,
683 P.2d 571 (1984). The court also considers any promises or
misrepresentations the interrogating officers made to determine whether the
defendant's will was overborne. State v. Trout, 125 Wn. App. 403, 414, 105
U.S. 436, 444, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Stewart, 113 Wn.2d 462, 465-66,
780 P.2d 844 (1989). Accordingly, we hold that the rationale of the Greve decision applies here
with equal force, and reach the merits of Borsheim's claim of error.
6 Pursuant to Miranda, 384 U.S. at 444, in its case-in-chief the prosecution may not use
statements "stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination."
Miranda, 384 U.S. at 444. Such safeguards include a warning by police of the right to remain
silent and the right to an attorney, and an immediate termination of police questioning if an
attorney is requested. Miranda, 384 U.S. at 444.
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No. 57823-5-I / 14
P.3d 69, review denied, 155 Wn.2d 1005 (2005). However, implied promises or
misrepresentations do not necessarily render a statement involuntarily made.
Trout, 125 Wn. App. at 414.
The police detective to whom Borsheim made the contested statements
testified at the CrR 3.5 hearing. He stated that after Borsheim was arrested and
while he was being detained in jail, the detective advised Borsheim of his
Miranda rights, after which Borsheim stated that he wished to speak with an
attorney. The detective immediately ended the interview. As the detective was
preparing to leave the jail, a jail sergeant informed him that Borsheim had
changed his mind and wished to speak with the detective. The detective again
contacted Borsheim, advised him of his Miranda rights, and asked if Borsheim
wished to waive those rights. Borsheim answered in the affirmative. Borsheim
then made a statement to the detective in which he denied sexually abusing B.G.
Borsheim testified at the CrR 3.5 hearing that, after he invoked his right to
an attorney and was being led back to his cell by a jail sergeant, he asked the
sergeant how he could get an attorney, to which the sergeant responded, "you
talk to the detective and then you will get an attorney." Borsheim further testified
that he understood this statement to mean that he must speak to the detective
before an attorney would be provided to him. On cross-examination, however,
Borsheim acknowledged that he understood that he had a right to have an
attorney present when he was questioned by the detective, and that he had a
right to remain silent.
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No. 57823-5-I / 15
The trial court found that Borsheim's statements were voluntarily made
and, therefore, admissible as possible impeachment evidence should Borsheim
testify. That finding is supported by substantial evidence.7 The detective
testified that he read Borsheim his Miranda rights, ceased questioning Borsheim
when he asked for an attorney, and resumed questioning only at Borsheim's
request. Borsheim also acknowledged that he knew of his right to remain silent
and of his right to have an attorney present during the detective's questioning.
Such evidence is sufficient to support the finding that Borsheim's statements
were not coerced.8 That finding, in turn, supports the trial court's conclusion that
the statements were potentially admissible as impeachment evidence should
Borsheim testify at trial.
There was no error.
7 Findings of fact entered by a trial court pursuant to a CrR 3.5 hearing are binding on us
if they are supported by substantial evidence. Broadaway, 133 Wn.2d at 129-34. Evidence is
substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the finding.
State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999) (overruled on other grounds by
Brendlin v. California, __ U.S. __, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
8 Borsheim contends that the trial court's finding that Borsheim's statements were
voluntarily made was inconsistent with the trial court's adoption "as true" of Borsheim's testimony
regarding his interaction with the jail sergeant. However, the finding on which Borsheim relies
states that he testified as to his conversation with the jail sergeant. It neither states nor suggests
that the trial court accepted Borsheim's testimony as true. Finding of Fact 6.
Borsheim also contends that, because the State did not produce the jail sergeant's
testimony at the CrR 3.5 hearing, it must be presumed that Borsheim's testimony as to the
conversation between him and the Sergeant was accurate. The case relied on by Borsheim for
this proposition iterates the rule that, "where evidence which would probably be part of a case is
within the control of the party whose interest it would naturally be to produce it, and, without
satisfactory explanation, he fails to do so, the jury may draw an inference that it would be
unfavorable to him." State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968) (quoting Wright v.
Safeway Stores, Inc., 7 Wn.2d 341, 346, 109 P.2d 542 (1941)). However, the proceeding here
was a hearing to the bench, not a trial to a jury. Borsheim has not demonstrated how or why this
rule, allowing but not mandating a particular inference by a jury, must mandate a particular
inference by the trial court.
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Expert Witness Testimony
Borsheim next asserts that the testimony of the State's expert medical
witness invaded the province of the jury and, thereby, violated Borsheim's right
to a fair trial. Borsheim, however, did not preserve this claim of error for
Generally, a witness may not offer opinion testimony regarding the guilt of
a defendant. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). Such
testimony is impermissible because it "invad[es] the exclusive province of the
finder of fact." City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658
(1993) (alteration in original) (quoting State v. Black, 109 Wn.2d 336, 348, 745
P.2d 12 (1987)). An improper statement as to an opinion of guilt may be implied
from a testimonial opinion that a child claiming sexual abuse is telling the truth.
State v. Alexander, 64 Wn. App. 147, 154, 822 P.2d 1250 (1992).
However, Borsheim failed to object to the contested testimony at trial. A
claim of error may only be raised for the first time on appeal where it invokes a
"manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. Walsh,
143 Wn.2d 1, 7, 17 P.3d 591 (2001). In the context of a child sexual abuse
case, our Supreme Court recently held that "opinion testimony relating only
indirectly to a victim's credibility, if not objected to at trial, does not give rise to a
'manifest' constitutional error" justifying review of the claim of error raised for the
first time on appeal. State v. Kirkman, 159 Wn.2d 918, 922, 155 P.3d 125
(2007). The court elaborated:
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"Manifest error" requires a nearly explicit statement by the witness
that the witness believed the accusing victim. Requiring an explicit
or almost explicit witness statement on an ultimate issue of fact is
consistent with our precedent holding the manifest error exception
Kirkman, 159 Wn.2d at 936.
Here, the witness did not explicitly state that she believed B.G. Rather,
she testified only that her findings were consistent with B.G.'s account and that
her medical diagnosis, based in a large part on the presence of genital warts on
B.G., was that B.G. had been sexually abused. That testimony conveyed only
the witness's opinion that sexual abuse had occurred, not that the witness
believed B.G.'s assertion that Borsheim was the party guilty of that abuse. See
State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992) ("In general,
testimony deemed to be an opinion as to a defendant's guilt must relate directly
to the defendant.").
The error alleged may not properly be characterized as a manifest
constitutional error and, therefore, is not reviewable on appeal. Kirkman, 159
Wn.2d at 936.
Borsheim's Right to Testify
Finally, Borsheim contends that his trial attorneys provided him with
ineffective assistance of counsel by preventing him from testifying at trial. A
criminal defendant has a right to testify on his or her own behalf. Rock v.
Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State v.
Robinson, 138 Wn.2d 753, 758, 982 P.2d 590 (1999). A claim that an attorney
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No. 57823-5-I / 18
improperly prevented a defendant from testifying is evaluated as a claim of
ineffective assistance of counsel. Robinson, 138 Wn.2d at 765-66. In order to
succeed in such a claim, the defendant must show both that the attorney's
performance was deficient and that the defendant was prejudiced by that
deficient performance. Strickland v. Washington, 466 U.S. 668, 688-93, 104 S.
Ct. 2052, 80 L.Ed.2d 674 (1984); Robinson, 138 Wn.2d at 766. Courts engage
in a presumption that counsel's representation was effective. State v. Tilton, 149
Wn.2d 775, 784, 72 P.3d 735 (2003).
An attorney's performance is deficient in this regard only if the attorney
"actually prevented" the defendant from testifying. Robinson, 138 Wn.2d at 764.
In order to prove that a defendant's attorney actually prevented the defendant
from testifying, "the defendant must prove that the attorney refused to allow him
to testify in the face of the defendant's unequivocal demands that he be allowed
to do so." Robinson, 138 Wn.2d at 764. An attorney's refusal to allow a
defendant to testify may be established where the attorney refuses to call the
defendant as a witness despite the defendant's requests, where the attorney
uses threats or coercion, or where the attorney flagrantly disregards the
defendant's request to testify. Robinson, 138 Wn.2d at 763. However, "while
the decision to testify should ultimately be made by the client, it is entirely
appropriate for the attorney to advise and inform the client in making the
decision to take the stand." Robinson, 138 Wn.2d at 763.
During the hearing on Borsheim's motion for a new trial, Borsheim and his
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No. 57823-5-I / 19
two trial attorneys all testified. His attorneys testified that, although Borsheim
initially wanted to testify at trial, after they both strongly advised him against
doing so, he vacillated throughout the course of the trial regarding whether he
wanted to take the stand. Both attorneys testified that they strongly advised
Borsheim against testifying, but that Borsheim knew that it was ultimately his
choice whether or not to do so.9 One of the attorneys further testified that he
had prepared questions to ask Borsheim, should Borsheim choose to testify.
Borsheim testified at the hearing that he had consistently insisted that he
wanted to testify at trial, but that his attorneys pressured him not to do so. On
the last day of trial, Borsheim again insisted that he wanted to take the stand, to
which one of his attorneys responded, "I guess I can think of some things to ask
you." Borsheim further testified that, as a result of that statement, he felt forced
not to take the stand because he did not believe his counsel to be prepared to
question him. On cross-examination during the hearing, however, Borsheim
testified that he understood that he had a right to testify at trial.
The trial court denied Borsheim's motion, finding that Borsheim knew that
he had a right to testify and that his choice not to do so was made voluntarily.
This finding is supported by substantial evidence.10 Both Borsheim and
9 One of the attorneys acknowledged that the other attorney told Borsheim something to
the effect of," you can't testify," but explained that the statement was made in the context of the
attorneys expressing their opinion about what Borsheim should do, rather than what he had a
right to do.
10 A trial court's findings in relation to an ineffective assistance of counsel claim are
reviewed to determine if they are supported by substantial evidence in the record. State v.
Holm, 91 Wn. App. 429, 435, 957 P.2d 1278 (1998).
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No. 57823-5-I / 20
his attorneys testified that Borsheim knew that the ultimate decision whether or not to
testify was his to make. Furthermore, his attorneys testified that Borsheim
equivocated or vacillated regarding his desire to testify throughout the course of
the trial. This testimony is supported by the trial court record, wherein
Borsheim's attorneys informed the trial court at different times that Borsheim
would or would not testify, and wherein the trial court twice granted recesses for
Borsheim's attorneys to determine whether Borsheim wished to testify. The trial
court's finding of voluntariness, in turn, supports the trial court's order denying
Borsheim's motion for a new trial.
Borsheim's conviction on the first count of rape of a child in the first
degree is affirmed. Borsheim's convictions on counts two, three and four are
reversed, and this matter is remanded to the trial court for further proceedings
consistent with this opinion.