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


JUDGES
------
Authored by Stephen J Dwyer
Concurring: C. Kenneth Grosse
Ronald Cox


COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
1511 Third Avenue
Suite 701
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
Respondent, )
) DIVISION ONE
v. )
) 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.

FACTS

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

trial.

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.

DISCUSSION

Jury Instructions

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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
doubt.

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

violated.

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, ยง 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

(Emphasis added.)

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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
count.

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

jeopardy.

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

double jeopardy.

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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No. 57823-5-I / 16

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

appellate review.

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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No. 57823-5-I / 17

"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
is narrow.

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.