Filed Washington State Court of Appeals Division Two
September 23, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the No.60540-6-II Personal Restraint Petition of:
JOSHUA B. BENSINGER, UNPUBLISHED OPINION
Petitioner.
MAXA, J. – In this personal restraint petition (PRP), Joshua Bensinger challenges his
conviction of second degree rape. He argues that (1) the trial court’s application of the rape
shield statute, RCW 9A.44.020(2), deprived him of his right to present a defense under the Sixth
Amendment to the United States Constitution; and (2) his defense counsel provided ineffective
assistance of counsel when she failed (a) to cross-examine the victim’s prior statement that
during the incident with Bensinger she experienced a flashback related to a prior strangulation
assault by another person, and (b) to properly argue that the victim’s statements to an officer
were not admissible under the excited utterance exception to the hearsay rule.
We hold that (1) Bensinger’s evidentiary claims either have no merit or he fails to
establish actual and substantial prejudice, and (2) Bensinger’s ineffective assistance of counsel
claims fail. Accordingly, we deny Bensinger’s PRP. No.60540-6-II
FACTS
Background
In June 2021, Bensinger and his girlfriend AM had been living together for about a
month. On June 25, Bensinger left for an out-of-town training course. Bensinger returned early
from the training on the evening of June 27. He met up with AM at a bar.
AM argued with Bensinger and told him that she wanted to end their relationship. AM
went back to her apartment, and Bensinger arrived around 1:00 AM. According to AM,
Bensinger was intoxicated, and he repeatedly said that he wanted to kill himself. He also told
AM that he wanted to stay in a relationship with her, but she refused and tried not to engage with
him. When AM attempted to go to bed, she noticed that Bensinger had wrapped a belt around
his neck. Believing that Bensinger was trying to kill himself, AM said she was going to call the
police. However, Bensinger took her phone.
AM then told Bensinger to leave. As Bensinger started leaving, AM threw some of his
clothes out of the front door and accidentally broke his necklace when she grabbed his shirt
collar in an attempt to get her phone back. According to AM, Bensinger became increasingly
aggressive. He started throwing his clothes at her and shoving her, insisting that they were not
breaking up and stating that he was not leaving. He also told AM that if she left him, he would
report her to Child Protective Services and her child would be taken away from her.
This upset AM, and she went onto the balcony with the intent of committing suicide. She
changed her mind because she was unsure that the fall would kill her, and she returned inside and
took pills in a suicide attempt. The pills made her drowsy, and she lay down on the bathroom
floor.
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According to AM, Bensinger then dragged her into the bedroom and raped her orally,
vaginally, and anally. AM claimed that during the rape, Bensinger also hit her and attempted to
strangle her. AM was unsure whether Bensinger ejaculated during the rape. After the rape, AM
managed to escape the apartment. She ran to a neighbor’s apartment, and the neighbor called
911.
Investigation
Vancouver Police Officer Justin Reiner responded to the 911 call. He spoke to AM, and
she told him about the rape. AM did not mention that she had attempted to commit suicide.
AM then was transported to the hospital and examined by sexual assault nurse examiner
(SANE) Jan Schrader. Schrader took swabs for DNA testing from AM’s mouth, neck, vulvar
perineal area, and anus.
The State charged Bensinger with second degree rape. Bensinger pleaded not guilty and
later waived his right to a jury trial.
In a pretrial defense interview, a defense investigator asked AM about the PTSD she
previously had mentioned in an interview. AM responded that her now ex-husband had
attempted to strangle her and that this assault had caused her a lot of emotional distress. As a
result of the PTSD, she started taking an anti-depressant and an anti-anxiety medication. None
of this information was presented at trial.
DNA Results and Rape Shield Motion in Limine
The results from the DNA testing disclosed that no male DNA was found on the oral or
anal swabs. The vulvar perineal swabs showed three DNA contributors: AM contributed 28
percent of the DNA material, Bensinger contributed 2 percent, and an unidentified male
contributed the remaining 70 percent. Similarly, the neck swabs showed three DNA
3 No.60540-6-II
contributors: AM contributed 82 percent of the DNA material, Bensinger contributed 4 percent,
and an unidentified male contributed the remaining 14 percent.
Before trial, the State moved to exclude the evidence that another male’s DNA was found
on the vulvar and neck swabs and any other evidence of AM’s sexual history. The State brought
this motion under the rape shield law, RCW 9A.44.020(2). The State argued that it was trying to
foreclose the argument that the rape shield statute was trying to prevent – that because AM had
sex with another man in the past, she must have consented to sex with Bensinger. The State also
emphasized that consent was not even at issue because Bensinger claimed that he had no sexual
contact with AM.
Bensinger responded that the fact that another male contributed 70 percent of the DNA
was critical to Bensinger’s defense and important for the court’s analysis. He asserted that the
evidence also would impeach AM’s claim that she had not had sex with anyone other than
Bensinger. Bensinger did not argue that the DNA evidence would provide an explanation for the
redness and soreness that the SANE nurse observed.
The State argued that the small percentage of DNA attributable to Bensinger was
relevant, but that the DNA from the other male source was not relevant. But the State agreed
that Bensinger could impeach AM’s prior statement that she had not had sex with anyone else.
The State indicated that he could do this by asking, “[I]sn’t it true that you told investigators one
thing and that the DNA results are another thing and that that in fact is not true.” Rep. of Proc.
(RP) at 137. But he could not impeach by introducing substantive evidence of the DNA of
another person.
The trial court ruled that testimony that another person contributed DNA would not be
allowed, but Bensinger could impeach AM in the manner described by the State.
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AM Testimony
AM testified to the facts described above. AM also explained that she did not mention
her suicide attempts to Reiner or to anyone at the hospital because she was embarrassed and she
did not want to risk losing custody of her child.
On cross-examination, defense counsel asked AM if she had introduced Bensinger to a
polyamorous group. The State objected, citing the trial court’s pretrial ruling. The court
sustained the objection. A short time later, defense counsel asked AM if she earlier had stated
that she and Bensinger “were exclusive essentially the day [they] met.” RP at 189. AM agreed.
When cross-examining AM about the sexual assault examination, defense counsel asked
AM if she had any knowledge about the outcome of the DNA testing. AM responded that she
was aware that Bensinger’s DNA had been found. When defense counsel asked if she knew
anything else, the State objected based on the pretrial ruling. The trial court sustained the
objection.
Defense counsel next asked AM what other tests were performed when she was at the
hospital. AM responded that the hospital did a pregnancy test and tested her for sexually
transmitted diseases (STDs). When defense counsel asked what the results of those tests were,
the State objected based on the pretrial ruling. The trial court sustained the objection.
Defense counsel then asked AM if the police or Schrader had asked her when she had last
had sex with Bensinger. The State objected based on the pretrial ruing. The trial court sustained
the objection.
AM’s Neighbor Testimony
During the trial, AM’s neighbor Tammy Chance testified for the State. She testified that
AM arrived at her door at 3:00 AM and that AM appeared to be frightened and in distress.
5 No.60540-6-II
Chance initially had AM wait on the patio while she called the police. But Chance pulled AM
into her apartment when Bensinger appeared and AM seemed to panic.
Chance testified that she called 911 because AM told her that she had been sexually
assaulted. While waiting for the police, AM appeared to be very frightened.
Officer Reiner Testimony
Reiner testified that when he responded to the 911 call, he talked to Chance and then
interviewed AM. He stated that AM cried throughout the interview, that she appeared to be very
distressed, and that she seemed afraid. She also complained that it hurt to sit down, so she stood
for part of the interview.
Reiner then testified about AM’s detailed description of what had led up to the sexual
assault and the sexual assault. The only objection defense counsel made to this testimony
occurred when Reiner attempted to testify about AM’s statements relaying what Bensinger had
said to her:
Q Okay. At some point did she, I’m sorry. Without talking about the conversation between [AM] and [Bensinger], what happened next?
A [Bensinger] then pulled down [AM’s] sweatpants and began penetrating her anally and vaginally while saying that this was punishment for –
[DEFENSE COUNSEL]: Objection, Your Honor.
A -- cheating on him.
[DEFENSE COUNSEL]: Outside the scope and it’s hearsay.
THE COURT: All right. Again, objection sustained with regards to the statements.
[PROSECUTOR]: Your Honor, I would ask to admit that statement. It’s not hearsay. It’s a statement by a party opponent. And then the other level of hearsay is that it’s the victim’s, an excited utterance to the officer. The party opponent made the statement to [AM], [AM] excited utterance, made the statement to the officer.
THE COURT: All right. Objection overruled.
6 No.60540-6-II
RP at 229-30 (emphasis added).
Reiner also testified that he had observed that AM had red marks on her neck that
appeared consistent with someone having had their fingers wrapped around the side of her neck.
Reiner’s photographs of the marks or possible bruising on AM’s neck were admitted. On cross-
examination, Reiner identified another photograph of AM’s neck, and he testified that at least
some of the apparent bruising appeared to be older.
Reiner also testified on cross-examination that AM had told him that Bensinger had
placed both hands around her neck and squeezed her neck for three seconds and that she had
seen stars.
Sexual Examination Nurse Testimony
Schrader testified that during her examination, AM stated that Bensinger had strangled or
choked her and that he had raped her orally, anally, and vaginally. While Schrader was taking
AM’s history, AM was crying and grimacing. AM also reported tenderness and pain when
Schrader touched certain spots. AM said that a condom was not used and that she did not know
if Bensinger had ejaculated.
During the physical exam, Schrader observed that AM had redness in her anal area and
that AM reported tenderness when Schrader touched AM’s external genitalia and anal area.
Schrader took swabs for DNA testing from AM’s mouth, neck, vulvar perineal area, and anus.
While Schrader was packaging the evidence, she dropped the anal swabs on the floor.
On cross-examination, defense counsel asked if Schrader had observed any injuries to
AM’s neck. Schrader responded that she had noted in her report that there was tenderness and
swelling on AM’s neck, but Schrader qualified this statement by stating that this injury was
probably reported by AM rather than observed.
7 No.60540-6-II
Schrader also testified, over the State’s relevancy and rape shield objections, that AM
was given a pregnancy test during the exam and that AM was pregnant. Schrader further
testified that AM had stated that her last consensual sexual contact was on June 22 (five days
before the incident). Schrader stated that DNA evidence following sexual contact can exist for
up to five days.
Neither counsel questioned Schrader about AM’s references to PTSD or the prior
strangulation attempt by her ex-husband.
Examination Report
Schrader prepared a report of her sexual assault examination, which was used to refresh
her memory but not admitted as evidence. The report stated that AM had disclosed that she had
recently been assaulted by her then-estranged husband and that Bensinger’s choking her caused
her to have flashbacks to when her ex-husband strangled her and she thought she was going to
die. The report also noted that AM had stated that she was anxious and that she had PTSD.
None of the information about the prior strangulation incident or AM’s PTSD was presented at
trial.
Schrader’s report further stated that AM said that the last time she had had consensual
sexual contact was on June 22, when she had oral and vaginal sex with Bensinger.
Limiting Instruction
Before presenting testimony from forensic DNA scientist Laura Dolezal, the State asked
the trial court for an additional ruling on the DNA evidence. The State advised the court that it
was seeking guidance on how to approach Dolezal’s testimony, which would include the number
of DNA contributors, in light of the court’s pretrial ruling.
8 No.60540-6-II
Despite the fact this was a bench trial, trial court adopted the following “limiting
Instruction”: “[C]ertain evidence has been admitted in this case for only a limited purpose. This
evidence consists of the DNA results for the unknown individual and may be considered by you
only for the purpose of evaluating the weight to give to the DNA evidence. You may not
consider it for any other purpose.” RP at 456. This instruction did not preclude the
consideration of the absence of or low percentage of Bensinger’s DNA on any of the swabs.
Recognizing that this was a bench trial, the trial court commented that it would not
consider the DNA results for the unknown individual other than for the purpose of evaluating
what weight to give the DNA results.
State’s DNA Expert Testimony
Dolezal testified that the DNA profile from the sperm fraction of the vulvar perineal
swabs and the DNA from the neck swabs was a mixture that included DNA from AM,
Bensinger, and another contributor. She stated that the likelihood that the DNA on the vulvar
perineal swabs originated from AM, Bensinger, and one unknown male was 160,000 times more
likely than if the DNA originated from AM and two unrelated, random individuals. Dolezal
stated that this gave strong support for the inclusion of Bensinger as a contributor.
Dolezal also testified that the likelihood that the DNA on the neck swabs originated from
AM, Bensinger, and one unknown male was 18 times more likely than if the DNA originated
from AM and two unrelated, random individuals. She concluded that AM was assumed as one
of the contributors and that there was limited support for the inclusion of Bensinger as a possible
contributor.
9 No.60540-6-II
Dolezal stated that the amount of DNA available to test can impact the findings. She also
confirmed that no male DNA was found on the anal or oral swabs. But she testified that
dropping anal swabs on the floor could have contaminated those samples.
On cross-examination, Bensinger asked Dolezal for an opinion about how DNA can get
on an object or person. Dolezal responded that many factors, including the passage of time
between the time the DNA was deposited and when it was collected, could affect the amount of
DNA present in a sample.
Dolezal stated that the DNA testing could estimate the percentages of DNA contributed
by each contributor and that these percentages should add up to 100 percent of the DNA profile.
The State objected, asserting that unless the trial court found this testimony to be within the
scope of the limiting instruction, it was objecting based on the court’s original pretrial ruling.
The court responded that although the subject fell under the limiting instruction, it was “still
explorable.” RP at 372. Dolezal then testified to that for the vulvar perineal swabs, AM
contributed 28 percent of the DNA material, Bensinger contributed 2 percent, and an
unidentified male contributed the remaining 70 percent.
Defense counsel then asked Dolezal if she would expect to find an assailant’s DNA when
analyzing a swab taken within two to three hours of an alleged sexual assault. Dolezal
responded that many factors determined how much DNA could be collected following a sexual
assault and that “there [was] no set expectation of how much DNA may or may not be detected.”
RP at 374. But how quickly the sample was collected could affect the amount of DNA collected
because of the risk that DNA would be wiped off or cleaned off and because DNA can degrade
over time. Generally, “a collection after three hours would have the potential to collect more
10 No.60540-6-II
DNA than the same amount being collected three days later.” RP at 375. However, Dolezal
stated that she could not “determine how or when DNA was transferred on an item.” RP at 381.
Bensinger’s DNA Expert Testimony
Bensinger called forensic DNA consultant George Chan to testify about the DNA results.
Chan confirmed that the DNA on the perineal swab included 2 percent of Bensinger’s DNA, 70
percent of an unknown male’s DNA, and 28 percent of AM’s DNA.
Chan also testified that the low percentage of DNA material attributable to Bensinger
“kind of conflict[ed]” with Bensinger having been the last person to have had sexual contact with
AM. RP at 441. Chan stated that based on the scenario AM presented, Bensinger’s DNA should
have been around 70 percent, not 2 percent. But Chan also stated that there were other factors,
such as whether DNA material had been wiped away or whether the swabs had been
contaminated from falling to the ground that could affect the DNA collection.
Chan further testified that there was no male DNA found on the anal swabs, which would
have been unusual if there had been unprotected sexual contact. Chan stated that if someone had
strangled another person, he would expect to find DNA from the person’s hands on the victim’s
neck. In addition, Chan testified that DNA testing cannot establish how the DNA material came
to be at a certain place or how old the DNA material was.
Szabo Testimony
Bensinger proposed to call Samantha Szabo to testify about AM’s relationship status for
impeachment and credibility purposes. The State objected based on the rape shield law and
hearsay.
Bensinger argued that the State and trial court were applying the rape shield law in an
overbroad fashion, and that he did not intend to ask questions about AM’s sexual activity or prior
11 No.60540-6-II
history and that the testimony was intended to impeach AM’s prior statements. The trial court
ruled that Szabo could testify as to impeachment questions.
Szabo then testified that at the time of the incident, she, AM and Bensinger were all
dating.
Closing Arguments
In its closing argument, the State argued that it had proven second degree rape beyond a
reasonable doubt. The State’s argument relied on AM’s testimony, and the State argued that her
demeanor at trial, her demeanor when telling others about the rape, and her consistent statements
to others demonstrated her credibility. The State also relied on the video from Chance’s doorbell
camera, Reiner’s testimony about the redness on AM’s neck and the fact AM could barely sit
down due to soreness, and Schrader’s testimony regarding redness and tenderness around AM’s
anus and other parts of her body.
Regarding the DNA evidence, the State argued that this was not a stranger-rape case and
that DNA was not necessary to prove who the assailant was because AM identified Bensinger as
her assailant in court and to other witnesses. The State then argued that it was the trial court’s
role to weigh the DNA evidence. The State argued that Dolezal’s testimony about the DNA
evidence was the most credible and that she stated that given all of the possible variables the
only thing the evidence could show was whether or not Bensinger’s DNA was present. The
State pointed out that several factors could have affected the DNA evidence, including that AM
urinated before the swabs were taken, some of the DNA could have been wiped off by her
clothing, or DNA in her mouth could have been affected by the saliva in her mouth.
In Bensinger’s closing argument, defense counsel’s core argument was that AM was not
credible and that her statements were not corroborated by the evidence. Defense counsel
12 No.60540-6-II
asserted that those who saw AM shortly after the incident did not see any visible injuries and that
this was inconsistent with AM’s statements. Defense counsel also stated that the photographs
taken of AM did not show any marks that were contemporaneous with the incident.
Defense counsel also argued that the absence of or the low percentage of Bensinger’s
DNA on the swabs demonstrated that Bensinger had not had sexual intercourse with AM on the
night of the alleged incident. Defense counsel directed the trial court to Chan’s testimony stating
that finding none of Bensinger’s DNA on the anal swab was not consistent with the scenario that
AM presented.
Defense counsel also argued that Szabo’s testimony that she was in a relationship with
AM and Bensinger contradicted AM’s testimony that she and Bensinger were in an exclusive
relationship and reflected on AM’s credibility.
Bench Trial Verdict
The trial court found Bensinger guilty of second degree rape. The court entered written
findings of fact and conclusions of law.
In the findings of fact, the trial court found that AM’s testimony; her repetition of the
same facts to Chance, Reiner, and Schrader; AM’s grimacing during the exam; and AM’s
demeanor when speaking to these witnesses established beyond a reasonable doubt that
Bensinger had had sexual intercourse with AM under forcible compulsion. In its both oral ruling
and written findings of fact and conclusions of law, the court did not mention the DNA evidence.
Appeal and PRP
Bensinger appealed his conviction. See State v. Bensinger, No. 57297-4-II (Wash. Ct.
App. Oct. 3, 2023) (unpublished), http://www.courts.wa.gov/opinions/pdf/D2%2057297-4-
13 No.60540-6-II
II%20Unpublished%20Opinion.pdf, review denied, 2 Wn.3d 1019 (2024). This court affirmed
his conviction, and the appeal mandated in February 2024. Id. at 1.
Bensinger filed this timely PRP in July 2024.
ANALYSIS
A. PRP PRINCIPLES
To prevail in a PRP, the petitioner must establish by a preponderance of the evidence (1)
a constitutional error that resulted in actual and substantial prejudice or (2) a fundamental defect
of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re
Pers. Restraint of Meredith, 191 Wn.2d 300, 306, 422 P.3d 458 (2018). Establishing “actual and
substantial prejudice” means more than merely showing the possibility of prejudice; the
petitioner must establish that if the alleged error had not occurred, the outcome more likely than
not would have been different. In re Pers. Restraint of Meippen, 193 Wn.2d 310, 315-16, 440
P.3d 978 (2019).
RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to
support the factual allegations in the PRP. In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503,
384 P.3d 591 (2016). Conclusory allegations are insufficient. Id. Any factual allegations must
be based on more than speculation and conjecture. In re Pers. Restraint of Yates, 177 Wn.2d 1,
18, 296 P.3d 872 (2013). The petitioner must show that they have competent, admissible
evidence to establish facts that would entitle them to relief. Id.
B. RIGHT TO PRESENT A DEFENSE
Bensinger argues that the trial court’s application of Washington’s rape shield law in
several instances deprived him of his Sixth Amendment right to present a defense. We disagree.
14 No.60540-6-II
1. Legal Principles
Both the Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a defendant’s right to present a defense. State v. Jennings, 199
Wn.2d 53, 63, 502 P.3d 1255 (2022). The Supreme Court has developed a two-step process when
addressing evidentiary rulings and the right to present a defense. Id. at 58.
First, we review the trial court’s rulings for abuse of discretion. Id. “Trial courts
determine whether evidence is relevant and admissible.” Id. at 59.
Second, if we conclude that the trial court did not err in excluding the evidence or that the
error was not prejudicial, we consider de novo whether the exclusion of evidence violated the
defendant’s constitutional right to present a defense. Id. at 58. The exclusion of evidence does
not violate the defendant’s right to present a defense if the defendant is still able to present
relevant evidence to support their central defense theory. State v. Arndt, 194 Wn.2d 784, 812-13,
453 P.3d 696 (2019).
Significantly, because a defendant has “no constitutional right to present irrelevant
evidence,” the evidence presented must be at least minimally relevant to implicate the right to
present a defense. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). Relevant evidence
is “evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” ER 401.
In a direct appeal, if we determine that the court erred in excluding evidence, we then
analyze whether the error was harmless. Jennings, 199 Wn.2d at 59. But because this is a PRP,
we must examine whether Bensinger could establish that the exclusion of the evidence resulted
in actual and substantial prejudice for a constitutional error or inherently resulted in a complete
15 No.60540-6-II
miscarriage of justice for a nonconstitutional error. Meredith, 191 Wn.2d at 306; see also In re
Pers. Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498 (2013) (“If a constitutional error is
subject to harmless error analysis on direct appeal, that same error alleged in a PRP must be
shown to have caused actual and substantial prejudice in order for the petitioner to obtain
relief.”).
2. Rape Shield Statute
The rape shield statute, RCW 9A.44.020(2), states that evidence of a victim’s past sexual
behavior is inadmissible on the issue of credibility or to prove the victim’s consent. RCW
9A.44.020(2). Past sexual behavior includes but is “not limited to the victim’s marital behavior,
divorce history; general reputation for promiscuity, nonchastity, or sexual mores contrary to
community standards.” RCW 9A.44.020(2). The rape shield statute was enacted “to erase the
misogynistic and antiquated notion that a woman’s past sexual behavior somehow affected her
credibility.” Jones, 168 Wn.2d at 723. “The purpose of the rape shield statute is to prevent
prejudice arising from promiscuity and by suggesting a ‘logical nexus between chastity and
veracity.’ ” State v. Sheets, 128 Wn. App. 149, 155, 115 P.3d 1004 (2005) (quoting State v.
Peterson, 35 Wn. App. 481, 485, 667 P.2d 645 (1983)).
Even where evidence might be prohibited by the rape shield statute, the Sixth
Amendment precludes the statute from being used to bar evidence of “extremely high probative
value.” See Jones, 168 Wn.2d at 723. Evidence that tends to establish the defendant’s theory of
the case or disproves the State’s case is generally relevant and admissible despite the rape shield
statute. Sheets, 128 Wn. App. at 156. In addition, evidence regarding the victim’s past sexual
history may be admissible to impeach the victim based on inconsistent statements. State v.
Bartch, 28 Wn. App. 2d 564, 579-80, 537 P.3d 1091 (2023), review denied, 2 Wn.3d 1026
16 No.60540-6-II
(2024). Conversely, there is no constitutional problem with barring irrelevant evidence under the
rape shield statute. State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983).
We review for an abuse of discretion a trial court’s decision to exclude evidence under
the rape shield statute. Bartch, 28 Wn. App. 2d at 579. But whether the rape shield statute
applies to particular evidence is a question of statutory interpretation. Id. We review issues of
statutory interpretation de novo. Id.
3. Trial Court’s Rape Shield Ruling
The State moved to exclude evidence that another male’s DNA was found on AM’s
vulvar perineal swabs and neck swabs under the rape shield law, RCW 9A.44.020(2). The trial
court granted this motion, but allowed Bensinger to impeach AM’s statement that he was her
only sexual partner using a general reference to the DNA evidence. In the subsequent “limiting
Instruction,” the court ruled that it would consider DNA results for the unknown individual only
to evaluate the weight to give to the DNA evidence and not for any other purpose. RP at 456.
Bensinger challenges these rulings.
The evidence the trial court excluded related to AM’s sexual history. Therefore, RCW
9A.44.020(2) applies unless Bensinger can show that the evidence that tends to establish the
defendant’s theory of the case or disproves the State’s case. See Sheets, 128 Wn. App. at 156.
Here, whether AM had intercourse with another man was relevant to impeach AM based
on her statement that she and Bensinger were in an exclusive relationship. And the trial court
allowed Bensinger to impeach AM using a general reference to the DNA evidence. This ruling
reflected a correct application of the rape shield statute. See Bartch, 28 Wn. App. 2d at 579.
Otherwise, whether AM had intercourse with another man was irrelevant to the only issue
at trial – whether Bensinger forcibly raped her. Even if AM had intercourse with another man
17 No.60540-6-II
shortly before her incident with Bensinger, that fact does not make it less probable that
Bensinger raped her.
In a single sentence in his brief, Benninger suggests that intercourse with another man
was relevant because it explained the vaginal tenderness she reported to the SANE nurse. But as
the State points out, Bensinger did not make this argument in the trial court. And there is no
evidence in the record that consensual intercourse would cause the type of tenderness AM
experienced. In addition, Bensinger presents no argument why this minimal relevance is
sufficient to overcome application of the rape shield statute. This evidence certainly does not
have “extremely high probative value” as in Jones, 168 Wn.2d at 723. We generally decline to
consider an issue when the appellant fails to provide any meaningful argument on that issue. See
State v. Arredondo, 188 Wn.2d 244, 262, 394 P.3d 348 (2017).
Therefore, we conclude that the trial court did not abuse its discretion in admitting the
DNA evidence for a limited purpose. In addition, the trial court’s ruling did not violate
Bensinger’s right to present a defense because evidence that AM had intercourse with another
man was irrelevant to whether Bensinger raped her. A defendant has “no constitutional right to
present irrelevant evidence.” Jones, 168 Wn.2d at 720.
Accordingly, we hold that the trial court did not violate Bensinger’s right to present a
defense by admitting evidence that another male’s DNA was found on AM’s vulvar perineal
swabs and neck swabs only for a limited purpose.
4. Specific Evidentiary Challenges
Bensinger also claims that the trial court’s application of its rape shield ruling improperly
prevented him from presenting the certain specific evidence: (1) that AM claimed to have had
intercourse with only him and to be exclusive with him despite having intercourse with another
18 No.60540-6-II
man, (2) asking AM when she last engaged in consensual intercourse with him, (3) the identity
of the other male contributor to the DNA, (4) that AM belonged to a polyamorous group, (5)
regarding AM’s understanding of the DNA evidence, (6) asking AM about pregnancy and STD
tests performed during the SANE exam, and (7) regarding AM’s relationship with Szabo. We
conclude that the trial court did not violate Bensinger’s right to present a defense and/or he
cannot show that excluding this evidence caused him actual and substantial prejudice.
a. Evidence Impeaching AM’s Claim of an Exclusive Relationship
Bensinger argues that the trial court prevented him from presenting evidence that AM
claimed to have had intercourse with only him and that AM claimed to be exclusive with him
when the DNA evidence showed that she engaged in intercourse with another man. But
Bensinger did ask AM whether she had stated that she and Bensinger were exclusive, and she
agreed. And the trial court ruled that Bensinger could impeach AM’s prior statements in which
she asserted that her relationship was exclusive by referring generally to the DNA evidence, as
long as he did not refer to the specific DNA results. So the court did not prevent Bensinger from
asking AM about her claims of exclusivity. Therefore, we conclude that the court did not violate
Bensinger’s right to present a defense regarding this evidence.
In any event, whether AM had intercourse with another man was irrelevant to the issue at
trial – whether Bensinger forcibly raped her. Therefore, we conclude that Bensinger does not
show that excluding some evidence that he and AM were not in an exclusive relationship and
that AM had intercourse with another man caused actual and substantial prejudice.
b. Last Consensual Sexual Contact with Bensinger
During cross-examination, defense counsel asked AM if the police or Schrader had asked
her when she had last had intercourse with Bensinger. The State objected based on the trial
19 No.60540-6-II
court’s pretrial ruling. The court sustained the objection. Bensinger asserts that the court
misapplied the rape shield law in making this ruling.
We conclude that the trial court erred in excluding this evidence. The rape shield statute
states that evidence of a victim’s past sexual behavior is inadmissible on the issue of credibility
or to prove the victim’s consent. RCW 9A.44.020(2). But this evidence did not relate to
credibility or consent. It was relevant to explain the presence of Bensinger’s DNA in AM’s
vulvar perineal swabs. So the question is whether Bensinger can show that this error prejudiced
him.
Bensinger did not make an offer of proof regarding AM’s expected testimony, so we do
not know how AM would have answered. But we can presume that AM would have testified
consistently with the information contained in Schrader’s report, that AM said that the last time
she had had consensual intercourse with Bensinger on June 22.1
The DNA evidence showed that Bensinger previously had some sexual contact with AM.
And Chan’s testimony provided evidence that the low percentage of Bensinger’s DNA was not
consistent with him having had recent sexual contact with AM. Schrader testified that AM had
stated that her last consensual sexual contact was on June 22 (five days before the incident).
Schrader testified that DNA evidence following sexual contact can exist for up to five days.
Therefore, the evidence that was admitted suggests that AM last had consensual intercourse with
1 If we did not make this presumption, we would decline to review this issue. In general, to obtain appellate review of the exclusion of evidence, a party must have provided an offer of proof in the trial court. State v. Wang, 5 Wn. App. 2d 12, 26, 424 P.3d 1251 (2018). In a PRP, a petitioner may be able to provide additional evidence that can show what a witness’s testimony would have been. But Bensinger has not done so here, other than what is contained in Schrader’s report.
20 No.60540-6-II
Bensinger on June 22. As a result, AM’s testimony about the specific date would have added
very little extra support for Bensinger’s argument.
Accordingly, we conclude that Bensinger does not show that the trial court’s error caused
him actual and substantial prejudice.
c. Identity of Unknown Male DNA Contributor
Bensinger argues that the trial court’s rape shield rulings improperly prevented him from
presenting evidence of the identity of the unknown male DNA contributor. But the record does
not contain and Bensinger does not present us in his PRP with any evidence of the unknown
male’s identity. Because Bensinger does not show that this evidence existed, he cannot establish
that the trial court misapplied the rape shield statute. Therefore, we conclude that the court did
not violate Bensinger’s right to present a defense regarding this evidence.
In any event, the identity of the man with whom AM had intercourse was irrelevant to the
issue at trial – whether Bensinger forcibly raped her. Therefore, we conclude that to the extent
the trial court’s ruling prevented Bensinger from presenting evidence regarding the identity of
the man with whom AM had intercourse, he does not show that excluding evidence of the
identity of the man caused actual and substantial prejudice.
d. Evidence of Polyamorous Relationship
During cross-examination, defense counsel asked AM if she had introduced Bensinger to
a polyamorous group. The State objected based on the trial court’s pretrial rape shield ruling.
The court sustained the objection. Bensinger argues that the trial court misapplied the rape
shield statute when it precluded him from presenting this evidence.
Arguably, the trial court erred in excluding this evidence because it was relevant to
impeach AM’s statement that she and Bensinger had an exclusive relationship. However, Szabo
21 No.60540-6-II
was allowed to testify that she, AM, and Bensinger were in a relationship together at the same
time. So Bensinger was able to present some evidence of “polyamorous” activity to impeach
AM’s statement. Therefore, we conclude that the court did not violate Bensinger’s right to
present a defense regarding this evidence.
Otherwise, whether AM and Bensinger were in a polyamorous group was irrelevant to
the issue at trial – whether Bensinger forcibly raped AM. Therefore, we conclude that Bensinger
does not show that excluding this evidence caused actual and substantial prejudice.
e. AM’s Understanding of the DNA Evidence
While cross-examining AM about the sexual assault examination, defense counsel asked
AM if she had any knowledge about the outcome of the DNA testing. AM responded, “That I
did have [Bensinger’s] DNA inside of me.” RP at 211. When defense counsel then asked her if
she knew anything else about the DNA, the State objected based on the pretrial ruling. The trial
court sustained the objection. Bensinger argues that the trial court erred when it sustained this
objection because its application of the rape shield statute was overbroad.
This questioning appears to have been intended to introduce the fact the DNA testing
revealed other DNA contributors. But there is nothing in the record or provided by Bensinger in
his PRP showing what else AM may have known about the DNA evidence. Therefore, we
conclude that the court did not violate Bensinger’s right to present a defense regarding this
evidence. And without this information, we conclude that Bensinger does not show that
excluding this evidence caused actual or substantial prejudice.
f. Pregnancy and STD Tests
Defense counsel asked AM what tests in addition to the DNA tests were done at the
hospital. AM responded that she was given pregnancy and STD tests. When defense counsel
22 No.60540-6-II
asked her what the results of those tests were, the State objected, arguing that this question
violated the trial court’s rape shield rulings. The trial court sustained the objection. Bensinger
presumably asked this question to impeach AM’s claim that she and Bensinger were in an
exclusive relationship. Bensinger argues that in making this ruling the court misapplied the rape
shield statute.
However, Schrader testified that AM was given a pregnancy test during the sexual assault
exam and that AM was pregnant. So Bensinger as allowed to present this evidence. We
conclude that the trial court did not violate Bensinger’s right to present a defense regarding this
evidence. And AM’s testimony on the subject would not have added anything. Therefore, we
conclude that Bensinger does not show actual and substantial prejudice.
Regarding STDs, again Bensinger did not make an offer of proof, so we do not know
how AM would have answered. The record does not contain and Bensinger does not present any
evidence in his PRP establishing whether AM had any STDs or, if she did, who had transmitted
these STDs or when. Therefore, we conclude that the trial court did not violate Bensinger’s right
to present a defense regarding this evidence. And without this information, we conclude that
Bensinger does not establish that excluding this evidence caused actual or substantial prejudice.
C. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Bensinger argues that he received ineffective assistance of counsel when defense counsel
(1) failed to ask about AM’s earlier strangulation incident and her reported PTSD flashback, and
(2) failed to properly object to Reiner’s testimony about AM’s statements to him. We disagree.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee criminal defendants the right to effective assistance of
23 No.60540-6-II
counsel. State v. Vazquez, 198 Wn.2d 239, 247, 494 P.3d 424 (2021). To prevail on an
ineffective assistance of counsel claim, a petitioner must show both that defense counsel’s
performance was deficient and that the deficient performance was prejudicial. Id. at 247-48.
Defense counsel’s representation is deficient if, after considering all the circumstances, it
falls below an objective standard of reasonableness. Id. There is a strong presumption that
counsel’s performance was effective, and to rebut that presumption that counsel’s performance
was effective, a petitioner bears the burden of establishing the absence of any legitimate strategic
or tactical reason explaining counsel’s conduct. Id. at 248. Prejudice exists if there is a
reasonable probability that except for counsel’s errors, the result of the proceeding would have
been different. Id.
A petitioner who successfully demonstrates prejudice in an ineffective assistance of
counsel claim necessarily has shown actual and substantial prejudice sufficient to obtain
collateral relief in a PRP. State v. K.A.B., 14 Wn. App. 2d 677, 707-08, 475 P.3d 216 (2020).
2. Failure to Cross-Examine AM About the Earlier Strangulation Incident
Bensinger argues that defense counsel provided ineffective assistance of counsel when
she failed to cross-examine AM about the earlier strangulation incident that prompted the PTSD
flashback AM reported to Schrader. He contends that this evidence would have provided
another explanation for AM’s fearful demeanor when she arrived at her neighbor’s apartment
and that it could have suggested that AM was confused about the two incidents and established
reasonable doubt. We disagree.
The extent of defense counsel’s cross-examination is a matter of judgment and strategy,
and we will not find ineffective assistance of counsel based on counsel’s decisions during cross-
examination if counsel’s performance fell within the range of reasonable representation. State v.
24 No.60540-6-II
Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007). Bensinger bears the burden of
establishing that there was no legitimate strategic or tactical reason behind his attorney’s choice.
Vazquez, 198 Wn.2d at 248. A decision to refrain from introducing evidence inconsistent with
the defense theory of the case involves strategic or tactical considerations. In re Pers. Restraint
of Howerton, 109 Wn. App. 494, 508, 36 P.3d 565 (2001).
Here, defense counsel’s decision not to introduce testimony about AM’s prior
strangulation can be characterized as legitimate trial strategy. Defense counsel’s closing
argument shows that the defense strategy was to argue that there was no credible evidence that
any assault occurred. Presenting evidence that Bensinger actually did assault AM and that his
assault triggered a PTSD flashback would undermine that theory. Therefore, it could have been
reasonable for defense counsel to refrain from introducing evidence that was potentially
inconsistent with the defense’s theory of the case. Accordingly, we conclude that Bensinger
cannot meet his burden to show deficient performance on this ground and this ineffective
assistance of counsel claim fails.
3. Failure to Properly Object to Hearsay
Bensinger argues that defense counsel provided ineffective assistance of counsel by
failing to properly object to Reiner’s testimony about AM’s statements to him. Defense counsel
objected only when Reiner started talking about what AM told him about what Bensinger said to
her during the rape. But Bensinger contends that defense counsel should have objected to
Reiner’s testimony on the basis that AM’s statements to him were not excited utterances and
therefore inadmissible hearsay. He claims that AM’s intentional omission of the fact she had
attempted suicide demonstrated that she had the opportunity to fabricate her account of the
incident. We disagree.
25 No.60540-6-II
a. Legal Principles
Whether and when to object typically is a strategic or tactical decision. Vazquez, 198
Wn.2d at 248. And a person claiming ineffective assistance of counsel based on a failure to
object must show that the objection likely would have been sustained. Id.
Hearsay is defined as “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c).
Hearsay evidence generally is inadmissible unless it falls within a recognized exception to the
hearsay rule. ER 802; State v. Alvarez-Abrego, 154 Wn. App. 351, 366, 225 P.3d 396 (2010).
ER 803(a)(2) provides a hearsay exception for excited utterances – statements “relating to
a startling event or condition made while the declarant was under the stress of excitement caused
by the event or condition.” This hearsay exception is based on the premise that statements made
while a person is under the stress of an exciting event will be spontaneous rather than based on
reflection or self-interest, and therefore are more likely to be true. State v. Chapin, 118 Wn.2d
681, 686, 826 P.2d 194 (1992).
For the excited utterance exception to apply, the declarant’s statement must meet three
requirements: “(1) a startling event or condition occurred, (2) the declarant made the statement
while under the stress of excitement of the startling event or condition, and (3) the statement
related to the startling event or condition.” State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d 1273
(2007). “Often, the key determination is whether the statement was made while the declarant
was still under the influence of the event to the extent that the statement could not be the result of
fabrication, intervening actions, or the exercise of choice or judgment.” State v. Woods, 143
Wn.2d 561, 597, 23 P.3d 1046 (2001).
26 No.60540-6-II
b. Analysis
The issue here is whether if defense counsel had objected on the ground that the excited
utterance exception was inapplicable, the trial court would have excluded Reiner’s testimony
about AM’s statements to him.
Bensinger argues that the second requirement, whether AM made her statements to
Reiner while still under the stress of the event, was not met because AM’s decision to omit
information about her suicide attempts demonstrates that she had an opportunity to consciously
reflect on the situation and to change or alter her statements to protect her own self-interest.
Bensinger contends that the trial court would not have admitted Reiner’s testimony about AM’s
statements if defense counsel had clarified the standards that applied under State v. Brown, 127
Wn.2d 749, 757-59, 903 P.2d 459 (1995), and State v. Hochhalter, 131 Wn. App. 506, 516, 128
P.3d 104 (2006).
In Brown, the victim fabricated part of her story because she feared the police would not
believe her rape allegation if she told them that she was a sex worker and that she willingly went
to the defendant’s apartment. 127 Wn.2d at 758. The court held that the excited utterance
exception was inapplicable because the declarant “had the opportunity to, and did in fact, decide
to fabricate a portion of her story.” Id. at 759.
In Woods, the Supreme Court held that the trial court did not abuse its discretion when it
admitted evidence of the hearsay statements that a severely beaten victim made to her father
even though the victim omitted the fact that she had been out drinking and wanted to buy drugs
from the suspect. 143 Wn.2d at 600-01. In reaching this conclusion, the court distinguished
Brown. Id. at 599-601.
27 No.60540-6-II
The court in Woods stated, “The alleged victim in Brown affirmatively hatched a story to
bolster her own credibility,” whereas the victim in Woods “merely failed to relate information
about certain events in the evening.” Id. at 600. The court determined that even assuming the
victim consciously omitted information from her statements to her father, “[t]he fact that [the
victim] failed to provide details about the previous night, . . . especially after being brutalized in
such an egregious manner, is not comparable to the fabrication of fanciful statements that we saw
in Brown.” Id. Because the victim in Woods did not fabricate a story and merely omitted certain
information, the court held that the trial court did not abuse its discretion by admitting her
statements to her father under the excited utterance exception. Id. at 600-01.
The facts here are similar to those in Woods. Just as the victim in Woods omitted facts,
AM told Reiner about the fight with Bensinger and the rape, but she omitted the fact that she had
twice attempted or contemplated suicide during the course of the evening. Also, as in Woods,
the facts here are distinguishable from Brown because there was no evidence that AM fabricated
any additional facts. And although there are facts suggesting that AM consciously omitted facts,
the Supreme Court in Woods expressly stated that it presumed conscious omission of the facts
when reaching its decision.
Under these circumstances, including the fact the evidence showed that there was only a
brief time between the rape and AM’s statements to Reiner and the evidence showing that she
was still under the stress of a violent incident, we conclude that Bensinger has failed to show that
the trial court would have excluded this hearsay testimony even if defense counsel had objected
on the ground it was not an excited utterance or discussed Brown.
Bensinger argues that the trial court would have excluded AM’s statements to Reiner if
defense counsel had advised the court of the standards applied in Hochhalter. In Hochhalter,
28 No.60540-6-II
DD, Johnson, and Hubbard were present when DD’s former boyfriend fired a pistol at Johnson.
131 Wn. App. at 510. Before calling 911, DD and Johnson drove Hubbard to a friend’s house
because he had outstanding warrants and did not want to interact with law enforcement. Id.
Approximately 25 or 45 minutes after the incident and after stopping to get something to drink,
DD and Johnson made statements to an officer during which they appeared to be very excited.
Id. However, they “purposefully” omitted any mention of Hubbard. Id. This court refused to
apply the excited utterance exception because the declarants “reflected beforehand . . . [and]
consciously and intentionally omitted part of what they had observed.” Id. at 516.
We disagree that Hochhalter precludes the use of the excited utterance exception to the
hearsay rule here. Initially, the facts in Hochhalter are different than those here. In Hochhalter,
a significant period of time passed between the assault and the statements, during which the
declarants drove another witness to his friend’s house and stopped to get something to drink.
There was time for reflection. Here, AM made the statements to Reiner shortly after her
neighbor called 911.
In addition, in Hochhalter this court failed to acknowledge Woods, which had been
issued several years earlier. In Woods, the Supreme Court expressly stated that the conscious
omission of facts alone is not sufficient to preclude admission under the excited utterance
exception to the hearsay rule. 143 Wn.2d at 600. The trial court was bound to follow Woods.
See State v. Winborne, 4 Wn. App. 2d 147, 175, 420 P.3d 707 (2018) (appellate courts are bound
to follow Supreme Court precedent). Accordingly, we conclude that Bensinger does not show
that the trial court would have excluded AM’s hearsay statements to Reiner if defense counsel
had argued that the statements were inadmissible under Hochhalter.
29 No.60540-6-II
Because Bensinger does not show that the trial court would have excluded AM’s hearsay
statements to Reiner if defense counsel had properly objected, he does not establish ineffective
assistance of counsel on this basis.
CONCLUSION
We deny Bensinger’s PRP.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, P.J.
We concur:
LEE, J.
CHE, J.