State Of Washington, Resp/cross-app V. Cole Edward Krause, App/cross-resp
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Opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84599-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION COLE EDWARD KRAUSE,
Appellant.
BIRK, J. — The criminal rules permit the State to try multiple criminal
offenses against a defendant in a single trial. See generally CrR 4.3(a). But as
the Supreme Court explained in State v. Bluford, 188 Wn.2d 298, 311, 393 P.3d
1219 (2017), the interest in the judicial economy of one trial cannot override clear,
undue prejudice to the substantial rights of the defendant. In Bluford, 188 Wn.2d
at 315-16, and again in State v. Slater, 197 Wn.2d 660, 680, 486 P.3d 873 (2021),
the Supreme Court held that undue prejudice occurred when the trial of multiple
offenses in a single trial allowed the State to introduce prejudicial evidence of other
acts that would have been inadmissible in severed trials. In both cases, the
Supreme Court reversed the defendants’ convictions on that basis. Bluford, 188
Wn.2d at 316; Slater, 197 Wn.2d at 680. No. 84599-3-I/2
In this case, the State charged Cole Krause with three counts of rape in the
third degree for having sexual intercourse with A.C.S.,1 A.L., and A.C. without their
consent, and one count of rape in the second degree for having sexual intercourse
with A.C. when she was incapable of consent. Besides involving three different
complaining witnesses, the State alleged the acts occurred in different places,
times, and settings. The State never argued in the trial court that any of the alleged
acts of rape was admissible on any count other than the one to which each related.
By trying the four counts together, the State was able to present, as to each count,
evidence of at least two other unrelated and inadmissible acts of rape.
While the Supreme Court has not spoken with one voice about the issue,
its most recent decisions in Bluford and Slater control the decision here. In Bluford,
a joint trial was reversible error because it permitted the State to put on evidence
of inadmissible other acts of robbery, two of which included sexual offenses. 188
Wn.2d at 314-15. In Slater, a joint trial was reversible error because it permitted
the State to put on evidence of the inadmissible other act of failing to appear at a
court hearing. 197 Wn.2d at 679-80. The question here is whether we can sustain
a joint trial that allowed the State to put on evidence of inadmissible other acts of
rape. Contrary to the dissent’s framing, there is no question about following the
“full framework” of the law. Dissent at 1. The “full framework” governing motions
to sever is clear, and Bluford and Slater neither contemplate nor permit
“contextualiz[ing]” or “minimiz[ing]” into insignificance clear prejudice resulting from
1 The April 17, 2017 information identified A.C.S. as A.C., but we will identify her as A.C.S. throughout to distinguish from A.C., who was identified in subsequently added counts.
2 No. 84599-3-I/3
a joint trial. Dissent at 12. Because the prejudice to Krause’s rights was at least
as great as that which compelled reversal in Bluford and Slater, we reverse and
remand.
We additionally conclude (1) the trial court was not required to dismiss one
of the counts because it had been charged in an earlier juvenile proceeding that
was dismissed, (2) Krause waived any argument that the trial judge was required
to recuse, and (3) there was sufficient evidence supporting the count of rape in the
third degree of A.C. We do not reach Krause’s remaining assignments of error.
I
A
A.C.S. testified that her first communication with Krause was on December
20, 2015, when he contacted her on a social media platform. A.C.S. and Krause
went to the same high school. A.C.S. was 27 ½ months younger than Krause.
Krause “randomly” messaged her inviting her to go to a party. A.C.S. clarified that
she was a freshman because Krause looked older, and expressed reluctance
about attending a party. Although Krause brought up sex, A.C.S. was not ready.
A.C.S. and Krause continued to correspond over social media, and he sought her
out at school.
On January 7, 2016, A.C.S. finished dance practice and went to her locker.
No one else was around, but Krause was there and started to kiss her. Krause
forcibly guided A.C.S. to an alcove. A.C.S. repeatedly told Krause she needed to
leave. Krause turned A.C.S. around, pulled down her pants and underwear, and
digitally penetrated her vagina. A.C.S. kept telling him no. Krause turned her
3 No. 84599-3-I/4
toward him, kissed her again, then turned her around again and put his penis inside
her vagina. He put his penis in her mouth while holding her head and hair. A.C.S.
testified everything hurt, on her and inside her, and there was a lot of blood on her
pants and on the ground. Krause used a shirt to wipe up the blood. Later that
night, A.C.S. told her parents what happened, police came to her house, and she
saw a nurse at a hospital.
A.C.S. testified that some friends later did not want to be friends with her
anymore because they saw what was happening to her online. This was because
of rumors going around the school and online about what happened between
A.C.S. and Krause. These were reasons that A.C.S. switched schools and her
family moved out of the area.2
In April 2016, the State charged Krause with rape in the third degree of
A.C.S. in a juvenile proceeding. After Krause turned 18 in June 2017, juvenile
court jurisdiction was extended several times. According to the State, A.C.S. and
her family decided not to pursue the case, and, in February 2017, the court granted
the State’s motion to dismiss the proceeding. According to representations the
State later made in the litigation, A.C.S. changed her mind about participating after
she learned of A.L.’s January 2017 disclosure of a new charge.
2 We disagree with the dissent that our description of the trial testimony is inadequate to discharing the court’s responsibility in determining this appeal. The legal test looks at the “relative strength” of the charges. State v. Russell, 125 Wn.2d 24, 64, 882 P.2d 747 (1994). Determining that the charges were of relatively similar strength does not require that we air in granular detail the traumatic narratives that A.C.L., A.L., and A.C. described at trial, nor that we attach subjective characterizations to their testimony.
4 No. 84599-3-I/5
B
On January 25, 2017, police received a report from A.L. A.L. testified she
attended the same high school that A.C.S. had identified as hers and Krause’s.
A.L. was approximately 24 months younger than Krause. A.L.’s friend group
included Krause. A.L. testified that Krause and her former boyfriend were in the
same class, but she said she could not recall if they graduated at the same time
because of “everything going on,” which she explained, “we all knew what was
going on with [A.C.S.] and like that.”
A.L. said she had not spent time alone with Krause, but that changed toward
the summer of 2016. A.L. described two occasions when she went to Krause’s
house alone. A.L. testified that “[t]he second” she and Krause were alone, “it just
immediately got very sexual.” There were times A.L. engaged in consensual sex
with Krause, but she said “it just didn’t feel right.” This occurred three times. On
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84599-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION COLE EDWARD KRAUSE,
Appellant.
BIRK, J. — The criminal rules permit the State to try multiple criminal
offenses against a defendant in a single trial. See generally CrR 4.3(a). But as
the Supreme Court explained in State v. Bluford, 188 Wn.2d 298, 311, 393 P.3d
1219 (2017), the interest in the judicial economy of one trial cannot override clear,
undue prejudice to the substantial rights of the defendant. In Bluford, 188 Wn.2d
at 315-16, and again in State v. Slater, 197 Wn.2d 660, 680, 486 P.3d 873 (2021),
the Supreme Court held that undue prejudice occurred when the trial of multiple
offenses in a single trial allowed the State to introduce prejudicial evidence of other
acts that would have been inadmissible in severed trials. In both cases, the
Supreme Court reversed the defendants’ convictions on that basis. Bluford, 188
Wn.2d at 316; Slater, 197 Wn.2d at 680. No. 84599-3-I/2
In this case, the State charged Cole Krause with three counts of rape in the
third degree for having sexual intercourse with A.C.S.,1 A.L., and A.C. without their
consent, and one count of rape in the second degree for having sexual intercourse
with A.C. when she was incapable of consent. Besides involving three different
complaining witnesses, the State alleged the acts occurred in different places,
times, and settings. The State never argued in the trial court that any of the alleged
acts of rape was admissible on any count other than the one to which each related.
By trying the four counts together, the State was able to present, as to each count,
evidence of at least two other unrelated and inadmissible acts of rape.
While the Supreme Court has not spoken with one voice about the issue,
its most recent decisions in Bluford and Slater control the decision here. In Bluford,
a joint trial was reversible error because it permitted the State to put on evidence
of inadmissible other acts of robbery, two of which included sexual offenses. 188
Wn.2d at 314-15. In Slater, a joint trial was reversible error because it permitted
the State to put on evidence of the inadmissible other act of failing to appear at a
court hearing. 197 Wn.2d at 679-80. The question here is whether we can sustain
a joint trial that allowed the State to put on evidence of inadmissible other acts of
rape. Contrary to the dissent’s framing, there is no question about following the
“full framework” of the law. Dissent at 1. The “full framework” governing motions
to sever is clear, and Bluford and Slater neither contemplate nor permit
“contextualiz[ing]” or “minimiz[ing]” into insignificance clear prejudice resulting from
1 The April 17, 2017 information identified A.C.S. as A.C., but we will identify her as A.C.S. throughout to distinguish from A.C., who was identified in subsequently added counts.
2 No. 84599-3-I/3
a joint trial. Dissent at 12. Because the prejudice to Krause’s rights was at least
as great as that which compelled reversal in Bluford and Slater, we reverse and
remand.
We additionally conclude (1) the trial court was not required to dismiss one
of the counts because it had been charged in an earlier juvenile proceeding that
was dismissed, (2) Krause waived any argument that the trial judge was required
to recuse, and (3) there was sufficient evidence supporting the count of rape in the
third degree of A.C. We do not reach Krause’s remaining assignments of error.
I
A
A.C.S. testified that her first communication with Krause was on December
20, 2015, when he contacted her on a social media platform. A.C.S. and Krause
went to the same high school. A.C.S. was 27 ½ months younger than Krause.
Krause “randomly” messaged her inviting her to go to a party. A.C.S. clarified that
she was a freshman because Krause looked older, and expressed reluctance
about attending a party. Although Krause brought up sex, A.C.S. was not ready.
A.C.S. and Krause continued to correspond over social media, and he sought her
out at school.
On January 7, 2016, A.C.S. finished dance practice and went to her locker.
No one else was around, but Krause was there and started to kiss her. Krause
forcibly guided A.C.S. to an alcove. A.C.S. repeatedly told Krause she needed to
leave. Krause turned A.C.S. around, pulled down her pants and underwear, and
digitally penetrated her vagina. A.C.S. kept telling him no. Krause turned her
3 No. 84599-3-I/4
toward him, kissed her again, then turned her around again and put his penis inside
her vagina. He put his penis in her mouth while holding her head and hair. A.C.S.
testified everything hurt, on her and inside her, and there was a lot of blood on her
pants and on the ground. Krause used a shirt to wipe up the blood. Later that
night, A.C.S. told her parents what happened, police came to her house, and she
saw a nurse at a hospital.
A.C.S. testified that some friends later did not want to be friends with her
anymore because they saw what was happening to her online. This was because
of rumors going around the school and online about what happened between
A.C.S. and Krause. These were reasons that A.C.S. switched schools and her
family moved out of the area.2
In April 2016, the State charged Krause with rape in the third degree of
A.C.S. in a juvenile proceeding. After Krause turned 18 in June 2017, juvenile
court jurisdiction was extended several times. According to the State, A.C.S. and
her family decided not to pursue the case, and, in February 2017, the court granted
the State’s motion to dismiss the proceeding. According to representations the
State later made in the litigation, A.C.S. changed her mind about participating after
she learned of A.L.’s January 2017 disclosure of a new charge.
2 We disagree with the dissent that our description of the trial testimony is inadequate to discharing the court’s responsibility in determining this appeal. The legal test looks at the “relative strength” of the charges. State v. Russell, 125 Wn.2d 24, 64, 882 P.2d 747 (1994). Determining that the charges were of relatively similar strength does not require that we air in granular detail the traumatic narratives that A.C.L., A.L., and A.C. described at trial, nor that we attach subjective characterizations to their testimony.
4 No. 84599-3-I/5
B
On January 25, 2017, police received a report from A.L. A.L. testified she
attended the same high school that A.C.S. had identified as hers and Krause’s.
A.L. was approximately 24 months younger than Krause. A.L.’s friend group
included Krause. A.L. testified that Krause and her former boyfriend were in the
same class, but she said she could not recall if they graduated at the same time
because of “everything going on,” which she explained, “we all knew what was
going on with [A.C.S.] and like that.”
A.L. said she had not spent time alone with Krause, but that changed toward
the summer of 2016. A.L. described two occasions when she went to Krause’s
house alone. A.L. testified that “[t]he second” she and Krause were alone, “it just
immediately got very sexual.” There were times A.L. engaged in consensual sex
with Krause, but she said “it just didn’t feel right.” This occurred three times. On
the third occasion, Krause was resistant to using a condom, and without her
consent penetrated A.L. without one before putting on a condom after all. After
that, A.L. decided she would not have sex with him again because she could not
trust him. She informed Krause of her decision.
In late summer 2016, Krause contacted A.L. about socializing after A.L.
finished work. A.L. did not wish to do so. While walking home, A.L. saw Krause
pull over on the side of the road. Krause asked her join him in his vehicle and
smoke cannabis. Although A.L. did not want to, she got in the vehicle because
she did not want to be rude and he “kept persisting.” He drove to a cul-de-sac
where they smoked, and then he grabbed her hair and tried to kiss her. A.L. told
5 No. 84599-3-I/6
him to stop. When asked, A.L. affirmed that she was “generally aware of the
allegations involving [A.C.S.],” and when asked “did that at all play in your mind
when you were in the car with [Krause]?” answered “Yes.”
After some time A.L. convinced Krause to leave, but Krause said he needed
to stop at his mom’s house. At the house, A.L. went to Krause’s old bedroom.
Krause appeared in the doorway and pressed A.L. up against the wall. He started
kissing her and she was at that point “really scared” and “petrified.” Krause
unbuttoned A.L.’s shirt and pants as she told him to stop because she did not want
to do this and was scared. Krause raped A.L. vaginally. She cried. A.L.
remembered Krause “flipping [her] over like [she] was nothing” and anally raping
her, causing physical and emotional pain. A.L. testified she “didn’t think something
like that would happen to me . . . especially after, like, knowing what happened to
[A.C.S.] and just accepting that I was going through exactly what I had said could
never happen, you know, because all of us friends had spent so long sticking up
for him.”
A.L. testified she did not immediately tell her dad what happened, and when
asked why testified, “Because I was having trouble accepting what had happened.”
A.L. texted Krause that night indicating that he had “forced [her] to have sex with
[him]” and directing him not to talk to her. The prosecutor asked why, after A.L.
had told her friends and her father had found out about the rape, she did not go to
the police. A.L. answered she was scared, and “had seen how everyone had
treated [A.C.S.]” A.L. affirmed that the things people were saying about A.C.S.
6 No. 84599-3-I/7
were generally “[n]egative.” And she affirmed that that influenced whether she
wished to come forward with allegations.
Krause initiated text communication with A.L. In their exchange, A.L. wrote
“ ‘I know it was partly my fault.’ ” She explained, “I couldn’t imagine this random
act of violence would have just happened to me, and I think in a lot of ways I
blamed myself because I did know about [A.C.S.], and I did know that he potentially
could be like that.” Krause continued texting despite A.L.’s wish to be left alone.
Her father saw those text messages, he confronted A.L., she told him everything,
and they went to the police.
A.L. and A.C. worked at the same employer at a time after A.L. had gone to
the police. The prosecutor asked A.L. if she “let [A.C.] know about what had
happened to you with [Krause]?” to which A.L. answered, “Yeah. I confided with
her a little bit.” A.L. affirmed that A.C. “talked to [her] as well.”
The State filed an information on April 17, 2017, charging Krause in an adult
proceeding with one count rape in the third degree of A.C.S., and one count of
rape in the third degree of A.L. Within three months of the State’s re-filing charges,
the court heard argument on Krause’s motion to dismiss the count concerning
A.C.S. because it had been previously charged in a juvenile proceeding that had
been dismissed. When the court denied the motion to dismiss, Krause’s counsel
indicated that Krause would pursue a motion to sever the counts. On January 5,
2018, Krause’s original attorney filed a written motion to sever the existing two
counts, and on February 2, 2018, new counsel appeared who would represent
Krause through trial. Krause would go on to move for severance several times.
7 No. 84599-3-I/8
C
The record does not indicate a motion to sever had been heard when, on
November 9, 2018, the State filed an amended information charging Krause with
the original two counts of rape in the third degree of A.C.S. and A.L., and additional
counts of rape in the third degree and rape in the second degree of A.C.
A.C. testified she attended the same high school as Krause. A.C. was 20
months younger than Krause. A.C. met Krause through a mutual acquaintance
and attended a school event with him. A.C. said she and Krause were best friends,
and later their relationship became romantic. They dated “[o]n and off” for two
years. A.C. testified that she and Krause had a sexual relationship. She described
times when he wanted to have sex and she did not want to, and he would either
“coerce” A.C. or she would say no but “then I fell asleep and it would end up
happening.”
When A.C. was 16, she went to a Halloween party. A.C. became
intoxicated to the point she “[c]ouldn’t really walk” and vomited. A.C. asked
another person to give her a ride to Krause’s house. Krause helped her, still
unstable from alcohol intoxication, to his room. A.C. fell asleep very fast. The next
thing she remembered was waking up to her and Krause having sex. She fell back
asleep. Although A.C. did not clearly recall what happened, in the morning she
spoke to Krause and he said they had had sex.
A.C. described an incident when she and Krause parked on a street in
A.C.’s neighborhood. They had consensual sex in the back of the car. Krause
wanted to try anal sex, but A.C. told him no. They continued to have sex but at
8 No. 84599-3-I/9
one point Krause penetrated her anally. A.C. told him no multiple times and to
stop but he kept doing it. A.C. cried from the pain. A.C.’s and Krause’s relationship
continued after that. Eventually they agreed to end their relationship and A.C. “cut
[Krause] out of [her] life.”
A.C. became aware of the incident between A.C.S. and Krause. A.C.
testified Krause told her that what happened with A.C.S. was not true. Krause told
her the incident did not happen at the school, but after their extracurricular activities
he took A.C.S. to a park and they had sex.
A.C. testified that she and A.L. used to be best friends. They met again
when they worked for the same employer. A.C. and A.L. had a conversation about
Krause. At that point, A.C. had wanted to go the police, but had not done so
because she did not want to have years of her life taken up with court. Wanting
“to help” A.L., A.C. provided the police a statement “on just how me and [Krause]
were in instances that had happened to me.”
D
The first hearing on severance in our record occurred on January 26, 2021.
Krause’s counsel argued that the defense was “renewing” the motion to sever the
original counts that had been made and had been denied. This court has no record
that the superior court had ruled on the motion, and it appears counsel’s belief the
motion had been denied was in error. Nevertheless, Krause’s new counsel argued
the question of severance was now different with the addition of two new charges.
However, Krause’s counsel also argued the motion turned on witness interviews
9 No. 84599-3-I/10
that he wished to conduct. The State opposed the interviews, Krause did not
oppose postponing discussion of severance, and the court agreed to do so.
By February 10, 2022, then just “a few hours” away from starting trial, the
defense still understood the motion to sever was awaiting a ruling. The defense
again expressed belief that severance had been denied when only two counts
were pending, and the trial court judge made a record that that was the case,
acknowledging that the defense was moving to sever all counts. The State agreed
with that history. Also overlooking that there had not been an earlier ruling, the
State argued the court should deny severance for “the same reasons” on which
the earlier judge had relied. The State argued that the analysis of cross-
admissibility was not limited to whether each “event itself” would be admissible to
establish any of the other counts, but whether witness “statements” and
“motivations” would be relevant to multiple counts. The State represented, “There
is so much cross-admissible evidence that there’s no way to coherently tell the
story of each of these victims without them being joined.” Predicting the evidence
on the different charges would be cross-admissible, the court denied the motion.
At motions in limine, Krause raised the objection again to trying the counts
relating to A.C. along with those relating to A.C.S. and A.L. The prosecutor alluded
to anticipated testimony in which the count relating to A.C.S. would involve
10 No. 84599-3-I/11
testimony by A.L., and the count relating to A.L. would involve testimony by A.C.,
linking the three together. The prosecutor explained,
• A.L. would testify that her seeing the harassment of A.C.S. when A.C.S.
came forward was part of the reason A.L. chose not to come forward with
her allegations until later.
• A.L. had a conversation with A.C. about A.L.’s coming to court in which
A.C. disclosed that she also had been assaulted by Krause, and came
forward only to help A.L., and
• A.C. had a conversation with Krause when he was arrested in which he
gave a statement about where “it” had happened—we understand referring
to the count relating to A.C.S.—that was inconsistent with physical
evidence.
According to the prosecutor, even if some counts were severed, “I would still be
calling all of these witnesses to testify in each other’s trials.” The court denied
severance based on “the interrelation between the allegations and all of these
individuals,” leading the court to believe they “are cross admissible.” In further
discussions, the State conceded under the hearsay rule that no complaining
witness could testify to acts against any other.
At trial, in addition to A.C.S., A.L., and A.C. who testified as outlined above,
the State called a trauma clinical coordinator from Providence Everett Medical
Center, who had worked as a forensic nurse examiner. She testified A.C.S.
reported on January 7, 2016, that she had been sexually assaulted by Krause.
Police testified to their discovery of blood at the school where A.C.S. said she was
11 No. 84599-3-I/12
raped. While executing a search warrant at Krause’s house, police found a shirt
matching the description A.C.S. had given them of the shirt Krause used to wipe
up the blood. A Washington State Patrol Crime Lab forensic scientist, tested a
sexual assault kit, underwear, a shirt, and two reference samples. Krause’s and
A.C.S.’s DNA were both found in the underwear. Blood matching A.C.S.’s DNA
was found on the shirt.
After the State rested, Krause renewed his motion to sever the counts.
Krause argued that by blending the cases together, the State had engendered “an
improper inference.” Citing ER 404(b), Krause argued, “[T]he State should not be
allowed to piggy back” one person’s decision about consent “allowing it to be
considered by the jury in convicting [as to] somebody else” During this colloquy,
in regard to judicial economy, the court expressed concern about the additional
time jury selection took because of COVID-19.
The prosecutor argued that “there has been no blending.” The State relied
on “cross admissibility,” which it identified as the witnesses testifying to “not only
what happened to them, but their knowledge of what was going on” with the others.
The prosecutor described this evidence as,
• “[A.L.] being aware of the bullying and harassment [of A.C.S.],”
• “[A.C.] coming forward only because [A.L.] had told her what happened,”
and
• “[A.C.] spoke to Mr. Krause regarding the incident regarding [A.C.S.]”
Calling this “ample cross-admissibility of the evidence,” the State indicated it was
“not resting solely on judicial economy” to support denial of severance.
12 No. 84599-3-I/13
The court denied severance. It concluded that after “having the benefit of
the actual testimony, the decision to not sever the offenses is actually bolstered.”
From the court’s belief it was “dealing with evidence that clearly appears to be
cross-admissible,” the court turned to judicial economy. The court ultimately did
not rely on the existence of COVID-19 protocols. The court believed severed trials
would be lengthy, and believed “juries can clearly separate the different charges.”
Krause testified he had consensual sex with A.C.S., A.L., and A.C. Krause
believed A.C.S.’s response demonstrated agreement and denied physically
forcing her. He said there was a little bit of blood and he wiped it up with a shirt.
Regarding A.L., Krause testified they had made plans to hang out at his house and
have sex. He said that when they had sex, he had asked if she was feeling better
at that point despite having been too tired earlier, and she answered yes. In regard
to A.C.’s attending a party and drinking, Krause claimed A.C. had been drinking,
but was able to walk and not nearly to the point of needing to be carried. They
spoke and she appeared to follow the conversation. Krause and A.C. discussed
anal intercourse on multiple occasions. They did not come to a definitive
agreement. At one time, he asked to do so and initiated it, but stopped immediately
when she said no. Krause denied raping A.C.S., A.L., or A.C.
In its closing argument, the State urged the jury to view the three
complaining witnesses as being connected to one another: “For three young
women, [A.C.S.], [A.L.], and [A.C.], their connection to high school and to each
other is far more damaging, and it is their connection to [Krause].” The prosecutor
said, “[T]here is one verdict for these girls.” The jury returned a verdict of guilty on
13 No. 84599-3-I/14
all four counts, and based on the conviction of rape in the second degree Krause
was taken into custody without bail pursuant to RCW 10.64.025. The court
imposed a low end, standard range sentence of 17 ½ years in prison.
II
Krause argues that the trial court erred by denying his motion to sever the
counts in order to ensure a fair determination of each of them. Based on the totality
of Supreme Court decisional law on the issue, we agree.
A trial court may sever offenses on timely motion of the defendant whenever
“before trial or during trial” the court determines that “severance will promote a fair
determination of the defendant’s guilt or innocence of each offense.” CrR 4.4(b).
Washington law disfavors separate trials. State v. Grisby, 97 Wn.2d 493, 506, 647
P.2d 6 (1982). “A defendant ‘seeking severance ha[s] the burden of demonstrating
that a trial involving [all] counts would be so manifestly prejudicial as to outweigh
the concern for judicial economy.’ ”3 Slater, 197 Wn.2d at 676 (alterations in
original) (quoting State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990)).
3 “A party must generally move for severance pretrial and renew a denied pretrial motion for severance ‘before or at the close of all the evidence.’ ” Bluford, 188 Wn.2d at 306 (quoting CrR 4.4(a)(2)). If the party does not timely make or renew a severance motion, severance is waived. Id. “When a court considers a pretrial motion to sever, it is generally considering the potential for prejudice. The purpose behind the requirement for renewal is to give the court an opportunity to assess whether there is actual prejudice based on the evidence presented or proffered.” State v. McCabe, 26 Wn. App. 2d 86, 94-95, 526 P.3d 891 (2023), review denied, 1 Wn.3d 1032, 534 P.3d 806 (2023). When we review a trial court’s severance decision for abuse of discretion, we consider only the information known to the court at the time of its ruling. Id. at 89-90. Because we conclude the last ruling on severance was error requiring reversal based on the prejudice that had then manifested, it is not necessary to review either the propriety of joinder in the first instance under CrR 4.3(a) or the earlier severance rulings.
14 No. 84599-3-I/15
The potential prejudice to the defendant from trying counts in a single trial must be
balanced against judicial economy. Id. at 677. The defendant must show both
“that prejudicial effects of joinder have been produced,” and “that a joint trial would
be so prejudicial as to outweigh concern for judicial economy.” Bythrow, 114
Wn.2d at 722. “The failure of the trial court to sever counts is reversible only upon
a showing that the court’s decision was a manifest abuse of discretion.” Id. at 717.
Prejudice may result from joinder of multiple counts for trial when “(1) the
defendant may have to present separate, possibly conflicting, defenses, (2) the
jury may infer guilt on one charge from evidence of another charge, or (3) the
cumulative evidence may lead to a guilty verdict on all charges when, if considered
separately, the evidence would not support every charge.” Slater, 197 Wn.2d at
676-77. Prejudice may result from joinder also when “ ‘the defendant is
embarrassed in the presentation of separate defenses, or if use of a single trial
invites the jury to cumulate evidence to find guilt or infer a criminal disposition.’ ”
Id. at 677 (quoting State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994)).
The Supreme Court has said that “[i]n determining whether the potential for
prejudice requires severance,” a trial court must consider:
“(1) the strength of the State’s evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial.”[4]
4 These four considerations first appeared in a different form in State v. Kinsey, 7 Wn. App. 773, 776, 502 P.2d 470 (1972). They were our summary of the reasons why the Supreme Court found the defendants were not prejudiced by joinder in State v. Smith, 74 Wn.2d 744, 755-56, 446 P.2d 571 (1968), vacated in part, 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747 (1972), overruled by State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975). We described these four
15 No. 84599-3-I/16
Id. at 677 (quoting Russell, 125 Wn.2d at 63). No one factor is “necessarily
preeminent.” State v. Watkins, 53 Wn. App. 264, 272 n.3, 766 P.2d 484 (1989).
“Rather, all of the factors together are a means of determining whether potential
prejudice to a defendant requires severance and must be assessed in that light.”
Id.
To determine whether prejudicial effects of joinder were produced, we
consider the factors identified in Russell.
Starting with the strength of the State’s evidence, all four counts were
supported by the testimony of the complaining witnesses that Krause had sexual
intercourse with them to which they did not consent, and in the case of the count
of rape in the second degree, could not consent. Although the count involving
A.C.S. was supported by physical evidence lacking on the other counts, that
considerations as elements Smith noted as “preventing prejudice to the defendant.” Kinsey, 7 Wn. App. at 776. As Smith originally explained these considerations, all four together indicated that prejudice was absent where (1) the State was not using joinder to bolster weak counts, (2) defendants were not forced to present conflicting defenses, (3) based on the court’s instructions the jury could not have considered the evidence improperly, and (4) the evidence on the different counts would have been admissible even in severed trials. 74 Wn.2d at 755-56. In Russell, the court restated the four considerations giving them their present language. 125 Wn.2d at 63 (citing Smith, 74 Wn.2d at 755-56). The four considerations aid in searching out different kinds of prejudice courts have recognized in the simultaneous trial of multiple criminal counts. No case holds that they balance against one another: if prejudice exists for instance because of an unfair inference of propensity, that is not offset for instance because the State is not also trying to unfairly bolster a weak count by joining it with a stronger one. Any prejudice that is discovered to exist must be weighed against judicial economy.
16 No. 84599-3-I/17
physical evidence tended chiefly to prove the physical act and its location. The
State only secondarily argued that it proved lack of consent. The other counts
were supported by other circumstantial evidence, such as Krause’s
communications with the complaining witnesses, that similarly proved the physical
acts and some of their circumstances. This was not a case in which the State
sought to shore up a weak count by joining it with a stronger one.
As to embarrassing the defendant in the presentation of defenses to the
joined counts, there was separation between Krause’s defense to the three counts
of rape in the third degree and his defense to the count of rape in the second
degree. For the three counts of rape in the third degree, the State had the burden
to prove that each complaining witness did not consent to sexual intercourse. On
the count of rape in the second degree, the State did not need to prove lack of
consent, but rather that A.C. was incapable of consent by reason of being
physically helpless or mentally incapacitated. This count was subject to an
affirmative defense on which Krause had the burden of proving that he “reasonably
believed that [A.C.] was not mentally incapacitated or physically helpless.” See
RCW 9A.44.030(1). Krause could defend against the three counts of rape in the
third degree by maintaining the State failed to meet its burden to prove that the
complaining witnesses had not consented. But, he argues, given his burden of
proving his own reasonable belief to support his affirmative defense to the count
of rape in the second degree, as to that count it was necessary to forgo his right
not to testify.
17 No. 84599-3-I/18
We agree with Krause there was a distinction in his defenses to the two
crimes, but we discern no prejudice. He does not make a “ ‘convincing showing’ ”
that he had “ ‘a strong need to refrain from testifying’ ” on the three counts of rape
in the third degree. Russell, 125 Wn.2d at 65 (quoting Watkins, 53 Wn. App. at
270). Even “mutually antagonistic defenses will not support a motion for severance
unless the defendant demonstrates prejudice.” Watkins, 53 Wn. App. at 270; cf.
State v. Johnson, 147 Wn. App. 276, 285, 194 P.3d 1009 (2008) (“We rarely
overturn a trial court’s denial of a motion to sever on the basis of mutually exclusive
defenses, even when one defendant tries to blame another.”). The State did not
impair Krause’s ability to maintain adequately consistent defenses to the charges
by presenting them at the same trial.
The third consideration identified in Russell is the presence of “instructions
to the jury to consider each count separately.” 125 Wn.2d at 63. Here, the court
instructed the jury, “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.” We presume the jury followed this instruction. State v.
Weaver, 198 Wn.2d 459, 469, 496 P.3d 1183 (2021). Accepting that presumption,
the jury could not have concluded that Krause was guilty of any one count because
it believed he was guilty of any other. But the instructions did not limit the use of
evidence to a particular purpose.5 In other words, the instructions did not place
5 In Smith, evidence of the multiple counts was admissible under ER 404(b) and “[t]he trial court did instruct the jury . . . that evidence of other crimes could be considered on any one count only as it bore on the elements of motive, intent,
18 No. 84599-3-I/19
any restrictions on the evidence the jury could use to determine guilt as to each
count. The trial court did not cabin the evidence in any way, because, as
discussed below, the evidence at issue was not admissible for any purpose on the
joined counts. With no limitation on the jury’s consideration of the evidence, the
potential for prejudice from the use of the evidence in the manner ER 404(b) forbids
went unchecked. The jury instructions did not mitigate the potential prejudice
resulting from joining the counts in one trial.6
The dissent says we have misunderstood this factor, because our
observation that the instructions did nothing to prevent violation of ER 404(b) is
“not how our Supreme Court articulated the factor” in “every case since Smith.”
Dissent at 8. The dissent explains its view that the Supreme Court in Russell and
Slater “could have gone back to Smith” and “required courts to issue” limiting
instructions. Dissent at 8. There was no issue in Russell, Slater, or any other cited
severance case about whether the court was going to “require” limiting instructions.
identity, or common scheme or plan.” 74 Wn.2d at 755. Thus, consideration of the instructions became part of the severance inquiry not because a trial court instructed the jury to consider each count separately, but because it instructed the jury to consider the evidence only in a manner consistent with the evidence rules where some evidence was admissible on some counts only for limited purposes. 6 Krause also argues that the instructions were confusing because the court instructed the jury, “To convict the defendant on any count of Rape in the Third Degree, one particular act of Rape in the Third Degree must be proved,” and “you must unanimously agree as to which,” but “need not unanimously agree that the defendant committed all the acts of Rape in the Third Degree.” Krause argues this “allowed the jury to convict” on all three counts of rape in the third degree even if it did not unanimously agree he committed all three. “We consider challenges to jury instructions in the context of the jury instructions as a whole.” State v. Johnson, 180 Wn.2d 295, 306, 325 P.3d 135 (2014). We agree with the State that the “ ‘[t]o convict’ ” instructions required the jury to unanimously find each crime committed beyond a reasonable doubt.
19 No. 84599-3-I/20
In severance cases, the court requires review of the jury instructions for whether
the court properly instructed the jury to consider each count separately. Russell,
125 Wn.2d at 66. The question is, why?
The dissent seems to think the issue is a check-the-box inquiry in which, if
the trial court included an instruction that each count should be considered
separately, then we deem prejudice assuaged to that extent. But the jury
instructions cannot be a factor working against some prejudice irrespective of what
the prejudice is and what the instructions say. Nothing the Supreme Court has
said casts any doubt on the continued validity of its reasoning in Smith that, in that
case, what mattered was the instructions properly cabining the ER 404(b) evidence
so that it would not be misused. As noted, the Supreme Court rephrased the
factors to their present language in Russell, where the Supreme Court refused to
analyze for the first time on review an instruction the defendant had not proposed
at trial where the instructions otherwise properly stated the law. 125 Wn.2d at 66.
If anything, this suggests the very case-by-case inquiry that we have applied. In
some situations, an instruction that the jury decide the counts separately would
mitigate some of the kinds of prejudice that could arise from a joint trial, but that
instruction did not logically address the kind of prejudice that existed here.
The fourth consideration under Russell is the “admissibility of evidence of
the other charges even if not joined for trial.” 125 Wn.2d at 63.
20 No. 84599-3-I/21
The first question is whether evidence of any of the counts was admissible
as to any of the others. Urging a harmless error analysis, the State argues that
evidence of Krause’s acts towards each complaining witness all were admissible
to prove each count, observing, “Where the crimes are cross-admissible that is
one consideration that reduces the prejudice to the defendant.” (Emphasis added.)
If all the same evidence would have been admitted in severed trials, Krause could
claim little prejudice if any from the joint trial. Implicitly acknowledging it never
asked the trial court to admit any evidence on this basis and the trial court never
did, the State asks us to decide for the first time that “the trial court would have
admitted the evidence had it considered the matter more fully on the record.”
(Emphasis added.) Pointing to an allowable purpose for other-act evidence, the
State argues we should decide that Krause “had a common scheme or plan
rendering the other counts cross-admissible under ER 404(b).”
Relevant here, proof of common scheme or plan is admissible “when an
individual devises a plan and uses it repeatedly to perpetrate separate but very
similar crimes.”7 State v. Lough, 125 Wn.2d 847, 855, 889 P.2d 487 (1995). This
7 To admit other-act evidence under ER 404(b), “ ‘the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.’ ” State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). “Where evidence is admissible for a proper purpose, the party against whom the evidence is admitted is entitled, upon request, to a limiting instruction informing the jury that the evidence is to be used only for the proper purpose and not for the purpose of proving the character of a person in order to show that the person acted in conformity with that character.” Id. at 420.
21 No. 84599-3-I/22
requires the proponent of the evidence to show “not merely similarity in results, but
such occurrence of common features that the various acts are naturally to be
explained as caused by a general plan of which the charged crime and the prior
misconduct are the individual manifestations.” Id. at 860. The acts indicating a
plan need not be “atypical or unique,” but need only exhibit “substantial similarities”
that are “naturally explained by a common scheme or plan.” State v. DeVincentis,
150 Wn.2d 11, 13, 74 P.3d 119 (2003).
In Lough, the defendant had “rendered four other women, whom he had
relationships with, unconscious with drugs and then raped them.” 125 Wn.2d at
861. This showed “a larger design to use his special expertise with drugs to render
them unable to refuse consent to sexual intercourse.” Id. In DeVincentis, a past
sexual crime and the charged one shared that the defendant had gotten to know
young people through a safe channel, brought prepubescent girls into an isolated
environment, normalized nudity to overcome their discomfort, invited massage,
directed that they remove their clothes, and had them perform similar sex acts.
150 Wn.2d at 22. It was not an abuse of discretion for the trial court to find a
common scheme or plan. Id. at 23-24. And in State v. York, 50 Wn. App. 446,
456-57, 749 P.2d 683 (1987), we upheld evidence of common scheme or plan
where the defendant was the instructor of three teenage beauty college students,
all of whom attended the college for financial reasons, and he accosted them when
they attended to laundering the college towels by forcing them into a restroom near
Because we reject the only ER 404(b) purpose the State urges, we need not consider the balance of the test.
22 No. 84599-3-I/23
the laundry, forcibly silencing them, and forcing sexual acts on them, all between
June 1984 and February 1985. We rejected as outside this common scheme or
plan a further count of indecent liberties involving neither the laundry nor the
restroom nor similar acts. Id. at 458.
The record here does not support admitting evidence of the charged
criminal acts to prove a common scheme or plan. The State argues there was a
common scheme or plan because Krause “used his position as an upperclassman
to get younger girls into situations where he could engage in sexual intercourse
without their consent, then covered his actions by pretending they consented.” But
the charged crimes do not have substantial similarities that are “naturally
explained” by their being the execution of a common plan. DeVincentis, 150
Wn.2d at 13. While A.C.S. testified to surprise that an older student would be
interested in befriending her, there was no evidence that Krause “used his position
as an upperclassman” to “get” A.C.S., A.L., or A.C. “into situations.” Rather,
Krause learned A.C.S.’s schedule, and A.L. and A.C. testified to meeting Krause
socially. The four situations charged all differed: Krause met A.C.S. at the school,
picked up A.L. as she walked home from work and took her to his house, allowed
A.C. into his house after she became intoxicated at a party, and had an otherwise
consensual sexual encounter with A.C. in the back of a vehicle. The State’s last
element of the “plan” that Krause “pretend[ed] they consented” restates Krause’s
denial of the State’s charges and is a commonality at least among the three counts
of rape in the third degree, but is not a fact naturally explained by the existence of
23 No. 84599-3-I/24
a plan. The facts here do not establish a common scheme or plan, and evidence
of any one of the counts was not admissible to prove any of the other counts.
We must next determine whether Krause was prejudiced because the
State’s case was unfairly aided by “propensity evidence” that is “explicitly
prohibited under ER 404(b),” Slater, 197 Wn.2d at 679, or by an inference of “a
criminal disposition,” Russell, 125 Wn.2d at 62-63. In Bluford, in several original
charging documents, the State charged Bluford with seven counts of robbery in
the first degree upon seven different victims, and the State charged two sexual
offenses based on Bluford’s alleged sexual acts against two of the robbery victims.
188 Wn.2d at 303. In pretrial motions, the State sought joinder of all nine counts,
while Bluford sought severance of all nine counts. Id. at 303 & n.1. A jury
convicted Bluford on eight counts, acquitting on one count of robbery. Id. at 303.
To define the prejudice to the defendant’s rights, the court accepted
Bluford’s focus on “the cross admissibility of the evidence pursuant to ER 404(b).”8
8 Because Bluford waived his motion for severance, the court considered only the issue of joinder. 188 Wn.2d at at 306. Its discussion remains informative of Krause’s motion for severance. As the court explained, both joinder and severance require consideration of “the likelihood of undue prejudice to the defendant.” Id. at 307-08. “ ‘[T]he trial court should not join offenses if prosecution of all charges in a single trial would prejudice the defendant.’ ” Id. at 308-09 (emphasis added) (quoting State v. Bryant, 89 Wn. App. 857, 865, 950 P.2d 1004 (1998)). The dissent disregards Bluford, saying it is “not pertinent” because it concerned joinder, rather than severance. Dissent at 10. We disagree. Slater, a severance case, relied on Bluford, a joinder case, which in turn relied on Russell and Bythrow, severance cases. See Slater, 197 Wn.2d at 679-80; Bluford, 188 Wn.2d at 311-12, 315; Russell, 125 Wn.2d at 62-63; Bythrow, 118 Wn.2d at 720- 21. All of these decisions sought to evaluate prejudice from the joint trial of multiple counts by looking in various degrees of specificity to the factors derived from
24 No. 84599-3-I/25
Id. at 312. Evidence of other acts is not admissible “to prove the character of a
person in order to show action in conformity therewith.” ER 404(b). But such
evidence may be admissible for other purposes. Id. ER 404(b) “reflects the long-
standing policy of Anglo-American law to exclude most character evidence
because ‘it is said to weigh too much with the jury and to so overpersuade them.’ ”
State v. Slocum, 183 Wn. App. 438, 456, 333 P.3d 541 (2014) (quoting Michelson
v. United States, 335 U.S. 469, 476, 69 S. Ct. 213, 93 L. Ed. 168 (1948)). In
Bluford, the State argued, and the trial court had ruled, that evidence of all the
robberies would be admissible in the trial of any one of them to show the assailant’s
modus operandi, and thus the assailant’s identity. 188 Wn.2d at 312. The
Supreme Court concluded the modus operandi standard was not met. Id. at 315.
So, “the State would not have been required (or allowed) to call all of its witnesses
in each separate trial.” Id. at 315-16. The court explained that because of this,
“the interest in judicial economy loses much of its force.” Id.
The conclusion that the State would not have been able to put on evidence
of the other robberies in the trial of any one of them did not “automatically preclude
joinder.” Id. at 315. It remained the defendant’s burden to show that “the
prejudicial effect of trying all the counts together outweighed the benefits of
joinder.” Id. at 315. But the scale tipped in Bluford’s favor, both because of the
lessened weight of judicial economy where the evidence was not “cross
admissible” between the different counts, and because—referring to the two
Smith. There is no justification for ignoring Bluford’s analysis of those factors because of its procedural setting.
25 No. 84599-3-I/26
alleged robberies accompanied by sexual offense charges—Washington has
acknowledged “ ‘the inherently prejudicial effect of prior sexual offenses.’ ” Id.
(quoting State v. Bythrow, 114 Wash.2d 713, 718-19, 790 P.2d 154 (1990)). The
court reversed Bluford’s eight convictions. Id. at 316.
In Slater, the court returned to the issue, this time in the posture of the
defendant’s motion for severance. 197 Wn.2d at 664. The State charged Slater
with one count of felony violation of a domestic violence no-contact order based
on his attempt to contact a woman he had previously dated. Id. at 665. When the
case was called for trial, Slater failed to appear, and the State added a charge of
bail jumping. Id. at 666. Slater moved to sever, arguing that, in the trial of the
charge of violating the no-contact order, evidence of Slater’s failure to appear was
other-act evidence inadmissible under ER 404(b). Id. at 666. Two successive trial
court judges ruled that evidence of Slater’s failure to appear was admissible in the
trial of the charge of violating the no-contact order, and therefore the evidence
relevant to the two counts was “cross admissible.” Id. at 666. The State argued
the failure to appear was “evidence of flight and consciousness of guilt.” Id. at 671.
The Supreme Court disagreed, holding inferring consciousness of guilt from
Slater’s failure to appear was not “more than mere speculation.” Id. at 674.
With cross-admissibility eliminated, although acknowledging the conclusion
was not automatic, the Supreme Court nevertheless found the prejudice to the
defendant of trying the counts together outweighed concern for judicial economy.
Id. at 679. Again the Supreme Court’s explanation of the prejudice to the
defendant is informative. Both counts in Slater—violation of the no-contact order
26 No. 84599-3-I/27
and failure to appear—“involve[d] violations of court orders,” so there was “higher
than normal prejudice in trying these two charges together.” Id. The very similarity
of the acts made a joint trial more prejudicial than normal, given that the charges
were “not connected or related in any way.”9 Id. at 680. Where there was no
overlap among witnesses, the failure to appear was not admissible in the trial of
the charge of violation of the no-contact order, and there was a risk of improper
propensity inferences, the prejudice to the defendant outweighed any judicial
economy. Id. The Supreme Court reversed. Id. Compounding the error in Slater
was the State’s subsequent closing argument, which the Supreme Court ruled was
prosecutorial misconduct, because its focus on Slater’s “propensity to violate court
orders highlighted the exact prejudice that Slater argued in his motion to sever.”
Id. at 683. Bluford and Slater indicate that the risk of improper propensity
inferences weighs strongly in favor of severance when multiple counts joined at
trial pose that risk and evidence of them would not be admissible in severed trials.
9 In contrast, in McCabe, the defendant did not show prejudice where the State charged him with theft and trafficking of four buckets of paint, and joined an unrelated and dissimilar possession charge based on the defendant’s being found in possession of methamphetamine when he was arrested 10 days later for the theft and trafficking. 26 Wn. App. 2d at 90. McCabe shows when joinder of a further count is not prejudicial in spite of its different evidence being inadmissible on the other counts. Without more, a jury would not obviously conclude McCabe stole the buckets of paint because he had the character of one who possesses methamphetamine. As Slater explains, it is different when the State charges a person with a given kind of offense and uses joinder to add additional complaining witnesses giving evidence of unconnected crimes showing the defendant’s having a character of committing that very kind of offense. 197 Wn.2d at 680.
27 No. 84599-3-I/28
This is because the joint trial invites the jury to cumulate otherwise inadmissible
evidence to find guilt or infer a criminal disposition. This prejudice existed here.10
Consideration of the four factors thus indicates the presence, as the result
of the joint trial, of inadmissible other acts of rape, contrary to the “long-standing
policy of Anglo-American law.” Slocum, 183 Wn. App. at 456. Without disputing
this, the dissent offers a different approach to the four factors, and one it sees as
bypassing Bluford’s and Slater’s response to the same prejudice. In both cases,
the dissent emphasizes, the Supreme Court discussed only cross-admissibility,
without a factor-by-factor discussion of the other three factors. As to Bluford, the
dissent complains that once it became clear the different charged acts were not
admissible to prove one another, the Supreme Court neglected to offer “further
discussion of facts that may have contextualized or minimized the quantum of
10 The dissent admits that this case has the same propensity problem that existed in Slater. Dissent at 15-17. The dissent nevertheless attempts to distinguish Slater. The dissent perseverates about whether evidence of collateral sexual offenses would be particularly prejudicial when not admissible (a question whose answer seems obvious), but seems to recognize it is not a question that needs to be answered because the propensity problem is the same. The dissent explains the prosecution’s capitalization in closing was worse in Slater than it was in this case, a point on which we agree, though the dissent just ignores the transcript when it argues that capitalization was “not present” in this case. Dissent at 16. Finally, the dissent confuses the issue of whether the counts in this case were connected or related, which is the point discussed in Slater, with whether they were similar. Those are two different things. The charged acts of rape in this case were not connected or related to one another in any way, even though at least one complaining witness had some testimony relevant to a count involving another. All of this establishes that Slater is not identical. The situation, even by the dissent’s telling, remains that the significant prejudice is the same as in Slater, and secondary aggravators are present to a degree. That is hardly a foundation on which to call Slater “largely distinguishable.” Dissent at 17.
28 No. 84599-3-I/29
prejudice.” Dissent at 12. And the dissent says Slater made the same mistake by
not resorting to the other three factors to explain away the clear prejudice that
existed once cross-admissibility was eliminated. Dissent at 13-14. The dissent
argues that there was strength in the charges against Krause in an absolute sense
(as opposed to compared to one another, which is the proper focus in this setting),
and that an instruction to consider them separately was given thus satisfying the
“standard” (in a check-the-box sense). The dissent says that these factors, which
were not discussed in Bluford and Slater, add context that was lacking in those
cases allowing the clear prejudice from the inadmissible other acts to be viewed
as a lesser problem here than it was in those cases.
By this reasoning, Bluford and Slater would be controlling only on lower
court judges who do not apply all four factors, but in no way limit lower court judges
who like the dissent can see in the other factors a way to “contextualize[]” and
“minimize[]” prejudice disclosed in discussion of any one of them. The dissent thus
depends entirely on its theory that the four factors balance against one another,
dissent at 18, not just to downplay the prejudice to Krause, but also to distinguish
Bluford and Slater. If that is not how the factors work, then the dissent’s argument
and its effort to distinguish Bluford and Slater both collapse.
The dissent fails to cite a single case in which a court held that the four
factors balanced against one another to offset prejudice that one of them clearly
disclosed. Logic does not support that approach, either. The dissent emphasizes
its assessment of the strength of the State’s evidence as minimizing the prejudice
resulting from the inadmissible acts of rape. But if evidence is inadmissible within
29 No. 84599-3-I/30
the meaning of the evidence rules, it does not become less inadmissible because
of the existence of other, separate evidence. If unimpeachable DNA evidence
implicates a defendant in a murder, ER 404(b) still bars the State from proving the
defendant committed the murder through evidence that the defendant committed
other, unrelated murders. Indeed, the Supreme Court has suggested that such a
case would probably call for severance. Russell, 125 Wn.2d at 64. The existence
of overwhelming other evidence might make an ER 404(b) error a harmless one,
but it does not make ER 404(b) evidence less inadmissible. Here too, the
inadmissible character of the other acts of rape is not affected because other
evidence is strong, or even very strong.
The dissent seems to invoke two cases in support of its balancing theory.
The first is York, in which the dissent found a critical word that it offers up as proof
positive, for York “noted several factors which may offset the prejudice from the
joinder.” 50 Wn. App. at 451 (emphasis added). The dissent emphasizes the word
“offset.” But the line in York the dissent quotes has nothing to do with balancing
the factors against one another. In York, the court did what we did, Russell did,
and Slater did: it started by defining the different kinds of prejudice that may result
from combining multiple counts following Smith’s description of those dangers
adopted from Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964). York, 50
Wn. App. at 450-51. Then, the court did what we did, Russell did, and Slater did:
it explained that we look at several factors that would indicate the possible
prejudice did not come to pass. It was in that breath that York said the factors
“may offset the prejudice.” Id. at 451. This is nothing revolutionary. As originally
30 No. 84599-3-I/31
wrought, the factors simply restated the absence of the kinds of prejudice the court
has to be on the lookout for when deciding severance motions.
We agree, in other words, that the factors all work against the possible
prejudice resulting from a joint trial. But York said only, and correctly, that the
factors may offset the prejudice. It never said the thing the dissent claims, that
they may offset one another. And York did not hold that any did, either. It could
not have done, because in York, every factor indicated the absence of prejudice.
Id. at 451-52, 457-58. York was a case in which the multiple charged acts were
admissible as evidence of common scheme or plan. Id. at 457-58. The only extent
to which the trial court admitted evidence in violation of ER 404(b) was harmless
because the trial court eventually instructed the jury to disregard that evidence
entirely. Id. at 458. The critical point in York was that the defendant had used a
common plan to carry out the three charged rapes, so evidence of each act of rape
was admissible in the trial of any one of them to prove that plan. Id. at 453, 457-
58. If the counts had been severed, the evidence of the other acts of rape would
still have been presented for that limited purpose, and, by joining the counts, the
State had to prove the same plan only one time instead of in multiple identical
presentations. Thus, in York, the prejudice from a joint trial was minimal and the
judicial economy high. But York gives no support to the dissent’s theory, and never
even hinted, that if a joint trial resulted in significant, otherwise obviously
inadmissible ER 404(b) evidence, that kind of prejudice could be viewed as less
weighty as long as the court thought the evidence strong overall.
31 No. 84599-3-I/32
The only other decision the dissent seems to cite in support of its theory of
balancing the factors against one another is Russell. The dissent refers to its
evaluation of the “totality” of “the four Russell factors,” and then segues to the
comment in Watkins that the factors “together” aid in determining whether
prejudice requires severance. Dissent at 16. This time, the dissent emphasizes
the word “together.” But emphasizing the word does not mean it carries the
meaning the dissent attaches to it. Contrary to the implications we infer from
dissent’s use of emphasis, we agree the factors must be considered “together.”
We have already said that the possible prejudice resulting from a joint trial cannot
be assessed without going through all four factors, one after the other, and
therefore, all of them together. But when there is serious prejudice for one reason,
the court cannot treat it as having minimal importance simply because there isn’t
different prejudice for a different reason.
As with York, Russell could not have supported the dissent’s theory,
because it was another case in which all four factors showed there was not
prejudice from a joint trial. Russell, 125 Wn.2d at at 64-68. Yet again, the dissent
is relying on a case in which the separate charged acts were cross-admissible for
a proper purpose under ER 404(b), in Russell, to show identity because of the
unique circumstances common to each of the three murders. Id. at 68. In the
court’s discussion of each of the four factors, the court never even hinted that
prejudice found to exist could be treated as less significant for its possible effect
on the trial simply because there was not also some other prejudice.
32 No. 84599-3-I/33
Despite claiming to offer up the “traditional” analysis, dissent at 2, the
dissent does not offer a single case in which a court found prejudice from a joint
trial, but then held it was offset by the fact some different circumstance did not
create some different prejudice. The dissent offers a few lines quoted from case
law, with a seemingly helpful word here or there italicized. What the dissent does
not provide is either a reckoning with the different facts of the cases it cites or a
single case performing the analysis in the way it proposes. Where the dissent fails
to provide citation to support a legal argument, we assume the dissent has found
none. 21st Mortg. Corp. v. Nicholls, 25 Wn. App. 2d 795, 806, 525 P.3d 962,
review denied sub nom. Robertson v. Residential Funding Co., LLC, 1 Wn.3d
1023, 532 P.3d 162 (2023).
Once the court has determined the nature and the extent of any prejudice
resulting from joinder, the court turns to the question whether any prejudice
outweighs the judicial economy of joining the counts in one trial. Slater, 197 Wn.2d
at 677 (“Prejudice must also be weighed against the need for judicial economy.”);
Russell, 125 Wn.2d at 63 (“In addition, any residual prejudice must be weighed
against the need for judicial economy.”). The “fundamental principle” is that “ ‘the
joinder of counts should never be utilized in such a way as to unduly embarrass or
prejudice one charged with a crime, or deny him a substantial right.’ ” Bluford, 188
Wn.2d at 309 (quoting Smith, 74 Wn.2d 774, 754-55, 446 P.2d 571 (1968), vacated
in part, 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747 (1972), overruled by State
33 No. 84599-3-I/34
v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)). Judicial economy cannot override
“clear, undue prejudice to the defendant’s substantial rights.” Id. at 311.
The State did not argue in the trial court, and we reject its argument here,
that the alleged acts of rape were admissible to prove other counts. But the State
points to five instances of evidence that it says would be “cross admissible” in that,
according to the State, the complaining witnesses each had some evidence to give
that was admissible on counts relating to the others. The State correctly
recognizes that this concern properly enters the analysis by adding to the weight
of judicial economy in holding one trial.
The State first argues, for the first time in this court, that Detective Heidi
Froisland “investigated each case” and “would have been called by the State in
each of two or three trials.” The State called Detective Froisland on the fourth day
of testimony to testify about her investigation of the charge concerning A.C.S.
Then the State recalled Detective Froisland two days later on the sixth day of
testimony, to testify about her investigation of the charge concerning A.L. After
just nine pages of testimony about that count, the prosecutor ended his questioning
of Detective Froisland, reserving the right to recall her a third time about her
investigation of the charges concerning A.C. The State elected not to bring
Detective Froisland to court a third time, but plainly the State was unconcerned
with requiring Detective Froisland’s appearance in court as many times as it
wished to accommodate its trial strategy. We reject the State’s argument that it
34 No. 84599-3-I/35
needed to join the counts so that it could realize judicial economy by calling
Detective Froisland only once.
The State argues, second, that A.C. was a witness on the count concerning
A.C.S. It is clear that she was. According to A.C., Krause told her that what
happened with A.C.S. was “not true.” He told A.C. that he and A.C.S. had sex in
a nearby park. Both Krause’s admission that he had sex with A.C.S. and his false
statement about its location were probative of the State’s case against Krause for
the count concerning A.C.S.
The State argues, third, that A.L. was a witness on the count concerning
A.C.S. But the State never established this. Relying on its April 17, 2017 affidavit
of probable cause signed by the prosecutor, the State argues that after A.C.S.
decided not to participate in the juvenile court proceedings against Krause, she
decided to come forward again after Krause was arrested based on A.L.’s report.
To the extent of our record, the State points to no admissible evidence that this is
true. Nor did the testimony at trial support the State’s theory. No evidence
suggested that A.C.S. delayed reporting and A.C.S. did not testify that she decided
to move forward based on A.L.’s report. The State’s argument that hypothetically
Krause could “impeach [A.C.S.] with changing her mind about prosecuting” is
unconvincing. The State provides at most tenuous grounds to try to make A.L. a
witness on the count concerning A.C.S., and in turn only weakly supports a need
to join the counts for the sake of judicial economy.
35 No. 84599-3-I/36
The State argues, fourth, that A.C.S. was a witness on the count concerning
A.L. The State gives two reasons for this. First, it points to A.L.’s testimony that
she was “generally aware” of the allegations involving A.C.S., and this played in
her mind when she was in the car with Krause. Second, the State points to A.L.’s
testimony that she did not believe something like the rape would happen to her
knowing what had happened to A.C.S. and having supported Krause. This
influenced A.L.’s willingness to come forward, and the State says it is relevant to
explain her delay in reporting. The argument that A.C.S. was a witness on the
count concerning A.L. turns on A.L.’s testimony about A.L.’s knowledge of A.C.S.’s
report and its effect on A.L.’s state of mind. At trial, the State never asked A.C.S.
about A.L.’s knowledge or A.L.’s state of mind, so, leaving aside the question
whether A.C.S. could be a proper witness on this subject, the State only proved it
could try all the counts without this evidence.
The State argues, fifth, that A.L. was a witness on the counts concerning
A.C. Again, however, the State tries to prove this by pointing to A.C.’s testimony,
not A.L.’s. At trial, the State elicited A.C.’s testimony that she had not wanted to
become involved in court, but eventually reported Krause to the police after she
and A.L. met again while working for the same employer, they had a conversation
about Krause, A.C. wanted to help A.L., and A.C. went to the police to give her
statement for that reason.
The State’s third, fourth, and fifth theories of cross-admissibility suffer from
two defects. The first is that the State did not ask the complaining witnesses about
all these points to prove other counts. This shows the State could effectively
36 No. 84599-3-I/37
present the case without much of this evidence. The second is that each involves
the state of mind of the complaining witness relevant to the count concerning that
witness, based on that witness’s understanding of the acts or statements of
another. When that is the issue, what matters is the witness’s own understanding
of the other’s acts or statements, and often the witness may relay their
understanding for that limited purpose, to a limited extent, and not for the truth of
the matter asserted. Cf. State v. Chenoweth, 188 Wn. App. 521, 534, 354 P.3d 13
(2015) (allowing police officer to generically describe accusations of sexual abuse
to explain the officer’s investigation). To take one example, if the State needed to
prove A.L.’s state of mind based on A.L.’s beliefs about facts in which A.C.S. was
involved, it does not follow without more that A.C.S. is a necessary witness.
As the State presented the evidence, other than Detective Froisland whom
the State voluntarily chose to call serially without inconvenience, the only cross-
admissibility in the testimony was A.C.’s testimony about Krause’s admissions
relevant to the count concerning A.C.S. By the time of trial in 2022, A.C. needed
to travel from Georgia to be a witness. The State is correct, therefore, that a unitary
trial limited potential inconvenience to A.C. that severed trials would have
implicated.
The dissent claims we use an improper “standard” in analyzing the
importance of the State’s proffered cross-admissible evidence. Dissent at 20. The
dissent again misrepresents our analysis. The dissent complains that we use a
“necessity” standard, when it asserts the State was not required to show “need” or
37 No. 84599-3-I/38
“necessity” of the testimony. Dissent at 20. Instead, the dissent says the State
had only to point to some “overlap” or “interrelation” in the evidence, to the extent
the State would “reasonably” call any one witness in at least one other case.
Dissent at 20. We have said nothing to the contrary. We agree there is judicial
economy to be gained where the State would “reasonably” call a witness on two
different counts. But that wasn’t the State’s argument at trial, and the test doesn’t
look merely at whether judicial economy exists, it looks at the weight of the judicial
economy to be gained in comparison to the weight of the prejudice. Whether a
witness is a necessary one or one the State might wish to call in fulsomeness is
an appropriate consideration when weighing the judicial economy to be gained.
And in accusing us of applying the wrong standard, the dissent forgets that it was
the State’s argument that it was a necessity to call the different witnesses on all
the different counts. It was the State that argued to the trial court, in attempting to
put as much weight on the judicial economy side as it could, that there was “no
way” to “coherently” tell the story of each count without calling all three complaining
witnesses. That was never true.
In this case the State has identified what it thinks the cross-admissible
evidence was to be (much of which it never offered). In evaluating the weight of
the judicial economy to be had from joint trial here, we have a few points of
evidence, much of which the State never offered, and none of which had the
importance the State represented before trial. We agree the evidence did not need
to be “necessary” to the State’s case in order to support some level of judicial
38 No. 84599-3-I/39
economy in a unified trial, but it cannot support the weight of judicial economy the
State portrayed when it was not in fact necessary to the State’s case.
The State on appeal and the dissent resurrect an argument the State made
at trial and on which the trial judge ultimately did not rely, the fact this trial occurred
two years into the COVID-19 pandemic and courts faced backlogs and still
reluctant jurors. Dissent at 23-24. The dissent does not examine the case law we
have developed on the intersection of COVID-19 responses and the right of a
criminal defendant to a fair trial. We have said in relation to COVID-19 protocols
that trial courts “within the confines of reasonable discretion,” may “balance the
need for public health and safety with the defendant’s trial rights.” State v.
Ferguson, 25 Wn. App. 2d 727, 738, 524 P.3d 1080, review denied, 1 Wn.3d 1022,
532 P.3d 150 (2023). But we have upheld alterations to criminal trials because of
COVID-19 only where the impact on the defendant’s rights was “not onerous,” and
where “[n]o reasonable juror would draw any inference personally against” the
defendant because of them. Id. at 738-39. That is because COVID-19 protocols
“are simply not comparable to other inherently prejudicial decisions, like requiring
the defendant to wear prison clothes or restraints that could signal
dangerousness,” and, where we have approved alterations, “impermissible factors
were not brought into play.” Id. at 739-40.
But this case has all of the features we have warned would not justify an
alternate procedure because of COVID-19. The very problem with denial of
severance in this case was the likelihood that the jury would draw an improper
39 No. 84599-3-I/40
propensity inference personally against the defendant, where collateral other-act
evidence is improper because it signals dangerousness, and is an impermissible
factor under the evidence rules. Nor does the State or the dissent explain how
denial of severance followed from proceeding “in accordance with the Supreme
Court’s emergency orders.” State v. Griffin, 30 Wn. App. 2d 164, 171, 544 P.3d
524, review denied, 3 Wn.3d 1015, 554 P.3d 1227 (2024). To the extent of the
cited authority, the pandemic provided no justification to tolerate unfair prejudice
in the defendant’s criminal trial. We are not persuaded either that the marginal
additional delay of severed trials or the fact of trial under COVID-19 protocols adds
significantly to the weight of judicial economy. Each was a reason trying the four
counts might take several weeks or months, but neither would have marginally
added significant additional delay where it had already taken from 2017 until 2022
to bring the case to trial.
As matters stood at the close of the State’s evidence, Krause had
established “that prejudicial effects of joinder have been produced.” Bythrow, 114
Wn.2d at 722. By joining the counts, in the case of each count the State was
allowed to elicit evidence of at least two other inadmissible acts of rape, and at
least two other witnesses testifying that Krause violated their lack of consent to
sexual intercourse with him. It was allowed to do this without even a theory of
admissibility, and therefore without any limitation in the instructions guarding
against the use of this evidence in the manner ER 404(b) forbids. Just as Slater
observed that the similarity of another inadmissible act of violating a court order
40 No. 84599-3-I/41
exacerbated prejudice, the similarity of two other inadmissible acts of rape raised
the prejudice at least as much, and almost certainly more. 197 Wn.2d at 680.
Eliciting almost no facts from the complaining witnesses other than their own
narratives and states of mind, the State showed that it was not necessary, as it
had claimed before trial, to call all three of them to tell their individual stories
“coherently.” And as in Slater, the State then unfairly capitalized in closing when
it urged the jury to view them in common and give them “one verdict.”
Against this prejudice, the State has shown overlap of at least one witness,
A.C., who faced a difficult trip to court, across the country, for trial proceedings.
This distinguishes Slater somewhat, where there was no overlap of witnesses. 197
Wn.2d at 680. But the State’s argument overlooks the presence of other,
inadmissible acts of sexual violence while narrowly focusing on the presence of
one or perhaps two or three witnesses slightly overlapping on somewhat peripheral
points. Given that the prejudice is identical to that in Bluford and in Slater, and
likely much greater, the prejudice still outweighed concern for judicial economy.
While this result follows from Bluford and Slater, other decisions of the
Supreme Court point in a different direction. In State v. Kalakosky, 121 Wn.2d
525, 529, 536-37, 852 P.2d 1064 (1993), the court affirmed denial of severance of
four counts of rape and one count of attempted rape against five complaining
witnesses, each of whom “described quite a different episode even though there
was much in the rapist’s methods that was the same.” While seemingly
41 No. 84599-3-I/42
compelling, on close inspection Kalakosky is not helpful to the State.11 The issue
in that case was whether Kalakosky was the perpetrator. The individual features
of each rape tended to be the ones that independently pointed to Kalakosky as the
perpetrator (the torn western shirt, the metal piece in the back of the car, the DNA,
the white pickup, and Kalakosky’s being seen and having a bandana with hairs like
the victim’s). Id. at 538-39. This makes the case dissimilar to Krause’s. The torn
western shirt implicating Kalakosky on one count did not suggest the kind of
propensity inference discussed in Slater relevant to the other counts. In contrast
here, successive complaining witnesses attesting to Krause’s having sexual
intercourse with them without their consent clearly carries that risk. And although
it was not relied on by the Supreme Court, because in Kalakosky the trial court had
found a common scheme or plan, it had instructed the jury that they could consider
the evidence of the “other counts” only for that purpose. Id. at 539.
The State also relies on State v. Markle, 118 Wn.2d 424, 823 P.2d 1101,
1103 (1992). That case concerned two counts of statutory rape (improperly
amended at trial to indecent liberties) as to L., joined with one count of indecent
liberties as to S. Id. at 427, 437. The relevant issue was severance of the count
as to S. Id. at 426. She testified that while sleeping over at the defendant’s with
L. and others, she saw the defendant with his hand down L.’s sleeping bag, then
11 The State cites Kalakosky, but only for the point that severance is not necessarily required when the jury can separate and compartmentalize the evidence on the different counts. But difficulty in separating the evidence on the four counts against Krause (there is none) is not the reason why their joinder in one trial was prejudicial. Rather, it was the risk of an impermissible propensity inference that created the prejudice here.
42 No. 84599-3-I/43
the defendant later took the two of them driving and rubbed S.’s buttocks, and then
he placed his hand on her while in her sleeping bag. Id. at 429. S. was witness to
certain acts towards L., and towards herself in a setting during which L. was
present. Id. at 439. L. went on to testify to much additional conduct at other times
and outside S.’s presence. Id. at 429. Without engaging in a cross-admissibility
analysis, the Supreme Court relied on the similar acts, similar method, and
commonality of time and place to justify joinder, and said of denial of severance
only, “[s]ome of the alleged incidents involving the two separate victims were
contemporaneous, and joint trial was not prejudicial so as to outweigh the concern
for judicial economy in this case.” 118 Wn.2d at 439. This again speaks to the
jury’s ability to separate evidence concerning different acts. But the prejudice in
this case was the risk of a propensity inference from one unrelated act to another.
The prejudice from trying the counts together where the evidence of each
was not cross-admissible outweighed concerns for judicial economy. The court
erred by denying Krause’s motion to sever after the State rested.12
“[M]isapplication of ER 404(b) in severance cases does not compel a new
trial where, within reasonable probabilities, the error is harmless.” Watkins, 53 Wn.
App. at 273. The State argues that harmless error can apply in “at least two
different ways.” We have rejected its theory that the evidence would have been
cross-admissible under ER 404(b). Otherwise, for nonconstitutional error, we ask
12 We hold only that it was error to try the four counts together. We express no opinion on whether joinder of fewer than the four counts together would be allowable. See Bluford, 188 Wn.2d at 312 n.5.
43 No. 84599-3-I/44
whether within reasonable probabilities, had the error not occurred, the outcome
of the trial would have been materially affected. State v. Barry, 183 Wn.2d 297,
303, 352 P.3d 161 (2015). Other than its effort to show admissibility under ER
404(b) for the first time on review, the State does not argue that this standard is
met. The case is analogous to Bluford and Slater, and must be reversed for the
same reasons. We address remaining issues that are likely to arise in the event
of retrial.
III
After the State filed the adult criminal proceeding, Krause moved to dismiss
the count concerning A.C.S., which the State had filed and dismissed in an earlier
juvenile proceeding. Krause argued, “[W]hile there was no delay in filing the
information, a delay in the prosecution of this case did occur that resulted in loss
of juvenile court jurisdiction.” Krause argued that the State had engaged in a form
of prejudicial preaccusatorial delay, and that the State had engaged in
mismanagement justifying dismissal under CrR 8.3(b). On appeal, Krause argues
that while he “could not demonstrate the State intentionally dismissed the case so
it could later be filed in adult court, the fact remains that it was the prosecutor’s
decision to dismiss the charge in the first instance,” as a result of which Krause
“lost juvenile jurisdiction and the collateral benefits” thereto.
The United States Supreme Court has “held that a preaccusatorial delay
can result in a due process violation even where the statute of limitations has not
expired.” State v. Oppelt, 172 Wn.2d 285, 288-89, 257 P.3d 653 (2011). Courts
use a three-part test to evaluate claims of preaccusatorial delay, under which (1)
44 No. 84599-3-I/45
the defendant must show he was prejudiced by the delay, (2) the court must
consider the reasons for the delay, and (3) if the State is able to justify the delay,
the court must undertake a further balancing of the State’s interest and the
prejudice to the accused. Id. at 290. The “ultimate test is ‘whether the action
complained of . . . violates those fundamental conceptions of justice which lie at
the base of our civil and political institutions.’ ” Id. (alteration in original) (internal
quotation marks omitted) (quoting Alvin, 109 Wn.2d 602, 604-05, 746 P.2d 807
(1987)). “Whether due process rights are violated by a preaccusatorial delay is a
question we review de novo.” Id. “Because our review is de novo, we examine
the entire record to determine prejudice and to balance the delay against the
prejudice.” Id.
We decline to analyze Krause’s case as one of preaccusatorial delay. In
Oppelt, law enforcement timely referred potential charges against Oppelt to the
prosecuting attorney’s office. 172 Wn.2d at 288. However, the investigative report
and referral “never made it” to the prosecutor until shortly before the State filed
charges nearly six years later, though within the statute of limitations. Id. The
question was whether the government’s delay was “severe enough to warrant
dismissal.” Id. at 287-88. It was not. Id. at 296. But there was not a similar delay
in this case. The State originally filed the juvenile proceeding in April 2016, within
four months of A.C.S.’s January 2016 report to police. Krause does not rely on
this as a delay, but rather points to the State’s later decision to re-file the charge
in this adult proceeding. This kind of delay does not fit into the framework of Oppelt
45 No. 84599-3-I/46
or any other case Krause has cited, because Krause was given timely notice of the
charges against him.
If the preaccusatory delay framework applied, there would also be
justification for the State’s timing. The State’s timing was driven by A.C.S. and her
family’s decision not to participate, followed later by A.C.S. changing her mind after
A.L.’s allegations came to light. The adult proceeding was filed in April 2017.
Some authority has been said to support that a “deliberate delay to circumvent the
juvenile justice system violates due process.” State v. Calderon, 102 Wn.2d 348,
353, 684 P.2d 1293 (1984), modified by Oppelt. But there is no evidence of a
deliberate delay here. In Calderon, the court assumed that the loss of juvenile
jurisdiction could be prejudice under the preaccusatorial delay framework, but
denied relief because the State had valid reasons for its charging delay. 102
Wn.2d at 353-54. Because here there was no charging delay, Krause’s claim of
violation is all the less compelling than the defendant’s in Calderon, given the
State’s similarly having justification for its timing. These circumstances do not
offend our “ ‘fundamental conceptions of justice which lie at the base of our civil
and political institutions.’ ”13 Oppelt, 172 Wn.2d at 290 (internal quotation marks
omitted) (quoting U.S. v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 520 L. Ed.
2d 752 (1977)).
13 For the same reason, Krause’s claim that the trial court erred in denying Krause’s CR 8.3(b) motion fails because he has not shown governmental “mismanagement,” or “arbitrary action or governmental misconduct.” State v. Michielli, 132 Wn.2d 229, 239-43, 937 P.2d 587 (1997) (citing CrR 8.3(b)).
46 No. 84599-3-I/47
IV
Krause argues the trial judge should have recused because the judge was
“burdened by a conflict of interest” because when the judge was still practicing as
an attorney, his signature on a pleading in the case. The document at issue is
Krause’s January 5, 2018 written motion to sever the then-pending counts relating
to A.C.S. and A.L. The motion bears the typed name and bar number of Krause’s
then attorney, but the handwritten signature and bar number of the judge, who was
an attorney in the same office at the time. At a hearing in court that day, two other
attorneys not named on the motion appeared for Krause and asked that motion be
heard later.
The judge raised the issue at a hearing more than three years later, on
January 26, 2021, at a hearing on defense motions to sever and for new defense
counsel to interview witnesses. The judge advised the parties that he had seen
the filing and had no explanation for it. The judge had “looked through [his]
records[,] . . . never represented Mr. Krause[,] . . . [and had] no knowledge of this
case other than what’s contained in the pleadings” and had “absolutely no
explanation for why that would be there.” The court invited comment from counsel.
The State offered no objection, and defense counsel stated,
I accept what the court is saying at face value; however, I think it is appropriate for me to have a conversation with my client. That being said, I think we can go forward with this hearing today, and I will discuss with my client if he sees any issue. . . .
. . . Basically, it’s going to be the State’s record, so if they are okay going forward, then we can go forward.
47 No. 84599-3-I/48
The court instructed Krause’s counsel that “if you have some issue after speaking
with your client further, please bring that to the Court’s attention.” Trial occurred
more than a year later before the same judge starting on February 28, 2022.
Krause did not re-raise the issue.
Krause asserts that “recusal is mandatory where the judge represented the
defendant in the very same matter,” citing principles of due process and In re
Disciplinary Proceeding Against Michels, 150 Wn.2d 159, 162, 75 P.3d 950 (2003)
(judge suspended for acting as a judge and lawyer in the same case). Rule 2.11
of the Washington State Code of Judicial Conduct states in relevant part, “A judge
shall self-disqualify” in proceedings in which the judge’s impartiality might
reasonably be questioned, “including . . . the following circumstances: . . . (6) The
judge: (a) served as a lawyer in the matter in controversy.” Krause argues that,
because the judge’s impartiality might reasonably be questioned, the court
“violate[d] the appearance of fairness doctrine” and erred by “refusing to recuse
himself.” However, Krause waived any error by failing to object to the judge’s
hearing the case in the trial court.
An appearance of fairness claim is not a constitutional error that a party may
raise for the first time on appeal under RAP 2.5(a)(3). State v. Morgensen, 148
Wn. App. 81, 90-91, 197 P.3d 715 (2008). As in Morgensen, Krause “was aware
of the potential for bias because”—to whatever extent the trial judge was Krause’s
attorney—Krause “knew that the trial judge had been his defense counsel in a
previous case.” Id. at 91. In such cases, “a litigant who proceeds to trial knowing
of potential bias by the trial court waives [their] objection and cannot challenge the
48 No. 84599-3-I/49
court’s qualifications on appeal.” In re Welfare of Carpenter, 21 Wn. App. 814,
819-20, 587 P.2d 588 (1978) (where petitioner asserted a violation of “her right to
a fair and impartial hearing”). A party may not speculate about a court’s rulings at
trial and then when the court does not rule in their favor, raise the issue of bias
later on appeal. Id. at 820. Krause waived any basis for recusal.
V
Krause argues the State presented insufficient evidence to support count 4.
We disagree.
“To determine whether sufficient evidence supports a conviction, we view
the evidence in the light most favorable to the prosecution and determine whether
any rational fact finder could have found the elements of the crime beyond a
reasonable doubt.” State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).
“In claiming insufficient evidence, the defendant necessarily admits the truth of the
State’s evidence and all reasonable inferences that can be drawn from it.” Id. at
106. We must draw these inferences “from the evidence in favor of the State and
interpret them most strongly against the defendant.” State v. Duarte-Mares, 190
Wn. App. 343, 356, 361 P.3d 158 (2015). “Dismissal with prejudice is required
when sufficient evidence did not support a conviction.” State v. Yusuf, 21 Wn. App.
2d 960, 966, 512 P.3d 915, review denied, 200 Wn.2d 1011, 518 P.3d 206 (2022).
A.C. described that Krause “wanted to try anal, and I told him, no.” Despite
this, as they continued to have sex, “at one point the next thing [A.C.] knew” Krause
was penetrating her anally. She explained, “I told him no multiple times and he
kept doing it. And then I finally told him to, like, no. Stop. Loud enough. And he
49 No. 84599-3-I/50
stopped.” This testimony describes a sequence of A.C. telling Krause she did not
want to have anal sex and his penetrating her despite her saying no. She added
that she thought “maybe it was like a slip up” and done “accidentally,” but then A.C.
“told him no and then it continued.” In context, A.C.’s speculation that Krause’s
conduct might have been a mistake was not suggesting the possibility that it was,
but explaining why it was not. A.C.’s testimony, viewed in the light most favorable
to the State, is constitutionally sufficient to support the charge of rape in the third
degree because a rational fact finder could conclude that Krause intentionally
penetrated her without her consent. Duarte-Mares, 190 Wn. App. at 356.
VI
Because we reverse Krause’s convictions, and the scope of the issues at
any retrial would be different, it is unnecessary to address his claims that the trial
court improperly admitted inflammatory evidence through A.L. and A.C.,
committed instructional error, and committed sentencing error.
Reversed and remanded.
WE CONCUR:
__________________________
50 No. 84599-3-I State of Washington v. Cole Edward Krause
DÍAZ, J. (dissenting) — I concur in part and respectfully dissent in part.
I agree with the majority that the trial court did not violate Krause’s
constitutional rights by declining to dismiss the count involving A.C.S. simply
because the State had charged and dismissed the same crime in juvenile court;
that Krause waived any argument that the trial judge improperly failed to recuse
himself from this matter; and that there was sufficient evidence supporting the
count of rape in the third degree of A.C. If I were in the majority, I, too, would not
reach Krause’s remaining assignments of error, given the basis on which they
reverse the conviction.
I write separately primarily because I respectfully disagree with how my
esteemed colleagues resolve the principal issue in this case: the trial court’s denial
of Krause’s final motion to sever. While they provide an accurate, rigorous, and
well-reasoned presentation of the tension in our caselaw, I understand and would
apply the two-step analytic framework differently than the majority for two reasons.
First, the majority acknowledges our Supreme Court may not have “spoken
with one voice” and—in their rightful desire to faithfully follow binding precedent—
they closely hew to the more recent cases, rather than, as I believe we should, the
full framework our Supreme Court announced decades ago to evaluate motions to
sever. Majority at 2. It may be true that there is some difference in how older
cases and recent cases conducted the analysis. Id. at 32. But I do not believe the
more recent precedent abrogated the older line of cases which established, as the
first step, four “factors” a trial court “must consider” in determining the quantum of No. 84599-3-I/2 (DÍAZ, J., dissenting)
potential prejudice, where each factor independently guides that decision, where
one factor may “offset” prejudice, and where no one factor “predominates.”
Ultimately, perhaps our Supreme Court should clarify whether the four-
factor analysis involves a “balancing” of the factors against each other to assess
the presence or absence of prejudice, or whether the factors are simply
“considerations,” markers, or “aid[s] in searching out different kinds of prejudice,”
which “do not balance against one another,” as the majority asserts, and each of
which could be effectively dispositive. Id. at 15, n.3.
Second, I do not believe the more recent cases created a new binary test
focused effectively only on cross-admissibility when a case involves allegations of
sexual violence. The more recent cases further did not minimize the final step of
the analysis, i.e., to weigh any “remaining prejudice” against legitimate interests in
judicial economy, particularly in the time of a pandemic. Finally, it remains a
defendant’s burden to show, through the two-step framework, a manifest abuse of
discretion.
The majority’s opinion does not hold to the contrary, but the result of this
case could suggest to trial courts that the test is more reductive than I believe it is.
Perhaps our Supreme Court should clarify whether a trial court must treat the two-
step framework or four-factor analysis differently in trials involving sexual violence.
But in this difficult case, on these facts, and following the traditional
framework and standard of review, I would conclude Krause did not carry his
burden to show the trial court manifestly abused its discretion and would affirm the
jury’s verdict.
2 No. 84599-3-I/3 (DÍAZ, J., dissenting)
I. ANALYSIS
There is substantial preliminary agreement between the majority and me. I
believe the majority
• provides the applicable standard of review, when it holds that the “‘failure of the trial court to sever counts is reversible only upon a showing that the court’s decision was a manifest abuse of discretion.’” Majority at 14 (quoting State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990));
• holds rightly that a “‘defendant seeking severance ha[s] the burden of demonstrating that a trial involving [all] counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.’” Id. at 14 (alterations in original) (quoting State v. Slater, 197 Wn.2d 660, 676, 486 P.3d 873 (2021));
• lays out accurately the first step of the analytic framework, when it holds that, “‘[i]n determining whether the potential for prejudice requires severance,” a trial court must consider:
(1) the strength of the State’s evidence on each count; (2) the clarity of defenses as to each count; (3) court instructions to the jury to consider each count separately; and (4) the admissibility of evidence of the other charges even if not joined for trial,’” Id. at 15 (quoting Slater, 197 Wn.2d at 677), where
“[n]o one factor is ‘necessarily preeminent.” Id. at 15-16 (quoting State v. Watkins, 53 Wn. App. 264, 273 n.3, 766 P.2d 484 (1989));
• properly recites the second step of the analytic framework, when it holds that, “[o]nce the court has determined the nature and the extent of any prejudice resulting from joinder, the court turns to the question whether any prejudice outweighs the judicial economy of joining the counts in one trial.” Id. at 32-33 (citing Slater, 197 Wn.2d at 677; State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994) (“In addition, any residual prejudice must be weighed against the need for judicial economy” as an “additional” step) (emphasis added)).
I further agree with the majority’s conclusion as to factors (1), (2), and (4).
I partially agree and partially disagree with the majority’s treatment of the third
3 No. 84599-3-I/4 (DÍAZ, J., dissenting)
factor. I address each in turn before turning to perhaps the crux of the
disagreement, i.e., how to use the factors, which is the first reason I write
separately. I then will consider how the majority weighed the residual prejudice
against, and how it characterized, the interests of judicial economy.
A. Step 1: Determining the Quantum of Prejudice via the Four-Factor Analysis
As to the first factor (the strength of the State’s evidence on each count), I
agree that “[t]his was not a case in which the State sought to shore up a weak
count by joining it with a stronger one.” Majority at 16. The majority accurately
and respectfully describes the sexual assault the victims each testified Krause
committed. I believe we unfortunately must discuss the details of the assaults
more fully, as those details permit us to assess, albeit on a cold record, the strength
of the State’s evidence.
The three victims each testified at length, logically, and in vivid detail about
the formation of their relationship with Krause and their own violent and painful
rapes, including the consequence it had on them psychologically, academically,
and/or physically. 7 Rep. of Proc. (RP) (Mar. 3, 2022) at 354-57 (relationship),
363-417 (rape), 424-25 (effect) (A.C.S.); 10 RP (Mar. 8, 2022) at 838-49
(relationship), 850-67 (rape) & 876 (effect) (A.L.); 11 RP (Mar. 9, 2022) at 1012-22
(relationship), 1023-36 (first rape), 1041-44 (second rape), & 1036-37 (effect)
(A.C.). It would not have been an abuse of discretion for the court to find that there
was no appreciable difference between the victims’ testimony in terms of the level
of specificity, clarity of statement, or coherence, each of which was quite
compelling and often poignant. See, e.g., 7 RP (Mar. 3, 2022) at 405 (A.C.: “I
4 No. 84599-3-I/5 (DÍAZ, J., dissenting)
didn’t want to be in that moment. All I wanted was to go home and do my chores
that I would have been happy to do”); 10 RP (Mar. 8, 20222) at 865 (A.L.: “I
remember him covering my mouth. I remember crying like a lot. I remember just
being in pain”); 11 RP (Mar. 9, 2022) at 1043 (A.C.: “I cried. And I told him that I
wanted him to go home, and I wanted to go home.”).
Each victim also disclosed the fact of the rapes to their friends or family,
and described similar difficulties prior to and at the time of disclosure. A.C.S.
testified she told multiple friends as she walked home alone after the rape, and
told her parents nearly immediately after Krause raped her, stating she was
“scared” and started crying when she told her mom. A.L. initially delayed telling
the police immediately because she too was “scared” as she “had seen how
everyone had treated [A.C.S.],” but, when her father found text messages about
the rape, she “broke down” and told him “everything that happened.” A.C. testified
that she wanted to go to the police, but “didn’t want to deal with” it all or “have
years of my life with court.” But she relented only to “help” A.L. While there were
minor differences in the timing or manner of disclosure, it would not have been an
abuse of discretion for the court to find that the strength of these disclosures
corroborating the victims’ testimony was sufficiently similar in each case.
I emphasize these difficult facts, not to generate sympathy, but to stress
how powerful the evidence in each case was. There was no semblance of
bootstrapping one weaker case to a stronger case. Thus, I would conclude it was
not an abuse of discretion to find, as the court did, that “[t]he strength of the State’s
case on each count is very similar.” And, thus, this factor did not weigh in favor of
5 No. 84599-3-I/6 (DÍAZ, J., dissenting)
a finding of potential prejudice. Cf. State v. MacDonald, 122 Wn. App. 804, 815,
95 P.3d 1248 (2004) (reversing where “remarkably stronger” evidence in one case
was tried together with an unrelated “weak” evidence in another case favored
severance).
As to the second factor (the clarity of defenses as to each count), I agree
with the majority that Krause’s defenses were identical for all counts with the
exception of one of his rapes of A.C., which generated “no prejudice.” Majority at
17. I would add that each of his defenses was quite straightforward, in that he
claims each encounter was consensual and the only difference was that, in one of
his rapes of A.C. (count 3), he claims she was also capable of consenting. I would
hold that this slight addendum to his defense was not materially complicating. In
other words, Krause’s trial strategy was clear and joinder did not “confound” or
confuse his defenses. Cf. Bythrow, 114 Wn.2d at 718 (quoting State v. Smith, 74
Wn.2d 744, 755, 466 P.2d 571 (1968), judgment vacated in part on other grounds
by Smith et al. v. Washington, 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747
(1972)).1
Thus, I agree with the majority’s holding that the “State did not impair
Krause’s ability to maintain adequately consistent defenses to the charges by
1 As to Krause’s argument that the nature of the defense for count 3 required him to testify as to A.C.’s ability to consent, I would add that our Supreme Court has held that defendants are not required to testify in order to be entitled to an affirmative defense instruction. State v. Fisher, 185 Wn.2d 836, 850, 374 P.3d 1185 (2016). Moreover, both A.C. and Krause’s own attorney elicited the names of at least four other witnesses who could have testified as to her level of intoxication that evening. He offers no explanation why he did not solicit, offer and rely on such testimony in lieu of waiving his Fifth Amendment right to remain silent. U.S. CONST. amend V. 6 No. 84599-3-I/7 (DÍAZ, J., dissenting)
presenting them at the same trial.” Majority at 18. In turn, I would conclude it was
not an abuse of discretion to find, as the court did in summary fashion, that as to
the “[c]larity of the defenses, it appears to be the same defense as to all.” And,
thus, this factor did not weigh in favor of a finding of potential prejudice.
As to the third factor (court instructions to the jury to consider each count
separately), Krause argues that some of the court’s instructions were confusing
and the State “overbor[e]” the instruction when repeatedly urging the jury to
consider the victims as a “unified whole.” In fact, as the majority accurately
recounts, the court’s most relevant instruction informed the jury that a “separate
crime is charged in each count” and required them to “decide each count
separately” as their “verdict on one count should not control [their] verdict on any
other count.” Majority at 18. There is no reason to believe the State “overbore”
the court’s instruction, when we presume jurors follow the court’s instructions and
when the State presented each case separately during trial and largely discussed
the cases distinctly in closing argument. State v. Warren, 165 Wn.2d 17, 28, 195
P.3d 940 (2008); cf. MacDonald, 122 Wn. App. at 815 (reversing where the State
blended the cases). Thus, on this basis alone, I would conclude it was not an
abuse of discretion to find, as the court did multiple times on the record, that the
jury could “compartmentalize the allegations,” i.e., keep each count separate,
which is precisely what this factor requires a court to consider.
The majority, however, concludes that the “jury instructions did not mitigate
the potential prejudice resulting from joining the counts in one trial” because “the
instructions did not place any restrictions on the evidence the jury could use to
7 No. 84599-3-I/8 (DÍAZ, J., dissenting)
determine guilt.” Majority at 19. This argument relies on the particular facts in
Smith and on the majority’s understanding of that case’s original focus. Id. at 18,
n.4 (citing Smith, 74 Wn.2d at 755).
But that is simply not how our Supreme Court articulated the factor in, I
believe, every case since Smith, including Russell, 125 Wn.2d at 63, and as
recently as Slater, 197 Wn.2d at 677. The Court could have gone back to Smith,
and required courts to issue such limiting instructions, but it chose not to. Further,
there is no other authority I am aware of that similarly weighs the absence of such
a limiting instruction in favor of a finding of prejudice in this factor. And, clearly,
the instructions the trial court did provide in this case meet the Russell/Slater
standard, namely, that the jury to consider each count separately.
Even if we were to adopt the Smith test as factor three, the question still is
whether Krause carried his burden to show that it was an abuse of discretion for
the court to hold that the jury could “compartmentalize” the evidence with the
instructions that were given. The majority’s argument for this point relies on its
conclusion for factor four (that “the evidence at issue was not admissible for any
purpose on the joined counts”). Majority at 18-19. This point effectively “double
dips” one fact (lack of cross-admissibility) into two factors. Without cross-
admissibility, I otherwise do not understand how the instructions given or not
increases, or at least does “not mitigate the potential for prejudice.” Id. at 19.
Perhaps the thought is, as Krause argues, that the jury “was inclined to
convict Krause of all charges based on the accumulation of claims” against him
“regardless of the relative strength of the evidence,” and that jury instructions could
8 No. 84599-3-I/9 (DÍAZ, J., dissenting)
not “ensure the jurors’ passions would not be incensed.” This point is also
unavailing. The instructions included an admonition to the jury to “not let your
emotions overcome your rational thought process. You must reach your decision
based on the facts proved to you and on the law given to you, not on sympathy,
prejudice, or personal preference.” And, I agree with the majority that the “‘[t]o
convict’ instructions required the jury to unanimously find each crime committed
beyond a reasonable doubt.” Majority at 19, n.5. There was no lessening of the
burden of proof for any one charge, making any absence of an instruction likely to
increase the potential for prejudice.
At most, I would say that a limiting instruction would have been preferable,
and perhaps best practice, but that Krause has not carried his burden to show that
this factor—in the aggregate and on the standard our Supreme Court has repeated
over and over—weighed in favor of a finding of potential prejudice.
As to the fourth factor (the admissibility of evidence of the other charges
even if not joined for trial, a.k.a., cross-admissibility), I agree with the majority that
there is no common scheme and plan across the four charges.2 And, as this was
the only basis on which the State argued the evidence in the various cases were
cross-admissible, it was an abuse of discretion for the court to find that this factor
2 That said, there is substantial evidence that the rape of ACS and AL began with Krause (1) establishing an individual relationship with a younger and vulnerable classmate, detached from any existing relationships or acquaintances, and (2) then, after securing their trust, taking them to a place where they would be alone, with no other witnesses, where he would rape them. While there may be substantial evidence for these similarities, there were significant differences between the rapes of ACS and AL, on the one hand, and the rapes of AC on the other, which defeat the State’s argument there was a common scheme or plan. 9 No. 84599-3-I/10 (DÍAZ, J., dissenting)
did not weigh in favor of a finding of potential prejudice.
The larger question here, however, is the nature or quantum of prejudice
this factor generates, a fact which is necessary to know when balancing the
potential prejudice against interests of judicial economy. The majority holds that,
when multiple counts are joined at trial without cross-admissible evidence, the “risk
of improper propensity inferences weighs strongly in favor of severance.” Majority
at 27 (emphasis added). They rely primarily on State v. Bluford, 188 Wn.2d 298,
305, 393 P.3d 1219 (2017) and Slater in reaching this conclusion. I review closely
each case in turn.
As the majority acknowledges, our Supreme Court in Bluford considered a
claim of improper joinder and not of improper severance because Bluford waived
his motion for severance. Majority at 24, n.7 (citing Bluford, 188 Wn.2d at 306).
While the concepts are “often considered together” and in “close relation,” the
Court there held that there are “distinctions between them” and laid out the different
rule-based frameworks for each process. Bluford, 188 Wn.2d at 305-07.
I would hold that the Court’s ensuing analysis is largely not pertinent to this
case for a variety of reasons. The overarching focus of the analysis is on that
prong of the joinder test that explores whether the offenses “[a]re of the same or
similar character, even if not part of a single scheme or plan.” Id. at 306 (alteration
in original) (quoting CrR 4.3(a)(1)).3 That is not anywhere in the severance analytic
3 The United States Court of Appeals for the Ninth Circuit in United States v. Jawara, 474 F.3d 565, 578 (9th Cir. 2007), held a court should weigh the following six factors when determining whether charges were the “same or similar”: (1) the elements of the statutory offenses, (2) the temporal proximity of the acts, (3) the likelihood and extent of evidentiary overlap, (4) the physical location of the acts, 10 No. 84599-3-I/11 (DÍAZ, J., dissenting)
framework. Then, the Court’s first substantive holding was that prejudice, contrary
to the State’s position there, is a relevant consideration in the joinder analysis
despite the absence of that term in the CrR 4.3(a)(1). Id. at 307-10. That is not a
relevant holding here, as prejudice has been integral to the severance analysis for
decades. The second major holding was that, contrary to Bluford’s position,
“[j]udicial economy is relevant to joinder” but, “if joinder will cause clear, undue
prejudice to the defendant’s substantial rights, no amount of judicial economy can
justify requiring a defendant to endure an unfair trial.” Id. at 311 (emphasis added).
Again, there has never been a question that judicial economy is relevant to
severance or that prejudice can outweigh judicial economy.
The Court did go on to hold that “[t]here are four factors to consider when
determining whether joinder causes undue prejudice,” reciting the four-factor
severance test. Id. at 311-12 (quoting Russell, 125 Wn.2d at 63).4 Crucially,
however, the parties themselves focused “primarily” on the fourth factor, cross-
admissibility, and the Court discussed only that factor and only whether the modus
operandi exception to ER 404(b) applied. Id. at 312-14. The parties’ arguments
here are not remotely so circumscribed.
The Court then held the modus operandi exception did not apply, in part,
because “the differences between the charges were notable, particularly as to the
two [of nine] robberies accompanied by sexual offenses.” Id. at 314. Even if this
(5) the modus operandi of the crimes, and (6) the identity of the victims. Only factor three is somewhat relevant to the severance analysis. 4 I respectfully note that Russell was not a joinder case. The “issue raised [was] whether the trial court erred in denying Russell’s motion to sever.” Russell, 125 Wn.2d at 62. 11 No. 84599-3-I/12 (DÍAZ, J., dissenting)
were a relevant inquiry, here there is no such distinguishing feature in this case:
all the crimes involve nearly identical types of sexual assaults.
The Court then briskly went from the holding that the modus exception did
not apply to the holding that, thus, the State “would not have been required (or
allowed) to call all of its witnesses in each separate trial.” Id. at 315-16. The court
explained that, as such, “the interest in judicial economy loses much of its force.”
Id. There were no further facts discussed weighing in favor of judicial economy.
At the end of the day, Bluford is nearly entirely distinguishable because it
simply was not a severance case. There was nothing in the opinion about the
strength of the State’s nine separate charges across the nine victims. There was
nothing in the opinion about the clarity of the defendant’s defenses. The term “jury
instruction” does not appear in the opinion. In short, when the State’s modus
operandi claim failed, there was no further discussion of facts that may have
contextualized or minimized the quantum of prejudice, and the State apparently
made no further argument to increase the interests of judicial economy. As will be
discussed further below, none of that is the case here.
Turning to Slater, the defendant there unsuccessfully moved the trial court
(1) to exclude the fact that he failed to appear (FTA) for a hearing as evidence of
flight or evidence of consciousness of guilt and (2) to sever two entirely different
types of charges, i.e., felony violation of a domestic violence no contact order and
bail jumping, the latter arising from the FTA. 197 Wn.2d at 666. Our Supreme
Court reversed the motion to exclude first, holding that “evidence of a single FTA
accompanied by a prompt motion to quash the issued warrant is not sufficient
12 No. 84599-3-I/13 (DÍAZ, J., dissenting)
evidence of flight and, therefore, cannot be used as evidence from which to infer
consciousness of guilt on the underlying crime.” Id. at 671.
The court then began its analysis of the motion to sever by observing “[t]he
judges in this case concluded that the facts surrounding Slater’s charge of bail
jumping are flight evidence admissible to prove consciousness of guilt as to the
underlying offense. Because we hold that the FTA in this case is not evidence of
flight, we now examine the motion to sever in light of that change in circumstance.”
Id. at 676.
As in Bluford, “Slater challenge[d] only the fourth factor.” Id. at 677. Thus,
as in Bluford, our Supreme Court did not discuss the strength of the State’s
charges, the clarity of the defenses, or the jury instructions given, again focusing
only on the cross-admissibility of the charges. Id. at 677-78. The crux of the
holding was that the trial court “judges were examining the proposed evidence
under the mistaken conclusion that the FTA and bail jumping charge amounted to
flight evidence with the purpose of inferring consciousness of guilt.” Id. at 679.
And, when that single justification was lost, “any remaining purpose for the
admission of misconduct evidence would be (as was stated during closing
arguments) to show that Slater is the type of person who violates court orders.” Id.
(emphasis added). Thus, the court’s first holding was that the fourth factor was
not met. Id.
Before continuing with the Court’s further analysis, it is important to
emphasize that our Supreme Court both in Slater and Bluford acknowledge that
the absence of cross-admissibility “does not automatically mean that the charges
13 No. 84599-3-I/14 (DÍAZ, J., dissenting)
must be severed.” Id.; Bluford, 188 Wn.2d at 315 (“The mere fact that evidence is
not cross admissible does not automatically preclude joinder”). This recognition is
important because it signals that cross-admissibility is not meant to be some super
factor, but that it happened to be the only factor in dispute on the facts of those
cases.
Accordingly, the Court went on to then conduct the second step of the
analysis: whether the prejudice to the defendant outweighs the need for judicial
economy. Slater, 197 Wn.2d at 679. The Court held that joinder created “higher
than normal prejudice in trying these two charges together” for three reasons Id.
First, the Court found that the quantum of prejudice was greater because
“both of the charges involve violations of court orders,” meaning “trying the charges
together presents a risk of improper propensity inferences.” Id. at 679-80.
Second, as the majority accurately recounts, compounding this risk was the
State’s closing argument, which (a) strongly implied that Slater had a “propensity
to violate court orders,” thus, highlighting “the exact prejudice that Slater argued in
his motion to sever,” and (b) which the Court ruled was prosecutorial misconduct.
Majority at 27 (quoting Slater, 197 Wn.2d at 683).
Third, joinder was particularly prejudicial there because the fact that “both
of the charges involve violations of court orders . . . [was] the only similarity
between the two charges as they are not connected or related in any way” and “the
witnesses as to each charge in this case were different.” Slater, 197 Wn.2d at 680.
Here, as to Slater’s first reason, although they are not violations of court
orders (and, thus, the risk of improper propensity inferences is different), the
14 No. 84599-3-I/15 (DÍAZ, J., dissenting)
crimes are similar classes of crimes and, thus, this fact does add to the potential
prejudice. However, I would hold that the potential is, following Slater, no more
than “higher than normal,” and not overwhelming or severely so. Id. at 679. In
Bluford, the Court “noted ‘the inherently prejudicial effect of prior sexual offenses.’”
188 Wn.2d at 315 (quoting Bythrow, 114 Wn.2d at 718-19). But, it did not hold
that cases involving sexual offenses should never be joined or are particularly or
severely prejudicial. It would be surprising if it so held because why would the risk
of an improper propensity inference in such cases be more prejudicial than, say,
serial arson cases or car prowling cases. I do not believe either Bluford or Slater
so held. The lesson is that tying similar cases together is more prejudicial than
tying different types of cases together, but not to a degree that overwhelms the
analysis. To the extent my esteemed colleagues in the majority suggest there is
more than “higher than normal” prejudice in this case solely because of the nature
of the offenses, I respectfully would disagree. Majority at 40 (“the similarity of two
other inadmissible acts of rape raised the prejudice at least as much, and almost
certainly more”).
As to Slater’s second reason, here unlike in Slater, there was no relevant
claim of prosecutorial misconduct. There is no claim, as in Slater, that the State
here commented on Krause’s guilt, invited the jury to make improper inferences,
or appealed to the juror’s passions, based on the blending of the cases. 197 Wn.2d
at 681-82. Instead, the majority points to two sentences in the State’s closing
argument—separated by about 80 pages in the transcript—that they claim evinces
the State’s unfair attempt to capitalize on the absence of cross-admissibility,
15 No. 84599-3-I/16 (DÍAZ, J., dissenting)
namely, when “it urged the jury to view them in common and give them ‘one
verdict.’” Majority at 40 (referencing 14 RP (Mar. 14, 2022) at 1366 & 14 RP (Mar.
14, 2022) at 1450). I respectfully submit that these two passing comments hardly
rise to the level of the dozen, lengthy, and ultimately “inflammatory” comments the
prosecution made in Slater, each of which our Supreme Court meticulously
catalogued there. 197 Wn.2d at 681-83. I would hold that this compounding or
aggravating factor is simply not present here.
As to Slater’s third reason, as discussed above, there were some similarities
to Krause’s behavior between the charges, even if the State could not establish a
common scheme or plan. See supra 10 n.2. And, as the majority acknowledges
and discussed below, this case is at least “somewhat” distinguishable from Slater
because “one or perhaps two or three witnesses [have] slightly overlapping”
testimony, even if the majority characterizes it as “on somewhat peripheral points.”
Majority at 40.
In summary, as to the fourth factor, I would hold that Bluford is largely
inapposite and Slater largely distinguishable, other than, given the similarity of the
charges, this factor weighs in favor of a finding of prejudice. But I would also hold
that the prejudice was only “higher than normal.”
***
In considering the totality of the four factors, then, I would then conclude
that it would not have been an abuse of discretion for the trial court to find that
three of the four Russell factors do not weigh in favor of severance. 125 Wn.2d at
63. Because no “one factor is necessarily preeminent” and “all of the factors
16 No. 84599-3-I/17 (DÍAZ, J., dissenting)
together are a means of determining whether potential prejudice to a defendant
requires severance,” Watkins, 53 Wn. App. at 272 n.3 (emphasis added), I would
hold that it would not have been an abuse of discretion for the trial court to find that
the risk of potential prejudice was low. In other words, it would have been within
its discretion for the trial court to find there was not “clear, undue prejudice,” which
the Court in Bluford held warranted reversal there, and the majority concludes is
present here. 188 Wn.2d at 311; Majority at 1.
Ultimately, my disagreement with the majority may turn on how a trial court
should utilize the four factors. For the majority, “it was the risk of an impermissible
propensity inference that created the prejudice here,” aggravated by the lack of a
limiting instruction and the State’s passing comments in its closing argument.
Majority at 41, n.10. One factor and those simple facts appear to be enough for
the majority. See id. at 1-2 (where the absence of cross-admissibility it mentioned
six times). The majority explains its reasoning, stating that the factors are
“considerations,” which “aid in searching out different kinds of prejudice.” Id. at 15,
n.3. Importantly, the majority holds that the factors do not “balance against one
another.” Id. And the majority adds that, “if prejudice exists for instance because
of an unfair inference of propensity, that is not offset for instance because the State
is not also trying to unfairly bolster a weak count by joining it with a stronger one.”
Id. at 15-16, n. 3. As I understand their position, the factors are like genetic
markers in a DNA assay, flagging an abnormality but not measuring health or
eliminating disease. I respectfully disagree.
17 No. 84599-3-I/18 (DÍAZ, J., dissenting)
I look at the factors differently: I believe the factors are meant to be balanced
against each other to assess the cumulative presence or absence of prejudice.
We expressly so held nearly four decades ago in State v. York, 50 Wn. App. 446,
451, 749 P.2d 683 (1987), where we held that the court in Smith “noted several
factors which may offset the prejudice from the joinder” and where we undertook
the full analysis. (Emphasis added.)
This case presents a good explanation of why. The first three factors
together show that this is a straightforward case, involving the same type and
strength of allegations, the same types of quite clear defenses, and requiring only
standard jury instructions ensuring independent convictions on each count. While
the evidence is not cross-admissible, as will be discussed below, still there was
some overlap, unlike in Slater, further minimizing the prejudice. Importantly, these
are facts that would have been known to the trial court after the State rested. An
attentive trial court judge sits in the best position, when focused on the right factors,
to determine whether “severance will promote a fair determination of the
defendant’s guilt or innocence of each offense.” CrR 4.4(b).
Looking at all four factors, I would hold Krause has not carried his burden
to show the court would not have abused its discretion in finding little prejudice.
B. Step 2: Was the Joinder so Manifestly Prejudicial to Outweigh Economy
Turning to the next inquiry, as there is some “residual prejudice,” we next
“must” consider whether trying the counts together was so “manifestly prejudicial”
as to outweigh the interests of judicial economy. Slater, 197 Wn.2d at 677. I would
first remind the reader that “[t]he law does not favor separate trials.” State v.
18 No. 84599-3-I/19 (DÍAZ, J., dissenting)
McCabe, 26 Wn. App. 2d 86, 94, 526 P.3d 891 (2023) (quoting State v. Huynh,
175 Wn. App. 896, 908, 307 P.3d 788 (2013)). More specifically, as our Supreme
Court stated in Bythrow:
A single trial obviously only requires one courtroom and judge. Only one group of jurors need serve, and the expenditure of time for jury voir dire and trial is significantly reduced when the offenses are tried together. Furthermore, the reduced delay on the disposition of the criminal charges, in trial and through the appellate process, serves the public.
114 Wn.2d at 723. In addition to these general considerations, there are at least
two additional sets of facts that increase the interest in judicial economy specific
to this case: the overlap of witness testimony and the reality of COVID.
The majority rightly begins its analysis by accurately laying out the first,
namely, the five “instances of evidence” that, while not “cross admissible,” would
be “admissible on counts relating to the others.” Majority at 33. In other words, as
the trial court noted, if the trial were severed, multiple witnesses, including the
victims, could be called to testify in multiple trials, i.e., there would be overlap
among witnesses.
The majority does not challenge this fact, but minimizes the impact on
judicial economy and secondarily the “necessity” of their testimony. Id. at 32-35.
As to the former, the majority discounts the fact that, following severance, the State
would need to prepare and call, and three separate juries would need to hear from,
the lead detective across potentially three different trials over a period of potentially
months, holding only that “the State voluntarily chose to call [her] serially [in the
same trial] without inconvenience.” Id. at 36. Similarly, the majority acknowledges
the “potential inconvenience to A.C. [who now lives out of state] that severed trials
19 No. 84599-3-I/20 (DÍAZ, J., dissenting)
would have implicated,” but was not persuaded that the “marginal additional delay
of severed trials … adds significantly to the weight of judicial economy.” Id. at 39.
Particularly because this impeaching testimony, as the majority admits, is
“probative,” I would not so easily diminish this overlap in witnesses. Id. at 34.
Even more importantly, as to the “necessity” of their testimony, I do not
believe that is the standard. The majority holds several times that, while it may
have been helpful to have or have been prepared for the testimony of all three
victims, the State did not “need” or show it “was necessary” to put on the testimony
of the other witnesses to effectively put on its case. Majority at 34-36; see also id.
at 34-35 (“No evidence suggested that A.C.S. delayed reporting”); at 35 (“the State
only proved it could try all the counts without” A.L.’s “knowledge of” A.C.S.’ rape,
or “A.L.’s state of mind” during her own rape); at 36 (“the State could effectively
present the case” without A.C.’s motive in reporting, i.e., to help A.L.).
No authority that I am aware of, including our Supreme Court in Slater,
established “necessity” as the standard for whether interests of judicial economy
are enhanced by duplicative potential witnesses. Slater looked only for “overlap,”
not necessity, between witnesses. 197 Wn.2d at 680. I would not have held that
it was an abuse of discretion to conclude there was at least some “interrelation”
between the testimony, in the sense that the State would reasonably called each
victim as a witness in at least one other case if the cases are tried separately.
Indeed, the State elicited important pieces of overlapping testimony without
objection. For example, A.L. testified that, before she was raped, she accepted a
ride home from Krause, and A.C.S.’s rape “play[ed] in [her] mind” when she was
20 No. 84599-3-I/21 (DÍAZ, J., dissenting)
in the car. And in describing, not just the physical pain of her rape, but the “deep
emotional pain,” A.L. testified:
I didn't think something like that would happen to me. Also, especially after, like, knowing what happened to [A.C.S.] and just accepting that I was going through exactly what I had said could never happen, you know, because all of us friends had spent so long sticking up for him . . .
Additionally, when asked why she did not go to the police immediately, A.L.
testified she was “just scared. I had seen how everyone had treated [A.C.S.]” for
reporting Krause raping her. Finally, A.L. explained that she thought “in a lot of
ways I blamed myself because I did know about” A.C.S. Even if all the details of
A.C.S.’s rape had not been admitted at A.L.’s separate trial, the State would
reasonably have been prepared to call A.C.S. to testify to bolster A.L.’s testimony
about how her rape unfolded, or at least the shaming which A.C.S. endured and
which A.L. had hoped to avoid.
Similarly, in any retrial, the State likely would call A.L. to testify at A.C.’s
trial. According to A.C., at one point, they were best friends. Both witnesses
testified that A.L. told A.C. that Krause raped her also. And that disclosure
motivated A.C. to report her rape to the police to “help” A.L., testifying as follows:
STATE: Up until that point, had you wanted to go to the police and tell them what had happened?
A.C.: Yes.
STATE: Had you done it, though?
A.C.: No. . . .
STATE: Why was it that you decided to come forward?
A.C.: I wanted to help [A.L.].
21 No. 84599-3-I/22 (DÍAZ, J., dissenting)
STATE: What do you mean?
A.C.: I originally went to the police with a statement on just how me and Cole were in instances that had happened to me. I was not going there to have my own court case.
This testimony was important in two ways. A.L.’s testimony—even if the substance
of the claim of rape were limited—would be admissible to explain the sequencing
of A.C.’s reporting, even if Krause did not challenge the timing. Moreover, A.L.’s
testimony would bolster A.C.’s credibility as it insulated her from any claims that
she was simply a disgruntled former girlfriend. Instead, her motivation in reporting
the assault was to support the rape allegations of her best friend.
For these reasons, I do not think it’s an abuse of discretion for the trial court
to have held that “the evidence really . . . . all builds off of itself from the various
witnesses and I just don’t see how in a single case, we wouldn’t potentially have
all of the same witnesses.”
Indeed, Krause for his part concedes some of “this hearsay evidence was
presented” at trial, but similarly tries to minimize its weight, arguing “it was hardly
relevant [to] the claims in the individual counts.” Krause emphasized this at oral
argument, stating that this evidence was “not material.” Wash. Ct. of Appeals oral
argument, State v. Krause, No. 84599-3-I, at 6 min., 18 sec., through 7 min., 05
sec., video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-
2024011546/?eventID=2024011546. But the question at this stage of the
severance analysis (weighing the court’s interest in judicial economy) is not
materiality, but relevance, i.e., whether the same witnesses will have relevant facts
22 No. 84599-3-I/23 (DÍAZ, J., dissenting)
to testify to in different trials. Here, they would at least to some extent. Thus, I
would hold that the trial court did not err in finding that there would have been
overlap between the trials.
Finally, in his reply brief, Krause does not dispute that the interest in judicial
economy was particularly pronounced because of the pandemic. The majority
minimally mentions the pandemic, and minimizes its import, noting that the trial
court “ultimately did not rely on the existence of COVID-19 protocols” in its final
ruling on Krause’s motion to sever, Majority at 12, and concluding that “the fact of
trial under COVID-19 protocols [does not] add[] significantly to the weight of judicial
economy”), id. at 39. I respectfully disagree with both statements.
The court’s findings are more fulsome and trial court’s concern with the
ability to seat juries and reduce the backlog caused by the COVID-19 pandemic
are legitimate and significant.
Prior to trial, in February 2022, the court held two hearings in which it
discussed the motions with the parties. In the first hearing, the court asked the
State how long two trials would take. After receiving the State’s response, the
court advised the parties, without ruling on the motions, that “everyone [should be]
aware of how difficult it is to get jurors in and, frankly, where we put them,”
seemingly alluding to the pandemic protocols, which had delayed proceedings the
prior year and had caused the suspension of trials in adjoining counties.
After the State rested and Krause had renewed his motion to sever, the
court asked Krause to “address judicial economy” because “[c]learly in COVID
times and with the back log that no one has ever seen, just this trial alone, the jury
23 No. 84599-3-I/24 (DÍAZ, J., dissenting)
selection essentially took three days. So if these were tried separately, we are
looking at nine judicial days” for jury selection alone.” (Emphasis added). Even if
the trial court did not repeat these undeniable facts when ruling on the final motion
to sever, these are clearly compelling interests.
In short, because there was some overlap in witnesses and a strong interest
in trying the matters together during a pandemic, I would have held that Krause
did not carry his burden to show the court abused its “considerable” discretion that
trying all three matters together was manifestly prejudicial to any residual prejudice
caused by only the lack of cross-admissibility. Bluford, 188 Wn.2d at 310.
Finally, the majority acknowledges that “other decisions of the Supreme
Court point in a different direction” than their understanding of Bluford and Slater.
Majority at 40. One of those cases is our Supreme Court’s decision in State v.
Markle, 118 Wn.2d 424, 439, 823 P.2d 1101 (1992), which I believe bolsters my
understanding of this matter, as it addressed a somewhat similar situation, and is
worthy of a more extended presentation.
There, the State charged the defendant with two counts of statutory rape
(amended at trial to indecent liberties) against his niece, Lisa, which was joined
with one count of indecent liberties against his other niece, Sonia. Id. at 427. Pre-
trial, Markle moved unsuccessfully to sever the counts involving Lisa from the
count involving Sonia. Id.
At trial, Sonia testified that, “once” when she slept overnight at Markle’s
residence with Lisa and other cousins, she observed the defendant with “his hand
down in” Lisa’s sleeping bag. Id. at 429. Sonia further testified that he did
24 No. 84599-3-I/25 (DÍAZ, J., dissenting)
something similar to her, namely, “while she was in her sleeping bag and seated
on Mr. Markle’s lap,” he placed his hand inside her clothing and against her vagina.
Id. Finally, she testified about a time he took the two driving, let them sit on his lap
to hold the steering while, and, while doing so, rubbed her buttocks. Id.
Lisa testified that she “was around the defendant often . . . over a period of
several years.” Id. She testified about the sleeping bag incident and an incident
similar to the driving incident, which Sonia had testified to. Id. But Lisa also
testified about other instances of different types of inappropriate behavior where
Sonia was not present. Id. These included an assault where Markle coerced her
into drinking alcohol and violently assaulted her. Id. at 429-30.
Our Supreme Court found that that the “nature of the acts” and “the method
of contact and abuse” were “similar” and “in some instances the defendant acted
while both girls were present.” Id. at 439 (emphasis added). The court further
found that “the defendant was charged with acts of the same class of crimes or
offenses, his acts were in some instances connected, and his offenses were
properly joined in the information as separate counts.” Id. (emphasis added). And
the court held, “[e]ven if separate counts would not be cross admissible in separate
proceedings, this does not as a matter of law state sufficient basis for the requisite
showing by the defense that undue prejudice would result from a joint trial.” Id.
(emphasis added); see also State v. Kalakosky, 121 Wn.2d 525, 538, 852 P.2d
1064 (1993) (“severance is not necessarily mandated even if they were not so
related. The fact that separate counts would not be cross admissible in separate
proceedings does not necessarily represent a sufficient ground to sever as a
25 No. 84599-3-I/26 (DÍAZ, J., dissenting)
matter of law.”); State v. McDaniel, 155 Wn. App. 829, 860-62, 230 P.3d 245 (2010)
(holding “[o]n balance, severance was not necessary” where three of the four
factors weighed against severance and despite the fact that the joined action was
predicated on a juvenile charge that is “presumed inadmissible”).
Here, Krause was charged with the same type (if not uniformly the same
degree) of offenses, the acts were similar “in some instances,” and were “in some
instances” evidentiarily connected. In other words, as in Markle, the cases were
similar in various ways, but dissimilar in others.
Thus, I would hold that the fact that one of the rapes (AC’s first rape) was
not cross admissible with the other three counts is not dispositive. We cannot say
Krause carried his burden to show it was “manifest abuse of discretion” for the
court to find all the factors, when weighed together and against the interests of
judicial economy, did not favor severance. Russell, 125 Wn.2d at 63.5
5 As to Krause’s ER 404(b) challenge, I would have held that Krause waived his ER 404(b) assignment of error by his failure to move the court to exclude this evidence and to rule on such a motion independently from and in the alternative to his motion to sever. In his trial brief, Krause moved in limine, under ER 404, “to prohibit state witnesses from referring to . . . sexual relationships with young women other than [A.L.], [A.C.S.] and [A.C.], intended to show character or reputation of defendant regarding sexual behavior.” (Emphasis added.) And at argument on the motions in limine, Krause did not move to exclude each rape from the other’s trial based solely on ER 404(b). Krause’s counsel thereafter mentioned ER 404(b) before or during trial, but always as part of his motion to sever the charges or in other unrelated contexts. If Krause wanted to move to exclude such evidence under ER 404(b), he would have needed to affirmatively assert that argument on that ground. The failure to do so results in waiver. State v. Kaiser, 161 Wn. App. 705, 718 n.4, 254 P.3d 850 (2011) (“Because Kaiser did not make this argument below, we decline to consider it for the first time on appeal.”). 26 No. 84599-3-I/27 (DÍAZ, J., dissenting)
II. CONCLUSION
For the foregoing reasons, I concur in part and respectfully dissent in part
from the majority opinion.
Related
Cite This Page — Counsel Stack
State Of Washington, Resp/cross-app V. Cole Edward Krause, App/cross-resp, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-washington-respcross-app-v-cole-edward-krause-appcross-resp-washctapp-2024.