State Of Washington, V Kitorman Kogoya

Opinion

Filed

Washington State

Court of Appeals

Division Two

August 18, 2026

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

STATE OF WASHINGTON, No. 59152-9-II Respondent,

v.

UNPUBLISHED OPINION

KITORMAN KOGOYA,

Appellant.

VELJACIC, C.J. — Kitorman Kogoya, a Black man, appeals his convictions for attempted rape in the second degree and unlawful imprisonment. Kogoya argues that these convictions violated double jeopardy and that the prosecutor committed misconduct by impugning defense counsel, vouching for a witness, and appealing to racial bias. Kogoya also argues that he received ineffective assistance of counsel and that these cumulative errors denied him a fair trial. He also alleges that the crime victim penalty assessment (CVPA) should be stricken from his judgment and sentence. In his statements of additional grounds for review (SAG), Kogoya contends numerous errors occurred. Finding no reversible error with regard to his trial, we affirm Kogoya’s convictions, but we remand with instructions to strike the CVPA.

FACTS

I. BACKGROUND Kogoya and Zoe Feldman married in March 2021. In May 2022, Feldman and Kogoya had an open relationship, and Feldman slept with J.S. Kogoya expressed to Feldman that he

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wanted J.S. to be involved in their relationship, but J.S. did not want to be involved. In November 2022, Kogoya and Feldman separated.

At the beginning of 2023, Kogoya was in basic training and was stationed in Kentucky.

Around the same time, Feldman and J.S. began a romantic relationship. II. THE INCIDENT On May 13, Feldman went to the airport to pick up Kogoya, who was returning to Washington to retrieve his car and drive it back to Kentucky. Feldman, who was pregnant, was going to stay in Washington with another child she and Kogoya shared in common.

J.S. was already at Kogoya and Feldman’s apartment helping Feldman pack, because the apartment had to be vacated. Once they returned to the apartment from the airport, J.S. greeted Feldman and Kogoya at the door and shook hands with Kogoya. Feldman then went to the restroom to perform a medical treatment on herself. Kogoya went to his room, and J.S. went to Feldman’s bedroom to continue packing.

Kogoya entered Feldman’s bedroom and asked J.S. where Feldman was. She responded that Feldman was in the bathroom. Kogoya left and then came back into the room whispering to J.S., “Hello, how are you?” to which J.S. replied, “Good.” Rep. of Proc. (RP) (Oct. 19, 2023) at 119.

Kogoya then approached J.S. with his arms held out and said things like, “Come here.”

“[Feldman’s] fine with it. It’ll be quick. It’s fine. [Feldman] wants this. Come here. It’s okay. You’ll like it. It’s fine.” RP (Oct. 19, 2023) at 119-20. J.S. backed away and put her hands on Kogoya’s shoulders to make space between them. Kogoya grabbed J.S.’s forearm and wrists, and J.S. responded, “No, no, I don’t want this. No.” RP (Oct. 19, 2023) at 120. Kogoya tried to kiss

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J.S. and she yelled for Feldman. Kogoya then let go of J.S., said “[o]kay,” and walked back to his room. RP (Oct. 19, 2023) at 120.

J.S. texted Feldman, who was still in the bathroom and predisposed with the medical treatment, that she wanted to go home. Feldman texted J.S. back and told her to “[l]ock the door.” RP (Oct. 19, 2023) at 121. J.S. got up, locked the door handle, and proceeded to close the door. RP (Oct. 19, 2023) at 121. But as she tried to push the door closed, Kogoya came and started trying to open it. Kogoya had a “really big smile on his face” and was able to open the door and close it behind him. RP (Oct. 19, 2023) at 121.

Kogoya grabbed J.S.’s arms and pushed her toward the bed. He then put one hand on her neck and pushed her down onto the foot of the bed with her legs hanging off. Kogoya was standing in between J.S.’s legs with his body weight on top of hers. Kogoya held J.S.’s shoulder down with one hand and began to pull her shorts and underwear down with his other hand. He successfully pulled down one side of J.S.’s shorts and underwear to her midthigh. J.S. testified that even though the struggle made it difficult she tried to say, “No, stop.” RP (Oct. 19, 2023) at 126. Kogoya then began to pull down the other side of her shorts. While this was happening, Kogoya said again that “it’ll be quick,” “[J.S. would] like it,” and “it’s fine.” RP (Oct. 19, 2023) at 127. While this was occurring, Feldman was knocking on the bedroom door, yelling at Kogoya to open the door.

J.S. used her legs as leverage to push Kogoya off and rolled off the side of the bed. Kogoya grabbed the back of J.S.’s shirt, but she was able to push his hand off, open the door, and leave.

Feldman grabbed J.S., took her into the bathroom, locked the door, and called the police.

Kogoya told them he was sorry and asked them not to call police.

Officers arrived and spoke to Feldman and J.S. They took pictures of J.S.’s neck, arms, and thighs, as well as pictures of the bed where the incident occurred. J.S. also sent pictures to

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police later that day that she took of herself which showed scratch marks on her right thigh. Officers arrested Kogoya. The State charged Kogoya with attempted rape in the second degree and unlawful imprisonment. III. PRETRIAL Prior to trial, the State brought a motion in limine seeking to exclude evidence of money being taken out of Kogoya’s bank account. Defense counsel responded that such evidence should be admissible, stating:

[Th]at actually goes directly to motive, bias, and even credibility.

....

And if we have something where [Feldman] was asking for money ahead of time, and the minute [Kogoya]’s arrested [Feldman]’s draining the bank account there is—I believe that we can absolutely get into whether or not that was a motive for [Feldman] giving the testimony or statement to the police that she did.

RP (Oct. 19, 2023) at 89. The trial court denied the State’s motion to exclude this evidence.

In voir dire, the prosecutor asked the potential jurors, “What are you looking for when you’re trying to determine if someone’s telling you the truth or not being honest with you?” RP (Oct. 19, 2023) at 36. A juror responded that they look for inconsistencies and the prosecutor followed up by asking, “You’re looking at body language, but you’re also considering kind of the facts and consistency within those facts?” RP (Oct. 19, 2023) at 37. Several jurors responded that they look for inconsistencies. The prosecutor continued with similar lines of questioning and asked, “What are you looking for when you’re trying to determine who’s telling the truth and you have two different versions, inconsistencies in the story?” RP (Oct. 19, 2023) at 40-41. IV. TRIAL During opening statement, defense counsel brought up the money taken out of Kogoya’s accounts.

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After Mr. Kogoya is arrested, he’s in jail. His bank account was completely and totally drained by Ms. Feldman. She admits to taking at least $15,000. That’s the motivation.

So, ladies and gentlemen, as you are listening to witnesses, I’d ask you to pay very close attention to any kind of credibility issues, any kind of motive, any kind of bias that anyone might have had against Mr. Kogoya.

RP (Oct. 19, 2023) at 108.

At trial, Feldman and J.S. testified consistently with the above factual account. The photographs of J.S. and the bedroom were also presented to the jury.

On direct examination, the State asked Feldman about the finances she shared with Kogoya. Feldman testified that they shared a joint bank account and that Kogoya also had a separate account. The State asked Feldman if she withdrew money from the joint account “after th[e] incident,” and she said she withdrew “[a]bout $15,000” to pay for car debt, “apartment debt from when [Kogoya] couldn’t pay that and we had to move out,” loans that Feldman’s mother and grandmother had loaned Kogoya, housing, food, and a new place to live. RP (Oct. 19, 2023) at 176. Feldman also testified that she withdrew “probably a couple thousand” dollars from Kogoya’s separate account to pay for housing and food. RP (Oct. 19, 2023) at 177.

On cross-examination, defense counsel asked Feldman about various withdrawals she made from the joint and separate bank accounts after Kogoya was arrested. Counsel specifically asked, “So, you took a lot of money without permission to pay [Kogoya’s] debts?” RP (Oct. 19, 2023) at 190. Feldman responded, “Yes.” RP (Oct. 19, 2023) at 190.

On redirect, the State questioned Feldman about items she and Kogoya had cosigned for and what debts Kogoya had. RP (Oct. 19, 2023) at 197. The State continued:

And you mentioned [Kogoya] had debts. What kind of debts did he have?

[FELDMAN:] He was a big gambler.

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RP (Oct. 19, 2023) at 197. Defense counsel objected on relevance grounds to the statement that Kogoya “was a big gambler.” RP (Oct. 19, 2023) at 197. The trial court overruled the objection.

The State followed up and asked what kind of debts Kogoya had, and Feldman responded that

[Kogoya] was a big gambler, so I had to borrow money from my grandma and my mom. And then when we got kicked out of our apartment, there’s about $6,000 of debt there when we moved into my dad’s trailer, and then he wasn’t paying his car payments. And so, there was a lot of debt for that, over a $1,000.

RP (Oct. 19, 2023) at 197-98. Feldman stated that she used “[t]he $15,000 from the joint account” to pay back her mother and grandmother for covering Kogoya’s gambling debts. RP (Oct. 19, 2023) at 198. Feldman further stated that “[Kogoya] made [her] sell [her] car for money, as well, to pay off his debts” and that “[Kogoya] would go to the casino and get—gamble his paychecks away. So, then in order to pay rent, I had to, you know, sell my car.” RP (Oct. 19, 2023) at 200. V. JURY INSTRUCTIONS The jury was instructed that

the lawyers’ statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions

CP at 55.

The jury was instructed that to convict for attempted rape in the second degree it had to find:

(1) That on or about May 13, 2023, the defendant did an act that was a substantial step towards the commission of rape in the second degree;

(2) That the act was done with the intent to commit rape in the second degree; and (3) That this act occurred in the State of Washington.

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CP at 67. The trial court instructed the jury that, “A person commits the crime of rape in the second degree when he or she engages in [] sexual intercourse with another person by forcible compulsion.” CP at 62. The jury was also instructed that to convict Kogoya of unlawful imprisonment, it had to find:

(1) That on or about May 13, 2023, the defendant knowingly restrained the movements of [J.S.] in a manner that substantially interfered with her liberty;

(2) That such restraint was without [J.S.’s] consent;

(3) That the defendant knew that such restraint was without [J.S.’s] consent;

(4) That such restraint was without legal authority; and (5) That this act occurred in the State of Washington.

CP at 71. VI. CLOSING ARGUMENT In closing argument, while addressing the defense’s theory of the case, the State said that “[Feldman] got up and was very honest with you from the start. You haven’t heard that she has been inconsistent in her testimony in any way.” RP (Oct. 20, 2023) at 248. Defense counsel objected, and the trial court instructed the State to “[m]ove on.” RP (Oct. 20, 2023) at 248. The prosecutor continued: “You did not hear any inconsistencies that were brought up by [defense counsel] from that point about the money. [Feldman] was very clear—she was very clear with you that there were two separate accounts.” RP (Oct. 20, 2023) at 248.

The defense attacked J.S.’s version of what occurred in the bedroom by relying on photographs an officer took of the bed where the incident occurred.

This is the bed. She can’t roll off the left side because that’s where the wall is. The right side has a box of books and a bag. You’ll be able to take these back in the jury room with you and look at them. You can see here, more clearly, down to the edge, there are books there. There’s a box there. These aren’t haphazardly put up there, like somebody knocked them down, and, oh, let’s put him back up.

....

You also heard from [the responding officer]. He says they take pictures of the scene as they find it. They don’t stage it. So, if you’re escaping a violent attempt to have sex against your will, how do you roll off the bed and not knock a

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damn thing off the bed? Ladies and gentlemen, that’s a huge—that’s absolutely huge. That is a detail that shows that anything the State wants to say is physical evidence is not present. It’s just not there.

RP (Oct. 20, 2023) at 258-59.

Then in rebuttal closing argument, the State responded:

The photographs that were taken and share [indiscernible-low voice] disturbed on the bed. Well, you heard [J.S.] kind of clarify, well, she was able to get up and kind of rolled off the hip. She didn’t roll like a sardine, she said. It’s very possible that there’s nothing knocked on the ground—and actually, if you look at the picture, there is some stuff on the ground.

So, Defense is trying to distract away from what actually happened on May 13th, 2023.

RP (Oct. 20, 2023) at 271-72. Defense counsel objected that this was improper argument, and the trial court instructed the State to “[m]ove on.” RP (Oct. 19, 2023) at 272. VII. VERDICT AND SENTENCING The jury found Kogoya guilty of attempted rape in the second degree and unlawful imprisonment. The trial court sentenced him to 74 months total confinement and 36 months of community custody. The court also imposed a $500 CVPA.

Kogoya appeals.

Additional facts relevant to the analysis are included below.

ANALYSIS

I. DOUBLE JEOPARDY Relying on the merger doctrine, Kogoya argues that because the State used the same evidence to prove that he committed unlawful imprisonment and attempted rape in the second degree, his convictions violate double jeopardy. We disagree.

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A. Legal Principles Double jeopardy claims present questions of law that we review do novo. State v.

Muhammad, 194 Wn.2d 577, 600, 451 P.3d 1060 (2019) (lead opinion).

The double jeopardy clause “protects a person from being ‘twice put in jeopardy for the same offense.’” State v. Lee, 5 Wn.3d 734, 742, 582 P.3d 271 (2026) (quoting WASH. CONST. art. I, § 9; U.S. CONST. amend. V). Double jeopardy rights guarantee protection from “a second trial for the same offense” and “‘multiple punishments for the same offense.’” State v. Ray, 5 Wn.3d 350, 361-62, 575 P.3d 321 (2025) (internal quotation marks omitted) (quoting Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980)). For double jeopardy purposes, “punishments” include multiple convictions for the same offense, irrespective of concurrent or consecutive sentencing. State v. Calle, 125 Wn.2d 769, 773-74, 888 P.2d 155 (1995); Ray, 5 Wn.3d at 362.

But “‘[t]he double jeopardy clause does not prohibit the imposition of separate punishments for different offenses.’” Ray, 5 Wn.3d at 362 (emphasis omitted) (internal quotation marks omitted) (quoting State v. Arndt, 194 Wn.2d 784, 817, 453 P.3d 696 (2019)). To determine if a “‘defendant has suffered multiple punishments for the same offense’ we must ‘determine what punishments the legislature has authorized.’” Id. at 363 (quoting Arndt, 194 Wn.2d at 815). Where, as here, the convictions arise from different statutory provisions, “we apply a four-part analysis.” Id. at 363; Lee, 5 Wn.3d at 744.

First, we consider the legislature’s intent “to authorize or prohibit separate punishments”

by examining the statutory language. Ray, 5 Wn.3d at 363; Muhammad, 194 Wn.2d at 602 (lead opinion). If it is clear that the legislature intended to “‘impose multiple punishments for the same act or conduct, this is the end of the inquiry[,] and no double jeopardy violation exists.’” Ray, 5

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Wn.3d at 364 (quoting Arndt, 194 Wn.2d at 816). If the legislature’s intent is unclear, we continue with the analysis. Id.

Second, we apply the Blockburger1 test to determine whether the convictions “‘are the same in law and in fact.’” Lee, 5 Wn.3d at 744 (quoting State v. Adel, 136 Wn.2d 629, 632, 965 P.2d 1072 (1998)). With regard to same in law, “[i]f there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same[,] and the double jeopardy clause does not prevent convictions for both offenses.” State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983). In conducting this analysis, we do not abstractly compare the statutory elements; we “consider the legal elements of each offense ‘as charged and proved’ at trial.” Ray, 5 Wn.3d at 368 (emphasis omitted) (quoting Muhammad, 194 Wn.2d at 620 (opinion of Gordon McCloud, J.)).

“[T]he result of the Blockburger test ‘creates a strong presumption of the legislature’s intent[,]’” but it is not dispositive. Id. at 364 (quoting Muhammad, 194 Wn.2d at 620 (opinion of Gordon McCloud, J.)). Therefore, we still “must determine whether there is sufficiently ‘clear evidence of legislative intent . . . to overcome the Blockburger presumption.’” Id. (quoting Muhammad, 194 Wn.2d at 620-21 (opinion of Gordon McCloud, J.)).

Third, where applicable, the merger doctrine can aid in determining “legislative intent, where the degree of one offense is elevated by conduct constituting a separate offense.” State v. Kier, 164 Wn.2d 798, 804, 194 P.3d 212 (2008).

As our Supreme Court has explained,

the merger doctrine is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime (e.g., first degree rape) the State must prove not only that a defendant committed

1 Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

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that crime (e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes (e.g., assault or kidnapping).

Vladovic, 99 Wn.2d at 420-21 (italics omitted). Importantly, “the merger doctrine is applicable only in cases involving lesser included offenses.” Ray, 5 Wn.3d at 364 (emphasis in original). This is distinct from circumstances that are present here where the degree of an offense is raised from conduct criminalized under a different statutory provision, i.e., assault in the second degree and robbery in the first degree. See, e.g., In re Pers. Restraint of Francis, 170 Wn.2d 517, 524- 25, 242 P.3d 866 (2010); State v. Freeman, 153 Wn.2d 765, 772-73, 776, 108 P.3d 753 (2005).

Lastly, we consider ““other indicators of legislative intent’” to overcome the Blockburger presumption. Ray, 5 Wn.3d at 364 (quoting Muhammad, 194 Wn.2d at 621 (opinion of Gordon McCloud, J.)). For example, if the Blockburger analysis suggests “that two offenses are not the same, we must determine whether the legislature nevertheless intended to ‘bar the courts from imposing separate punishments.’” Id. at 365 (quoting Muhammad, 194 Wn.2d at 621 (opinion of Gordon McCloud, J.)).

B. Analysis Both parties agree that the statutes at issue here do not expressly authorize cumulative punishments for conduct violating both statutes, i.e., step one of our analysis. We agree, 2 and therefore, we move to the next step of the analysis.

Regarding the second step of our analysis, the crimes at issue are not identical in law.

Under Blockburger, if each offense as charged includes elements not included in the other, and proof of one would not also prove the other, the offenses are different and multiple convictions are

2 See RCW 9A.44.050, RCW 9A.40.040.

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permissible. Vladovic, 99 Wn.2d at 423. A review of the elements of attempted rape in the second degree and unlawful imprisonment show that each includes an element not included in the other.

To convict Kogoya of attempted rape in the second degree and unlawful imprisonment as charged here, the State had to prove:

Attempted rape in the second degree Unlawful imprisonment

(1) That on or about May 13, 2023, the (1) That on or about May 13, 2023, defendant did an act that was a the defendant knowingly restrained the substantial step towards the movements of [J.S.] in a manner that commission of rape in the second substantially interfered with her degree; liberty;

(2) That the act was done with the (2) That such restraint was without intent to commit rape in the second [J.S.’s] consent;

degree; and (3) That the defendant knew that such (3) That this act occurred in the State restraint was without [J.S.’s] consent;

of Washington (4) That such restraint was without A person commits the crime of rape in legal authority; and the second degree when he or she (5) That this act occurred in the State of (A) engages in a sexual intercourse with another person Washington.

(B) by forcible compulsion.

CP at 62, 67, 71.

Attempted rape in the second degree required that the State prove that Kogoya intended to engage in sexual intercourse by forcible compulsion which is not necessary to prove unlawful imprisonment. Further, to prove unlawful imprisonment, the State had to prove that Kogoya substantially interfered with J.S.’s liberty which is not a requirement to prove attempted rape in the second degree. While substantially interfering with J.S.’s liberty may have aided in the

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attempted rape of J.S., it was not an element the State had to prove to show Kogoya committed attempted rape in the second degree.3 Because the crimes have different elements, the two crimes are not the same in law and we need not consider whether they are the same in fact. Therefore, under Blockburger, there is a strong presumption the legislature intended to allow convictions for both offenses.

Further, we conclude the two offenses do not merge. The attempted rape in the second degree charge was not predicated on a conviction for unlawful imprisonment. In other words, because the unlawful imprisonment was not used to elevate the degree of the attempted rape charge, the merger doctrine is inapplicable. Ray, 5 Wn.3d at 364.

Lastly, Kogoya points to no other indicators of legislative intent to overcome the Blockburger presumption. See DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.”).

Accordingly, we conclude Kogoya’s convictions for attempted rape in the second degree and unlawful imprisonment do not violate double jeopardy.

3 Kogoya tries to distinguish this case from State v. Atkins, 130 Wn. App. 395, 123 P.3d 126 (2005). In Atkins, this court held that the defendant’s convictions for rape in the second degree by forcible compulsion and unlawful imprisonment with sexual motivation did not violate double jeopardy. Id. at 401. Kogoya contends that his case is factually different from Atkins and should therefore compel a different result. This argument fails to appreciate that Atkins held that unlawful imprisonment with sexual motivation and rape in the second degree were not the same in law. Id. Similarly, here, unlawful imprisonment and attempted rape in the second degree are not the same in law. Accordingly, because a defendant must prove that his convictions are the same in law and in fact to show a double jeopardy violation, Kogoya’s reliance on Atkins is unhelpful. See also State v. Frohs, 83 Wn. App. 803, 814, 817, 924 P.2d 384 (1996) (holding that unlawful imprisonment and assault in the fourth degree were not the same in law and “even if the jury did convict [the defendant] of the two separate crimes based on the same act of assault, there was no double jeopardy violation”).

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II. PROSECUTORIAL MISCONDUCT “The Sixth and Fourteenth Amendments to the United States Constitution and article I, section 3 and section 22 of the Washington State Constitution guarantee a criminal defendant the right to an impartial jury.” State v. Zamora, 199 Wn.2d 698, 708, 512 P.3d 512 (2022) (footnotes omitted). Because prosecutors are representatives of the state and quasi-judicial officers, they have a duty to ensure that the right to a fair trial is not violated. Id. As such, claims of prosecutorial misconduct “directly implicate[] the constitutional right to a fair trial.” Id.

Generally, the defendant bears the burden of showing “‘that the prosecutor’s conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.’” State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). Here, because the defendant objected to the challenged conduct, the defendant must show (1) that the prosecutor’s remarks were improper and (2) that there is a substantial likelihood the misconduct affected the verdict. State v. Gouley, 19 Wn. App. 2d 185, 201, 494 P.3d 458 (2021).

A. Witness vouching 1. Legal Principles

While a prosecutor may comment on a witness’ credibility based on the evidence, it is improper for a prosecutor to vouch for the credibility of a witness. State v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 (2010). Relevant here, vouching occurs “if the prosecutor expresses [a] personal belief as to the veracity of the witness.” State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010). It is solely the province of the jury to determine “[w]hether a witness has testified truthfully.” Id.

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For example, this court concluded that a prosecutor improperly vouched for a witness by stating on rebuttal that “the truth of the matter is [the police witnesses] were just telling you what they saw[,] and they are not being anything less than 100 percent candid.” State v. Ramos, 164 Wn. App. 327, 341, n.4, 263 P.3d 1268 (2011) (first alternation in original).

2. Analysis

Kogoya argues that the prosecutor committed misconduct by stating that Feldman was honest and consistent after indicating in voir dire that “‘consistency’ showed ‘truth’” and therefore, reversal is required. Supp. Br. of App. at 21-23. We disagree.

In voir dire, the prosecutor asked potential jurors if they looked for inconsistencies when trying to determine if someone is telling the truth. Then, in closing the prosecutor stated that “[Feldman] got up and was very honest with you from the start. You haven’t heard that she has been inconsistent in her testimony in any way.” RP (Oct. 20, 2023) at 248. Defense counsel objected. Then, the prosecutor continued, “You did not hear any inconsistencies that were brought up by [defense counsel] from that point about the money. [Feldman] was very clear—she was very clear with you that there were two separate accounts.” RP (Oct. 20, 2023) at 248.

Even if the prosecutor improperly vouched for Feldman by claiming she testified honestly, Kogoya has not shown that these comments in conjunction with the prosecutor’s statements in voir dire likely affected the jury’s verdict.4 The jury was instructed that counsel’s arguments were not evidence and that any argument or remark not supported by the evidence was to be disregarded. Further, aside from Feldman’s testimony, the jury could rely on the testimony of J.S., the actual victim, and the photographs of scratches on J.S. to reach its verdict. Nothing suggests that the jury

4 Because Kogoya objected at trial, he must show that “the prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).

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reached its verdict because of the prosecutor’s statement that Feldman testified honestly and consistently.

Because Kogoya has not carried his burden of showing the prosecutor’s comments were prejudicial, his prosecutorial misconduct claim regarding witness vouching fails.

B. Impugning defense counsel 1. Legal Principles

Likewise, it is improper for a prosecutor to impugn defense counsel. State v. Lindsay, 180 Wn.2d 423, 431-32, 326 P.3d 125 (2014). While a prosecutor may argue that the defense’s theory is not supported by the evidence, they “must not impugn the role or integrity of defense counsel.” Id. Such statements “can severely damage an accused’s opportunity to present his or her case and are therefore impermissible.” Id. at 432. “However, even improper remarks by the prosecutor are not grounds for reversal ‘if they were invited or provoked by defense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective.’” State v. Weber, 159 Wn.2d 252, 276-77, 149 P.3d 646 (2006) (quoting State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)).

For example, where a prosecutor referred to the defense’s presentation of the case as “bogus” and a “sleight of hand,” the Washington Supreme Court found that the prosecutor had impugned defense counsel’s integrity because these comments implied deception and dishonesty. Thorgerson, 172 Wn.2d at 451-52; Lindsay, 180 Wn.2d at 434 (concluding that prosecutor’s reference to the defense’s closing argument as “a crock” also impugned defense counsel).

Similarly, this court found misconduct where a prosecutor said, “The forensic interview is a different animal than the defense counsel interview. The defense counsel interview is not looking for the truth, because that’s not what defense lawyers need to know to do their ethical duty to

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represent their client.” State v. Cook, 17 Wn. App. 2d 96, 109, 484 P.3d 13 (2021). The court stated that this comment suggested to the jury that defense counsel must be lying “because his ethics do not constrain him to the truth.” Id. at 110.

2. Analysis

Kogoya argues the prosecutor committed misconduct by impugning defense counsel. We disagree.

Here, in closing, defense counsel argued the following:

This is the bed. She can’t roll off the left side because that’s where the wall is. The right side has a box of books and a bag. You’ll be able to take these back in the jury room with you and look at them. You can see here, more clearly, down to the edge, there are books there. There’s a box there. These aren’t haphazardly put up there, like somebody knocked them down, and, oh, let’s put him back up.

....

You also heard from [the responding officer]. He says they take pictures of the scene as they find it. They don’t stage it. So, if you’re escaping a violent attempt to have sex against your will, how do you roll off the bed and not knock a damn thing off the bed? Ladies and gentlemen, that’s a huge—that’s absolutely huge. That is a detail that shows that anything the State wants to say is physical evidence is not present. It’s just not there.

RP (Oct. 20, 2023) at 258-59. In response, the prosecutor said:

The photographs that were taken and share [indiscernible-low voice]

disturbed on the bed. Well, you heard [J.S.] kind of clarify, well, she was able to get up and kind of rolled off the hip. She didn’t roll like a sardine, she said. It’s very possible that there’s nothing knocked on the ground—and actually, if you look at the picture, there is some stuff on the ground.

So, Defense is trying to distract away from what actually happened on May 13th, 2023.

RP (Oct. 20, 2023) at 271-72. Defense counsel objected.

In context, the prosecutor’s comment that the defense was “trying to distract away from what actually happened” was in response to the defense’s argument that the photographs of the items on the bed cast doubt on J.S.’s testimony that she was able to roll off the bed without knocking any of the items off. RP (Oct. 20, 2023) at 272. Unlike in Thorgerson, Lindsay, and

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Cook, here, the prosecutor’s statement did not impugn the role or integrity of defense counsel by implying dishonesty or deception. Thorgerson, 172 Wn.2d at 451-52; Lindsay, 180 Wn.2d at 434; Cook, 17 Wn. App. 2d at 109. Instead, the prosecutor’s comment here addressed the defense’s argument that the State presented no physical evidence.

Accordingly, we conclude Kogoya has not shown that the prosecutor’s comment that defense counsel was “trying to distract from what actually happened” was improper, and his prosecutorial misconduct claim for impugning defense counsel fails. RP (Oct. 20, 2023) at 272.

C. Appeal to Racial Bias Kogoya also argues the prosecutor committed misconduct by appealing to racial bias through the “examples of gun violence and child molestation in voir dire and [] in closing.” Supp. Br. of App. at 25 (italics omitted). We disagree.

1. Legal principles

“‘[R]acial bias is a common and pervasive evil that causes systemic harm to the administration of justice.’” State v. Bagby, 200 Wn.2d 777, 791, 522 P.3d 982 (2023) (quoting State v. Berhe, 193 Wn.2d 647, 657, 444 P.3d 1172 (2019)). When a prosecutor appeals to racial stereotypes or biases, they violate the defendant’s right to an impartial jury. State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011).

The general standard for reviewing prosecutorial misconduct claims, as explained above, does not apply to race-based claims of prosecutorial misconduct. Bagby, 200 Wn.2d at 788.

Accordingly, to determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments as an appeal to jurors’ potential prejudice, bias, or stereotypes in a manner that undermined the defendant’s credibility or the presumption of innocence.

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Id. at 793 (footnotes omitted). If the defendant succeeds in showing that “the prosecutor’s conduct flagrantly or apparently intentionally appealed to racial or ethnic bias, then their improper conduct is considered per se prejudicial and reversal is required.” Id. at 790.

In applying this objective observer standard, we consider “(1) the content and subject of the questions and comments, (2) the frequency of the remarks, (3) the apparent purpose of the statements, and (4) whether the comments were based on evidence or reasonable inferences in the record.” Id. at 794.

Throughout this analysis, we are cognizant that “‘[n]ot all appeals to racial prejudice are blatant. . . . Like wolves in sheep’s clothing, a careful word here and there can trigger racial bias.’” Id. (quoting Monday, 171 Wn.2d at 678). This includes “[c]oded language [that] often involves themes or euphemisms [to] evoke a conception of ‘us’ versus ‘them.’” Id. Indeed “even the simplest racial cues can trigger implicit biases and affect the way jurors evaluate evidence [and,] such cues can affect juror decision-making more so than even explicit references to race.” Id. at 795.

For example, in Bagby, the Washington Supreme Court found misconduct where the prosecutor’s continuous reference to the Black defendant’s ethnicity, race, and nationality “primed the all-white jury to pay more attention to this racial difference, thereby activating any anti-Black implicit biases they may hold.” Id. The court noted that although the defendant’s “identity was not at issue in this case and he did not deny that he was the person involved in the relevant incidents” the prosecutor asked witnesses about his nationality “at least half a dozen times” and asked witnesses to identify the defendant and other witnesses by race “over a dozen times” thereby

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juxtapositioning the white witnesses with the one Black witness and Black defendant.5 Id. at 796- 798. The court concluded that “an objective observer could conclude that the prosecutor had apparently intentionally reinforced the stereotype that [the defendant], because he is Black, was more likely to have committed the crimes for which he was charged.” Id. at 802.

2. Analysis

Here, in voir dire, the trial court asked potential jurors whether they had “any personal experience with a similar related type of case or incident.” RP (Oct. 19, 2023) at 16. One potential juror responded that they had been sexually abused as a child. Another responded that their wife had been sexually abused as a child.

Later in voir dire, the prosecutor asked if it was wrong to attempt to commit a crime.

[STATE]: So, if somebody—if an attempted crime is against the law, then you’re fine that it is a crime if broken?

JUROR: That’s right.

[STATE]: Okay. Is pointing a gun at someone a crime?

JUROR: Yes.

[STATE]: By show of cards, who thinks that pointing a gun at someone is a crime? All right. And who thinks it’s not? [ . . .]

JUROR: I think it depends on the circumstances, because if you’re pointing a gun at an intruder coming in to your house with the kids asleep in the back room, I don’t know that that’s a crime.

[STATE]: Sure. Say it’s not a self-defense claim. Some random person comes up to you on the street, points—

JUROR: That is—that’s not okay ....

JUROR: It’s definitely situational. If someone on the street comes up and points the gun, then, yeah, I would consider it a crime. But if it’s a cop or I’m trying to defend myself, then sure.

....

[STATE]: Sure, absolutely. It’s never black and white, right?

5 The prosecutor referred to white witnesses as “citizens.” Bagby, 200 Wn.2d at 795-96. The prosecutor also referred to a witness in multiple instances as “‘the white guy’” and the defendant as “‘the Black [guy].’” Id. at 783. During the State’s closing argument, the prosecutor argued that “‘[t]his is a case with a bunch of [G]ood [S]amaritans. [The defendant] wasn’t one of them.’” Id. at 785.

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So, what if somebody then pulls the trigger? Is that a crime? Does anybody think it’s not a crime, somebody pulls the trigger after pointing a gun?

So, there are two—this isn’t in a situation where a random stranger just walks up to you on the street and points a gun at you. Have they committed the crime by pointing the gun and then also committed the crime by pulling the trigger?

Does anybody disagree with that, by show of cards?

Let’s talk about words versus actions. So, say you have a car accident between two people. A law enforcement officer shows up, talks to those two individuals, and they give two different versions of the event. Now, do you think an officer is going to stop his investigation—stop his or her investigation right there?

RP (Oct. 19, 2023) at 42-44.

The prosecutor continued discussing what it means to attempt to commit a crime.

[STATE]: All right. Has anybody heard of, like Chris Hansen says—what the Chris Hansen setups are, like Net Nanny cases?

JUROR: Yeah.

....

[STATE]: Can you kind of describe what I’m talking about to the rest of the group?

JUROR: It’s usually a catch a predator situation. So, there’s been some sort of cat fishing online where there’s a situation where someone is communicating with an under aged child, and so they call that person to a house or location. And that’s when Chris Hansen pops out and says, “Gotcha.”

[STATE]: All right, so is that going to ring a bell for everybody? I think to catch a predator, that kind of stuff. So, when we’re talking about attempting a crime versus committed crime, when we have this set up, so we have a person that’s talking to, like, perhaps a fictitious minor. So, an officer, or Chris Hansen, or whoever’s pretending to be a minor and they’re trying to catch a predator, when does it cross that line of committing the crime? Is the initial conversation is that committing the crime?

....

[STATE]: Okay, so they’ve had that conversation. So, Chris Hansen—

we’re just gonna use him [. . .] all right, so the messages have been made. As Juror No. 27 indicated then they say, hey, let’s meet up at this house is the agreement.

But to meet up, have you—has that crossed the line into committing, or attempting to commit, that crime?

JUROR: Just to meet up and haven’t said what? Just to meet up and they haven’t said what they’re going to do when they meet up? No, that’s not a crime.

[STATE]: Okay, so say there was plans to have sex with this minor, right?

The communications was to meet at this house to have sexual relations with this person who he thinks believes to be a minor. Just the fact of making the plan to meet up, has that crossed the line for you in attempting—

JUROR: Just discussing the plan, no.

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[STATE]: Say that person got in their car and drove to the house. Has that crossed the line into the attempted to commit that crime?

RP (Oct. 19, 2023) at 46-48. The prosecutor continued with this line of questioning.

Then, in closing, the prosecutor referred back to these examples from voir dire stating:

We had the two situations where a stranger walks up to and points a gun at you. That’s a crime. When they pull the trigger, that’s still a crime, it’s a worse crime; but, they are two crimes. So, an attempted crime versus the completed crime, while different, both are still crimes.

....

And so, when we’re looking at the attempted version, it’s the attempted rape in the second degree, is with intent to commit that crime. He or she does any act that is a substantial step towards a commission of rape in the second degree. And so, we’re looking at whether someone intended. What—what did they actually intend? And did they do a step in furtherance of that intent?

And that’s what we were talking about at jury selection, as well, right?

These to catch a predator setups. Where is that line that we draw that a person, the thoughts that comes into their head, what do they then commit the crime of attempting to go do that, right? So, what is that substantial step?

RP (Oct. 20, 2023) at 239-241.

Kogoya argues that the prosecutor’s use of the shooting example “harkened to the racist ‘animal’ or ‘savage’ Black man myth of being violent, compulsive, criminals with guns committing crimes against strangers on the street.” Supp. Br. of App. at 51. Kogoya also argues that the prosecutor’s reference to the “To Catch a Predator” series in conjunction with the subject of child sexual abuse being brought up in voir dire “reinforced any hidden, unconscious racist bias a prospective juror might have under the offensive, pervasive myth of the Black man as unable to control[] himself from sexually assaulting white women and children.” Supp. Br. of App. at 53- 54. We disagree with Kogoya’s characterization of the prosecutor’s comments.

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All Bagby factors6 support that the State did not engage in race-based prosecutorial misconduct. First, the prosecutor here used two examples involving a hypothetical attempted shooting and the “To Catch a Predator” series. Absent additional context, these two examples do not have a “clear racial connotation to an objective observer.” State v. Bellerouche, 33 Wn. App. 2d 877, 900, 565 P.3d 604 (2025). And while we are aware that “facially neutral terms can become suspect depending on the context of their usage[,]” the State’s examples did not juxtapose one side against another to create an “us-versus-them” narrative as in Bagby, for example. Id.

Second, the examples were only brought up twice—in voir dire and in closing.

Third, the apparent purpose of the examples in voir dire was to illustrate that an attempted crime can still be a crime even if not completed, and to ascertain whether the potential jurors were comfortable with that fact. In closing, the apparent purpose of the examples seems to have been to again reiterate the fact that an attempted crime is a crime and to also illustrate the concept of intent as it pertained to the “substantial step” element of attempted rape in the second degree.

Fourth, the remarks here stand in contrast to Bagby where the prosecutor’s statements were made “not to prove a relevant fact nor [were] based on evidence in the record.” 200 Wn.2d at 797. Here, the prosecutor’s remarks were made to prove a relevant fact, namely, to illustrate that an attempted rape is a crime and to explain what a “substantial step” is for an attempted crime.

6 As explained above, to succeed on a race-based prosecutorial claim, Kogoya “must demonstrate that the prosecutor’s conduct was both improper and prejudicial by showing that [an objective observer could view the prosecutor’s conduct as] flagrantly or apparently intentionally appeal[ing] to racial bias in a manner that undermined the defendant’s credibility or the presumption of innocence.” Bagby, 200 Wn.2d at 790 (emphasis omitted). To ascertain the objective observer standard, we consider “(1) the content and subject of the questions and comments, (2) the frequency of the remarks, (3) the apparent purpose of the statements, and (4) whether the comments were based on evidence or reasonable inferences in the record.” Id. at 794.

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Therefore, because no objective observer could view the prosecutor’s examples as flagrantly or apparently intentionally appealing to the jurors’ racial bias in a way that undermined Kogoya’s credibility or presumption of innocence, Kogoya’s race-based prosecutorial misconduct claim fails. III. INEFFECTIVE ASSISTANCE OF COUNSEL We review ineffective assistance of counsel claims de novo. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017).

To prove ineffective assistance of counsel, a defendant must show (1) counsel’s representation was so deficient it fell “‘below an objective standard of reasonableness’” and (2) that the deficiency prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011) (quoting and applying test from Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Failure to satisfy either requirement “‘defeats’ the claim.” State v. Bertrand, 3 Wn.3d 116, 128, 546 P.3d 1020 (2024) (quoting Strickland, 466 U.S. at 700).

First, “[t]he defendant must overcome ‘a strong presumption that counsel’s performance was reasonable.’” Id. at 130 (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)). Legitimate trial strategy or tactics cannot serve as the basis for a claim of ineffective assistance of counsel. Kyllo, 166 Wn.2d at 863. A “defendant can rebut the presumption of reasonable performance by demonstrating that ‘there is no conceivable legitimate tactic explaining counsel’s performance.’” Grier, 171 Wn.2d at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

Second, prejudice requires showing that had counsel’s performance not been deficient, “there is a reasonable probability . . . the result of the proceeding would have differed.” Estes, 193 Wn. App.at 488. “A reasonable probability is a probability sufficient to undermine confidence in

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the outcome.” In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012). Therefore, “[p]rejudice exists when there is ‘a probability sufficient to undermine [the court’s] confidence in the outcome.’” Bertrand, 3 Wn.3d at 129 (alterations in original) (quoting Strickland, 466 U.S. at 694).

To show ineffective assistance of counsel for failure to object, “a defendant must show that an objection would likely have been sustained.” State v. Fortun-Cebada, 158 Wn. App. 158, 172, 241 P.3d 800 (2010).

A. Spousal Testimonial Privilege Kogoya argues he received ineffective assistance of counsel because his counsel failed to raise the marital testimonial privilege. We disagree.

1. Legal Principles

Spousal testimonial privilege is a narrowly construed, statutory privilege whose purpose is to “foster domestic harmony and prevent discord.” State v. Roach, 18 Wn. App. 2d 98, 111, 489 P.3d 283 (2021). It provides that “no spouse can be called as a witness against the other spouse at all during the term of the marriage without the consent of such other spouse.” Id. at 109; RCW 5.60.060(1).7 Essentially, it prevents a spouse “from having to ‘choose between perjury, contempt of court, or jeopardizing the marriage.’” Roach, 18 Wn. App. 2d at 111 (internal quotation marks omitted) (quoting State v. Burden, 120 Wn.2d 371, 375, 841 P.2d 758 (1992)). The privilege is “‘personal to the one asserting it’” and the appropriate time to lodge an objection for the spousal privilege is “at the outset of trial.” Id. at 110 (internal quotation marks omitted) (quoting State v. Tanner, 54 Wn.2d 535, 537, 341 P.2d 869 (1959)).

7 RCW 5.60.060(1) provides in relevant part that “[a] spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner.”

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2. Analysis

Here, before trial, the State brought a motion in limine to exclude evidence of money being taken out of Kogoya’s bank account. Defense counsel argued that such evidence should be admissible stating:

[T]hat actually goes directly to motive, bias, and even credibility. . . . And if we have something where [Feldman] was asking for money ahead of time, and the minute [Kogoya]’s arrested [Feldman]’s draining the bank account there is—I believe that we can absolutely get into whether or not that was a motive for [Feldman] giving the testimony or statement to the police that she did.

RP (Oct. 19, 2023) at 89. The trial court denied the State’s motion as it regarded this evidence. Then, at trial, the defense questioned Feldman regarding the money she took out of Kogoya’s back account.

Kogoya’s counsel was not ineffective for failing to invoke the spousal testimonial privilege because it was clearly the defense’s theory of the case, and strategy to show, that Feldman had ulterior monetary motives for corroborating J.S.’s testimony about the incident. The defense had to question Feldman regarding the money that she took out of the bank account to get this evidence in front of the jury. Questioning Feldman regarding her actions in withdrawing the money was a legitimate trial strategy that would not have been possible if Kogoya invoked the spousal testimonial privilege. Further, the purpose of the privilege, marital harmony, would not have been served here where Kogoya and Feldman were separated and Feldman was already dating someone else. Accordingly, Kogoya’s counsel did not perform deficiently in failing to invoke the spousal testimonial privilege, and Kogoya’s ineffective assistance of counsel claim on this point fails.

B. Open Door Doctrine and Admissibility of Evidence Kogoya also argues his counsel was ineffective for failing to object on ER 404(b) grounds to Feldman’s testimony that he had gambling debts. We disagree.

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1. Legal Principles

For evidence to be admissible, it must be relevant. ER 402. “Evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.’” State v. Luvene, 127 Wn.2d 690, 706, 903 P.2d 960 (1995) (quoting ER 401). However, relevant evidence can still be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” ER 403.

The open door doctrine “‘is a theory of expanded relevance’” that allows “a party to admit evidence ‘on a topic that would normally be excluded for reasons of policy or undue prejudice when raised by the party who would ordinarily benefit from exclusion.’” State v. Bennett, 32 Wn. App. 2d 32, 40, 553 P.3d 1150 (2024) (quoting State v. Rushworth, 12 Wn. App. 2d 466, 473, 458 P.3d 1192 (2020)),aff’d, 5 Wn.3d 826, 582 P.3d 294 (2026). Under this doctrine, a party can “‘waive protection from a forbidden topic’ by discussing the subject.” Id (quoting Rushworth, 12 Wn. App. 2d at 473).

As our Supreme Court has explained:

It would be a curious rule of evidence which allowed one party to bring up a subject, drop it at a point where it might appear advantageous to him, and then bar the other party from all further inquiries about it. Rules of evidence are designed to aid in establishing the truth. To close the door after receiving only a part of the evidence not only leaves the matter suspended in air at a point markedly advantageous to the party who opened the door[] but might well limit the proof to half-truths.

State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). Relevant here, “comments made during opening statement can open the door to otherwise inadmissible evidence.” State v. Broussard, 25 Wn. App. 2d 781, 792, 525 P.3d 615 (2023).

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2. Analysis

Here, in opening statement, defense stated the following:

After Mr. Kogoya is arrested, he’s in jail. His bank account was completely and totally drained by Ms. Feldman. She admits to taking at least $15,000. That’s the motivation.

So, ladies and gentlemen, as you are listening to witnesses, I’d ask you to pay very close attention to any kind of credibility issues, any kind of motive, any kind of bias that anyone might have had against Mr. Kogoya.

RP (Oct. 19, 2023) at 108. Then in direct examination, the State asked Feldman what finances she shared with Kogoya and whether she withdrew money from the joint account. Feldman said she used the money she withdrew to pay for “apartment debt from when [Kogoya] couldn’t pay that and we had to move out,” loans that Feldman’s mother and grandmother had loaned Kogoya, housing, food, and a new place to live. RP (Oct. 19, 2023) at 176 On cross-examination, defense counsel asked Feldman if she “took a lot of money without permission to pay [Kogoya’s] debts?” and Feldman responded “yes.” RP (Oct. 19, 2023) at 190. Then, on redirect, the State asked Feldman what kind of debts Kogoya had to which Feldman responded that he was a “big gambler” and that “[she] had to borrow money from [her] grandma and [] mom. And then when [they] got kicked out of [their] apartment, there’s about $6,000 of debt.” RP (Oct. 19, 2023) at 197-98.

Defense counsel objected on relevance grounds to the statement that Kogoya “was a big gambler[,]” and the trial court overruled the objection. RP (Oct. 19, 2023) at 197. Feldman further stated that “[Kogoya] made [her] sell [her] car for money, as well, to pay off his debts” and that “[Kogoya] would go to the casino and get—gamble his paychecks away. So, then in order to pay rent, [she] had to . . . sell [her] car.” RP (Oct. 19, 2023) at 200.

As is evident from the facts above, in opening statement, defense counsel broached the subject of Feldman taking the money out of Kogoya’s shared and separate accounts to support its

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theory of the case that Feldman and J.S. had a pecuniary interest in crafting the attempted rape narrative. On redirect, the State asked Feldman what she used that money for, and she testified it was to pay off Kogoya’s gambling debts. While, initially, evidence of Kogoya’s gambling debts would have been irrelevant as it had no tendency to make a consequential fact more or less probable, under the open door doctrine, it became relevant when the defense brought up the money Feldman took out of the bank account.

Because the defense opened the door to this line of inquiry, the State was then allowed to ask Feldman what she used the money for.

Kogoya’s argument that his counsel should have objected pursuant to ER 404(b) is misguided. Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Kogoya’s gambling debts would not be excluded under ER 404(b) because evidence that Kogoya had gambling debts is not a wrong or act that shows Kogoya has the character of a person with the propensity to commit attempted rape in the second degree and unlawful imprisonment. Accordingly, an objection on ER 404(b) grounds would not have been sustained.

Because Kogoya cannot show his counsel performed deficiently, his ineffective assistance of counsel claim for failure to object fails. IV. CUMULATIVE ERROR Kogoya argues that these cumulative errors require reversal. We disagree.

To satisfy the cumulative error doctrine, a defendant “must show that while multiple trial errors, ‘standing alone, might not be of sufficient gravity to constitute grounds for a new trial, the combined effect of the accumulation of errors most certainly requires a new trial.’” State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017) (quoting State v. Coe, 101 Wn.2d 772, 789, 684 P.2d

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668 (1984)). Because Kogoya has not shown multiple errors occurred, the cumulative error doctrine is inapplicable. V. CVPA Kogoya also argues the CVPA should be stricken from his judgment and sentence. The State agrees. Effective July 1, 2023, RCW 7.68.035(4) prohibits courts from imposing the CVPA on indigent defendants. See State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048, rev’d on other grounds, 5 Wn.3d 549, 579 P.3d 37 (2025). We accept the State’s concession, reverse the CVPA, and remand with instructions to strike it. VI. SAG CLAIMS In his SAG, Kogoya alleges numerous errors.

In grounds 1-3, 10, and 14,8 Kogoya generally alleges that evidence was “made up” and that false testimony was presented. SAG at 2.9 However, it is the jury’s exclusive province to decide the credibility of witnesses and the weight to afford the evidence. State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999). Accordingly, these claims fail.

In ground 4, Kogoya appears to allege insufficient evidence supported his convictions and that the charging documents were insufficient. Upon reviewing the record, we conclude sufficient evidence supported his convictions. Further, the charging documents appear to contain all the necessary elements, and Kogoya does not specify which elements are missing. We are unable to

8 We number the two claims in the second SAG, 13 and 14. Further, to the extent Kogoya claims race-based prosecutorial misconduct in ground 14, we do not address this issue as it was already raised in briefing. In grounds 7 and 8, Kogoya alleges that the marital testimonial privilege should have prevented Feldman’s testimony at trial. However, we have already addressed this issue that was raised in briefing. We decline to address it again. 9 To the extent Kogoya alleges in SAG 3 that officers failed to conduct an adequate investigation, we decline to address this argument for the first time on appeal. RAP 2.5(a) (we “may refuse to review any claim of error which was not raised in the trial court”).

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discern the crux of the claim that the charging documents were not supported by probable cause. Therefore, these claims fail. See RAP 10.10(c) (requiring that the appellant “inform the court of the nature and occurrence of [the] alleged errors”).

In ground 13, Kogoya generally alleges that his judgment and sentence is unconstitutional and void. Without more, we are unable to address this vague claim. RAP 10.10(c). He further claims in grounds 13 and 5 that the facts and evidence do not support his convictions because the arresting officer charged him with “4th degree assault and sexual motivation act[,]” and the prosecutor “did not comply with the arresting officer’s charging document.” SAG at 5. However, we are aware of no authority that requires the prosecutor to charge only the crimes alleged by the arresting officer. Accordingly, these claims fail.

In ground 6, Kogoya claims the prosecutor erred in not getting his side of the story.

However, the decision on whether to testify rests solely with the defendant. State v. Robinson, 138 Wn.2d 753, 758, 982 P.2d 590, 594 (1999). “[T]his decision cannot be taken away by counsel or the court.” State v. Putman, 21 Wn. App. 2d 36, 55, 504 P.3d 868 (2022). Accordingly, this claim fails.

In grounds 9 and 12, Kogoya alleges points that are not legal arguments. As such, we are unable to address them. RAP 10.10(c) (requiring that the appellant “inform the court of the nature and occurrence of [the] alleged errors”).

In ground 11, Kogoya appears to allege that attempted rape in the second degree was incorrectly categorized as a class A felony when it should have been class B. However, RCW 9A.28.020 provides that “(3) An attempt to commit a crime is a: (a) Class A felony when the crime attempted is . . . rape in the second degree.” Accordingly, this claim fails.

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CONCLUSION

Accordingly, we affirm Kogoya’s convictions but remand with instructions to strike the CVPA.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Veljacic, C.J.

We concur:

Lee, J.

Glasgow, J.