IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87082-3-I
Respondent, DIVISION ONE
v.
PAUL JAMES BIEKER AKA JOHN DOE, WHOSE UNIQUE GENETIC SEQUENCE OF UNPUBLISHED OPINION DEOXYRIBONUCLEIC ACID IS COMMONLY IDENTIFIED BY WASHINGTON STATE PATROL CRIME LABORATORY NO. 303-000607,
Appellant.
BOWMAN, J. — Paul James Bieker appeals his jury conviction of rape in
the first degree of A.E. He argues the trial court was biased and erred by
denying his motion to change venue and admitting the sexual assault kit used in
A.E.’s examination. He also asserts that cumulative error deprived him of a fair
trial. We affirm.
FACTS
In October 2010, the State charged “John Doe,” whose identity was
unknown, with rape in the first degree.1 The State alleged that in March 2003,
John Doe sexually assaulted A.E. At the time, A.E. was a 17-year-old high
1 The State also charged John Doe with kidnapping in the first degree. The trial court later dismissed that charge and it is not at issue on appeal. No. 87082-3-I/2
school student and lived with her father in McCleary, a small town in Grays
Harbor County.
A.E. would later testify that on the evening of March 6, 2003, she arrived
home from her job at a local coffee stand and parked her car in the detached
garage. A.E.’s father was not home. A.E. testified that she started to walk
through the garage side door and as she pulled the door shut behind her, a man
came from behind, covered her mouth, and pushed her back into the garage,
where a violent physical struggle ensued.
A.E. testified that the man pushed her to the ground, “slamming [her] head
into the concrete.” He pulled the hood of her sweatshirt over her eyes to obscure
her vision, duct taped her eyes and mouth shut, and zip tied her arms together
behind her back. He then bound her legs and feet and tried to put her in the
trunk of her car. A.E. fought back, and the man “dropped [her] a few times” and
tried “slamming the trunk lid” on her head. He eventually put A.E. in the back
seat. The man then drove her car for what A.E. estimated was about 20 to 30
minutes, hitting her every time she tried to sit up, until she felt the road change to
gravel and he stopped the car. He told her to get out and walk but she could not
because her feet were still bound, and she started to scream through the duct
tape. The man then “picked [A.E.] up off the ground and threw [her] into the back
seat,” pulled down her pants, and raped her.
A.E. testified that afterward, the man drove her car to another location but
she did not know where because her “eyes were still duct taped with a hood.”
A.E. said that the man got out of the car but came back after a few minutes. A.E.
2 No. 87082-3-I/3
“didn’t move,” hoping “he thinks [she is] dead.” The man then cut the zip ties off
her wrists and told A.E. that he “hoped [she] was dead, but if [she] wasn’t, within
24 hours, [her] house would be burned down and [her] dad would be shot, and
the rest of [her] life would be miserable.” He then told her he would “always be
watching” her, shut the car door, and left.
A.E. testified that she sat in the back seat for some time, not moving.
After she had heard nothing for “a while,” she started ripping the duct tape from
her eyes and mouth. Once she could see again, she realized she was at an
unmanned fire station about a half mile from her house. Her legs were still
bound, but she found a tire gauge or a flashlight—she could not recall which—
and managed to get her stick-shift car started and drive home in first gear. A.E.
never saw her assailant during the attack.
Once home, A.E. pulled into the driveway and honked the horn until her
father came out. He later testified that A.E. “flung” her car door open and yelled
at him to “grab scissors, come quick.” A.E.’s father cut the “large zip ties” from
A.E.’s feet. He then followed A.E. as she ran into the house, “frantically closing
the curtains, trying to shut all the windows, mak[ing] sure nobody can see in.” He
described his daughter as “[d]irty” and “abused” with “duct tape wrapped around
her neck” and badly “beaten.” A.E.’s father called 911 “immediately.”
Police responded and eventually took A.E. to the hospital, where sexual
assault nurse Pamela Montagu examined her and swabbed her body with swabs
from a sexual assault kit. Montagu gave the sealed kit to Detective Edward
McGowan of the Grays Harbor County Sheriff’s Office. Detective McGowan then
3 No. 87082-3-I/4
placed the kit in an evidence locker until another detective transported it to the
Washington State Patrol Crime Laboratory (WSPCL). The WSPCL developed a
DNA profile of the man who raped A.E. using the swabs from the kit but could not
match it to anyone.
Years later in 2012, Grays Harbor County Sheriff’s Deputy Darren Wallace
learned of A.E.’s case when he was promoted to detective. In 2020, Detective
Wallace applied for and obtained a grant for money to pay for genealogical
testing in cold cases. He then sent the DNA extracts from A.E.’s sexual assault
kit to a private lab, which gave Detective Wallace “investigative suggestions”
based on familial matches through DNA databases like Ancestry and 23andMe.
Detective Wallace narrowed the list of potential matches using traditional
investigative techniques and decided to start by trying to get a DNA sample from
Bieker.
In 2021, Detective Wallace obtained a search warrant to put a tracker on
Bieker’s vehicle. He then followed Bieker, watched him throw away a used
coffee cup, retrieved the cup, and delivered it to the WSPCL for DNA analysis. A
forensic scientist from the crime lab testified that the DNA from the vaginal swabs
in A.E.’s sexual assault kit matched the DNA obtained from Bieker’s discarded
cup. Detective Wallace arrested Bieker based on that match and later obtained
additional swabs from Bieker’s cheeks, which also matched the DNA from A.E.’s
sexual assault kit.
In June 2021, the State filed an amended information that named Bieker
4 No. 87082-3-I/5
as the defendant that it originally identified as John Doe.2 Bieker pleaded not
guilty. In December 2021, he moved for a change of venue from Grays Harbor
County to Pierce County. He asserted that “[t]he media coverage of this case
has been expansive and detailed in Grays Harbor County” and that law
enforcement “has made comments on the investigation procedures of the case,
[Bieker’s] arrest . . . , and his possible ties to other unrelated cold cases and
serious crimes in the area, such as the high-profile disappearance of Lindsey
Baum,” a 10-year-old who disappeared from McCleary in 2009 and whose
remains were later found in eastern Washington. The trial court denied Bieker’s
motion.
Bieker’s jury trial began in June 2022. Bieker’s defense was consent. He
testified that around 2003, he and his wife were having marital issues and he
began frequenting the coffee stand where A.E. worked. According to Bieker,
A.E. was “very friendly” to him and would “chat [him] up.”
Bieker testified that on “the night in question,” he was talking with A.E. at
the coffee stand and she suggested that they meet and “talk some more” after
her shift. He testified that A.E. proposed they meet at the fire station, where he
got into her car. According to Bieker, the two talked for about 10 minutes, started
kissing, and as things progressed, moved into the back seat. Bieker testified that
although A.E. was touching him, he was not getting aroused, so he asked, “[C]an
we be kinky.” After further discussion, A.E. agreed to have her wrists and ankles
2 The State also added additional charges but the trial court later dismissed all counts except for the original first degree rape count. The additional charges are not at issue on appeal.
5 No. 87082-3-I/6
zip tied. He testified that he was never able to get fully aroused and that she
“insulted him.” Bieker felt “humiliated” and decided to leave. He then cut the zip
ties from A.E.’s hands but she kicked him before he could get to her feet and he
“backed off.” Bieker testified that he left A.E. in the back seat of her car, went
home, and never went back to the coffee stand or sought out A.E. again.
A.E. testified that she did not recognize Bieker’s face, that his name “didn’t
ring a bell” when she heard he was arrested, and that she had never seen him
until “this case started back up.” She also testified that when she heard his voice
in court, she recognized it and “[c]ouldn’t be more sure” that it was the voice of
her assailant.
Over Bieker’s objections, the court admitted the 911 call recording and
A.E.’s sexual assault kit as exhibits. The jury convicted Bieker as charged,
including several aggravating factors by special verdict. The court imposed an
indeterminate exceptional sentence of 360 months to life.
Bieker appeals.
ANALYSIS
1. Motion to Change Venue
Bieker argues that the trial court erred by denying his motion to change
venue. We disagree.
“The court may order a change of venue to any county in the state . . .
[u]pon motion of the defendant, supported by affidavit that he believes he cannot
receive a fair trial in the county where the action is pending.” CrR 5.2(b)(2). We
review a trial court’s decision on a motion to change venue for an abuse of
6 No. 87082-3-I/7
discretion. State v. Stiltner, 80 Wn.2d 47, 52, 491 P.2d 1043 (1971). A trial court
abuses its discretion when its decision is manifestly unreasonable or based on
untenable grounds or reasons. State v. Taylor, 193 Wn.2d 691, 697, 444 P.3d
1194 (2019).
Bieker sought a venue change based on pretrial publicity about his case.
To determine whether a trial court abused its discretion by granting or denying a
motion for a change of venue due to pretrial publicity, we apply the factors
identified in State v. Crudup, 11 Wn. App. 583, 524 P.2d 479 (1974). State v.
Jackson, 150 Wn.2d 251, 269-70, 76 P.3d 217 (2003).
The Crudup factors are
(1) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.
11 Wn. App. at 587. The fact that the majority of prospective jurors remember a
case, without more, “is ‘essentially irrelevant.’ ” Jackson, 150 Wn.2d at 269
(quoting Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847
(1984)). Instead, “ ‘[t]he relevant question is not whether the community
remembered the case, but whether the jurors at [the] trial had such fixed opinions
that they could not judge impartially the guilt of the defendant.’ ” Id.3 (quoting
3 Alterations in original.
7 No. 87082-3-I/8
Patton, 467 U.S. at 1035). Ultimately, “[t]he ‘defendant must show a probability
of unfairness or prejudice from pretrial publicity.’ ” Id. (quoting State v. Hoffman,
116 Wn.2d 51, 71, 804 P.2d 577 (1991)).
Bieker does not make this showing. He points out that media reports
about his June 2021 arrest included statements from law enforcement that they
were looking into possible connections to the Baum case. As for the first Crudup
factor, Bieker characterizes the reports as “unquestionably inflammatory.” But
the media reports Bieker attached to his motion were essentially factual,
describing the underlying investigation and the DNA evidence that led to his
arrest. See State v. Maupin, 63 Wn. App. 887, 895, 822 P.2d 355 (1992)
(articles were of a “factual, noninflammatory nature” where, although numerous
and with a “few prejudicial statements,” they mostly “described the crime, the
investigation, the victim, and the support offered to the victim’s family by the
community”).
One article reported that sheriff officials were “looking into if Bieker could
be connected to the kidnapping and murder of Lindsey Baum.”4 But it also
reported that “there is currently no evidence to support that claim” and quoted an
officer as stating, “ ‘There is currently no evidence that would connect the two
investigations.’ ” And while another article indicated that law enforcement noted
“ ‘eerie similarities’ ” between A.E.’s assault and the Baum kidnapping, it also
quoted law enforcement as stating that the two cases could be “ ‘just totally
unrelated.’ ” Similarly, although an officer stated in a “Cop Talk” radio interview
4 Emphasis omitted.
8 No. 87082-3-I/9
that they were investigating a possible connection to the Baum case, Bieker does
not dispute that the officer also stated, “[T]here is no evidence connecting Mr.
Bieker to Lindsey Baum.”
Turning to the second and third Crudup factors, even assuming news of
Bieker’s arrest, his release on bail, and the investigation into a possible
connection to Baum was widely circulated, Bieker did not dispute that the most
recent news coverage of his case was from June 29, 2021—almost a year before
jury selection. And as for the Cop Talk interview, the State presented evidence
that “the audio of that program was never made available to the public for
streaming on . . . any . . . platform” and that the original live stream garnered only
“25 listens.”
Next, as to the fourth through sixth Crudup factors, “the best test of
whether an impartial jury c[an] be empaneled [i]s to attempt to empanel one.”
Hoffman, 116 Wn.2d at 72-73. And here, the record shows that the trial court
took great care to ensure that it empaneled only jurors whose partiality was not
affected by publicity about the case.
At the outset of jury selection, before the venire was even brought in, the
court dismissed three jurors that the prosecutor and defense counsel identified
as part of social media sites that included posts expressing “fixed opinions and
conviction of . . . beliefs that . . . Bieker [was] guilty and should be punished.”
During voir dire, the court asked the venire whether any of them
“kn[e]w . . . Bieker, or anything about . . . Bieker.” To avoid tainting the venire,
the court added that “[t]his is the kind of question I don’t want anybody to say
9 No. 87082-3-I/10
what it is they think they know, at all, I just want a yes or no at this point.”
Significantly, only eight prospective jurors answered yes. The trial court
dismissed one of them for cause after she explained that she had known Bieker
for a long time and that because of their relationship, she did not think she could
be fair and impartial. While discussing the matter with that juror, the trial court
was clear that it did not want her to say anything that she knew about Bieker, and
she did not.
As for the remaining seven jurors, the trial court questioned each of them
individually and outside the presence of the other jurors. Three said they had
read about Bieker’s case, but each confirmed that they could decide the case
based solely on the evidence. Another shared that she once worked with
Bieker’s ex-wife, but she also stated that she had heard nothing about the case
from any source, that nothing about her relationship with Bieker’s ex-wife would
come into play should she be empaneled, and that she could decide the case
based on the facts. The trial court dismissed the last three for cause on its own
accord,5 and Bieker points to no instance where the trial court rejected any
attempt to dismiss a juror for cause based on exposure to pretrial publicity.
Finally, as to the seventh through ninth Crudup factors, although some
media reports included quotes from law enforcement and the charge against
Bieker was severe, the venire was drawn from the entirety of Grays Harbor
5 One of those jurors was from McCleary and said he had seen social media posts expressing opinions about the case. Another stated, “[S]everal years ago, I was told that somebody by [Bieker’s] name had some grooming behavior with a girl’s soccer team.” The third was also from McCleary and had heard things from his mother, who worked for the school district.
10 No. 87082-3-I/11
County. Even Bieker acknowledged the county had a population of around
75,000, and he did not dispute that most of the jurors would not come from
McCleary. See State v. Langford, 67 Wn. App. 572, 586, 837 P.2d 1037 (1992)
(characterizing a county of 73,000 registered voters as “a fairly large population
base” from which to draw a venire).
In short, while some of the Crudup factors may have weighed in favor of
changing venue, several did not. And critically, Bieker presents only speculative
assertions, which he does not support with citations to the record,6 that any juror
seated in his trial “ ‘had such fixed opinions that they could not judge impartially
[his] guilt.’ ” Jackson, 150 Wn.2d at 269 (quoting Patton, 467 U.S. at 1035).
Bieker does not show that the trial court abused its discretion by denying his
motion to change venue.
2. Judicial Bias
Bieker asserts that the trial court had a preconceived opinion on his guilt,
so judicial bias deprived him of a fair trial.7 We disagree.
6 For example, Bieker asserts that “it is reasonable to presume there were prospective jurors who wanted to be part of the trial and not share the necessary information,” that there was a “real probability that [jurors] recalled [the Baum case] as [Bieker’s] case carried on through testimony” even if they did not recall it during jury selection, and that it “is inevitable” that jurors were exposed to people wearing Lindsey Baum T-shirts at trial. 7 The State asserts that Bieker failed to preserve this issue for appeal because he did not raise it below. We exercise our discretion to reach the issue. See State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011) (“RAP 2.5(a) provides that if a party fails to raise an issue in the trial court, the appellate court may decline to review the issue on appeal. However, the rule’s use of the term ‘may’ indicates that it is a discretionary decision to refuse review. Nothing in RAP 2.5(a) expressly prohibits an appellate court from accepting review of an issue not raised in the trial court.” (citation omitted)).
11 No. 87082-3-I/12
“Criminal defendants have a due process right to a fair trial by an impartial
judge.” In re Pers. Restraint of Swenson, 158 Wn. App. 812, 818, 244 P.3d 959
(2010) (citing W ASH. CONST. art. I, § 22; U.S. CONST. amends. V, VI, XIV). We
presume that a trial court is fair and impartial, and “[t]he party seeking to
overcome that presumption must provide specific facts establishing bias.” In re
Disciplinary Proc. Against King, 168 Wn.2d 888, 904, 232 P.3d 1094 (2010); In re
Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004).
Bieker asserts that “[f]rom the very beginning of the case the trial judge
made statements clearly demonstrating his bias regarding Mr. Bieker.” But a
review of the record shows that Bieker takes each statement out of context and
that none constitutes evidence of bias.
Bieker first points out that during motions in limine, the trial judge said:
[T]his is an identification case, where it’s not in dispute that the alleged victim was, in fact, assaulted, but the question is, who did it, right? Whether or not M[r]. Bieker committed the crime. I don’t think factually there is a dispute that [A.E.] suffered an attack, right?
Bieker claims these questions show that the judge “dismiss[ed] the notion that
there may have been a consensual sexual encounter.” But the judge was asking
defense counsel to address the State’s characterization of the case as a
consent-only case, stating, “[S]o maybe I am missing something, and forgive me,
I don’t mean to presume anything.” Defense counsel then clarified that consent
was at issue, and the judge indicated his understanding.
Bieker next points out that when the judge ruled that A.E.’s father’s 911
call could be admitted under a hearsay exception, he explained, “I am absolutely
satisfied that the alleged victim’s statements at the time to her father are
12 No. 87082-3-I/13
absolutely an excited utterance[ ].” Bieker asserts that the judge “had not heard
the 911 tape when it made these comments” and that the judge’s comments
made “clear” his “bias regarding the allegations.” But the judge did not need to
listen to the 911 tape because he made an interlocutory ruling based on the
State’s offer of proof. Indeed, the judge made clear that the State “has a number
of burdens of foundation,” and that “[i]f those are not met, . . . then the evidence
doesn’t come in, that’s the bottom line.” While the judge’s comments reflected
his confidence that his ruling was correct based on the information before him,
they were not evidence of bias. See Davis, 152 Wn.2d at 692 (“Judicial rulings
alone almost never constitute a valid showing of bias.”).
Next, Bieker points to voir dire, when the trial judge restated a prospective
juror’s observation that there must have been some evidence that resulted in the
State pressing charges. But the judge immediately explained to the prospective
juror that “that’s not the standard,” and that he must “decide this case . . . based
solely on the evidence produced in court, not based on anything outside of
court.” Similarly, Bieker argues the judge’s ruling on his change-of-venue motion
showed bias when the judge characterized as “fact” that the State brought
charges because there was a “DNA match.” It is accurate that the State charged
Bieker because his DNA matched the sample from the swab taken from A.E.
And by making these observations, the judge did not, as Bieker asserts, suggest
that the court did not plan to hold the State to its burden to present evidence of
the DNA match or, ultimately, Bieker’s guilt.
13 No. 87082-3-I/14
Finally, Bieker notes that on the second day of trial, defense counsel
observed that the trial judge “emoted” during opening statements and a witness’
direct examination by shaking his head, smiling, and looking puzzled. But even
defense counsel did not think it was “anything conscious.” The trial judge
“appreciate[d]” that counsel brought the matter to his attention and explained that
“certainly it was not intentional, not willful, not even conscious.” The judge then
said he would “not only . . . make effort not to do so,” but would also “remind the
jury that they are not to consider that and they are supposed to disregard that
entirely.” Defense counsel declined, reasoning that the jury would later be so
instructed and that he just “want[ed] the Court to know that [he] observed it a
little.” Counsel then commented that “reacting [is] just, I think, our nature.”
Bieker points to nothing in the record to show that it ever became an issue again.
Bieker has presented no evidence showing actual or potential bias as
required to overcome the presumption that the trial judge was impartial.
3. Admission of DNA Evidence
Bieker contends that the trial court erred by admitting exhibit 29, the
sexual assault kit, because the swabs therein were not sufficiently identified or
authenticated under ER 901(a). We disagree.
We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119
(2003). Under ER 901(a), “[t]he requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.” “This
14 No. 87082-3-I/15
requirement is met ‘if sufficient proof is introduced to permit a reasonable trier of
fact to find in favor of authentication or identification.’ ” State v. Bradford, 175
Wn. App. 912, 928, 308 P.3d 736 (2013) (quoting State v. Danielson, 37 Wn.
App. 469, 471, 681 P.2d 260 (1984)).
Bieker argues that ER 901(a) was not satisfied here because Montagu,
the nurse who took the vaginal swabs from A.E., “never testified that she placed
the swabs in the sexual assault kit.” So, “the State failed to demonstrate the
swabs in the sexual assault kit were in fact the ones taken from A.E.”
But Montagu testified that she recognized exhibit 29 as the sexual assault
kit that she used to examine A.E. because her signature and handwriting were on
the front, along with a date. She also testified that there was a process she went
through for taking swabs:
Q Do you know what you did with that — let’s talk about, when you take a kit and you take these swabs, is there a process you have to go through? A Yes. Q Okay. What do you do with them? A So once I get the swabs, they — before I can package them, they have to be dried. So we had some wood pallets, sort of look like a cribbage board, that had holes in them, so you can set the swabs up, and then we had a locked drying fan box, so that they would dry for us before we packaged them. Q Because you couldn’t leave until those were dry and packaged up, correct? A Correct. Q So you stayed with it? A If I was not directly with it, it’s locked, and the keys stay with me. The keys do not go anywhere else.
When asked whether she followed that process in A.E.’s case, Montagu
responded, “Absolutely.”
15 No. 87082-3-I/16
While Montagu did not say the words, “I placed the swabs in the sexual
assault kit,” her testimony that she followed a procedure that called for drying and
packaging the swabs was sufficient to permit a reasonable trier of fact to find in
favor of the swabs’ authenticity and identification. The trial court did not err by
admitting the sexual assault kit.
4. Cumulative Error
As a final matter, Bieker argues that cumulative error deprived him of a fair
trial. The cumulative error doctrine entitles a defendant to a new trial “when
cumulative errors produce a trial that is fundamentally unfair.” State v. Emery,
174 Wn.2d 741, 766, 278 P.3d 653 (2012). Reversal is not required where the
errors are few and have little to no effect on the outcome of the trial. State v.
Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because no trial error occurred
here, the cumulative error doctrine does not apply.
We affirm Bieker’s conviction of first degree rape of A.E.
WE CONCUR: