No. 26167-7-II.The Court of Appeals of Washington, Division Two.
Filed: August 16, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 99-1-01397-4, Hon. Vicki L. Hogan, July 7, 2000, Judgment or order under review.
Counsel for Appellant(s), Patricia A. Pethick, Attorney At Law, P.O. Box 111952, Tacoma, WA 98411-1952.
Counsel for Respondent(s), Barbara L. Corey-Boulet, Pierce Co. Deputy Pros. Atty., County City Bldg, 930 Tacoma Ave S, Tacoma, WA 98402-2177.
DAVID H. ARMSTRONG, J.
A jury found Ira Crenshaw guilty of raping, kidnapping, and harassing two women, and attempting to murder one of them. Crenshaw contends that, among other things, the trial court erred in (1) refusing evidence that one of the victims, BB, was biased, and (2) refusing to sever the charges involving different victims. We find no error in the court’s severance ruling but we agree that the court committed reversible error by rejecting the evidence of BB’s bias. Accordingly, we reverse the convictions as to BB and remand for a new trial. And because Crenshaw’s rape and kidnapping convictions of the other victim merge, the trial court must resentence him on those convictions.
FACTS
SH met Ira Crenshaw at a friend’s house one night. After SH’s friend passed out in his room and the other guests left, Crenshaw forcibly had intercourse with SH. Afterward, Crenshaw made SH take a shower before he took her home. He then inserted his finger in her vagina and told her she needed to wash some more.
While driving SH home, Crenshaw repeatedly threatened to kill her if she reported the rape. When SH arrived home, she told her mother she had been raped. But because of Crenshaw’s threats, she waited until the next day to report the rape to the police; she then went to the hospital where she received a medical but not a forensic examination.
A month later, SH saw Crenshaw at a bar. She reported to police officers who were working as security guards at the bar that Crenshaw had raped her. The police detained Crenshaw, who tried to leave before they were done talking to him.
Less than a month after this, BB met Crenshaw at a bowling alley; she asked him for drugs. Crenshaw said he had some at home, and she could follow him to get them. When they arrived at his house, Crenshaw blindfolded BB then raped her vaginally and anally while threatening to kill her. He also forced her to perform oral sex. Afterward, Crenshaw forced BB to take a shower, then blindfolded her again and put her in the truck she had driven to Crenshaw’s house. He said he was taking her to Mt. Rainier to kill her. BB jumped from the truck, sustaining serious injuries.
Crenshaw claimed that both women consented to sex. And he denied kidnapping BB or driving her anywhere in a truck.
In one information, the State charged Crenshaw with kidnapping, harassment, and two counts of rape against SH and kidnapping, harassment, attempted murder, and three counts of rape against BB. The trial court refused Crenshaw’s motions to sever the two cases. And when Crenshaw expressed displeasure with his appointed counsel, the court refused to hear the matter unless Crenshaw filed a written motion. Crenshaw never filed a written motion.
The court excluded evidence of SH’s sexual history and an STD test result.
The court refused to allow testimony from a witness who heard BB make statements showing possible bias; but it allowed a police officer to testify that he had training in `judg[ing] the truthfulness’ of interviewees, and that he found the information SH gave him and the manner in which she gave it `appropriate.’ RP at 437, 439. Crenshaw challenges these rulings. He also argues that his counsel was ineffective because he did not argue that the rape, kidnapping, and harassment charges merged.
Finally, Crenshaw maintains that the prosecutor committed misconduct by mentioning sentencing in closing arguments, that the court should have instructed on third degree rape as a lesser included offense, that the evidence was insufficient to support attempted murder, and that the cumulative effect of all the errors denied him a fair trial. Because we reverse the convictions involving BB, we address only those issues that affect the convictions involving SH and those issues likely to arise on retrial.
ANALYSIS I. Motion to Sever
Crenshaw moved to sever the two cases several months before the trial began, again mid-trial, and again before closing arguments. He noted that the trial had taken weeks, that each case involved different witnesses, that the jury probably co-mingled the two cases, and that each case enhanced the credibility of the victim in the other case. The trial court declined to sever the case.
The trial court may sever properly joined offenses if it determines `that severance will promote a fair determination of the defendant’s guilt or innocence of each offense.’ CrR 4.4(b). We review the trial court’s decision for manifest abuse of discretion. State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990). Crenshaw must show that one trial for both victims was `so manifestly prejudicial as to outweigh the concern for judicial economy.’ Bythrow, 114 Wn.2d at 718.
A defendant can show prejudice if he would be `embarrassed’ in presenting inconsistent defenses or if a single trial would invite the jury to cumulate the evidence or find guilt based on the defendant’s criminal disposition. State v. Sanders, 66 Wn. App. 878, 885, 833 P.2d 452 (1992). Certain factors offset any prejudicial effect, including (1) the strength of the State’s evidence, (2) the clarity of defenses to each count, (3) whether the court instructed the jury to consider the counts separately, and (4) the cross-admissibility of the evidence if the cases had been tried separately. Sanders, 66 Wn. App. at 885.
The State’s evidence on both cases was strong. Both victims reported the incidents to friends, family, medical providers, and the police; and the stories were consistent with their trial testimony. Crenshaw admitted having intercourse with both women. Although the physical evidence did not conclusively show that Crenshaw raped the two women, it was consistent with their version of events. BB’s story was also confirmed in part by her injuries and a witness who saw her fall from the moving truck. Moreover, the strength of the State’s cases supports severance only where it varies greatly between the joined charges. See State v. Russell, 125 Wn.2d 24, 64, 882 P.2d 747 (1994). Here, the evidence of one incident was not significantly stronger than the evidence of the other.
In addition, Crenshaw’s defenses were clear and consistent. He claimed that both victims consented; his claim that he did not kidnap BB is not inconsistent with this claim. There is little likelihood of confusion where the defenses are identical on each charge. Russell, 125 Wn.2d at 64. And even if the court had severed the cases, he would still be in the position of presenting two defenses — consent and denial — as to BB.
The court properly instructed the jury to consider each count separately. It told 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.’ CP at 53. We have previously found this instruction sufficient to eliminate any prejudice joinder may have caused. State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994).
Finally, assuming without deciding that the evidence would not be cross-admissible in separate trials, this factor alone does not require the court to sever the cases. Bythrow, 114 Wn.2d at 720-21. The other factors weigh in favor of a joint trial, and Crenshaw cannot demonstrate undue prejudice. Bythrow, 114 Wn.2d at 720. And we must balance the prejudice to Crenshaw with the concern for judicial economy. Bythrow, 114 Wn.2d at 722-23. Where, as here, the State’s evidence is fairly strong on all charges, the defenses are consistent, the court properly instructed the jury, and two trials would burden judicial economy and efficiency, the trial court does not abuse its discretion by refusing to sever the charges. Bythrow, 114 Wn.2d at 723.
II. Admission of Evidence
Crenshaw argues that the trial court erred by excluding three things from evidence: SH’s past sexual history, SH’s sexually transmitted disease (STD) test, and some statements BB allegedly made to Deanna Green. Crenshaw contends that these facts were admissible to show the victims’ potential motive and bias. The admission or exclusion of evidence lies within the sound discretion of the trial court; we only reverse a lower court’s ruling for manifest abuse of discretion. State v. Clark, 78 Wn. App. 471, 477, 898 P.2d 854 (1995).
A. Sexual History
Crenshaw’s friend, Avery Garner, testified that he had sex with SH the first time they met. Although he testified for the State, he had not told the State about this; he first mentioned it in court. SH denied ever having sex with Garner. The State moved in limine to prevent Crenshaw from asking questions about SH’s sexual history on cross-examination. The court granted the motion, ruling that the State had not opened the door with Garner’s surprise testimony.
A criminal defendant has the right to present a defense and to confront and cross-examine witnesses. U.S. Const. amend. VI; Wash. Const. art. I, § 22 (amend. 10). A defendant may cross-examine the State’s witnesses to show bias, motive, or lack of credibility, but he may not bring in irrelevant evidence. Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); ER 402, 607. Generally, the trial court has broad discretion to admit or exclude evidence. State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990).
A party may introduce inadmissible evidence if the opposing party does not object, but this then `open[s] the door’ to cross-examination. State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969). The scope of cross-examination is within the trial court’s discretion. State v. Young, 89 Wn.2d 613, 628, 574 P.2d 1171 (1978). Courts should decide whether to admit evidence under the `open door’ theory by balancing the proponent’s need to rebut the evidence with the risk of further prejudice from letting in more inadmissible evidence. ER 403; Karl B. Teglund, 5 Wn. Practice § 11.3 at 48 (1989).
Crenshaw had no need to rebut the evidence. Garner testified that SH had sex with him when they first met. This was favorable to Crenshaw; and questions to Garner about SH’s sexual history would not have rebutted the statement but would have gone further into an issue generally prohibited. RCW 9A.44.020(2). The trial court did not abuse its discretion by granting the motion in limine.
B. STD Test Results
The State objected to Crenshaw asking SH’s examining doctor about the results of SH’s STD test. Crenshaw contends that this evidence would attack SH’s credibility and would support his theory that SH fabricated her claim to cover up the fact that she had given her boyfriend a STD. The court ruled that SH’s STD test results were not relevant.
Evidence of the victim’s past sexual behavior is inadmissible to show credibility. RCW 9A.44.020(2). And the trial court has broad discretion to exclude evidence it deems irrelevant. In re Personal Restraint of Young, 122 Wn.2d 1, 53, 857 P.2d 989 (1993). SH reported the rape before this alleged motive to lie (her boyfriend contracting an STD) arose. The trial court did not abuse its discretion by finding this evidence irrelevant.
C. BB’s Statements
Crenshaw sought to introduce statements that BB allegedly made to Deanna Green to show BB’s motive and lack of credibility. In an offer of proof, Green said that BB approached her in a bar’s restroom and began talking about Crenshaw. When Green said Crenshaw was in jail `for some severe things,’ BB excitedly pointed to herself and said `Me. Me.’ CP at 1028. BB then told Green, `I got that nigger for life. That shit takes game.’ CP at 1028. Green took this to mean that BB lied to get Crenshaw arrested.
The trial court ruled the statement inadmissible because impeaching BB was a collateral issue; that is, since there were no charges against BB, the alleged statements were not relevant to a material issue in the case. A party cannot introduce extrinsic evidence to impeach a witness on a collateral issue. State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996). But when credibility is at issue, evidence showing bias or a motive to lie is not collateral. Lubers, 81 Wn. App. at 623. BB was the central witness to the charges that Crenshaw raped and kidnapped her. Thus, her credibility was critical to the State’s case.
The State contends that Green’s testimony about BB’s statement, `[t]hat shit takes game,’ was ambiguous. Resp. br. at 20. Although Green explained what she thought BB meant, Crenshaw did not offer to prove the common or accepted meaning of the statement. A court does not abuse its discretion by refusing to admit ambiguous, and therefore irrelevant, statements. ER 402. But BB’s next statement, `I got that nigger for life,’ shows bias more clearly, especially if spoken by a caucasian person[1] about an African-American.
We have recently held that excluding statements by an important State’s witness that show bias is reversible error. State v. Spencer, 111 Wn. App. 401, 45 P.3d 209 (2002). In Spencer, the impeaching witness would have testified that the State’s witness was angry at the defendant and afraid the police would take her children if she did not testify against him. Spencer, 111 Wn. App. at 406. Here, BB’s alleged statement tends to show bias. The jury could have found the bias sufficient to taint her credibility. And because her credibility was central to the State’s case, we are not satisfied beyond a reasonable doubt that a rational jury would have convicted Crenshaw if the court had admitted BB’s statements; the error is not harmless. See Spencer, 111 Wn. App. at 411. Accordingly, we reverse Crenshaw’s convictions as to BB and remand for a new trial.
III. Assistance of Counsel/Merger
Crenshaw claims his counsel was ineffective for not arguing that some of the charges merged. To demonstrate that counsel was ineffective, a defendant must show that counsel’s representation was deficient, in that it fell below an objective standard of reasonableness, and that the deficiency prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We presume that counsel was effective. McFarland, 127 Wn.2d at 335.
Merger arises when the jury convicts a defendant of multiple charges for which the legislature intended to impose only one punishment. State v. Sweet, 138 Wn.2d 466, 478, 980 P.2d 1223 (1999). Charges merge `where a crime can be elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code.’ State v. Eaton, 82 Wn. App. 723, 730, 919 P.2d 116 (1996), overruled on other grounds by State v. Frohs, 83 Wn. App. 803, 811 n. 2, 924 P.2d 384 (1996). Kidnapping merges with first degree rape when the kidnapping charge is the basis of the rape charge. In re the Personal Restraint of Fletcher, 113 Wn.2d 42, 51, 776 P.2d 114 (1989).
But when offenses have independent purposes or effects, each offense may be punished separately. State v. Vladovic, 99 Wn.2d 413, 421, 662 P.2d 853 (1983). In most first degree rape cases that are based on an accompanying kidnapping, the defendant kidnaps the victim in order to accomplish the rape. See, e.g., State v. Johnson, 92 Wn.2d 671, 672-73, 600 P.2d 1249 (1979) (defendant lured two girls into his home, restrained them, and raped them); State v. Hudlow, 99 Wn.2d 1, 3-4, 659 P.2d 514
(1983) (defendant took two hitchhikers to an isolated spot to rape them); State v. Regan, 28 Wn. App. 680, 682, 625 P.2d 741 (1981) (defendant drove victim to a secluded area and raped her). But here, the victims voluntarily went to the location of the eventual rapes. Crenshaw kidnapped them after he accomplished the rapes; he drove SH to her home so he could see where she lived, and he drove BB away so he could kill her. In contrast to the cases where the defendant kidnaps his victims to accomplish the rape, Crenshaw kidnapped his victims to ensure that he would not get caught. His desire to keep the victims from reporting the rapes is an independent purpose from the rapes themselves.
Nevertheless, crimes merge when a particular degree of crime is committed only if the defendant commits another criminal act. Vladovic, 99 Wn.2d at 420-21. Here, the court instructed the jury that it could only convict Crenshaw of first degree rape if it found that he kidnapped the victim. Based on these instructions, the kidnapping charges merged with the first degree rape charges.
Crenshaw also contends that the harassment charges merged with the rapes. This is incorrect. The court’s instructions on harassment did not mention the rapes or the kidnappings. The jury did not need to find that Crenshaw harassed the victims in order to convict him of first degree rape. And the harassment — threats to kill the victims — occurred not only during, but after the rapes. Crenshaw’s separate purpose was to frighten the victims into silence about the rapes. The harassment convictions did not merge with the rape convictions.
Counsel was ineffective for not arguing that the kidnapping charges merged with the rape charges. Had counsel moved to merge these charges, the trial court would have dismissed Counts V and IX. The court sentenced Crenshaw to 68 months on each kidnapping charge. Thus, counsel’s deficiency prejudiced Crenshaw. We remand for resentencing on the rape and harassment convictions as to SH.
IV. Offender Score/Same Criminal Conduct
The trial court sentenced all of the crimes, except the two harassment convictions, as separate offenses. Each offender score therefore applied to the sentence calculation for the other counts, and the sentences ran consecutively. Crenshaw argues that he committed only one `block’ of crimes, consisting of the same criminal conduct, as to each victim. App. br. at 42. Because we are reversing the convictions involving BB, we consider this issue only as it relates to the convictions involving SH.
Multiple crimes are the `same criminal conduct’ at sentencing if the crimes have `(1) been committed at the same time and place; (2) involved the same victim; and (3) involved the same objective criminal intent.’ State v. Tili, 139 Wn.2d 107, 123, 985 P.2d 365 (1999), review granted, 145 Wn.2d 1026 (2002); RCW 9.94A.400(1)(a). We review the trial court’s decision on same criminal conduct for abuse of discretion or misapplication of law.[2] Tili, 139 Wn.2d at 122; State v. Grantham, 84 Wn. App. 854, 857, 932 P.2d 657 (1997).
The jury determined that Crenshaw committed penile-vaginal rape and digital-vaginal rape against SH. The penile-vaginal rape occurred in the living room. When Crenshaw stopped, SH dressed and the two left the apartment. But then Crenshaw made SH come back inside and take a shower.
When she came out of the shower, he digitally penetrated her vagina.
These two rapes occurred at different times and different places in the house. Crenshaw had completed the first rape before undertaking the second. Crenshaw first raped SH to have sexual intercourse with her; the second rape was apparently to avoid detection.[3] Crenshaw had `the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act. He chose the latter, forming a new intent to commit the second act.’ Grantham, 84 Wn. App. at 859. The trial court did not abuse its discretion by finding that these two rapes were separate criminal acts.
V. Substitution of Counsel
During a court appearance to argue pretrial motions, Crenshaw’s counsel told the court that Crenshaw wanted new counsel. The court declined to address Crenshaw’s request for new counsel without a written motion, but it invited Crenshaw to note the issue for a hearing. Crenshaw did not do so.
In the middle of the trial, when the parties were in court to discuss proposed jury instructions, Crenshaw’s counsel again mentioned his client’s concern with his representation. Crenshaw wanted to address the court privately, but the court declined to `have any ex parte communication with anyone in this case.’ RP at 1000. After the State warned Crenshaw that it would use anything he said against him, the court invited Crenshaw to discuss the issue. Crenshaw said, `Never mind, Your Honor. Never mind.’ RP at 1001.
Crenshaw claims that the court abused its discretion because it did not let him address the issue on the record. A court abuses its discretion by refusing to consider facts and issues it must consider. Kucera v. Dep’t of Transp., 140 Wn.2d 200, 224, 995 P.2d 63 (2000). Crenshaw provided no reasons for wanting substitute counsel. An unsupported general claim that counsel is deficient, especially when brought close to or during trial, will not support a motion to substitute counsel. State v. Staten, 60 Wn. App. 163, 170, 802 P.2d 1384 (1991). And the court did not fail to exercise its discretion; it did not have a chance to do so. Both times Crenshaw raised this issue, the court told him how to pursue it. If Crenshaw objected to filing a written motion, he should have noted that instead of ignoring the requirement. If he felt he could not discuss the issue in the State’s presence, he should have at least identified the problem and why it would prejudice him to discuss it in open court. Instead, he declined the court’s offers to hear his concerns. Thus, he waived his right to raise this issue before this court. RAP 2.5(a).
VI. Lay Witness Opinion Testimony
The State asked the investigating officer about his ability to determine credibility and whether the officer found SH’s story and disposition `appropriate.’ RP at 437-39. The State concedes that it should have not elicited the officer’s testimony on SH’s credibility but contends the error in admitting it was harmless.
Opinion testimony as to the credibility of a witness is inadmissible because it impinges on the defendant’s constitutional right to have a jury make an independent determination of the facts. State v. Jones, 71 Wn. App. 798, 812, 863 P.2d 85 (1993). Since the error is of constitutional magnitude, it is harmless only if the untainted evidence is so overwhelming that it necessarily supports a guilty verdict. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985).
SH reported the rape, but she did not want the hospital to do a forensic exam. Her physical exam showed scrapes and bruises consistent with her story and showed a genital abrasion consistent with force beyond consensual sex. While the evidence could not conclusively establish that SH had been raped, the examining doctor said the overall physical evidence was consistent with her story.
SH’s mother corroborated her claims as well. She said that SH came home much later than usual that night; she told her mother immediately that she had been raped. She was upset and hysterical, but she did not want to report the assault because Crenshaw had threatened her and her family.
Later, SH pointed out Crenshaw as the man who raped her to officers patrolling a bar. She was very upset to see him. And while the officers were talking to him, Crenshaw tried to leave in his car.
The untainted evidence overwhelmingly supports a guilty verdict. Moreover, where the witness does not explicitly state his belief in the victim’s story, courts have found that the error was not of constitutional magnitude. Jones, 71 Wn. App. at 812-13 (citing State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989)). The officer did not expressly say that he believed SH and he admitted on cross examination that he had no way of knowing whether SH was telling the truth. The court’s error was harmless.
VII. Prosecutorial Misconduct
Crenshaw next argues that the prosecutor committed misconduct by arguing `sentencing consequences’ to the jury during closing arguments. App. br. at 28. The prosecutor said, `Defense Counsel just stood up here . . . and repeated the Defendant’s story, as if when a Defendant takes the stand in a case in which, as he said, he faces a significant prison term, that’s reason to doubt and you must honor that.’ RP at 1363. Because Crenshaw did not object to the statement, any misconduct would compel reversal only if it was so flagrant and ill-intentioned that no curative instruction could have overcome its prejudicial impact. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
The possibility that Crenshaw faced a significant prison term had already been brought out in trial — the interviewing officer said that when Crenshaw heard the charges against him, he said `he was going to jail and would be in prison for a long time.’ RP at 795. Crenshaw did not object. And the jury was likely aware that, given the serious and numerous charges against him, Crenshaw faced considerable prison time. The prosecutor did not commit misconduct `so flagrant’ that a curative instruction could not have cured it.
VIII. Jury Instruction
Crenshaw contends that the court should have given his proposed third degree rape instruction. He argues that the jury could have inferred that the victims willingly accompanied him but did not consent to intercourse. And if so, the jury could have convicted him of third degree rape only.
The trial court must instruct on a lesser included offense if (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence supports an inference that the defendant committed the lesser crime. State v. Berlin, 133 Wn.2d 541, 550, 947 P.2d 700 (1997). First degree rape is sexual intercourse by forcible compulsion involving a deadly weapon, kidnapping, serious physical injury, or felonious entering of a building or vehicle. RCW 9A.44.040. Third degree rape is sexual intercourse by forcible compulsion that is not first or second degree rape. RCW 9A.44.060. Each element of third degree rape is a necessary element of first degree rape. But the evidence does not support third degree rape.
The State theorized that Crenshaw kidnapped the victims and raped them; Crenshaw’s defense was consent. The defendant must present some evidence that affirmatively establishes his theory on the lesser included offense before the trial court is required to instruct on it. State v. Charles, 126 Wn.2d 353, 355, 894 P.2d 558 (1995). In Charles, the State’s theory supported second degree rape, and the defendant’s theory was consent. The trial court properly refused a third degree rape instruction because, `to find Charles guilty of third degree rape, the jury would have to disbelieve both Charles’ claim of consent and the victim’s testimony that the act was forcible.’ Charles, 126 Wn.2d at 356. Similarly, the jury here would have had to disbelieve both Crenshaw and the victims to convict Crenshaw of third degree rape. Refusing the third degree rape instruction was not error.
IX. Sufficiency of the Evidence
Crenshaw next argues that there was insufficient evidence on attempted first degree murder for the jury to consider the charge and to convict him. Evidence is sufficient to support a conviction if, taking the evidence in the light most favorable to the State, it allows any rational trier of fact to find the essential elements of the case beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). The trier of fact determines credibility. State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335 (1987). Circumstantial and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
A person commits attempted first degree murder if he takes a substantial step toward causing a person’s death with premeditated intent or extreme indifference to human life. RCW 9A.28.020; 9A.32.030.
Taking the facts most favorably to the State, Crenshaw raped BB, then put her, blindfolded, in her boyfriend’s car and began driving. Throughout the rape and while they were driving afterward, Crenshaw repeatedly told BB that he was going to kill her. BB knew she was with Crenshaw before he blindfolded her, and he did not give her to anyone else after he blindfolded her. She also recognized his voice. This evidence sufficiently supports attempted first degree murder beyond a reasonable doubt.
But Crenshaw argues that his own evidence contradicts BB’s testimony.
The jury, however, believed BB’s testimony rather than Crenshaw’s; it was entitled to make this credibility determination. Casbeer, 48 Wn. App. at 542. And when reviewing a sufficiency claim, we take the State’s evidence as true. Salinas, 119 Wn.2d at 201. This evidence was sufficient for a jury to convict Crenshaw.
X. Cumulative Error
Finally, Crenshaw contends that we should reverse his convictions, even if no single issue requires reversal, because the cumulative effect of all the errors deprived him of a fair trial. Although Crenshaw was not entitled to a `perfect trial,’ the cumulative effect of numerous errors can sometimes deprive a defendant of a fair trial. In re Personal Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835 (1994).
We have reversed Crenshaw’s convictions of the kidnapping, rape, attempted murder and harassment of BB. As to the convictions involving SH, the court erred only in allowing the officer to testify that he believed SH’s story and demeanor were `appropriate.’ This is not cumulative error.
In conclusion, we reverse Crenshaw’s convictions for rape, kidnapping, attempted murder, and harassment of BB, and remand for a new trial. We affirm his convictions for the rapes and harassment of SH; the conviction for kidnapping SH merges with the convictions for raping her, and we remand for resentencing.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: MORGAN, P.J., BRIDGEWATER, J.