This is an unpublished case discussed here because Mr. Krause got four rape charges reversed and remanded! Division One appears to be inviting further review by the Washington Supreme Court. The State always desires, and the criminal rules permit, trial of multiple, separate criminal offenses against a defendant in a single trial for “judicial economy.” But judicial economy cannot override undue prejudice to a defendant’s substantive rights. Division One alluded to State v. Bluford, 188 Wn. 2d 298, 311, 315-16 (2017), and State v. Slater, 197 Wn. 2d 660, 680 (220), where undue prejudice was present and reversal warranted when the State introduced “prejudicial” evidence of other acts that would have been inadmissible in severed trials.
Mr. Krause was charged with three counts of Rape in the Third Degree for allegedly having sexual intercourse with three different girls who went to the same high school and knew each other. He was also charged with Rape in the Second Degree for having sex with one of the girls who was allegedly so drunk she was incapable of giving consent.
Girl #1’s case was quite a bit different than numbers 2 and 3. #1 was forced into a deserted part of the high school after class. Krause forced digital and penile penetration, even after she repeatedly said no. There was forensic evidence left on a bloodied shirt. #1 immediately told her parents, police, and hospital staff about the assault.
#2 admitted there were times she engaged in consensual sex with Krause, although “it just didn’t feel right.” She ended the sexual relationship because he was resistant to wearing a condom. #2 later went for a drive with Krause, who kept “persisting” about kissing her. She told him to stop. She testified at trial that “playing in her mind” was her general awareness “of the allegations involving” #1. She convinced Krause to drive on from where they had stopped. He stated he had to drop by his mom’s house. #2 went inside the house, where she was vaginally and anally raped. Unlike #1, #2 did not tell her parents immediately about her rape. She testified her reason for delayed reporting was she “had seen how everyone had treated” #1.
#3 was at one time “best friends” with Krause, romantically involved, and dated “on and off” for two years, during which they had a consensual sexual relationship. On one occasion, they were engaging in consensual sex. Krause wanted to try anal sex. #3 said no. They continued to have sex, and Krause penetrated her anally, despite being told multiple times no and to stop. #3 learned later about the incident with #1, but Krause said what #1 alleged was not true, and gave different details about what he claimed occurred. #3 was best friends with #2, and they talked about their involvement with Krause. #3 had not gone to the police, but later decided to help #2 when #2 also made a complaint.
Three different complaining witnesses, with acts occurring in different times, places, and settings. The State never argued at trial that any of the acts of rape were admissible on any other count than the one to which each related, such as by the legal theory of “a common scheme or plan.” The acts did not have substantial similarities. The State presented this evidence without a theory of admissibility. There were, therefore, no limiting jury instructions guarding against cross-admissible evidence. There were, however, several unsuccessful defense attempts to sever.
The Division One majority may have tipped off its hope for further Supreme Court review by devoting a great deal of its time to rebutting assertions of the lengthy dissent. The majority devoted its time to the most recent severance cases, which held in favor of the defense (i.e. Bluford and Slater). The dissent devoted its time taking a look at older severance cases. Both the majority and dissent use this same statement: “… the Supreme Court has not spoken with one voice about the issue.”
Sure seems like the majority and dissent are inviting the State to appeal to obtain clarity on severance of counts involving separate victims. After all, Mr. Krause was found to have committed four separate acts of rape with 3 separate victims, yet received a blanket reversal and remand for new trial.