Jump To

Top Caption Lead Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 30, 2026 Get Citation Alerts Download PDF Add Note

State Of Washington, V. Sean Alan Kane

Court of Appeals of Washington

• Citations: None known
• Docket Number: 86684-2

• Precedential Status: Non-Precedential

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.9K)

• PDF

Lead Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 86684-2-I

Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
SEAN ALAN KANE,

Appellant.

BUI, J. — Sean Kane appeals his convictions of multiple offenses arising

from prohibited contact with his estranged wife, Aizhan Kane. 1 Before trial, the

court found Kane incompetent, and after his competency was restored, he

waived counsel and represented himself. On appeal, Kane argues the trial court

erred by not ordering a renewed competency evaluation based on his behavior at

trial and by denying his post-verdict motion for a retrospective hearing. Kane also

argues reversal is required because the trial court failed to adequately investigate

a juror’s concerns about the presiding juror and because insufficient evidence

supports his conviction of interfering with domestic violence (DV) reporting.

We agree insufficient evidence supports the interfering with DV reporting

conviction. Accordingly, we reverse that conviction and remand to the trial court

to vacate it. Otherwise, we affirm.

1
We refer to Aizhan by her first name for clarity. We mean no disrespect.
No. 86684-2-I/2

FACTS

On August 24, 2022, the King County Superior Court entered a one-year

DV protection order (DVPO) protecting Aizhan from Kane. Kane was not formally

served with the DVPO until November 8, 2022. Meanwhile, according to Aizhan’s

trial testimony, she was driving with her sister and children on October 7, 2022,

when she encountered Kane at an intersection in Bellevue. According to Aizhan,

Kane approached her car with what appeared to be a rock in his hand. Aizhan

testified she told Kane to go away and she had a protection order. Aizhan called

911, and officer Adam Berns, who responded, later testified that when he located

Kane, he informed him of the DVPO and that it was illegal for him to contact

Aizhan. Berns did not arrest Kane because he “had no reason to believe up to

that point that [Kane] had any knowledge of the [DVPO].” Aizhan testified she

took a photograph of Kane during this car incident.

Aizhan called 911 again on October 27, 2022, to report Kane had attacked

her in her apartment before fleeing on foot. Aizhan would later testify she was

home with her sister and parents when Kane knocked on the door, pushed his

way through when someone answered it, grabbed Aizhan’s hand, and dragged

her toward the bedroom. She testified her body collided with toys on the floor and

she eventually hit a door frame, causing injuries. She also testified her sister tried

to call 911, but Kane grabbed her sister’s wrist. Responding officers took photos

of Aizhan’s injuries, as did Dr. Adriana Rosales, who treated Aizhan at an urgent

care clinic later that day.

On November 18, 2022, the State charged Kane by information with one

2
No. 86684-2-I/3

count of burglary in the first degree – DV (Count 1), one count of DV felony

violation of a court order (Count 2), and one count of interfering with DV reporting

(Count 3) based on the October 27 incident. The State planned to use the

October 7 car incident to show Kane knew about the DVPO on October 27 even

though he had not yet been served. Later, the State added two counts of DV

misdemeanor violation of a court order (Counts 4 and 5) based on e-mails Kane

allegedly sent to Aizhan. It would amend the information multiple times to narrow

the date ranges for the conduct charged in those additional counts.

On January 10, 2023, Kane, through counsel, requested a competency

evaluation and release pending trial. The trial court denied release and ordered

an evaluation. It later found Kane incompetent, relying on a January 24, 2023,

report from Jolene Simpson, Ph.D., who opined that Kane’s “most impairing

issues in his presentation were his inability to communicate in a reasoned or

logical manner without digressing to grandiose, paranoid, and persecutory

themes.” Simpson also noted Kane’s “[t]angential and derailed thought

processes.” The trial court ordered 90 days of competency restoration, and on

June 6, it found Kane competent, relying on a May 30, 2023, report from Kayla

Carson, Psy.D.

On June 30, the trial court granted Kane’s motion to waive his right to

counsel and proceed pro se, and on July 25, 2023, the court called Kane’s case

for trial. Kane’s defense theory was that he was not the man Aizhan saw during

the October 7 car incident and that Aizhan fabricated the evidence against him to

gain an advantage in their pending marriage dissolution. He also posited that the

3
No. 86684-2-I/4

e-mails that were the basis for Counts 4 and 5 were not sent by him and could

have been generated by an artificial intelligence (AI) enabled “bot.”

During motions in limine, Kane informed the trial court he believed he may

have “gone on a date or hung out at [a] music festival with” one of the

prosecutors when he lived on Capitol Hill, and it was “really distracting.” The

prosecutor responded he “d[id] not believe [he knew] Mr. Kane,” had not gone on

a date with him, and “rarely f[ound him]self at music festivals.” He conceded it

was “possible that [he had] seen Mr. Kane in Capitol Hill” given that he also lived

there but “personally ha[d] no recollection of seeing Mr. Kane at any prior point

prior to [his] professional involvement” in Kane’s case. The trial court asked

Kane, “[D]oes that put your mind at ease,” and Kane responded, “Yes.”

Jury selection took place over Zoom. 2 Kane began by telling the panel it

was his “first time doing this” so his “mind’s wandered a little bit” and he was

“trying to maintain focus.” Kane then asked,

Does anybody in the jury have any experience with personal
hardship? I’m trying to do open-ended questions like the
prosecutor, but now it’s hurting my neck, so – oh, are people
comfortable with the fact that presumed innocent means presumed
innocent, not presumed guilty?

After a prospective juror responded affirmatively, Kane asked whether the panel

was “aware that the prosecution can file pretrial motions that can prevent you

from making logical arguments in your own defense,” and when a prospective

juror asked Kane to clarify, he began, “So basically what’s happened here . . . .”

The trial court interjected, muted the courtroom, and explained that Kane could

2
“Zoom” is a cloud-based videoconferencing software platform.

4
No. 86684-2-I/5

not ask about anything “particular to the facts of the case or the procedure that

has occurred thus far.” When the panel was back online, Kane explained, “I’ve

been redirected,” and asked, “Are you aware that when you don’t have money

you don’t have access to lawyers?” The State objected, the trial court sustained

the objection, and Kane asked, “Are you familiar with experiments such as the

Stanford Psychology Experiment where people, when given positions of power,

become gradually more and more cruel to the individuals they have power over?”

The State objected again. The trial court then muted the courtroom and

explained it was “inappropriate to make suggestions . . . that something nefarious

is happening” and directed him to ask “open-ended questions so that you can

determine whether these folks can be fair in your particular case.”

Thereafter, Kane asked the panel some questions related to his defense

theory. For example, he asked whether any prospective jurors had experienced

someone saying something about them that was not true, and whether any were

“familiar with divorce cases being confusing and challenging.” He also asked

whether anyone believed evidence could be misrepresented and whether they

believed protection orders “have to be served to be valid.” And, he asked, “When

we’re on a jury trying to decide over whether or not a crime was committed, do

people believe it has to fit exactly within the definition of the written law?”

During the State’s next round of questioning, Kane interjected, the court

muted the courtroom, and Kane asked, “Can we get a new prosecutor? I can’t

stand his voice, number one. Number two, I’m certain we met in Capitol Hill

before. He’s got a personal bias against me. We definitely met online. He’s got a

5
No. 86684-2-I/6

personal bias against me. He’s going to make my head blow up.” The trial court

confirmed Kane had taken some medication (aspirin), then admonished him not

to speak while the prosecutor asked questions, indicating, “You’ll have your

chance.” Kane responded, “All right,” and the prosecutor continued with his

questioning.

When it was Kane’s turn again, he asked one of the prospective jurors

whether a person’s employment history would be relevant to that person’s

credibility, and then whether the prospective juror had “ever experienced the

look-alike doppelganger thing where people come up to you and they say, where

have I seen you before, and you’ve never seen that person a day in your life?”

After receiving an affirmative response, Kane turned to another prospective juror

and asked whether their prior work experience would bias them. That prospective

juror responded no, and then Kane asked the panel, “[W]ould anybody be willing

to understand that sometimes you go to the police station and you ask them if

there are papers?” The State objected, and after muting the courtroom, the trial

court asked Kane what his full question was. Kane responded,

I’m trying to frame this so that it means that in fact, even though it
wasn’t me, that’s the thing is I have – oh, I played Michael’s game.
That’s what I’m saying. So it’s getting into the alternative hypothesis
theory and on alternative hypothesis number 4, which is true to a
matter of fact, you wouldn’t believe it. In Bellevue, I went down to
the police station and I asked them, do I have papers because I
hadn’t seen it since August 22nd. I went out the country, came back
and forth, had been (inaudible), was at the swim club, and then I
wanted to be clear and the police officers told me there weren’t any
papers. Could you believe that?

The trial court stated that Kane’s question “gets into the facts of the case” and

was “not an appropriate question for the jurors.” After Kane confirmed he had

6
No. 86684-2-I/7

additional questions that did not go to the facts of the case, the court unmuted

the courtroom, and Kane asked the panel,

Have people been following the news in recent artificial intelligence
technology, tech spot developments? Yeah. Did anybody see that
spooky article in San Francisco Tribune where the guy’s girlfriend, it
was a tech bot that was basically pretending that it was his
girlfriend who had passed away, and she was pretending like she
was speaking to him from beyond the grave? San Francisco
Tribune tech (inaudible). It’s wild. Yeah. All right. Yeah. Do people
think that Microsoft technology could have beat San Francisco and
that I could be behind the times and that this stuff could have been
going on in Bellevue for longer than I ever thought with electronics?
Bellevue’s spooky. Yeah. There’s a lot of coincidences that
doppelgangers and technology stuff, it freaks me out. All right,
that’s about it. We can talk about technology. I’d ask you guys to
look up the AI tech spot, the deep AI stuff from San Francisco and
the fact that my neighbor was director of encryption at Microsoft.

The State objected, and the court sustained the objection, reminding the jury it

was “not to do any research into the law or the facts of this case.” Kane then

indicated he did not have any more questions for the panel, and the court

released the panel for the day.

After a recess, the trial court indicated it was “going to raise some

concerns that [it] ha[d] about Mr. Kane.” It then engaged him in a colloquy to

“make a record with regard to [his] state of mind.” The trial court asked Kane if he

could tell it what the charges against him were, and Kane responded, “It has

gone from three to five charges because originally, they brought it with three

charges, meaning burglary with the addendum DV, which is quite – well, to say

that’s a charge, and simple DV burglary, interference with DV investigation,

violation of TPO.” Kane added, “Then the part where I’m trying not to digress into

legal logic here, they made two of the same charges, misdemeanor violation of a

7
No. 86684-2-I/8

TPO, which they’ve subsequently been debating about the date and the timing of

the violations of.” The court then asked Kane what the best and worst outcomes

in the case would be. Kane responded, “The best outcome is equally weighted,

mistrial, not guilty or case dismissed based on gross misappropriation of the

prosecution,” and, “The worst possible outcome is a guilty finding with a prison

sentence.” When asked to describe jury selection, Kane responded, “It’s to

determine a fair and equitable selection of your peers so that they may render a

verdict,” and when asked about the purpose of trial, Kane explained that it was

“to determine guilt or innocence of the accused” and “to assess whether or not

the defendant has broken the law.”

When asked about the prosecutor’s role, Kane responded, “The

prosecutor’s role is to represent the State while maintaining the ethics of the law.”

The court then asked Kane if the prosecutor was adversarial, and Kane

responded, “They have informed me that they’re adversarial to me, yes.” When

asked whether he understood what that meant, Kane responded, “I do,” and,

If I may, just given my education, the fact that my mother
was in fact a journalism major and just kind of delve into the ethos
of the words before saying that obviously, adversarial, in the
summation, the correct answer is going to be that they’re against
me.
But what I’m saying is that they really shouldn’t be against
me as an American. What they should be is for the law. And what
I’m concerned with, actually, is some pathos that could be against
me personally, based upon where I’ve lived or prior interactions or
preconceptions and biases. Because ideally as an American who
got A’s in government and wasn’t a regular gifted and talented,
meaning I had the test scores, I understand that the prosecutor is
supposed to represent the good of the public, the good of the
people, and maintain the integrity of the written law of the State.
And unfortunately, to some people in Capitol Hill, the federal
government. And I don’t know if my political views or my

8
No. 86684-2-I/9

interactions in Capitol Hill were in fact interacting with some of the
(inaudible) party may have in fact unintentionally biased another
member of the same neighborhood in Capitol Hill. And it’s become
quite confusing to me.

The court replied, “All right, so let’s talk a little bit about that confusion. We talked

the other day, you had mentioned that maybe you thought you knew [one of the

prosecutors], is that correct?” When Kane responded yes and the court reminded

him of the earlier colloquy during which Kane indicated that he was satisfied with

the prosecutor’s response, Kane said,

And sometimes I rush to make agreements too early in my
discussions. I have in fact served as an intern at US Congress.
Given my five-year surgical residency,[3] I’ve realized that
sometimes it’s better to avoid little quibbles in the interest of
maintaining a relationship.
However, as our relationship is progressing, I’m pretty sure
of what I saw, I’ve seen in the past and my interactions with him in
the past. Whether or not he doesn’t remember me or is
representing things differently or is playing a word game that I don’t
understand, I’m fairly confident that I’ve had an interaction with him
outside of the courtroom in the past.

The court expressed its “concern[ ] that [Kane was] very fixated on this issue

when [the prosecutor] has already indicated . . . that he’s not interacted with

[Kane] before,” to which Kane responded, “So now it’s one person’s word against

the other,” and the court replied, “It is.” Kane then stated, “Given the abundance

of prosecutors and the fact that I in fact do have an MD, I’m able to carry on,”

while pointing out that the prosecutor “could be in fact misrepresenting the truth

or he could have forgotten or he could have been under the influence of a

number of substances, being a resident of Capitol Hill, knowing how abundant

3
It is undisputed that Kane once practiced as a medical doctor and completed a
residency at George Washington University, specializing in otolaryngology.

9
No. 86684-2-I/10

the drug use is there.”

The trial court then asked Kane whether he believed he could represent

himself, and “pay attention and not be distracted by other things, including this

thing with [the prosecutor] and focus on your case?” Kane responded that he

could. The court asked if Kane believed he was “able to think clearly enough to

make decisions on [his] own behalf as [he] represent[ed him]self,” and Kane

responded,

Yes. What I am getting at goes back to basically my
daughter is in elementary school, and what I’m doing is I’m
establishing precedent with this argument. I’m not trying to mislead
you, meaning that at the elementary school, we are allowed to ask
for certain accommodations as long as they’re not distracting. What
I’m saying is, things that would help me to minimize any distractions
would be simply a cup of coffee and things like that. And being able
to communicate with you that yes, I am able to focus on my case,
but in order to help me perform at my highest potential, recognizing
that certain simple accommodations could help quite a bit.

The court noted it had questioned Kane because it “had some concerns

that [he] may be decompensating similar to some of the patterns that [he]

exhibited when [he was] initially at Western State Hospital.” Kane interjected,

And that’s something that I actually wanted to make a
fundamental American and human rights point on, in the fact that
decompensation, while may be debatable, ultimately what happens
is when I get put around prisoners and inmates, where I’m normally
a very organized person, I’m either going to be forced into solitary,
which is terrible for my mental health or for anybody’s mental
health, which basically equates to torture equivalent to (inaudible)
seriously. Or you put me in a tank with 15 other people who have
poor hygiene, who are drug addicts, who have a history of real
criminal acts, versus a 37-year-old father who worked in medicine
and excelled at all levels of the American education system, where
I have a blatant target on my back for being somebody who’s either
having money or somebody to be taken advantage of or somebody
just to pick on because they’re that bored.
And I represent a certain segment of the population that they

10
No. 86684-2-I/11

identified with somebody who carries out, you name it, but the white
male is a target. Okay? It’s that simple. And I’m a small, simple,
educated, actually liberal white male, but when I say that and
they’re like, oh, can you give me some soup? Oh, can you give me
some coffee? And here I am starving, eating terrible food in jail for
a crime that I believe I did not commit, for seven months in violation
of my rights to a speedy trial. So sometimes it’s more peaceful for
me to let my mind wander because something very bad has
happened here and I have the education to recognize it.

The trial court then stated although Kane was under “some stress” in the jail that

might be playing a role in what it was seeing, including “some periods of rapid

speech and some tangential thinking,” it “d[id] not think that there is reason to

believe that Mr. Kane is incompetent to stand trial.”

The jury was sworn on August 1, 2023, and trial took place over the next

two days. Aizhan and Dr. Rosales both testified, as did police officers who

responded to the October 7 and 27 incidents. Kane elected not to testify.

Additional facts about Kane’s behavior at trial are set forth in the analysis section

below.

The case was submitted to the jury on August 3, 2023. The next evening,

Juror 14 e-mailed the bailiff indicating that one of the other jurors misunderstood

something Juror 14 said and started shouting at her, and “[w]hen we got back,

the ‘lead’ juror basically said we weren’t allowed to speak on the topic from now

on.” Juror 14 asked, “Is this appropriate for the lead juror to tell everyone they

aren’t allowed to talk about things that they feel are relevant to the case, only to

avoid a topic that is difficult for some individuals to discuss?” The juror also

stated her back had been hurting and the stress of jury duty was taking a toll on

her.

11
No. 86684-2-I/12

When court was back in session, the trial court addressed Juror 14’s e-

mail and asked the parties for input about how to proceed. The State suggested

questioning Juror 14, while Kane asserted the trial court should declare a

mistrial. The court did not declare a mistrial; instead, it brought Juror 14 in for

questioning, and based on Juror 14’s responses, the State suggested

questioning all of the jurors, and Kane, who again insisted on a mistrial, said, “I’m

more than happy to ask every juror what they think.”

Upon further questioning, Juror 14 confirmed she was mentally or

emotionally unable to continue serving for reasons unrelated to a disagreement

about the evaluation of the evidence. The court indicated it planned to release

Juror 14 on this basis. When the State requested clarification about whether the

court intended to question the presiding juror, the trial court responded it would

decide how to proceed after a lunch break. The court then asked, “So with that, is

there anything else to address on the record?” The State responded, “Not from

the State, Your Honor,” and Kane did not weigh in. The trial court dismissed

Juror 14.

When court reconvened, the trial court asked, “Anything to address before

we bring in the jurors?” Kane again did not weigh in. Meanwhile, the State asked

whether the court would inquire of the presiding juror. The court answered no

and that it would instead instruct the reconstituted jury to disregard all previous

deliberations and begin anew. The court also stated it would—and it later did—

reinstruct the jury with Instruction No. 26 regarding jury deliberations. The jury

found Kane guilty as charged on all counts.

12
No. 86684-2-I/13

After the verdict but before sentencing, Kane requested and was

appointed counsel, who moved for another competency evaluation. The trial

court granted the motion, and on November 16, 2023, it found Kane incompetent

and ordered 90 days of restoration. On March 22, 2024, the court found Kane

competent.

On May 7, 2024, Kane, still represented by counsel, filed a presentence

report. Kane asserted therein he could not be sentenced because he was not

competent at trial, and he “demand[ed] a hearing to determine whether he was

competent during his trial.” In support, counsel submitted three previously

undisclosed jail kites4 Kane sent in June and July 2023 as evidence of Kane’s

alleged incompetence at trial. 5

The State opposed the request for a retrospective competency hearing,

arguing that it should be evaluated as a motion for a new trial. It asserted Kane’s

motion was untimely under CrR 7.5(b), which requires a motion for a new trial to

be served and filed within 10 days after the verdict, and that in any case, Kane

had not demonstrated a basis for relief under CrR 7.5(a). At Kane’s subsequent

sentencing hearing, the court began by hearing defense counsel’s argument on

Kane’s request, and counsel stated it was “appropriate” to frame Kane’s motion

as a motion for a new trial under CrR 7.5. Counsel then asserted it was not

4
“Kites” are written jail communications from incarcerated people to jail or
medical staff or to their lawyers. State v. Myers, 27 Wn. App. 2d 798, 806 n.3, 533 P.3d
451 (2023).
5
In the jail kites, Kane stated among other things that he needed “to talk to the
head doctor,” jail was making him “crazy” and exacerbating his posttraumatic stress
disorder, and he had just watched an “African warrior woman movie” that reminded him
of “common Swahili beliefs about daughters, witchcraft, [and] thought crime” and he
needed “to talk about this, maybe with a Swahili expert.” (Some capitalization omitted.)

13
No. 86684-2-I/14

untimely because Kane “was a pro se incompetent defendant, and we were not

appointed within that 10 day time period.”

The trial court denied Kane’s request for a competency evaluation both as

untimely and on the merits. It imposed concurrent sentences of 26 and 13

months on Counts 1 and 2, respectively, and 364-day sentences for each of

Counts 3, 4, and 5, to run concurrently with each other and with the sentences on

Counts 1 and 2.

Kane timely appeals.

ANALYSIS

Competency Evaluation

Kane contends the trial court erred by not ordering a competency

evaluation when it determined that there was reason to engage him in a colloquy

during jury selection or at any point thereafter during the trial. We disagree.

1. Standard of Review & Legal Standards

“The due process clause of the Fourteenth Amendment to the United

States Constitution guarantees an accused the fundamental right not to stand

trial if he is legally incompetent.” State v. McCarthy (McCarthy II), 193 Wn.2d

792, 800, 446 P.3d 167 (2019). “This principle is codified under [RCW

10.77.600 6], which states, ‘No incompetent person shall be tried, convicted, or

sentenced for the commission of an offense so long as such incapacity

continues.’ ” McCarthy II, 193 Wn.2d at 800. “Incompetency” means “a person

lacks the capacity to understand the nature of the proceedings against him or her

6
RCW 10.77.600 was formerly codified at RCW 10.77.050.

14
No. 86684-2-I/15

or to assist in his or her own defense as a result of mental disease or defect.”

RCW 10.77.010(19). This court reviews a trial court’s decision whether to order a

competency hearing for an abuse of discretion. McCarthy II, 193 Wn.2d at 803.

“Applying an abuse of discretion standard, a reviewing court will find error only

when the trial court’s decision is manifestly unreasonable or is based on

untenable grounds.” McCarthy II, 193 Wn.2d at 803.

“ ‘Chapter 10.77 RCW governs the procedures and standards trial courts

use to [assess] the competency of defendants to stand trial.’ ” McCarthy II, 193

Wn.2d at 800 7 (quoting State v. Coley, 180 Wn.2d 543, 551, 326 P.3d 702

(2014)). Under former RCW 10.77.060(1)(b)(i) (2023), now codified at RCW

10.77.400(1)(b)(i),

[w]henever there is a doubt as to competency, the court on its own
motion or on the motion of any party shall first review the
allegations of incompetency. The court shall make a determination
of whether sufficient facts have been provided to from a genuine
doubt as to competency based on information provided by counsel,
judicial colloquy, or direct observation of the defendant. If a genuine
doubt as to competency exists, the court shall [order a competency
evaluation].[8]

A ”genuine doubt as to competency” means “that there is reasonable cause to

believe, based upon actual interactions with or observations of the defendant or

information provided by counsel, that a defendant is incompetent to stand trial.”

RCW 10.77.010(15).

The legislature added the “genuine doubt as to competency” language to

former RCW 10.77.060 effective July 23, 2023, just four days before the trial

7
Alteration in original.
8
Emphasis added.

15
No. 86684-2-I/16

court here raised concerns about Kane and “ma[d]e a record with regard to [his]

state of mind.” See LAWS OF 2023, ch. 453, § 3. Before July 23, 2023, the statute

provided, “Whenever . . . there is reason to doubt [a defendant’s] competency,

the court . . . shall [order a competency evaluation].” 9 Former RCW

10.77.060(1)(a) (2022). Because the parties did not address this change in their

initial briefing and relied solely on cases decided under the “reason to doubt”

standard, we requested supplemental briefing. Therein, Kane argued the 2023

amendment “merely clarified the already existing process for determining when

to order a competency evaluation” and that the fundamental inquiry “remains the

same.” The State argued the amendment “changed the competency

procedure . . . by limiting [competency evaluations] to defendants who genuinely

seem incompetent . . . , as opposed to those who simply might be.”

Because the 2023 amendment was part of legislation expressly intended

“to reduce the flow of competency referrals,” 10 LAWS OF 2023, ch. 453, § 1, we

agree with the State that the “genuine doubt” standard is more stringent than the

former “reason to doubt” standard. We do not decide today how much more

stringent, though, because as further discussed below, the trial court did not

abuse its discretion even under the former standard.

1. Discussion – Kane does not show the trial court erred by not ordering a competency evaluation

Where, as here, “there has been a determination that a defendant is

competent to stand trial, a trial court need not revisit the issue of competency

9
Emphasis added.
10
Emphasis added.

16
No. 86684-2-I/17

unless some objective incident or event occurs where the court is provided with

new information that indicates a significant change in the defendant’s mental

condition.” 11 McCarthy II, 193 Wn.2d at 803. Here, the trial court had a tenable

basis to conclude there was no significant change in Kane’s mental condition

creating a reason to doubt Kane’s competency.

The McCarthy case is instructive. There, the State charged McCarthy with

burglary in the first degree after he entered Kayla Gonzales’s home based on

delusional beliefs that Gonzales knew McCarthy’s ex-wife and that his ex-wife

was inside Gonzales’s home. State v. McCarthy (McCarthy I), 6 Wn. App. 2d 94,

98-99, 429 P.3d 1086 (2018), rev’d, 193 Wn.2d 792, 446 P.3d 167 (2019).

McCarthy had a long history of mental health issues, including a diagnosis of

bipolar disorder with paranoid features. McCarthy I, 6 Wn. App. 2d at 98. In

December 2014, the superior court found McCarthy incompetent based on an

evaluation by Dr. Daniel Lord-Flynn. McCarthy I, 6 Wn. App. 2d at 103-04. In his

interactions with Lord-Flynn, McCarthy had expressed his beliefs that Gonzales,

his ex-wife, and law enforcement were involved in a baroque conspiracy against

him. McCarthy I, 6 Wn. App. 2d at 102. Lord-Flynn opined that although

McCarthy understood the nature of the proceedings against him, he could not

make rational decisions about the prosecution. McCarthy I, 6 Wn. App. 2d at 103.

While McCarthy was committed for competency restoration, the court

appointed Dr. Debra Brown to perform another evaluation, and in March 2015,

Lord-Flynn performed another interview of McCarthy with Brown present.

11
Footnote omitted.

17
No. 86684-2-I/18

McCarthy I, 6 Wn. App. 2d at 105. McCarthy complained about his attorney and

claimed to have hired a new one—whose name he would not disclose—who

opined that McCarthy’s attorney was mentally ill. McCarthy I, 6 Wn. App. 2d at

1. After the interview, Lord-Flynn opined McCarthy was competent to stand

trial because he could cooperate with his purported new lawyer. McCarthy I, 6

Wn. App. 2d at 105. Brown concluded, to the contrary, that McCarthy lacked the

present ability to rationally assist in his defense. McCarthy I, 6 Wn. App. 2d at

105-06. She noted McCarthy had changed little since Lord-Flynn’s first

evaluation and had “continued to demonstrate symptoms of grandiosity, distrust,

and paranoia” and to “falsely blame his attorney for his misfortunes and to

wrongly accuse her of working in favor of the prosecution.” McCarthy I, 6 Wn.

App. 2d at 106. The superior court found McCarthy incompetent and ordered

another 90-day restoration. McCarthy I, 6 Wn. App. 2d at 108.

In October 2015, Lord-Flynn and Brown interviewed McCarthy again, and

they again disagreed about McCarthy’s ability to assist his counsel. McCarthy I, 6

Wn. App. 2d at 109. McCarthy demanded a jury trial on his competency.

McCarthy I, 6 Wn. App. 2d at 110. In January 2016, a jury found McCarthy

competent to stand trial, and the superior court appointed him new counsel.

McCarthy I, 6 Wn. App. 2d at 115. It later granted McCarthy’s motion to proceed

pro se. McCarthy I, 6 Wn. App. 2d at 116. The State subsequently raised

concerns about McCarthy having delusions again, citing pleadings in which

McCarthy said his ex-wife worked in the jail mailroom and intercepted his mail,

and county officials had placed a “human plant” in his jail cell to provide him with

18
No. 86684-2-I/19

narcotics. McCarthy I, 6 Wn. App. 2d at 116-17. The court did not order a

competency evaluation at that time but indicated it would monitor things.

McCarthy I, 6 Wn. App. 2d at 118.

Thereafter, McCarthy engaged in unusual behavior, including filing a

motion claiming that jail officers had denied him his medications and involuntarily

intoxicated him and requesting an injunction requiring them to take urine

samples; submitting medical records to the court mentioning a recent week-long

depression during which he could not function and slid between bipolar opposites

with no stability; accusing jailers of seeking to physically harm him once he

became self-represented; filing multiple inmate grievances repeating his claims

of toxic fumes at the jail; and filing a petition for a writ of habeas corpus accusing

law enforcement of stalking him and conspiring with his family to create a crime

he never committed. McCarthy I, 6 Wn. App. 2d at 119-21. At a later hearing,

McCarthy additionally expressed concern that Gonzales—who had never met

McCarthy’s ex-wife—was romantically involved with her and conspired with her

to isolate McCarthy in jail. McCarthy I, 6 Wn. App. 2d at 126. Neither the parties

nor the court ever re-raised the issue of a competency evaluation; however, the

court, after expressing concerns that “there’s a mental health issue here,” re-

appointed counsel. McCarthy I, 6 Wn. App. 2d at 128-29.

A jury found McCarthy guilty as charged, and on appeal, McCarthy argued

that at some point after the jury finding of competency, the superior court should

have had reason to doubt McCarthy’s competency and directed another

evaluation. McCarthy I, 6 Wn. App. 2d at 130-31. Division Three agreed based

19
No. 86684-2-I/20

on McCarthy’s behavior after the competency determination, which showed

McCarthy was suffering from delusions similar to the ones he maintained at the

time when he was incompetent. McCarthy I, 6 Wn. App. 2d at 131, 137-38.

The State appealed, arguing that Division Three had improperly engaged

in an independent review of the record. McCarthy II, 193 Wn.2d at 795, 802. Our

Supreme Court reversed Division Three. McCarthy II, 193 Wn. 2d at 795. In

doing so, it observed that the “reason to doubt” standard “is ‘not definitive, but

vests a large measure of discretion in the trial [court].’ ” McCarthy II, 193 Wn. 2d

at 803 -04 (quoting City of Seattle v. Gordon, 39 Wn. App. 437, 441, 693 P.2d

741 (1985)). It distinguished McCarthy’s case from State v. Marshall, 144 Wn.2d

266, 27 P.3d 192 (2001) (abrogated on other grounds by State v. Sisouvanh, 175

Wn.2d 607, 290 P.3d 942 (2012)), and State v. Fedoruk, 5 Wn. App. 2d 317, 426

P.3d 757 (2018), where the appellate courts held that the trial court erred by not

ordering a competency evaluation. McCarthy II, 193 Wn.2d at 807. In Marshall,

unlike in McCarthy’s case, there was evidence from multiple experts that the

defendant was not competent when he entered his plea, including testimony that

the defendant suffered from a high level of brain atrophy and did not understand

he could go to prison if he pleaded guilty. 144 Wn.2d at 271, 273-74. Also, the

defendant pleaded guilty to premeditated murder despite stating he did not intend

to kill the victim. Marshall, 144 Wn.2d at 272. In Fedoruk, the defendant had a

long history of psychosis and a known history of rapid decompensation. 5 Wn.

App. 2d at 319. Yet the trial court did not order a competency evaluation despite

witnessing extreme behavior from the defendant, including screaming in an

20
No. 86684-2-I/21

unintelligible language, being unable to remain composed to the point he had to

be physically restrained, interrupting witnesses, and collapsing on the floor.

Fedoruk, 5 Wn. App. 2d at 326, 330. Moreover, a psychologist who evaluated the

defendant within a week after trial concluded that he was in an acute psychotic

state and was incompetent. Fedoruk, 5 Wn. App. 2d at 334.

Instead, the Supreme Court determined McCarthy’s case was closer to

State v. Lord, 117 Wn.2d 829, 822 P.2d 177 (1991) (abrogated on other grounds

by State v. Schierman¸ 192 Wn.2d 577, 438 P.3d 1063 (2018)). McCarthy II, 193

Wn.2d at 807. In Lord, defense counsel moved for a competency hearing based

on delusional statements his client made to jail staff, his request that counsel

withdraw—which counsel characterized as irrational—and his insistence that his

family not testify on his behalf at sentencing. 117 Wn.2d at 900. Jail staff testified

that during transport from the jail to court, the defendant ranted and raved, and

said “ ‘he had a conversation with the Lord and the devil and the devil asked him

to drink a cup of his own blood to prove his innocence.’ ” Lord, 117 Wn.2d at 901.

The trial court denied the motion, explaining that defense counsel made no

assertion the defendant “was unable to recall or relate facts sufficient for defense

counsel to proceed.” Lord, 117 Wn.2d at 902.

The supreme court upheld this decision, Lord, 117 Wn.2d at 903, and in

McCarthy, it characterized its holding in Lord as follows: “simply having

delusions, without more, was not a sufficient showing that there was reason to

doubt the defendant’s competency.” McCarthy II, 193 Wn.2d at 807. The

McCarthy court went on to explain, “A defendant can assist in his own defense

21
No. 86684-2-I/22

when he ‘possess[es] an adequate recall of the factual events involved in the

charge against him, [is] able to communicate those recollections to his attorney,

and ha[s] both an intellectual and emotional appreciation of the ramifications and

consequences of the crime charged.” McCarthy II, 193 Wn.2d at 806 (quoting 12

ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND

PROCEDURE § 902, at 171 (3d ed. 2004)). It explained that the trial court’s

decision not to sua sponte order another competency evaluation for McCarthy

was reasonable because “McCarthy’s appellate counsel cannot identify any

event, other than McCarthy’s continuing delusions, to support the conclusion that

McCarthy was incompetent to stand trial,” and “counsel provides no evidence

that any delusions affected McCarthy’s ability to recall facts and communicate

with his attorney during the trial.” McCarthy II, 193 Wn.2d at 807. The court also

stated that “if the issue of competency is ‘fairly debatable,’ failure to order a

subsequent evaluation does not violate [former] RCW 10.77.060, and the trial

court did not abuse its discretion.” McCarthy II, 193 Wn.2d at 803 12 (quoting

Sisouvanh, 175 Wn.2d at 623).

Kane’s case is a close one, but as in McCarthy, the issue of Kane’s

competency at trial was at most fairly debatable. To be sure, Kane exhibited the

tangential thinking and digression into grandiose, paranoid, or persecutory

themes that Simpson noted in her January 2023 report. For example, in a pretrial

motion to exclude photographs of Aizhan’s injuries, Kane wrote he “d[idn’t]

understand why she submitted a photo of her birthmark and possibly her flank,”

12
Internal quotation marks omitted.

22
No. 86684-2-I/23

noting that Aizhan “has a history of interesting seduction techniques.” When it

was revealed that certain electronic discovery materials had not been transmitted

to Kane in the jail and the State argued that this failure was inadvertent and non-

prejudicial, Kane accused the State of playing mind games and putting him in a

position where he had to “either sound like [he was] being abrasive by arguing for

the rule of law to apply” or “ignore everything” and “entrust[ ] some magical will of

God or Microsoft.”

During jury selection, Kane’s questions were sometimes preceded by

tangential monologues. In one instance, he asked the panel about George

Orwell’s book Animal Farm, and posed apparently semi-autobiographical

hypotheticals about (1) “a woman born in a far-away land” and the “man who

loved her” and wanted to “preserve her dignity against the exploitive nature of

Microsoft, while remaining within the bounds of the laws while highlighting the

flaws in the Seattle criminal justice system” and (2) “a man who was trained in

medicine and surgery” who moved to Washington, whereupon “the locals began

to insist, we don’t know your schools, we don’t know who you are.” In another

instance, Kane previewed a question about the definition of “liberty” with an

anecdote about Robert Howard Taft and his son, Robert A. Taft, who Kane

explained “wrote, When I say liberty, I mean liberty of the individual to think his

own thoughts and live his own life as he deserves to think and live.” Later in the

same exchange, Kane asked if anyone “had a loved one die of cancer,”

promising that “[i]t all ties together in the end” before the trial court redirected

him. He also asked if anyone thought “the Bill and Melinda Gates Foundation

23
No. 86684-2-I/24

could push for more software analysis of the genetic causes of cancer and

antidotes that could be applied or repairs to specific genes in living human beings

with the appropriate amount of funding.”

Throughout trial, Kane expressed considerable frustration at being

incarcerated and the lack of resources, such as word processing software,

PowerPoint, and Westlaw, available to him. He indicated that being incarcerated

was “torture” and that he was being targeted by other individuals in the jail for

being an educated white male. And as previously discussed, Kane insisted he

knew one of the prosecutors even though that prosecutor could not recall having

ever met Kane; Kane later said he thought he went to grade school with the other

prosecutor, which the prosecutor denied.

On multiple occasions during trial, Kane interjected with non sequiturs. For

example, while arguing about the State’s proposal to redact certain information

from Aizhan’s medical records, Kane said, “I understand that it’s most likely that

we do not want to provoke my wife’s – do I sound Irish yet? Because I think that’s

what she wants.” Later, Kane “point[ed] out that gentleman’s also wearing a blue

shirt, and if he left race behind we’d look almost exactly the same if we shaved

our heads.” Kane also queried, out of the blue, whether “they’re playing word

games with Molly Moon, referring to the full moon parties in Thailand where they

used to take Molly.”

Importantly, however, according to Simpson’s evaluation, “the most

impairing issues in [Kane’s] presentation were his inability to communicate in a

reasoned or logical manner without digressing to grandiose, paranoid, and

24
No. 86684-2-I/25

persecutory themes.” 13 She also noted that Kane’s “difficulty being interrupted or

redirected” would “interfere with his ability to engage in productive conversation

with his attorney, testify relevantly in court, benefit from explanations, or

otherwise assist in developing his defense,” and Kane’s tangential thought

processes would increase the likelihood Kane “would have difficulty attending to

and following court proceedings.” That is, Simpson did not deem Kane

incompetent merely because of his symptoms but rather—consistent with

McCarthy—because of the effect Kane’s symptoms had on his ability to

communicate, follow along at trial, and develop his defense. See McCarthy II,

193 Wn.2d at 807 (trial court’s failure to sua sponte order a competency

evaluation was reasonable where there was no evidence McCarthy’s symptoms

“affected McCarthy’s ability to recall facts and communicate with his attorney” 14).

Similarly, in her May 2023 report opining Kane was competent, Carson stated

Kane “demonstrated that he is currently capable of engaging in rational, relevant

consultation/ discussion related to his legal case without significant symptom

interference.”15 Like Simpson, Carson’s focus was not on Kane’s symptoms

alone but, rather, on whether those symptoms interfered with his ability to

communicate and develop his defense.

To those ends, although Kane struggled as any incarcerated pro se

defendant would, he was not unable to communicate or develop his defense. To

the contrary, Kane’s defense theory was both clear and viable: Aizhan was lying;

13
Emphasis added.
14
Emphasis added.
15
Emphasis added.

25
No. 86684-2-I/26

and the State did not satisfy its burden to show Kane was the person Aizhan

encountered during the October 7 car incident, that he was at Aizhan’s house on

October 27, or that he sent the e-mails that were the basis for Counts 4 and 5.

Had Kane been represented at trial, counsel might have made different decisions

about how to present these theories to the jury. Importantly, though, Kane waived

his right to counsel, the validity of that waiver is not at issue, and Kane had the

right to represent himself and make his own strategic decisions. The fact that

counsel might have made different decisions under the circumstances is not

sufficient to call Kane’s competency into question, nor is the fact that Kane was

unfamiliar with trial practice and the rules of evidence and made decisions that

drew multiple objections. Cf. State v. Vermillion, 112 Wn. App. 844, 850-51, 51

P.3d 188 (2002) (right of self-representation “is afforded a defendant despite the

fact that exercising the right will almost surely result in detriment to both the

defendant and the administration of justice,” and even if the defendant does not

“demonstrate technical knowledge of the law and the rules of evidence”); State v.

DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991) (“When a criminal defendant

chooses to represent himself and waive the assistance of counsel, the defendant

is not entitled to special consideration and the inadequacy of the defense cannot

provide a basis for a new trial.”).

Furthermore, despite his unusual behavior and manner of presentation,

Kane was clearly able to attend to and follow the court proceedings and develop

his defense theory. For example, Kane ably argued he should be able to call

witnesses to impugn Aizhan’s character—an issue on which the trial court

26
No. 86684-2-I/27

reserved. Similarly, Kane ably—though unsuccessfully—argued he should be

able to testify about his own good character, including his educational and

employment history. Although Kane had a rocky start in jury selection and asked

several questions having to do with the facts of the case, once redirected, he

pivoted and posed questions relevant to his defense. While this included some

meandering hypotheticals, the “gist” of those hypotheticals—that there may be

multiple explanations for an event—was clear. Moreover, and in stark contrast to

Simpson’s notes about her interview with Kane, which revealed that Kane did not

understand the allegations against him or the possible outcomes and

consequences thereof, 16 when the trial court questioned him, Kane articulated

the charges against him—including the fact that the State had added two counts

“which they’ve subsequently been debating about the date and the timing of”—as

16
For example, according to Simpson’s report, when Simpson asked Kane about
the current charges, he first responded with “I’m not exactly sure.” After consulting with
his counsel, Kane “stated that he ‘saw a piece of paper that said burglary, but the police
told me something different.’ ” When asked if he recalled any other charges, Kane said,
“ ‘I stopped paying attention because they were all made up.’ ” When Simpson asked
Kane what was meant by burglary in the first degree, Kane “said, ‘that means, accused,
not that you’ve done anything. It means in some states you get a grand jury . . . in some
states you get raped.’ ”
Also, according to Simpson’s report, when she asked Kane about potential
sentences, “Kane stated ‘I could lose my medical license and everything I worked for,
probably throw me in jail, throw me into poverty and thus damning my daughters as
well.’ ” When asked about probation, “Kane stated it was, ‘probably something else, go
to the residency program director and say something happened because they don’t want
to be sued for doing something wrong.’ ” Even after being provided with education about
the probation process and asked to summarize what he had been told, Kane “stated, ‘I’m
going to do telehealth, I’m leaving the state of Washington!’ ”
With regard to pleas, “Kane named, ‘not guilty,’ ” and when asked about other
pleas, he responded, “ ‘That should be the only option. There are some people who may
be guilty, in other places you can plead the fifth.’ ” When Kane was asked what would
happen next after a not guilty plea, he responded, “ ‘Then the case would be
dismissed.’ ” When Simpson replied, “Automatically?” Kane responded, “ ‘It should,
someone without evidence and 37 years old, with two kids, taken care of massive
section of society, have a medical degree . . . .”

27
No. 86684-2-I/28

well as the possible outcomes and their consequences, and the purpose of trial.

During his opening statement, Kane made some obscure references, but

his clear point—consistent with his theory he was not the man Aizhan saw on

October 7—was that sometimes remarkable coincidences happen. Kane then

followed up with sensible remarks about how the State could not prove he was at

Aizhan’s apartment, that the photos of Aizhan’s injuries were actually abrasions,

or that the e-mails that were the basis of Counts 4 and 5 were actually sent by

“the Sean Kane standing before you.” Later, while cross-examining Aizhan, Kane

posed questions clearly suggesting she or someone she knew might have

changed the date, time, or location of the photo of Kane that Aizhan claimed she

took during the October 7 car incident. He also called into question whether the

photos of Aizhan’s injuries actually depicted shadows, bra marks, varicose veins,

or a rash, rather than abrasions. While cross-examining Dr. Rosales, Kane

questioned her about her credentials and the thoroughness of her notes and

examination; he also got her to confirm she did not have direct evidence it was

Kane who caused Aizhan’s injuries and that her notes merely documented what

Aizhan told her.

During closing argument, Kane started out with another obscure reference

and argued he was “denied access to the internet or proper legal defenses.” But

after the State objected and the court redirected him, he pivoted to pointing out

weaknesses in the State’s case. For example, Kane argued the photos of

Aizhan’s alleged injuries did not depict bruises, that Aizhan sounded “remarkably

calm” in the 911 call that was played for the jury, that Aizhan had the technical

28
No. 86684-2-I/29

ability to edit photos, that there was “no video, . . . no fingerprints, . . . no

unbiased witnesses,” that Aizhan had a motive because Kane and Aizhan had a

dissolution case pending, there was no established chain of custody for the

photographs, and there was no evidence linking the e-mail addresses to him.

And when discussing jury instructions, Kane astutely asked why there was an

instruction on assault when “[t]here’s no assault charges,” and the court

explained that it was a predicate for the burglary charge.

In summary, although Kane at times digressed into tangents and visited

the themes noted in Simpson’s evaluation, the trial court had a tenable basis to

conclude that Kane’s occasional digressions did not affect his ability to recall

facts or develop his defense. See McCarthy II, 193 Wn.2d at 807 (mere fact that

McCarthy continued to experience delusions was insufficient to show trial court

abused its discretion by not ordering a competency evaluation). Indeed, even the

attorney who successfully obtained Kane’s posttrial competency evaluation

observed that Kane “was clearly competent during the jury trial” and “represented

himself adequately,” contrasting that with his more recent observations that Kane

exhibited “persistent delusionary thinking, perseveration on tangential issues,

and an inability to focus on the issues.”17 Kane fails to show the trial court

abused its discretion by not ordering a competency evaluation during trial after a

jury had found Kane competent.

Post-verdict Motion for Competency Evaluation

Kane next argues the trial court erred by denying his post-verdict motion

17
Emphasis added.

29
No. 86684-2-I/30

for a retrospective evaluation to determine if he was incompetent at trial. We

disagree.

Kane did not specify the basis for his request for a retrospective hearing,

which he made within his presentence report. In its response, the State analyzed

Kane’s request as a CrR 7.5 motion for a new trial. At oral argument before the

trial court, Kane’s counsel stated,

I . . . had a chance to review the State’s response framing the issue
as a motion for a new trial under Court Rule 7.5, which I believe is
appropriate. The defense motion is a competency hearing for the
purposes of assessing Dr. Kane’s competency at trial and if he was
not competent to request a new trial.

Accordingly, while Kane asserts the trial court “was wrong to view this motion

through the CrR 7.5 lens,” he fails to show the trial court erred by doing so when

that was the framework the parties agreed upon.

Under CrR 7.5(b), a motion for new trial must generally be served and

filed within 10 days after the verdict, though “[t]he court . . . may in its discretion

extend the time.” The jury returned its verdict on August 9, 2023, and Kane filed

his presentence report, including his motion, on May 7, 2024. This was well past

the 10-day deadline, even considering the intervening period when Kane was

incompetent. Accordingly, the trial court did not err by denying Kane’s request as

untimely.

Kane disagrees and points out that below, defense counsel “pointed out

the issue is due process related and that appellate cases have allowed [sic] to

raise the same issue on appeal without concern for timeliness.” Those cases,

which Kane again cites on appeal, were State v. Wright, 19 Wn. App. 381, 575

30
No. 86684-2-I/ 31

P.2d 740 (1978), and State v. P.E.T., 174 Wn. App. 590, 300 P.3d 456 (2013).

But Wright involved a motion for postconviction relief under former CrR 7.7,

which was “superseded by the rules pertaining to personal restraint petitions,” 19

Wn. App. at 383 n.1; and in P.E.T., the defendant challenged the trial court’s

determination, following an actual competency hearing, that he was competent.

174 Wn. App. at 594-95. Neither case has any bearing on whether Kane’s

request for a retrospective hearing was timely under CrR 7.5. 18

Juror 14

Kane next asserts the trial court erred by not further investigating Juror

14’s claims about the original presiding juror. The State contends Kane failed to

preserve this issue for review. We agree with the State.

This court generally will not review an issue raised for the first time appeal.

State v. Trout, 125 Wn. App. 313, 317, 103 P.3d 1278 (2005). “There is an

exception—a narrow exception—for certain constitutional questions.” Trout, 125

Wn. App at 317. “But the error must meet the criteria of a ‘manifest error affecting

a constitutional right.’ ” 19 Trout, 125 Wn. App at 317 (quoting State v. McFarland,

127 Wn.2d 322, 333, 899 P.2d 1251 (1995)); RAP 2.5(a)(3).

Here, the trial court took some time to consider and decide how to address

Juror 14’s claims about the presiding juror’s conduct, and Kane had ample

opportunity to ask the court to further investigate those claims. But he did not do

18
Neither party argued below, and neither party argues on appeal, that Kane’s
motion should be analyzed as a CrR 7.8(b) motion for relief from a proceeding.
Accordingly, we do not treat it as one.
19
Internal quotation marks omitted.

31
No. 86684-2-I/32

so, instead asserting the court should immediately declare a mistrial. 20 Kane also

did not object after the trial court indicated it did not intend to question the

presiding juror. Indeed, even on appeal, Kane does not claim he objected to the

trial court’s handling of the Juror 14 issue. Rather—and without explaining why

his request for a mistrial would be sufficient to preserve the issue for review—he

contends, “Even assuming, arguendo, that [his] motion for a mistrial did not

preserve this issue, it is still reviewable . . . [as a] manifest error[ ] of a

constitutional dimension.”

Kane is incorrect. “To establish manifest error, ‘[t]he defendant must make

a plausible showing that [an alleged] error’ affected his or her rights at trial and

‘resulted in actual prejudice, which means that the claimed error had practical

and identifiable consequences in the trial.’ ” 21 State v. St. Peter, 1 Wn. App. 2d

961, 962-63, 408 P.3d 361 (2018) (quoting State v. Lamar, 180 Wn.2d 576, 583,

327 P.3d 46 (2014)). Kane cannot make this showing. He premises his claim of

manifest error on his assertion the trial court infringed his right to be tried by an

impartial jury free of disqualifying misconduct. See State v. Tigano, 63 Wn. App.

336, 341, 818 P.2d 1369 (1991) (“Article I, § 21 of the Washington Constitution

provides that ‘[t]he right of trial by jury shall remain inviolate . . . .’ The right of trial

by jury means a trial by an unbiased and unprejudiced jury, free of disqualifying

jury misconduct.”). But nothing in the record reveals the jury that convicted Kane

was partial or any juror engaged in disqualifying misconduct. Therefore, we

decline to consider Kane’s claim the trial court erred by not further investigating

20
Kane does not challenge the trial court’s decision not to declare a mistrial.
21
Alterations in original.

32
No. 86684-2-I/33

Juror 14’s claims. Cf. State v. Guevara Diaz, 11 Wn. App. 2d 843, 854, 456 P.3d

869 (2020) (reviewing claim of juror bias for the first time on appeal where a

juror’s bias was established by the record because she stated she could not be

fair).

Sufficiency of the Evidence

As a final matter, Kane argues the State presented insufficient evidence to

support the jury’s finding of guilt on Count 3. We agree.

“To determine whether sufficient evidence supports a conviction, [this

court] view[s] the evidence in the light most favorable to the State, and

determine[s] whether any rational fact finder could have found the elements of

the crime beyond a reasonable doubt.” State v. Stewart, 12 Wn. App. 2d 236,

239, 457 P.3d 1213 (2020). “[S]ufficiency challenges admit the truth of the

State’s evidence and all reasonable inferences that can be drawn from it.”

Stewart, 12 Wn. App. 2d at 240. This court “defer[s] to the trier of fact on issues

of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence.” Stewart, 12 Wn. App. 2d at 240. That said, evidence is not sufficient if

the fact finder must guess or resort to speculation or conjecture. State v. Hutton,

7 Wn. App. 726, 728, 502 P.2d 1037 (1972).

Here, the to-convict instruction for Count 3 stated, “To convict [Kane] of

the crime of Interference With the Reporting of a [DV] Offense,” the jury had to

find, among other things, that Kane “prevented or attempted to prevent Nuriya

Imasheva . . . from calling a 911 emergency communication system or obtaining

33
No. 86684-2-I/34

medical assistance or making a report to any law enforcement officer.” 22

Accordingly, Nuriya Imasheva’s identity became an element the State was

required to prove. See State v. Johnson, 188 Wn.2d 742, 760, 399 P.3d 507

(2017) (under law of the case doctrine, “unless the State objects, the to-convict

instruction defines the essential elements of a crime”).

The State failed to do so. Aizhan testified it was her sister who tried to call

911 during the underlying incident. As the State concedes, Aizhan never

identified her sister by name while testifying. Later, on cross-examination, Kane

questioned Aizhan about the photograph Aizhan took during the October 7 car

incident and whether anyone she knew could have manipulated it for her. The

State points out during that questioning, Kane asked Aizhan, “Is Nuriya a

talented photographer and comfortable with iPhone technology,” and Aizhan

responded, “No, my sister is not a photographer.” While this testimony supported

a reasonable inference Aizhan had a sister named Nuriya, the State identifies no

evidence from which the jury could reasonably infer, without speculating, that

Nuriya was the same sister who was at Aizhan’s home on October 27. 23

Accordingly, the evidence was insufficient to support the jury’s finding of guilt on

Count 3, and we reverse that conviction.

We reverse Kane’s conviction of interfering with DV reporting and remand

to the trial court to vacate that conviction. Otherwise, we affirm.

22
Emphasis added.
23
Had Kane asked, “Is your sister a talented photographer and comfortable with
iPhone technology,” and had Aizhan responded, “No, Nuriya is not a photographer,” then
the jury could have reasonably inferred Nuriya was Aizhan’s only sister and, thus, was
the same sister who was at Aizhan’s home during the underlying incident. But that is not
what occurred.

34
No. 86684-2-I/35

WE CONCUR:

35