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March 26, 2026 Get Citation Alerts Download PDF Add Note

State v. Krause

Washington Supreme Court

• Citations: None known

• Docket Number: 103,835-6

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (36.7K)

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Combined Opinion

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
MARCH 26, 2026
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON

MARCH 26, 2026 SARAH R. PENDLETON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)
STATE OF WASHINGTON, ) No. 103835-6
)
Petitioner, )
)
v. ) En Banc
)
COLE EDWARD KRAUSE, )
)
Respondent. ) Filed: March 26, 2026
_______________________________)

GONZÁLEZ, J.—A defendant’s motion to sever charges shall be granted when

“severance will promote a fair determination of the defendant’s guilt or innocence

of each offense.” CrR 4.4(b). After a trial court denied multiple motions to sever,

a jury convicted Cole Krause on four charges of rape committed against three

victims. The trial court had denied severance because all the charges were related

and the victims’ decisions on when and whether to report were intertwined.

We must decide whether, as the Court of Appeals concluded, the trial court

abused its discretion in denying severance. We conclude the trial court acted

within its discretion. Accordingly, we reverse and remand to the Court of Appeals

for further proceedings consistent with this opinion.
State v. Krause, No. 103835-6

BACKGROUND

A jury convicted Krause of three counts of third degree rape against A.C.S.,

A.L., and A.C., and one count of second degree rape against A.C. 1 At trial, each

victim testified that they did not consent to having sex with Krause. Each victim

also detailed their interconnected paths to reporting what happened to the police.

A.C.S. testified she reported her rape on the day it happened. A.C.S. also

testified she lost friends, was bullied on social media, and moved away after her

report.2

A.L. testified she did not immediately make a report to the police because of

how A.C.S. was treated.

A.C. testified she reported what happened to her to the police to support

A.L. A.C. also testified that Krause had told her that A.C.S.’s report was not true.

Krause testified that each victim consented.

Krause unsuccessfully moved to sever the charges, before and during trial,

into two or three separate trials. The court explained its denial of Krause’s pretrial

motion to sever by saying:

[S]everance should be ordered to promote a fair determination of
guilt or innocence as to each charge. Working backwards, from the
argument [defense counsel] has made, I do believe that if these cases
1
Based on the sensitive nature of the charges, this background section is limited to the facts
necessary for a just disposition.
2
Initially, the State charged Krause in juvenile court with third degree rape of A.C.S. The court
dismissed the charge because A.C.S. no longer wanted to participate. A.C.S. decided to
participate again after Krause was arrested for raping A.L.
2
State v. Krause, No. 103835-6

proceed to trial all at once, or these charges, that in fact Mr. Krause
would receive a fair trial. . . .

The test, four parts; the strength of the State’s case on each count,
clarity of the defenses, can the court properly instruct the jury, and
cross-admissibility. . . .

. . . [I]t does appear to me that these events are cross-admissible.
The strength of the State’s case on each count is very similar. Clarity
of the defenses, it appears to be the same defense as to all. And I do
believe that the Court can properly instruct the jury.

The appellate cases that discuss these issues very much do go
into the inherently prejudicial effect of prior sex offenses and the
admissibility of those. What we are dealing with here are what I would
call current allegations. These have not previously been proven against
Mr. Krause. So it’s all pre-adjudication. And, again, all of these appear
to be cross-admissible against each other or with each other.

....

So I am denying the motion to sever. It appears joinder was
proper. I am not finding that there is some manifestly prejudicial effect
of going to trial on all of these at one time. . . .

....

. . . [E]very case and every charge[] must be viewed
independently. These do appear to be cross-admissible. I do believe
that Mr. Krause would receive a fair trial. It’s not just the name of the
charge is the same or that the general nature of the allegation is the
same. It’s the specific facts as asserted by the State and by these
witnesses to these events. So, it’s the nature of the people, the acts,
everything involved in the actual cases or charges that leads me to the
conclusion that they are cross-admissible. So this is different from
other cases where individuals might be completely unrelated.

1 Verbatim Rep. of Proc. (VRP) (Feb. 10, 2022) at 30-35. Subsequently, the court

explained:
3
State v. Krause, No. 103835-6

Initially I will say when I saw the motion to sever and reviewing the
affidavit of probable cause[,] which is a very short version of the
anticipated testimony, it seemed that severance potentially was
appropriate. But that’s just one small snapshot of what the anticipated
testimony is. It is the interrelation between the allegations and all of
these individuals which leads me to the conclusion that they are cross
admissible.

I don’t believe that proceeding in this fashion tips the balancing
scale towards an unfair trial. I do believe that the jury can be instructed
to each of these charges independently, and again just briefly, I don’t
believe this somehow causes an injustice or unfair proceeding to Mr.
Krause. The charges were properly joined. There is ample anticipated
testimony which supports the conclusion that they should proceed as
one trial. Certainly if the anticipated testimony doesn’t come out, the
defense can raise the issue again. So I am, for the record, denying the
motion to sever.

5 Verbatim Tr. of Proc. (VTP) (Mar. 1, 2022) at 131-32.

The court also denied Krause’s renewed motion to sever after the State

rested, explaining:

This issue now has been argued several times. This was briefed
and presented to the Court pretrial. At the time of the pretrial motion,
obviously the Court did not have the benefit of testimony. As I consider
all of these types of issues when they are brought pretrial, it is really
just the preliminary ruling. The charges were properly joined. The
issue is whether or not severance should be granted.

Frankly, I will keep this somewhat short. After having the
benefit of the actual testimony, the decision to not sever the offenses is
actually bolstered. It does appear—and I would disagree with the
assertion that these are not cross admissible. I am not going to go into
great detail as to the appropriate test, but the evidence really here, it all
builds off of itself from the various witnesses and I just don’t see how
in a single case, we wouldn’t potentially have all of the same witnesses.
So it does seem that joinder is appropriate.

4
State v. Krause, No. 103835-6

Dealing with the issue of judicial economy, I think it is not
unknown that generally to me that it’s the last of the factors that we are
looking at, but when we are dealing with evidence that clearly appears
to be cross-admissible. And when we are dealing with all of the same
witnesses, I don’t think the Court can be unmindful of the length of the
trial when we are dealing with all of the protocols that are in place, just
thinking about this quickly, even if the protocols weren’t in place, I
think we would be in the same situation.

My experience is that jury selection on these types of cases is
lengthy. We likely would be dealing with the same number of potential
jurors, the same questionnaire, so I do think that judicial economy
should be taken into account. Although, as I said, it is not frankly a
weighty factor to me but it also is added in.

Also in my experience, juries can clearly separate the different
charges. That is bolstered by what a jury did just a week ago. They
clearly considered separate charges on a similar in nature type of
offense and made their own determination as to each count. And that
is but one example of many.

So I am denying the motion for severance. I do believe the
charges were properly joined.

12 VTP (Mar. 10, 2022) at 1089-91.

In closing, the State argued, in relevant part:

There is no motivation of these girls to make this up. All you
have to do is say no. [A.C.S.] said no, and he had sex with her anyway.
[A.L.] said no, and he had sex with her anyway. [A.C.] was either
incapable of saying no or another time said no, and he had sex with her
anyway.

That connection will be a shared experience between them long
past this case. But here in this courtroom, the evidence is clear. The
evidence leads to but one verdict, and that . . . is guilty.

5
State v. Krause, No. 103835-6

14 VTP (March 14, 2022) at 1385; see also id. at 1450 (“There is one verdict for

these girls . . . .”).

The court instructed the jury that it must consider each count separately and

not let its verdict on one count control the verdict on any other count. The jury

found Krause guilty of all charges.

In a split decision, the Court of Appeals reversed, holding the trial court

abused its discretion in allowing the State to try all four counts together. State v.

Krause, No. 84599-3-I (Wash. Ct. App. Dec. 30, 2024) (unpublished),

https://www.courts.wa.gov/opinions/pdf/845993.pdf. We granted review. 4

Wn.3d 1026 (2025). The Sexual Violence Law Center submitted an amicus brief

in support of the State.

ANALYSIS

We review trial court severance rulings for manifest abuse of discretion.

State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). Discretion is abused

when no reasonable person would decide the issue the way the trial court did. Id.

at 78 (citing State v. Rice, 110 Wn.2d 577, 600, 757 P.2d 889 (1988)). To show

manifest abuse of discretion, Krause must “point to specific prejudice.” State v.

Bythrow, 114 Wn.2d 713, 720, 790 P.2d 154 (1990).

Krause contends our review in this case should be de novo because the trial

court erroneously believed another judge had previously denied Krause’s motion to

6
State v. Krause, No. 103835-6

sever. We conclude abuse of discretion is the correct standard because the trial

court explicitly came to an independent judgment. See 1 VRP (Feb. 10, 2022) at

1. That judgment is entitled to appropriate deference on appeal.

The record establishes that the trial court reached that judgment in line with

the purpose and structure of CrR 4.4: a preliminary ruling based on anticipated

evidence, followed by reassessment based on the actual evidence presented. See

State v. McCabe, 26 Wn. App. 2d 86, 94-96, 526 P.3d 891, review denied, 1 Wn.3d

1032 (2023). The trial court engaged in a fact-intensive inquiry on the record,

weighed the severance factors, and directly observed whether the jury could

compartmentalize the evidence. See 12 VTP (Mar. 10, 2022) at 1091 (finding the

jury “can clearly separate the different charges.”). 3

Washington law generally disfavors separate trials. State v. Grisby, 97

Wn.2d 493, 506, 647 P.2d 6 (1982). To show denial of severance was improper,

Krause must demonstrate that a trial involving all counts was so manifestly

prejudicial as to outweigh the benefits of joinder. 4 State v. Slater, 197 Wn.2d 660,

3
Krause also argues de novo review is appropriate because the trial court “failed to make an
explicit record of the ER 404(b) analysis.” Suppl. Br. of Resp’t at 15 (citing State v. Riley, 12
Wn. App. 2d 714, 721, 460 P.3d 184 (2020) (noting that when the trial court “fails to document
its ER 404(b) analysis,” the appellate court may “review its decision de novo”)). However,
Krause has not demonstrated that an on the record ER 404(b) analysis is required when deciding
a CrR 4.4(b) motion to sever.
4
We use the phrase “benefits of joinder” instead of “judicial economy” because prejudice is not

7
State v. Krause, No. 103835-6

676, 486 P.3d 873 (2021). If a joint trial would undermine a defendant’s

presentation of separate defenses or invite a jury to cumulate evidence to find guilt

or infer a criminal disposition, severance is required. Russell, 125 Wn.2d at 62-63.

Krause also contends that the charges against him were impermissibly

joined. “Joinder” and “severance” are related concepts. See State v. Bluford, 188

Wn.2d 298, 305-06, 393 P.3d 1219 (2017). “Joinder of offenses” refers to

bringing multiple criminal charges against one person as separate counts in a single

charging document. CrR 4.3(a). Offenses are eligible for joinder under CrR 4.3(a)

if they are either (1) of the same or similar character or (2) based on the same

conduct or part of a single scheme or plan. In addition, the trial court must ensure

the accused person is not undermined by presenting a multiplicity of unrelated and

unconnected charges. Bluford, 188 Wn.2d at 307 (quoting State v. Brunn, 145

Wash. 435, 437-38, 260 P. 990 (1927)). Here, the charges, as tried, turn on

consent. The charges satisfied the “same or similar character” standard under CrR

4.3(a)(1), and, as will be explained later in the opinion, the charges were related

and connected.

To determine whether a defendant will be unfairly prejudiced by a joint trial,

courts must first consider the following factors: (1) the strength of the State’s

overcome simply because separate trials might require more time, effort, and safety precautions.
Krause asks us to review his objection to joinder because it is “inextricably connected to
the questions raised in th[e] petition.” Suppl. Br. of Resp’t at 16 n.6. We consider this issue
alongside his motions to sever.
8
State v. Krause, No. 103835-6

evidence on each count, (2) the clarity of defenses as to each count, (3) the ability

to instruct the jury to consider each count separately, and (4) the admissibility of

evidence of the other charges even if not joined for trial. Russell, 125 Wn.2d at 63.

No one factor is “necessarily preeminent,” and “all of the factors together are a

means of determining whether potential prejudice to a defendant requires

severance and must be assessed in that light.” State v. Watkins, 53 Wn. App. 264,

272 n.3, 766 P.2d 484 (1989). If the level of prejudice is not so great as to require

severance, the court turns to the second step: weighing the prejudice from the joint

trial against the benefits of joinder. Bluford, 188 Wn.2d at 311. However, if the

prejudice plainly deprives the defendant of their right to a fair trial, then the second

step need not be reached. Id.

STEP ONE: CONSIDERATION OF THE FOUR FACTORS

FACTOR ONE: STRENGTH OF THE STATE’S EVIDENCE. The trial court found

that “[t]he strength of the State’s case on each count is very similar.” 1 RP (Feb.

10, 2022) at 31. The relative strength of the evidence is considered to ensure the

State is not using one count’s stronger evidence to bolster another count’s weaker

evidence. See Bythrow, 114 Wn.2d at 721-22. Krause contends the police

investigation involving A.C.S. yielded more evidence than supported the other

charges because there was no delay in her report to the police. But the evidence on

each count need not be identical to be similarly strong. Each victim testified that

9
State v. Krause, No. 103835-6

they did not consent to having sex with Krause, and the trial court was in the best

position to evaluate the relative strength of the State’s case on each count. We

defer to the trial court’s evaluation of the strength of the evidence. This factor

does not support severing the charges.

FACTOR TWO: CLARITY OF THE DEFENSES. The trial court found Krause’s

defenses were the same. “The likelihood that joinder will cause a jury to be

confused as to the accused’s defenses is very small where the defense is identical

on each charge.” Russell, 125 Wn.2d at 64 (citing State v. Hernandez, 58 Wn.

App. 793, 799, 794 P.2d 1327 (1990)).

Krause argues his defenses on all counts were not the same because he also

raised an affirmative defense to the charge that he had raped A.C. while she was

incapacitated. The trial court instructed the jury that they must acquit if they found

that Krause had established, by a preponderance of evidence, his reasonable belief

that A.C. was not incapacitated. See RCW 9A.44.030(1). Nevertheless, it is

unlikely the jury was confused when Krause’s defense theory on the other counts

was consent.

The distinction between the defenses did not undermine Krause’s ability to

present them. While Krause contends he may have asserted his right against self-

incrimination on the less serious counts of third degree rape in separate trials, he

does not make a “‘convincing showing’” that he had “‘a strong need to refrain

10
State v. Krause, No. 103835-6

from testifying.’” Russell, 125 Wn.2d at 65 (quoting Watkins, 53 Wn. App. at

270). This factor does not support severing the charges.

FACTOR THREE: JURY INSTRUCTIONS. The trial court found that the jury

could be properly instructed. Jury instructions help ensure juries can

compartmentalize the evidence and not be tainted by improper inferences,

particularly when evidence concerning another crime is limited or not admissible.

Bythrow, 114 Wn.2d at 720 -21 (quoting United States v. Johnson, 820 F.2d 1065,

1071 (9th Cir. 1987)).

The jury was instructed to decide each count separately. Krause could have

proposed additional instructions, such as an ER 404(b) limiting instruction, but did

not. See ER 105 (limiting instruction available upon request); see also State v.

Russell, 171 Wn.2d 118, 124, 249 P.3d 604 (2011) (a trial court does not commit

reversible error in failing to give a limiting instruction that was not requested).

This factor does not support severing the charges.

FACTOR FOUR: CROSS ADMISSIBILITY. The trial court found that “these

events are cross-admissible,” 1 VRP (Feb. 10, 2022) at 31; that “it’s the nature of

the people, the acts, everything involved in the actual cases or charges that leads

me to the conclusion that they are cross-admissible,” id. at 34; that “[i]t is the

interrelation between the allegations and all of these individuals which leads me to

the conclusion that they are cross admissible,” 5 VTP (Mar. 1, 2022) at 131; and

11
State v. Krause, No. 103835-6

that “the evidence . . . all builds off of itself from the various witnesses.” 12 VTP

(Mar. 10, 2022) at 1090. Courts consider the likelihood and extent of evidentiary

overlap among the charges to ensure that each charged offense is tried and proved

on its own and not based on improper propensity inferences. 5 See Slater, 197

Wn.2d at 677-78.

Krause argues that the lack of cross admissible evidence prejudiced him

because he faced four distinct rape charges in a single trial. In asking us to reverse

based on the inherent prejudice of joining sex crimes, Krause relies on this court’s

decision in State v. Saltarelli, which said that “[a] careful and methodical

consideration of relevance, and an intelligent weighing of potential prejudice

against probative value is particularly important in sex cases, where the prejudice

potential of prior acts is at its highest.” 98 Wn.2d 358, 363, 655 P.2d 697 (1982). 6

But this court clarified that the prejudicial effect of evidence of a prior rape is

significant when “the evidence seems to achieve no more than to show a general

propensity to rape.” Id. at 365. In contrast, evidence of multiple crimes is properly

5
ER 404(b) prohibits the use of prior crimes or misconduct to prove an accused person’s
propensity to have committed the charged crime. Krause argues the victims provided
“inflammatory” testimony that had nothing to do with the charged offenses. Suppl. Br. of Resp’t
at 27-28. A trial court’s consideration of cross admissibility is not a substitute for an evidentiary
ruling based on a timely, proper objection. To the extent Krause is challenging the trial court’s
evidentiary rulings, that is beyond the scope of our limited grant of review. See RAP 13.7(b).
6
In subsequent cases involving sex crimes, we emphasized the need for courts to “give special
consideration to the probative value of such [prior bad act] evidence when balancing against the
prejudicial effect of such evidence, especially when corroborating evidence is not available.”
State v. DeVincentis, 150 Wn.2d 11, 25, 74 P.3d 119 (2003).
12
State v. Krause, No. 103835-6

admitted in a joint trial to prove the respective charges and may not be used for an

improper propensity purpose. Cf. State v. Miller, 33 Wn. App. 2d 560, 565, 562

P.3d 1281 (2025) (“[T]he State used the evidence of various acts of abuse by

Miller only to satisfy its burden to prove the elements of the charged crimes

beyond a reasonable doubt and not for any improper purpose.”).

Under these facts, we agree with the trial court that separate trials would

“potentially have all of the same witnesses.” 12 VTP (Mar. 10, 2022) at 1090.

Here, the victims’ relationships with each other, the impact that those relationships

had on their decisions to report, and the interactions they had regarding each

other’s experiences would have been admissible in separate trials to prove

credibility, state of mind, and motive. Specifically, A.C.S.’s decision to report that

Krause raped her provided helpful context for the count concerning A.L. by

explaining A.L.’s state of mind, her initial reluctance to report, and the progression

of events. A.L.’s decision to report that Krause raped her provided helpful context

for the count concerning A.C. because A.C. decided to report Krause raped her to

support A.L. In turn, A.C.’s testimony that Krause had denied raping A.C.S.

provided helpful context for the count concerning A.C.S. The trial court had

discretion to conclude the probative value of this evidence would not be

substantially outweighed by its tendency to generate unfair prejudice in separate

13
State v. Krause, No. 103835-6

trials. Nevertheless, as the State now concedes, the details of each victims’ rape

would not have been admissible in separate trials. 7

This factor supports severing the charges because not all the same evidence

in Krause’s joint trial would have been admissible in separate trials. However, the

severance analysis does not stop there because a joint trial is expected to have

some evidence that is not cross admissible. In fact, we have allowed joinder of sex

offenses against multiple victims before under similar circumstances. See, e.g.,

State v. Markle, 118 Wn.2d 424, 439, 823 P.2d 1101 (1992); State v. Kalakosky,

121 Wn.2d 525, 538-39, 852 P.2d 1064 (1993). And it is well established that lack

of cross admissibility does not automatically preclude a joint trial. See Bluford,

188 Wn.2d at 315; see also, e.g., Bythrow, 114 Wn.2d at 721 (lack of cross

admissibility may not be prejudicial when the jury can reasonably be expected to

compartmentalize the evidence (citing Drew v. United States, 118 U.S. App. D.C.

11, 331 F.2d 85, 91 (D.C. Cir. 1964))).

Next, we must determine whether the likely prejudice in not severing the

charges necessarily prevented Krause from receiving a fair trial. Krause contends

that the decisions in Bluford and Slater required the trial court to find undue

prejudice here. But Bluford and Slater are distinguishable. In Bluford, the State

7
The State does not challenge the holding of the Court of Appeals “that evidence of the details
of each crime were not cross-admissible under ER 404(b).” See Suppl. Br. of Pet’r at 9.
14
State v. Krause, No. 103835-6

improperly joined sex offenses with unrelated robberies—crimes with “notable”

differences in character—involving different victims. 188 Wn.2d at 314-15. The

court found no evidentiary overlap and minimal benefit. Id. at 315-16. In Slater,

the State joined a failure-to-appear charge with an underlying domestic violence no

contact order violation charge. 197 Wn.2d at 679-80. The court held the charges

were “not connected or related in any way.” Id. In contrast, here, all counts had

the same character of offense and involved interconnected victims who would

potentially have been called to testify multiple times if there were separate trials.

Krause also contends that the prosecution in closing “invited the jury to

consider Krause’s conduct as a unified whole and sought to blend the three

complainants’ claims throughout the argument.” Suppl. Br. of Resp’t at 8-9 (citing

14 VTP (Mar. 14, 2022) at 1368-88). Krause specifically points to the

prosecutor’s “generalized appeal for the jury to return ‘one verdict.’” Id. (quoting

14 VTP (Mar. 14, 2022) at 1385). However, Krause does not contend there was

prosecutorial misconduct, and the prosecutor’s closing argument is unlike the

improper “repeated focus on . . . guilt and propensity to violate court orders” from

the prosecution in Slater, 197 Wn.2d at 683. In its closing argument, the

prosecution did not use the evidence of multiple acts of rape by Krause for an

improper propensity purpose.

15
State v. Krause, No. 103835-6

We reject Krause’s various arguments that the likely prejudice of joining the

charges would necessarily have prevented him from receiving a fair trial. Whether

to sever the charges was within the trial court’s discretion because it found some

evidence cross admissible, and it also found that the jury was able to separate and

compartmentalize the evidence on the different counts. Therefore, the trial court

correctly reached the second step: weighing any prejudice from the joint trial

against the benefits of joinder. See Slater, 197 Wn.2d at 677; Russell, 125 Wn.2d

at 63.

STEP TWO: WEIGHING THE PREJUDICE AGAINST THE BENEFITS OF JOINDER

Under this second step, the risk of the jury making an improper propensity

inference from the evidence that was not cross admissible must be weighed against

the benefits of joinder. The trial court did not abuse its discretion when it

concluded the benefits of joinder outweighed the risk of prejudice. As the trial

court noted, the State would have potentially called all three victims to testify in

each other’s trials to provide context. See 12 VTP (Mar. 10, 2022) at 1090. The

fact that the same witnesses could be required to testify in multiple trials weighed

heavily in favor of a joint trial.

Neither Bluford nor Slater involved this kind of overlap in witnesses. In

Bluford, because the nine counts of sex crimes and robberies were unrelated and

unconnected, “the State would not have been required (or allowed) to call all of its

16
State v. Krause, No. 103835-6

witnesses in each separate trial,” so “the interest in judicial economy loses much of

its force.” 188 Wn.2d at 315-16. In Slater, “the witnesses as to each charge in this

case were different.” 197 Wn.2d at 680. A joint trial is better supported in this

case than in Bluford and Slater.

As amicus highlights, “‘Joint trials have long ‘play[ed] a vital role in the

criminal justice system’ . . . allowing victims to avoid repeatedly reliving trauma.”

Br. of Amicus Curiae Sexual Violence L. Ctr. at 9 (alterations in original) (quoting

Samia v. United States, 599 U.S. 635, 654, 143 S. Ct. 2004, 216 L. Ed. 2d 597

(2023)). The well-being of victims is a compelling reason to join offenses.

Amicus also reminds us that Washington recognizes that “[s]exual assault is the

most heinous crime against another person short of murder. Sexual assault inflicts

humiliation, degradation, and terror on victims. The perpetrator’s age, gender, or

relationship does not define the seriousness.” Id. at 10; RCW 7.105.900(3)(b).

Washington law mandates “all victims and witnesses of crime are treated with

dignity, respect, courtesy, and sensitivity.” RCW 7.69.010. We cannot ignore the

fact that the burden of testifying in court may contribute to the low reporting rates

of rape. See RCW 7.105.900(3)(b) (“Rape is recognized as the most underreported

crime; estimates suggest that only one in seven rapes is reported to authorities.”);

State v. W.R., 181 Wn.2d 757, 771, 336 P.3d 1134 (2014) (Owens, J., dissenting)

(explaining how “our rape laws ‘reflect[ed] male-oriented interests’ and resulted in

17
State v. Krause, No. 103835-6

‘low rates of reporting, arrest, prosecution, and conviction’” (alteration in original)

(quoting Wallace D. Loh, The Impact of Common Law and Reform Rape Statutes

on Prosecution: An Empirical Study, 55 WASH. L. REV. 543, 570 (1980))); see also

State v. Morley, 46 Wn. App. 156, 160, 730 P.2d 687 (1986) (recognizing “the

State’s compelling interest in . . . encouraging rape victims to report crime”).

The benefits of joinder in this case are clear. A.C.S. initially withdrew from

prosecution due to “time and stress,” agreeing to participate again only when

another victim, A.L., came forward. Clerk’s Papers at 437. A.C. did not initially

report Krause raped her because she “did not want to have years of [her] life with

court.” 11 VTP (Mar. 9, 2022) at 1055. A.C. ultimately decided to come forward

to help A.L. Id. A.C.S. and A.C. traveled great distances to testify. Requiring two

or three separate trials—each potentially requiring victim testimony, cross-

examination, and reliving trauma—would do damage to the administration of

justice.

CONCLUSION

The trial court did not abuse its discretion in denying Krause’s motions to

sever. Considering the strength of the evidence, the clarity of defenses, the jury

instructions, and the extent the evidence was cross admissible, Krause has not

demonstrated that the evidence in his joint trial invited the jury to cumulate

evidence to find guilt or infer a criminal disposition. While there was potential

18
State v. Krause, No. 103835-6

prejudice from the evidence that was not cross admissible, it did not outweigh the

benefits of a joint trial because of the overlapping witnesses.

We reverse and remand to the Court of Appeals for further proceedings

consistent with this opinion.

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WE CONCUR:

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<X-37

19
State v. Krause (Cole Edward)

No. 103835-6

GORDON McCLOUD, J. (dissenting)—In State v. Bluford, we addressed two

key issues concerning joinder and severance of multiple charges against a single

defendant. 188 Wn.2d 298, 393 P.3d 1219 (2017). First, we held that when trial

courts hear motions to join or sever charges, they must consider whether such joinder

(or failure to sever) will result in undue prejudice to the defendant. Id. at 307-10.

Second, we held that “[j]udicial economy is relevant to joinder but cannot outweigh

a defendant’s right to a fair trial.” Id. at 311.

In this case, everybody seems to agree that joinder of the different sexual

crimes against Cole Krause resulted in the admission of otherwise inadmissible and

prejudicial evidence. The majority acknowledges that “not all the same evidence in

Krause’s joint trial would have been admissible in separate trials.” Majority at 14.

The State agrees, and so did the Court of Appeals’ majority and dissent. Suppl. Br.

of Pet’r at 9 (“The majority and dissent agreed that evidence of the details of each

crime were not cross-admissible under ER 404(b).”); State v. Krause, No. 84599-3-

I, slip op. at 23 (Wash. Ct. App. Dec. 30, 2024) (unpublished),

https://www.courts.wa.gov/opinions/pdf/845993.pdf, id. at 59 (Díaz, J., dissenting).

1
State v. Krause (Cole Edward), No. 103835-6
(Gordon McCloud, J., dissenting)

And the parties and the majority apparently all agree that the only evidence that

would have been cross admissible concerned corroboration of the reasons for

delayed reporting. The most prejudicial evidence—the evidence about the details of

each rape—would not have been cross admissible.

The majority balances the prejudice posed by these inadmissible, graphic,

violent details of other sexual assault crimes against the burden of complainants

testifying at separate trials. It concludes that because severance might have required

victims of sexual assault to testify at separate trials, that consideration tips the scales

in favor of affirming the otherwise prejudicial joinder. Majority at 16-18.

To be sure, “[t]he mere fact that evidence is not cross admissible does not

automatically preclude joinder. To establish error, [defendant] must also show that

the prejudicial effect of trying all the counts together outweighed the benefits of

joinder.” Bluford, 188 Wn.2d at 315 (citation omitted).

But we have never held that the fact that the multiple crimes are sexual

assaults with different complainants and lack of cross admissibility weighs in favor

of consolidating the charges into one trial. Instead, we have always come to the

opposite conclusion: the fact that multiple crimes are sexual assaults with different

complainants and lack of complete cross admissibility weighs strongly in favor of

severance. Id. at 315-16 (“We have previously noted ‘the inherently prejudicial
2
State v. Krause (Cole Edward), No. 103835-6
(Gordon McCloud, J., dissenting)

effect of prior sexual offenses.’ Moreover, because the evidence was not cross

admissible, the interest in judicial economy loses much of its force because the State

would not have been required (or allowed) to call all of its witnesses in each separate

trial.” (citation omitted) (quoting State v. Bythrow, 114 Wn.2d 713, 718-19, 790 P.2d

154 (1990)). See generally State v. Saltarelli, 98 Wn.2d 358, 364, 655 P.2d

697 (1982).

The majority’s decision to treat sex crimes as the most likely to present the

greatest reason for joinder, rather than the most likely to present the greatest reason

for severance, is unprecedented. I therefore respectfully dissent.

I. PREJUDICE IS THE MOST IMPORTANT INQUIRY WHEN DECIDING BOTH A
MOTION TO SEVER AND A MOTION FOR JOINDER
Prejudice to the criminal defendant is the critical inquiry when deciding both

a motion to sever and a motion for joinder.

Under our court rules, a motion to sever charges must be granted when doing

so will “promote a fair determination of the defendant’s guilt or innocence of each

offense.” CrR 4.4(b). Under our controlling precedent implementing that court rule,

“A defendant ‘seeking severance ha[s] the burden of demonstrating that a trial

involving [all] counts would be so manifestly prejudicial as to outweigh the concern

3
State v. Krause (Cole Edward), No. 103835-6
(Gordon McCloud, J., dissenting)

for judicial economy.’” State v. Slater, 197 Wn.2d 660, 676, 486 P.3d 873 (2021)

(alterations in original) (quoting Bythrow, 114 Wn.2d at 718).

We have provided specific instructions on how to measure such possible

prejudice when deciding a motion to sever: “Joinder of offenses carries the potential

for prejudice if (1) the defendant may have to present separate, possibly conflicting,

defenses, (2) the jury may infer guilt on one charge from evidence of another charge,

or (3) the cumulative evidence may lead to a guilty verdict on all charges when, if

considered separately, the evidence would not support every charge.” Id. at 676-77

(citing Bythrow, 114 Wn.2d at 718).

We have doubled down on the fact that the critical question is whether denial

of severance would prejudice the defendant as the key inquiry by explaining,

“‘Prejudice may result from joinder if the defendant is embarrassed in the

presentation of separate defenses, or if use of a single trial invites the jury to

cumulate evidence to find guilt or infer a criminal disposition.’” Id. at 677 (quoting

State v. Russell, 125 Wn.2d 24, 62-63, 882 P.2d 747 (1994)).

And finally, to determine whether denying severance will cause undue

prejudice to the defendant, we have instructed that trial courts must consider four

factors, most notably the cross admissibility of evidence on the separate charges:

“‘(1) the strength of the State’s evidence on each count; (2) the clarity of defenses as
4
State v. Krause (Cole Edward), No. 103835-6
(Gordon McCloud, J., dissenting)

to each count; (3) court instructions to the jury to consider each count separately;

and (4) the admissibility of evidence of the other charges even if not joined for trial.’”

Id. (quoting Russell, 125 Wn.2d at 63).

Prejudice is also the critical inquiry when deciding a motion for joinder: “Ever

since Washington first allowed for the joinder of offenses, our courts have

recognized the close relation of joinder and severance, and have held that joinder

should not be allowed in the first place if it will clearly cause undue prejudice to the

defendant.” Bluford, 188 Wn.2d at 307.

Finally, we have come to a clear conclusion on how to weigh prejudice to the

defendant against judicial economy: “both prejudice to the defendant and judicial

economy are relevant factors in joinder decisions, but judicial economy can never

outweigh a defendant’s right to a fair trial.” Id. at 305 (emphasis added).

II. THIS IS A RARE CASE IN WHICH THE PARTIES AGREE THAT JOINDER AND
DENIAL OF SEVERANCE POSED POSSIBLE PREJUDICE TO THE DEFENDANT
The majority asserts that evidence of the other rapes would have been

admissible in each trial “to provide context.” Majority at 16. I assume that the

majority means that one complainant could have testified at another complainant’s

trial about how their conversations helped them decide to report and follow through

5
State v. Krause (Cole Edward), No. 103835-6
(Gordon McCloud, J., dissenting)

with the criminal prosecution. I agree: that evidence would have been cross

admissible.

But the testimony provided by the victim-witnesses who testified in Krause’s

joint trial did not provide just “context.” They gave detailed descriptions from start

to finish of each sex offense. Not even the State claims that that testimony was cross

admissible on each separate count. And as the Court of Appeals explained, even

though the State sought joinder of charges to supposedly provide context, the State

did not follow through on questioning its witnesses about context. Krause, No.

84599-3-I, slip. op. at 2. The State followed through by questioning its witnesses

about the specific details about each crime.

III. THE MAJORITY DEALS WITH THIS BY SILENTLY OVERRULING
CONTROLLING PRECEDENT HOLDING THAT JOINDER OF SEX CRIMES IS
ESPECIALLY PREJUDICIAL AND DISFAVORED
The majority deals with the problem of lack of cross admissibility, along with

its potential for prejudice, by adopting a new rule. Its new rule minimizes the

importance of the prejudice inquiry—but only in sex crime cases. It seems to hold—

for the first time—that when the charges are sex offenses, we should err on the side

of joinder to protect victims, rather than err on the side of severance to protect the

criminal defendant’s right to a fair trial. Majority at 16-18.

6
State v. Krause (Cole Edward), No. 103835-6
(Gordon McCloud, J., dissenting)

Our past precedent does make clear that when courts decide whether to join

or sever offenses, we should treat sex crimes in a special way. But it’s not the special

way that the majority uses. It’s the opposite.

As we summarized in Bluford, “We have previously noted ‘the inherently

prejudicial effect of prior sexual offenses.’” 188 Wn.2d at 315 (quoting Bythrow,

114 Wn.2d at 718-19). This is because sex charges pose a much higher risk of

prejudice from joinder because they carry the greatest disgust, societal disapproval,

and moral opprobrium. State v. DeVincentis, 150 Wn.2d 11, 24, 74 P.3d 119 (2003)

(“Weighing the prejudicial effect [of prior bad acts] is especially important for cases

involving sexual crimes.”); Saltarelli, 98 Wn.2d at 363 (criticizing making

exceptions to admit evidence of prior bad acts in sex cases and noting that “[a]

careful and methodical consideration of relevance, and an intelligent weighing of

potential prejudice against probative value is particularly important in sex cases,

where the prejudice potential of prior acts is at its highest. ‘Once the accused has

been characterized as a person of abnormal bent, driven by biological inclination, it

seems relatively easy to arrive at the conclusion that he must be guilty, he could not

help but be otherwise’”) (quoting M.C. Slough & J. William Knightly, Other Vices,

Other Crimes, 41 IOWA L. REV. 325, 333-34 (1956)); State v. Sutherby, 165 Wn.2d

870, 884, 204 P.3d 916 (2009) (recognizing the danger of prejudice when joining

7
State v. Krause (Cole Edward), No. 103835-6
(Gordon McCloud, J., dissenting)

sex crime charges even when jury is instructed to consider the charges separately);

see also State v. Neufeld, 1998 ND 103, ¶15 n.3, 578 N.W.2d 536 (“Numerous

jurisdictions have considered joinder of sex offenses prejudicial when the evidence

supporting each indictment would not have been admissible in the trial of the other.”

(citing McKinney v. State, 82 Md. App. 111, 570 A.2d 360 (1990); Jenkins v. State,

472 So. 2d 1128, 1130 (Ala. Crim. App. 1985)).

The Court of Appeals summarized in detail the inadmissible descriptions of

other sex offenses that were admitted into evidence and the prejudice that they posed.

The majority agrees that the bulk of those detailed descriptions were admissible on

each separate count, but not on the other counts. Our controlling precedent compels

us to consider that prejudice seriously, especially since these were all sex crimes.

Our controlling precedent tells us that when weighing that prejudice against the

economy of a consolidated trial, the value of judicial economy can never trump the

value of a fair trial. The majority’s new rule fails to respect that precedent.

I therefore respectfully dissent.

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8