State Of Washington v. Eton Pope, 74029-6

In 2013 Eton Pope and ES were involved in an on-and-off dating relationship marked by escalating verbal and physical abuse. On September 15, 2013, ES testified Pope choked her until she fainted and then raped her; she reported the incident on October 23, 2013.
Pope was charged with second-degree assault by strangulation and second-degree rape, both alleged as domestic violence; the State later amended the information to add an aggravator for a history of domestic violence over a prolonged period.
Pope waived counsel and chose to represent himself after a full colloquy in July 2014. He repeatedly expressed confusion about the later-added aggravator and asked, near trial, whether he could request counsel or standby counsel.
The jury convicted Pope of both counts and found the domestic violence aggravator proved; the trial judge later vacated use of the aggravator in sentencing because of State v. Brush but left a notation on the judgment needing correction.
The trial court admitted prior-misconduct evidence of Pope’s abuse toward ES to explain delay in reporting and bear on motive/intent; Pope objected.
On appeal Pope challenged (1) the court’s failure to reassess his waiver of counsel after the aggravator was added, (2) admission of prior misconduct evidence, (3) several alleged instances of prosecutorial misconduct, (4) double jeopardy merger of assault into rape, and (5) clerical error on the judgment.

Issue	Pope's Argument	State's Argument	Held
Right to counsel / reappointment after information amended	Addition of aggravator changed circumstances; court should have re-engaged Pope in a new colloquy or reappointed counsel when he expressed confusion	Pope validly waived counsel earlier; reappointment is discretionary and untimely requests near trial may be denied	No violation. Court acted within its discretion; no sua sponte new colloquy or reappointment required.
Admissibility of prior-misconduct evidence	Evidence was prejudicial and improperly used as propensity evidence	Evidence admissible to explain delayed reporting and to prove motive/intent; probative value outweighed prejudice	Admissible. Trial court did not abuse its discretion.
Prosecutorial misconduct (several remarks)	Prosecutor made inflammatory, unsupported, and vouching statements that prejudiced jury	Remarks were reasonable inferences from evidence, not fabrications or improper vouching	Not prejudicial. No reversible prosecutorial misconduct.
Double jeopardy / merger of assault into rape	Strangulation was used to prove forcible compulsion, so assault should merge into rape	Forcible compulsion was proved by other acts (hands over head, belt in mouth); strangulation was a separate assault with separate purpose	No merger. Convictions do not violate double jeopardy.

State v. Brush, 183 Wn.2d 550, 353 P.3d 213 (Wash. 2015) (pattern instruction defined “prolonged period of time” and was an impermissible comment on the evidence)
State v. DeWeese, 117 Wn.2d 369, 816 P.2d 1 (Wash. 1991) (defendant may waive counsel; procedures and risks of self-representation)
State v. Modica, 136 Wn. App. 434, 149 P.3d 446 (Wash. Ct. App. 2006) (trial court not required to give a second colloquy when charges are amended shortly before trial; reappointment discretionary)
State v. Canedo-Astorga, 79 Wn. App. 518, 903 P.2d 500 (Wash. Ct. App. 1995) (timeliness of request for counsel is a key factor; defendant assumes risks of self-representation)
State v. Gunderson, 181 Wn.2d 916, 337 P.3d 1090 (Wash. 2014) (standards for admitting prior bad acts to explain victim behavior and delay)
State v. Pierce, 169 Wn. App. 533, 280 P.3d 1158 (Wash. Ct. App. 2012) (prosecutorial misconduct standard; examples of improper passion-based argument)
State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (Wash. 2005) (merger doctrine and legislative intent when conduct is separately criminalized)
State v. Johnson, 92 Wn.2d 671, 600 P.2d 1249 (Wash. 1979) (discussing when force used for rape overlaps with separate assault)
State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (Wash. Ct. App. 1996) (prior acts admissible to explain delayed reporting in domestic violence context)