134 A.2d 843 (1957)
ORIGINAL VINCENT and JOSEPH, Inc., a corporation of the State of New Jersey, Plaintiff,
v.
Vincent SCHIAVONE and
Walter Parente, Frank Falzone, Barbara H. Breitigan and Joanna Trincia, Defendants.
Court of Chancery of Delaware, New Castle.
October 9, 1957.
Henry M. Canby and Max S. Bell, Jr., Wilmington, for plaintiff.
Thomas H. Wingate, Wilmington, for defendants.
MARVEL, Vice Chancellor.
Plaintiff operates a beauty shop on Governor Printz Boulevard, north of Wilmington. In February 1955, the defendant, Vincent *844 Schiavone, who had prior to that time worked for plaintiff in Philadelphia, became manager of plaintiff's Wilmington shop, allegedly under a written contract. It is claimed that such contract provided that in the event Schiavone were to leave plaintiff's employ he would not engage in the same business as his employer for the space of two years within five miles of plaintiff's shop. Schiavone denies that he entered into a contract which in any way limits his right to compete with plaintiff.
The other defendants admittedly are under contract to plaintiff under terms which provide that in the event of termination of their employment by plaintiff they shall not for a space of one year engage in the same business as the employer within three miles of the location of plaintiff's Wilmington shop.
In July, 1957 all the defendants left plaintiff's employ and are now engaged in the business of hair dressing and the like at 1014 Delaware Avenue in Wilmington. This place of business is managed by Schiavone and is located less than three air miles from plaintiff's shop, although by road the distance between the two shops is more than three miles.
A rule issued directing defendants to show cause why a preliminary injunction should not issue restraining them inter alia[1] from competing with plaintiff in violation of their contracts and this is the opinion of the Court after argument on the return of the rule.
Plaintiff contends that in Delaware[2] "* * * an agreement by an employee not to follow his trade or business for a limited time and during a limited period is not void as against public policy, when the purpose of the agreement and its reasonable operation is to protect his employer from the injury which the employee's subsequent activity in the way of trade may occasion."[3] Capital Bakers, Inc., v. Leahy, 20 Del.Ch. 407, 178 A. 648, 649. In the cited case, which was concerned with a former manager's relations with a baking business, the contract of employment stated that inasmuch as the manager-defendant was being employed in a confidential position and would have complete knowledge of the affairs of the employer's plant and the customers and those dealing with it that for a period of one year after the termination of the contract, the employee would not engage in, be employed in or furnish any information about the employer's business to, any baking business within the territory served by the employer. The Court pointed out that:
"The language of the contract to which the defendant assented commits *845 him to the proposition, for the purposes certainly of the demurrer, that his employment was such that he was in a confidential position as manager of the complainant's Wilmington agency and that as such manager, he would gain complete knowledge of the affairs of the complainant's plant and of the customers and persons dealing with it. Damages at law would afford the complainant an inadequate remedy for the defendant's breach of his covenant not to exploit his intimacy of acquaintance with the complainant's business and customers which his former employment had afforded, by hiring himself to a competitor of the complainant."
While the Chancellor went on to state that the geographical extent of the contractual restraint, which covered Delaware, Pennsylvania and Maryland, was too broad, he was of the opinion that "dependent on the circumstances" the covenant might be enforceable in Delaware and overruled the demurrer.[4] In the earlier case of General Baking Co. v. Soles, 18 Del.Ch. 343, 162 A. 58, the Chancellor had declined to enjoin defendant's proprietary competition with his former employer because defendant had covenanted merely to refrain from being employed by a competitor.
While the later Chancery decision of Livingston v. Macher, 30 Del.Ch. 94, 54 A.2d 169, is based on New York law and the Supreme Court and the Court below in Roane, Inc., v. Tweed, 33 Del.Ch. 4, 89 A.2d 548, 41 A.L.R.2d 1, reversing 32 Del.Ch. 90, 80 A. 2d 290, applied Maryland law, I cannot accept plaintiff's apparent contention that because foreign law was involved these later cases may be ignored. Unlike the Capital Bakers case, whih was decided on demurrer, these decisions were preceded by trials. They not only review in detail the contracts in question but go meticulously into the facts and circumstances which tend to explain the actual bargain made by the contracting parties.
Turning to the present application I am first of all persuaded that courts of equity are less prone to enforce a restriction against competition in the a case of a mere employment contract than in a case where such a restriction is part of a contract for the sale of a business, 5 Williston on Contracts (Rev.Ed.) § 1643. It is also obvious that many modern decisions having to do with restrictive covenants search carefully into the equities of a specific case, Tawney v. Mutual System of Maryland, 186 Md. 508, 47 A.2d 372, Livingston v. Macher, supra, and Roane, Inc., v. Tweed, supra.
I conclude for the purposes of the pending motion that consideration for the admitted contracts exists as a formal matter and that there has been at least a preliminary showing of a right to some equitable relief. In so holding I conclude that the phrase "within three (3) miles" in the contracts before me necessarily means air miles, Duignan v. Walker, 28 L.J.Ch. 867, 70 Eng.Rep. 496; Evans v. U. S., 2 Cir., 261 F. 902, and Annotations in 54 A.L.R. 784 and 96 A.L.R. 779, however, the Schiavone contract has not been produced or admitted and the facts which will determine whether or not the admitted[5] contracts should be enforced in toto by injunction cannot, in my opinion, be resolved short of trial.
As in the case of Roane, Inc., v. Tweed, supra, the activities of the defendants as *846 presented by affidavit and deposition present an unpleasant picture of disloyalty to an employer, however, I am not concerned with business ethics but rather with plaintiff's preliminary right to have defendants' present beauty shop activities enjoined by court order.
I conclude that plaintiff has not successfully carried the burden of showing that reasonable probability of ultimate success to an extent that would justify the entering of the broad type of preliminary injunction which plaintiff seeks, Allied Chemical & Dye Corp. v. Steel & Tube Co., 14 Del.Ch. 117, 122 A. 142. I so decide despite the fact that I am satisfied that those defendants admittedly under formal contract have violated the language of such contracts by going into a competitive business within the prohibited area.
I also conclude preliminarily that such defendants under Schiavone's direction have taken advantage of their personal contacts with plaintiff's patrons, that they have in effect used[6] "lists of (plaintiff's) customers", and that the use of such lists or their equivalent is causing injury to plaintiff's business. Accordingly the defendants, other than Schiavone, will be preliminarily enjoined from using or taking any advantage of any information or data in their possession as to names and addresses of present and former customers of plaintiff's Wilmington shop.
As to plaintiff's other prayers, I have reached the following conclusions. Although this Court would not have independent jurisdiction of plaintiff's claims for books and records and other items of personal property allegedly held by the defendant, Schiavone, jurisdiction of these claims should be retained to avoid a multiplicity of suits, Du Pont v. Du Pont, 33 Del.Ch. 571, 98 A.2d 493. Inasmuch as the parties have not briefed the question of this Court's jurisdiction to enjoin alleged infringement by defendants of plaintiff's patent covering a method of cutting and styling hair, I will not comment on this phase of the case at this juncture.
On notice, an order in conformity with the above will be entered.
NOTES
[1]  Plaintiff also seeks injunctive relief against defendants' use of plaintiff's alleged patent for a method of cutting and styling women's hair, the use by defendants of their knowledge of the names and addresses of plaintiff's customers and the return of books and records and other personal property of plaintiff's allegedly held by defendants.
[2]  For the purpose of deciding plaintiff's motion I assume that plaintiff's right to equitable relief under the contracts in question is governed by the law of Delaware.
[3]  The Chancellor cited the Restatement of the Law, Contracts, Vol. 2, § 516(f), p. 996, for this proposition. It gives the following example of a bargain not imposing an unreasonable restraint of trade." (f) A bargain by an assistant, servant, or agent not to compete with his employer, or principal, during the term of the employment or agency, or thereafter, within such territory and during such time as may be reasonably necessary for the protection of the employer or principal, without imposing undue hardship on the employee or agent."

However, the Restatement's comment on par. (f), p. 1001, reads as follows: "(h) A promise of a former employee will not ordinarily be enforced so as to preclude him from exercising skill and knowledge acquired in his employer's business, even if the competition is injurious to the latter, except so far as to prevent the use of trade secrets or lists of customers, or unless the services of the employee are of a unique character."
[4]  He declined, however, to grant an injunction on the grounds that the answer specifically averred that defendant had been improperly discharged without the notice required by the contract.
[5]  Significantly these contracts do not contain covenants against solicitation of plaintiff's customers but bar the employee generally from engaging in the same business as the employer. Compare Roane, Inc., v. Tweed, supra; Seligman & Latz of Pittsburgh, Inc., v. Vernillo, 382 Pa. 161, 114 A.2d 672. Furthermore they mention but do not stress a guided apprenticeship as was the case in the Vernillo case.
[6]  See Comment on Clause (f) § 516 of the Restatement of the Law, Contracts, note 3, supra.


466 F.2d 1234
Joseph COLOSIMO and Lorraine Colosimo, parents and naturalguardians of John A. Colosimo, a minor, and JosephColosimo and Lorraine Colosimo, in their own right,v.The MAY DEPARTMENT STORE COMPANY, a corporation, Appellant inNo. 71-1492,v.Mr. and Mrs. James P. HUGHES and Muskin Manufacturing Company.Appeal of MUSKIN MANUFACTURING COMPANY, in No. 71-1493.Nos. 71-1492, 71-1493.
United States Court of Appeals,Third Circuit.
Argued April 10, 1972.Decided July 27, 1972.As Amended Sept. 13, 1972.

Andrew L. Weil, Engler, McGregor & Reinstadtler, Pittsburgh, Pa., for May Department Store Co.
A. Ralph Ellis, Alter, Wright & Barron, Pittsburgh, Pa., for Muskin Manufacturing Co.
P.J. McArdle, McArdle & Mansmann, Pittsburgh, Pa., for Colosimos.
Before HASTIE, VAN DUSEN and ALDISERT, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.

1
This is an appeal by a manufacturer and a retailer of a pool from a judgment, D.C., 325 F.Supp. 609, against the retailer with liability over against the manufacturer for injuries sustained by minor plaintiff as a result of a dive into the pool.

2
The facts as established by the record indicate that a pool manufactured by the Muskin Manufacturing Co. was purchased from a division of the May Department Store Co. by defendants, Mr. and Mrs. Hughes, and assembled in their backyard.  The pool was an above- ground circular unit of the type variously referred to as a wading, splashing or swimming pool.  The pool was 12 feet in diameter, with three-foot high side walls, and was filled with water to a depth of less than three feet.  Straddling the side of the pool was an "A" shaped ladder with one leg resting on the bottom of the pool and the other on the lawn.  At the top of the ladder, approximately 38 inches above the ground and constituting its top step, was a small platform measuring approximately 18 by 14 inches.  The liner of the pool was composed of a smooth, dark blue vinyl material which, according to testimony, became slippery when immersed in water.

3
On the first day that the pool was in use, minor plaintiff, John Colosimo, age 15, was granted permission to join several other neighborhood youths in the pool.  John climbed the "A" -shaped ladder, stood on the top, and arms outstretched, dove headfirst into the pool.  As a result of this dive, he sustained the injuries in dispute.

4
A diversity action was instituted by the minor plaintiff's parents, alleging that the pool was dangerously defective in violation of Sec. 402A of the Restatement of Torts 2d.1  It was alleged that the pool was defectively designed and unreasonably dangerous for normal use by the ultimate consumer in that the platform constituting the top of the ladder was an invitation to dive and the slippery vinyl surface would cause the outstretched hands of a diver to slide apart on impact, leaving the head unprotected.

5
We find that as a matter of law there was no basis for the jury's affirmative answer to question 1.2  We note that a product is not dangerously defective within the meaning of Sec. 402A "when it is safe for normal handling and consumption," Sec. 402A Restatement of Torts 2d, comment h, and that a reasonable consumer would know that a dive into a small, above-ground backyard pool containing less than three feet of water was an abnormal use which carried with it a substantial risk of injury.3  As the trial judge pointed out in his charge, the jury was required to find not only that the "defective" condition was dangerous but also that such condition was a proximate cause of the mishap.4  The facts in this record make clear that the availability of the platform on top of the ladder, and the absence of warning signs concerning diving, were not a substantial factor in causing plaintiff's injuries since he was well aware of the risk of striking the bottom of the pool.  Although John was only 15 years of age at the time of the accident, he had eight years of experience in swimming.  He had completed four Red Cross courses covering various aspects of aquatics, including diving.  He admitted that he had been instructed to check the depth of water before diving into it.  Moreover just before diving into the pool, he had observed an adult apparently sitting in the pool with the water coming only to his chest and his arms resting on the rim of the pool.  Thus, the approximate depth of the water, actually less than three feet, was apparent to any observer and to plaintiff in particular.

6
In addition, John testified that he had made shallow dives without mishap "into 3 or 4 foot [sic] of water in . . . [another] pool before this."  He said that on this occasion he thought that he was so propelling himself that he would "just go out, you know, pretty shallow dive without touching the bottom," but misjudged his dive with the result that he struck his head and sustained serious injury.  This error of judgment in the execution of a shallow dive, rather than any lack of warning or any slippery condition of the pool, was the proximate cause of this accident.5

7
The judgment of October 26, 1970, will be reversed and the district court will be directed to enter judgment for the defendant, May Department Store Company, and the third-party defendants; each party to bear their or its own costs.

8
HASTIE, Circuit Judge (concurring).

9
I approve Judge Van Dusen's opinion and join in the decision it requires.  This concurring opinion undertakes to set out an alternative basis of decision that, in my view, also is sound.

10
Even if there had been a jury question on the foreseeability of a danger of abnormal use of the pool by some children for diving, and sufficient evidence to permit a finding that such danger of abnormal use was a proximate cause of the accident, the plaintiff here cannot recover because, under the law of Pennsylvania, his voluntary assumption of risk is a complete defense.  Bartkewick v. Billinger, 1968, 432 Pa. 351, 247 A.2d 603; see Greco v. Bucciconi Engineering Co., 3d Cir. 1969, 407 F.2d 87, 92.  True, the jury, answering a special interrogatory, found that, in diving into a shallow pool to his injury, the plaintiff did not assume the risk of a known danger.  But, in my judgment, the undisputed evidence required a contrary finding and a consequent denial of recovery.

11
Judge Van Dusen has pointed out that the plaintiff's own testimony concedes his training and experience in diving, as well as swimming, and his observation of a man sitting in the pool with the water coming only to his chest.  The plaintiff also admits that in these circumstances he attempted unsuccessfully to make a shallow enough dive to avoid striking the bottom.  In the light of this evidence I can find no proper way to avoid the conclusion that recovery is barred by voluntary assumption of the risk of conduct that plaintiff knew to be dangerous.  No sign warning pool users against diving would have added to his awareness of risk.

12
Finally, appellee argues that the smooth vinyl bottom of the pool was slippery when covered with water so that his outstretched hands slid on it and did not cushion the impact of his dive as much as would have been the case had the bottom been rough.  Assuming that this was a defect in the pool's construction, analogous Pennsylvania cases hold that where a plaintiff's own fault causes an accidental fall and injury, recovery is precluded, even though fault of the defendant causes the impact to be more severe and the injury greater than otherwise might have occurred.  Barber v. John C. Kohler Co., 1968, 428 Pa. 219, 237 A.2d 224; Zlates v. Nasim, 1940, 340 Pa. 157, 16 A.2d 381.

13
For these reasons, in addition to those stated by Judge Van Dusen, I would reverse the judgment.

14
ALDISERT, Circuit Judge (dissenting).

15
Because I believe there was sufficient evidence to submit the issues of liability and assumption of risk to the jury, I dissent.

16
In the summer of 1965, Mr. and Mrs. Hughes purchased from Kaufmann's Department Store, a three by twelve foot circular pool.  At the time of the purchase, Mrs. Hughes viewed in Kaufmann's toy department a completely assembled pool of the type she purchased, complete with filter and ladder.  The ladder was constructed in the shape of a capital "A", and it straddled the pool with one leg of the "A" in the water and the other leg on the lawn.  Near the top of the ladder, approximately 38 inches above the ground, rested a small, level platform, measuring approximately 18 by 14 inches.

17
The department store delivered the pool and the family assembled it in their backyard, following the instructions provided by the manufacturer.  On the very first day the pool was in use, John Colosimo, age 15, a neighbor of the Hughes family, saw a group of friends frolic in the pool, and asked if he might join in the fun.  After receiving permission from his parents and the Hughes family, John donned his swimming trunks and made ready to engage in the frivolity.  As John approached the pool, he witnessed a number of his friends diving from the platform atop the ladder into the pool.  John climbed the ladder, stood on the platform, and, arms outstretched, dove into the pool.  As he carried through the water, John's hands touched the vinyl bottom of the pool and slid apart causing his head to strike the bottom, resulting in a broken neck and other severe and disabling permanent injuries.

18
John's parents filed this diversity action against Kaufmann's the retailer of the pool.  Kaufmann's, in turn, initiated a third-party action for indemnity against Muskin Manufacturing Co., the manufacturer of the pool, and also against Mr. and Mrs. Hughes.

19
Essentially, plaintiffs proceeded upon the theory that Kaufmann's should be held responsible for all injuries suffered by John as a result of the dive because the pool was defectively designed and unreasonably dangerous to the ultimate user.  Specifically, plaintiffs claimed that two characteristics of the pool constituted defective conditions under normal usage.  They argued first that the platform atop the ladder was an invitation for a child to use it to dive, yet there was no warning sign on or near the platform, nor a warning in any material accompanying the pool, that diving should be prohibited.  Plaintiffs contended that this failure to post or paint prominently a "No Diving" sign constituted a defect in the design of the pool, making it unreasonably dangerous to the user.  Plaintiffs also claimed that the smooth condition of the pool liner, and its absence of frictional qualities, made the pool floor so slippery as to cause the hands of a diver to "fly out" and thus subject his head and neck to injuries.

20
At the close of the testimony, the court submitted four special interrogatories to the jury, which returned the following answers:

21
1.  Were the injuries which were sustained by John Colosimo on July 21, 1965, caused by a defective condition of the pool unreasonably dangerous to John Colosimo at the time he dived into it?

22
Answer: Yes.

23
2. Were John Colosimo's injuries sustained as a result of his having assumed the risk of a known danger?

24
Answer: No.

25
3.  Did the May Department Store purchase the pool from Muskin Manufacturing Company in the same condition in which it was sold to Mr. & Mrs. Hughes?

26
Answer: Yes.

27
4. Was there any negligence on the part of Mr. and/or Mrs. Hughes which was a proximate cause of the accident which occurred on July 21, 1965?

28
Answer: No.

29
Once the jury determined the liability issue, evidence was introduced pertaining to the damages aspect of the case.  This time the jury returned with an award of $100,000 for John Colosimo and $25,000 for his parents.  The district court entered judgment against Kaufmann's for $125,000.  The court further ordered that judgment be entered against Muskin on Kaufmann's claim for indemnity for $125,000.  After motions for a new trial and judgment n.o.v. were denied, this appeal followed.

30
On the basis of its review of the evidence, the majority has concluded "that as a matter of law there was no basis for the jury's affirmative answer to question 1." Indeed, the majority finds the Sec. 402 issue obviated by what it terms the youth's "abnormal use" of the pool.  I disagree and would hold that it was correct to submit to the jury the question of the existence of a defective condition under Sec. 402A on the theory that the ladder constituted an invitation to participate in a dangerous dive.  One piece of the manufacturer's literature disclosed a user in the act of swimming; another carried the statement, "Get Ready to Swim."  Thus, it was permissible for the jury to infer that diving was associated with the normal act of swimming; that diving in this pool was dangerous; that a warning should have been posted; and that without the warning, the pool was manufactured and sold in a defective condition.

31
Additionally, I believe it was permissible for the jury to find that the proximate cause of the injury was the failure to construct the pool with a lining that contained frictional qualities; that the purpose of extending a diver's hands is to protect the head from stiking the bottom; that a slippery bottom made the protection of the hands ineffective; and that a slippery liner was a defective condition.  Clearly there was sufficient evidence under either or both theories to submit the defective condition issue to the jury under Sec. 402A.

32
Further, I disagree with the majority's finding that young Colosimo's dive constituted an abnormal use of the pool, and also from the concurring opinion's determination that the youth voluntarily assumed the risk of a known danger.

33
Examining the latter contention first, I note that in Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968), relied upon in the concurring opinion, the court found that appellant, an experienced glass factory worker, was cognizant of the destructive mechanisms inside the glass crushing machine into which he inserted his hand, and held that he voluntarily exposed himself to a known danger.  Buttressing that decision was the presence of an on-off switch, easily accessible to appellant, which "would have provided a safe and efficient means of stopping" the machine before clearing it. 247 A.2d at 606.  Cf., Blim v. Newbury Industries, Inc., 443 F.2d 1126 (10th Cir. 1971).  Here, John Colosimo did not voluntarily assume the risk of a known danger.  Most assuredly, thoughts of danger could not have been further from the boy's mind as he watched his friends jumping from the ladder's platform into the coolness of the pool.  To conclude that he saw his friends as performing daredevil stunts, risking life and limb to jump into the pool from the platform, all the time recognizing that it was dangerous or risky to do so, is to substitute fantasy for reality.  He merely saw other children diving into a new pool and he gaily followed suit.  Moreover, in response to the second interrogatory the jury specifically found that John Colosimo did not assume the risk of a known danger, and there is abundant evidentiary support for that finding.

34
Bartkewich held, and properly so, that the defective design provisions of Sec. 402A "should only apply * * * where the absence of the safety device caused an accidental injury which was of the type that could be expected from the normal use of the product." 247 A. 2d 605.  Here there was absent a safety device-a warning against diving - which could have prevented this accident.  Clearly it was foreseeable that this platform might be viewed as an invitation to dive, and was so viewed by others besides Colosimo.  Can it be urged that all of the children who were swimming and not merely wading were making abnormal use of the pool?  I think not.  The lack of a proper safety device indicating the dangers of diving from the platform constituted a defect in the pool's design from which Sec. 402A liability may result.  Again, the jury so found, and, in my view, there is sufficient evidence to support that finding.

35
In sum, I believe that there was more than ample evidence for the jury to find (1) that the cause of the accident was the defective design of the pool rendering it unreasonably dangerous to John Colosimo, (2) that John Colosimo did not voluntarily assume the risk of a known danger when he dive into the pool, and (3) that the trial court properly charged on defective design and assumption of risk.

36
I would affirm the judgment in favor of the plaintiff, Appeal No. 71-1492.  Because of the majority's decision denying relief to the plaintiff, it is not necessary to meet the indemnity-contribution issue raised in Appeal No. 71-1493.

1
 Section 402A was adopted as the law of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966)

2
 The court submitted four interrogatories to the jury, the first two of which read as follows:
"1. Were the injuries which were sustained by John Colosimo on July 21, 1965, caused by a defective condition of the pool unreasonably dangerous to John Colosimo at the time he dived into it?
"2. Were John Colosimo's injuries sustained as a result of his having assumed the risk of a known danger?"

3
 See Speyer v. Humble Oil & Refining Co., 403 F.2d 766, 772 n. 16 (3d Cir.), cert. denied, 394 U.S. 1015, 89 S.Ct. 1634, 23 L.Ed. 41 (1968); Prosser, The Fall of the Citadel, 50 Minn.  L.Rev. 791 (1966); Frumer and Friedman, Products Liability, Sec. 15,351 (1971 rev.).  Cf. Mannsz v. Macwhyte Co., 155 F.2d 445 (3d Cir. 1968)

4
 Comment d of Section 402A states that the rule of that Section applies "to products which, if they are defective, may be expected to and do cause" harm.  See Frumer and Friedman, Products Liability, Sec. 11.02, Proximate or Legal Cause (1971 rev.), and cases cited; Restatement of Torts (2d), Chapter 16, Topic. 1

5
 It is noted that the trial judge submitted to the jury two possible defective and unreasonably dangerous conditions: (1) that a user would dive into the water from the ladder in such a way that the slippery condition of the bottom of the pool presented an unreasonable hazard if the diver struck the bottom, and (2) that the ladder and pool assembly were dangerously defective due to absence of adequate warning signs or notice to the user that it was not to be used for diving purposes.  In finding the pool defective, the jury might have found that the ladder and pool assembly was defective in the second respect only.  Yet in submitting the matter to the jury, the judge did not explain that if the jurors found the pool dangerously defective solely because of (2) above, the record required the jurors to find that the plaintiff had assumed that risk.  Under such circumstances, even if other considerations did not require an outright reversal, the record would require a new trial on the issue of assumption of risk.  Cf. Elder v. Crawley Book Machinery Co., 441 F.2d 771, 773 (3d Cir. 1971)


141 P.3d 54 (2006)
STATE of Washington, Respondent,
v.
James FRENCH, Appellant.
No. 78569-4.
Supreme Court of Washington, En Banc.
Argued June 13, 2006.
Decided August 17, 2006.
*56 Sheryl Gordon McCloud, Attorney at Law, Seattle, for Appellant.
Kimberley Robert Farr, Michael C. Kinnie, Clark Co Pros Attys Office, Vancouver, for Respondent.
C. JOHNSON, J.
¶ 1 This case involves the issue of whether the common law fugitive disentitlement doctrine applies where a defendant absconds after conviction but before sentencing. If the doctrine applies, a defendant has waived his or her right to appeal the conviction, and we do not need to address any claimed trial court errors relating to James French's (French) convictions. If the doctrine does not apply, we must address the issues pertaining to both French's convictions and sentence.
¶ 2 The issues include: (1) whether the trial court erred when it declined to reopen the case for the purpose of presenting additional evidence of a witness' motive to lie and, if so, whether the error violated the defendant's right to present a defense; (2) whether the trial court erred in refusing to grant public funds to translate extradition documents into English under CrR 3.1(f); (3) whether the extradition treaty at issue applies in the context of a rape conviction and whether the defendant may individually claim protection under the treaty; and (4) whether the crime of child molestation is a lesser included offense to the crime of rape and whether any of the convictions violate principles of double jeopardy or constitute the "same criminal conduct." This case was transferred from the Court of Appeals under RAP 4.4.

FACTUAL AND PROCEDURAL HISTORY
¶ 3 Appellant French was convicted in 1995 of six counts: one count of first degree child molestation, two counts of first degree rape of a child, and three counts of second degree rape of a child, for raping and molesting his stepdaughter, Crystal Fleming, when she was between the ages of 9 and 14. Before the sentencing hearing, French fled to Mexico. He was apprehended in Mexico in 2005 and extradited to Washington under an extradition treaty between the United States and Mexico. French was sentenced to 192 *57 months in prison on May 19, 2005. He is appealing both his convictions and sentence.
¶ 4 During trial, Crystal's mother, Theresa French-Flannery (French-Flannery), testified that she married French in October 1987. The couple resided in Vancouver, Washington, at what was referred to as the "F Street House" and then moved to the "Lake Crest House" in 1990. They operated a bail bonds business from their home. French-Flannery testified that she and French amicably divorced in March 1993. She testified that she wanted to open her own bail bonds business in California and needed French to act as a general agent and sponsor her business. Ultimately, French did not sponsor the business. Defense counsel cross-examined French-Flannery about these events and her bias against French arising from them. Additionally, a defense witness testified that French-Flannery was very upset when she learned that French would not help her. The State presented testimony from Crystal Fleming supporting the charged offenses and the defense cross-examined her.
¶ 5 Over the weekend following the close of the State's rebuttal case, French-Flannery engaged in conversations with a defense witness, Joseph Emington, and with French. The defense sought to reopen the case to present testimony about these incidents. In an offer of proof, defense counsel indicated that Emington would testify that French-Flannery asked Emington to call French on the phone and then got on the phone herself to speak with French. Emington would testify that French-Flannery, while on the phone with French, stated that she hoped and expected French would be acquitted and that she still loved French. A third party, an employee of French, would also testify that she listened in on the phone call between French and French-Flannery at French's request and heard French-Flannery make the same statements described above. Emington would also testify that during the course of the weekend, French-Flannery told him that if French had put money into a college trust fund for her children, "none of this would have occurred," and that she intended to file a civil suit against French when the criminal trial was over. Verbatim Report of Proceedings (VRP) at 988 (Nov. 13, 1995).
¶ 6 The State opposed reopening the case and presented its own offer of proof, based on the prosecutor's conversation with French-Flannery earlier that morning, indicating that French-Flannery admitted that she spoke with Emington and French over the weekend. However, French-Flannery would testify that she told Emington specifically that she did not intend to bring a civil suit against French. French-Flannery would also testify that when she attempted to speak with French on the telephone, he began yelling at her and then the conversation ended. The State argued that neither French-Flannery nor her daughter, Crystal Fleming, ever indicated that they had ulterior motives in bringing this action. The trial court agreed the disputed evidence could show motive or bias on the part of French-Flannery, Emington, and possibly Crystal Fleming, but declined to reopen testimony because the evidence did not relate directly to the sexual abuse allegations at issue and would be misleading or confusing, cause undue delay, and waste the court's time. The trial judge also noted that he was not sure some of the statements would be admissible under the rules of evidence and the record already contained evidence of motive or bias on the part of French-Flannery, Emington, and Crystal Fleming.

ISSUES
¶ 7 (A) Whether the fugitive disentitlement doctrine applies when a defendant absconds from the jurisdiction after conviction but before sentencing?
¶ 8 (B) Whether the defendant's right to present a defense was violated when the trial court declined to reopen the trial to allow two witnesses who had previously testified to present further testimony about statements made after the close of the State's rebuttal case that could qualify as impeachment evidence?
¶ 9 (C) Whether the trial court's denial of public funds for the translation of Mexican extradition documents violates CrR 3.1 and the due process and fair trial guaranties of *58 the Washington and United States Constitutions?
¶ 10 (D) Whether the extradition treaty applies to crimes that do not include a mental intent element?
¶ 11 (E) Whether child molestation is a lesser included offense of rape and whether the defendant's convictions violated his double jeopardy rights or constitute the "same criminal conduct"?

ANALYSIS

The Fugitive Disentitlement Doctrine
¶ 12 The fugitive disentitlement doctrine is a common law rule which provides that one who flees a court's jurisdiction while on appeal waives his or her right to pursue that appeal. Washington courts first recognized the doctrine in State v. Handy, 27 Wash. 469, 67 P. 1094 (1902). In that case, Handy was convicted of obtaining money under false pretenses and sentenced to two years in prison. Handy filed an appeal and later escaped from jail. This court, relying on cases from other jurisdictions, adopted the doctrine and explained that dismissal was appropriate because the defendant would not be available if the appeal were successful and a new trial ordered and would not be available for execution of the sentence if the appeal were not successful. The court ordered the appeal dismissed unless the defendant was returned to custody within 60 days. Handy, 27 Wash. at 470-71, 67 P. 1094.
¶ 13 More recently, the Court of Appeals expanded application of the doctrine. State v. Estrada, 78 Wash.App. 381, 896 P.2d 1307 (1995). In Estrada, the defendant was convicted of vehicular homicide, but fled the state before sentencing. Estrada was apprehended eight years later. After judgment and sentence, Estrada attempted to appeal his conviction based on alleged errors in his trial. The Court of Appeals held that by fleeing the jurisdiction, Estrada waived his right to appeal. The court adopted the analysis of the Second Circuit Court of Appeals and found the fugitive disentitlement doctrine applied for three reasons. First, a defendant demonstrates disrespect for the judicial process by fleeing from the jurisdiction; second, a court's refusal to consider claims of former fugitives tends to discourage escape and promote the orderly operation of the judicial process; and third, a defendant may prejudice the prosecution and benefit himself of herself by escaping for an extended period of time because the government must retry the defendant after memories have faded and evidence has been lost. Estrada, 78 Wash.App. at 383, 896 P.2d 1307 (citing United States v. Persico, 853 F.2d 134, 137 (2d Cir.1988)).
¶ 14 French argues that Estrada was wrongly decided because the analysis relied entirely on federal cases and failed to address the fundamental right to appeal criminal convictions guaranteed by article I, section 22 of the Washington Constitution.[1] He contends that in Washington, a defendant cannot be deemed to have waived the constitutional right to appeal unless the State can show the defendant made a knowing, intelligent, and voluntary waiver of that right. State v. Sweet, 90 Wash.2d 282, 286, 581 P.2d 579 (1978) (holding "there is no presumption in favor of the waiver of the right to appeal. The State carries the burden of demonstrating that a convicted defendant has made a voluntary, knowing, and intelligent waiver of the right to appeal."). French asserts that because there is no federal constitutional right to appeal, federal courts may rely on utilitarian and pragmatic concepts such as mootness and disrespect to the judiciary to justify using the fugitive disentitlement doctrine. He argues, however, that Washington's constitutional guaranty of the right to appeal in all criminal cases trumps the doctrine's traditional justifications.[2]
*59 ¶ 15 French is correct that our cases have recognized that article I, section 22 of the Washington Constitution expressly guarantees the right to appeal in all criminal cases. We can presume that a defendant who has already filed an appeal has been informed of the right to appeal. The same presumption, however, does not apply to a defendant who has not yet begun the appellate process. Also, we have held that the State bears the burden to show a defendant made a knowing, intelligent, and voluntary waiver of his or her right to appeal. Sweet, 90 Wash.2d at 286, 581 P.2d 579.
¶ 16 The reasons that justify dismissal of an appeal when an appellant flees become attenuated when applied in the context of a convicted but unsentenced defendant. First, since sentencing has not occurred, there is nothing yet to appeal. Second, upon sentencing of the defendant, the terms of his or her sentence can be appealed. Third, the deterrent effect of dismissal is adequately addressed by the fact that the State may pursue additional charges for the act of fleeing. Fourth, the defendant presumably is not informed of the right to appeal before sentencing, thereby negating the knowledge requirement of a valid waiver. Finally, under the facts of this case, the State has not argued or established prejudice. Declining to extend the doctrine to the facts of this case is consistent with preserving the constitutional right to appeal.
¶ 17 We hold the fugitive disentitlement doctrine generally does not apply to a defendant who absconds after conviction but before sentencing. We overrule Estrada to the extent it holds a former fugitive who absconds after conviction but before sentencing has waived his or her right to appeal the conviction in all cases. The State has not shown any relationship between French's former fugitive status and the appellate process that would require dismissal of this appeal, nor has the State argued that it would be prejudiced in this case if French were allowed to pursue his appeal. Because we find French's appeal is not barred by the fugitive disentitlement doctrine, we reach the substantive issues of his appeal.

Impeachment Evidence
¶ 18 French argues his constitutional right to present a defense was violated when the trial court judge refused to reopen the case and allow French to present bias evidence concerning statements allegedly made by his ex-wife. French notes the trial judge agreed the proffered evidence would tend to show bias but declined to reopen the case because of the danger of misleading the jury, confusing the issues, causing undue delay, wasting time, and needlessly presenting cumulative evidence. ER 403. French acknowledges the trial judge has discretion to exclude the evidence under the evidence rules but contends his federal constitutional rights required admitting the evidence.
¶ 19 French relies on Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), for the proposition that a witness' motivation in testifying is a constitutionally protected right of cross-examination. In Davis, the trial court granted a protection order preventing the defense from cross-examining a key prosecution witness on his probationary status. The witness had identified the defendant to the police as one of two men the witness had seen near the witness' home with a crowbar where a stolen safe was later recovered. The witness was on probationary status after he had been adjudicated a delinquent for burglarizing two cabins. Because of the nature of the witness' juvenile crimes, the State sought to cross-examine the witness about his motive to lie. Particularly, the State wished to explore whether the defendant was eager to make an identification in this case because the witness knew he would be an obvious suspect in the case due to his prior burglary convictions and the location of where the safe was retrieved. In reversing the conviction and remanding the case, the United States Supreme Court found the defendant's right to effectively cross-examine witnesses outweighed the State's interest in protecting juvenile offenders.
¶ 20 French also relies on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) to argue his federal constitutional right to present a defense trumps a state evidentiary rule. Chambers was on trial for murdering a local police officer. A *60 key witness had orally confessed to three individuals and formally confessed to authorities to shooting the officer. The witness later repudiated the formal confession. Under Mississippi's common law "voucher" rule, Chambers was not allowed to cross-examine the witness and was restricted in the scope of his direct examination of the witness.[3] The rule prevented Chambers from exploring the circumstances of the witnesses' three prior oral confessions and from challenging the repudiation of the formal confession. In addition, under state hearsay rules, Chambers was not allowed to introduce the testimony of the three witnesses to whom the key witness had confessed. The Court found the combination of these errors effectively denied Chambers a fair trial in accord with traditional and fundamental standards of due process. Chambers, 410 U.S. at 302-03, 93 S.Ct. 1038.
¶ 21 French's situation is readily distinguishable from the trials in Davis and Chambers. The defendants in those cases were wholly prevented from cross-examining key witnesses on certain subjects central to their defenses. In Davis, the witness had identified the defendant to the police and placed the defendant with a crowbar at the scene were the safe was found. In Chambers, the witness' confessions would have exculpated the defendant from the crime entirely. Thus, the witnesses in the above cases were central to the question of the defendants' guilt. Here, French-Flannery did not testify to witnessing or even being suspicious that French was molesting her daughter. Her testimony was used to corroborate some details of Crystal Fleming's testimony. In addition, unlike the defendants in Davis and Chambers, French had the opportunity to and did cross-examine French-Flannery on all subjects, including her bias and motive to lie. The record shows that French's attorney cross-examined French-Flannery about her expectation that French would help her establish a bail bonds business in California and about the fact that ultimately French did not help her. The record also indicates the prosecution repeatedly objected to this line of questioning but the trial judge continued to overrule the objections and allowed the questioning. Thus, unlike the above cases, French was not prevented from cross-examining French-Flannery on her bias or her motives. French has not demonstrated that the trial judge's decision to exclude additional cross-examination on a subject already explored during the trial denied French a fair trial or an opportunity to present an effective defense as guaranteed by the federal constitution. Having so found, we now must decide if the trial judge's decision was in accord with Washington's rules of evidence.
¶ 22 Under the rules of evidence, a trial court may exclude relevant evidence if the probative value is outweighed by the dangers of confusion of the issues or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ER 403. The trial court's ruling is afforded great deference and is reviewed under an abuse of discretion standard. State v. Luvene, 127 Wash.2d 690, 706-07, 903 P.2d 960 (1995). Here, the trial judge found the proffered evidence might be relevant for impeachment purposes but also found the record already contained sufficient evidence to allow the parties to argue their theories to the jury.
¶ 23 The record shows that French was given an opportunity to fully cross-examine French-Flannery and that he in fact elicited evidence of bias. The defense's offers of proof indicated the witnesses would testify that French-Flannery stated that she expected and hoped French would not be found guilty, that she still loved French, and that she intended to file a civil suit against French after the trial was over. VRP at 984-85, 986, 988 (Nov. 13, 1995). The State's counter-offers of proof stated that French-Flannery specifically indicated she did not intend to bring a civil action nor did she have any interest in bringing a civil action against French. VRP at 991 (Nov. 13, 1995). Thus the offers of proof directly contradicted each other, were not related to the ultimate issue of whether French had molested his step-daughter, *61 and were related to a subject already explored during the defense's cross-examination of French-Flannery. The trial court's ruling excluding the evidence as misleading, confusing, and a waste of time was not unreasonable and therefore was not an abuse of discretion.

Translation of Extradition Documents with Public Funds
¶ 24 As part of its decision to extradite, the Mexican court authored and submitted a 76-page document to the United States Department of Justice. French refers to the document as "the Acuerdo." Br. of Appellant at 30. Under CrR 3.1(f),[4] French brought a motion to have the document translated into English. The trial court denied the motion, finding it was not necessary under CrR 3.1(f) and noting the cost was prohibitive.[5] French now argues the trial court erred by denying his motion. French contends he cannot show the translation is necessary because he cannot know what information the Acuerdo contains until it is translated. However, he speculates that several issues could arise, including the "doctrine of specialty"[6] or the principle of dual criminality.[7] French also argues the trial court's denial of a translator violates Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which requires the State to provide access to the raw materials necessary to establish an effective defense.
¶ 25 The State argues that the trial court had the discretion to deny the request, and French did not meet his burden of showing the translation was necessary.
¶ 26 Whether expert services are necessary for an indigent defendant's adequate defense is within the discretion of the trial court and will not be overturned absent an abuse of discretion. State v. Young, 125 Wash.2d 688, 693, 888 P.2d 142 (1995). In Young, we examined several Court of Appeals opinions analyzing psychological evaluations under CrR 3.1(f). In discussing the cases, we noted the appellate courts generally did not find an abuse of discretion in cases where the psychological evaluations would not affect criminal liability nor would they be used to rebut similar, adverse evidence presented by the State. We concluded these opinions stood for the proposition that CrR 3.1(f) did not mandate the expenditure of public funds for psychological evaluations when the evaluations would be used only for sentencing purposes. We found these cases were in line with the general rule that the *62 trial court has the discretion to approve requests for public funds and that decision will be upheld unless the court abuses its discretion. Young, 125 Wash.2d at 692-93, 888 P.2d 142.
¶ 27 The trial court here found French's request was not necessary because the judge was limited to sentencing French within the standard range applicable to his six convictions. French failed to show how translation of the Acuerdo was necessary for an adequate defense at his sentencing hearing. French had already been found guilty of the six charges; thus the Acuerdo could not affect the convictions. Moreover, the State was not seeking to introduce similar, adverse evidence at sentencing. Under the terms of the extradition, as outlined in the letter from the United States Department of Justice, Clerk's Papers at 303-04, the State was precluded from seeking a sentence of life imprisonment or death, and from seeking additional fines. The trial court was aware that it could sentence French only within the standard range for the crimes for which he had already been convicted. We find the trial court did not abuse its discretion in denying the motion for public funds under CrR 3.1(f).
¶ 28 We also find the facts of this case do not violate Ake. In Ake, the United States Supreme Court found the defendant was entitled to public funds for expert psychiatric assistance during both the trial and the sentencing phase. The Court found the assistance was necessary at sentencing because Ake's future dangerousness would be at issue and a finding of future dangerousness would directly affect Ake's sentence. Ake, 470 U.S. at 86-87, 105 S.Ct. 1087. Thus, Ake is in line with our discussion above requiring the expenditure of public funds only when the request affects liability or is necessary to rebut similar, adverse evidence presented by the State. Here, the State was not seeking an exceptional sentence. The trial judge, in his order denying the motion, explicitly stated he understood he could not sentence French outside of the standard range for the six convictions. The trial court's decision to deny the request for translation does not conflict with Ake.

Individual Rights under the Extradition Treaty
¶ 29 French argues he may claim individual protection under the extradition treaty between the United States and Mexico because the treaty is self-executing. A self-executing treaty is one that is binding on the courts absent implementing legislation and allows individuals to claim protection under the treaty. French asserts that treaties generally are self-executing unless there is specific language to the contrary. Asakura v. City of Seattle, 265 U.S. 332, 341, 44 S.Ct. 515, 68 L.Ed. 1041 (1924). French claims that under the extradition treaty, he may be extradited only for willful crimes. Because Washington does not define a mental element for the crime of rape, French argues it cannot be a willful crime. Thus, according to French, he was illegally extradited under the terms of the treaty.
¶ 30 Whether a defendant may be prosecuted for a certain crime under an extradition treaty is a matter for the extraditing country to determine. United States v. Campbell, 300 F.3d 202, 209 (2d Cir.2002) (citing Johnson v. Browne, 205 U.S. 309, 316, 27 S.Ct. 539, 51 L.Ed. 816 (1907)). French argues that the crimes for which he was extradited are not extraditable offenses under the treaty. However, Mexico granted French's extradition specifically for those crimes. We decline to reach the merits of French's claim because whether or not child rape and child molestation are extraditable offenses under the treaty was a question for Mexico to decide.[8]

Lesser Included Offense
¶ 31 French argues child molestation in the first degree is a lesser included offense of rape of a child in the first degree. As such, French maintains that his sentence, based on convictions for both crimes, violates *63 principles of double jeopardy, merger, and chapter 9.94A RCW, the Sentencing Reform Act of 1981. The test for whether two offenses may be separately charged and punished is whether each crime contains an element that the other does not and whether the evidence necessary to support a conviction for one crime would have been sufficient to warrant a conviction for the other. State v. Freeman, 153 Wash.2d 765, 772, 108 P.3d 753 (2005) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). French contends that child molestation requires proof of sexual contact with a child and rape of a child requires proof of sexual intercourse with a child. Thus, he concludes, the only difference between the two crimes is that one requires a finding of penetration while the other does not. French recognizes numerous decisions holding child molestation is not a lesser included offense to child rape but contends these cases are not binding in light of our holding in State v. Lorenz, 152 Wash.2d 22, 34, 93 P.3d 133 (2004). French argues that in Lorenz, we held the mental element of child molestation, acting "for the purpose of sexual gratification," is no longer an element of child molestation. He concludes that without the mental element, child molestation must now qualify as a lesser included offense to the crime of child rape.
¶ 32 French misreads our holding in Lorenz. In Lorenz, we held that the phrase "for the purpose of sexual gratification" is merely a definition of the sexual contact[9] element and therefore does not need to be separately listed in the to-convict instructions. We did not hold that the State is relieved of its burden to prove a defendant acted "for the purpose of sexual gratification" beyond a reasonable doubt. Sexual contact, an element of child molestation, therefore continues to require a showing of purpose or intent; rape of a child does not. Rape of a child also requires a finding of penetration whereas child molestation does not. The two crimes are separate and can be charged and punished separately.

Double Jeopardy
¶ 33 French also argues that Counts I-III and Counts IV-VI constitute the "same criminal conduct" and violate principles of double jeopardy by punishing French more than once for a single offense.[10] French contends Count I duplicates Counts II and III because it is a lesser included offense.[11] French argues Counts II and III and Counts IV-VI constitute the "same criminal conduct" because each subset of counts required the same criminal intent, was committed during the same period of time, occurred at the same place, and was committed against the same victim.
¶ 34 A double jeopardy violation claim is distinct from a "same criminal conduct" claim and requires a separate analysis. The double jeopardy violation focuses on the allowable unit of prosecution and involves the charging and trial stages. The "same criminal conduct" claim involves the sentencing phase and focuses instead on the defendant's criminal intent, whether the crimes were committed at the same time and at the same place, and whether they involved the same victim. State v. Tili, 139 Wash.2d 107, 119 n. 5, 985 P.2d 365 (1999).
¶ 35 The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 9 of the Washington Constitution prohibit the imposition of multiple punishments for a single *64 offense. Tili, 139 Wash.2d at 112, 985 P.2d 365. In Tili, the defendant was convicted of three counts of first degree rape for a sexual assault involving three distinct acts of penetration. In making a similar double jeopardy claim, Tili argued the legislature did not intend each act of penetration to constitute a single "unit of prosecution." After reviewing the statute, we found the unit of prosecution in a rape case is "sexual intercourse," which is defined as any penetration of the vagina or anus. Tili, 139 Wash.2d at 119, 985 P.2d 365 (quoting RCW 9A.44.010(1)). We therefore rejected the double jeopardy claims and upheld the three convictions.
¶ 36 The facts here present an easier case than Tili. In Tili, the charges arose from an assault which had occurred during a single night. Here, the victim testified to an ongoing pattern of molestation and rape that spanned a period of five years. The victim testified to several acts of penetration occurring at both the F Street house and the Lake Crest house. Because each act of penetration is sufficient to support a single count of rape, French's double jeopardy argument fails.

Same Criminal Conduct
¶ 37 French relies on State v. Palmer, 95 Wash.App. 187, 975 P.2d 1038 (1999) to support his claim that Counts II and III, and Counts IV-VI constitute the "same criminal conduct." In Palmer, the defendant assaulted the victim and forcibly performed oral sex on her. The defendant then removed his clothes and forced the victim to have vaginal intercourse with him. The defendant was convicted of two counts of rape. On appeal, the Court of Appeals reversed and remanded for resentencing because the two acts of rape constituted the same criminal conduct. The Court of Appeals found the two acts involved the same victim, occurred at the same place and were close in time, and the defendant's criminal intent did not change between the first rape and the second rape. Palmer, 95 Wash.App. at 191-92, 975 P.2d 1038.
¶ 38 The State argues the facts here are more like those in State v. Grantham, 84 Wash.App. 854, 932 P.2d 657 (1997). There, the defendant assaulted the victim before anally raping her. The defendant then continued to assault the victim, called her names and threatened her before forcing her to perform oral sex on him. The Court of Appeals upheld the trial court's finding that the two rapes constituted separate criminal conduct, reasoning that Grantham had the opportunity to pause and reflect between the two rapes. The Court of Appeals found that although the two rapes occurred close in time, the defendant had a separate criminal intent for each rape and the crimes were sequential, not simultaneous or continuous. Grantham, 84 Wash.App. at 859, 932 P.2d 657.
¶ 39 A trial court's determination of what constitutes the same criminal conduct will not be disturbed absent an abuse of discretion or misapplication of the law. Tili, 139 Wash.2d at 122, 985 P.2d 365. "Same criminal conduct" is defined as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). The crimes in this case involve the same victim, Crystal Fleming; however, the crimes did not occur at the same time or involve the same criminal intent. The rapes and molestation at issue here occurred on several occasions throughout a five-year span. Unlike the cases mentioned above, where the rapes occurred within minutes of each other, the rapes here occurred over several years, making any temporal connection tenuous at best. In addition, as the State argues, the criminal intent for each crime is distinct. Like the defendant in Grantham, French had significant time during the course of the sexual abuse to pause and reflect upon his actions. The rapes at issue here were sequential, not continuous or simultaneous. We find the trial court correctly found that the rape convictions here were not the same criminal conduct because they occurred over a period of five years and did not involve the same criminal intent.

CONCLUSION
¶ 40 We affirm the defendant's conviction and sentence.
*65 Concurring: ALEXANDER, C.J., MADSEN, SANDERS, BRIDGE, CHAMBERS, OWENS, FAIRHURST, and J.M. JOHNSON, JJ.
NOTES
[1]  Article I, section 22 reads in pertinent part, "[i]n criminal prosecutions the accused shall have ... the right to appeal in all cases...."
[2]  French appears to be arguing the fugitive disentitlement doctrine itself is unconstitutional, regardless of whether it is applied to a defendant who flees the jurisdiction before or after instigating an appeal. Because this case does not involve a defendant who fled after filing an appeal, we do not reach that issue. We limit our analysis to defendants who flee after conviction but before sentencing.
[3]  The "voucher" rule prevents a party from impeaching his own witness because the party who calls the witness is assumed to vouch for his or her credibility.
[4]  CrR 3.1(f) reads in relevant part "(1) A lawyer for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in the case may request them by a motion to the court. (2) Upon finding the services are necessary and that the defendant is financially unable to obtain them, the court ... shall authorize the services."
[5]  French's counsel proposed a specific translator who agreed to translate the document at a reduced rate. The translator quoted the market rate for such translations at $.22 per word, but offered to reduce her rate to $.18 per word. The estimated cost of the entire translation is between $8,000 and $9,000. Br. of Appellant at 30 n. 12.
[6]  Under the doctrine of specialty, the requesting nation may not prosecute an extradited defendant for any crime other than those to which the rendering state explicitly granted the extradition. State v. Pang, 132 Wash.2d 852, 902, 940 P.2d 1293 (1997). It is unclear how this issue might apply here because the State did not file any additional charges and French was extradited to face sentencing for the six charges for which he has already been convicted.
[7]  The principle of dual criminality asks whether the acts occurring in one jurisdiction would be considered criminal in the other jurisdiction. See Bozilov v. Seifert, 983 F.2d 140, 142 (9th Cir.1993). Again, it seems unlikely this issue might arise. Mexico specifically granted extradition for the six crimes for which French had been convicted. In addition, the treaty lists these crimes as extraditable offenses in an appendix. Extradition Treaty, U.S.-Mex., May 4, 1978, 31 U.S.T. 5059, Appendix. Although French did not have a translation of the Acuerdo, his counsel received a copy of a letter from the United States Department of Justice to the deputy prosecutor discussing the limitations of the extradition. The letter explained the State could proceed only against French for the six convictions already obtained, the defendant could not be sentenced to death or life imprisonment, and the court could not impose any fines in this case. The sentencing judge was aware of the restrictions and sentenced French within the standard range based on the specified convictions and did not impose any fines on French.
[8]  We note the treaty, in its appendix, specifically lists the following as extraditable offenses: "Rape; statutory rape; indecent assault; corruption of minors, including unlawful sexual acts with or upon children under the age of consent." Extradition Treaty, U.S.-Mex., May 4, 1978, 31 U.S.T. 5059, Appendix.
[9]  Sexual contact is defined as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party." RCW 9A.44.010(2).
[10]  Count I: Child Molestation in the First Degree occurring on or between July 1, 1988 and August 5, 1990; Count II: Rape of a Child in the First Degree occurring on or between July 1, 1988 and August 5, 1990; Count III: Rape of a Child in the First Degree occurring on or between July 1, 1988 and August 5, 1990; Count IV: Rape of a Child in the Second Degree occurring on or between March 13, 1991 and March 12, 1993; Count V: Rape of a Child in the Second Degree occurring on or between March 13, 1991 and March 12, 1993; Count VI: Rape of a Child in the Second Degree occurring on or between March 13, 1991 and March 12, 1993.
[11]  As discussed above, child molestation is not a lesser included offense to child rape. Thus, this argument fails.


50 F.3d 19
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Mark Stephen WILSON, Plaintiff-Appellant,v.Gerald KOHLER, in his individual and official capacity akaJerry Kohler, Defendant-Appellee.
No. 94-35495.
United States Court of Appeals, Ninth Circuit.
Submitted March 7, 1995.*Decided March 13, 1995.

Before:  SNEED, POOLE, and BRUNETTI, Circuit Judges.

1
MEMORANDUM**

2
Mark Stephen Wilson, a Washington state prisoner, appeals pro se the district court's 28 U.S.C. Sec. 1915(d) dismissal of his 42 U.S.C. Sec. 1983 action against court reporter Gerald Kohler.  In his complaint, Wilson alleged that Kohler falsified the transcript of Wilson's state court trial in which Wilson was convicted of assault and harassment.  On appeal, Wilson contends that the district court erred by dismissing his complaint as frivolous on the ground of res judicata.  We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

3
Dismissal pursuant to 28 U.S.C. Sec. 1915(d) is reviewed for an abuse of discretion.  Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992).  A claim is frivolous when it has no arguable basis in law or fact.  Neitzke v. Williams, 490 U.S. 321, 324 (1989).

4
Federal courts are required to give "full faith and credit" to state judicial proceedings.  28 U.S.C. Sec. 1738;  Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir.)  (per curiam), cert. denied, 111 S.Ct. 177 (1990).  It is, moreover, "now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered."  Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).  Thus, we look to the Washington state law of res judicata and give the state court judgment the same preclusive effect as would a state court.

5
In Washington, the doctrine of res judicata applies if a prior judgment has a concurrence of identity with a subsequent action in "(1) subject matter, (2) cause of action, (3) persons and parties."  Loveridge v. Fred Meyer, Inc., 125 Wash.2d 759, 887 P.2d 898, 900 (1995).

6
Here, Wilson's complaint states that the state court judge who sat at Wilson's criminal trial held an evidentiary hearing on the allegation of the falsification of the trial transcript and found, after review, that there was no substance to the allegation.  Thus, because the state court judgment involved the identical subject matter, cause of action, and persons, we agree with the district court that Wilson's section 1983 claim is frivolous.  See Franklin v. Murphy, 745 F.2d 1221, 1230 (9th Cir.1984) (court may find action frivolous where a previous judgment precludes relitigation of the same issues).1

7
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1
 On January 3, 1995, Wilson filed a motion to stay further action on his case.  We deny Wilson's motion as moot


158 Ga. App. 517 (1981)
281 S.E.2d 283
MAGOUIRK
v.
THE STATE.
INGRAM
v.
THE STATE.
WELLS
v.
THE STATE.
61579, 61580, 61581.
Court of Appeals of Georgia.
Decided May 13, 1981.
Gary A. Sinrich, for appellant (case no. 61579).
Joseph C. Kitchings, for appellant (case no. 61580).
Jack E. Carney, Jr. for appellant (case no. 61581).
Dupont K. Cheney, District Attorney, Mike Taff, Assistant District Attorney, Arthur K. Bolton, Attorney General, Robert S. Stubbs III, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, John C. Walden, Senior Assistant Attorney General, Harrison Kohler, Assistant Attorney General, for appellee.
SHULMAN, Presiding Judge.
During a racial disturbance at the Georgia State Prison, several inmates were injured and one killed. Defendants Magouirk, Ingram, Wells, and another were indicted for murder and acquitted. Magouirk, Ingram and Wells were also indicted for aggravated assault, and this appeal is from their convictions of aggravated assault.
1. Defendants Magouirk and Ingram complain of the verdict and judgment on the general grounds. The victim of the assault (who was stabbed 15 or 16 times) identified defendants Magouirk and Ingram as his assailants. In corroboration, other witnesses testified that they saw the defendants in the possession of a knife at the time of the incident. Although defendant Magouirk denied his participation in the stabbing, testifying that it was the alleged victim who had attempted to stab him (which, Magouirk explained, accounted for the bloodstains on his shirt), we find that the evidence against defendant Magouirk, as outlined in part above, was sufficient to warrant a rational trier of fact to conclude that he was guilty of the offense of aggravated assault beyond a reasonable doubt. Likewise, despite defendant Ingram's denial of his participation in the stabbing, there was sufficient evidence to warrant his conviction of aggravated assault. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).
2. Appellants (along with a fourth defendant) were indicted separately. On the state's motion, however, the four defendants were joined for trial. Appellants Ingram and Wells contend that such joinder resulted in the denial of their rights to a fair trial. We must disagree with appellants' contentions in this regard, but we do not reach this decision lightly.
The joinder of defendants (where offenses are part of a common scheme or plan (see Arnsdorff v. State, 152 Ga. App. 515 (263 SE2d *518 176); Padgett v. State, 239 Ga. 556 (238 SE2d 92)), allows for uniformity in decision-making; it eliminates a duplication of effort, saves time, and expedites the trial process. On the other hand, we recognize that inherent in the joinder or consolidation of defendants at trial is the possibility of overlap; that is, that culpatory evidence admitted against one defendant will be considered against another defendant. Likewise, we recognize that joinder, if there is more than one counsel representing co-defendants, affects or restrains the freedom of counsel in the employ and exercise of his or her particular trial strategy. To a certain extent, counsel's actions or options may be set or determined by the strategy or methodology employed by co-counsel.
Despite the benefits of joinder, it is clear that an accused's right to a fair trial takes precedence. If the consolidation of defendants at trial hinders a fair determination of each defendant's guilt or innocence, then the defendants must be tried separately. That initial determination, of course, lies within the discretion of the trial court. Unless this court finds a manifest abuse of that discretion, the trial court's judgment will be affirmed on appeal. Jackson v. State, 153 Ga. App. 462 (265 SE2d 368).
With the benefit of hindsight, it is incumbent upon this court to determine whether the trial court's decision to join the trial of the co-defendants in the instant cases hindered a fair determination of the guilt or innocence of defendants Wells and Ingram, and thus constituted a manifest abuse of discretion.
A. Defendant Ingram premises his contention of error in the joinder of his case on the ground that it interfered with trial counsel's defense strategy and precluded his counsel from presenting the same type of defense he would have made had defendant been tried separately. (We note that defendant Ingram does not argue that his co-defendants' defenses were antagonistic.) For instance, counsel for defendant Ingram contends that he would have chosen not to present any evidence on defendant's behalf in exchange for the right to make closing argument, but, because the counsel of a co-defendant introduced evidence, he was precluded from defending his client in this manner and, thus, to the best of his ability.
Defendant Ingram's complaint, in essence, amounts to a complaint of ineffective assistance of counsel. In plainer terms, defendant is arguing that his chosen counsel was hamstrung by the strategy or trial tactics employed by co-defendants' counsel, effectively denying him his right to counsel and a fair trial. We cannot agree.
It has been held by this court on numerous occasions that the fact that a defense might have been presented in a different manner is *519 not indicative of trial counsel's ineffective assistance; nor, for that matter, is a guilty verdict indicative of that fact. See generally Sheets v. State, 143 Ga. App. 180 (2) (237 SE2d 674); Johnson v. State, 143 Ga. App. 516 (1) (239 SE2d 201); Fortson v. State, 240 Ga. 5 (1) (239 SE2d 335). In the instant case, co-defendants' counsel presented a thorough and vigorous defense, as did counsel for appellant Ingram. In light of that representation and in view of the fact that the evidence against defendant Ingram strongly supported the guilty verdict reached by the jury, we refuse to find that the joinder of the co-defendants at trial effectively denied Ingram his rights to counsel and a fair trial.
B. Nor can we agree with defendant Wells' assertion that the jury was unable to separate the volume of evidence and testimony presented so as to make an individual determination of each defendant's guilt or innocence. Although there was much evidence presented, the bulk of the direct evidence against defendant Wells (there was also circumstantial evidence) was the testimony of the victim. In essence, then, the jury was presented with a swearing match between the victim of the assault and the defendant, who denied culpability. (Additional alleged eyewitnesses supported both sides.) The evidence was thus not so complicated or confusing as the defendant would have us believe. For that reason, we find no support for defendant Wells' allegation that the jury was unable to absorb the evidence presented and properly render a verdict. We cannot agree that the trial court's refusal to try defendant Wells separately was error for the reason assigned.
3. Defendant Wells asserts that the trial court erred in refusing to allow the replay of certain testimony regarding the articles of clothing worn by defendant Wells at the time of the alleged assault. Defendant contends that testimony revealing that there were no bloodstains on his clothing was exculpatory; that the jury, confused by the voluminous evidence, could not recall that fact; and that the trial court's refusal to allow a replay of the testimony of a forensic serologist who testified to that fact constituted an abuse of discretion and mandates reversal. We do not agree with defendant's argument.
In response to the jury's inquiry, the trial court made the following remarks: "[I]f there's a point in the record . . . that the jury recalls or the testimony of any witness on any one of these points or any other points, of course [it will be replayed]. . . if there's the testimony of a witness that you want to hear that you believe or recall or seem to recall testified as to any of these ... questions, then if you'll let me know that I'll be glad to hear that evidence reproduced for you. But again, counsel and the Court feel that the questions the jury has asked, that the Court is unable to single out any place in the record *520 and at that point be satisfied in the Court's mind that I've given you all of the evidence on that point. And then it would be erroneous if we didn't give you all of the evidence on that point. You may ask for a specific part if you're in doubt about it, but I can't select it for you."
To this ruling and the court's remarks, defendant Wells made no objection. Indeed, it appears from the court's statement that counsel had discussed this with the court and had approved of the court's decision. Not only can a waiver of objection be implied by defendant's actions below but, as shown above, defendant's contentions are simply not borne out by the record and transcript. The trial court did not refuse to replay testimony for the jury, but merely refused to select what testimony should be replayed. We find no error in this regard. See Smith v. State, 153 Ga. App. 862 (4) (267 SE2d 289).
Judgments affirmed. Birdsong and Sognier, JJ., concur.