State Of Washington, V A.s.s. ( 2015 )


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  •                                                                                  ILED
    COURT OF APPEALS
    IN THE COURT OF APPEALS OF THE STATE OF                     WAAWf ON
    2015 AUG 18   AM 9: 05
    DIVISION II
    STATE OF WASHINGTON
    STATE OF WASHINGTON,                                                    No. 463 -    4- II
    Y
    D P   Y
    Respondent,               UNPUBLISHED OPINION
    V.
    A.S.,'
    Appellant.
    BJORGEN, A.C. J. —       AS appeals his guilty adjudication for second degree rape, asserting
    that ( 1) the trial court violated his constitutional right to present a defense and ( 2) the State failed
    to present sufficient evidence to support the guilty adjudication. We hold that the State presented
    sufficient evidence in support of AS' s guilty adjudication, but that the juvenile court violated
    AS' s constitutional right to present a defense by prohibiting defense counsel from questioning
    the victim about her potential motive to fabricate the allegations against AS. Accordingly, we
    reverse AS' s guilty adjudication and remand for a new hearing.
    FACTS
    On March 13, 2014, 15 -year-old BN asked her longtime friend, 16 -year-old AS, to help
    her move a riding lawn mower that was located in the backyard of BN' s home in Thurston
    County. While they were moving the lawn mower,. AS slapped BN on her rear several times;
    BN responded by repeatedly telling AS to stop. After they finished moving the lawn mower, AS
    and BN went inside BN' s home and sat in the dining room. While they were in the dining room,
    AS grabbed BN' s thighs and pulled her onto his lap. BN again told AS to stop.
    Pursuant to General Order 2011- 1 of Court of Appeals, Division II, the names of the minors
    will   be indicated   with   initials.
    No. 46316 -4 -II
    BN went to her bedroom to retrieve a soda; AS followed and stood by her bed.
    According to BN, AS then pushed her onto the bed, got on top of her, and held her hands down
    over her head. BN stated that AS pulled off her sweat pants with one hand while continuing to
    restrain her hands with his other hand. BN further stated that AS pulled her shorts to the side and
    forcibly engaged in sexual intercourse with her. BN said that she " kept telling him no, and he
    wouldn'     t stop."    Report of Proceedings ( RP) at 109. When AS finished, he got up and told her,
    I   came   inside     of you.   Don' t be popping    out   any babies."   RP at 1. 10.
    After AS left BN' s house, BN called her friend BD and told her that AS " forced me to
    have   sex with      him." RP     at   111.   BN also called her friend KS and told him the same thing; KS
    advised BN to tell the police and her mom about the incident. After talking with KS, BN called
    her mom and then called the police.
    Thurston County Sheriff' s Deputy Camm Clark responded to BN' s call, took her taped
    statement, and took photos of scratches on her wrist and neck. Shortly thereafter, Clark advised
    AS of his Miranda2 rights. AS admitted to Clark that he had been flirting with BN that day, had
    pulled BN onto his lap, and had slapped her on her rear. AS also admitted that he had sexual
    intercourse with BN but stated that it was consensual.
    On the following day, March 14, 2014, the State charged AS with second degree rape by
    forcible compulsion. At the juvenile court fact-finding hearing, BN and Clark testified
    consistently with the facts as stated above. After the State rested, defense counsel informed the
    juvenile court that he would be calling BN as a witness, and that he would be seeking to discredit
    BN' s credibility and to establish BN' s motive to fabricate the allegations against AS, stating:
    2 Miranda v. Arizona,.384 U.S. 436, 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    ( 1966).
    2
    No. 46316 -4 -II
    Essentially there are two points here. We' re attacking bias and credibility
    in this case as well as motive to lie and some anger towards my client, all of which
    is relevant in this case as motive to lie.
    Credibility— I know. the Court sustained an objection on our first line of
    questioning, but it goes to an incident that same day where we' re alleging that [BN]
    and her friend lied about receiving a traffic infraction, something very trivial, but
    she was very mad at [ AS] about that because they had asked [ AS] to take credit for
    having gotten that infraction which he did not do. [ AS] basically said that it was
    BN] who got the ticket. That angered [BN] because it made it so she couldn' t hang
    out with [ BD]           for   some reason, who was             here    earlier   testifying. [ BN] came over to
    confront [       about that before the incident, just a matter of probably an hour
    AS]
    before, so not very long. She went over to [ AS' s] house and confronted him about
    that. So we have both the anger from that incident and the fact that she essentially
    tried to get [ AS] to lie about something, and when he didn' t lie, she got angry at
    him, which goes to credibility.
    There' s another area we wish to delve into which goes to motive as well.
    AS] has         a   very     good   friend   named [      J]. [ J] is [ BN' s] boyfriend who she just broke
    up with. We' re not going to go into any sexual history, any promiscuity, anything
    like that, but it happened within the last week or two, and we think it' s relevant
    because          she   didn' t   want [   J] to know that         she   had   sex with [ AS].     Again, this is our
    only     substantive witness             to this   act.    We think it will show some bias, and bias is
    always relevant to get into, the witness' s bias, and credibility is always relevant.
    RP at 161- 62.
    The State argued that none of the information defense counsel sought to elicit from BN
    was relevant. Following further argument by defense counsel and the State, the juvenile court
    ruled that it was not foreclosing defense counsel from exploring these issues while questioning
    BN, but that defense counsel would have to establish adequate foundation to do so.
    During his          examination of         BN, defense counsel           asked     her, "[   E] arlier in the day had you
    and your   friend       asked [    AS] to lie for     you?"       RP   at    173. After the State objected based on
    relevance, the trial court asked defense counsel to establish the relevance of his inquiry with an
    offer of proof, and the following exchange took place:
    Defense       counsel] :      My offer of proof would be that she' s going to
    answer yes,           that   she' s   going to— then        my next question would be and that [ AS] . .
    did   riot   lie for her that      same   day   and    that   she was
    angry   about    that   with [ AS].   That
    anger shows bias which is always something I can inquire into.
    3
    No. 46316 -4 -II
    State]: The bias, Your Honor, has to be relevant to the facts in question
    here.   Even if that were in fact to happen, that she was angry with him because he
    didn' t do what she and a friend wanted, allegedly wanted him to do, how will that
    create bias for an incident that happened a substantial amount of time later, not
    involving       the friend?      I   still   don' t   understand.       The bias has to be related to the
    crime.
    Defense    counsel] :    No, that' s not correct. The bias is related to the witness.
    Is the   witness      biased   against       my   client?      That' s what it' s related to.
    Juvenile court] : I don' t think you have established the relevance or the link.
    If you want to ask this witness something else, you are free to.
    RP at 174- 75.
    After the trial       court ruled,     defense        counsel asked     BN, "[ T] he   day   of   the incident— again
    we' re   talking    about      March 13th through 14th— had                   [ AS] done something that had made you
    angry?" RP         at   175.   The State objected based on relevance, and the juvenile court sustained the
    objection.    Defense          counsel   then   asked       BN, "[   O] n the day of the incident, had you gone over to
    confront [ AS] about not           having      lied for     you   that   day?"   RP at 176. The State again objected, and
    the juvenile court again sustained the objection. Defense counsel declined to ask BN any further
    questions. The juvenile court entered an order on adjudication and disposition finding AS guilty
    of second degree rape and entered its written findings of fact and conclusions of law in support
    of the guilty adjudication. AS appeals.
    ANALYSIS
    1. RIGHT TO PRESENT A DEFENSE
    AS first contends that the juvenile court violated his constitutional right to present a
    defense by prohibiting defense counsel from questioning BN about her potential bias and motive
    to fabricate the        rape allegations against            AS. We agree.
    A defendant in a criminal trial has a constitutional right to present a defense. State v.
    Rehak, 67 Wn.           App.    157, 162, 
    834 P.2d 651
    ( 1992); see also In re Gault, 
    387 U.S. 1
    , 87 S. Ct
    1428, 
    18 L. Ed. 2d 527
    ( 1967) (               Juvenile proceedings that may result in a juvenile' s confinement
    rd
    No. 46316 -4 -II
    are to be regarded as criminal proceedings for which the constitutional rights to notice of
    charges, counsel, confrontation, cross examination, and against self-incrimination                                apply). " The
    right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity
    to defend         against   the State' s accusations."         Chambers v. Mississippi, 
    410 U.S. 284
    , 294, 
    93 S. Ct. 1038
    , 
    35 L. Ed. 2d 297
    ( 1973).
    The    right   to    offer   the   testimony      of   witnesses,       and to    compel their
    attendance, if necessary, is in plain terms the right to present a defense, the right to
    present the defendant' s version of the facts as well as the prosecution' s to the jury
    so    it may decide     where      the truth lies.     Just as an accused has the right to confront
    the prosecution' s witnesses for the purpose of challenging their testimony, he has
    the    right   to   present      his   own   witnesses   to    establish   a   defense.       This right is a
    fundamental element of due process of law.
    Washington           v.   Texas, 
    388 U.S. 14
    , 19, 
    87 S. Ct. 1920
    , 
    18 L. Ed. 2d 1019
    ( 1967). However, a
    criminal defendant' s right to present a defense is not absolute; a defendant seeking to present
    evidence must show that the evidence is at least minimally relevant to a fact at issue in the case.
    State   v.   Jones, 
    168 Wash. 2d 713
    , 720, 
    230 P.3d 576
    ( 2010).                      Evidence is relevant if it has " any
    tendency to make the existence of any fact that is of consequence to the determination of the
    action more probable or              less     probable    than it   would   be   without    the   evidence."   ER 401.
    A.           Evidence Related to BN' s Credibility and Potential Motive to Fabricate Allegations
    Against AS Was Relevant
    Defense counsel sought to question BN about whether she was angry with AS for AS' s
    refusal to lie and take the blame for receiving a traffic infraction that either BN or BN' s friend
    had   committed.'           AS asserts that evidence of BN confronting him about refusing to take the
    Although the trial court did not foreclose defense counsel from questioning BN, subject to
    establishing proper foundation, about whether she had fabricated the rape allegation against AS
    because she did not want her ex- boyfriend to know that she had consensual sex with AS, defense
    counsel did not pursue this line of questioning. Because defense counsel did not pursue this line
    of questioning, we do not address whether AS' s right to present a defense would have been
    violated had the juvenile court excluded such evidence.
    5
    No. 46316 -4 -II
    blame for a traffic infraction was relevant to establish her motive to fabricate the allegations
    against    him,   show      her bias,   and attack   her credibility.4          We agree that the evidence AS sought to
    admit through BN' s testimony met the low threshold of relevance under ER 401
    Impeachment         evidence    is   relevant   only   where "(      1) it tends to cast doubt on the credibility
    of the person being impeached, and ( 2) the credibility of the person being impeached is a fact of
    consequence        to the    action."   State v. Allen S., 
    98 Wash. App. 452
    , 459- 60, 
    989 P.2d 1222
    ( 1999).
    With regard to the first requirement, evidence that BN was angry with AS over his refusal to take
    the blame for a traffic infraction tended to show her bias against him and, thus, was relevant to
    challenge BN' s credibility. See State v. Whyde, 
    30 Wash. App. 162
    , 166, 
    632 P.2d 913
    ( 198 1)
    Bias      and   interest   are relevant   to the credibility of a witness.").            This evidence could also
    establish BN' s potential motive to fabricate the allegations against AS and, thus, was relevant to
    challenge her credibility for this reason as well. See, e. g., State v. Lubers, 
    81 Wash. App. 614
    , 623,
    
    915 P.2d 1157
    ( 1996) (         Where an accuser' s credibility is crucial, the accuser' s motive to lie is not
    a collateral issue and, thus, extrinsic evidence may be used to impeach the accuser).
    With regard to the second requirement, BN' s credibility was clearly a fact of
    consequence in the juvenile proceeding against AS, because the State' s entire case depended on
    the fact finder believing her accusations. See State v. Roberts, 25 Wn. App.. 830, 834, 
    611 P.2d 4
    We note that it is of no consequence that defense counsel sought to impeach BN by calling her
    as a witness, rather         than through       cross examination.            ER 607
    The credibility of a
    provides, "
    witness     may be     by any party, including the party calling the witness." A witness may
    attacked
    be impeached by evidence of the witness' s bias. See, e. g., State v. Allen S., 
    98 Wash. App. 452
    ,
    467   n.   62, 
    989 P. 2d
    . 1222 ( 1999) ( Proper impeachment evidence includes evidence of "mental or
    physical deficiency; bias; character for untruthfulness; contradiction by others; and self-
    contradiction by one' s own prior inconsistent statement.") ( emphasis added) ( citing JOHN W.
    5t"
    STRONG,. MCCORMICK               ON   EVIDENCE § 33,       at   124 (         ed.   1999); 5C KARL B. TEGLAND,
    WASHINGTON PRACTICE: COURTROOM HANDBOOK ON WASHINGTON EVIDENCE at 269.
    0
    No. 46316 -4 -II
    1297 ( 1980) ("     Where a case stands or falls on the jury' s belief or disbelief of essentially one
    witness,   that witness' s credibility     or motive must          be   subject   to   close   scrutiny.").      Additionally,
    BN' s credibility was of particular importance because she had accused AS of committing a sex
    offense. See 
    Roberts, 25 Wash. App. at 834
    - 35 ( In a sex crime prosecution " the credibility of the
    accuser    is   of great   importance,   essential   to the   prosecution and          defense    alike.").   Because the
    evidence AS sought to admit related to BN' s credibility, and because BN' s credibility was a fact
    of consequence in the adjudication hearing, we hold that the evidence met the threshold for
    relevance under ER 401.
    B.        State v. Perez -Valdez and State v. Lubers
    The State argues that State v. Perez -Valdez, 
    172 Wash. 2d 808
    , 
    265 P.3d 853
    ( 2011) and
    Lubers command a different result regarding the relevance of the evidence AS sought to admit
    through BN' s testimony. Because those cases are distinguishable from the present case, we
    disagree.
    In Perez -Valdez, the defendant sought to present evidence that his adopted daughters, the
    alleged rape victims, committed arson at a foster home that they had moved in to after being
    removed     from the defendant'      s   
    home. 172 Wash. 2d at 811
    .   The defendant argued that evidence of
    the subsequent arson showed that the alleged victims were willing to take extreme measures to
    get removed       from homes that they did       not   like. Perez 
    -Valdez, 172 Wash. 2d at 811
    .    The trial court
    prohibited the defense from presenting evidence of the arson, finding that defense counsel failed
    to establish that the victims burned their foster home because they hated living there and that the
    evidence was unduly prejudicial. Perez 
    -Valdez, 172 Wash. 2d at 812
    . However, the trial court
    permitted defense counsel to establish and argue that the victims were removed from their
    subsequent foster home placement because they did something serious in order to get removed.
    7
    No. 46316 -4 -II
    Perez 
    -Valdez, 172 Wash. 2d at 812
    . Defense counsel was also permitted to present evidence
    regarding the victims' reputations for being untruthful. Perez 
    -Valdez, 172 Wash. 2d at 811
    .
    On appeal, the defendant did not argue that the trial court' s ruling prohibiting evidence of
    the arson violated his right to present a defense but, instead, argued only that the trial court erred
    by    not   admitting   evidence of   the   arson under   ER 404( b). Perez 
    -Valdez, 172 Wash. 2d at 815
    . Our
    Supreme Court affirmed the trial court' s ruling, holding that although ER 404( b) did not prohibit
    admission of the arson evidence, the trial court nonetheless did not abuse its discretion by
    excluding the evidence because it was reasonable for the trial court to conclude that the arson
    evidence was unduly prejudicial and that " the arson was too removed from a false accusation of
    rape   to necessarily be       considered evidence of motive     to lie."   Perez 
    -Valdez, 172 Wash. 2d at 815
    -
    17.    Our Supreme Courtalso noted that the trial court' s ruling excluding evidence of the arson
    did not prevent the defense from arguing its theory that the victims fabricated their rape
    allegations and did not prevent the defense from presenting evidence of the victims' reputations
    for being untruthful. Perez 
    -Valdez, 172 Wash. 2d at 816
    .
    In contrast with Perez -Valdez, where the defense sought to admit evidence of the victims'
    subsequent actions against a third party to establish their motive to lie about the allegations
    against the defendant, here AS alleged a conflict between himself and the victim that occurred
    approximately an hour before the alleged rape. Accordingly, unlike in Perez -Valdez, we cannot
    conclude that evidence of BN' s alleged confrontation with AS over his refusal to lie for her was
    too far removed from BN potential motive to fabricate the rape allegations against him. Further,
    the trial court' s ruling in Perez -Valdez did not prevent defense counsel from presenting evidence
    that the victims did something serious to be removed from a subsequent foster placement but,
    rather,     only   prevented   defense   counsel   from eliciting testimony that the   victims committed arson,
    No. 46316 -4 -II
    based on the prejudicial nature of the evidence. Here, in contrast, the juvenile court prevented
    defense counsel from presenting any evidence of the alleged confrontation between BN and AS,
    and it prevented defense counsel from presenting any evidence that AS had done something on
    the same day as the incident to make BN angry. Accordingly, Perez -Valdez is distinguishable
    from the present case.
    We similarly conclude that Lubers is distinguishable from the present case. In Lubers,
    defense counsel sought to present evidence that family members of the alleged victim had an
    ongoing dispute with the defendant' s girlfriend, arguing that the evidence was relevant to the
    victim' s motive   to fabricate   rape allegations against   him. 81 Wn.   App.   at   618. Defense counsel
    did not allege that the victim was involved in the dispute between members of her family and the
    defendant' s girlfriend. 
    Lubers, 81 Wash. App. at 618
    . The trial court prohibited evidence of this
    alleged dispute, finding that the evidence was not relevant, and we affirmed. Lubers, 81 Wn.
    App. at 618, 623.
    In contrast with Lubers, here AS sought to admit evidence of a direct conflict between
    himself and the victim. Accordingly, Lubers is distinguishable and does not undermine our
    conclusion that evidence of the alleged confrontation between AS and BN was relevant.
    The State also argues that it is highly unlikely that BN would fabricate rape allegations
    based on AS' s refusal to take the blame for a traffic infraction. The weight of evidence sought to
    be presented, however, is not a pertinent concern when determining its relevance and
    admissibility. Although it is for the fact finder to ultimately determine what weight to give to
    this evidence of an alleged conflict between AS and BN, we cannot conclude that it was
    irrelevant to establishing BN' s bias and her potential motive to lie about the allegations.
    01
    No. 46316 -4 -II
    C.     The Juvenile Court Erred By Refusing to Admit the Impeachment Evidence
    Having established the relevance of the evidence AS sought to present, we now turn to
    whether the trial court erred by excluding it. If the defendant establishes the minimal relevance
    of the evidence sought to be presented, the burden shifts to the State " to show the evidence is so
    prejudicial as   to disrupt the    fairness   of   the fact- finding      process at   trial."   State v. Darden, 
    145 Wash. 2d 612
    , 622, 
    41 P.3d 1189
    ( 2002). A trial court must then balance " the State' s interest to
    exclude prejudicial evidence ...         against     the   defendant' s    need   for the information     sought," and
    may exclude such evidence only where " the State' s interest outweighs the defendant' s need."
    Darden, 145. Wn.2d at 622
    The State has not presented any argument regarding the prejudicial nature of the evidence
    at issue and, thus, cannot meet its burden to show that the evidence was " so prejudicial as to
    disrupt the fairness   of   the   fact- finding    process at   trial."    
    Darden, 145 Wash. 2d at 622
    . Further,
    even if prejudicial, the defendant' s need for the evidence clearly outweighed the State' s interest
    in excluding it. AS admitted to engaging in sexual intercourse with BN but claimed that the
    intercourse was consensual, and the State' s entire case depended on the trier -of f-act finding BN' s
    testimony credible that the sex was not consensual. Thus, evidence calling BN' s credibility into
    doubt was crucial to AS' s defense and outweighed any interest the State had in excluding it.
    Therefore, we hold that the juvenile court' s ruling excluding the evidence violated AS' s right to
    present a defense. Accordingly, we reverse AS' s guilty adjudication for second degree rape.
    II. SUFFICIENCY OF THE EVIDENCE
    Although we reverse AS' s conviction based on the violation of his right to present a
    defense, we must address his challenge to the sufficiency of the evidence to determine whether a
    ffE
    No. 46316 -4 -II
    new adjudicatory hearing is barred by the prohibition against double jeopardy. State v. Wright,
    
    165 Wash. 2d 783
    , 792, 
    203 P.3d 1027
    ( 2009).          We conclude that his sufficiency challenge fails.
    A challenge to the sufficiency of evidence presented at a bench trial requires us to review
    whether substantial evidence supports the findings of fact and whether those findings support the
    conclusions of law. State v. Homan, 
    181 Wash. 2d 102
    , 105- 06, 
    330 P.3d 182
    ( 2014).
    Substantial evidence' is evidence sufficient to persuade a fair-minded person of the truth of the
    asserted premise."    
    Homan, 182 Wash. 2d at 106
    ( citing State v. Stevenson, 
    128 Wash. App. 179
    , 193,
    
    114 P.3d 699
    ( 2005)).    We review challenges to a trial court' s conclusions of law de novo. State
    v. Gatewood, 
    163 Wash. 2d 534
    , 539, 
    182 P.3d 426
    ( 2008).
    Although AS assigns error to several of the trial court' s factual findings, he does not
    explain how substantial evidence fails to support those findings. See State v. Thomas, 
    150 Wash. 2d 821
    , 874, 
    83 P.3d 970
    ( 2004) ("        Without argument or authority to support it, an
    assignment of error   is   waived.").   Instead, AS argues that BN' s testimony, alone, was insufficient
    evidence from which the trier of fact could find that he engaged in sexual intercourse with BN by
    forcible compulsion. •We disagree.
    To adjudicate AS guilty of second degree rape as charged here, the State had to prove
    beyond a reasonable doubt that AS engaged in sexual intercourse with BN by forcible
    compulsion.   RCW 9A.44. 050( 1)(       a).   RCW 9A.44. 010( 6) defines " forcible compulsion" in
    relevant part as " physical   force   which overcomes resistance."    Here, BN testified that AS pushed
    her onto the bed, climbed on top of her, pinned her arms over her head, took off her pants, and
    then engaged in sexual intercourse with her while she repeatedly told him no and tried to push
    hien off.' This evidence is more than sufficient to persuade a fair-minded person that AS forcibly
    compelled BN to engage in sexual intercourse.
    11
    No. 46316 -4 -II
    AS argues that BN' s testimony was " suspect" because her physical examination revealed
    no physical trauma and because AS testified that BN consented to sexual intercourse. Br. of
    Appellant at 19. This argument concerns the weight of the evidence and the credibility of
    witnesses, determinations exclusively for the trier of fact and not subject to review. State v.
    Camarillo, 
    115 Wash. 2d 60
    , 71, 
    794 P.2d 850
    ( 1990);             State v. Walton, 
    64 Wash. App. 410
    , 415- 16,
    
    824 P.2d 533
    ( 1992),    abrogated on other grounds by In re Pers. Restraint of Cross, 
    180 Wash. 2d 664
    , 
    327 P.3d 660
    ( 2014).     In addition, the State was not required to present any evidence
    corroborating BN' s testimony to adjudicate AS guilty of second degree rape. See RCW
    9A.44. 020( 1) ("   In order to convict a person of any crime defined in this chapter it shall not be
    necessary that the testimony     of   the alleged victim   be   corroborated.").   Accordingly, we hold that
    the State presented sufficient evidence to adjudicate AS guilty of second degree rape.
    We reverse AS' s guilty adjudication based on the violation of his right to present a defense
    and remand for a new adjudicatory hearing.
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record in accordance with RCW
    2. 06. 040, it is so ordered.
    BJH .CCEN
    We concur:
    J CHANSON, C. J.
    ly-
    MELNICK, J.
    4 A,
    —%
    aJ
    12