Opinion
No. 53608-7-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 03-1-00716-6. Judgment or order under review. Date filed: 12/04/2003. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Catherine E. Glinski, Attorney at Law, PO Box 761, Manchester, WA 98353-0761.
Counsel for Respondent(s), Charles Franklin Blackman, c/o Snohomish County Pros, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Appellant Daniel Day, then age 22, was charged with second degree rape of a child against Chelsea, then age 13. Day appeals the trial court's decision to admit evidence of his relationship with Catherine, another minor. Day argues this was propensity evidence that should have been excluded under ER 404(b). The evidence that Catherine and Day were in a dating relationship was properly admitted as res gestae evidence under ER 404(b) to explain the circumstances of the incident and provide context for Chelsea and Catherine's initial reluctance to cooperate with the police investigation. The court excluded evidence that Catherine was a minor and that she and Day had a sexual relationship. We affirm.
FACTS
In summer 2002, Chelsea was 13 years old. Catherine was one of her best friends. Catherine was dating Daniel Day, who was then 22 years old. He sometimes hung out with Catherine, Chelsea, and their other friends, Bailey and Summer.
In June 2002, Catherine went on a camping trip in Oregon. On June 30, while Catherine was in Oregon, Chelsea went to Bailey's house prior to going to a birthday party. Day was also at Bailey's house. Chelsea and Day went for a walk on the Interurban Trail. Day asked Chelsea for a hug, and she hugged him. They started kissing. They had never kissed or otherwise been intimate together before.
They stopped kissing and walked off onto another trail through some bushes. They found a patch of soft dirt and sat down, with Chelsea's back to Day's front and Chelsea positioned between Day's legs. The area was surrounded by bushes, trees, and a fence. Chelsea was wearing overalls. She was leaning up against Day and they were kissing. Day put his hand into Chelsea's overalls and into her underwear. Day then put his finger in Chelsea's vagina, and moved it in and out. Day asked Chelsea to have sex with him, and she said no. They eventually stopped making out, because Chelsea had to return and go to the birthday party. The incident went on for about 40 minutes. Chelsea had no pain or discomfort, and remained willing throughout the entire incident.
Chelsea testified that it was a bright day, and the trail was a public trail where people ride bikes or rollerblade. However, she did not remember seeing anyone on the trail. No one except Bailey was at the house when Chelsea and Day left to walk on the trail, and Bailey was getting in the shower when they left.
Chelsea did feel somewhat uncomfortable that she was getting together with her friend Catherine's boyfriend. She told her sister Carlana that she had been sexually active with an older man. Carlana told their mother, who talked to Chelsea about it and then called the police. Chelsea was initially uncooperative with the police. She was unhappy and scared when the police became involved.
Catherine was also initially uncooperative with the police. She found out about the incident when she returned from Oregon. She confronted Day, who first denied the incident and then admitted to kissing Chelsea. Catherine was upset with Chelsea, but they later reconciled.
The state sought to admit evidence that Day and Catherine were in a dating relationship. The state argued this evidence would explain Chelsea and Catherine's lack of cooperation and hostility to the investigation, and Catherine confronting Day. Without this evidence, the defense could attack Chelsea's credibility. The defense objected and argued this would be prohibited propensity evidence under ER 404. The defense argued that the testimony would invite the jury to infer that Day was also having an illegal sexual relationship with Catherine. The court agreed with Day that evidence of an illegal sexual relationship with another minor would be prejudicial to Day and not relevant. However, the court agreed with the state that admitting only the fact of Day and Catherine's dating relationship, without more, would not automatically give rise to such an inference by the jury. The court ruled that the fact of Day and Catherine's relationship was admissible because it was an integral part of the relationship between the parties and was necessary to fully explain the case. The court excluded evidence of Catherine's age.
ANALYSIS
The admissibility of evidence is within the discretion of the trial court, and a reviewing court will reverse only when the trial court abuses its discretion. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. Atsbeha, 142 Wn.2d at 913-14. Day first argues that evidence of his dating relationship with Catherine was irrelevant to the elements of the crime charged and was therefore irrelevant at trial. Evidence is relevant when 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. In addition, a fact bearing on the credibility or probative value of other evidence is relevant. State v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726 (1987).
Here, the evidence of Day and Catherine's relationship was relevant to explain Chelsea and Catherine's actions after the police were involved and put those actions into context. It explained Day's timing of the incident to coincide with Catherine's camping trip, and explained Chelsea's initial lack of cooperation with the police. This evidence also explained Catherine's hostility to the investigation, since Day was her boyfriend at the time. The state argues that without context, Chelsea's lack of cooperation could be argued as evidence that Chelsea was reluctant to follow up on an initial lie. Under Rice, therefore, the evidence is relevant because it bears on the credibility of Chelsea and Catherine's testimony.
In fact, although this evidence admitted, the defense still argued that Chelsea was lying:
She tells a little white lie to her sister and it snowballs. Her sister tells her mom and her mom calls the police. My God, the police are looking for me. She's in the position where I've got to tell my sister either I was lying to her . . . or I have to continue on with my story. Maybe continuing with her story was easier. If she's lying, that explains why she's so reluctant to talk to the police. That could be a reason.
Day next argues that evidence of his relationship with Catherine was inadmissible as a prior bad act to show propensity or conformity under ER 404(b), which states:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The state argues that because the evidence did not show misconduct it is exempt from ER 404(b). The state relies on State v. Brown, 132 Wn.2d 529, 578-79, 940 P.2d 546 (1997), for the proposition that testimony not describing prior crimes or misconduct does not come within the purview of ER 404(b). However, as the Washington Supreme Court has explained, the Brown decision focused on whether the testimony was relevant, admissible, and prejudicial. State v. Everybodytalksabout, 145 Wn.2d 456, 468, 39 P.3d 294, 301 (2002). The Brown Court discussed the relevancy of the evidence to provide background information, and noted that the defendant would not be prejudiced by its admission in that case because no crime or misconduct was involved. The Brown Court did not hold that evidence other than that of a crime or misconduct is automatically exempt from ER 404(b). Any evidence used to show conformity with past actions is subject to ER 404. Everybodytalksabout, 145 Wn.2d at 467-68. The plain language of ER 404(b) refers to crimes, wrongs, or acts.
In order for evidence of a past act to be admissible, it must be relevant, its relevance must exceed its prejudicial value, it must be offered for a permissible purpose under ER 404(b), and the trial court must find by a preponderance of the evidence that it is true and happened. See State v. Baker, 89 Wn. App. 726, 731-32, 950 P.2d 486 (1997). The evidence in question is that Day and Catherine had a dating relationship. The evidence is relevant, as discussed above. Day did not dispute the accuracy of this evidence. Catherine's age was specifically excluded, as was mention of any sexual relationship between Day and Catherine. Although, as the trial court noted, it would be prejudicial to Day if the jury learned Catherine's age and the nature of any physical relationship between Day and Catherine, this additional evidence was excluded. The mere fact that Day and Catherine had a dating relationship, without more, was not prejudicial to Day. Therefore, as the trial court concluded, the evidence met the balancing test of ER 403.
The remaining requirement is that the evidence be admitted for a permissible purpose under ER 404(b). Evidence of crimes, wrongs, or acts may be admissible under ER 404(b) if relevant for some purpose other than to show general character or propensity. State v. Herzog, 73 Wn. App. 34, 50, 867 P.2d 648 (1994). After the trial court balances the probative value of the evidence with its prejudicial effect, its admissibility is in the trial court's discretion. Herzog, 73 Wn. App. at 50.
Evidence is admissible under ER 404(b) if it is part of the res gestae of the offense charged. Res gestae evidence `complete[s] the story of the crime on trial by proving its immediate context of happenings near in time and place." State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980), aff'd, 96 Wn.2d 591, 637 P.2d 961 (1981). Res gestae evidence is admissible in Washington if it is so connected in time, place, circumstances, or means employed that proof of such other misconduct is necessary for a complete description of the crime charged, or constitutes proof of the history of the crime charged.
5 K. Tegland, Wash. Prac. sec. 115, at 398 (3d ed. 1989).
State v. Schaffer, 63 Wn. App. 761, 769, 822 P.2d 292 (1997), aff'd, 120 Wn.2d 616, 845 P.2d 281 (1993). See 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice sec. 404.18, at 424 (4th ed. 1999). Here, the trial court concluded that evidence of the relationship was part of the res gestae of the offense, `part and parcel [of] how the relationships between all these people were established.' In balancing the prejudicial effect with the probative value, the court agreed the `testimony has to be quite limited' and therefore narrowly limited it `to the fact that it was some type of dating relationship.' There is no abuse of discretion by the trial court in admitting this evidence, after balancing the probative value and the prejudicial effect, for the purpose of explaining the relationship between the involved parties.
Day argues that the trial court's admission of the fact of the relationship was reversible error under State v. Trickler, 106 Wn. App. 727, 25 P.3d 445 (2001). In Trickler, as part of the res gestae of the charged offense, the trial court admitted evidence of possession of stolen property other than the property for which the defendant was charged. Trickler, 106 Wn. App. at 733. The trial court did not do the required balancing on the record. Trickler, 106 Wn. App. at 733. On appeal, the court balanced the prejudicial effect of the evidence with its probative value, concluded that its prejudicial effect outweighed its probative value, and therefore reversed the conviction. Trickler, 106 Wn. App. at 733-34. Unlike the Trickler court, the trial court here properly balanced the probative value and prejudicial effect of the evidence on the record, and ruled in favor of admission. Such a balancing will not be overturned absent an abuse of discretion by the trial court, which is not present here.
Day further argues that testimony at trial violated the trial court's limitation that Catherine's age not be disclosed. Chelsea testified that she had known Catherine since elementary school, and Catherine testified that she was currently in high school. The trial court concluded that the fact that the girls had known each other since elementary school would not `indicate or [imply] to a person of common experience that they are necessarily the same age.' The trial court also noted that Catherine's grade level was not indicated, and that `[s]he could be 18 for all the jurors know.' Thus the trial court concluded that this testimony did not disclose Catherine's age to the jury. The trial court properly concluded that the testimony at trial did not violate its pretrial ruling.
We affirm.