Opinion
No. 36851-0-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 05-1-00707-3, Richard L. Brosey, J., entered October 10, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Bridgewater, JJ.
Patrick B.B.J. Hannon appeals his conviction of two counts of first degree child molestation, arguing that the trial court erred in precluding him from cross examining the victim about a prior allegation of abuse she made against a different defendant. We affirm.
Facts
In 2005, 10-year-old A.P. alleged that Hannon, her step-grandfather, had molested her. Before his trial in 2007, he filed a memorandum of authorities arguing that he should be allowed to question A.P. about an allegation of sexual abuse she made against her uncle, Donald Grandchamp, in 2001. The transcript of the 2001 juvenile court proceeding was unavailable, but A.P.'s parents had filed declarations stating that A.P. admitted making up the allegation because she was angry at Grandchamp. The charge was dismissed following a child hearsay hearing.
The State filed a motion in limine to suppress any mention of the 2001 investigation, explaining that the incident involving A.P.'s uncle occurred at the same time as an incident of abuse involving Christopher Grandchamp. The case against Christopher resulted in a conviction of first degree child molestation; the case against Donald was dismissed. The prosecuting attorney explained what had happened:
The first allegation is in 2001 against Christopher Grandchamp. Immediately after that investigation was initiated, she then came up with allegations against Donald, and it's unclear whether she made them up or not. I'm not sure if we could prove that one way or another.
. . . I did look at the Donald Grandchamp file, and he did admit to at one point pulling down her pants, not her underwear. . . .
So it's not quite as straightforward as she just made this up and, you know, decided it wasn't true. It came during an actual abuse.
And it was six years ago, 2001, when she was six years old. . . . It's completely removed in time. A six-year-old is not even always competent to testify in trial.
Report of Proceedings (RP) at 24-25. The State argued that the evidence should not come in because of its high prejudicial value and its low probative value.
The prosecuting attorney did not know why the 2001 case had been dismissed. The court observed that it was possible that the case went away not because it was proven that the allegation was false, but because A.P. was found to be not credible and her statements to third parties not admissible. The parties confirmed that only hearsay statements from other people supported the claim that the allegation was false. Defense counsel could not say that A.P. had recanted under oath in court, and he had not questioned A.P. about the 2001 allegations when interviewing her about Hannon's case.
The court granted the State's motion in limine after first observing that evidence of a prior claim of sexual abuse generally is not admissible in a prosecution against someone else because it is irrelevant. "[T]he only way that it can possibly be relevant is if it's demonstrably false and shown to be demonstrably false, and then even if we get to that point, it's still within my discretion to admit it or not admit it based upon a balancing of the probative value versus the prejudice." RP at 32. The court then applied these principles to the facts:
Under the circumstances, given that nobody seems to know what really happened with respect to the case involving Donald Grandchamp and this victim, this alleged victim, and we don't know if the case was dismissed as an act of discretion by the prosecutor's office after the ruling that was made apparently on a child hearsay hearing, and we don't know if it was dismissed for other reasons, and there's nothing in the way of a definitive record other than hearsay statements that the statement was in fact admitted to be false.
I find that the statement is inadmissible as irrelevant based upon those factors, but I also find that even if the statement were shown to be false, in my view the prejudice of having the jury hear that on a prior occasion an alleged victim has made a claim of abuse at the hands of a relative — and we don't know all of the particulars as to why that case was not prosecuted to fruition and an ultimate verdict being reached — the prejudice of admitting that evidence that the alleged victim supposedly recanted, as far as I'm concerned, far outweighs any probative value of attempting to demonstrate that she made this up, especially when you stop and consider that the victim at the time was six. She's now 12. And there's a substantial difference between a six-year-old and her ability to observe, perceive and testify truthfully as to what she's observed and perceived, and that of a 12-year-old.
And that does not by any stretch of the imagination mean that [defense counsel] cannot aggressively cross-examine her as to any and all claims made with respect to Mr. Hannon, but the case is going to be tried on the evidence or lack of evidence against Mr. Hannon and not on what did or did not happen with respect to the Grandchamp matter, so I'm granting the motion in limine.
RP at 32-33.
A.P. testified that Hannon came into her bedroom, closed the door, and licked and touched her vaginal area. She was on the stand for more than three hours, during which the defense conducted an extensive cross examination. The jury found Hannon guilty on both counts of first degree child molestation charged, and the court imposed a standard range sentence. Hannon now appeals his convictions.
Analysis
Hannon argues that he was denied his constitutional right to confront his accuser when the trial court prevented him from cross examining A.P. about her prior allegation of abuse against her uncle.
Hannon has withdrawn an additional issue challenging the amendment of his judgment and sentence to include legal financial obligations based on attorney fees.
Both the state and federal constitutions guarantee defendants the right to confront and cross examine adverse witnesses. Wash. Const. art. I, sec. 22; U.S. Const. amend. VI. But the confrontation right and associated cross examination are limited by general considerations of relevance. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002). There is no constitutional right to admit irrelevant evidence, and even relevant evidence may be deemed inadmissible if the State can show a compelling interest to exclude prejudicial or inflammatory evidence. Darden, 145 Wn.2d at 624; State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). Evidence that a rape victim has accused others generally is not relevant unless the defendant can demonstrate that the previous accusation was false. State v. Harris, 97 Wn. App. 865, 872, 989 P.2d 553 (1999). We review the trial court's limitation on the scope of cross examination for manifest abuse of discretion. State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984); see also State v. Mendez, 29 Wn. App. 610, 612, 630 P.3d 476 (1981) (no abuse of discretion in excluding evidence of allegedly false prior rape accusation); State v. Williams, 9 Wn. App. 622, 623, 513 P.2d 854 (1974) (no abuse of discretion in barring cross examination of victim about allegedly false prior rape complaint).
Hannon contends that the trial court inappropriately focused on the truth or falsity of A.P.'s prior allegations and that the key consideration should have been whether her allegation was relevant and admissible on cross examination. But the issue of truth or falsity was key to determining relevancy under Washington law. Moreover, in the cases from other jurisdictions that Hannon cites to support his claim of error, the courts ruled that cross examination of the victim about prior allegations was appropriate only in the face of evidence showing that the prior accusations were false. See, e.g., White v. Coplan, 399 F.3d 18, 24-27 (1st Cir. 2005) (allowing cross examination of victim about prior allegations only after the defense offered proof to a reasonable probability that the victim's prior accusations were false); Redmond v. Kingston, 240 F.3d 590, 591-92 (7th Cir. 2001) (trial court should have allowed cross examination of victim about prior sexual assault claim when evidence convincingly demonstrated its falsity).
Here, the trial court found no reasonable probability that A.P.'s prior allegation of abuse was false. Given the state of the record concerning that allegation, and the fact that the claim of falsity was supported only by hearsay, we cannot conclude that the trial court abused its discretion in making that finding. Moreover, Hannon's offer of proof on this issue was inadequate. See State v. Ray, 116 Wn.2d 531, 538, 806 P.2d 1220 (1991) (offer of proof serves in part to inform trial court of specific nature of the evidence so the court can assess its admissibility). Defense counsel did not question A.P. about her prior allegation and could not tell the trial court whether she would acknowledge or deny having admitted that it was false. Had she denied any such admission, the defense could not have offered extrinsic evidence to contradict her testimony, and the prior allegation would have been irrelevant. See ER 608(b); Harris, 97 Wn. App. at 873. Furthermore, nothing in the record shows factual similarities between the prior and current allegations, and A.P. was thoroughly cross examined about the current allegations. See White, 399 F.3d at 25 (prior admitted lies of same kind in similar circumstances could "powerfully discredit" the victim-witness); State v. Miller, 155 N.H. 246, 254-58, 921 A.2d 942 (2007) (extensive cross examination of victim, and lack of similarities between prior and current allegations of abuse, partly supported conclusion that neither state nor federal confrontation clause required cross examination into her prior allegedly false accusations). Consequently, we find no abuse of discretion in the trial court's refusal to allow A.P. to be cross examined regarding her prior allegation of sexual abuse.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, PJ. and BRIDGEWATER, J., concur.