Opinion
No. 25844-1-III.
November 13, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 05-1-00981-4, Carrie L. Runge, J., entered January 11, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Brown, J.
The second jury to hear the case against Christopher Jones convicted him of the second degree rape of his niece, K.D. The trial court imposed an exceptional minimum term sentence based on a jury finding that Mr. Jones abused a position of trust to commit the offense. This appeal raises a variety of claims relating to the trial court's application of the rape-shield statute, exclusion of testimony about an alleged party, testimony and argument concerning defendant's failure to cooperate with police, and alleged sentencing error. Concluding that the trial court did not abuse its discretion in the rulings in limine, and that defendant was not harmed by the other alleged errors, we affirm the conviction. The court's instruction defining the aggravating factor constituted a comment on the evidence. Therefore, we reverse the sentence and remand for resentencing.
FACTS
Mr. Jones was originally charged with first degree rape. The matter proceeded to jury trial on a defense of general denial. Neither K.D. nor her uncle testified at that proceeding. The jury found Mr. Jones not guilty of first degree rape, but could not agree on the lesser degree offense of second degree rape. The case was rescheduled for trial and was ultimately heard before a different judge. The charge was amended to reflect one count of second degree rape by forcible compulsion. The prosecutor also alleged that the defendant abused a position of trust in the commission of the offense.
On the eve of the second trial, Mr. Jones indicated an interest in raising a consent defense. Invoking the rape-shield statute, the prosecutor moved in limine to prohibit defense counsel from stating in opening statement that K.D. had engaged in sexual conduct with anyone other than the defendant. Defense counsel contended that K.D. had engaged in consensual intercourse with the defendant and two other men that night and that he had a "good faith basis to explore the incidents." The trial court inquired: "You mean relations or acts involving other individuals other than the defendant?" Defense counsel answered "Yes." The trial court asked the parties to provide authority and not address the matter in opening statement.
No written materials were submitted. Instead, defense counsel orally asked the court to "consider reconsidering its ruling saying that we cannot go into the facts surrounding the events of the prior evening and early morning." It was not "purely" offered "to attack the credibility of the victim and make her look bad. It's there to show that the events, as described by my client, more likely took place than not." Counsel then explained that he desired to cross examine the victim about an alleged party, claiming that Mr. Jones and K.D. had gone to a truck stop, found another young woman and two men to join them, and that the five had returned to the house where they drank, used cocaine, and mutually engaged in sexual activity. Counsel also alleged that both women received money for dancing and sexual intercourse. The party lasted from about 11:00 p.m. until 7:30 or 8:00 a.m. Because Mr. Jones would testify about this information, counsel requested to question K.D. about it.
The prosecutor argued that the rape-shield statute precluded testimony or argument that just because a woman had sex with other men, then she must have consented to have sex with the defendant. The trial court agreed with defense counsel's assessment that he had discretion to admit the evidence, but found that offering the evidence to attack the credibility of the victim and prove consent was barred by the rape-shield statute, so "[t]he defense is precluded from providing evidence in that regard." In response to counsel's inquiry, the court indicated that Mr. Jones could not testify to that evidence either.
The prosecutor clarified that cross-examination on "surrounding issues, not including sex," would be prohibited, and requested an ER 404(b) hearing on the topic if counsel wished to get into evidence about alcohol and drug consumption. Defense counsel argued in response that while he would "not be able to ask her about sexual intercourse or dancing with those people," he should be able to go into the other facts of the evening because "I think those go directly to consent." The court offered to conduct a hearing about what other facts counsel wished to elicit now that the court had excluded "any sexual conduct or sexual accounts." Defense counsel responded that he wanted to show that the victim used alcohol and cocaine, explaining "that goes directly towards . . . the victim's ability to recall, to clearly recollect the events and to consent."
The court then conducted an evidentiary hearing. K.D. testified that she and her uncle never went to a truck stop and that there was no party. There were no people in the house when her uncle attacked her that afternoon. A detective testified that Mr. Jones had never claimed that there had been a party or that others were present on June 28. Mr. Jones told the detective that he had been using drugs, but did not report anyone else doing so. Mr. Jones took the stand and contended that he, K.D., and K.D.'s brother had gone to a truck stop, where they picked up two Hispanic males named Kiki and Roger. The group then returned to the Richland house and consumed cocaine (except for K.D.'s brother) and alcohol. In the morning, Mr. Jones and one of the Hispanic males left to buy more cocaine from "Clyde." Mr. Jones did not know how to contact Clyde, Kiki, or Roger. He also declined to call K.D.'s brother to the stand.
The trial court excluded the evidence, finding that the defense had not established the events by a preponderance of the evidence. Pointing to the absence of corroboration, even though it was available, and the failure of the defendant to disclose to the detective, the trial judge concluded he was not convinced that the conduct occurred.
Officer Troy Glasgow of the Richland Police Department told the jury that he met K.D. at Kennewick General Hospital about 5:00 p.m. on June 28, 2005. She reported being raped by her uncle between 1:00 p.m. and 2:00 p.m. that day. He received a rape kit performed by a nurse. Subsequent analysis showed that the DNA recovered from the victim's body belonged to her uncle, Christopher Jones.
The initial charge of first degree rape was filed July 22, 2005, and an arrest warrant was obtained. Police in Center, Texas, made inquiry about the warrant on August 28, 2005. The warrant was later amended to indicate nationwide extradition and Center police arrested Mr. Jones on December 5. He arrived at the Benton County Jail on February 17, 2006. A detective testified that Mr. Jones spoke with him at the jail and denied having any sexual contact with K.D. The detective testified that Mr. Jones refused to voluntarily provide a DNA sample. A search warrant was obtained and the sample taken pursuant to that authority.
K.D., age 18 at the time of trial in November 2006, testified that in May 2005, her uncle moved into the house where she and her brother were living. On June 28, she had been sleeping in her bed in the early afternoon when her uncle climbed on top of her, squeezed her neck while telling her to be quiet, and raped her. He then left and she had no idea where he was until police told her two months later that he was in Texas. K.D. eventually called her mother about the attack and was taken to the hospital.
Defense counsel vigorously cross-examined K.D. about whether she had consented to intercourse with her uncle, an allegation that K.D. repeatedly denied. At the end of cross-examination, defense counsel made a record that he would have liked to have questioned K.D. about drug use, meeting and bringing the others home, and engaging in sexual intercourse "with these individuals." The court confirmed its previous ruling that those topics were excluded under ER 404(b).
The defense called Officer Glasgow as its sole witness in order to highlight differences between K.D.'s report of the incident to him and her trial testimony. The defense then rested without Mr. Jones taking the stand. His counsel explained that Mr. Jones would have little to say in light of the exclusion of the party evidence.
During the instruction conference, the prosecutor moved in limine to preclude defense counsel from arguing consent since there had been no testimony that K.D. had consented to intercourse with her uncle. Objecting, defense counsel stated that there was no testimony about consent because the defendant had been precluded from testifying on the topic. The judge interrupted to point out that defendant had not been prohibited from testifying about that topic and had not been precluded from testifying. The motion in limine was granted.
Defense counsel did not ask the court to allow him to reopen the case to present testimony from his client.
The special verdict on the alleged aggravating factor asked: "Did the defendant, Christopher Jones, use his position of trust as [K.D.'s] maternal uncle to facilitate the commission of the current offense?" The jury ultimately answered "Yes."
During closing argument, the prosecutor noted that Mr. Jones did not take steps to clear up the situation when he learned of the warrant. Rather, the warrant had to be reissued and the defendant apprehended. Defense counsel objected on the basis that there was no evidence in the record to support the argument. The court directed the jury to rely on its own memory.
Later in closing, the prosecutor noted that the defendant had been cooperative with the detective during his interview up to the point that the detective asked for a DNA sample. The prosecutor discussed the change in attitude, asking jurors why Mr. Jones declined to provide a sample. "You know, you don't have to be real smart to know why. Because he knew. The DNA wasn't gonna [sic] lie. The DNA couldn't be manipulated . . . [the detective] got a court order. Nothing voluntary from this man." There was no objection to this argument.
The jury convicted the defendant of second degree rape as charged and also found that he abused a position of trust in the commission of the crime. Sentencing was conducted two months later. The court used an offender score of six that included a burglary conviction from Nevada. There was no challenge to the offender score calculation and no attempt made to establish that the Nevada crime was the equivalent of a Washington offense. The standard range for second degree rape with an offender score of six is 146-194 months. The court imposed a maximum sentence of life in prison pursuant to RCW 9.94A.712 and imposed an exceptional minimum term of 242 months due to the aggravating factor. Mr. Jones then appealed to this court.
ANALYSIS
Rape-Shield. The initial argument in this appeal is a contention that the trial court erred in excluding evidence that K.D. had allegedly engaged in sexual activity with two other men from the truck stop. The trial court properly excluded the evidence under the rationale of the rape-shield statute. Alleging that the victim contemporaneously engaged in sexual activity with others does not make Mr. Jones's own sexual contact with K.D. consensual.
RCW 9A.44.020(2) provides:
Evidence of the victim's past sexual behavior including but not limited to the victim's marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim's consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense.
Subsection (3) permits evidence of past sexual behavior to prove consent, but not to attack the credibility of the victim, on several conditions: A written motion is filed (accompanied by an affidavit) explaining the relevance of the information, the court holds a hearing and concludes the offer of proof is sufficient, and the court finds the evidence relevant, not unduly prejudicial, and exclusion would deny substantial justice to the accused. See RCW 9A.44.020(3).
This statute was authoritatively construed in State v. Hudlow, 99 Wn.2d 1, 659 P.2d 514 (1983). The court noted that the purpose of the statute was to overturn the former common law rule that evidence of promiscuity or nonchastity was evidence of a woman's lack of credibility, but not so for a man. Id. at 8-9. Another fallacy of the common law rule was the belief that a woman who had consented to sexual activity with another man in the past was more likely to currently consent to sexual activity with the defendant. Id. at 10. The court rejected the notion that past consent to sexual activity meant one was likely to have consented in the current case; such evidence did "not even meet the bare relevancy test of ER 401." Id. Instead, the court suggested that past patterns of behavior might be relevant if similar to the behavior at issue in the present case. Id. at 10-12. Even in cases where past sexual behavior had some relevance to the case at bar, the trial judge has discretion to exclude the evidence if it presented a danger of prejudicing the truth-finding process. Id. at 12-14. However, the defendant's constitutional right to present evidence could only be overcome by the showing of a "compelling state interest" in excluding relevant evidence. Id. at 14-16. The court concluded that the compelling interest test was satisfied with respect to evidence that had minimal relevance, but would not be met for evidence that was highly probative. Id. at 16. The court concluded that the trial court had not abused its discretion in excluding evidence that the victims had a reputation for promiscuity. Id. at 17-19.
Mr. Jones argues here that the rape-shield statute does not apply to his case because the alleged sexual activity with other men was contemporaneous with his own activity with K.D., rather than involving the type of past activity the rape-shield statute was intended to reach. No Washington case has defined the phrase "past sexual behavior" for purposes of the rape-shield statute. This court touched upon the issue briefly in a case involving a double jeopardy challenge to a court's mistrial ruling. State v. Sheets, 128 Wn. App. 149, 115 P.3d 1004 (2005), review denied, 156 Wn.2d 1014 (2006). There, a trial judge had doubted whether a rape victim's flirtation with another man earlier in the evening constituted "past sexual behavior" for purposes of the rape-shield statute. Id. at 156-157. This court questioned whether the behavior even amounted to "sexual conduct" under the statute, but agreed that the rape-shield statute did not bar the testimony as it was highly probative evidence of intoxication (the primary issue in the case) and minimally prejudicial. Id. at 157-158.
This case, too, does not require us to decide what constitutes "past sexual behavior" under the statute. The Hudlow court noted that the balancing required by the rape-shield statute is essentially the same balancing test applied under ER 403. 99 Wn.2d at 12. ER 403 authorizes trial courts to exclude otherwise relevant evidence if the probative value of the evidence is significantly outweighed by the danger of unfair prejudice or other interference with the fact-finding function of the jury. Carson v. Fine, 123 Wn.2d 206, 222-223, 867 P.2d 610 (1994). Even if the rape-shield statute did not apply to the proffered evidence, we think the trial court's balancing of the probative value of that evidence versus its prejudicial effect also would require exclusion under ER 403.
The Hudlow court already determined that previous consent to sexual behavior with a different man was not relevant to the question of whether the victim had consented to the present sexual contact with the defendant. 99 Wn.2d at 11. We believe that the fact that the earlier consent occurred near in time to the defendant's sexual contact with the victim does not change that equation. The fact that V consented to sexual contact with A ten minutes ago does not make it more likely that V therefore consented to contact with D now. The underlying premise — that consent with one person makes it more likely there was consent to sexual contact with another person — simply is not dependent upon temporal factors. The premise is logically invalid regardless of the length of time between the two incidents. Hudlow, 99 Wn.2d at 10. Rather, if there is probative value from a prior consent to sexual contact, it has to do with the nature of the sexual behavior in question rather than the fact that consent was given. Id. at 11. There was no argument or evidence along those lines presented in this case.
Evidence that is not relevant is not admissible. ER 402. Evidence that is relevant but unduly prejudicial is excluded by ER 403. Rulings under either rule, as with the rape-shield statute, are reviewed for abuse of discretion. State v. Rivers, 129 Wn.2d 697, 709, 921 P.2d 495 (1996); Carson, 123 Wn.2d at 226; Hudlow, 99 Wn.2d at 17-18. Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Given that Hudlow already has recognized that the evidence has little or no relevance in this context, we cannot say that the trial court abused its discretion when it excluded evidence that K.D. allegedly engaged in sexual relations with two other males the same evening that defendant claims he had sexual relations with her. There was no error in excluding this evidence.
The only male DNA recovered from the victim belonged to the defendant.
Party Evidence. In a related argument, Mr. Jones contends that even if sexual contact with the two other males was excluded, he should have been allowed to admit evidence of drug and alcohol use involving the same people to show that the victim consented to sexual activity. The trial court considered the proffer and found that there was no such "party." There was no abuse of discretion in that ruling either.
In order to admit evidence of "other bad acts" under ER 404(b), the proponent of the evidence must first convince a trial court by a preponderance of the evidence that the "misconduct" actually occurred. State v. Lough, 125 Wn.2d 847, 853, 864, 889 P.2d 487 (1995). A trial court may conduct a hearing to take testimony, but is not required to do so. State v. Kilgore, 147 Wn.2d 288, 294-295, 53 P.3d 974 (2002). If the court determines that the misconduct occurred, the court then must identify the purpose for which the evidence is offered, determine whether the evidence is relevant to prove an element of the offense, and weigh the probative value of the evidence against its prejudicial effect. Lough, 125 Wn.2d at 853. The court may then admit the evidence subject to a limiting instruction telling the jury the proper uses of the evidence. Id. at 864.
Appellant complains that the trial court lacked the ability to exclude his testimony merely by disbelieving it. However, that is exactly what ER 404(b) permits. The trial court does not look to see merely if there is prima facie evidence of the misconduct. Rather, the ER 404(b) standard requires a trial judge to determine what happened in order to rule upon the admissibility of evidence. This preliminary factual determination necessarily involves weighing evidence when there is a dispute.
Here, it is understandable that the trial court found that the "party" did not take place. Not only did K.D. deny it, but Mr. Jones's statement to the police made no mention of a party or suggest any drug use other than his own. Appellant's own testimony also was seriously at odds with his counsel's offer of proof. Counsel claimed that K.D. and Mr. Jones went to the truck stop where they picked up two males and a female, and then claimed that the two women danced and engaged in sex for money. Instead, Mr. Jones testified that he, K.D., and K.D.'s brother went to the truck stop and returned only with two males. There was no allegation that another woman was present during the "party." There was no testimony that money was exchanged for dancing or sexual activity. The trial court, understandably, did not find the evolving story to be credible, pointing out that there was no disclosure to the police of this evidence and that the defense was not going to call K.D.'s brother to corroborate the claims. Finding that the defense story did not amount to a preponderance of the evidence, the court determined that no "party" occurred and excluded the evidence.
There is no constitutional right to present irrelevant evidence. Hudlow, 99 Wn.2d at 15. When the trial court determined that there was no party, the proposed evidence was irrelevant and properly excluded. ER 401, 402.
Mr. Jones argues that in addition to the consent issue, evidence of drug usage also was relevant to show the victim's ability to recall events. The problem with the argument is that there was no evidence that the victim was ever impaired. Absent such evidence, the proposed drug and alcohol usage testimony was again irrelevant.
Intoxication or impairment from drug usage is a factual question that can be proved by lay testimony. State v. Smissaert, 41 Wn. App. 813, 815, 706 P.2d 647, review denied, 104 Wn.2d 1026 (1985). There must be a showing of drug or alcohol consumption and the effect of the consumption on the drinker. See, e.g., State v. Dana, 73 Wn.2d 533, 535, 439 P.2d 403 (1968); State v. Zamora, 6 Wn. App. 130, 132, 491 P.2d 1342 (1971), review denied, 80 Wn.2d 1006 (1972). Mr. Jones had lived with his niece for a month and had known her a substantially longer period of time. He presumably could have testified that from his observations the alcohol and cocaine influenced K.D. in a manner that impaired her ability to recall events properly. He did not do so. Similarly, counsel's offer of proof did not suggest that the victim was impaired in any manner. Appellant seems to argue that drug usage is per se evidence of impairment. The decision he relies upon shows that is not the case. In State v. Brown, 48 Wn. App. 654, 739 P.2d 1199 (1987), the alleged victim of a rape had reportedly told a man that she was high on LSD at the time of the sexual assault. The trial court excluded both that statement and expert testimony that the drug could produce perception distortion. Id. at 657. This court reversed, ruling that both pieces of evidence were crucial to assessing the victim's ability to perceive events properly. Id. at 660-661. Tellingly, we noted that evidence of the "ingestion of LSD and its effect is crucial." Id. at 660 (emphasis added). This court did not suggest that usage of LSD was admissible on its own without a showing of its impact on the victim.
In a rape prosecution, defense presentation of evidence that the victim was intoxicated is a double-edged sword since one of the means of proving rape is that the victim was incapable of consent due to incapacity. RCW 9A.44.050(1)(b).
Similarly here, the fact that K.D. allegedly used cocaine is not relevant evidence without either some indication that she was actually affected by the drug or expert testimony about the probable impact of cocaine usage on her ability to perceive events. Id. Since there was no showing of either, there was no error in excluding the testimony.
Other Claims. Mr. Jones also challenges the verdict on two other bases. He contends his right to remain silent was violated when the prosecutor argued that he did not voluntarily return from Texas or contact the detective. He also contends that his rights were violated when a detective testified that Mr. Jones refused to consent to a DNA swab. Even if we assume that both of these events were error, we do not believe they harmed the defendant. Any error was harmless beyond a reasonable doubt.
Error of constitutional magnitude can be harmless if it is proven to be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). We believe that to be the case here. In light of the failure to present any evidence on the issue of consent, the defense theory of the case was that the State failed in its burden to prove the elements beyond a reasonable doubt. The State's evidence, however, was overwhelming. Defendant's denial of any sexual contact with the victim was admitted. The victim identified her uncle, Mr. Jones, as the assailant and described an act of rape for the jury. Testing confirmed that the male DNA recovered from the victim belonged to Mr. Jones, who abruptly left Richland after the incident and went to Texas. In light of this evidence, the erroneous admission of evidence and argument about the defendant's failure to cooperate with authorities was truly harmless beyond a reasonable doubt. No jury would have returned a different verdict if the errors had not occurred.
Sentencing. Appellant raises three sentencing related claims. He contends for several reasons that the jury was not properly instructed on the aggravating factor of abuse of trust. He also argues that the trial court erred by failing to enter findings of fact in support of the exceptional sentence as required by RCW 9.94A.535, and did not consider whether his Nevada conviction was comparable to a Washington felony before counting it in the offender score. Agreeing with one of his arguments, we reverse the exceptional minimum sentence and remand for resentencing. Accordingly, we will not address his other sentencing-related claims.
It is an aggravating factor that "The defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense." RCW 9.94A.535(3)(n). Well-settled case law confirms that this factor consists of two components: the offender occupied a position of trust and used that position to facilitate commission of the crime. State v. Vermillion, 66 Wn. App. 332, 347, 832 P.2d 95 (1992), review denied, 120 Wn.2d 1030 (1993); State v. Bedker, 74 Wn. App. 87, 95, 871 P.2d 673, review denied, 125 Wn.2d 1004 (1994).
Our constitution prohibits judges from commenting on the evidence before the jury. Wash. Const. art. IV, § 16 provides: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." A jury instruction which removes a factual matter from the jury constitutes a comment on the evidence in violation of this section. State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). In Becker, a special verdict form asked the jury if the crime had been committed within 1,000 feet of a school, "to-wit: Youth Employment Education Program School." Id. The parties had contested at trial whether the Youth Employment Education Program constituted a school or not. Id. at 63. Because the form stated that the program was a school, the special verdict constituted a comment on the evidence. Id. at 65.
The same result follows here. The jury was required to find two things in order to return a special verdict on the aggravating factor. First, it had to find that Mr. Jones had in fact occupied a position of trust. Second, it had to find that he used that position to facilitate the commission of the crime. Vermillion, 66 Wn. App. at 347. The unfortunate wording of the special verdict form here told the jury that Mr. Jones did occupy a position of trust as an uncle and simply asked whether he used that position to commit the crime. The removal of the question whether the defendant occupied a position of trust is just as much a comment on that fact as was the status of the contested school in Becker. As in Becker, the error in the special verdict form constituted a comment on the evidence.
The prosecution contends that any error in this regard was harmless. We disagree. While there was evidence from which the jury could find that defendant occupied a position of trust — he was an uncle and the only adult in a house with two minors — he had only lived in the residence for a month and the victim's mother still lived in the area. The evidence was clearly in dispute and could have gone either way with the jury. Thus, we do not believe the error in the wording of the instruction was harmless. We therefore reverse the exceptional minimum sentence and remand the case for a new sentencing proceeding.
We believe sufficient evidence was presented for the jury to find both that Mr. Jones occupied a position of trust and that he used the position to facilitate the crime. Compare State v. Stevens, 58 Wn. App. 478, 501, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990) (babysitter who committed child rape abused a position of trust). Accordingly, we reject his argument that the evidence was insufficient as a matter of law.
The conviction for second degree rape is affirmed. The exceptional minimum sentence is reversed. The case is remanded for a new sentencing proceeding.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, C.J. and Brown, JJ, concur.