Opinion
No. 58262-3-I.
October 1, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-8-05376-5, Mary Roberts, J., entered May 2, 2006.
Affirmed by unpublished per curiam opinion.
L.L. appeals his juvenile adjudication for third degree rape. The trial court did not abuse its discretion in its evidentiary rulings limiting evidence of the victim's prior sexual conduct with persons other than L.L and excluding lay testimony regarding her mental condition. Those rulings did not deprive L.L. of his constitutional right to confrontation because the evidence was not relevant. L.L. also has not shown that his trial counsel's offer of certain evidence without supporting expert testimony constituted ineffective assistance because he has not shown prejudice. We affirm.
A.M. met Kayla and Brandee L. at the Lambert House in Seattle in 2004. Lambert House is a community center for gay, lesbian, bisexual, transgender, and youth questioning their sexual identities. Kayla invited A.M. to live with her family. This included her mother, Karyl L., and her 15-year-old brother, L.L., at their five-bedroom house in Kent. Several other teenagers who also had met at Lambert house lived there as well.
In April 2005, A.M. was sharing a bed and bedroom with another teenage girl staying at the house, "Kay Kay" Crowe. Their bedroom also contained a computer used by all of the house residents.
On the evening of April 22, L.L. was in A.M.'s room while A.M. was playing a computer card game. According to A.M., she repeatedly asked L.L. to leave so she could go to bed, but he would not. Eventually she changed into her pajamas as discreetly as she could and climbed under the covers of her bed. L.L. was still in the room playing on the computer when she fell asleep in the early morning hours.
Some time later, A.M. felt someone climb into bed with her. Thinking it was Crowe, she moved closer to the wall. A few minutes later, she was awakened by the feeling of L.L.'s fingers in her vagina. She pulled his hand away and told him to stop. L.L. attempted to touch her again and she rolled onto her stomach and pushed herself against the wall. L.L. then unsuccessfully tried to pry A.M.'s legs apart and reach underneath her body to touch her genitals. A.M. was too frightened to shout or scream.
Eventually L.L. left the room. A.M. went downstairs and told Crowe that L.L. had sexually assaulted her and called a former counselor. The counselor went to the house and took A.M. to the hospital.
L.L.'s testimony concerning the events of that night differed from A.M.'s.
He said that A.M. joked and flirted with him while she got ready for bed. When he sat next to her on the bed, she scooted over for him. He playfully poked her and she did not resist or complain.
After 10 to 15 minutes, he put his hand on her stomach and reached up towards her breasts. L.L. testified he did not know if A.M. was then awake or asleep. He reached his hand inside her pajama pants and put his finger in her vagina for five to seven minutes, during which time he thought she was awake because of the way she shifted her position once or twice. Although she had given him no indication that she wanted him to touch her in the way he did, he believed she consented because she did not resist or protest and had previously flirted with him and discussed her sexual experiences with others.
Before trial, defense counsel moved to admit evidence of other sexual acts by A.M. and evidence of her mental illness of either "bipolar personality disorder" or "borderline personality disorder." According to the record, the purpose of the motion was to challenge A.M.'s credibility and support the defense theory of consent. The offer of proof consisted of an affidavit by a defense investigator, to which were attached printed excerpts from A.M.'s computer journal. After a hearing on the motions, in which defense counsel acknowledged that she did not intend to offer expert testimony, the trial court ruled that any evidence of A.M.'s prior sexual conduct that involved L.L. was admissible but any other such evidence was not.
At the conclusion of the fact-finding hearing, the court found L.L. guilty of third degree rape. The court imposed a standard range disposition. L.L. appeals.
A.M.'s Sexual History
L.L. contends that the trial court abused its discretion and violated his right to confront witnesses when the court limited introduction of evidence of A.M.'s sexual history set forth in his offer of proof. We reject both contentions.
Under the federal and state constitutions, a defendant is guaranteed the right to present evidence in his or her defense and the right to confront and cross-examine adverse witnesses. There is no constitutional right, however, to introduce irrelevant evidence. Evidence is relevant if it tends "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." Even where the evidence is of minimal relevance, it may be excluded if the State's interest in applying the rape shield law is compelling in nature. We review a trial court's determination of relevance for abuse of discretion.
U.S. Const. amend. 6; Const. art. 1, sec. 22 (amend.10); Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (right to confront adverse witnesses); Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (same); State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996) (right to cross-examine), review denied, 131 Wn.2d 1011, 932 P.2d 1255 (1997).
State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
ER 401.
Hudlow, 99 Wn.2d at 16.
State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129, 115 S. Ct. 2004, 131 L. Ed. 2d 1005 (1995).
After reviewing L.L.'s offer of proof regarding A.M.'s sexual history, the court correctly noted that many of the acts described in the affidavit were not sexual at all. With respect to the sexual behavior actually described in the affidavit, the court reasoned that it was precisely the type of history that was not relevant to the issue of consent and thus was intended to be excluded by the rape shield statute, RCW 9A.44.020(3)(d).
That a person has consented to sexual intercourse in the past does not make it more probable that she consented to sex on another occasion. Thus, proof of prior sexual behavior, without more, "does not even meet the bare relevancy test of ER 401." "Without other factors tending to indicate the past consensual sexual activity is factually similar in some respects to the consensual sex act claimed by defendant, it should not be considered relevant."
Hudlow, 99 Wn.2d at 10. See also RCW 9A.44.020(3)(d) (evidence regarding alleged victim's past sexual behavior admissible only if court finds it relevant to consent).
Hudlow, 99 Wn.2d at 10-11.
Here, L.L. made no showing that A.M.'s alleged prior consensual sexual activity was substantially similar to either A.M. or L.L.'s version of the events in issue. Nor did he offer a reasonable explanation of how A.M.'s unspecified sexually transmitted disease made it more likely that she consented to intercourse with L.L. The proffered evidence was not relevant.
See Hudlow, 99 Wn.2d at 10-11; State v. Mounsey, 31 Wn. App. 511, 521, 643 P.2d 892 (1982) (victim's prior sexual behavior with must be substantially similar to defendant's claim).
Even if we assumed the evidence was minimally relevant, the State has a compelling interest under the circumstances here to enforce the provisions of the rape shield statute. The circumstances in this case fall within the intent of that statute to avoid prejudice to the truth-finding function at trial, as the Hudlow case makes clear. Thus, even if the evidence was minimally relevant, it would still be excludable.
Id. at 16.
The exclusion of this evidence did not violate L.L.'s constitutional right of confrontation. The trial court did not abuse its discretion.
Hudlow, 99 Wn.2d at 15.
A.M.'s Mental Health History
The trial court concluded that absent expert testimony about A.M.'s mental condition, the proffered evidence was not relevant. We agree.
On appeal, L.L. contends the exclusion of this evidence was an abuse of discretion. He claims he should have been able to show that A.M. "acted in conformity with her mental illness trait, since consent was an essential element of the charge."
Brief of Appellant at 20.
Evidence of mental illness is evidence of a condition, not evidence of a character trait. We review the trial court's decision to admit or reject evidence of a witness's mental condition for impeachment purposes for abuse of discretion. Such evidence can be admissible when it shows a condition that can affect the witness's memory, powers of observation, or ability to testify accurately.
See State v. Kelly, 102 Wn.2d 188, 685 P.2d 564 (1984); In re Meistrell, 47Wn. App. 100, 109, 733 P.2d 1004 (1987). (emphasis added)
State v. Froehlich, 96 Wn.2d 301, 305-07, 635 P.2d 127 (1981).
See 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice (5th ed. 2007) § 607.11, p. 400-01 (citing State v. Froehlich, 96 Wn.2d 301; see also People v. Gurule, 28 Cal. 4th 557, 592, 51 P.3d 224, 123 Cal.Rptr.2d 345 (2002), cert. denied, 538 U.S. 964 (2003)).
Here, the record fails to make clear the nature of A.M.'s diagnosis. Moreover, it does not establish that A.M. suffered from a condition that affected her ability to accurately perceive, recall, or relate her observations. Nor did the offer of proof support an inference that her condition made it more likely that A.M. would have consented to sexual intercourse with L.L.
The trial court did not abuse its discretion in excluding this evidence.
Ineffective Assistance of Counsel
L.L. alternatively contends that his trial counsel provided ineffective assistance by failing to retain an expert. Because he fails to show prejudice, we disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must meet both prongs of a two-prong test. First, the defendant must show deficient performance. Second, the defendant must show prejudice-"that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." If an appellant fails to establish either element of the ineffective assistance of counsel claim, we need not address the other element.
Strickland v. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (quoting Strickland, 466 U.S. at 687).
Hendrickson, 129 Wn.2d at 78.
Significantly, the trial court's oral and written decisions show that the critical problem for L.L.'s consent defense was not a lack of impeachment of A.M. Rather it was his own testimony that he did not know whether A.M. was asleep or awake when he first penetrated her vagina with his finger. This critical issue regarding her lack of consent conclusively shows that the absence of the excluded evidence regarding A.M. did not result in prejudice to L.L.'s defense. Thus, he has failed to show one of the critical prongs supporting his ineffective assistance of counsel claim.
We affirm the adjudication and disposition.