State of Washington v. Eduardo Chavez ( 2017 )


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  •                                                                          FILED
    SEPTEMBER 7, 2017
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                          )
    )         No. 34334-1-111
    Respondent,              )
    )
    v.                                     )
    )
    EDUARDO CHAVEZ,                               )         UNPUBLISHED OPINION
    )
    Appellant.               )
    KORSMO, J. -Eduardo Chavez appeals from a conviction for second degree rape,
    arguing that the trial court erred in excluding evidence concerning the young victim's
    reputation for honesty in her school community. Since the defense did not establish a
    proper foundation for the testimony, the trial court did not abuse its discretion by
    excluding the proposed evidence. The conviction is affirmed.
    FACTS
    The prosecutor filed a charge of second degree rape predicated on A.S.'s inability
    to consent due to incapacity. The charge arose from an incident occurring after 15-year-
    old A.S. ran away from her home in Milton-Freewater, Oregon following a dispute with
    her father. She eventually ended up in the home of Jesus Torres in Walla Walla where
    No. 34334-1-III
    State v. Chavez
    she consumed liquor and smoked marijuana. 1 The youth became quite intoxicated and
    shaved her eyebrows and cut her hair in an effort to change her appearance. Torres, a
    "known sex offender," later walked her to the nearby home of Eduardo Chavez so that
    A.S. had a place to sleep. Mr. Chavez would soon tum 17.
    Chavez provided A.S. a bed in a room where two people were sleeping in another
    bed; he left to sleep elsewhere in the house. A.S. awoke the next morning with her shirt
    pushed up and her jeans twisted around her ankles and unzipped; her hips felt sore. She
    was still very intoxicated. Torres arrived at the house and gave A.S. a ride to her
    boyfriend's house in Milton-Freewater. During the ride, the two younger girls (M.B. and
    A.B.) noted that A.S. had hickeys on her neck, a fact that embarrassed A.S. She
    commented that she may have been raped.
    After her father picked her up from her boyfriend's home and returned her to her
    home, A.S. got into a fight with her grandmother and left the house again. This time she
    went to the nearby home of her friend, S.B. There she explained that she thought she
    might have been raped. S.B. reported the comment to her mother, who in tum called
    A.S. 's grandmother. The police were called and A.S. was directed to go to the hospital
    the following morning to undergo a sexual assault exam.
    1
    There was testimony that A.S. and two younger friends (M.B. and A.B.), a week
    prior to the incident, had gone with Torres to a hotel room in Walla Walla and spent the
    night drinking and smoking marijuana.
    2
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    State v. Chavez
    DNA belonging to Mr. Chavez was recovered from A.S. He initially denied that
    police would find his DNA, but after being told they had done so, Mr. Chavez told
    detectives that the couple had engaged in intercourse at A.S.'s suggestion and with her
    consent. He later explained to jurors that it was common for girls to take their clothes off
    and throw themselves at him when they first met him. A 14-year-old friend, M.R.-G.,
    testified that she was at Chavez's home and could hear the couple engaging in sex and
    that the girl was "moaning. " 2
    A.S. was a freshman at "Mac-Hi" at the time of trial. Report of Proceedings (RP)
    at 154. She previously had spent part of her eighth grade year at Weston Middle School.
    Before that she had been in school at Central and at Ferndale. S.B., who was one school
    year younger, had been in the same schools with A.S. during some of those years. RP at
    195-197. A.S. testified that she drank "a lot" of vodka and did not remember engaging in
    sexual intercourse, let alone consenting to it. Her grandmother testified that even at the
    hospital, a day after the incident, A.S. "reeked of alcohol," "appeared to be in a fog," and
    acted like she was hungover. RP at 143-144, 149.
    During the testimony of S.B., the defense used cross-examination to attack the
    credibility of A.S. S.B. told jurors that A.S. "smiled" when she disclosed she thought she
    2 M.R.-G.'s testimony that the girl was enjoying herself was twice stricken from
    the record.
    3
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    State v. Chavez
    had been raped. S.B. also testified that A.S. had told several people at a skateboard park
    that she had been raped; A.S. denied having done so. The defense also attempted to have
    S.B. opine concerning A.S.'s reputation for honesty at school.
    S.B. is a year behind A.S. in school and had attended the same schools for several
    years, although A.S. had only been at Weston for part of her eighth grade year. The
    following exchange between S.B. and defense counsel occurred:
    Q Okay. And you have gone to school with her off and on since at least
    second grade down at Ferndale?
    A Yes.
    Q And then you went to school with her at Central?
    A Yes.
    Q And then you went to school with her down at Weston?
    A Yes.
    Q And during that time if you added up all the students in all the grades
    that you had been with her, you have been around probably at least a
    hundred different people that had interaction with you and her; isn't that
    right?
    A Yes.
    Q And were you aware of her reputation in the school community-
    RP at 298-299. The prosecutor objected and an extended discussion took place outside
    the presence of the jury at which both sides questioned S.B. After hearing the testimony
    and argument of the parties, the court ruled:
    The Court finds that the relevant factors of the frequency of contact
    between members of the community, the amount of time known in the
    community and the role the person played in the community and the
    number of people, that that foundation has not been met and that that
    opinion statement with reference to truthfulness and veracity will not come
    m.
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    The evidence that came in, counsel, does not convince me that the
    community has been defined and the foundation has not been laid.
    RP at 316.
    The defense renewed its questioning of S.B., but the trial court remained
    unconvinced that a foundation had been established, so the cross-examination moved on
    to other matters. The cross-examination concluded with S.B. indicating that she had
    trouble believing A.S. RP at 326.
    The parties argued the case on competing theories of the respective credibility of
    A.S. and Mr. Chavez. The jury returned a verdict of guilty. After imposition of a
    standard range sentence, Mr. Chavez timely appealed to this court.
    ANALYSIS
    The sole issue 3 presented is whether the trial court erred in declining to permit
    S.B. to state the reputation of A.S. in the school community. Although the court could
    have reached a different result on these facts, we cannot hold that the court abused its
    discretion.
    3 Mr. Chavez also filed a well-written statement of additional grounds raising
    several issues. In such matters as the length of voir dire and other courtroom
    management issues, Mr. Chavez has failed to establish any abuse of the trial court's
    considerable management discretion. Peluso v. Barton Auto Dealerships, Inc., 138 Wn.
    App. 65, 69, 
    155 P.3d 978
    (2007). In those and all of the other claims, his personal
    statement fails to establish prejudicial error. Accordingly, there is no basis for relief and
    we will not further address the arguments.
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    State v. Chavez
    This court reviews the trial court's evidentiary rulings for abuse of discretion.
    State v. Guloy, 
    104 Wash. 2d 412
    , 429-430, 
    705 P.2d 1182
    (1985). The foundation for
    admission of ER 608 reputation evidence likewise is reviewed for abuse of discretion.
    State v. Land, 121 Wn.2d 494,500, 
    851 P.2d 678
    (1993). Discretion is abused when it is
    exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
    
    79 Wash. 2d 12
    , 26, 
    482 P.2d 775
    (1971).
    ER 608(b) provides in essence that a party may not attack the credibility of a
    witness by extrinsic evidence of prior conduct, but the witness may be cross-examined as
    to her character for truthfulness or untruthfulness. ER 608(a) similarly allows reputation
    testimony concerning a witness's character trait of truthfulness or untruthfulness. To
    offer such testimony, the proponent of the reputation testimony generally must satisfy a
    five factor test. State v. Lord, 
    117 Wash. 2d 829
    , 873, 
    822 P.2d 177
    (1991). The five
    elements are:
    "The first element is the foundation for the testimony-the
    knowledge of the reputation of the witness attacked. Second, the
    impeaching testimony must be limited to the witness's reputation for truth
    and veracity and may not relate to the witness's general, overall reputation.
    Third, the questions must be confined to the reputation of the witness in his
    community ... Fourth, the reputation at issue must not be remote in time
    from the time of the trial. Finally, the belief of the witness must be based
    upon the reputation to which he has testified and not upon his individual
    opinion."
    
    Id. (quoting SA
    KARL B. TEGLAND,     wASHING TON PRACTICE: EVIDENCE LA w AND
    I
    PRACTICE§ 231, at 202-204 (3d ed. 1989)).
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    In the context of defining "community" for purposes of ER 608, the court
    discussed that standard two years later in Land.
    A party seeking to admit evidence bears the burden of establishing a
    foundation for that evidence. To establish a valid community, the party
    seeking to admit the reputation evidence must show that the community is
    both neutral and general. Some relevant factors might include the
    frequency of contact between members of the community, the amount of
    time a person is known in the community, the role a person plays in the
    community, and the number of people in the community. The decision as
    to whether the foundation for a valid community has been established rests
    within the proper discretion of the trial court. A trial court abuses its
    discretion when it acts in a manner that is manifestly unreasonable or based
    on untenable grounds or 
    reasons. 121 Wash. 2d at 500
    (citations omitted). Land held that the trial court had not abused its
    discretion in permitting reputation testimony based on a work community of wood shook
    manufacturing. 
    Id. at 500-501.
    The court also ruled that reputation evidence was no
    longer to be limited to the community in which the witness lived. 
    Id. Here, the
    trial court applied the established Land test and concluded Mr. Chavez
    had not satisfied the foundation for admitting the proposed ER 608(a) testimony. Mr.
    Chavez argues here that the trial court determined, wrongfully in his view, that a school
    could not be a community. However, the record does not read as Mr. Chavez argues it
    does. Trial counsel attempted to bait the court into ruling that a school was not a
    community, but the trial judge declined to bite on the argument. RP 321-322.
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    No. 34334-1-111
    State v. Chavez
    As noted previously, the trial court appeared to accept the notion that a school
    could constitute a community. 4 RP 316. Rather, the court found that the Land factors
    had not been satisfied:
    The Court finds that the relevant factors of the frequency of contact
    between members of the community, the amount of time known in the
    community and the role the person played in the community and the
    number of people, that that foundation has not been met.
    RP at 316.
    This was a tenable basis for ruling. Mr. Chavez sought to impeach A.S. with her
    alleged reputation at her former school, one that she had only attended for a portion of
    her eighth grade year. The witness was not even a classmate, but a student who had
    trailed her through the years at various schools. It appears that the children to whom S.B.
    had talked were her classmates rather than A.S.'s, although the record is less than clear
    on that point. There was no discussion about how well those children knew A.S. nor how
    long they had known her or her purported reputation. It also is very unclear that they
    were reporting an actual reputation as opposed to their personal opinions about A.S. It
    was also unclear whether the reputation was recent rather than one developed years
    4
    Although we need not decide the issue, it appears that a school could be a proper
    "community" within the meaning of ER 608 in many instances. We note the prosecutor's
    policy arguments concerning the development of children as reasons for not applying ER
    608 to youth and believe they may be important considerations for a trial judge to weigh in
    determining whether or not to allow this type of evidence. We likewise need not further
    address these arguments in light of our conclusion.
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    No. 34334-1-111
    State v. Chavez
    previously in her grade school days. 5 In short, S.B. did not provide sufficient information
    to establish the foundation recognized in Land.
    The brief time that A.S. was at Weston school and the ambiguous nature of the
    information provided by S.B. concerning the girls she had spoken to could legitimately
    leave the trial judge dissatisfied with the defense proffer. This is a tenable basis for
    rejecting the testimony. The court did not err.                                                I
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    The conviction is affirmed.                                                             l
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    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
    I
    RCW 2.06.040.                                                                                  I
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    I CONCUR:
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    5
    In response to a question from the court, S.B. stated that she did not think the
    reputation evidence related to a time before A.S. was at Weston. RP at 301.
    '
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    No. 34334-1-III
    SmoowAY, J. (dissenting) -      In prosecutions for rape where the defense is
    consent, the central issue is who is telling the truth. Under Washington's evidence rules,
    the only direct way an accuser's character for truthfulness can be challenged is through
    evidence that she or he has a reputation as untruthful, offered under ER 608. In this case,
    after defense counsel laid the foundation for inquiry into the accuser's reputation and
    relevant portions of the State's voir dire further supported it, the trial court nevertheless
    sustained the State's objection without specifying what it found lacking. Because the
    State's arguments that apparently persuaded the court went to the weight of the evidence,
    not its admissibility, I can find no tenable basis for the court's ruling. I would reverse
    and remand for a new trial.
    I suspect the trial court was dubious about the value of reputation evidence, and
    !
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    understandably so. Unfortunately, Washington is in the small minority of jurisdictions
    that excludes informed opinion evidence about a witness's truthfulness, preferring
    evidence of the witness's reputation. As the Washington Supreme Court pointed out               II
    almost a century ago in State v. Hooker, no less an authority than John Henry Wigmore
    I
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    No. 34334-1-III
    State v. Chavez ( dissent)
    contended that the opinion of a witness's truthfulness from someone well acquainted with
    that witness was far superior to evidence of"' the second-hand, irresponsible product of
    multiplied guesses and gossip which we term "reputation."' 99 Wash. 661,668, 
    170 P. 374
    (1918) (quoting 3 JOHN HENRY WIGMORE, A TREATISE ON THE SYSTEM OF
    EVIDENCE IN TRIALS AT COMMON LAW§ 1986, at 2644 (1904)). Because many
    commentators agreed that preferring reputation testimony over opinion was historically
    unsound, the federal rules of evidence have provided since enactment in 1976 for the
    admissibility of evidence of truthfulness in the form of opinion as well as reputation.
    United States v. Lollar, 
    606 F.2d 587
    (5th Cir. 1979). At the time Hooker was decided,
    Washington was only one of six states that took "the radical position, devoid of historical
    support, that reputation is the sole source of proof." Hooker, 99 Wash. at 668. In
    adopting Washington's evidence rules in 1979, our Supreme Court persisted in that
    position, rejecting the modem option provided by the federal rules and the rules of most
    states. See 5A KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LA w AND
    PRACTICE§ 608.1, at 426 & n.6 (6th ed. 2016); EDWARD J. IMWINKELRIED,
    EVIDENTIARY FOUNDATIONS§ 5.06[1], at 221 (9th ed. 2015) ("The majority view ... is
    that opinion evidence is also admissible."); People v. Barber, 
    74 N.Y.2d 653
    , 655-58,
    
    541 N.E.2d 394
    , 394-97, 
    543 N.Y.S.2d 365
    (1989) (Titone, J. dissenting) (collecting rule
    2
    No. 34334-1-111
    State v. Chavez (dissent)
    and case citations reflecting the modem, majority approach). 1
    A reputation witness in Washington cannot support her knowledge of another
    witness's reputation as untruthful with examples; all she can provide in direct
    examination is what the United States Supreme Court described in a decision predating
    the adoption of the federal rules of evidence as a "summar[y of] what [s]he has heard in
    the community":
    When the defendant elects to initiate a character inquiry, [an]
    anomalous rule comes into play. Not only is he permitted to call witnesses
    to testify from hearsay, but indeed such a witness is not allowed to base his
    testimony on anything but hearsay. What commonly is called "character
    evidence" is only such when "character" is employed as a synonym for
    1
    In addition to the 29 states that Justice Titone identified in 1989 as permitting
    opinion testimony as an alternative to reputation evidence, see Hathcockv. Wood, 
    815 So. 2d 502
    , 508 (Ala. 2001); Baumann v. State, 
    891 A.2d 146
    , 148 (Del. 2005) (citing
    DEL. R. Evro. 608); Douglas v. State, 
    796 S.E.2d 893
    , 896 (Ga. Ct. App. 2017) (applying
    GA. CODE ANN.§ 24-6-608 (effective January 1, 2013)); People v. Burgund, 
    66 N.E.3d 553
    , 594-95 (Ill. App. Ct. 2016) (applying ILL. R. Evro. 608 (effective Jan. 1, 2011));
    Jacobs v. State, 
    22 N.E.3d 1286
    , 1289 (Ind. 2015) (applying IND. R. Evro. 608); Perry v.
    Kentucky, 
    390 S.W.3d 122
    , 137 n.5 (Ky. 2012) (applying KY. R. Evro. 608); People v.
    Lukity, 
    596 N.W.2d 607
    , 610-11 (Mich. 1999) (applying MICH. R. EVID. 608); Cooper v.
    State, 
    628 So. 2d 1371
    , 1373-74 (Miss. 1993) (citing MISS. R. Evro. 608); State v.
    Baymon, 
    446 S.E.2d 1
    , 4-5 (N.C. 1994) (citing N.C. GEN. STAT.§ 8C-1, Rule 608(a)
    (1992)); State v. McKerley, 
    725 S.E.2d 139
    , 141-42 (S.C. Ct. App. 2012) (applying S.C.
    R. EVID. 608); State v. Dutton, 
    896 S.W.2d 114
    , 117-18 (Tenn. 1995) (applying TENN. R.
    Evro. 608).
    Only nine states, Washington included, still permit only reputation evidence. See,
    e.g., !bar v. State, 938 So. 2d 451,468 (Fla. 2006); Hasney v. Allstate Ins. Co., 
    781 So. 2d
    598, 603 (La. Ct. App. 2001); State v. Ka/ex, 
    789 A.2d 1286
    , 1290 (Me. 2002);
    Commonwealth v. Walker, 
    60 Mass. App. Ct. 255
    , 
    801 N.E.2d 267
    , 277-78, aff'd in part,
    rev'd in part, 442 Mass. 185,812 N.E.2d 262 (2004); State v. Bennish, 
    479 S.W.3d 678
    ,
    682-63 (Mo. Ct. App. 2015); People v. Taylor, 
    556 N.Y.S.2d 307
    , 308 (N.Y. App. Div.
    1990); Commonwealth v. Minich, 
    4 A.3d 1063
    , 1068-69 (Pa. Super. Ct. 2010); Smith v.
    Virginia, 
    187 S.E.2d 191
    , 192 (Va. 1972).
    3
    No. 34334-1-111
    State v. Chavez (dissent)
    "reputation." The witness may not testify about defendant's specific acts or
    courses of conduct or his possession of a particular disposition or of benign
    mental and moral traits; nor can he testify that his own acquaintance,
    observation, and knowledge of defendant leads to his own independent
    opinion that defendant possesses a good general or specific character,
    inconsistent with commission of acts charged. The witness is, however,
    allowed to summarize what he has heard in the community, although much
    of it may have been said by persons less qualified to judge than himself.
    The evidence which the law permits is not as to the personality of
    defendant but only as to the shadow his daily life has cast in his
    neighborhood.
    Michelson v. United States, 
    335 U.S. 469
    , 477, 
    69 S. Ct. 213
    , 
    93 L. Ed. 168
    (1948)
    ( footnote omitted). 2
    The Supreme Court described reputation as "compact[ing] into the brief phrase of
    a verdict the teaching of many incidents and the conduct of years," observing that the
    "task of compacting reputation hearsay into the 'brief phrase of a verdict' is one of the
    few instances in which conclusions are accepted from a witness on a subject in which he
    is not an expert. However, the witness must qualify to give an opinion by showing such
    acquaintance with the defendant, the community in which he has lived and the circles in
    which he has moved, as to speak with authority of the terms in which generally he is
    regarded." 
    Id. at 477-78.
    Because our evidence rules explicitly permit reputation testimony and prevent an
    accuser's untruthful character from being demonstrated in any other direct way, the
    2
    The modern rule-based exception for hearsay as to reputation is Rule 803(21), in
    both the federal and Washington State evidence rules.
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    No. 34334-1-111
    State v. Chavez (dissent)
    evidence should be admitted despite its inherent shortcomings once the foundation is laid.
    As Mr. Chavez points out, "the only issue at trial in this case was the relative credibility
    of the accuser and the accused" and for that reason, the trial court "should have erred on
    the side of admitting testimony that was critical." Reply Br. at 1-2, 5. As Justice Utter
    observed in State v. Hudlow, Sixth Amendment rights "are especially crucial in a rape
    case where, more often than in other cases, the testimony of the victim is critical in
    establishing guilt or innocence." 
    99 Wash. 2d 1
    , 24,659 P.2d 514 (1983) (Utter, J.,
    dissenting). Professor Imwinkelried has agreed, observing that "especially in sex offense
    cases, there is a crying need for credibility evidence; there are rarely eyewitnesses, and
    the trial frequently becomes a swearing contest." lMWINKELRIED, supra, § 5.04[1], at
    217.
    In the trial below, the defense planned to elicit evidence of the reputation of the
    accuser, A.S., from S.B., A.S.'s friend. Defense counsel even told jurors in opening
    statement that they would hear from S.B., who had known A.S. since the second grade
    and "knows [her] reputation ... for truth and honesty," before he was cut off by an
    objection and the trial court's ruling that mention of S.B. 's expected reputation testimony
    must be deferred to closing argument. Report of Proceedings (RP) at 128-32.
    S.B. was offered as a witness in the State's case in chief, since she was one of the
    first persons in whom A.S. confided that she thought she might have been raped by Mr.
    Chavez. It was in cross-examining S.B. that defense counsel laid the foundation for
    5
    No. 34334-1-III
    State v. Chavez (dissent)
    reputation evidence. He established that S.B. had a hard time believing A.S., related to
    her own experience with A.S. He established S.B. 's long acquaintance with A.S. and
    their many years in public school together. 3 He established the size of the school
    community and then asked whether S:B. was aware of A.S. 's reputation in the school
    community. While brief, the foundation was textbook. Compare RP at 298-99, with
    
    TEGLAND, supra
    , §608.4, at 432-33, andlMWINKELRIED, supra,§ 5.06[1], at 221.
    The State objected when defense counsel reached the point of asking S.B., "were
    you aware of her reputation in the school community .... " RP at 299. Before S.B. could
    answer, the court excused the jury at the State's request. Outside the presence of the jury,
    the court had defense counsel offer the remainder of his intended questioning on the
    subject, which he did:
    Q So, Miss [B.], you have been acquainted with in the school setting-in
    the school community you have been acquainted with probably at least
    hundreds of people that have been acquainted with you and [A.S.];
    haven't you?
    A Yes.
    Q Okay. And are you aware of her reputation in that school community
    for truthfulness or untruthfulness?
    A Yes.
    Q And what is that reputation?
    A She wasn't doing very good.
    3
    S.B. clearly would have been competent to offer an opinion on A.S. 's
    truthfulness in a court that followed the majority approach; the required foundation is that
    the opinion witness knows the relevant witness well enough to have formed an opinion.
    E.g., United States v. Turning Bear, 
    357 F.3d 730
    , 734 (8th Cir. 2004). But Mr. Chavez
    did not try to offer S.B. 's opinion below or argue that the exclusion of opinion testimony    I
    under Washington evidence rules violated his constitutional right to present a defense.
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    Q Wasn't doing very good with the truth?
    A Yeah.
    Q Okay. When is the most recent that you have heard about the reputation
    for truthfulness?
    A I don't know for sure.
    Q Well, for example, have you heard about that truthfulness since you
    went to school in Weston with her?
    A Yeah.
    Q Okay. And that was just last year; wasn't it?
    A Yes.
    RP at 300-01.
    The court then invited the State to conduct voir dire. Two matters explored by the
    State in voir dire were unrelated to the foundation for reputation testimony and therefore
    outside the proper scope ofvoir dire. 4 The State got S.B. to agree that A.S.'s reputation
    could have been based on false rumors. Of course it could-any reputation can be, as
    Wigmore observed. The inherent problems with reputation evidence are a proper and
    typical subject matter of cross-examination when reputation testimony is offered, but
    whether a reputation is based on solid information or whether the witness even knows the
    source of the reputation goes at most to the weight of the evidence, not its admissibility.
    Cf State v. Land, 121 Wn.2d 494,499, 
    851 P.2d 678
    (1993) (while acknowledging
    4
    The right to conduct voir dire is limited to questioning in support of the objection
    and its scope is confined to the existence of the disputed foundational facts. It exceeds
    that scope if it includes questioning on foundational facts not raised by the objection, the
    witness's credibility, or the witness's testimony on the historical merits. See Edward J.
    Imwinkelried, Determining Preliminary Facts under Federal Rule 104, 45 AM. JUR.
    TRIALS 1, § 29, at 61; § 34, at 68 (1992).
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    State v. Chavez (dissent)
    "some validity" to possible bias in the community relied on, "the remedy is simple: the
    motivation and bias of a reputation witness is always subject to cross examination").
    The State also asked for specifics S.B. might be able to provide on the source of
    her knowledge of A.S.'s reputation: how many people she'd heard it from, who, and
    specifically what was said-again, an issue relevant to weight but not a part of the
    foundation. In a legal community, for instance, one may be able to honestly and fairly
    say she or he is familiar with a lawyer's or a judge's reputation for diligence and
    preparation ( or the opposite) without being able to recall from whom, or from how many
    people, she or he heard that view expressed. Many people with a bona fide awareness of
    another individual's reputatiId. S.B. agreed 
    that she had previously told
    the prosecutor that some of the things A.S. lied about were whether she had permission to
    be at S.B.'s house, turning in assignments when she hadn't, whether she had to stay after
    school to finish homework, and hanging out with people she wasn't supposed to. S.B.
    testified that at Weston Middle School, the school the girls attended when the alleged
    rape occurred, there were approximately 200 students in the class. Asked how she knew
    what A.S.'s reputation was, S.B. answered:
    A Because I have heard it from people and she told me.
    Q [A.SJ told you herself that people think she is a liar?
    A Uh-huh.
    RP at 306 (emphasis added). A.S.'s admission to S.B. that she had a reputation as a liar
    makes the trial court's exclusion of the evidence particularly puzzling.
    At most, the State established that S.B. and A.S. had had different classmates at
    the different schools they had attended in Milton-Freewater beginning in the second
    II
    6   The alleged rape took place during the night or early morning of April 17-18,
    2015.
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    grade. In further questioning, defense counsel established that prior to the alleged rape,
    the girls had been attending Weston Middle School together since fall 2014. While
    focusing on A.S.'s reputation "at Weston" before the alleged rape narrowed the time
    frame to eight or nine months, it also placed S.B.'s knowledge of A.S.'s pre-April 2015
    reputation for truthfulness as close in time as possible to the trial, which is a required
    element of the foundation for reputation testimony. RP at 306-11; see State v. Lord, 
    117 Wash. 2d 829
    ,873,
    822 P.2d 177
    (1991).
    The key foundational question for the trial court was whether a school community
    is a valid community for purposes of offering reputation testimony. Commentators
    writing on the reputation evidence issue have offered school as a paradigm of a neutral
    and general community in which a witness may acquire an admissible reputation for
    truthfulness. IMWINKELRIED, supra,§ 5.06[2], at 221 ("For instance, a church
    congregation or the student body of a school can constitute a community."); Fred Warren
    Bennett, Is the Witness Believable? A New Look at Truth and Veracity Character
    Evidence and Bad Acts Relevant to Truthfulness in a Criminal Case, 9 ST. THOMAS L.
    REV. 569, 582 & n.108 (1997) ("The witness may testify to the defendant's reputation
    among colleagues and associates at work, church, school or other organizational
    settings." (citing CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE§
    10
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    No. 34334-1-111
    State v. Chavez (dissent)
    4.19, at 249 (1995))7). And see 
    Land, 121 Wash. 2d at 496
    (in child molestation case, both
    sides called reputation witnesses to impeach the reputation for veracity of the other side's
    witnesses; the defendant's reputation witness testified to the accuser's reputation within
    his school community). On one of the factors relevant to whether a community is neutral
    and general-the frequency of contact between members of a community-judicial
    notice can be taken of the fact that Washington schools conduct a school year of not less
    than 180 school days and not less than 1,000 instructional hours. RCW 28A.150.220;
    WAC 180-16-200.
    Although the State argues on appeal that S.B. and A.S. were a year apart in school,
    that did not prevent the two girls' longstanding association nor was any evidence
    developed that the age difference prevented them from being members of a common
    school community. At trial, A.S. identified two girls other than S.B., who were also
    younger than her and a grade behind her in school, as among her few good friends. See
    RP at 155,200,262, 264 (friendship with and ages ofM.B. and A.B.). It was undisputed
    that S.B. and A.S. had been friends for many years despite their one-year grade
    difference. A.S. testified that during most of her years in school, S.B. had been at the
    7
    Mueller & Kirkpatrick write in a later edition of their treatise that "as our society
    has become more mobile and impersonal, courts focus less on neighborhood
    acquaintance and allow character witnesses to testify to a person's reputation among
    colleagues or associates in the workplace, school, church, and other organizational
    settings." CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE: PRACTICE
    UNDER THE RULES,§ 4.19, at 306 & n.6 (2d ed. 1999) (citing United States V. Oliver, 
    492 F.2d 943
    , 948 (8th Cir. 1974) (college roommate may testify)).
    11
    No. 34334-1-III
    State v. Chavez (dissent)
    same school and they shared some of the same friends. There is no evidentiary basis in
    the record for attaching significance to the grade difference. The State can only speculate
    that it disqualifies S .B. from testifying to A. S.' s reputation.
    Without identifying what part of the foundation it found lacking, the trial court
    sustained the State's objection by reciting the elements of the foundation and stating,
    "[T]hat foundation has not been met." RP at 316. When defense counsel later pressed
    the court, asking "[W]hat aspect of the foundation is the Court indicating has not been
    met?" the trial court answered, "I have made my record on that, counsel. You can move
    on." RP at 322.
    Where the foundation for reputation evidence is established, admitting evidence in
    a rape case of an accuser's reputation as untruthful should rarely be viewed as
    substantially more unfairly prejudicial than probative under ER 403. 8 Reputation
    evidence is seldom compelling. Jurors know, and can be reminded through cross-
    examination or closing argument, that a reputation can be unreliable or even entirely
    unfounded. If evidence that an accuser's reputation as untruthful is offered by a witness
    aligned with the accused (which, if the evidence is false, it probably will be) jurors are
    likely to discount it, perhaps entirely. Since it opens the door to evidence of the accuser's
    truthful character, it can be neutralized if false by calling a reputation witness who will
    disagree. And it can backfire badly if the accused's reputation witness is not credible and
    8
    ER 403 was not a basis for the State's objection in the trial court but is argued on
    appeal as a basis for affirming.
    12
    No. 34334-1-111
    State v. Chavez (dissent)
    the State now has what would have been the otherwise-unavailable opportunity to bolster
    the credibility of the accuser.
    Here, however, the evidence had the potential of being persuasive. It was
    undisputed that A.S.'s and S.B.'s families were close and, as A.S. herself testified, she
    and S.B. "grew up together." RP at 174. S.B. was a close enough friend that A.S. went
    to S .B.' s home the day after the alleged rape, and after A. S.' s fight with her grandmother
    caused her to run away from home for the second time in two days. While family
    members and friends called as witnesses in the State's case provided evidence that
    supported the prosecution, the record does not suggest that any was likely to testify
    credibly that A.S. had a reputation as a truthful person. 9
    The exclusion of a criminal defendant's evidence challenging the credibility of a
    principal state witness is reviewed under the constitutional harmless error standard. See,
    e.g., United States v. Davis, 
    639 F.2d 239
    , 244-45 (5th Cir. 1981) (trial court exceeded its
    discretion in excluding evidence challenging the credibility of a witness, Wooten, where
    "[s]uch testimony would certainly be essential to a jury's decision whether to believe
    Wooten's testimony, without which the government would have no case"). The State had
    9
    The prosecutor was very protective of A.S., who evidence established had a
    troubled home life and difficulties at school. And the State argues on appeal that a
    reputation for untruthfulness arising from lying to teachers about assignments does not
    mean that A.S. would lie about being raped. That is a legitimate argument to make to a
    jury. It is not a basis for excluding the evidence.
    13
    No. 34334-1-III
    State v. Chavez ( dissent)
    other evidence that A.S. had not consented to sex with Mr. Chavez, the strongest likely
    being Mr. Chavez's initial denial that the two had engaged in sex at all. But one cannot
    say that the error in excluding evidence that A.S. had a reputation as untruthful was
    harmless beyond a reasonable doubt.
    Two additional things trouble me about exclusion of the evidence. First, the court
    might have accepted the State's misguided position that rape victims should be protected
    from having their reputation for truthfulness attacked even when a foundation for the
    evidence can be laid. The State argues on appeal, "[I]t is harmful to the child rape victim
    to brand her as having a character or reputation for deceit." Resp't's Br. at 17. The legal
    system can and properly does provide support to victims and can protect a person
    alleging rape from aspects of the legal process that might otherwise cause her or him
    unnecessary trauma or other difficulty. But it cannot protect a victim from the right of a
    defendant to present relevant evidence in support of a defense. It appears to me that the
    State views the rape shield statute as analogous to excluding evidence of an accuser's
    reputation as untruthful, and it is not. The rape shield statute ordinarily excludes
    evidence of an accuser's past sexual behavior only when it is irrelevant, which it usually
    is. "[W]ithout more," evidence of a woman's consent to sexual activity in the past "does
    not even meet the bare relevancy test of ER 401." 
    Hudlow, 99 Wash. 2d at 10
    . Even the
    ER 403 balancing required when evidence of the accuser's prior sexual behavior meets a
    minimal test of relevance focuses "not on potential prejudice and embarrassment to the
    14
    No. 34334-1-111
    State v. Chavez (dissent)
    complaining witness[], but instead should look to potential prejudice to the truthfinding
    process itself." 
    Id. at 13.
    A challenge to an accuser's credibility, by contrast, is
    unquestionably relevant.
    Also troubling is the fact that by excluding the evidence, the jury was left with a
    false impression of why S.B. didn't know whether to believe A.S. During S.B.'s direct
    examination by the State, she was asked what had happened when A.S. came over
    following her fight with her grandmother, and S.B. answered, in part, "I asked her what
    happened and she just told me that she got raped. And I didn't know to believe her or not
    because I didn't know if it was true or not." RP at 292 (emphasis added). The State
    followed up immediately with leading questions offering a possible, prosecution-friendly
    explanation for S.B. 's doubts:
    Q   Okay. A fair comment because you didn't see what happened; right?
    A   Right.
    Q   And you weren't with her and her friends the night before; were you?
    A   No.
    
    Id. Yet in
    the questioning that took place outside the presence of the jury, it was clear
    that the principal reason S.B. had doubts was because she thought-and here I use S.B.'s
    own words-that A.S. is "a liar." See RP at 311-12.
    Given the trial court's ruling, Mr. Chavez was unable to cross-examine S.B. about
    her disbelief in terms that would reveal the true reason for her doubts. Ultimately, with
    15
    No. 34334-1-III
    _State v. Chavez (dissent)
    the jury present, he could only ask, "Without going into the reasons why, you had some
    trouble believing [A.S.]; didn't you?" to which she answered, "Yes." RP at 326.
    For these reasons, I dissent.
    CJ~w0o ~.
    doway,J.
    16