State Of Washington v. E.b. ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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Appellant. ) FILED: April 29, 2013
Verellen, J. — E.B. appeals his juvenile adjudication of rape of a child in the
second degree, arguing the trial court deprived him of his right to present a defense by
excluding testimony intended to contradict the victim's account of a conversation that
took place immediately before the rape. We disagree and affirm.
FACTS
In May 2010, 15-year-old E.B. spent the night at the apartment of his friend K.'s
family. K. and her 12-year-old sister D. watched movies with E.B. after the rest of the
family went to bed. Around 2:30 a.m., K. went to bed, leaving E.B. and D. in the living
room watching a movie. E.B. left the next day.
Weeks later, D. told K. that E.B. had touched her inappropriately the night he
stayed at their apartment. When D. later told her parents, they called the police. A
Kirkland police officer interviewed D. on July 16, 2010. A Harborview nurse interviewed
No. 68595-3-1/2
and examined D. on July 26 and a Kirkland police detective interviewed her on
August 3. At each interview, D. made additional new allegations of sexual contact,
describing acts and reporting injuries she had denied or not disclosed in past reports.
In September 2011, the State charged E.B. with rape of a child in the second
degree. The State later amended the information to add an alternative charge of child
molestation in the second degree. During the fact finding hearing in March 2012, the
prosecutor asked D. about her interview with defense counsel shortly before the hearing
where she reported for the first time that E.B. talked to her about a movie entitled "No
Strings Attached." The following exchange occurred:
Q: What is "No Strings Attached"?
A: It's basically a movie where these two—the main plot is these two
friends or people are—do stuff, have sex, feel each other up, and
they don't tell anyone, and they're not in a relationship, it's just
friends with benefits kind of thing.
Q: And when did that come up?
A: Urn, that came up right before he asked me to straddle him.
COURT: I'm sorry, right before what?
A: Right before he asked me to sit on his lap.
Q: And what was the context?
A: It was just have you ever heard of the movie "No Strings Attached"?
I was like, yes, I have. And he's like, the situation's probably going
to turn out similar to that. I was like oh, and then he said sit on my
lap.™
Defense counsel later returned to the subject, asking D. if she had seen the
movie, and the following occurred:
1Report of Proceedings (RP) (Mar. 19, 2012) at 130.
No. 68595-3-1/3
A: I haven't seen it. I have heard about it though.
Q: Heard about it?
A: I've seen the most recent one.
Q: What does that mean?
A: There's been different versions of that movie.
Q: So back in 2010, you were familiar with this movie?
A: Yes.[21
After the State rested, defense counsel stated she intended to call her investigator
as an impeachment witness to testify about the different plots and release dates of two
movies entitled "No Strings Attached." Responding to the State's characterization of the
issue as a collateral matter, defense counsel argued:
Well, I think it goes to a critical issue. The witness, [D.], testified
that [E.B.] said back in May of 2010, "This is kind of like a date," and kind
of like this movie, and when I asked and I think the State asked about the
content of the movie, she talked about sex between friends, friends with
benefits, etc. There's a movie entitled "No Strings Attached" [in] which
that is the topic. It came out in 2011. From preliminary conversations with
[the investigator], the movie in 2009 has a different subject matter. And I
hesitate to say exactly, ... but I believe it's an entirely different content,
which wouldn't match up with what [E.B.] allegedly said in 2010, if the
previous version of the movie has a completely different subject matter
than the 2011 movie, which I think we all would agree has the subject
matter of what the witness testified to.[3]
The trial court did not allow the investigator's testimony, observing that it would be
impeachment on a collateral matter, was confusing, and was "not worth the time."4
2RP(Mar. 20, 2012) at 37-38.
3jd, at 130-31.
4 Id. at 132.
No. 68595-3-1/4
Following the adjudication hearing, the trial court entered findings of fact and
conclusions of law. The court found D.'s testimony credible, concluded that the State
had proved beyond a reasonable doubt the elements of rape of a child in the second
degree, and accordingly, determined E.B. to be guilty as charged.
E.B. appeals.
DISCUSSION
E.B. contends that the trial court denied his constitutional right to present a
defense by excluding evidence demonstrating that "the conversation about "No Strings
Attached," the supposed immediate prelude to rape, did not and could not have
occurred."5
In reviewing whether the trial court's exclusion of evidence denied a defendant
the right to present a defense, the ultimate question is whether the trial court erred in its
evidentiary ruling. We review a trial court's ruling on the admissibility of evidence for
abuse ofdiscretion.6 "When a trial court's exercise of its discretion is manifestly
unreasonable or based upon untenable grounds or reasons, an abuse of discretion
exists."7
"A defendant in a criminal case has a constitutional right to present a defense
'consisting of relevant evidence that is not otherwise inadmissible.'"8 However, "a
criminal defendant has no constitutional right to have irrelevant evidence admitted in his
5Appellant's Br. at 11.
6State v. Darden. 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
7State v. Powell. 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
8State v. Mee Hui Kim. 134 Wn. App. 27, 41, 139 P.3d 354 (2006) (quoting State
v. Rehak. 67 Wn. App. 157, 162, 834 P.2d 651 (1992)).
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or her defense."9 Evidence is relevant where it has "any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."10 "Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence."11
Moreover, "a witness cannot be impeached upon matters collateral to the
principle issues being tried."12 Our Supreme Court has "stated the test of collateralness
to be: Could the fact, as to which error is predicated, have been shown in evidence for
any purpose independently of the contradiction?"13
Here, E.B. fails to argue or establish that the investigator's testimony about the
plot lines and release dates of the movies could have been admitted for any other
purpose independent of the contradiction of D.'s testimony. Instead, he argues that "D.
herself made the film an integral element of her rape allegation."14 But the State was
not required to prove that E.B. made any particular statement in order to prove the rape
charge, and E.B. does not challenge the sufficiency of the evidence supporting the
charge. And contrary to E.B.'s claim, D.'s testimony regarding the movie was limited to
9State v. Hudlow, 99 Wn.2d 1,15, 659 P.2d 514 (1983).
10ER401.
11 ER403.
12 State v. Oswalt. 62 Wn.2d 118. 120,381 P.2d 617 (1963).
13 Id at 121.
14 Reply Br. of Appellant at 1.
No. 68595-3-1/6
a brief description of the plot during direct examination and D.'s admission during cross-
examination that there were different versions ofthe movie and she had seen only "the
most recent one."15
We also disagree with E.B.'s argument that "there is nothing confusing about the
fact the movie D. claims was used as a prelude to rape did not exist at the time."18 Our
review of the record reveals that defense counsel was not completely clear about the
substance of the proposed testimony or its relevance to any particular fact of
consequence to the charge beyond its potential to contradict D.'s testimony. Given the
lack of a clear and precise offer of proof, the impeachment value was limited. The trial
court did not abuse its discretion by determining that the investigator's testimony would
confuse the issues and be a waste of time. On this record, E.B. fails to demonstrate a
denial of his right to present a defense.
In a pro se statement of additional grounds for review, E.B. challenges the trial
court's findings that (1) D.'s testimony was credible; and (2) E.B.'s statements on
Facebook indicate "he was talking about something other than a kiss."17 He argues that
D.'s three official statements were contradictory, she admitted to a lie, and the nurse
testified that her report of symptoms was unusual. He also claims the trial court made
improper assumptions about the meaning of the Facebook messages and erroneously
admitted a Facebook conversation despite "proof that it never took place."18 But the
trier of fact resolves conflicting testimony, evaluates the credibility of witnesses, and
15RP(Mar. 20, 2012) at 37.
16 Reply Brief ofAppellant at 1.
17 Statement of Additional Grounds for Review at 1.
No. 68595-3-1/7
generally weighs the persuasiveness ofthe evidence.19 Regarding the Facebook
conversation, our review of the record reveals that the trial court considered testimony
and exhibits referring to several Facebook conversations and specifically found that one
conversation could not be admitted as a written exhibit because the State did not offer a
written record. Because E.B. has not informed this court of the specific conversation he
contends was improperly admitted, we cannot review this claim.20
Affirmed.
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WE CONCUR:
18
Statement of Additional Grounds for Review at 1.
19 State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
20 RAP 10.10(c) (an appellate court will not consider an argument made in a
statement of additional grounds for review if it does not inform the court of the nature
and occurrence of the alleged errors).