State of Washington v. Cameron Scott Ownbey ( 2024 )

FILED
OCTOBER 22, 2024
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. 39470-1-III
Respondent, )
)
v. )
)
CAMERON SCOTT OWNBEY, ) UNPUBLISHED OPINION
)
Appellant. )
COONEY, J. — Cameron Ownbey was charged with one count of attempted rape in
the second degree and three counts of assault in the second degree stemming from an
incident in which N.F.1 alleged that, after she consumed alcohol and went to bed, she
1
To protect the privacy interests of N.F., we use her initials throughout this
opinion. Gen. Order of Division III, In re the Matter of Victims, (Wash. Ct. App.
September 22, 2023),https://www.courts.wa.gov/appellate_trial_courts/
?fa=atc.genorders_orddisp &ordnumber=2023_3&div=III.
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State v. Ownbey
awoke to Mr. Ownbey spooning her while holding a substance to her face. The charges
were tried to a jury.
Following trial and a postconviction motion by the defense, Mr. Ownbey was
sentenced on one count of assault in the second degree with sexual motivation.
Mr. Ownbey appeals, arguing: (1) the trial court misapplied the rape shield statute,
(2) the trial court erred in allowing Jessica Johnson to testify as an expert in order to
rehabilitate N.F., (3) the special verdicts returned by the jury are not supported by
sufficient evidence or are unconstitutionally vague, and (4) the DNA collection fee and
Victim Penalty Assessment (VPA) should be struck.
We affirm Mr. Ownbey’s conviction and sentence but remand for the limited
purpose of striking the VPA and DNA collection fee.
BACKGROUND
In 2017, N.F. met Mr. Ownbey through a Craigslist ad he posted in which he
stated he wanted “to impregnate somebody.” Rep. of Proc. (RP) at 482-83.2 After
meeting in person, N.F. decided against a romantic relationship with Mr. Ownbey, but the
two remained friends. As their friendship progressed, the two began a business
relationship. Mr. Ownbey was involved in “outdoor marketing,” and the two would go to
2
Unless otherwise noted, RP refers to the Verbatim Report of Proceedings
beginning on July 8, 2020.
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“expos and meet different clients.” RP at 484-85. In 2019, N.F. accompanied
Mr. Ownbey to Las Vegas, Nevada, to attend a gun show.
In 2020, Mr. Ownbey invited N.F. to stay with him in Leavenworth, Washington.
Mr. Ownbey sent N.F. a link to their accommodations. The link showed that there were
two bedrooms but upon her arrival, N.F. discovered that one of the bedrooms was
occupied, and she and Mr. Ownbey would be sharing a room and bed. The first night
N.F. and Mr. Ownbey shared a bed was uneventful.
The next morning, N.F. and Mr. Ownbey drank champagne and wine spritzers
while discussing business strategies. Although N.F. needed to return to her home in
Moscow, Idaho, she felt it would be unsafe to drive. She opted to go to sleep “because
[she] was intoxicated” and “to metabolize the alcohol.” RP at 496-97. N.F. went to bed
alone, attired in pajamas over her bra and underwear. At some point, N.F. awoke and
realized she was no longer wearing clothes, and Mr. Ownbey was naked, “spooning [her],
from behind,” and holding a substance in a small yellow vial to her face that smelled like
“paint thinner” or a “strong permanent marker.” RP at 498. N.F. panicked and tried to
get away, only to have Mr. Ownbey place her in “a choke hold.” RP at 507. Once N.F.
broke free, she locked herself in the bathroom and called the local sexual assault crisis
line. She then called the police. It was later discovered that the substance Mr. Ownbey
was holding to N.F.’s face was amyl nitrate, also referred to as “rush.” RP at 610, 616.
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Mr. Ownbey was charged with attempted rape in the second degree and three
counts of assault in the second degree. Count 3, assault in the second degree, alleged
Mr. Ownbey “did administer to and/or cause to be taken by N.A.F. a poison and a
destructive or noxious substance.” Clerk’s Papers (CP) at 179.
At trial, N.F. testified consistent with the above. N.F. further testified she and
Mr. Ownbey never discussed having a sexual relationship, using an aphrodisiac, or
starting a dating relationship. N.F. was subject to cross-examination regarding these
statements:
Q. Do you recall telling Detective Grant that, quote, “I’m sure that
I’ve sent him pictures, at one point in time, when I was trying to pursue
something.” Do you remember saying anything like that?
A. Yes. I am sure.
Q. And do you remember telling Detective Grant that you haven’t
always been appropriate in those conversations?
A. Inappropriate is different than having sexual conversations. Are
you talking about sexting or are you talking about sexual bantering?
Q. Both.
A. We’ve never sexted.
Q. Just sexual banter?
A. Yes.
Q. Okay. Do you remember Detective Grant asking you, “Have you
ever talked about any kind of bondage-type stuff, with Mr. Ownbey?” And
your response was, “I don’t know. I’m really an open person. So, yeah.”
Do you remember anything like that?
A. Yes. I remember answering his questions.
RP at 525-26.
N.F. was also cross-examined regarding her memory of the incident:
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Q. And you indicated that you were wearing⎯you said a bra and
panties, and pajama bottoms and a sweatshirt?
A. Pajama bottoms and tank top. And, when I went out, I would put
a⎯a sweatshirt on, because it was cold.
Q. So you don’t remember removing your clothes, before you went
to bed, or during⎯you were sleeping in bed?
A. I did not remove my clothes.
Q. Are you sure about that?
A. I am sure.
Q. Because you were⎯strike that. Isn’t it true, ma’am, that you
don’t even remember going to bed?
A. I know it was hard at the⎯at one moment, to remember. But I do
remember getting into bed by myself, at that point.
Q. Do you remember telling Detective Grant⎯and I’ll refer you to
Page 6 of 23, of his interview, where you indicate, “I don’t remember. I
don’t remember lying down. I don’t remember if he lied down with me, or
if he came to bed later. Like, that part, I just don’t have a lot of recollection
of that.”
Do you remember saying that to Mr.⎯Detective Grant?
A. I do remember saying that to him, after I was in the hospital, and
dealing with the affects of what I was drugged with. And my memory did
come back.
Q. But you did say that.
A. I did say that, to⎯
RP at 550-51.
Defense counsel sought to question N.F. about an alleged sexual discussion she
and Mr. Ownbey had while in Las Vegas. The defense also wanted to question N.F.
about a “sexual encounter with another couple” in Las Vegas. RP at 532. The State
objected, citing RCW 9A.44.020. The State argued that defense counsel was attempting
to question N.F. about her past sexual behavior with others and that evidence of that
nature was inadmissible under the rape shield statute. The State argued that defense
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counsel could “ask her if she had previously had a discussion with him about⎯in
Las Vegas, about having a sexual relationship. But the details of it is protected.” RP at
532. Ultimately, the court allowed “the question of whether or not, during this Vegas
trip, [N.F.] discussed having a sexual relationship with Mr. Ownbey. And that’s as far as
I’m willing to go.” RP at 534.
Defense counsel then inquired of N.F.:
Q. . . . Ms. [F], directing your attention back to your stay at Las
Vegas, with Mr. Ownbey. Did you, at that time, down in Las Vegas, ever
have a discussion with Mr. Ownbey about having a sexual encounter, that
involved Mr. Ownbey?
A. I don’t understand.
Q. Okay.
....
Q. . . . Ms. [F], with my last question in mind, I’d like you to review
your response to prior counsel, contained on Page 22, Lines 10 through 18,
and Lines 21 through 25.
....
A. Okay.
Q. After reviewing that, I want to repeat my questions. Did you
have a discussion with Mr. Ownbey⎯talk with him⎯about having a sexual
encounter that involved Mr. Ownbey?
[THE STATE]: Objection. The framing is not the framing the Court
ordered.
THE COURT: Okay. I’m going to overrule the objection. And, if
you can, answer the question.
A. It seems there might have been a discussion that could have the
possibility of sexuality in⎯in nature, but that was not a sexual encounter
discussion, if⎯if that’s what you’re asking.
RP at 541-43.
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Brian Capron, a forensic scientist with the Washington State Patrol Toxicology
Laboratory, testified regarding the effects of amyl nitrate. Mr. Capron testified that amyl
nitrate is “a central nervous system depressant,” can “relax the anal sphincter” and
“prolong and intensify orgasm[s].” RP at 611, 616-17. He also testified it is “generally
used in sexual situations, to enhance sexual pleasure.” RP at 611. Mr. Capron stated,
“we know that that can be very dangerous. It can be fatal, as well” if too much amyl
nitrate was inhaled. RP at 613.
The State also sought the testimony of Jessica Johnson, the executive director of a
domestic and sexual violence crisis center in Chelan and Douglas counties known as
SAGE.3 It was anticipated Ms. Johnson would testify as an expert witness on “a victim’s
recollection of a traumatic event.” RP at 565. The State argued the defense had opened
the door for Ms. Johnson to testify by questioning N.F.’s memory of the incident.
Mr. Ownbey objected to Ms. Johnson testifying as an expert because he did not think it
was appropriate to “call an expert to rehabilitate [N.F.]” or that Ms. Johnson “would
qualify as a memory expert.” RP at 566. The court allowed Ms. Johnson to testify.
Ms. Johnson’s testimony was that victims of traumatic events often remember
sensory details of what happened and that it may take some time after the traumatic event
3
SAGE stands for Safety, Advocacy, Growth, Empower.
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for a victim to be able to make rational decisions again. She also testified that victims
often have a “fight, flight, or freeze response” to traumatic events. RP at 691.
During cross-examination, defense counsel asked Ms. Johnson, “Do you have any
experience in dealing with people who make false reports of domestic violence?” RP at
694. Ms. Johnson responded, “Yes. There are some, but it’s very few.” RP at 694. On
redirect, the State asked Ms. Johnson, absent an objection from the defense, if she
recalled “the average rate of false reporting.” RP at 694. Ms. Johnson replied, “Less
than five percent.” RP at 694.
Mr. Ownbey did not testify at trial but his general defense was that N.F. did not
accurately remember the events of the day, and that he never attempted to rape or assault
her. Instead, his defense was that the events were “consensual.” RP at 823.
Two interviews of Mr. Ownbey were admitted into evidence. Exs. 12, 13. During
the first interview, when law enforcement personnel arrived on scene in response to
N.F.’s call, Mr. Ownbey stated he and N.F. had been doing “rush” together and having
“intimate relations” when N.F. “started getting rough.” Ex. 12, 01:43-02:28, 06:07-
06:09. Mr. Ownbey stated N.F. “was fucking nuts.” Ex. 12, 02:15-02:17.
In a second interview with law enforcement, Mr. Ownbey stated, “One hundred
percent, everything that we were engaged in was consensual.” Ex. 13, 26:42-26:48.
Immediately after this statement, he said, “I did not have sex with her.” Ex. 13, 26:48-
26:50. When asked about the status of his relationship with N.F., Mr. Ownbey described
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it as a “friendship.” Ex. 13, 08:25-08:29. When describing the incident, he said that,
“we’re in bed, and we’re like, we’re being intimate together and then she’s⎯all of a
sudden she’s like ‘Stop!’ and I’m like ‘Okay!’” Ex. 13, 13:01-13:11. Mr. Ownbey said
the two were “doing rush together” and that he “had a couple bottles” of it. Ex. 13,
29:27-30:40.
At the conclusion of trial, Mr. Ownbey was acquitted of attempted rape in the
second degree (count 1). The jury found Mr. Ownbey guilty of two counts of assault in
the second degree (counts 2 and 3), and guilty of the lesser included offense of fourth
degree assault (count 4). Count 3 alleged Mr. Ownbey used a noxious substance to
commit the assault, that the crime was committed with sexual motivation, and that
Mr. Ownbey used “his [ ] position of trust, confidence, or fiduciary responsibility to
facilitate the commission of the current offense.” CP at 179.
On Mr. Ownbey’s motion, the trial court “vacate[d] the convictions in counts 2 +
4” (second degree assault and fourth degree assault, respectively). CP at 244. On count
3, the court sentenced Mr. Ownbey to nine months, the high end of the standard range,
plus 24 months for the sexual motivation enhancement, and an additional 27 months as
an exceptional sentence for the position of trust aggravator. The VPA and DNA
collection fee were also imposed.
Mr. Ownbey timely appeals.
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ANALYSIS
WHETHER THE TRIAL COURT MISAPPLIED THE RAPE SHIELD STATUTE
Mr. Ownbey argues that the court misapplied the rape shield statute and excluded
relevant, admissible, and highly probative evidence. He argues that his Sixth
Amendment rights to confrontation and to present a defense were violated as a result.
We disagree.
“The right of an accused in a criminal trial to due process is, in essence, the right
to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi,
410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). “The right to confront and
cross-examine adverse witnesses is [also] guaranteed by both the federal and state
constitutions.” State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002) (citing
Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)). We
review a Sixth Amendment violation claim de novo. State v. Iniguez, 167 Wn.2d 273,
280-81, 217 P.3d 768 (2009).
Evidence that a defendant seeks to introduce at trial, however, “must be of at least
minimal relevance.” Darden, 145 Wn.2d at 622. A defendant only has a right to present
relevant evidence. State v. Gregory, 158 Wn.2d 759, 786 n.6, 147 P.3d 1201 (2006),
overruled on other grounds by State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014).
“[I]f relevant, the burden is on the State to show the evidence is so prejudicial as to
disrupt the fairness of the fact-finding process at trial.” Darden, 145 Wn.2d at 622. Our
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Supreme Court has noted that, for evidence of high probative value, “no state interest can
be compelling enough to preclude its introduction consistent with the Sixth Amendment
and [Wa.] Const. art. 1, § 22.” State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 514 (1983).
RCW 9A.44.020, Washington’s rape shield statute, reads in relevant part:
(1) In order to convict a person of any crime defined in this chapter
it shall not be necessary that the testimony of the alleged victim be
corroborated.
(2) Evidence of the victim’s past sexual behavior including but not
limited to the victim’s marital history; divorce history; general reputation
for promiscuity, nonchastity, or sexual mores contrary to community
standards; or, unless it is related to the alleged offense, social media
account, including any text, image, video, or picture, which depict sexual
content, sexual history, nudity or partial nudity, intimate sexual activity,
communications about sexual activity, communications about sex, sexual
fantasies, and other information that appeals to a prurient interest 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.
(3) In any prosecution for the crime of rape, trafficking pursuant to
RCW 9A.40.100, or any of the offenses in chapter 9.68A RCW, or for an
attempt to commit, or an assault with an intent to commit any such crime
evidence of the victim’s past sexual behavior including but not limited to
the victim’s marital behavior; divorce history; general reputation for
promiscuity, nonchastity, or sexual mores contrary to community standards;
or, unless it is related to the alleged offense, social media account,
including any text, image, video, or picture, which depict sexual content,
sexual history, nudity or partial nudity, intimate sexual activity,
communications about sexual activity, communications about sex, sexual
fantasies, and other information that appeals to a prurient interest is not
admissible if offered to attack the credibility of the victim and is admissible
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on the issue of consent, except where prohibited in the underlying criminal
offense. . . .
The rape shield statute was created to end the archaic common law rule that “a
woman’s promiscuity somehow had an effect on her character and ability to relate the
truth.” Hudlow, 99 Wn.2d at 8. In Hudlow, our Supreme Court made a distinction
between evidence of the general promiscuity of a rape victim and evidence that, if
excluded, would deprive a defendant of the ability to testify to their version of events. Id.
at 16-18.
Further, in State v. Jones, the Supreme Court reiterated that the rape shield statute
“states unequivocally that evidence of the victim’s ‘past sexual behavior’ is ‘inadmissible
to prove the victim’s consent.’” 168 Wn.2d 713, 722, 230 P.3d 576 (2010) (emphasis
added) (citing RCW 9A.44.020). “The statute was not designed to prevent defendants
from testifying as to their version of events but was instead created to erase the
misogynistic and antiquated notion that a woman’s past sexual behavior somehow
affected her credibility.” Id. at 723 (citing Hudlow, 99 Wn.2d at 8-9).
Mr. Ownbey, by his own admission, sought to introduce evidence of his and
N.F.’s “interactions before and leading up to the night in question.” Br. of Appellant at
31 (emphasis added). Specifically, Mr. Ownbey sought to introduce evidence that he and
N.F. almost had sex during a trip to Las Vegas and that the two later agreed to “act on
their BDSM fantasies.” Br. of Appellant at 31. Because this is undisputedly evidence of
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N.F.’s past “communications about sexual activity, communications about sex, sexual
fantasies, and other information that appeals to a prurient interest,” it falls squarely into
the purview of the rape shield statute. RCW 9A.44.020.
In order for this evidence to be admissible, or conversely, for Mr. Ownbey to show
that the court’s decision to exclude the evidence violated his constitutional rights,
Mr. Ownbey must first demonstrate that it is relevant.
In Jones, our Supreme Court noted that the rape shield statute does not state that a
victim’s “past sexual behavior is never relevant . . . Evidence of past sexual conduct, such
as meeting men in bars before consenting to sex or other distinctive sexual patterns, could
be relevant if it demonstrates ‘enough similarity between the past consensual sexual
activity and defendant’s claim of consent.’” 168 Wn.2d at 723 (quoting State v. Geer, 13
Wn. App. 71, 73-74, 533 P.2d 389 (1975)). In Hudlow, the Supreme Court ruled that if
such evidence is only minimally relevant, “the evidence may be excluded if the State’s
interest in applying the rape shield law is compelling in nature.” 99 Wn.2d at 16.
Before the trial court, the State argued that Mr. Ownbey “could ask [N.F.] if she
had previously had a discussion with him about⎯in Las Vegas, about having a sexual
relationship. But the details of it is protected.” RP at 534. The court ultimately
“allow[ed] the question of whether or not, during this Vegas trip, [N.F.] discussed having
a sexual relationship with Mr. Ownbey.” RP at 532. Mr. Ownbey was also permitted to
impeach N.F.’s credibility by asking her about sexual conversations she had with
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Mr. Ownbey in the past. However, Mr. Ownbey was not permitted to ask whether N.F.
had a sexual encounter with others while in Las Vegas.
RCW 9A.44.020(2) states that 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.” This provision of
the statute is inapplicable here because N.F. and Mr. Ownbey undisputedly did not have a
sexual relationship prior to their time in Leavenworth.
Here, Mr. Ownbey seems to argue that his proffered evidence is relevant because
it tended to undermine N.F.’s credibility. N.F. testified that there was never any
discussion of starting a sexual relationship between she and Mr. Ownbey. However, the
evidence Mr. Ownbey sought to introduce, specifically evidence of an alleged sexual
encounter with “another couple” in Las Vegas, does not contradict N.F.’s testimony
about her discussions with Mr. Ownbey and is therefore inadmissible. RP at 532.
Whether N.F. had a sexual encounter with another couple while she and Mr. Ownbey
were in Las Vegas is the type of evidence RCW 9A.22.020 mandates is inadmissible as it
is evidence of “the victim’s past sexual behavior,” which is “inadmissible on the issue of
credibility.” RCW 9A.44.020(2). Further, Mr. Ownbey has not demonstrated that this
evidence was relevant for any reason, including to impeach N.F.’s credibility. Whether
N.F. had a sexual relationship with another couple while on a trip to Las Vegas is
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immaterial to her credibility. Because the evidence was not relevant, Mr. Ownbey’s
constitutional rights were not violated when the court declined to admit it.
As for Mr. Ownbey’s argument that he and N.F. “agreed they would act on their
BDSM fantasies,” this claimed evidence is not in the record, and Mr. Ownbey does not
provide a citation for it. Br. of Appellant at 31. Because we cannot ascertain from the
record what Mr. Ownbey is referring to, we cannot review any alleged error in not
admitting it. See State v. Mannhalt, 33 Wn. App. 696, 704, 658 P.2d 15 (1983) (“The
portion of the record certified to this court does not contain any of the motions or
proceedings relevant to these matters. Therefore, we cannot consider the alleged
errors.”).
The court did not misapply the rape shield statute, and Mr. Ownbey’s
constitutional rights were not violated.
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING
MS. JOHNSON’S TESTIMONY
Mr. Ownbey argues the trial court erred in allowing Ms. Johnson to testify as an
expert in order to rehabilitate N.F. Mr. Ownbey contends that the trial court’s ruling
violated ER 702 because Ms. Johnson was not an expert on brain science, psychology, or
psychiatry. The State responds that Ms. Johnson was qualified under ER 702 to testify
and that Mr. Ownbey opened the door, allowing Ms. Johnson to testify as to false
reporting statistics. We agree with the State.
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ER 702 provides:
TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
“In the case of scientific testimony, the expert (1) must qualify as an expert,
(2) the expert’s opinion must be based upon a theory generally accepted in the relevant
scientific community, and (3) the testimony must be helpful to the trier of fact.” State v.
Cheatam, 150 Wn.2d 626, 645, 81 P.3d 830 (2003). Whether or not to admit expert
testimony under ER 702 is within the trial court’s discretion. Id.Mr. Ownbey’s first argument is that Ms. Johnson is not an expert under ER 702.
Before the trial court, Mr. Ownbey objected to Ms. Johnson testifying as an expert
because he did not think it was appropriate to “call an expert to rehabilitate [N.F.]” and
because he did not think she “would qualify as a memory expert.” RP at 566. The State
argued Ms. Johnson should be allowed to testify about N.F.’s “recollection of a traumatic
event, from an initial interview, versus two-plus years later” and because Mr. Ownbey
had “opened the door” by discussing and calling into question N.F.’s memory of what
happened. RP at 565-66.
Ms. Johnson was allowed to testify as an expert with regard to issues of sexual
assault and sexual violence. Ms. Johnson testified that she worked for SAGE, the
domestic violence and sexual violence crisis center for Douglas and Chelan counties.
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She testified she has a Bachelor’s Degree from Central Washington University and over
600 hours of training in domestic violence, sexual assault, crime victims, child abuse, and
neglect. She also stated she had testified as an expert witness on issues related to sexual
assault and sexual violence in the past and that she was trained on the impact of a
traumatic event on an individual, including their memory.
Mr. Ownbey’s first argument, that Ms. Johnson was not qualified as an expert on
brain science, psychology, or psychiatry so should not have been allowed to testify, fails.
Ms. Johnson had specialized knowledge of how sexual assault victims react, based on her
experience and training, when they are assaulted and of how a traumatic event, such as a
sexual assault, affects their memory. Ms. Johnson did not need to be an expert on brain
science, psychology, or psychiatry to provide this testimony. The court did not err when
it allowed her testify under ER 702.
Mr. Ownbey next argues that even if Ms. Johnson was qualified under ER 702, the
defense did not open the door for the prosecution to rehabilitate N.F.’s testimony with
statistics on false reporting. Specifically, Mr. Ownbey takes issue with Ms. Johnson’s
testimony, absent an objection from the defense, that less than five percent of victims
make false reports.
“A party may assign evidentiary error on appeal only on a specific ground made at
trial.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (citing State v. Guloy,
104 Wn.2d 412, 422, 705 P.2d 1182 (1985)). We will not consider issues raised for the
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first time on appeal. RAP 2.5. Mr. Ownbey did not object to Ms. Johnson’s testimony
on the rate of false reporting. Any alleged error is therefore unpreserved.
Notwithstanding the procedural infirmity, it was Mr. Ownbey who opened the
door to the State’s question. On cross-examination, defense counsel asked whether
Ms. Johnson had experience with people who make false reports, which led to the
question by the State on redirect that Mr. Ownbey now complains of.
To the extent Mr. Ownbey argues he did not open the door to allow Ms. Johnson
to testify, we disagree. “[C]orroborating testimony intended to rehabilitate a witness is
not admissible unless the witness’s credibility has been attacked by the opposing party.”
State v. Petrich, 101 Wn.2d 566, 574, 683 P.2d 173 (1984) abrogated on other grounds
by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). In some cases, the credibility
of a witness may inevitably be a central issue. Id. at 575. “An attack on the credibility of
these witnesses, however slight, may justify corroborating evidence.” Id.
Here, N.F.’s credibility was a central issue. Mr. Ownbey’s defense was that the
incident was consensual while N.F. alleged she did not consent. Further, defense counsel
challenged N.F.’s memory of the events leading up the incident:
Q. So you don’t remember removing your clothes, before you went
to bed, or during⎯you were sleeping in bed?
A. I did not remove my clothes.
Q. Are you sure about that?
A. I am sure.
Q. Because you were⎯strike that. Isn’t it true, ma’am, that you
don’t even remember going to bed?
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A. I know it was hard at the⎯at one moment, to remember. But I do
remember getting into bed by myself, at that point.
Q. Do you remember telling Detective Grant⎯and I’ll refer you to
Page 6 of 23, of his interview, where you indicate, “I don’t remember. I
don’t remember lying down. I don’t remember if he lied down with me, or
if he came to bed later. Like, that part, I just don’t have a lot of recollection
of that.”
Do you remember saying that to Mr.⎯Detective Grant?
A. I do remember saying that to him, after I was in the hospital, and
dealing with the affects of what I was drugged with. And my memory did
come back.
RP at 550-51 (emphasis added).
Because N.F.’s credibility and recollection of the events was an essential issue,
and because Mr. Ownbey attacked her memory of the events, the State was entitled to
call Ms. Johnson to testify about how a traumatic event might affect a victim’s memory
in order to rehabilitate N.F.
Ms. Johnson was qualified as an expert under ER 702, and the court did not abuse
its discretion in allowing her to testify.
WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE SEXUAL MOTIVATION
AGGRAVATOR AND POSITION OF TRUST ENHANCEMENT
Mr. Ownbey argues there was insufficient evidence to support the position of trust
aggravator. Therefore, he contends there was insufficient evidence to support an
exceptional sentence. Similarly, Mr. Ownbey asserts there was insufficient evidence to
support the sexual motivation enhancement. We disagree with both arguments.
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“A jury’s finding by special interrogatory is reviewed under the sufficiency of the
evidence standard.” State v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d 143 (2010). The
sufficiency of the evidence is a question of law this court reviews de novo. State v. Rich,
184 Wn.2d 897, 903, 365 P.3d 746 (2016). In a sufficiency of the evidence challenge,
“we review the evidence in the light most favorable to the State” to determine whether
any rational trier of fact could have found the aggravating factor beyond a reasonable
doubt. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). “A claim of
insufficiency admits the truth of the State’s evidence and all inferences that can
reasonably be drawn from it.” State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748(2003). “[I]nferences based on circumstantial evidence must be reasonable and cannot be
based on speculation.” State v. Vasquez, 178 Wn.2d 1, 16, 309 P.3d 318 (2013).
RCW 9.94A.535(3)(n) states:
Aggravating Circumstances - Considered by a Jury - Imposed by the Court
Except for circumstances listed in subsection (2) of this section, the
following circumstances are an exclusive list of factors that can support a
sentence above the standard range. Such facts should be determined by
procedures specified in RCW 9.94A.537.
....
(n) The defendant used his or her position of trust, confidence, or fiduciary
responsibility to facilitate the commission of the current offense.
When analyzing the position of trust aggravator, “[t]he inquiry is whether the defendant
was in a position of trust, and further whether this position of trust was used to facilitate
the commission of the offense. Whether the defendant is in a position of trust depends on
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No. 39470-1-III
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the length of the relationship with the victim.” State v. Bedker, 74 Wn. App. 87, 95, 871
P.2d 673 (1994). “A relationship extending over a longer period of time, or one within
the same household, would indicate a more significant trust relationship, such that the
offender’s abuse of that relationship would be a more substantial reason for imposing an
exceptional sentence.” State v. Grewe, 117 Wn.2d 211, 219, 813 P.2d 1238 (1991)
(citing State v. Fisher, 108 Wn.2d 419, 427, 739 P.2d 683 (1987) (emphasis added)).
Mr. Ownbey argues that he was not in a position of trust with N.F. because they
were both adults. But this is not dispositive. See State v. Davis, 47 Wn. App. 91, 734
P.2d 500 (1987) (affirming the exceptional sentence where the defendant, an adult who
was painting the victim’s house, used his position of trust to gain entry immediately
before assaulting the adult victim).
Here, N.F. testified she had known Mr. Ownbey for years, since 2017.
Additionally, N.F. testified that she and Mr. Ownbey had taken trips together, gone
hiking together, worked together, and communicated often. Given N.F.’s testimony
about the duration and nature of her relationship with Mr. Ownbey, a rational trier of fact
could have found that Mr. Ownbey occupied a position of trust with N.F.
The jury also could have found that Mr. Ownbey used that position of trust to
facilitate the crime. N.F. testified that Mr. Ownbey had sent her a link to the residence
that showed it had two bedrooms when he invited her to Leavenworth. However, upon
arrival, N.F. discovered that one of the two bedrooms was occupied, and she and
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No. 39470-1-III
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Mr. Ownbey would actually be sharing a room and a bed. She testified that she felt
“safe” and “wasn’t concerned” about sharing a bed with Mr. Ownbey when the two went
to bed on the first night. RP at 494.
A rational trier of fact could have found that Mr. Ownbey used his position of trust
to make N.F. feel comfortable enough to share a bed with him and that he subsequently
used that position of trust to assault N.F. the next day. Consequently, there was sufficient
evidence to support the position of trust aggravator.
Mr. Ownbey argues because there was insufficient evidence to support the
position of trust aggravator, there was insufficient evidence to support the exceptional
sentence. Because the aggravator is supported by sufficient evidence, Mr. Ownbey’s
exceptional sentence argument fails.
Mr. Ownbey next claims there was insufficient evidence to support the sexual
motivation enhancement.
RCW 9.94A.835 states:
Special allegation—Sexual motivation—Procedures.
(1) The prosecuting attorney shall file a special allegation of sexual
motivation in every criminal case, felony, gross misdemeanor, or
misdemeanor, other than sex offenses as defined in RCW 9.94A.030 when
sufficient admissible evidence exists, which, when considered with the
most plausible, reasonably foreseeable defense that could be raised under
the evidence, would justify a finding of sexual motivation by a reasonable
and objective fact finder.
(2) In a criminal case wherein there has been a special allegation the
state shall prove beyond a reasonable doubt that the accused committed the
crime with a sexual motivation. The court shall make a finding of fact of
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No. 39470-1-III
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whether or not a sexual motivation was present at the time of the
commission of the crime, or if a jury trial is had, the jury shall, if it finds
the defendant guilty, also find a special verdict as to whether or not the
defendant committed the crime with a sexual motivation. This finding shall
not be applied to sex offenses as defined in RCW 9.94A.030.
(3) The prosecuting attorney shall not withdraw the special
allegation of sexual motivation without approval of the court through an
order of dismissal of the special allegation. The court shall not dismiss this
special allegation unless it finds that such an order is necessary to correct
an error in the initial charging decision or unless there are evidentiary
problems which make proving the special allegation doubtful.
RCW 9.94A.030(48) defines “sexual motivation” as “one of the purposes for which the
defendant committed the crime was for the purpose of his or her sexual gratification.”
“The exclusion of sex offenses [in RCW 9.94A.835(2)] makes sense because the
purpose of creating the sexual motivation aggravator was to enhance the punishment of
an offender who was sexually motivated in committing a crime that did not necessarily
include sexual motivation.” State v. Murray, 190 Wn.2d 727, 734, 416 P.3d 1225 (2018).
The State must prove, beyond a reasonable doubt, the defendant committed the crime for
the purpose of sexual gratification. State v. Vars, 157 Wn. App. 482, 494, 237 P.3d 378(2010). The State “must do so with evidence of identifiable conduct by the defendant
while committing the offense.” Id.Here, Mr. Ownbey was convicted in count 3 of assault in the second degree.
Count 3 alleged Mr. Ownbey used a “poison and a destructive noxious substance” to
commit the assault. CP at 7. The noxious substance being amyl nitrate, also known as
“rush.” RP at 610, 616. Mr. Capron testified that amyl nitrate can “relax the anal
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No. 39470-1-III
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sphincter” and “prolong and intensify orgasm[s].” RP at 616-17. He also testified it is
“generally used in sexual situations.” RP at 611. N.F. testified that she awoke unclothed
with Mr. Ownbey, also naked, spooning her while holding amyl nitrate under her nose.
N.F. testified that when she tried to get away, Mr. Ownbey put “his arm, you know,
elbow, in⎯my neck, and I couldn’t⎯I couldn’t⎯it was hard for me to breathe.” RP at
508.
Given Mr. Capron and N.F.’s testimony, a reasonable trier of fact could have
found that Mr. Ownbey committed the assaults with sexual motivation. A jury could
have found that Mr. Ownbey, while laying naked with N.F., sought to use the amyl
nitrate to make it easier to sexually assault N.F., and that the crime was therefore
committed with sexual motivation.
Sufficient evidence supports the sexual motivation enhancement.
WHETHER THE POSITION OF TRUST AGGRAVATOR AND SEXUAL MOTIVATION
ENHANCEMENT ARE UNCONSTITUTIONALLY VAGUE
Mr. Ownbey next argues that even if supported by substantial evidence, the
position of trust aggravator and sexual motivation enhancement are unconstitutionally
vague. We disagree.
Statutes are presumed to be constitutional, and the party challenging the validity of
a statute has the heavy burden of proving it is unconstitutional beyond a reasonable
doubt. State v. Peters, 17 Wn. App. 2d 522, 538, 486 P.3d 925 (2021). A statute is
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No. 39470-1-III
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unconstitutionally vague, and therefore void for vagueness if it “fails to define the offense
with sufficient precision that a person of ordinary intelligence can understand it, or if it
does not provide standards sufficiently specific to prevent arbitrary enforcement.” State
v. Eckblad, 152 Wn.2d 515, 518, 98 P.3d 1184 (2004). The test for a vagueness
challenge is “whether a person of reasonable understanding is required to guess at the
meaning of the statute.” State v. Duncalf, 177 Wn.2d 289, 297, 300 P.3d 352 (2013).
In State v. Baldwin, our Supreme Court held that sentencing guideline statutes are
exempt from a vagueness challenge. 150 Wn.2d 448, 458-59, 78 P.3d 1005 (2003).
Mr. Ownbey argues this court should depart from Baldwin in light of the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d
403 (2004). In Blakely, the Supreme Court held that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Blakely,
542 U.S. at 301 (quoting Apprendi v. New Jersey, 530 U.S. 466, 525, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000)).
However, our Supreme Court has not yet overruled Baldwin. See, e.g., Murray,
190 Wn.2d at 732 n.1 (“[W]e do not reach the broader question of whether aggravators
listed in RCW 9.94A.535 are subject to void for vagueness challenges generally.”).
Mr. Ownbey argues that, in light of Blakely, enhancements and aggravators can be
subject to a vagueness challenge. We need not analyze whether Blakely overruled
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No. 39470-1-III
State v. Ownbey
Baldwin because even if Mr. Ownbey could bring a vagueness challenge to the
enhancement and aggravator, it would fail.
Mr. Ownbey argues the “position of trust aggravator is unconstitutionally vague”
because it does not define what a position of trust is or explain how someone could use
that position to facilitate an offense. Br. of Appellant at 82. Mr. Ownbey’s argument is
unpersuasive.
As discussed above, there is a two-part test and various factors to be considered
when analyzing whether a defendant was in a position of trust with a victim. Bedker, 74
Wn. App. at 95; Grewe, 117 Wn.2d at 219. If there is a position of trust, the next inquiry
is whether it was used to facilitate the crime.
Mr. Ownbey seems to posit that, because “exactly how much of a relationship
must exist [to constitute a position of trust] remains undefined,” the aggravator is vague.
Br. of Appellant at 83. We disagree. Though it is a fact specific inquiry, a defendant is
properly on notice that if they use a position of trust to facilitate a crime against a victim,
they are subject to a higher penalty. Mr. Ownbey points to no authority that stands for
the proposition that the statute must contain every single possible relationship that may
give rise to a position of trust in order for it to be constitutional. Mr. Ownbey cannot
meet his burden of demonstrating that the aggravator is unconstitutionally vague.
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No. 39470-1-III
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Mr. Ownbey argues that the sexual motivation enhancement is vague because it
“does not provide fair notice of the line between permissible pre-coitus foreplay and
sexual motivation.” Br. of Appellant at 81.
Our Supreme Court has stated, “The sexual motivation statute is directed at the
action or conduct of committing a crime because of the defendant’s desire for sexual
gratification.” State v. Halstien, 122 Wn.2d 109, 123, 857 P.2d 270 (1993). The court
further noted that, “[t]he statute does not punish a defendant for having sexual thoughts,
but rather punishes the defendant for acting on those thoughts in a criminal manner.” Id.RCW 9.94A.835, the definition of “sexual motivation” contained in RCW
9.94A.030(48), and our Supreme Court have made sufficiently clear that crimes
committed for a defendant’s sexual gratification carry a higher penalty. Mr. Ownbey
fails to demonstrate that the enhancement is unconstitutionally vague.
Assuming Mr. Ownbey can bring a vagueness challenge to the aggravator and
enhancement, they are not unconstitutionally vague.
VICTIM PENALTY ASSESSMENT AND DNA COLLECTION FEE
Mr. Ownbey requests that we remand his case to have the trial court strike the
VPA and DNA fee. The State concedes.
Former RCW 7.68.035(1)(a) (2018) required a VPA be imposed on any individual
found guilty of a crime in superior court. In April 2023, the legislature passed Engrossed
Substitute H.B. 1169 (H.B. 1169), 68th Leg., Reg. Sess. (Wash. 2023), that amended
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No. 39470-1-III
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RCW 7.68.035 to prohibit the imposition of the VPA on indigent defendants. RCW
7.68.035 (as amended); LAWS OF 2023, ch. 449, § 1. H.B. 1169 took effect on July 1,
2023. Amendments to statutes that impose costs upon convictions apply prospectively to
cases pending on appeal. See State v. Ramirez, 191 Wn.2d 732, 748-49, 426 P.3d 714(2018).
Similarly, pursuant to former RCW 43.43.7541 (2018), the trial court was required
to impose a $100 DNA collection fee for every sentence imposed for the crimes specified
in RCW 43.43.754. Effective July 1, 2023, the legislature amended RCW 43.43.7541 by
eliminating language that made imposition of the DNA collection fee mandatory. See
LAWS OF 2023, ch. 449, § 4.
Because Mr. Ownbey’s case is pending on direct appeal, the amendments apply.
Further, Mr. Ownbey was found to be indigent.4
CONCLUSION
We affirm Mr. Ownbey’s conviction and sentence and remand for the limited
purpose of striking the VPA and DNA collection fee.
4
At sentencing, defense counsel stated Mr. Ownbey was indigent. The court
stated it “believe[d] he is indigent” but that it wanted a financial declaration. RP at 884. It
does not appear a financial declaration was filed. Mr. Ownbey’s judgment and sentence
states, “The defendant has the ability or likely future ability to pay the LFOs imposed
herein. RCW 9.94A.753.” CP at 247. It is unclear whether Mr. Ownbey was indigent at
sentencing, but he was found indigent for purposes of this appeal.
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No. 39470-1-III
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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 RCW
2.06.040.
Cooney, J.
WE CONCUR:
Fearing, J.
Lawrence-Berrey, C.J.
29