Nos. 58775-7-I; 58792-7-I.The Court of Appeals of Washington, Division One.
March 10, 2008.
Appeals from a judgment of the Superior Court for King County, No. 05-1-07821-5, Jay V. White, J., entered September 1, 2006.
Affirmed by unpublished opinion per Lau, J., concurred in by Grosse and Dwyer, JJ.
LAU, J.
William and Steven Davis, [1] brothers and codefendants in this case, appeal their convictions on multiple counts of first degree rape of a child. They argue that the trial court abused its discretion and violated their constitutional right of Page 2 confrontation by relying on Washington’s rape shield statute to preclude them from cross-examining the complainant regarding her sexual relationship with her boyfriend. William further argues that the trial court erred in admitting three hearsay statements regarding the complainant’s disclosures to her boyfriend. We affirm because (1) the excluded evidence was not relevant to the complainant’s motive to lie, and even if relevant, the evidence is more prejudicial than probative and (2) although the trial court erred in admitting two of the three hearsay statements, there is no reasonable probability that the error affected the verdict.
FACTS
Steven and William Davis were arrested and charged with three and four counts (respectively) of first degree rape of a child involving their younger sister K.D. Their cases were joined for trial. The jury was unable to reach a verdict, and the court declared a mistrial. A second trial was held, and the jury found both William and Steven guilty as charged. The State’s witnesses testified to the following facts.
K.D. testified that she was repeatedly raped by her older brother Steven starting when she was seven years old. She said that she reported the abuse to her parents immediately after the first incident, but they did not believe her. She testified that Steven stopped raping her when she was about ten years old, but that her brother William started raping her at around the same time. She said that the last incident occurred in 2003.
K.D.’s younger brother Alan testified that although he had never witnessed the abuse, “I just knew something funny was going on.” Report of Proceedings (RP) (July 19, 2006) at 126. Alan said that Steven and K.D. were in the bathroom together, and when Alan knocked on the door, Steven told him to go away. He said that they would be in there for at least a half an hour, and that it happened “a lot.” Id. at 127. He thought, “[I]t was something of a sexual nature.” Id. at 142. Alan testified that after one of those incidents, “[S]he’d look like she was shooken up or something.” Id. at 128-29. Alan also testified that he observed similar incidents involving William and K.D.
K.D. testified that William once poked her with a big knife to force her into the bathroom so he could rape her. The knife had a wooden handle with a dog head. Detective Marylisa Priebe-Olson of the King County Sheriff’s Office, who had searched the Davis home and conducted initial interviews, testified that she asked William about the dog-head knife. William said that he had traded it three years ago to someone, but he could not remember who. Detective Priebe-Olson testified that Alan then produced the knife and told her that he had gotten it from William. Alan also testified that he had gotten the knife from William.
K.D., Alan, and her boyfriend Micah Laducer all testified that K.D. disclosed the rapes to them in May 2005. By then, K.D. was 14 years old. The first disclosure occurred when Laducer sent her an instant message asking why she was so sad. He testified that K.D. had been “crying real bad for like three days straight, and she was like all depressed for a long time. And I kept trying to ask her why.” Id. at 171. K.D. replied that she was sad because Steven had raped her. Alan also read the instant message because he was with Laducer when it arrived. Laducer encouraged K.D. to escape the abuse by running away from home. K.D. ran away with Alan, who testified that she did it because she had had enough of Steven’s and William’s abuse. Initially K.D. and Alan went to Laducer’s house, but later they slept at a laundromat or in a car. Laducer testified that the next time he saw K.D., she repeated what she had disclosed in the instant message. He said, “She was like weeping and sobbing. She just looked like she was in a lot of pain.” Id. at 174.
A couple of days after running away, K.D. testified that she called Seattle Mental Health and Child Protective Services (CPS) to report that Steven had raped her. Detective Priebe-Olson testified that she received a copy of the CPS report. K.D. testified that she had delayed reporting the rapes because her parents had not believed her and because Steven and William threatened to hurt her if she told anyone.
K.D. testified that about a week after running away, Alan and Laducer went to K.D.’s parents’ house to fight Steven. They broke a window and yelled, “Come out pedophile.” RP (July 20, 2006) at 51. William came out, but Steven did not. After that confrontation, Alan, Laducer, and K.D. testified that they went to a park, where K.D. talked about the years of abuse and disclosed that William had also raped her. Steven and one of his friends found K.D. at the park and tried to get her to come home, but she told Steven she would not go with him because of the rapes. A fight broke out at the park, and K.D. ran to Laducer’s house. Laducer’s father called the police, who took K.D. to the home of her brother Louis and his wife Kip. She was still living there at the time of trial.
William and Steven did not testify, and they presented no defense witnesses. Their primary defense strategy was to undermine the credibility of the State’s witnesses. In particular, William and Steven sought to introduce evidence that K.D. and Laducer had a sexual relationship to support their theory that K.D. lied about the rapes to be with Laducer. William and Steven also sought to introduce this evidence to rebut the inference that K.D.’s sexually precocious knowledge, as revealed in her testimony at trial, must have arisen from their abuse.
Over William and Steven’s objections, the trial court granted the State’s motion to exclude evidence of K.D.’s sexual history under RCW 9A.44.020, Washington’s “rape shield” statute. The trial court further refused to allow William and Steven to advance this evidence to rebut an inference of sexually precocious knowledge, finding that there was no inference to rebut. The court also allowed Laducer to testify about three disclosures K.D. made to him. William and Steven were found guilty as charged, and this appeal followed.
Rape Shield Statute
William argues that the trial court erred in excluding evidence of K.D.’s alleged sexual relationship with Laducer because it was relevant to show that K.D. had a motive to lie about the rape allegations — to justify running away from home to be with her boyfriend. According to William, the rape shield statute cannot be applied in a manner that categorically bars a defendant from cross-examining a witness regarding her sexual experience where, as here, the evidence is relevant to her motive to lie.
Criminal defendants are guaranteed the right to confront and cross-examine adverse witnesses. U.S. Const. amend. VI; Wash. Const. art. I, § 22. The cross-examiner has traditionally been allowed to mount a general attack on the credibility of the witness or, more specifically, to reveal biases, prejudices, or ulterior motives of the witness. Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, L. Ed. 2d 347 (1974).
But a criminal defendant has no constitutional right to the admission of irrelevant evidence. State v. Hudlow. 99 Wn.2d 1, 15, 659 P.2d 514 (1983). Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. ER 401. 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. ER 403. The trial court has wide discretion in balancing probative value versus prejudice. State v. Stein, 140 Wn. App. 43, 66, 165 P.3d 16 (2007).
Washington’s rape shield statute provides, Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection(3) of this section. . . . RCW 9A.44.020(2).
“The purpose of the statute is to encourage rape victims to prosecute, and to eliminate prejudicial evidence of prior sexual conduct of a victim which often has little, if any, relevance on the issues for which it is usually offered, namely, credibility or consent.” State v. Carver, 37 Wn. App. 122, 124, 678 P.2d 842 (1984). The Washington Supreme Court explained that the statute does not subjugate the accused’s right of confrontation because “the prohibition of sexual conduct evidence is directed at the use of such evidence for impeaching the victim’s general credibility for truth and veracity,” thereby counteracting the “antiquated and obviously illogical” notion that a woman’s promiscuity affected her character and ability to tell the truth. Hudlow, 99 Wn.2d at 8, 9. But the statute “was not intended to establish a blanket exclusion of evidence which is relevant to other issues which may arise in prosecutions for rape.” Carver, 37 Wn. App. at 124. Nor does the limitation on cross-examination found in the rape shield statute violate due process. State v. Kalamarski, 27 Wn. App. 787, 789, 620 P.2d 1017 (1980). We review a trial court’s decision to exclude evidence for an abuse of discretion. State v. Posey, 161 Wn.2d 638, 648, 167 P.3d 560 (2007).
In this case, William and Steven sought to introduce evidence of K.D.’s sexual relationship with Laducer — not to attack her character, but to show that she had a motive to lie. Because the trial court apparently believed that motive to lie was inseparably intertwined with the issue of credibility, it erroneously concluded that the rape shield statute categorically barred this evidence.
But we can affirm on any grounds supported by the record, even if that ground was not considered by the court. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998). First, this record does not establish that K.D.’s alleged sexual relationship with Laducer was relevant to William and Steven’s theory of motive to lie.[2] Rather, it was the fact of their relationship that was relevant. Second, we can affirm the trial court’s ruling under ER 403. The trial court stated, “[I]f we did do a 403 analysis, the Court is confident that — that any probative value is substantially outweighed by danger, but unfair prejudice to the — to the State.” RP (July 10, 2006) at 46. Because the additional detail of K.D.’s sexual conduct added little or nothing to William and Steven’s theory of motive to lie and because the trial court did not abuse its discretion in finding that the probative value would be outweighed by the danger of unfair prejudice, we hold that the evidence was properly excluded.
Moreover, William and Steven’s right to confront was not violated because the court allowed them to elicit relevant evidence of K.D.’s motive to lie. At trial, William and Steven elicited evidence that K.D. made false rape accusations to justify running away to be with her boyfriend. They also elicited evidence that K.D.’s standard of living improved when she went to live with Kip and that she ran away to get out of her parents’ chaotic and unkempt household.
Sexually Precocious Knowledge
William and Steven next argue that the trial court erred in preventing them from presenting evidence of K.D.’s alleged sexual relationship with Laducer to rebut the inference that they were the sole source of K.D.’s sexually precocious knowledge. Because the trial court acted within its discretion, we disagree. In determining the probative value of sexual history evidence offered to rebut this inference, the court considers (1) the age of the victim, (2) the explicitness of the testimony, (3) whether the evidence suggests other independent sources of the knowledge, (4) whether the evidence suggests bias or motive to lie, and (5) the remoteness in time of the prior sexual history evidence. State v. Kilgore, 107 Wn. App. 160, 180, 26 P.3d 308 (2001).
These factors clearly weigh against admission. K.D. was fifteen and a half years old when she testified. Even William admits in his opening brief that “[i]n this day and age, the knowledge that a 14-or 15-year-old girl is having a sexual relationship with her boyfriend would surprise few people.” Br. of Appellant at 15. And the State offered an alternative source for K.D.’s knowledge — sex education class in fifth grade. In addition, the trial court noted that there was no inference to rebut because the State expressly declined to raise it.
Hearsay
William argues that the trial court abused its discretion in allowing Laducer to testify regarding three disclosures of abuse that K.D. made to him: (1) the instant message in which she said Steven raped her; (2) a subsequent conversation in which she again said Steven raped her; and (3) a conversation about two weeks later in which she said William also raped her.[3] The trial court admitted all three disclosures as prior consistent statements to counteract the anticipated attack on K.D.’s credibility.
A prior out-of-court statement is “hearsay” if offered to prove the truth of the matter asserted. ER 801(c). The general rule is that hearsay is inadmissible. ER 802. A witness’s prior consistent statement may be admissible as nonhearsay if “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” ER 801(d)(1(ii). This is because prior consistent statements tend to show that bias or prejudice did not motivate the present testimony. State v. Harper, 35 Wn. App. 855, 857, 670 P.2d 296 (1983). If offered to rebut impeachment, “the statement must have been made prior to the events which gave rise to the inference of fabrication.” State v. Stark, 48 Wn. App. 245, 249, 738 P.2d 684 (1987). The State has the burden of showing that the statement was made before the alleged motive to lie arose. State v. Osborn, 59 Wn. App. 1, 5, 795 P.2d 1174 (1990). A trial court’s decision to admit evidence under this rule is discretionary, and we will reverse it only for a manifest abuse of discretion. Id.
The State argues that K.D.’s initial disclosure to Laducer via instant message is admissible under ER 801(d)(1) because it preceded the event that gave rise to the inference of fabrication: Laducer’s suggestion that she run away from home. The State correctly concedes that K.D.’s subsequent in-person disclosures to Laducer were not admissible because she made them after running away.
William does not dispute that K.D.’s instant message preceded Laducer’s suggestion that she run away, but contends that all three disclosures were inadmissible because K.D.’s motive to lie arose prior to and independent of Laducer’s suggestion. He points to evidence that K.D. had other reasons to run away from home that existed before she made any disclosures to Laducer, such as improving her standard of living and escaping Steven’s and William’s physical abuse. But William did not advance any of these arguments at trial. His theory was that K.D. falsely accused the defendants of rape after or around the same general time that she ran away. He did argue that the statements were inadmissible hearsay, but the pivotal issue of timing was never presented to the trial court.
We will not review an argument or theory that was not presented at the trial court level. Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001). “The purpose of this rule is to afford the trial court an opportunity to correct errors, thereby avoiding unnecessary appeals and retrials.” Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 527, 20 P.3d 447
(2001). Accordingly, we will not consider William’s new argument on appeal. We conclude that the State met its burden of showing that the first statement was made after the inference of fabrication arose and that the trial court did not abuse its discretion in allowing it under ER 801(d)(1).
Although K.D.’s two subsequent disclosures to Laducer were inadmissible as prior consistent statements because they came after his suggestion that she run away, we hold that the error was harmless. An evidentiary error is not prejudicial and does not require a new trial “`unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.'” State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)).
Here, Laducer’s testimony was not significant to William’s conviction in light of the overall evidence against him. All three of Laducer’s challenged statements were cumulative of the testimony of K.D. and Alan, each of whom testified about all three disclosures.[4] K.D., Laducer, and Detective Priebe-Olson testified that K.D. disclosed Steven’s abuse to CPS. Alan testified about his suspicions that something sexually inappropriate was happening to K.D. Alan and K.D. testified about the knife. Alan and Laducer testified that K.D. was depressed, crying, and upset. And only one of the three challenged statements implicated William’s role in the rapes. Thus, there is no reasonable probability that the outcome of William’s trial would have changed if Laducer’s statements were excluded.
Cumulative Error
William argues that if neither of the asserted errors alone requires reversal, he was denied a fair trial by cumulative error. This doctrine does not apply where, as here, minor evidentiary errors had no effect on the outcome of the trial State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
Affirmed.
We concur:
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