No. 57671-2-I.The Court of Appeals of Washington, Division One.
June 11, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-09834-8, Theresa B. Doyle, J., entered January 23, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
Isidro Ramos-Gonzales was convicted of third degree rape. He contends the trial court abused its discretion when it allowed the victim to testify that she had experienced domestic violence in her marriage. Because the evidence was neither irrelevant nor unfairly prejudicial, we affirm.
BACKGROUND
Maria Monterrosa moved to Washington from Mexico in May 2005. She lived in a Bellevue apartment complex with her daughter, son-in-law, and grandchild. At night, she cared for her grandchild while the parents were at work. Because the cellular phone reception in the apartment was poor, Monterrosa often stood outside her doorway to talk on the phone. Isidro Ramos-Gonzales (Ramos) lived across the hall from Monterrosa with his longtime girlfriend, child, and his girlfriend’s child from a previous relationship. Monterrosa and Ramos briefly conversed a few times.
On July 26, 2005, Monterrosa walked with her daughter out to the parking lot as she was leaving for work. Monterrosa then walked over to the complex’s dumpster to deposit a bag of trash. There she saw Ramos. From this point, Monterrosa’s and Ramos’s descriptions of events diverge.
According to Monterrosa, Ramos asked her if they could talk because he was experiencing a lot of problems and felt lonely. Monterrosa was nervous, but reluctantly agreed. They walked to Ramos’s girlfriend’s truck in the parking lot. After Monterrosa sat down on the edge of the back seat, Ramos told her that he would not let her out of the car and ordered her to get further inside. He pushed Monterrosa and climbed into the truck. He got on top of her and started to pull down her pants. Despite Monterrosa’s repeated protests, Ramos pulled her pants down to her knees and had intercourse with her. Monterrosa said “No” many times, but did not scream or hit Ramos. Afterwards, Ramos instructed Monterrosa not to tell anyone, or he would continue to grab her whenever he saw her.
Monterrosa went back to her apartment and bathed right away because she felt disgusting. She washed her clothes early the next morning because she could not bear to see the stain left by Ramos’s semen. For the next week, Monterrosa was visibly upset and depressed. She cried frequently and refused to go outside. After her daughter’s repeated inquiries, Monterrosa revealed what had happened. Her daughter called the police.
At trial, Monterrosa briefly testified that she experienced domestic violence during her 20-year marriage in Mexico:
Q: Would it be sufficient to say that there was substantial domestic violence in your marriage?
A: Yes.
Report of Proceedings (RP) (Dec. 13, 2005) at 96. She later testified that her history of abuse was at least part of the reason she did not scream or punch Ramos:
Q: And why didn’t you want to respond to his violence toward you?
A: I was afraid that he would hit or kill me.
Q: And is that because of something that he did, or just because of your history with your husband?
A: Because of what had happened to me. I don’t know. I was afraid. That’s all.
Id. at 123.
Ramos told a very different account of events. According to him, the intercourse was consensual. He initially told the police during questioning that Monterrosa was a prostitute. At trial, he claimed the policewoman interpreting his statements had misunderstood much of what he said.[1] He explained that in the weeks leading up to incident, Monterrosa often stared at him. He felt she was trying to seduce him. When they spoke in the hallway, she put out her foot flirtatiously and complained that her daughters did not appreciate her.
On July 25, 2005, Monterrosa approached him while he was at the dumpster and asked to talk in the truck. Once they were inside, she touched him, touched her breasts, and put his hand on her breasts. Ramos “could not resist,” and they had intercourse. RP (Dec. 15, 2005) at 19. He speculated that Monterrosa was accusing him of rape because she was ashamed of her actions, and angry that he had subsequently rebuffed her.
The jury found Ramos guilty of third degree rape.
ANALYSIS
Ramos contends Monterrosa’s testimony regarding her history of domestic violence was irrelevant and unfairly prejudicial. We review the admission of evidence for abuse of discretion. State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). A trial court abuses its discretion when its decision or order is manifestly unreasonable, exercised on untenable grounds, or exercised for untenable reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
Ramos first argues Monterrosa’s experience with domestic violence was irrelevant. Evidence is relevant if is 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.” ER 401. The rule requires only a minimal logical connection. State v. Bebb, 44 Wn. App. 803, 814, 723 P.2d 512 (1986).
To prove third degree rape, the State must show that the victim did not consent to the intercourse and clearly expressed lack of consent through words or conduct. RCW 9A.44.060. The only issue here was consent. We agree with the trial court that the evidence was relevant to explain why Monterrosa did not physically fight or cry out for help, why she believed Ramos’s threats, and why she was reluctant to report the incident.
Ramos also contends the testimony was unfairly prejudicial.[2] Under ER 403, evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Evidence that is likely to arouse an emotional response rather than a rational decision among the jurors causes unfair prejudice. State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987). The tendency for unfair prejudice mus substantially outweigh the probative value. Lockwood v. A C S, Inc., 44 Wn. App. 330, 350, 722 P.2d 826 (1986). Even if the balance is substantially in favor of prejudice, the trial court is not required to exclude the evidence, but merely has the discretion to do so. Id.
The danger of unfair prejudice from Monterrosa’s testimony does not substantially outweigh its probative value. Monterrosa did not detail the type or extent of abuse she experienced while in Mexico, but only alluded to it briefly. Her words were unlikely to arouse an unduly emotional response from the jury. Nor was Ramos linked in any way to the previous abuse. Monterrosa’s testimony was not unfairly prejudicial.
The court did not err by allowing the evidence, and we affirm.