No. 48862-7-IThe Court of Appeals of Washington, Division One.
Filed: November 12, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 011015016, Hon. Phillip Hubbard, August 7, 2001, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Christopher Gibson, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
John B. Castleton Jr, 516 3rd Ave W554, Seattle, WA 98104.
PER CURIAM.
At William Rhodes’ trial on a charge of forcible rape, Rhodes admitted having sex with the complaining witness, but asserted the sexual encounter was consensual in nature. In this appeal, Rhodes contends that his constitutional right to present a defense was violated when the trial court excluded evidence that the teenage witness had also engaged in consensual sex with another person shortly before having sex with Rhodes. Given Rhodes’ offer of proof, we conclude the trial court properly refused to admit the evidence, which is marginally relevant and highly prejudicial, and affirm.
FACTS
One afternoon, S.L. was babysitting M., the 2-year-old daughter of her best friend J.B., when she asked Rhodes, whom she had known for several months, if he could drive her somewhere. Rhodes, who was also known as “Little Billy,” offered to make the trip in exchange for sex. Rhodes and S.L. eventually did have sex in an apartment rented by J.B. and J.B.’s boyfriend, R.N., who was the biological father of M. When Rhodes finally left the apartment, S.L. immediately called J.B. at work and told her that she had just been raped by Rhodes. S.L. was taken to a nearby hospital for medical examination and treatment. There were bruises and scratches on her body consistent with her version of forcible rape.
As part of the subsequent police investigation, DNA (deoxyribonucleic acid) evidence was discovered linking Rhodes to S.L. Rhodes was charged with second degree rape.
Prior to trial, the State moved in limine to prevent Rhodes from introducing evidence that S.L. had engaged in sexual intercourse with R.N. shortly before she had sex with Rhodes. Rhodes argued the evidence was necessary to support his defense of lack of forcible compulsion. According to Rhodes, S.L. had sex with two people and had identified the other person as R.N. Counsel for Rhodes made the following oral offer of proof:
[Defense Counsel]: Your Honor, with regard then to the consensual sex issue, the defense believes at this point that this is materially relevant to the defense in this case. . . . There was some bruises or bruising on [S.L.’s] right forearm and there was some scratches that she self reported and I believe she said on her back and also on her neck. . . . I think that the jury should have an opportunity to hear this evidence that this bruising could have come from the consensual intercourse between [R.N.] and [S.L.]. The fact that the State says that there is no plausible nexus is an argument that the State can make to the jury and for them to disregard the evidence. It’s for the trier of fact to determine whether or not that bruising came from Mr. Rhodes versus [R.N.].
Defense counsel continued:
The doctor will testify that he saw the bruising. The question is whether or not[,] how fresh the bruising was. The doctor will testify that the bruising was fresh and not old. Okay. The doctor, and this is Dr. Kaufman, the emergency medical doctor at Valley General who saw [S.L.], the doctor will testify that he cannot say with any degree of certainty whether or not this bruising could have come from the consensual sex or from the alleged rape by Mr. Rhodes.
The court granted the State’s motion, reasoning that, based on Rhodes’ offer of proof, the probative value of the evidence of prior consensual sex was so minimal as to be irrelevant and inadmissible under the rape shield statute.[1]
At Rhodes’ trial, S.L. described the circumstances surrounding the rape. S.L. testified that Rhodes offered to take her to meet her aunt if she agreed to have sex with him. When she refused, Rhodes grabbed her and a struggle ensued. S.L. stated that Rhodes grabbed her around the neck, pulled off some of her clothing, and then forced her to have sex. S.L. stated that at some point during the encounter M. appeared and that Rhodes ordered the child to get away. According to S.L., Rhodes, in the presence of both J.B. and R.N., later apologized for his behavior.
The emergency physician who examined S.L. testified that S.L. had bruising on her arms, thigh, and buttock area. The physician testified that the mark on S.L.’s buttock appeared to be consistent with a handprint.
A registered nurse testified that S.L. complained about having a pain in her neck during the examination. Photographs depicting S.L.’s injuries were also admitted into evidence.
J.B. and R.N. both testified that S.L. was visibly upset and crying when she told them what happened. Both testified they confronted Rhodes about the accusations. While Rhodes neither confirmed nor denied S.L.’s claims, he did apologize to both S.L. and J.B. as he was leaving the apartment.
Sergeant Burwell testified that he contacted Rhodes in the parking lot of the apartment complex and asked him if he knew “Little Billy.” The police officer testified that Rhodes gave a false name and date of birth, and also indicated that “Little Billy” was somewhere else in the apartment complex. Sergeant Burwell stated that Rhodes eventually told him, “You got me. My name is Little Billy Cecil Rhodes.”
Rhodes took the stand in his own defense. Rhodes admitted having oral and vaginal sex with S.L., but claimed the sexual relations were consensual. Rhodes stated that he did not hold her down or forcefully grab her during intercourse. Rhodes claimed that, in fact, S.L. was the one who initiated contact by grabbing his pants and performing oral sex. He further denied having ever apologized to S.L. for his behavior. The jury found Rhodes guilty as charged. This appeal followed.
DECISION
Rhodes contends the trial court improperly excluded evidence of the prior consensual intercourse between S.L. and R.N. Because exclusion of this “key” evidence unfairly prejudiced him, Rhodes argues, his conviction should be reversed and the case remanded for a new trial.
Evidentiary rulings made by the trial court are generally reviewed for manifest abuse of discretion.[2] “Admission of evidence of prior sexual history is within the sound discretion of the trial court.”[3] Judicial discretion is abused if exercised on untenable grounds or for untenable reasons.[4]
Rhodes contends the trial court should have allowed him to present testimony that S.L. had engaged in sex with R.N. shortly before having sex with Rhodes. The federal and state constitutions both guarantee a criminal defendant the right to present witnesses to establish a defense.[5] This right is not, however, unfettered.[6] “A criminal defendant has a constitutional right to present all admissible evidence in his defense.”[7] All relevant evidence is generally admissible.[8]
To be relevant, evidence must have a “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.”[9]
Moreover, the right to present admissible evidence “may be counterbalanced by the state’s interest in seeing that the evidence is not so prejudicial as to disrupt the fairness of the fact finding process.”[10]
Rhodes does not dispute that the prior incident of consensual sex between S.L. and R.N. would not have been admissible to attack S.L.’s credibility or bolster his consent defense, but argues the evidence was critical to corroborate his no forcible compulsion defense. “[B]ecause there is no evidence that Rhodes was ever physically aggressive towards [S.L.] (aside from the alleged rape itself),” Rhodes argues, “[R.N.] was more likely to have caused the bruises during sex with [S.L.] than was Rhodes.”[11] We disagree.
The one prior incident of alleged consensual intercourse[12] between S.L. and her best friend’s boyfriend, the father of her child, was at best minimally relevant, inflammatory, and distracting. The unsupported assertion that the injuries to S.L. may have been caused by this encounter is nothing more than speculation. Under the circumstances, the trial court was justifiably concerned that introduction of such evidence would tend to confuse the issues and mislead the jury. After all, the State did not have to prove that S.L. was even injured by Rhodes to convict him of second degree rape.[13] In addition, Rhodes had ample opportunity to present his defense theories of the case.[14] He was able to testify to his version of the incident. Given Rhodes’ offer of proof that a medical expert would have testified that the bruising just as likely occurred during consensual sex as forcible rape, there was no need for the defense to introduce evidence that S.L. had consensual sex with both Rhodes and R.N., particularly where there is absolutely nothing to indicate the injuries to S.L. occurred during sex with R.N. There was no constitutional violation. We find the trial court did not abuse its discretion by excluding the evidence.
Affirmed.