No. 60045-1-I.The Court of Appeals of Washington, Division One.
September 15, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-09316-6, Linda Lau, J., entered May 22, 2007.
PER CURIAM.
Andre Wilson appeals his conviction for first degree rape, arguing that the trial court deprived him of his constitutional right to present a defense when it excluded DNA evidence showing that the sperm of more than one male was found on the victim. The trial court did not err. The evidence was inadmissible under Washington’s rape shield statute and was irrelevant. We affirm.
FACTS
On the morning of November 7, 2003, L.F. was awakened by loud noises coming from her kitchen. She thought that her boyfriend, Clarence, hurt himself or was in distress. She arose to check on him. When she reached the doorway of her bedroom, a man whose face was covered pushed her back onto the bed. He asked L.F. if she “wanted to live through this.” She said she did. The man touched her breasts with his hands and his mouth and forced his penis into her vagina. When he was done, he stole money from L.F.’s purse and left. L.F. waited a few minutes and then called 911.
A police officer arrived while L.F. was still on the telephone with 911. She was shaking and crying and had difficulty talking about what happened. Officers determined that the rapist had removed an air conditioning unit from a kitchen window to enter L.F.’s apartment.
L.F. was examined at Harborview Medical Center’s Sexual Assault Center. DNA from her examination was tested, but her case fell dormant until November 2006 when DNA from L.F. was found to match that of Andre Wilson. The detective interviewed Wilson at Twin Rivers Correctional Facility, where he was serving time for raping A.A. in 2001 in the same housing complex where L.F. lived.
Wilson was charged with one count of rape in the first degree and one count of burglary in the first degree for the crimes against L.F. Before trial, he asked the court to exclude evidence of his rape of A.A. under ER 404(b), but the trial court concluded the two rapes were sufficiently similar that evidence of A.A.’s rape was admissible to prove a common scheme or plan.
Wilson filed a written motion asking the court to admit evidence that L.F. and her boyfriend were not sexually intimate, which Wilson claimed was relevant because his defense to the rape charge was consent. Because L.F. and Clarence had a long-term relationship, Wilson argued, the jury would assume that L.F. was getting her sexual needs met with her romantic partner, and, therefore, she was “much less likely to seek other people with whom to share [her] sexuality.”[1]
When the trial court heard argument on the motion, Wilson no longer asserted consent as his defense. Rather, his defense would be that L.F. invited him into her home for the purpose of sexual contact, but she changed her mind and refused to let him penetrate her. He claimed he masturbated to climax, which explained why his DNA was found on L.F. and her bedding.
Wilson argued that the evidence that L.F. and Clarence were not sexually intimate was admissible under the rape shield statute to
impeach L.F. because the DNA sample taken from L.F.’s vagina contained some of Clarence’s sperm, and an anomalous numerical value in the sample possibly indicated the presence of another male’s sperm. The anomalous number, however, did not definitively establish the presence of another male’s sperm; it might only have indicated a “stutter” in Wilson’s own DNA pattern. But Wilson contended that the DNA evidence undermined L.F.’s claim that she and Clarence had not had intercourse for years. The trial court excluded the evidence showing that L.F. had claimed that she and Clarence were not sexually intimate, unless the State opened the door to it on direct examination.
A jury was impaneled, but before any evidence was presented, Wilson agreed to waive his right to a jury trial and stipulated that the court could determine his guilt or innocence based upon the police report and other discovery. After reviewing the evidence, the court found Wilson guilty as charged. Wilson appeals.
ANALYSIS
Wilson argues that he was denied his right to present a defense when the court excluded DNA evidence under the rape shield statute (RCW 9A.44.020), which he claimed would impeach L.F.’s assertions of chastity. The trial court did not err.
Sections two and three of RCW 9A.44.020 prohibit the admission of evidence of a rape victim’s past sexual behavior if offered to attack the victim’s credibility:
(2) 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, 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
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, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is not admissible if offered to attack the credibility of the victim and is admissible on the issue of consent only pursuant to the following procedure.[[2] ]
Section four of RCW 9A.44.020 permits “cross-examination of the victim on the issue of past sexual behavior when the prosecution presents evidence in its case in chief tending to prove the nature of the victim’s past sexual behavior.” The admissibility of evidence of a rape victim’s past sexual conduct is within the sound discretion of the trial court. State v. Gregory, 158 Wn.2d 759, 784, 147 P.2d 1201 (2006).
Wilson supported his motion to admit evidence of L.F.’s past sexual behavior with an offer of proof speculating that L.F. would testify that, although she and Clarence were in a long-term relationship, they had not been sexually intimate for several years. But the State did not intend to elicit that testimony. In fact, the State asked the court to exclude that evidence, and the trial court correctly ruled that it would not be admitted unless the State opened the door to it.
After the court excluded the evidence, Wilson agreed to a bench trial on a stipulated record. He argues that the court’s erroneous ruling caused him to waive his right to a jury trial. But the ruling, which was intended to guide the parties if there was a jury trial, was not erroneous.
Wilson suggests that the court should have allowed him to present evidence to rebut L.F.’s assertion of chastity because the stipulated record included L.F.’s medical records, which indicated that she had not been sexually active for nine years, and a DNA report, which indicated that the swab from L.F.’s vagina contained sperm from more than one male person. Wilson contends that the State’s decision to not present evidence showing that L.F. claimed to be chaste “does not insulate the State from the false assertions of chasteness made by [L.F.] to medical personnel at the time of the alleged crime.”[3]
Because the State did not proffer the evidence, however, the medical records and DNA evidence did not fit within the exception of section four of the rape shield statute.[4]
Wilson contends that, regardless whether the State proffered the evidence that L.F. had claimed to be chaste, he was entitled to show that she made the claim and that it was false. He argues that the trial court, by excluding that evidence, denied him his constitutional right to present his defense. But a defendant does not have a constitutional right to present irrelevant evidence. Gregory, 158 Wn.2d at 786 n. 6. Once the trial court excluded L.F.’s statements that she was not sexually active, the DNA report, which indicated that sperm found on L.F. belonged to Wilson, Clarence, and possibly a third man, was irrelevant.
CONCLUSION
The trial court did not err when it excluded evidence indicating that L.F. had claimed to be chaste and evidence that more than one male’s sperm was found on her. The evidence was inadmissible under RCW 9A.44.020 and was irrelevant. The decision of the trial court is affirmed. FOR THE COURT: