Opinion
No. 59569-5-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-8-00158-3, George N. Bowden, J., entered December 18, 2006.
Affirmed by unpublished per curiam opinion.
G.W.B. appeals his juvenile adjudication for third degree rape and unlawful imprisonment, alleging evidentiary error and ineffective assistance. The trial court did not err by excluding proposed expert testimony about G.W.B.'s submissive and nonassertive nature because, under ER 405(a), character evidence may not be proved by expert opinion. The court did not err by excluding evidence of G.W.B.'s lack of prior sexual experience because it was not relevant. G.W.B.'s claim of ineffective assistance fails because he cannot show that his counsel's noncompliance with discovery rules prejudiced him or that his counsel's cross-examination of the victim was deficient. We affirm.
FACTS
G.W.B. and K.B. were fifteen-year-old high school classmates. K.B. brought marijuana to school one morning. G.W.B. drove her to his house to smoke it at lunchtime. G.W.B. parked his car inside his garage. He and K.B. moved into the back seat of another car to smoke the marijuana. The car was parked where it could only be entered on the driver's side.
According to K.B., after they smoked the marijuana she asked to go back to school, but G.W.B. demanded intercourse or oral sex. K.B. refused and tried to leave, but G.W.B. would not let her out of the car. While K.B. continued saying no, G.W.B. pulled her pants down, pinned her by her arms, and had vaginal intercourse with her. He withdrew from inside her and masturbated himself to ejaculation while digitally penetrating her. He then got out of the car and drove himself and K.B. back to school in the other car. During the ride he asked K.B. if what happened was rape. She said it was. G.W.B. apologized, said he did not know why he did it because it was unlike him, and asked her not to tell anyone.
Two of K.B.'s friends saw her shortly after she came back to school. She was crying and told them G.W.B. had raped her.
G.W.B.'s friend M.C. reported that G.W.B. was upset when he returned to school. G.W.B. said he had done something bad; he had sex with K.B. that might have been rape. She had said no, but he could not control himself.
According to G.W.B., he had sexual intercourse with K.B., but K.B. was the aggressor. K.B. pulled off her own pants and pulled his pants down against his will while he tried to resist by pressing his body down into the car seat. Without his consent, K.B. straddled him and lowered herself onto him. K.B. stopped intercourse, and G.W.B. ejaculated only after he stepped out of the car. G.W.B. denied apologizing to K.B. and denied making any admissions to M.C.
Forensic testing disclosed K.B.'s DNA on G.W.B.'s shorts and underneath his fingernails, and G.W.B.'s DNA on K.B.'s underwear. K.B.'s arms had visible bruising. According to a nurse practitioner who examined K.B., evidence of trauma to K.B.'s genitals was consistent with either consensual or forcible intercourse, but was more consistent with intercourse with the male on top.
The State charged G.W.B. with unlawful imprisonment, second degree rape and, alternatively, third degree rape.
On the morning of trial, the prosecutor notified the court that the defense had endorsed no witnesses and provided no discovery. The prosecutor brought several motions in limine seeking to exclude, among other things, any attempt to introduce evidence of the defendant's good character or chastity under ER 405 and any opinion evidence on the subject of guilt or innocence. The prosecutor referenced an alleged polygraph examination G.W.B. had undergone as a part of a psychological evaluation defense counsel had mentioned but not disclosed. Defense counsel acknowledged that he had not formally listed witnesses but said he wanted to call psychologist Allen Traywick, who he anticipated would testify that a sexual deviancy evaluation of G.W.B. indicated G.W.B. had no history of aggression, violence, or sexual deviancy. Counsel acknowledged that he had not provided the State a written report because he had not obtained one, but claimed he had provided the prosecutor with some oral notice of his intent to call Dr. Traywick.
After extended discussion, the trial court prohibited the defense from calling Traywick as a witness and putting on evidence of G.W.B.'s lack of prior sexual experience. The court also denied a defense motion to introduce evidence of K.B.'s prior sexual experience under RCW 9A.44.020(2), Washington's "rape shield statute."
The court ultimately found G.W.B. guilty of the lesser, alternative charge of third degree rape and unlawful imprisonment. Commenting that K.B. was a very credible witness and G.W.B. was not, the court reasoned that the level of force K.B. described was slightly less than required to prove second degree rape. G.W.B. received a standard range disposition.
G.W.B. appeals.
ANALYSIS
G.W.B. first contends that the trial court erred when it excluded Dr. Traywick's proposed testimony. He argues that the court's basis for excluding Dr. Traywick's testimony was unreasonable and the ruling violated his constitutional right to present witnesses to establish a defense. We disagree.
We reject the State's preliminary contention that we should not consider G.W.B.'s evidentiary claims because G.W.B. did not assign error to the trial court's findings of fact. While Goodman v. Bethel School Dist. 403, 84 Wn.2d 120, 124, 524 P.2d 918 (1974), cited by the State, does suggest that result, Goodman and similar cases are based upon an earlier version of the appellate rules. We are expressly authorized to construe the modern rules liberally to facilitate reaching decisions on the merits and routinely do so in circumstances such as these. RAP 1.2(a); see State v. Olson, 126 Wn.2d 315, 318-19, 893 P.2d 629 (1995). Because "the nature of the appeal is clear," "the relevant issues are argued in the body of the brief" and "the respondent is not prejudiced," we consider the merits of G.W.B.'s claim. Olson, 126 Wn.2d at 323. We also do not adopt the State's suggestion that G.W.B.'s evidentiary issues are affected by the fact that this was a bench trial rather than a jury trial. We agree with G.W.B. that the rule stated in State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970), that a court in a bench trial is presumed to consider evidence only for a proper purpose, does not apply here because G.W.B. claims that evidence was erroneously excluded, not erroneously admitted.
See State v. Maupin, 128 Wn.2d 918, 913 P.2d 808 (1996); U.S. Const. amend. VI; Wn. Const. art. I, § 22.
Evidentiary rulings are within the discretion of the trial court and will not be disturbed absent an abuse of discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999) cert. denied, 120 S. Ct. 285 (1999).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
G.W.B. contends that Dr. Traywick's testimony was admissible to support his consent defense because it would have corroborated his description of his behavior with K.B. As the trial court recognized, G.W.B.'s counsel was attempting to prove character by opinion evidence to support an inference that G.W.B. acted in conformity with that character during the charged incident. But Washington courts have long held that opinion evidence, even expert opinion evidence, is not admissible to prove character. Rather, consistent with preexisting common law, the rules of evidence allow a defendant to prove a pertinent trait of character only with reputation evidence.
See ER 404(a)(1) (Although character evidence is not generally admissible to prove behavior in conformity therewith, there is an exception for "[e]vidence of a pertinent trait of character offered by an accused[.]").
See, e.g., State v. Woods, 117 Wn. App. 278, 280, 70 P.3d 976 (2003), review denied, 151 Wn.2d 1012 (2004); State v. Kelly, 102 Wn.2d 188, 195, 685 P.2d 564 (1984).
See ER 405: State v. Callahan, 87 Wn. App. 925, 934, 943 P.2d 676 (1997) (Such testimony can only be provided by a witness knowledgeable about the defendant's reputation in the community for the character trait at issue.).
G.W.B. does not address this issue in his opening brief. Instead, he proceeds from the premise that the trial court's only reason for preventing Dr. Traywick from testifying was the discovery violation. He therefore argues the court erred by suppressing the testimony instead of granting a continuance because suppression is rarely an appropriate sanction for such a violation.
State v. Hutchinson, 135 Wn.2d 863, 880, 882, 959 P.2d 1061 (1998).
In addition to finding a discovery violation, however, the trial court also correctly explained how the testimony would not be admissible in any event for the reasons discussed above. The issue was clearly discussed to the degree that it is appropriate to affirm the trial court on this basis.
State v. Kelley, 64 Wn. App. 755, 764, 828 P.2d 1106 (1992) (This court may affirm an evidentiary ruling on any basis that is supported by the record and the law.).
In reply, G.W.B. addresses the rule against proof of character by expert opinion by asking this court to either distinguish or decline to follow State v. Woods, cited by the State. But Woods merely applies the rule set down by our State Supreme Court, which clearly governs this case and which we are bound to follow. Because G.W.B. fails to address the nature of this longstanding rule, G.W.B.'s related constitutional challenge also fails. Without attempting the necessary, meaningful balancing of competing interests, G.W.B. has not shown how his right to present a defense overcomes this evidentiary rule.
See Woods, 117 Wn. App. at 280 (citing State v. Kelly, 102 Wn.2d at 195 and ER 405(a) cmt.).
See State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) ("[N]aked castings into the constitutional sea are not sufficient to command judicial consideration and discussion." (citations omitted)). An example of a considered analysis of whether constitutional considerations should overcome a particular evidentiary rule is found in State v. Baird, 83 Wn. App. 477, 482-83, 922 P.2d 157 (1996) (considering whether constitutional considerations regarding the presentation of evidence would overcome provisions of Privacy Act).
G.W.B. next contends that the court erred in excluding evidence that he lacked sexual experience. He argues that, despite finding there were issues for which the evidence was relevant, the court inappropriately reasoned that the evidence should be excluded for the same reason that evidence of a victim's prior conduct is typically excluded. Because the rape shield act applies only to alleged victims and can justify suppression of relevant evidence only when it is unduly prejudicial, he argues the trial court's reasoning was obviously flawed.
G.W.B., however, juxtaposes excerpts of the court's oral ruling in a way that does not provide a fair reading of the record. We are satisfied that the court correctly excluded the evidence because it was not relevant. The trial court's actual ruling was "the absence of sexual history on the part of your client it seems to me is not probative of whether or not sexual activity occurred, whether there was consent on this occasion, and the issues at trial." Because there is no reason to infer from the mere fact of a person's lack of prior sexual experience that any sexual act they engage in will or will not be consensual, the ruling was neither an abuse of discretion nor constitutional error.
Record of Proceedings (Sept. 26, 2006) at 7.
See State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983) (no constitutional right to introduce irrelevant evidence).
Contrary to G.W.B.'s argument, the trial court's reference to the reasons for generally excluding an alleged victim's sexual history on the issue of consent was consistent with this ruling. As our Supreme Court has observed, "without more, such evidence does not even meet the bare relevancy test of ER 401." And the trial court's comment that "there may be some issues there that are relevant," viewed in context, was addressed to the separate question of whether G.W.B. had shown why K.B.'s prior sexual history should be admitted under an exception to the rape shield act's general rule of inadmissibility.
State v. Hudlow, 99 Wn.2d at 10. The trial court noted that such evidence was generally excluded "primarily because it's not relevant." Record of Proceedings (Sept. 26, 2006) at 7.
Record of Proceedings (Sept. 26, 2006) at 7.
See RCW 9A.44.020(3) (providing exceptions to the general rule of inadmissibility); Record of Proceedings (Sept. 26, 2006) at 8-18. G.W.B. has not assigned error to the trial court's eventual ruling denying his motion to introduce such evidence pertaining to K.B.
G.W.B. next alleges his trial counsel provided ineffective assistance. To prevail on a claim of ineffective assistance, a defendant has the burden of showing both that his attorney's performance fell below an objective standard of reasonableness and that the defendant was prejudiced by the lapse. G.W.B. does not meet this burden on either of his two claims of ineffective assistance.
State v. Wilson, 141 Wn. App. 597, 610, 171 P.3d 501 (2007).
G.W.B. first contends that his counsel provided ineffective assistance by failing to comply with the discovery rules requiring him to disclose Dr. Traywick as a proposed expert witness. As discussed above, the evidence was properly excluded without regard to the discovery problem. Accordingly, G.W.B. cannot make the necessary showing of prejudice even assuming his counsel was deficient in failing to comply with the discovery rules. For the same reason, we need not address the State's claim that the nondisclosure was tactical.
See In re Pers. Restraint of Riley, 122 Wn.2d 772, 780, 863 P.2d 554 (1993) (if defendant alleging ineffective assistance of counsel fails to demonstrate prejudice, appellate court need not determine whether counsel's performance was deficient).
G.W.B. next contends that his counsel unreasonably failed to use K.B.'s diary to cross-examine her about inconsistencies between herself and C.M. regarding their contacts after the incident. The record shows that counsel vigorously cross-examined both K.B. and C.M., including questioning them with reference to information from the diary, but it does not contain the diary itself. In light of the strong presumption of competence of counsel and in the absence of an actual showing of the diary's contents, we cannot fault counsel's performance in choosing how to cross-examine K.B. Accordingly, G.W.B. has failed to meet his burden of showing deficient performance from the record.
Prior to trial, defense counsel was provided a redacted copy of K.B.'s diary.
State v. Riofta, 134 Wn. App. 669, 142 P.3d 193 (2006).
See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (Claim of ineffective assistance that depends on matters outside the existing record must be raised in a collateral proceeding in which new evidence can be introduced.).
Affirmed.