Opinion
No. 57129-0-I.
April 2, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 04-1-00736-7, Ira Uhrig, J., entered September 27, 2005.
Affirmed by unpublished opinion per Coleman, J., concurred in by Appelwick, C.J., and Baker, J.
In this case we must decide whether the prosecution presented evidence in its case in chief tending to prove the nature of the victim's past sexual behavior. We must also determine whether excluded evidence of the victim's past sexual behavior was relevant to the issue of consent. We affirm because: (1) the trial court acted within its discretion by ruling that the victim's testimony about her boyfriend did not tend to prove the nature of her past sexual behavior; (2) the excluded evidence was not relevant to whether or not the victim consented; and (3) Smart's counsel's performance did not fall below the objective standard of reasonableness.
FACTS
The State's witnesses testified to the following facts. On June 3, 2004, JE went out with her friend LS, and in the evening, they met up with Heidi Anderson and Justin Carlson, friends of LS's. At the time, JE was 17 years old and had been in a serious relationship with her boyfriend, Lee, off and on for about a year and a half. The group went to the Smart family residence, where Justin had been living in a tent for a few days. In addition to the Smart family's home and Justin's tent set up in the back, there were two trailers and some trucks on the property. JE had never been to the Smart family residence before and did not know any members of the Smart family.
The group sat next to the tent and all of them drank, except LS. After a while, Donald Smart came out of the house. He joined the group and after about a half an hour, they all went with him to help retrieve his boat at his house nearby. JE continued to drink. After the group helped Smart with his boat, they dropped off Heidi at her house and then went off-road driving in Smart's vehicle. JE did not flirt with or "hit" on Smart during the evening.
The record indicates that Smart lived at a different house.
When the group returned to the Smart family residence, JE was intoxicated. She got out of the truck and sat or fell down on the ground. It was dark. LS and Justin went over by the tent. Smart helped JE off the ground, held onto her arm, and started leading her away. He told her that he wanted to show her something. JE told him she wanted to stay with her friends and asked where they were going. Smart took JE's head and slammed it onto the hood of a truck. JE told Smart, "Please, please don't do that again." VRP (June 21, 2005) at 26. In a scornful voice, Smart responded that he would not. Continuing to hold her arm, Smart led JE to a trailer. JE was scared and did not call out for help.
Once at the trailer, Smart pushed JE inside and closed the door. It was dark inside. Smart then asked, "Are we going to fuck or what?" VRP (June 21, 2005) at 27. JE responded, "I have someone waiting for me." VRP (June 21, 2005) at 26. Smart again pushed her to the back bedroom and onto the bed. JE moved to the other side of the room. Smart again pushed her onto the bed, got on top of her, and tried to pry apart her legs and knees. He eventually overcame JE's resistance and had penile-vaginal intercourse with her. She asked him if he would stop so that she could get a condom, promising she would return. She testified that she said this knowing that she would not come back if he let her go. Smart told her he did not have any diseases and continued to have sex with her.
The next day, JE's parents notified the police. She was taken to the hospital, where she was examined in accordance with the hospital's sexual assault protocol. JE also identified Smart from a photo line-up and he was arrested on June 5. He was eventually released. The State lab later examined the samples from the rape kit and concluded that the DNA (deoxyribonucleic acid) matched a sample of Smart's DNA.
Smart made various statements to the police. After his arrest and after being read and waiving his Miranda rights, he told the police that he did not know how they had probable cause to arrest him for rape because the only person he had sex with was his wife. An officer asked Smart if he knew of anyone who could make a rape allegation against him and he responded, "Heidi." VRP (June 21, 2005) at 157.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the jail, an officer asked Smart for his side of the story after explaining what the allegations were and what the investigation had discovered. Smart told the officer that he did not know who could make an allegation of rape against him and that he did not know who JE and LS were. He again stated that if anyone were to accuse him of rape it would be someone named "Heidi." Later in the conversation he acknowledged that he knew a bigger girl who had been with Justin. When asked several times if he had raped JE, he said, "Straight up I don't know what's going on" and "the only person I have had sex with is my wife." VRP (June 21, 2005) at 141.
At one point, Smart asked what a rape kit was. After being told what it was, he said, "[T]o the best of my knowledge I have not slept with anyone." VRP (June 21, 2005) at 142, 159-60. After having been asked if he might have had consensual sex with a girl, Smart said, "Not that I remember" and "I do not remember having sex with anyone." VRP (June 21, 2005) at 160. Smart also stated, "Well I couldn't have been that drunk." VRP (June 21, 2005) at 142. After being left in the booking room, Smart yelled out for the deputies and asked if he would be able to leave the jail if he had other information about the case. He asked if it would make a difference if it were consensual sex.
In May 2005, a deputy met with Smart on an unrelated matter and Smart told him that he was being framed for rape. He explained that he had had sex with JE and that she became upset afterwards because he would not date her or become her boyfriend. He told the deputy that he had been drinking on the night they had sex but that JE had not and that she did not drink alcohol at all. He also said that JE was his sister's friend.
A jury trial was held in June 2005, during which JE testified that she was or had been in a serious relationship with her boyfriend, Lee, "[o]ff and on for about a year and a half." VRP (June 21, 2005) at 10. When JE was describing how Smart pushed her into the trailer before she was raped, the State elicited the following testimony:
Q. What happened then?
A. He said, "Are we going to fuck or what?" And I said, "I have someone waiting for me."
Q. What did you mean by that?
A. Well, I was in love with Lee.
VRP (June 21, 2005) at 27. Defense counsel did not ask JE about her boyfriend or her past sexual history during cross-examination. While cross-examining JE's friend LS, however, defense counsel asked her about JE "hitting on guys after she had been drinking." VRP (June 22, 2005) at 235. The State objected "to any further character testimony about the victim." VRP (June 22, 2005) at 235. Defense counsel argued that the State had opened the door to such evidence with JE's testimony about her boyfriend. Defense counsel made an offer of proof outside the presence of the jury.
As part of the offer of proof, LS testified that she knew JE had dated Lee previously. She stated that she also knew JE had sexual relations with other men in the past year and a half. She testified that JE hit on men sometimes and that it was more obvious when she had been drinking. She stated that JE would have sex, once or twice a month, with some of the men she hit on after drinking, some of whom she did not know very well. During the offer of proof, the following exchange took place:
[Defense counsel]: How did [JE] meet people that you were aware of?
[LS]: Um, parties
Q: So you would go to parties and —
A: Yeah.
Q: And basically start drinking and then meet somebody and have sex with them?
A: I guess, yeah.
Q: And that's basically what you told me on Saturday when we were talking about her being, you know, having this liquid courage, right?
A: Yes.
Q: Okay. I guess the other thing about this particular case if she had just gone with [Smart] to have sex with him you wouldn't have considered that to be anything unusual, right?
A: Well, it would have been because I didn't notice her hitting on him at all.
Q: But you noticed her hitting on Justin?
A: Yeah.
Q: And Justin wasn't responding, right?
A: Yeah.
Q: And [Smart] was the only other guy around, right?
A: That doesn't mean that she is going to go with some guy.
VRP (June 22, 2005) at 250. LS denied knowing anything or JE telling her about meeting guys over the Internet. Defense counsel proffered that Heidi would testify about a time when JE was at her house and contacted two men over the Internet whom she had never met before and later had sex with at Heidi's house. The defense later filed the Declaration of Heidi Anderson, which alleged the JE had told Heidi about going camping and having sex with someone she had not met before.
The court declined to allow the defense to introduce evidence of JE's past sexual behavior because the "testimony elicited by the alleged victim on direct did not suggest . . . or could not be interpreted to state that she was never previously sexually active . . ." and, "the State did not introduce evidence and that the alleged victim's statements could not be reasonably construed as being evidence of the alleged victim's sexual history." VRP (June 22, 2005) at 246.
During the State's case in chief, the deputy who had talked with Smart in May 2005 testified. He stated that Smart told him that JE was framing him for rape because he would not date her or become her boyfriend. The prosecutor disputed Smart's version of the incident in her closing argument:
A month later [Smart] runs into Deputy Bonsen and says, yes, I did have sex with [JE]. . . . [b]ut it was consen[s]ual. . . . And the reason why she is making up this story is, gosh, she is mad because I wouldn't be her boyfriend. Well, that makes sense. She already had a boyfriend. Why would she be mad at him if he was suddenly not going to be her boyfriend? That doesn't make sense.
VRP (June 23, 2005) at 364. The jury found Smart guilty of rape in the second degree and felony harassment.
Analysis
The first issue is whether the trial court abused its discretion by ruling that the State did not present evidence in its case in chief tending to prove the nature of the victim's past sexual behavior. Washington's rape shield statute generally bars the use of a victim's prior sexual history in proving the victim consented. The statute does not, however, "prohibit 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[.]" RCW 9A.44.020(4). The purpose of RCW 9A.44.020(4) is to address the defendant's right to confrontation and cross-examination under the Sixth Amendment. State v. Camara, 113 Wn.2d 631, 641 n. 4, 781 P.2d 483 (1989). Decisions on the admissibility of evidence of prior sexual behavior under the statute are reviewed for abuse of discretion. State v. Hudlow, 99 Wn.2d 1, 22, 659 P.2d 514 (1983). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
The State does not open the door if its questioning is not designed to prove the victim's past history, but is elicited to explain why the victim did not want to perform the sexual act. Camara, 113 Wn.2d at 642. A victim's protests to being sexually assaulted are insufficient to open the door. People v. Murphy, 919 P.2d 191, 196-97 (Colo. 1996). In order to determine whether the State has opened the door, the witness's testimony as a whole must be considered. Murphy, 919 P.2d at 196-97 (Colo. 1996).
Smart is correct that an inference could be drawn that since JE had a boyfriend she would be less likely to consent to sex with someone else. But this does not necessarily mean that the prosecution presented evidence tending to prove the nature of JE's past sexual behavior and, in any event, the trial court's decision on that issue is discretionary. Here, the court did not abuse its discretion.
First, the court acted within its discretion by concluding that JE's testimony that she had a boyfriend at the time of the rape did not constitute "evidence . . . tending to prove the nature of the victim's past sexual behavior." RCW 9A.44.020(4). JE never testified that her relationship with Lee was an exclusive one. Rather, she testified that she was or had been in a serious relationship with Lee, "[o]ff and on for about a year and a half." VRP (June 21, 2005) at 10. This was relevant because it discounted Smart's statement to a police officer that JE had made up the rape allegation because he would not date her or become her boyfriend. The fact that she had a boyfriend, even a serious one, did not tend to prove the nature of her past sexual conduct.
The trial court also acted within its discretion by concluding that JE's "I have someone waiting for me" testimony did not constitute "evidence . . . tending to prove the nature of [her] past sexual behavior[.]" RCW 9A.44.020(4). She testified that at the time of the incident she told Smart that she had someone waiting for her in response to his demand for sex. She did not testify that the reason she did not want to have sex with Smart was because she was in a monogamous relationship. Her testimony shortly afterwards was that she attempted to escape by asking Smart if she could leave to get a condom. This supports the argument that when she told Smart that someone was waiting for her, it was one of her multiple attempts to prevent him from raping her.
Hudlow supports the trial court's ruling on the "I have someone waiting for me" testimony. In Hudlow, the defendants argued that the prosecution introduced evidence of the victims' past sexual behavior in its case in chief. One of the victims testified that when the defendant told her to give him a "blow job" she responded that she did not know how, although she also testified that she knew what he meant. The court had to decide whether the prosecution presented evidence tending to prove the victim's past sexual behavior. The court concluded that it had not because the victim's statement to the defendant was obviously an attempt to get out of having to perform oral sex on him. The victim's testimony was not "intended or interpreted to convey ideas of [her] sexual virtuousness." Hudlow, 99 Wn.2d at 21. Similarly, JE told Smart that someone was waiting for her in hopes he would not rape her. Her testimony did not convey ideas of her sexual virtuousness.
Finally, the trial court acted within its discretion by concluding that JE's testimony that she was in love with her boyfriend Lee at the time of the rape was not evidence tending to prove her past sexual behavior. State v. Camara, 113 Wn.2d 631, 781 P.2d 483 (1989), supports this conclusion. In Camara, the rape victim testified on direct examination that he did not consent to anal intercourse with the defendant because he believed it was unsafe and did not find it pleasurable. The court held that the victim's explanation was not evidence tending to prove his past sexual behavior, even though it may have implied something about his past sexual behavior. The court explained, "To hold that evidence which in any manner concerns a rape victim's past sexual behavior affords an opportunity for cross examination about the victim's sexual past would weaken the statutory shield[.]" Camara, 113 Wn.2d at 643. Similarly, JE's testimony that she was in love with Lee was part of her explanation of why she did not consent to sex with Smart, though it may have implied something about her past sexual behavior.
The next issue is whether the excluded evidence of JE's past sexual behavior was admissible on the issue of consent under another section of the rape shield statute, RCW 9A.44.020(3)(d). This section of the statute makes evidence of the victim's past sexual behavior admissible on the issue of consent only if: (1) it is relevant; (2) its probative value substantially outweighs the probability that its admission will create a substantial danger of undue prejudice; and (3) its exclusion will result in denial of substantial justice to the defendant. We conclude that the excluded evidence of JE's past sexual behavior was irrelevant to the issue of consent because it was not substantially similar to Smart's version of what occurred.
Under RCW 9A.44.020(3), a victim's prior sexual behavior will only be admissible if it meets the three-part test outlined above. RCW 9A.44.020(3)(d). All three factors must be met before such evidence is admissible to show consent. Hudlow, 99 Wn.2d at 7. Additionally, such evidence is only admissible pursuant to the procedure set forth in the statute. To that end, RCW 9A.44.020(3)(a) and (b) require that the defendant make a written pretrial motion stating that he or she has an offer of proof and the motion must be accompanied by affidavits in which the offer of proof is stated. If the court finds the offer of proof is sufficient, it shall order a hearing out of the presence of the jury.
Here, defense counsel did not make a written pretrial motion to admit evidence of JE's past sexual behavior as required by RCW 9A.44.020(3)(a) and (b). The court, therefore, did not decide whether the proffered evidence of JE's past sexual behavior satisfied the three-part test of RCW 9A.44.020(3)(d). Smart admits that his defense counsel did not attempt to introduce this evidence through a pretrial motion. The State, however, does not argue that this issue cannot be considered because the defense failed to file a pretrial motion or because the trial judge did not make a ruling on this issue. Instead, the State argues that the proffered evidence was irrelevant to the issue of consent because it was not substantially similar to Smart's version of what happened. The defense argues that the version of the incident that Smart related to the police was similar enough to the proffered evidence to be relevant.
Smart argues that his counsel was misled by the State because the prosecutor stated that she would not introduce evidence about JE's past sexual conduct. We have concluded that the State did not introduce evidence of JE's past sexual conduct.
The State also argues that much of the proffered evidence was inadmissible hearsay. We need not decide this issue because, hearsay or not, the evidence was not relevant to whether JE consented.
In order to determine if the proffered evidence is relevant, the court applies the traditional relevance test under ER 401. Hudlow, 99 Wn.2d at 9. The fact that a woman has consented in the past does not make it more or less probable that she consented to sex on another occasion; therefore, prior sexual behavior "does not even meet the bare relevancy test of ER 401." Hudlow, 99 Wn.2d at 10. "`Without other factors tending to indicate the past consensual sexual activity is factually similar in some respects to the consensual sex act claimed by defendant, it should not be considered relevant.'" Hudlow, 99 Wn.2d at 10-11. The court compares the victim's prior consensual sexual activity with "the defendant's version of the story." Hudlow, 99 Wn.2d at 10-11. The past sexual conduct must be substantially similar. State v. Mounsey, 31 Wn. App. 511, 521, 643 P.2d 892 (1982).
Here, the proffered evidence was not relevant to the issue of consent because it was not factually similar to Smart's version of the incident. The proffered evidence was that sometimes JE would drink, hit on men she did not know, and then consent to sex. The proffer also included evidence that JE had sexual relations with men she met over the Internet or on a camping trip. Smart's version of the incident was that he was very drunk but that JE was not drunk and, in general, did not drink at all; JE was a friend of his sister's; and JE consented to sex with him but later became upset and framed him for rape when he would not date her or become her boyfriend. The proffered evidence was not similar to Smart's version of the incident because according to him JE was sober. Also, there was nothing in Smart's version about JE "hitting" on him or meeting him over the Internet or on a camping trip.
Hudlow supports this conclusion. In that case, the defendants' proffer was that the victims had had sex with a particular sailor a number of times and had also engaged in group sex with that sailor and other men. The defendants alleged that the two women, who did not know the defendants, smoked marijuana and drank with them and then consented to sexual relations. The Supreme Court concluded that the evidence regarding the women's general promiscuity was not relevant because "[t]he evidence proffered by the defense concerned only the general promiscuity of the two victims and lacked further indicators showing any past consensual activity comparable to the story offered by [the defendants]." Hudlow, 99 Wn.2d at 17. Specifically, the excluded evidence did not show that the victims had sex with men they did not know. Similarly, in this case the excluded evidence did not show that JE would engage in promiscuous behavior while sober or with men she had not hit on.
Smart relies on State v. Wilmoth, 31 Wn. App. 820, 644 P.2d 1211 (1982), but Wilmoth does not support his argument. In that case, the rape victim alleged that she met a stranger, the defendant Wilmoth, who offered to drive her back to a friend's house. Stopping en route, she and the defendant engaged in sexual intercourse in his vehicle, which she alleged was accomplished by threats. Wilmoth's defense was consent, and he moved to admit evidence of the victim's past sexual behavior. The trial court rejected the evidence as irrelevant to consent because it did not involve "random, careless sex following transient encounters." Wilmoth, 31 Wn. App. at 823. Wilmoth does not support Smart's argument because, just like the excluded evidence in Wilmoth, the evidence of JE's past sexual history that Smart sought to admit was not factually similar to his own version of the incident.
Finally, Smart argues that his counsel was ineffective because he should have offered evidence of JE's prior sexual behavior during cross-examination and should have introduced evidence of her prior sexual behavior by filing a pretrial motion in accordance with RCW 9A.44.020(3)(a), (b). The test for ineffective assistance of counsel is (1) whether the defense counsel's performance fell below the objective standard of reasonableness and (2) whether this deficiency prejudiced the defendant. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Here, Smart's counsel did not fall below the objective standard of reasonableness by not cross-examining JE about her past sexual behavior because the State did not open the door to such cross-examination. Similarly, his counsel did not fall below the objective standard of reasonableness by failing to offer evidence of JE's past sexual behavior by filing a pretrial motion because the evidence was irrelevant. For the foregoing reasons, we affirm.
WE CONCUR: