Opinion
No. 35753-4-II.
December 9, 2008.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 06-1-00042-3, David E. Foscue, J., entered January 2, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Hunt and Quinn-Brintnall, JJ.
Wallace Gilpin appeals his convictions for first degree incest and second degree rape. He contends that the trial court erred in admitting evidence of his use of a knife during an uncharged prior sexual contact with the victim without weighing its probative value against its prejudicial effect. Gilpin argues that his trial counsel was ineffective for not objecting to the trial court's failure to weigh the two factors and in failing to ask for a limiting instruction. He also argues that his counsel was ineffective in failing to object when the trial court instructed the jury that this was not a death penalty case. He raises other issues in his statement of additional grounds for review (SAG).
RAP 10.10(a) states: "A defendant/appellant in a review of a criminal case may file a pro se statement of additional grounds for review to identify and discuss those matters which the defendant/appellant believes have not been adequately addressed by the brief filed by the defendant/appellant's counsel."
We affirm.
FACTS
Wallace Gilpin and Susan Smith had a daughter, ARS, born February 18, 1988. ARS did not have a relationship with her father until Smith became terminally ill in 2001, when Smith and ARS moved in with Gilpin. Smith died in late 2003.
Sometime in January or early February 2005, ARS became pregnant. On February 25, 2005, Gilpin allegedly raped ARS. Three days later, on February 28, ARS told her family preservation services counselor, Susan Clark, that she wanted to be removed from Gilpin's home. ARS, Clark, Gilpin and two social workers met at the Department of Social and Health Services (DSHS) office to review the possibility of removing ARS from Gilpin's home. When the social workers asked ARS why she wanted to be removed, she told them it was "because [her] father was being physically abusive towards [her]." Report of Proceedings (RP) (Aug. 22, 2006) at 87. Wes Toda, one of the DSHS social workers, testified at trial that ARS reported that "she was scared because her father grabbed her and yelled at her." RP (Aug. 23, 2006) at 189.
The jury heard conflicting testimony about whether Toda told ARS that an accusation of sexual abuse would result in her immediate placement during the meeting on February 28. Toda responded, "Mmm-hmm," in response to the State's question about whether anyone told ARS that if she alleged sexual abuse she would be removed from Gilpin's home; but during cross examination he testified, "I didn't say that," in response to the same question from defense counsel. RP (Aug. 23, 2006) at 179, 182.
DSHS was unable to find an immediate suitable placement for ARS, so Clark, the social workers, and Gilpin "came up with a case plan that [Gilpin] would go to his girlfriend's or friends, and [ARS] would go to school the next morning and it would all be fine." RP (Aug. 22, 2006) at 87. It was agreed that Gilpin and ARS would not spend the night together at Gilpin's home. The social workers then sent ARS home alone with Gilpin in Gilpin's car.
When ARS and Gilpin arrived home on February 28, ARS waited in the car because, "I knew he was going to hurt me as soon as I got inside." RP (Aug. 22, 2006) at 88. When she did go inside, "he slammed the door and he had a roll of duct tape. . . . He was threatening to duct tape me up."
RP (Aug. 22, 2006) at 88. At some point, Gilpin hit ARS and she fell down, apparently hitting her head on a stereo speaker. Gilpin went to the bedroom, found a blanket, and "started having intercourse with [her]" on the blanket. RP (Aug. 22, 2006) at 88. ARS told Gilpin it was hurting her, so he stopped and forced her to engage in oral sex, following which, ARS spit up and wiped her mouth with her shirt. RP (Aug. 22, 2006) at 89. Gilpin left the house and ARS dressed and went to a friend's house where she disclosed the rape.
Her friend's parents notified the police. Detective Shane Krohn of the Hoquiam police department interviewed ARS at her friend's home. Then ARS went to the police station to report the rape and make an oral statement. The police took ARS to the hospital. The medical personnel conducted an examination, using a rape kit. ARS refused a full pelvic exam, but consented to an external pelvic exam. Medical personnel reported that ARS had "a red mark on the top of her head . . . [and] a light abrasion under her right eye." RP (Aug. 23, 2006) at 137. She also had a red mark on her left clavicle.
At approximately 3:00 am, police detectives obtained and executed a search warrant for Gilpin's house and his person. When they arrived at Gilpin's home, he was naked and wrapped in a blanket. The police took oral and penile swabs from Gilpin and seized the blanket, ARS's shirt, and other clothing items. The police did not find any rolls of duct tape in the house; the only duct tape in the house was securing a cardboard box that was stored in a closet. The police did Page 4 not seize or obtain samples from the stereo speaker.
DNA testing on the penile swab yielded evidence consistent with both Gilpin's and ARS's DNA. Testing on ARS's oral swab did not contain semen. DNA testing on ARS's shirt yielded evidence consistent with Gilpin's semen. The blanket was not tested.
ARS returned to the police station the next day to make a written statement. Gilpin voluntarily went to the police station on February 29 and submitted a statement that he and ARS had argued and "[t]his led to a pushing match." RP (Aug. 23, 2006) at 149. The police and the hospital referred the matter to Child Protective Services (CPS) and CPS made a founded finding that Gilpin had sexually assaulted ARS.
ARS gave birth in October 2005 and a paternity test showed that Gilpin was the child's father. The State then charged Gilpin with first degree incest, count I, and two counts of second degree rape. Count II related to ARS's report of the February 25 incident and count III related to the February 28 incident following the meeting between ARS, the social workers, and Gilpin. ARS gave an additional written statement to the police after Gilpin's arrest.
Prior to trial, the State filed a motion in limine asking that the trial court admit evidence of "previous sexual contacts with the victim under ER 404(b)." Clerk's Papers (CP) at 15. The State explained in its memorandum in support of the motion in limine:
There are two incidents in particular that the victim has detailed, but that the State did not charge. In the summer of 2002 the victim and the defendant went on a camping trip to Lake Sylvia. The victim described the defendant having her perform oral sex on him twice during the trip, once in the tent and once on a trail behind the tent. The victim also detailed an incident over Thanksgiving of 2003. . . . The defendant threatened the victim with a knife and had sexual intercourse with her.
CP at 23.
At the motion hearing, the argument focused on the admissibility of prior sexual contact between Gilpin and ARS to show Gilpin's lustful disposition toward ARS. Neither party mentioned the knife during oral argument. Gilpin objected to the admission of evidence of prior sexual contacts between Gilpin and ARS and asked for a continuance:
They are not charged crimes in this case, but they are prior bad acts under 404 B, (sic) which, you know, the first issue is, are they admissible. The State has filed a motion in limine, several motions, which none of which I have a problem with except for that one.
. . . .
Number four is the issue, Your Honor, and that is the prior bad acts. . . . I have not had a meaningful or sufficient opportunity to investigate these. And the Court doesn't have to stretch too far to realize that [the prior sexual acts] are very prejudicial. They are uncharged uncorroborated allegations. There is absolutely no evidence of these, other than the alleged victim's statement.
Gilpin's argument that these prior acts should be excluded because they were uncorroborated was erroneous; RCW 9A.44.020(1) states: "In order to convict a person of any crime defined in this chapter it shall not be necessary that the testimony of the alleged victim be corroborated."
The trial court denied Gilpin's motion for a continuance because Gilpin had prior notice that the State would use ER 404(b) evidence at trial. At the conclusion of the hearing, the court ruled:
THE COURT: I agree with both of you, that . . . [t]here is law supporting evidence of defendant's previous sexual contacts with the defendant under 404 (b). And I — although I DON't know all of the details other than what's been outlined by the State, I believe that evidence is admissible. There may be something in the evidence that isn't admissible, but I DON't know.
[DEFENSE COUNSEL]: And I guess, without flushing out more details on that, Your Honor, I guess I DON't know, I mean the risk is that we can wait. We can wait to see what comes out at trial, which, of course, you know, that's an option.
RP (Aug. 10, 2006) at 147-48 (emphasis added).
THE COURT: [ C] ertainly the issue of his, what they call a lustful disposition, I think is relevant to the case. Lustful disposition for her, his daughter. . . .
[THE STATE]: The 404 (b) evidence, is the court ruling it inadmissible?
THE COURT: I am ruling it admissible. As I say, there may be something about it that I DON't know that you might want to ask that I preclude, but I DON't have any idea what that would be. Generally, it's admissible.
[DEFENSE COUNSEL]: Understood.
RP (Aug. 10, 2006) at 150 (emphasis added). The trial court's written order states, "The State will be allowed to introduce evidence of defendant's previous sexual contacts with the victim under ER 404(b)." CP at 35. The order does not mention the knife.
At trial, ARS testified that beginning in the summer of 2001, when she was 14, Gilpin began commenting on her clothing and then he began touching her. That summer he also began paying her for oral sex and, soon after, they began having sexual intercourse. ARS told her mother about these incidents and, according to ARS's testimony, her mother "talked to Mr. Gilpin about it and he denied it." RP (Aug. 22, 2006) at 74. Gilpin then threatened "to kill [ARS] and [her] mother if [she] told anyone else." RP (Aug. 22, 2006) at 74.
ARS also testified to two uncharged prior incidents. She testified that she had oral sex with Gilpin in a tent while on a camping trip in 2001 or 2002. And during a 2003 Thanksgiving visit with Gilpin, he approached her with a knife and the next thing she remembered was, "I was on the back of the bed with — my back was on the bed and I had a knife against my throat. . . . [W]e began having sexual intercourse." RP (Aug. 22, 2006) at 78. Gilpin neither objected nor requested a limiting instruction. The State introduced the knife and offered it for admission during ARS's testimony. Gilpin objected to the knife's admission based on lack of foundation and chain of custody only; he raised no ER 404(b) objection to it. He also did not ask the trial court for a limiting instruction. Instead, when cross-examining ARS, he questioned her about the knife in an effort to impeach her testimony and undermine her credibility.
ARS temporarily moved out of Gilpin's home following her mother's death and lived with an aunt for approximately eight and one half months before returning to live with Gilpin.
This incident was not mentioned in ARS's oral statement to police or her first written statement.
The jury found Gilpin guilty of count I, first degree incest, and count III, second degree rape, based on the evidence of the February 28 incident. The jury acquitted Gilpin of count II, second degree rape, relating to the February 25 incident. Gilpin does not appeal the incest conviction, count I, but appeals his conviction on count III for second degree rape.
ARS was unable to recall the details of the charged February 25, 2005 incident. Instead, she read from a previous statement that she made to the police:
On Friday, February 25th, 2005, I got in a heated argument with my dad. We were arguing about him seeing his ex-girlfriend, and I was being very snotty. He told me at that time that he was going to use duct tape to gag my mouth and tie my hands and then have sex with me. . . . I was scared so I told him that he didn't need to bind me with tape, that I would comply with his demand for sex. I took off my pants and underwear at his request and I laid down on the love seat in the room [and we had sexual intercourse].
RP (Aug. 22, 2006) at 84-85.
ANALYSIS
Gilpin first states broadly that the trial court's admission of ARS's testimony of his prior sexual misconduct "violated [his] constitutionally protected right to due process." Br. of Appellant at 9. But he assigns error solely to evidence of the 2003 Thanksgiving incident involving the knife, because a knife was not involved in the charged incidents, and the trial court did not weigh its probative and prejudicial value on the record. Alternatively, he argues that his counsel was ineffective for not objecting to the trial court's "failure to balance the probative and prejudicial value" on the record, for failing "to request a limiting instruction when . . . evidence of the [knife] was admitted," and in failing to object to the trial court's instruction to the jury that "the trial did not involve the death penalty." Br. of Appellant at 4.
I. Standard of Review
We review the trial court's evidentiary rulings for an abuse of discretion. City of Spokane v. Neff, 152 Wn.2d 85, 91, 93 P.3d 158 (2004). Evidence of prior acts is not admissible if it is offered to prove conformity therewith, ER 404(a), but such evidence may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, etc. ER 404(b). State v. Herzog, 73 Wn. App. 34, 49, 867 P.2d 648 (1994). Furthermore, in prosecutions for rape and incest, as here, and other sex crimes, a defendant's prior sexual contacts with the victim are admissible. "This court has consistently recognized that evidence of collateral sexual misconduct may be admitted under ER 404(b) when it shows the defendant's lustful disposition directed toward the offended female." State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991); State v. Guzman, 119 Wn. App. 176, 184, 79 P.3d 990 (2003) (court rejected argument that probative value was outweighed by danger of unfair prejudice). Before "a trial court admits bad acts evidence, it must first identify the purpose for which the evidence is to be admitted." Brundridge v. Fluor Fed. Servs., 164 Wn.2d 432, 444, 191 P.3d 879 (2008) (footnote omitted).
ER 404(a) states in relevant part: "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion[.]"
ER 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
An issue may not be raised for the first time on appeal unless it amounts to "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). "An error under ER 404(b) is nonconstitutional in nature." State v. White, 43 Wn. App. 580, 587, 718 P.2d 841 (1986).
II. Failure to Object To Knife Evidence at Trial
The State argues that Gilpin failed to preserve the ER 404(b) issue relating to the knife for appeal because he did not object to the knife evidence at trial. To preserve an issue, a party must bring a specific objection at trial to allow the trial court "an opportunity to correct any error." Smith v. Shannon, 100 Wn.2d 26, 37, 666 P.2d 351 (1983). For appeals arising from a trial court's rulings on motions in limine, a waiver of the right to appeal depends on whether the trial court made a final ruling. If the trial court makes a final ruling, "the losing party is deemed to have a standing objection . . . `[u]nless the trial court indicates that further objections at trial are required.'" State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995) (quoting State v. Koloske, 100 Wn.2d 889, 895, 676 P.2d 456 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988), 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989)); Fenimore v. DONald M. Drake Constr. Co., 87 Wn.2d 85, 91, 549 P.2d 483 (1976). If the ruling is tentative, "`the parties are under a duty to raise the issue at the appropriate time with proper objections at trial.'" Powell, 126 Wn.2d at 256 (quoting Koloske, 100 Wn.2d at 896).
"Although orders on motions in limine are sometimes characterized as tentative and advisory, it has been held that, when the trial court enters a pretrial order regarding the admissibility of evidence, and the order appears to be a final ruling and on a complete record, the fact that defendant does not renew his objection to the ruling at trial does not preclude review by the appellate court." 2A Karl B. Tegland, Washington Practice: Rules Practice RAP 2.5 author's cmts. at 230 (6th ed. 2004).
During the hearing on the State's motion in limine, Gilpin's opposition to the admission of evidence of prior acts focused on the two prior sexual acts in general and did not mention the use of a knife during the 2003 Thanksgiving incident. The State's only mention of the knife was in one sentence of its written motion and the State did not argue for admission of the knife evidence during the hearing on its motion in limine. Based on the parties' arguments, the trial court ruled that the evidence of the two prior incidents was admissible for the purpose of showing Gilpin's lustful disposition toward ARS. It made no ruling about evidence regarding how those acts occurred or use of force during the incidents.
Furthermore, the trial court specifically invited further objections relating to evidence of the prior acts at trial. Gilpin's counsel verbally acknowledged the court's invitation. "[W]ithout flushing out more details on that, Your Honor, I guess I DON't know, I mean the risk is that we can wait. We can wait to see what comes out at trial, which, of course, you know, that's an option." RP (Aug. 10, 2006) at 148.
Thus, Gilpin's counsel preserved his objection to the admission of evidence of prior sexual acts, which he does not appeal, but he did not preserve objection to admission of evidence that a knife was involved in the 2003 incident because the knife was not mentioned at the pretrial hearing. See Powell, 126 Wn.2d at 256-57. Because a party must make specific objections to evidence at trial and Gilpin did not object to the knife evidence under ER 404(b), he waived appeal of its admission under ER 404(b). Shannon, 100 Wn.2d at 37. Moreover, he affirmatively used the same evidence for impeachment purposes while cross examining ARS. The trial court did not abuse its discretion in admitting evidence to which Gilpin did not object.
III. Ineffective Assistance of Counsel
Gilpin states that his trial counsel provided ineffective assistance when he "failed to move the court to exclude the evidence of the prior uncharged incidents as more prejudicial than probative and failed to move for a limiting instruction upon the admission of the evidence." Br. of Appellant at 21. He also argues that his counsel was ineffective when he "failed to object to the trial court's instruction to the jury this was not a death penalty case." Br. of Appellant at 25. Gilpin misstates the facts in claiming Page 11 that his counsel did not object to admission of evidence of prior uncharged sexual contact between Gilpin and ARS. Gilpin's counsel did object to admission of these acts at the hearing on the State's motion in limine. Thus, we address only Gilpin's claim that his counsel was ineffective for not requesting a limiting instruction regarding the knife incident testimony and for not objecting to the trial court's statement that "this was not a death penalty case."
For an appellant to prevail on a claim of ineffective assistance of counsel, he must show (1) that counsel's representation was deficient and (2) that the deficient representation prejudiced him. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999). To prevail on the first prong, counsel's representation must have fallen "below an objective standard of reasonableness based on consideration of all the circumstances." McFarland, 127 Wn.2d at 334-35. Here, courts are "highly deferential and . . . will indulge in a strong presumption of reasonableness." State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). There must also be "a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335. But the "defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
A. Limiting Instruction
A trial court need not give a limiting instruction absent a party's request. State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997). Where a party fails to request a limiting instruction, our courts have consistently held that such a failure can be presumed to be a legitimate tactical decision designed to prevent reemphasis on the damaging evidence. State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000).
Gilpin argues that his counsel's failure to request a limiting instruction relating to the knife was not a tactical decision because he reemphasized the damaging evidence during ARS's cross-examination. But during cross-examination, Gilpin's counsel tactically used ARS's testimony about the knife to undermine her credibility. Defense counsel asked ARS to affirm that "[she] went places with [Gilpin], [she] rode in a car with him. . . . He would buy [her] things, buy [her] clothes. . . . Normal every-day activities." RP (Aug. 23, 2006) at 123-24. He pointed to their normal interaction " after he had already threatened to kill you with a knife, during this whole period of time you were going along business as usual." RP (Aug. 23, 2006) at 124 (emphasis added). Defense counsel also noted that ARS had physical possession of the knife:
[DEFENSE COUNSEL]: Where did you get the knife?
[ARS]: It was at my father's.
[DEFENSE COUNSEL]: How did you end up with it?
[ARS]: It was in the house when I went to get my stuff. . . .
[DEFENSE COUNSEL]: So he threatened to kill you with this knife, put a knife to your throat, and then at some point he just turned it over to you, left it lying around so you could grab it?
[ARS]: It was in the house.
RP (Aug. 22, 2006) at 106.
We are persuaded that Gilpin's counsel made a legitimate tactical decision to attempt to impeach ARS and attack her credibility by showing that she did not display fear of Gilpin after the alleged 2003 knife incident. And he used ARS's claim that she took possession of the knife at Gilpin's home following that incident to undermine her testimony about Gilpin's use of the knife during the 2003 Thanksgiving sexual encounter.
Such tactics do not constitute ineffective assistance of counsel and Gilpin's challenge on this ground fails.
B. Reference to Death Penalty
Gilpin also argues that his counsel was ineffective for failing to object to the trial court's allegedly erroneous jury instruction in response to his counsel's closing argument that this was not a death penalty case. During closing argument, Gilpin's attorney stated, "My client is on trial for his life." RP (Aug. 24, 2006) at 439. The trial court corrected Gilpin's counsel's statement by telling the jury that "[t]his is not a death penalty case." RP (Aug. 24, 2006) at 441. Gilpin's argument assumes that the trial court erred when it corrected his counsel's statement to the jury.
Generally, it is improper for the jury to be informed that a charge is not a death penalty offense. Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct. 2396, 129 L. Ed. 2d 459 (1994); see also State v. Townsend, 142 Wn.2d 838, 840, 15 P.3d 145 (2001). "[I]f jurors know that the death penalty is not involved, they may be less attentive during trial, less deliberative in their assessment of the evidence, and less inclined to hold out if they know that execution is not a possibility." Townsend, 142 Wn.2d at 847. Townsend is distinguishable. In Townsend, the trial court told the jury during voir dire that, although the charges included first degree murder, it was not a death penalty case. 142 Wn.2d at 842.
Here, there was no error by the trial court. Gilpin's counsel's erroneous argument suggesting that Gilpin was on trial for his life necessitated the trial court's direction that this was not a death penalty case. See State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990)). Furthermore, the trial court instructed the jury that it was not responsible for deciding Gilpin's sentence if he were convicted. This is a standard instruction, normally included with all jury instructions in criminal cases.
"You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law. You may not consider the fact that punishment may follow convictionexcept insofar as it may tend to make you careful." 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.02, at 14 (rev. 2d ed. Supp. 2005).
Finally, Gilpin does not point to any prejudice arising from the trial court's correction of his counsel's improper argument. Gilpin must demonstrate that his counsel's failure to object to the trial court's statement "prejudiced the defense such `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Townsend, 142 Wn.2d at 847 (internal quotation marks omitted) (quoting State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991)). Objection by Gilpin's counsel to the trial court's correction would not have been sustained under these circumstances and Gilpin does not suggest that the jury would have acquitted him on count III had his counsel objected to the trial court's correction. Thus, he does not show that he was prejudiced or that there was a reasonable probability that the outcome of the case would have been different had his counsel objected. Gilpin's ineffective assistance of counsel claim fails.
III. Statement of Additional Grounds for Review
In his SAG, Gilpin alleges that the trial judge was biased because he knew Gilpin before trial. He argues that certain pieces of relevant evidence were not admitted and that there was a prejudiced juror. Finally, he alleges that the date of the search warrant was altered.
A. Trial Judge's Bias
Gilpin claims, "The Judge [k]new me." SAG at 1. He apparently argues that the trial judge was biased because he knew Gilpin prior to trial. This allegation is not supported by the record. Gilpin misstates the issue. During a post-trial hearing, the trial court stated, "I started reading . . . Dr. Brown's forensic analysis and I realized that I — well, I have known Cher and Bonnie Roberts, since Cher was probably a year old. I didn't realize they had any connection to Mr. Gilpin, if that makes any difference to anybody." RP (Nov. 29, 2006) at 2. Gilpin's counsel responded, "I have discussed the matter with my client. We are ready to proceed, to go forward at this time." RP (Nov. 29, 2006) at 2-3.
During sentencing, Gilpin called Dr. Natalie Brown to testify. Brown is a clinical and forensic psychologist. In preparation for her testimony, Brown "receive[d] information from the close friend of [Gilpin's] paternal grandmother" about Gilpin's mother drinking while pregnant with Gilpin. RP (Dec. 1, 2006) at 49. The trial court asked Brown who she received this information from and Brown replied, "[f]rom Bonnie Roberts who was the best friend of [Gilpin's] paternal grandmother." RP (Dec. 1, 2006) at 58.
Cher Roberts' identity and relationship to Gilpin is not clear from the record.
In Washington, a judge must "disqualify himself if he is biased against a party or his impartiality may reasonably be questioned." State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996). It is the duty of the party claiming bias to produce evidence of bias or prejudice. Dominguez, 81 Wn. App. at 328-29. But Gilpin fails to provide any evidence of bias due to the trial court's acquaintance with these individuals. Furthermore, Gilpin waived any objection when he agreed to proceed. This claim fails.
B. Additional Evidence
Gilpin argues that certain parties were barred from testifying about "[ARS's] inap[p]propr[i]ate behavior being sexually provocative." SAG at 1. Additionally, Gilpin argues that critical evidence was omitted. "[W]hen C.P.S. testified my [l]awyer tried to bring up the past events of [l]ying [that would have challenged ARS's] credibility." SAG at 2. The record does not support Gilpin's assertion that his witnesses were barred from testifying; they did, in fact, testify. Instead, it appears that Gilpin appeals the limits placed on his witnesses' testimony.
The clerk's papers do not include the defendant's witness list. But at trial, ARS testified for the State, and nine witnesses testified for the defense.
Before trial and following argument on the State's motion in limine, the trial court excluded evidence about ARS's "past sexual behavior with persons other than the defendant." CP at 35. The State's motion in limine asked that the trial court exclude testimony by "witnesses [who] ha[d] stated the victim told them about several boys that she had a sexual relationship with, and that they were possibly the father of her child." CP at 20. The State's motion also asked that testimony from Liane Benson be excluded. The State believed that Benson would testify about "an incident in which the victim joined an online singles website by lying about her age, and quickly made contact with several men by bragging about her sexual prowess and sending provocative photos." CP at 20-21 (internal quotation marks omitted). The trial court also excluded testimony regarding past incidents that challenged ARS's credibility and ordered Gilpin to disclose to the State the contents of any statements he intended to use for impeachment purposes under ER 613(b).
The rape shield statute requires that the trial court limit the admission of evidence of the victim's past sexual history. RCW 9A.44.020; see also State v. Posey, 161 Wn.2d 638, 650, 167 P.3d 560 (2007) (Chambers, J., concurring). A defendant cannot use evidence of the victim's prior sexual activity to attack the victim's credibility. Here, Gilpin offered the evidence solely to attack ARS's credibility; thus, the trial court's ruling excluding evidence of ARS's sexual history was not an abuse of discretion, and Gilpin's challenge fails.
Only when the defendant offers the evidence to show the victim's consent may "[s]uch evidence . . . be admissible . . . but only if the trial judge concludes the probative value of the evidence is so vital to the defendant's case that it cannot be excluded without `result[ing] in denial of substantial justice.'" Posey, 161 Wn.2d at 650 (Chambers, J., concurring) (emphasis added) (quoting RCW 9A.44.020(3)(d)).
Gilpin's challenge to the exclusion of testimony regarding specific instances of lying by ARS also fails. The trial court did not abuse its discretion by excluding this proposed testimony, although ER 613 did not apply. ER 613 limits the use of a witness's prior inconsistent statements to impeachment of that witness's testimony.
ER 613(b) states: "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require."
We may affirm a trial court on any ground properly cognizable under the law. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004); State v. Michielli, 132 Wn.2d 229, 242-43, 937 P.2d 587 (1997). Here, Gilpin did not offer prior inconsistent statements by ARS. The proffered evidence was properly excluded under ER 608, which bars the admission of specific instances of a witness's conduct except to show general reputation for untruthfulness.
ER 608(b) states:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
C. Juror Prejudice
Gilpin seems to argue that the trial court erred when it allowed a juror to remain on the jury panel because the juror was allegedly prejudiced. RCW 2.36.110 governs juror dismissal and states in part: "It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias. . . ." We review the trial court's decision on whether a juror should be dismissed for a manifest abuse of discretion. State v. Grenning, 142 Wn. App. 518, 540, 174 P.3d 706 (2008).
On the first day of trial, Gilpin's counsel reported that Gilpin's brother was seen talking with an alternate juror during a recess. Gilpin's attorney stated, "[f]rom my understanding they were only talking about the flowers. . . . I DON't think there [was] anything of import." RP (Aug. 22, 2006) at 66. The trial court considered the report from Gilpin's counsel and questioned defense counsel and Gilpin's brother before determining that the juror was not biased. The trial court's decision not to excuse this alternate juror after inquiry, with Gilpin's apparent agreement, does not constitute an abuse of the trial court's discretion.
D. Other Claims
Finally, Gilpin claims that the date on the search warrant was altered and that the police and CPS conducted his interviews without his lawyer present, although he had requested counsel.
He also claims that he asked for a bench trial and was denied "the opp[or]tunity to defend myself." SAG at 1. There is no evidence in the record before us on appeal relating to any of these arguments. Because we cannot review facts outside the record, we do not address these claims. McFarland, 127 Wn.2d at 332-33 (citing RAP 2.5(a)).
Furthermore, we note that a criminal defendant has no right to a bench trial. RCW 10.01.060 allows a criminal defendant to waive the right to a jury trial, subject to the trial court's consent. "The statute merely allows the court to proceed without a jury in the event that defendants `waive' the right to jury and `submit' to trial by the court." State v. Oakley, 117 Wn. App 730, 735, 72 P.3d 1114 (2003) (quoting RCW 10.01.060).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and QUINN-BRINTNALL, J., concur.