Opinion
No. 59101-1-I.
February 19, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-00373-4, Gerald L. Knight, J., entered November 8, 2006.
Affirmed by unpublished opinion per Baker, J., concurred in by Schindler, A.C.J., and Becker, J.
ORDER CHANGING OPINION
The panel having determined that the opinion should be changed, it is hereby
ORDERED that the opinion of this court in the above-entitled case filed February 19, 2008, be changed as follows: Throughout the opinion, replace the victim's name, "Danielle Karmil" and "Karmil" with initials, "D.K."
The remainder of the opinion shall remain the same.
On December 2, 2005, Danielle Karmil, a drug addict and prostitute, was driving Michael Linear around Everett in a stolen car so that he could deliver cocaine to various customers. When they were pulled over by a state trooper, Linear told Karmil to hide a plastic bag of crack cocaine in her vagina, and Karmil complied. Linear told the trooper that he had borrowed the car from a friend. The trooper determined that the car was stolen, and had it impounded. Karmil and Linear were each photographed, and then released at different locations.
Karmil went home, and she and her boyfriend, Lawrence Hatch, smoked some of the cocaine. They also sold some to visitors at their apartment.
The following day, Karmil went to the motel where Linear was staying. She returned the remaining cocaine to him and gave him what little money she had. Linear insisted Karmil owed him a further $300, and told her he would hold her hostage until he got the money. He struck Karmil in the face and demanded sex. Fearful of being hit again, Karmil consented to oral and vaginal intercourse with Linear.
Later, Linear drove Karmil to her apartment and told her she had until the end of the day to come up with the money she owed him. Karmil called her grandparents who told her they would take her in if she would agree to go into drug treatment. She spent that night with her grandparents at a motel, but changed her mind the next morning and returned home.
Once home, she and Hatch had sex. She then went to the local Fred Meyer store, where she had sex with a customer in exchange for "[t]hirty dollars, a sleeve of crackers, two cheese sticks, some salami, and a Diet Coke."
Karmil and Hatch spent that night at her cousin's house, where she engaged in consensual sex with another man.
Early the next morning, Linear returned to Karmil's apartment. Despite Hatch's presence, Linear hit Karmil three times in the face and took her back to the motel. Karmil did not even consider refusing to go with Linear for fear of being beaten again.
At trial, the manager of the motel testified that Linear was registered at the motel during the time in question.
Once in the motel room, Linear ordered Karmil to remove her clothes and get on her hands and knees on the bed, telling her, "We can do this the easy way or the hard way." Linear ordered her to perform oral sex on him, and then stuck his finger in her vagina. He became upset when he found she was bleeding and demanded that she get a washcloth and clean herself up.
When she resumed her position on her hands and knees, Linear commenced having anal sex with her. Karmil began crying, and Linear demanded to know why. When she said, "Because I don't want to be doing this," he replied, "I know."
Karmil began experiencing excruciating pain and started screaming. Linear told her to shut up and "be a big girl." Karmil continued to cry out, screaming Linear's name, and begging him to stop. Eventually, he did. He then ordered her to take a shower and wash herself well.
That same morning, Rose Smith and Edna Reed, had gone to Karmil's apartment to visit Hatch. Rose Smith was Hatch's older cousin. Edna Reed had never met Hatch before. After spending some time at the apartment, the three set out in search of drugs and drove to the motel where Linear was staying. Rose explained to Edna that "her cousin's girlfriend is there, and she's kind of in trouble." Hatch remained in the car, while the two women knocked on the motel room door.
On entering, they encountered Karmil. Karmil was crying and had bruises and red marks on her face. Reed later described her as being childlike and distraught. Linear was lying on the bed. Reed bought twenty dollars worth of crack and returned to the car. Smith remained behind.
Smith thought Karmil looked scared and might be in trouble. She concocted a ruse to get Karmil out of the room, telling Linear that she needed Karmil to baby-sit for her. Linear told Smith that Karmil could not leave, as he was holding her hostage. Smith was eventually able to get Karmil out of the room by promising Linear she would return Karmil to him along with some cash.
Once in the car, Karmil told Reed, Smith, and Hatch that Linear had raped her. She was in such pain that she could not sit, and lay on the back seat with her head on Reed's lap. Reed was so upset by what Karmil told them had happened that she began to cry. The two older women decided that Karmil needed medical attention and drove her to a hospital.
At the hospital, Karmil told Barbara Haner, the nurse practitioner for the assault and abuse center, how she had been anally raped at the motel, and gave her a description of Linear. Haner noted bruising and redness on Karmil's face which became notably more pronounced during the examination. Karmil's anus was "markedly traumatic" and painful, with a "full thickness laceration." An emergency room doctor attempted unsuccessfully to suture the torn tissue. Haner described the anal injury as significant, and noted that it appeared to have been inflicted only hours before. The wound was so severe that Karmil had difficulty urinating. Three days later, Haner fitted Karmil with a catheter. During a follow-up visit ten days later, Haner found that the fissure had still not fully closed. Following her initial examination, Haner called 911, and an Everett police officer arrived at the hospital to interview Karmil.
The next day, Detective Karen Kowalchyk of the Everett Police Department's special assault unit attempted to contact Karmil. When she was unable to reach her by phone, she called Karmil's grandmother. The grandmother was uncooperative and told the detective that she had advised Karmil not to pursue charges against Linear. Kowalchyk was eventually able to speak with Karmil, who by then was at a treatment center in Spokane. Karmil confirmed that she wanted to press charges. Kowalchyk presented Karmil with a photomontage, and Karmil picked out Linear's picture.
Kowalchyk interviewed Linear twice. He told her that he knew Karmil slightly. When Kowalchyk asked if he had ever had sexual relations with Karmil, Linear said that she had once performed oral sex on him as "a favor from a friend." He denied any other sexual contact, and further denied seeing or speaking with Karmil since the traffic stop. The detective asked him why his number showed up on Karmil's cell phone records, especially on December 6 (the date Karmil was anally assaulted, and was treated at the hospital). Linear hesitated, and explained that he had called to speak with Hatch.
When Kowalchyk asked if any personnel at the motel might have seen Karmil there, he told her that lots of women went in and out of his room, and that one girl named Lucy looked like Karmil.
Linear was charged with first and second degree rape, taking a motor vehicle, and failure to register as a sex offender. Prior to trial he pled guilty to the failure to register count.
In order to corroborate Karmil's accusations of anal rape, the State sought to admit statements Linear made to Kowalchyk in which he discussed prior instances of consensual anal sex with other women. The State noted that Linear denied all sexual contact with Karmil other than the single incident of oral sex. "[A]nal sex is probably an aberrant behavior that most folks don't engage in and the defendant is admitting to some of that. . . . So we'd be offering that portion of the statement."
Linear's attorney objected, arguing that the statements were impermissible under ER 404(b). He argued that Linear's sexual acts with other women were not relevant to what occurred between Linear and Karmil, and that the statements were highly prejudicial and should not be admitted.
The court ruled that the statements were probative and relevant to the extent that Linear did engage in anal sex at times, and that the evidence would not be prejudicial.
THE COURT: I think it's probative. We're not talking about illegal acts or bad acts. I don't know if it's aberrant or not. It's probative to the extent that he does engage in that type of sex at times and the allegations that he did on the date charged. That meets the definition of probative: It tends to prove something material.
The Court's ruling would be it is relevant and the probative value exceeds any prejudicial value, and I don't see any unfair prejudicial effect. So the State will be entitled to go into that.
Defense counsel did not move to limit evidence of prior sexual activity between Linear and Karmil.
At trial, under questioning by the prosecutor, detective Kowalchyk testified as follows:
Q Did you ask the defendant a series of questions regarding whether he ever engaged in anal sex or things of that nature?
A I did.
Q Could you describe that for us and the defendant's responses.
A I asked him if he was into anal sex, and he said it depends. He said a girl has to ask him. My response to that was I couldn't remember too many girls asking for anal sex. He shrugged at that point. I asked if he used lubricant or if he did it natural. And, again, he said it depends. When asked what that meant, he said sometimes the girls just put it in themselves. He then said he gets more mad because it gets messy. I asked if that was because he gets poop on his penis, and he said, no, is more messy during.
Q Now, was there some discussion with — between yourself and Mr. Linear about the size of his genitals or whether that might have any impact on whether a woman was having — when it would hurt a woman when he was having anal sex with her or not?
A Well, I asked if the girls liked anal sex because I commented that if he was large, that — like I understood from Danielle — that some girls might complain in the beginning that it hurts. His response to that was that sometimes they say it hurts, but once they get in the mood, it's O.K. And he continued that when they are trying it for the first time, it could hurt too bad and he has to stop.
Linear was found guilty of first degree rape and taking a motor vehicle, acquitted of second degree rape, but convicted of the lesser included crime of third degree rape.
Standard of Review
We review a trial court's decision on the admissibility of evidence for abuse of discretion. Abuse of discretion occurs where the trial court's action is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. If evidence was admitted in error, we must determine within reasonable probabilities whether the outcome of the trial would have been different if the error had not occurred.
State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
Olver v. Fowler, 161 Wn.2d 655, 663, 168 P.3d 348 (2007).
State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982).
Discussion
Admissibility
ER 401 defines relevant evidence as evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. The rule requires a minimal logical relevance to make the existence of a fact more or less probable. Under ER 402, evidence which is not relevant is not admissible.
State v. Stenson, 132 Wn.2d 668, 701-02, 940 P.2d 1239 (1997).
State v. Bebb, 44 Wn. App. 803, 814, 723 P.2d 512 (1986), aff'd, 108 Wn.2d 515, 740 P.2d 829 (1987).
ER 404(b) bars the introduction of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith. In determining whether evidence of other crimes, wrongs, or acts was properly admitted under ER 404(b), the court first must analyze whether the evidence is logically relevant to prove an "`essential ingredient'" of the charged crime rather than simply to show the defendant had a propensity to act in a certain manner which he followed on that particular occasion. Second, the court must determine whether the evidence of other criminal acts is legally relevant, i.e., whether the probative value of the evidence is substantially outweighed by its prejudicial effect. Third, if the evidence is admitted, the court must limit the purpose for which it may be considered by the jury. In doubtful cases the scale should be tipped in favor of the defendant and exclusion of the evidence. The trial court errs when it does not conduct the above analysis on the record.
Carson v. Fine, 123 Wn.2d 206, 221, 867, P.2d 610 (1994).
State v. Bowen, 48 Wn. App. 187, 190, 738 P.2d 316 (1987) (quoting State v. Saltarelli, 98 Wn.2d 358, 362-63, 655 P.2d 697 (1982)).
Bowen, 48 Wn. App. at 190.
Bowen, 48 Wn. App. at 190.
Bowen, 48 Wn. App. at 190-91.
Bowen, 48 Wn. App. at 190-91.
In the absence of any explanation by the trial court or the prosecution as to how such evidence is logically relevant, the evidence demonstrates little more than a general propensity to commit particular acts. In no case may evidence be admitted to prove the character of the accused in order to show that he acted in conformity therewith.
Bowen, 48 Wn. App. at 191.
Saltarelli, 98 Wn.2d at 362.
The rule restricts even a defendant's own references to prior acts in a confession or admission.
5D Karl B. Tegland Courtroom Handbook on Washington Evidence 222-23 (2007) (citing State v. Perrett, 86 Wn. App. 312, 936 P.2d 426 (1997)).
The trial court apparently construed ER 404(b) as applying only to criminal acts, stating, "We're not talking about illegal acts or bad acts." However, our Supreme Court has held that the rule bars the admission of more than acts that are illegal, unpopular, or disgraceful, but bars evidence of any other acts offered to show a person acted in conformity therewith.
State v. Everybodytalksabout, 145, Wn.2d 456, 466-67, 39 P.3d 294 (2002).
ER 404(b) allows the introduction of evidence of prior acts for other purposes, such as proof of motive, opportunity, intent, preparation, plan, or accident. The State conceded in its brief that Linear's statements were not admissible for such purposes. At oral argument, the State argued that the evidence was properly admitted to establish identity. We disagree, but in any event will not consider a new argument raised for the first time at oral argument.
Instead, the State relies on State v. Jones to bolster its argument that the detective's testimony was properly admitted. Its reliance is misplaced. The issue in Jones was the corroboration of an act of sexual abuse as a prerequisite to the admission of the hearsay statement of a child witness under RCW 9A.44.120, the child victim hearsay statute. Under the statute, a child's description of an "act of sexual contact performed with or on the child by another" is admissible as hearsay evidence in a criminal case if the statement bears sufficient indicia of reliability, and, when the child is unavailable as a witness, there is corroborative evidence of the act.
112 Wn.2d 488, 772 P.2d 496 (1989).
RCW 9A.44.120; Jones, 112 Wn.2d at 489-90.
The victim in Jones was Jones's four year old daughter. The victim told several people of sex acts her father had perpetrated on her, particularly that Jones had her urinate on him. The State produced evidence that Jones found sexual gratification in having women or girls urinate on him. Two women testified that Jones had requested they urinate on him, and a third testified that, as a young girl, she had urinated in Jones's mouth at his request.
Jones, 112 Wn.2d at 490.
Jones, 112 Wn.2d at 491.
Jones, 112 Wn.2d at 491-92.
Jones, 112 Wn.2d at 492.
The court found the evidence of Jones's previous sexual experiences corroborative of the victim's testimony. The court noted that the general purpose of the child victim hearsay statute is directed at alleviating the difficult problems of proof that often frustrate prosecutions for child sexual abuse. But by permitting into evidence only those hearsay allegations that can be substantiated by other evidence, the corroboration requirement reduces the risk of erroneous conviction brought about by emotional appeals. The court took care to emphasize the limited scope of its holding.
Jones, 112 Wn.2d at 498.
Jones, 112 Wn.2d at 493-94.
Jones, 112 Wn.2d at 494-95.
Jones, 112 Wn.2d at 498.
The present case is entirely distinguishable from Jones. There is no child victim, thus no implication of the child victim hearsay statute, and no statutory requirement for corroboration. The required corroboration of Jones has no bearing on the limitations imposed in the present case by ER 404(b).
The evidence of Linear's prior consensual anal sex with other women was improperly admitted. The evidence was not logically relevant to prove an essential ingredient of the charged crime. Linear did not generally deny engaging in anal sex, thus the statements had no relevance to the charges against him.
Rather, the evidence merely demonstrated a general propensity to perform anal sex, precisely the purpose forbidden under ER 404(b). The issue at trial was whether Linear raped Karmil, not whether Linear had a predilection for a particular form of sexual gratification. Evidence that Linear engaged in consensual anal sex with other women was not admissible to prove an essential ingredient of the crime of rape.
Bowen, 48 Wn. App. at 191.
Having determined that admission of Linear's statement was in error, we must next determine whether the error was harmless, and whether within reasonable probabilities the outcome of the trial would have been different if the error had not occurred. A 404(b) error is harmless if the evidence is of minor significance compared to the evidence as a whole.
State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984) (citing Robtoy, 98 Wn.2d at 44).
State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
We hold that the admission was harmless. Karmil herself testified that she had engaged in consensual anal sex with Linear, as well as with her boyfriend on a regular basis. There was also extensive testimony regarding anal sex by Haner, and a technician from the state crime lab. Despite that testimony, the State did not reference Linear's discussion of anal sex in closing argument, nor did Linear's attorney.
Linear was registered at the motel, and both Reed and Smith testified that they saw him there with Karmil. As soon as she was safely away from Linear, Karmil told Reed and Smith that Linear had raped her, and told the same story to Haner. The defense did not argue that some third party was responsible for Karmil's injuries, relying instead on impugning the credibility of the victim and witnesses.
Karmil was in debilitating pain when she arrived at the hospital. While she had numerous sex partners in the days prior to her admission to the hospital, there was no indication she sustained any painful injuries as a result of those contacts, nor was there any evidence that someone other than Linear had inflicted the injuries.
Karmil's story was corroborated by the other witnesses, while Linear's was not. The defense implied that Karmil's claims against Linear, and Reed and Smith's testimony, were fanciful. But Linear presented no evidence suggesting a motive for Karmil to falsely accuse him, much less for Reed and Smith to collude with her. Indeed, Karmil proceeded over her grandmother's objections.
The jury was presented with ample, untainted evidence and testimony by which it could conclude that Linear was guilty of rape. Given the nature of the testimony about the rape, and the broad-ranging discussion of anal sex by numerous witnesses, including Karmil's own discussion of consensual anal sex, the detective's testimony was of minor significance compared to the evidence as a whole, and the outcome of the trial would not, within reasonable probabilities, have been different had the error not occurred.
AFFIRMED.
WE CONCUR: