State v. Bartch

• Docket Number: 83386-3-I
• Decision Date: 30 October 2023
• Parties: THE STATE OF WASHINGTON, Respondent, v. BROGAN R. BARTCH, Appellant.
• Court: Court of Appeals of Washington

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THE STATE OF WASHINGTON, Respondent,
v.
BROGAN R. BARTCH, Appellant.

No. 83386-3-I

Court of Appeals of Washington, Division 1

October 30, 2023

BIRK, J.

Brogan Bartch appeals a conviction for indecent liberties, based on a charge that he had sexual contact with S.P. while she was incapable of consent. We agree with Bartch that the trial court erred by (1) admitting evidence that Bartch had made prior sexual advances toward S.P., (2) excluding under the rape shield statute evidence offered to show dishonesty by S.P., and (3) excluding prior inconsistent statements by a government witness. The first error requires reversal, and we reach the latter two because of their likelihood of arising in the event of retrial. We reverse Bartch's conviction and remand.

I

In 2018, S.P. and Bartch were among a group that socialized together several times during the summer. S.P. and Bartch privately communicated "every now and then" during this period, through Snapchat.^[1] On one occasion, S.P. sent

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Bartch a Snapchat of herself sunbathing in a swimsuit with a message asking if he was still with a mutual friend, with the intent of making plans for the evening. On June 26, 2018, S.P. attended a gathering at Bartch's house with Bartch, James McCool, and Ashlyn Johnson.

After arriving, S.P. and Johnson^[2] began drinking vodka. Testimony varied about the amount of alcohol S.P. drank and the extent of her intoxication. S.P. testified she did not remember how much she drank, but she remembered that she had estimated in her interview with detectives that she had consumed five to seven shots of liquor.

Johnson testified she observed Bartch touching S.P.'s back and generally being near S.P. Bartch testified that after the drinking game ended he sat on a workout bench next to the table they had been playing at, S.P. straddled the bench facing him, she scratched his back under his shirt, and they kissed. He testified she consented to going to bed with him later. S.P. testified she had no memory of these events.

Johnson testified she and Bartch guided S.P. to Bartch's bedroom to go to sleep, where S.P. "passed out almost immediately." Johnson testified she and Bartch left the room. Johnson and Bartch began talking and Bartch initiated kissing, but stopped after Johnson told Bartch she was uncomfortable. Bartch brought Johnson sweatpants and, according to Johnson, instructed her to change

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in front of him. After this, Johnson testified, Bartch "said he was going to go get water," but instead "ran into his room," where S.P. was sleeping.

Bartch testified that, when he entered his room, S.P. was sitting up in his bed and consented to him joining her, and she opened up the covers for him to do so. They engaged in consensual, mutual kissing and touching for several minutes. According to Bartch, S.P. had helped him remove some of her clothes, but Johnson started knocking on the door. Bartch said he and S.P. talked about letting Johnson in, then he unlocked the door and left the room so Johnson could talk to S.P.

Bartch said S.P. departed with Johnson with greater capacity than Johnson credited. His brother Bridger Bartch likewise testified that when she left, S.P. was not in distress. Instead, she was awake and appeared to be interacting about the same as she had earlier in the evening, when he had no concerns about her level of intoxication.

S.P. testified she did not remember how she got from the couch to the bedroom. She testified she remembered hearing the lock click and hearing Bartch's voice close to her. S.P. recalled being in and out of consciousness, and hearing banging on the door. She could not remember Bartch touching her or kissing her.

Johnson testified that, as soon as she saw Bartch go to his bedroom and lock the door, she began pounding on the door and screaming, calling out to S.P. One of Bartch's brothers came downstairs and attempted to open the door. Bartch unlocked and opened the door.

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Johnson testified S.P. was naked from the waist down and nonresponsive. Johnson testified S.P. said," 'Something's wrong.'" Johnson asked," 'Did he rape you?'" S.P. responded," 'He raped me'" and" 'I want to die.' "

Johnson called her sister, Breanna Johnson, who picked her and S.P. up. Breanna Johnson testified she arrived at Bartch's house at approximately 3:30 a.m. Johnson and Breanna Johnson took S.P. to the police station. Initially they drove to a police station in Monroe. Afterwards, they drove to the Kirkland Police Department. A Kirkland police detective testified he was dispatched at 4:43 a.m. to meet them in the lobby of the Kirkland police station. S.P. and Johnson provided statements to the Kirkland police the morning of June 27, 2018.

On May 8, 2019, the State charged Bartch with one count of indecent liberties. This required the State to prove that S.P. was "incapable of consent by reason of being mentally incapacitated and physically helpless." Bartch argued S.P. consented to sexual contact both through flirtatious behavior leading up to the sexual contact in the bedroom, and by expressly consenting. Further, Bartch argued he reasonably believed S.P. was capable of consenting. The jury returned a guilty verdict. Bartch appeals.^[3]

II

The State offered evidence of two prior instances in which Bartch made sexual advances towards S.P. First, the State put on evidence that S.P. previously

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attended a party at Bartch's residence. In cross-examination apparently directed to the events of that night, S.P. identified it as occurring in the summer of 2017. S.P. needed to get something from her car. Bartch accompanied her. When S.P. bent over to reach into her car, Bartch slapped her twice on the backside. The two of them walked back to Bartch's house, and he asked S.P. if he could perform oral sex on her on the porch. S.P. said no. S.P. testified she was not interested in Bartch, and it seemed to her he was "begging" for sex. Second, later the same night, when the party was "toning down," Bartch asked S.P. if she wanted to "sleep with him." S.P. again declined.

The trial court admitted evidence of these other acts under Washington's "lustful disposition" case law. Generally, ER 404(b) prohibits evidence of "other crimes, wrongs, or acts" to prove the character of a person to show the person acted in conformity with that character, that is, propensity. State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). But the rule permits evidence of other acts for purposes other than propensity. ER 404(b). Historically one such purpose was to show "lustful disposition" towards a specific person in sexual assault cases. Washington decisions had permitted evidence of other acts by the defendant toward the same victim "to demonstrate 'the lustful inclination of the defendant toward the [victim], which in turn makes it more probable that the defendant committed the offense charged' because it 'evidences a sexual desire for the particular [victim].'" State v. Crossguns, 199 Wn.2d 282, 291,505 P.3d 529 (2022) (alterations in original) (quoting State v. Thorne, 43 Wn.2d 47, 60, 260 P.2d 331 (1953), abrogated by Crossguns). Lustful disposition was the only purpose the

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State identified supporting admission of Bartch's prior advances, and the only purpose relied on by the trial court in allowing the evidence.

After trial in this matter, Crossguns held that the term" 'lustful disposition' must be rejected and that it may no longer be cited as a distinct purpose for admitting evidence under ER 404(b)." 199 Wn.2d at 290. The court explained the "term 'lustful disposition' perpetuates outdated rape myths that sexual assault . . . results from an uncontrollable sexual urge or a sexual need that is not met," instead of acknowledging such a crime as an act of violence "that uses unwanted sexual contact as the weapon." Id. at 291. The court held that if a trial court admits other acts, even "in part, under the anachronistic term of 'lustful disposition,'" it commits error. Id. at 296.

Crossguns mandates a conclusion of error here. We review evidentiary rulings for an abuse of discretion. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). "There is an abuse of discretion when the trial court's decision is manifestly unreasonable or based upon untenable grounds or reasons." State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997). A trial court necessarily abuses its discretion if the ruling is based on erroneous interpretation of the law. State v. Gaines, 16 Wn.App. 2d 52, 57, 479 P.3d 735 (2021). Because the trial court allowed the evidence based on an interpretation of the law that Crossguns has since abrogated, admitting the evidence was an abuse of discretion.

Despite Crossguns's abrogation of the lustful disposition doctrine, the State argues the evidence here was "properly admitted for other, permissible purposes." Crossguns, 199 Wn.2d at 296. We may consider "other proper bases on which

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the trial court's admission of evidence may be sustained." State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995). In holding the term "lustful disposition" no longer serves as a distinct purpose for admitting evidence under ER 404(b), Crossguns did not "disturb our precedent" permitting evidence of "collateral misconduct relating to a specific victim for appropriate purposes" under the rule. 199 Wn.2d at 290. In Crossguns, appropriate purposes were evident. The State charged Crossguns with second degree rape of a child and second degree child molestation of his minor daughter R.G.M., with aggravators of using a position of trust and an ongoing pattern of sexual abuse of the same victim. Id. at 286. The State offered evidence Crossguns had regularly abused R.G.M. starting months before the charged acts, "as often as every other night." Id. at 287. "[E]vidence of prior sexual misconduct may be relevant and admissible in cases . . . that involve sexual abuse...