State v. Carver

Decision Date19 March 1984
Docket NumberNo. 5864-2-II,5864-2-II
Citation37 Wn.App. 122,678 P.2d 842
CourtWashington Court of Appeals
PartiesThe STATE of Washington, Respondent, v. Charles Russell CARVER, Appellant.

Clifford F. Cordes, III, Court Appointed Atty., Olympia, for appellant.

Chris Pomeroy, Deputy Pros. Atty., Olympia, for respondent.

REED, Judge.

Defendant, Charles Russell Carver, was convicted of one count of second degree statutory rape and one count of indecent liberties. Defendant assigns error to several pretrial and trial rulings. We reverse and remand for a new trial on two grounds. First, the trial court improperly relied upon the rape shield statute, RCW 9A.44.020, to exclude evidence of prior sexual abuse of the victims. Second, the trial court improperly excluded impeachment evidence in the form of one victim's prior inconsistent statement.

Defendant was charged with one count of indecent liberties with his stepdaughter Kimberly and with one count of second degree statutory rape for having engaged inter alia in anal intercourse with his stepdaughter Lynn.

Prior to trial, the defendant sought permission to introduce at trial evidence of similar sexual abuse of the victims by their grandfather and a friend. The evidence was sought, not to impugn the character of the victims, but only to show that they had an independent familiarity with certain sexual acts and an ability to describe them because they had suffered similar abuse before.

The defendant argued that the evidence was necessary to rebut the inference that the only way two young girls would have knowledge of such sexual matters was because the defendant had sexually abused them as charged. The court refused to admit the evidence, believing its only purpose was to attack the credibility of the victims, thus rendering it inadmissible under the rape shield statute.

First, we disagree with the trial court's conclusion that the rape shield statute applies. The purpose of the statute is to encourage rape victims to prosecute, and to eliminate prejudicial evidence of prior sexual conduct of a victim which often has little, if any, relevance on the issues for which it is usually offered, namely, credibility or consent. State v. Hudlow, 99 Wash.2d 1, 659 P.2d 514 (1983); State v. Cosden, 18 Wash.App. 213, 218, 568 P.2d 802 (1977), citing State v. Geer, 13 Wash.App. 71, 533 P.2d 389 (1975). However, the statute was not intended to establish a blanket exclusion of evidence which is relevant to other issues which may arise in prosecutions for rape. State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962); State v. Cosden, supra.

The evidence proffered in this case does not fit within the concepts and purposes of the rape shield statute. First, the evidence sought to be admitted here was prior sexual abuse, not misconduct, of a victim. Added to this is the fact that the victims were young girls who were incapable of consenting to such acts. Under these circumstances the evidence is not prejudicial to the victims nor does it tend to discourage prosecution. Merely because the evidence pertains to a sexual experience does not mean we must strain to fit it into the special confines of the rape shield statute. Rather, we must apply general evidentiary principles of relevance, probative value and prejudice.

Using this approach, our first inquiry is whether the evidence of prior sexual abuse was relevant. Defendant offered the evidence, not to attack the character of the little girls, but rather to rebut the inference they would not know about such sexual acts unless they had experienced them with defendant. Without the evidence the jury logically could draw the inference that they were conversant with such things only because defendant was guilty as charged. Consequently, the evidence was extremely relevant to defendant's defense, and its exclusion unfairly curtailed defendant's ability to present a logical explanation for the victims' testimony.

Nor do we think the relevance of this evidence is outweighed by the danger of unfair prejudice. We fail to see how prior sexual abuse visited upon very young girls will tend to confuse the issues, mislead the jury, or cause the jury to decide the case on an improper emotional basis. Cf. State v. Hudlow, supra. The evidence was improperly excluded.

The trial court's apparent concern over application of the rape shield statute resulted in another reversible error at trial. After Lynn's testimony, the defense moved to recall her for cross-examination as to her prior statement to investigating authorities that she had been abused by her grandfather and nobody else. The court refused to allow the inquiry on the grounds that the statement (1) was not inconsistent with her testimony, and (2) was impeachment on a collateral matter because it concerned abuse by her grandfather and not the defendant. The court also indicated its fear that permitting the inquiry would be letting in evidence by the back door which the rape shield statute had already foreclosed. These rulings were in error. Unless the interests of justice dictate otherwise, prior inconsistent statements may be used to impeach a witness. ER 613. Here, the little girl's statement that only her grandfather abused her is clearly inconsistent with her testimony that her...

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77 cases
  • Westley v. State
    • United States
    • Court of Special Appeals of Maryland
    • 2 Julio 2021
    ...was so naive sexually that she could not have fabricated the charge." 558 A.2d 706, 708 (Me. 1989) ; see also State v. Carver , 37 Wash.App. 122, 678 P.2d 842, 843-44 (1984) (holding that defendant should have been permitted to introduce evidence of prior abuse of victims described as "litt......
  • State v. Sullivan
    • United States
    • Supreme Court of Connecticut
    • 12 Mayo 1998
    ......LeClair, 83 Or.App. 121, 730 P.2d 609 (1986); Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988); State v. Carver, 37 Wash.App. 122, 678 P.2d 842, review denied, 101 Wash.2d 1019 (1984); State v. Quinn, 200 W.Va. 432, 490 S.E.2d 34 (1997). . ......
  • State v. Posey
    • United States
    • United States State Supreme Court of Washington
    • 8 Noviembre 2005
    ...prior sexual behavior is also permitted if it is offered for purposes other than to prove credibility or consent. State v. Carver, 37 Wash.App. 122, 124, 678 P.2d 842 (1984). Relevant evidence may nonetheless be excluded if "its probative value is substantially outweighed by the danger of u......
  • State v. Wilson
    • United States
    • Court of Appeals of Washington
    • 2 Abril 2013
    ...that a child has previously been sexually abused may be admissible under proper circumstances. See State v. Carver, 37 Wash.App. 122, 124, 678 P.2d 842 (1984). Such evidence, however, is still subject to exclusion under “general evidentiary principles of relevance, probative value[,] and pr......
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