State v. Chavez

• Decision Date: 07 September 2017
• Docket Number: No. 34334-1-III,34334-1-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. EDUARDO CHAVEZ, Appellant.

STATE OF WASHINGTON, Respondent, v. EDUARDO CHAVEZ, Appellant.

No. 34334-1-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

September 7, 2017

UNPUBLISHED OPINION

KORSMO, J. — Eduardo Chavez appeals from a conviction for second degree rape, arguing that the trial court erred in excluding evidence concerning the young victim's reputation for honesty in her school community. Since the defense did not establish a proper foundation for the testimony, the trial court did not abuse its discretion by excluding the proposed evidence. The conviction is affirmed.

FACTS

The prosecutor filed a charge of second degree rape predicated on A.S.'s inability to consent due to incapacity. The charge arose from an incident occurring after 15-year-old A.S. ran away from her home in Milton-Freewater, Oregon following a dispute with her father. She eventually ended up in the home of Jesus Torres in Walla Walla where she consumed liquor and smoked marijuana.¹ The youth became quite intoxicated and shaved her eyebrows and cut her hair in an effort to change her appearance. Torres, a "known sex offender," later walked her to the nearby home of Eduardo Chavez so that A.S. had a place to sleep. Mr. Chavez would soon turn 17.

Chavez provided A.S. a bed in a room where two people were sleeping in another bed; he left to sleep elsewhere in the house. A.S. awoke the next morning with her shirt pushed up and her jeans twisted around her ankles and unzipped; her hips felt sore. She was still very intoxicated. Torres arrived at the house and gave A.S. a ride to her boyfriend's house in Milton-Freewater. During the ride, the two younger girls (M.B. and A.B.) noted that A.S. had hickeys on her neck, a fact that embarrassed A.S. She commented that she may have been raped.

After her father picked her up from her boyfriend's home and returned her to her home, A.S. got into a fight with her grandmother and left the house again. This time she went to the nearby home of her friend, S.B. There she explained that she thought she might have been raped. S.B. reported the comment to her mother, who in turn called A.S.'s grandmother. The police were called and A.S. was directed to go to the hospital the following morning to undergo a sexual assault exam.

DNA belonging to Mr. Chavez was recovered from A.S. He initially denied that police would find his DNA, but after being told they had done so, Mr. Chavez told detectives that the couple had engaged in intercourse at A.S.'s suggestion and with her consent. He later explained to jurors that it was common for girls to take their clothes off and throw themselves at him when they first met him. A 14-year-old friend, M.R.-G., testified that she was at Chavez's home and could hear the couple engaging in sex and that the girl was "moaning."²

A.S. was a freshman at "Mac-Hi" at the time of trial. Report of Proceedings (RP) at 154. She previously had spent part of her eighth grade year at Weston Middle School. Before that she had been in school at Central and at Ferndale. S.B., who was one school year younger, had been in the same schools with A.S. during some of those years. RP at 195-197. A.S. testified that she drank "a lot" of vodka and did not remember engaging in sexual intercourse, let alone consenting to it. Her grandmother testified that even at the hospital, a day after the incident, A.S. "reeked of alcohol," "appeared to be in a fog," and acted like she was hungover. RP at 143-144, 149.

During the testimony of S.B., the defense used cross-examination to attack the credibility of A.S. S.B. told jurors that A.S. "smiled" when she disclosed she thought shehad been raped. S.B. also testified that A.S. had told several people at a skateboard park that she had been raped; A.S. denied having done so. The defense also attempted to have S.B. opine concerning A.S.'s reputation for honesty at school.

S.B. is a year behind A.S. in school and had attended the same schools for several years, although A.S. had only been at Weston for part of her eighth grade year. The following exchange between S.B. and defense counsel occurred:

Q Okay. And you have gone to school with her off and on since at least second grade down at Ferndale?

A Yes.

Q And then you went to school with her at Central?

A Yes.

Q And then you went to school with her down at Weston?

A Yes.

Q And during that time if you added up all the students in all the grades that you had been with her, you have been around probably at least a hundred different people that had interaction with you and her; isn't that right?

A Yes.

Q And were you aware of her reputation in the school community—

RP at 298-299. The prosecutor objected and an extended discussion took place outside the presence of the jury at which both sides questioned S.B. After hearing the testimony and argument of the parties, the court ruled:

The Court finds that the relevant factors of the frequency of contact between members of the community, the amount of time known in the community and the role the person played in the community and the number of people, that that foundation has not been met and that that opinion statement with reference to truthfulness and veracity will not come in.

. . . .The evidence that came in, counsel, does not convince me that the community has been defined and the foundation has not been laid.

RP at 316.

The defense renewed its questioning of S.B., but the trial court remained unconvinced that a foundation had been established, so the cross-examination moved on to other matters. The cross-examination concluded with S.B. indicating that she had trouble believing A.S. RP at 326.

The parties argued the case on competing theories of the respective credibility of A.S. and Mr. Chavez. The jury returned a verdict of guilty. After imposition of a standard range sentence, Mr. Chavez timely appealed to this court.

ANALYSIS

The sole issue³ presented is whether the trial court erred in declining to permit S.B. to state the reputation of A.S. in the school community. Although the court could have reached a different result on these facts, we cannot hold that the court abused its discretion.

This court reviews the trial court's evidentiary rulings for abuse of discretion. State v. Guloy, 104 Wn.2d 412, 429-430, 705 P.2d 1182 (1985). The foundation for admission of ER 608 reputation evidence likewise is reviewed for abuse of discretion. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

ER 608(b) provides in essence that a party may not attack the credibility of a witness by extrinsic evidence of prior conduct, but the witness may be cross-examined as to her character for truthfulness or untruthfulness. ER 608(a) similarly allows reputation testimony concerning a witness's character trait of truthfulness or untruthfulness. To offer such testimony, the proponent of the reputation testimony generally must satisfy a five factor test. State v. Lord, 117 Wn.2d 829, 873, 822 P.2d 177 (1991). The five elements are:

"The first element is the foundation for the testimony—the knowledge of the reputation of the witness attacked. Second, the impeaching testimony must be limited to the witness's reputation for truth and veracity and may not relate to the witness's general, overall reputation. Third, the questions must be confined to the reputation of the witness in his community . . . Fourth, the reputation at issue must not be remote in time from the time of the trial. Finally, the belief of the witness must be based upon the reputation to which he has testified and not upon his individual opinion."

Id. (quoting 5A KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 231, at 202-204 (3d ed. 1989)).

In the context of defining "community" for purposes of ER 608, the court discussed that standard two years later in Land.

A party seeking to admit evidence bears the burden of establishing a foundation for that evidence. To establish a valid community, the party seeking to admit the reputation evidence must show that the community is both neutral and general. Some relevant factors might include the frequency of contact between members of the community, the amount of time a person is known in the community, the role a person plays in the community, and the number of people in the community. The decision as to whether the foundation for a valid community has been established rests within the proper discretion of the trial court. A trial court abuses its discretion when it acts in a manner that is manifestly unreasonable or based on untenable grounds or reasons.

121 Wn.2d at 500 (citations omitted). Land held that the trial court had not abused its discretion in permitting reputation testimony based on a work community of wood shook manufacturing. Id. at 500-501. The court also ruled that reputation evidence was no longer to be limited to the community in which the witness lived. Id.

Here, the trial court applied the established Land test and concluded Mr. Chavez had not satisfied the foundation for admitting the proposed ER 608(a) testimony. Mr. Chavez argues here that the trial court determined, wrongfully in his view, that a school could not be a community. However, the record does not read as Mr. Chavez argues it does. Trial counsel attempted to bait the court into ruling that a school was not a community, but the trial judge declined to bite on the argument. RP 321-322.

As noted previously, the trial court appeared to accept the notion that a school could constitute a community.⁴ RP 316. Rather, the court found that the Land factors had not been satisfied:

The Court finds that the relevant factors of the frequency of contact between members of the community, the amount of time known in the community and the role the person played in the community and the number of people, that that foundation has not been met.

RP at 316.

This was a...