State v. Cosden, 2332-II
| Decision Date | 20 July 1977 |
| Docket Number | No. 2332-II,2332-II |
| Citation | 568 P.2d 802,18 Wn.App. 213 |
| Parties | The STATE of Washington, Respondent, v. William E. COSDEN, Jr., Appellant. |
| Court | Washington Court of Appeals |
Don W. Taylor and Clifford Stilz of Fristoe, Taylor & Schultz, Olympia, for appellant.
Patrick D. Sutherland, Pros. Atty., George Darkenwald, Deputy Pros. Atty., Olympia, for respondent.
Defendant William Cosden, Jr., appeals from a conviction of first-degree rape under RCW 9.79.170, the relatively new rape statute. The principal issue on appeal is whether prejudicial error occurred when the trial court excluded evidence offered by the defendant that the complaining witness had engaged in sexual intercourse with another man approximately 4 days prior to the alleged rape. We hold the exclusion was not reversible error under the facts and circumstances of this case.
The facts concerning the alleged rape are as follows. Defendant and the complaining witness encountered one another at the Rest Over truck stop in rural Thurston County in the early morning hours of November 30, 1975. They had not previously met. The witness was en route to her rural home, driving her parents' four-wheel-drive Dodge pickup truck, and had stopped for gas at the station. There was heavy ice and snow on the roads which made driving extremely difficult. Defendant, an employee of the station, was engaged that evening in rendering assistance to vehicles which had difficulty because of adverse road conditions.
At the station, defendant, who lived in the vicinity of the witness, offered to follow her home in his 1961 one-ton Dodge truck in the event she had difficulty driving. She declined the offer. He testified she accepted the offer. Defendant did follow her as she left the station.
After leaving the truck stop, the witness drove east on Lathrop Road approximately a mile and a half to the intersection of Case Road, where her vehicle began to slide into the ditch. She got out to put it into four-wheel drive, and was surprised to see defendant come up behind her in his truck. He again offered assistance. She claimed the offer was refused. He claimed he assisted in placing her vehicle in four-wheel drive.
Testimony of the two parties was in sharp dispute as to events after leaving the intersection of Lathrop and Case Roads. Both vehicles proceeded south on Case Road. Defendant testified that the complaining witness stopped her vehicle in the middle of the intersection of Case Road and 101st Street, for no apparent reason. Defendant stopped behind her. She got out of her vehicle, slipped and fell on the ice, and then walked back to defendant's vehicle and told defendant she wanted to talk with him. She got into his truck and asked him if they could go some place where they could be alone. He then told of driving to an isolated place, where her attempts to seduce him were unsuccessful because he became psychologically impotent.
On the other hand, the victim's version told of violence culminating in rape. She testified that she saw the lights of his truck following her as they left the Lathrop-Case Road intersection to proceed south on Case Road. Approximately 1 mile south, she noticed in the rear-view mirror that defendant's truck was no longer following her. It appeared to have gone into a ditch. She backed up her vehicle to the 101st Street intersection, and left it in the middle of the intersection with the lights on and the motor running. She walked back to the truck to see if defendant needed help. Defendant asked her to drive the truck while he pushed it out of the ditch. The truck came out of the ditch without difficulty. As she started back to her vehicle, she was struck on the back of the neck and knocked to the ground. Defendant was standing over her, menacing her with a heavy rubber mallet. She was then forced into the truck, driven to an isolated place, ordered to take off all her clothes, and was raped twice during the next half hour. At one point she was choked. After making some threats, defendant finally drove her back to her vehicle. The engine was still running. She drove home, took a bath, slept for a time, and then reported the incident to the sheriff's office at about 4 a. m.
Much of the physical and scientific evidence supported the complaining witness's version of the incident. There were bruises and contusions on her body consistent with her version of violence. Sperm and hair were found on defendant's coveralls, and the hair was microscopically alike in all particulars to that of the victim. Sperm was also found on the victim's panties and panty hose. A pathologist from the hospital where the victim was examined testified that specimens taken from the victim's vagina on the morning of November 30, 1975 and preserved on slides showed evidence of sperm. This witness concluded that intercourse had taken place within 12 hours prior to obtaining the specimens. All of this evidence tended to dispute defendant's claim that no intercourse had occurred.
Furthermore, other witnesses observed the victim's car at the intersection of Case Road and 101st Street, with lights on and engine running. The victim also led officers to the scene of the alleged rape where they found certain items which she had thrown from the window of defendant's truck during the incident.
On the other hand, defendant's expert medical witness, Dr. Gale Wilson, who viewed the same slides on which the State's expert opinion was based, testified that the slides contained only "very, very occasional sperm." This indicated to him that intercourse must have taken place more than 12 hours prior to taking the smears. The doctor further testified that sperm may remain in the vagina for several days after intercourse. On cross-examination, Dr. Wilson conceded the minute number of sperm could have been consistent with a more recent sexual contact if a douche or thorough washing had taken place prior to obtaining the smears.
To corroborate Dr. Wilson's testimony, and to explain away the presence of sperm found in the victim, defendant offered at a pretrial hearing to prove through the victim's own testimony that she had engaged in sexual intercourse with another man on November 26, 1975, some 4 days prior to the alleged rape. Defendant claims this offered evidence was directly relevant to the material issue of whether or not defendant had engaged in intercourse with the victim. The trial court ruled the evidence inadmissible, concluding that RCW 9.79.150 1 allowed the evidence under limited circumstances only when relevant to the issue of consent. It is our view that the reasons given by the trial court for rejecting the evidence are erroneous, but refusal to allow the evidence was not an abuse of discretion under the facts and circumstances of this case.
The trial court assumed, incorrectly we think, that evidence of prior sexual behavior of a prosecuting witness in a rape case may be allowed under RCW 9.79.150 only on the issue of consent, and within the guidelines prescribed in subsection (d). The statute deals specifically with admissibility of prior sexual behavior of a rape victim on the issue of consent, allowing the evidence under narrowly defined circumstances within the discretion of the trial judge. Such prior sexual behavior is rendered inadmissible under all circumstances to attack credibility of the victim. To this extent the statute was both a codification and a clarification of the prior case law which had considered the relevancy of this type of evidence to both credibility and consent. State v. Geer, 13 Wash.App. 71, 533 P.2d 389 (1975); State v. Allen, 66 Wash.2d 641, 404 P.2d 18 (1965). The purpose of the statute, like the rationale of the prior cases dealing with this subject, is to encourage rape victims to prosecute and eliminate prejudicial evidence which often has little, if any, relevance on the issues for which it is usually offered, namely, credibility or consent. State v. Geer, supra.
But neither the prior case law nor the statute purports to establish a blanket exclusion where the purpose of the evidence is highly relevant to...
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