State v. Cox

• Decision Date: 20 April 2021
• Docket Number: No. 37206-5-III,37206-5-III
• Citation: 17 Wash.App.2d 178,484 P.3d 529
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jacob Nathaniel COX, Appellant.

17 Wash.App.2d 178

484 P.3d 529

STATE of Washington, Respondent,

v.Jacob Nathaniel COX, Appellant.

No. 37206-5-III

Court of Appeals of Washington, Division 3.

FILED APRIL 20, 2021

Lenell Rae Nussbaum, Law Office of Lenell Nussbaum, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Appellant.

James Lyle Nagle, Walla Walla County Prosecuting Attorney, Kelly A.B. Stevenson, Walla County Prosecuting Attorney's Office, 240 W Alder St. Ste. 201, Walla Walla, WA, 99362-2807, for Respondent.

PUBLISHED OPINION

Staab, J. ¶ 1 Jacob Cox appeals his conviction for second degree rape. The incident occurred in the early morning hours at the complaining witness's house after a birthday party. The complaining witness testified that after she fell asleep in her bed, she was awakened by the defendant digitally raping her. The State presented evidence that Mr. Cox's DNA¹ was found on the complaining witness's undergarments.

¶ 2 Mr. Cox denied the accusation entirely and testified that the complaining witness was intoxicated and that he had rejected her advances. He presented expert testimony that it was possible for his DNA to be transferred to the complaining witness's underwear through innocent, non-sexual contact.

¶ 3 At trial, the court excluded defense counsel's proffered testimony on several subjects—including testimony that the complaining witness had flirted with Mr. Cox and sat on his lap during the party, that the complaining witness had been kissing other guests at her party, and that Mr. Cox had a positive reputation for sexual morality. Mr. Cox's attorney was also prevented from cross-examining the State's DNA expert on hypotheticals based on the defense witness's opinions.

¶ 4 Mr. Cox appeals, arguing that the trial court's exclusion of this evidence violated his constitutional right to present a defense. We agree and reverse.

FACTS

1. Allegations

¶ 5 The complaining witness in this case, J.R., threw herself a birthday party with about 40 guests at her residence. Defendant Jacob Cox and J.R. were former college classmates, and Mr. Cox attended the party with his fiancé.

¶ 6 J.R. drank heavily that night. J.R. testified that in the early morning hours, she vomited, and that her friends helped her to bed. When they entered J.R.’s bedroom, Mr. Cox's fiancé was already asleep on the bed. J.R.’s friend undressed her, put J.R. under the covers, and then left the room.

¶ 7 J.R. testified that a short time later, she had the sensation of being in a dream state and having a sex dream with someone touching her. She testified that she felt hands on her backside and a voice in her ear as she started to wake up. She realized Mr. Cox was speaking to her and heard him say, "J[.R.], I've always wanted to be in your pussy." At the same time, she felt his fingers inside her vagina moving back and forth.

¶ 8 Realizing that it wasn't a dream, she woke with a start, pushed his hand away, and jumped out of bed. She dressed quickly, putting her dress on inside-out, and left the bedroom. As she walked toward the kitchen she told her friends what had just happened. J.R. testified that she was in shock and still very drunk.

¶ 9 J.R.’s friends guided her toward the living room, and one of them started toward the bedroom. J.R. testified that Mr. Cox and his fiancé came down the hallway, walked right by J.R. and her friends without saying a word, and left the house.

¶ 10 Mr. Cox testified at trial and denied ever touching J.R. Instead, he testified that he wandered into J.R.’s bedroom the night of the party and fell asleep next to his fiancé on the bed. No one else was on the bed at the time. A short time later, he was awakened by J.R. laying next to him and touching him around his hips. He told her it was inappropriate and to stop. Mr. Cox testified that this made J.R. angry. She got up off the bed, still wearing her party dress, and stormed out of the room. Mr. Cox woke his fiancé, and they decided to leave. He shook hands with one of J.R.’s friends and said good night.

¶ 11 The next day J.R. texted Mr. Cox, indicating that she was angry with him and wanted to meet with him and his fiancé. J.R. did not articulate why she was angry or what she believed Mr. Cox had done. At trial, she testified that she wanted to discuss the incident from the previous night and that she wanted his fiancé to be there to hold him accountable without involving the police. When J.R. insisted that Mr. Cox bring his fiancé, Mr. Cox texted back, "please J[.R.]." The next day Mr. Cox texted J.R. saying that he and his fiancé had made a joint decision not to meet her because they believed they had been "roofied" at the party. She texted back, calling him "dishonorable," and then went with her father to the police station.

¶ 12 The police collected J.R.’s undergarment from her home, and J.R. went to the hospital to have a rape kit performed. A few days later, Mr. Cox was contacted by police and agreed to give an interview and provide a DNA sample. Mr. Cox denied assaulting J.R. and claimed that he was awakened by J.R. fondling him over his clothing. He told her to stop, and she got up and left the bedroom.

¶ 13 Mr. Cox was charged with second degree rape after the crime lab found J.R. and Mr. Cox's DNA on J.R.’s undergarments. No DNA was found on J.R.’s body, although J.R. testified that she had showered before the hospital examination.

2. Evidentiary Rulings

¶ 14 Mr. Cox maintained his theory of defense at trial. Before trial, the State moved in limine to exclude any evidence of past sexual behavior under the "Rape Shield Statute," RCW 9A.44.020. Mr. Cox argued that he should be able to introduce testimony that on the night of the party, before the alleged incident, J.R. was drunk and flirtatious with other people, kissing other women and encouraging Mr. Cox to kiss another male. The court granted the State's motion to exclude any such testimony.

¶ 15 During trial, Mr. Cox proffered testimony that in addition to being flirtatious with other people at the party, J.R. was flirting with Mr. Cox. At one point, she told Mr. Cox: "If I were into dudes, you would be my number one pick." She then turned to another female and said, "If I were into girls, you would be my number one choice pick." Later that evening, J.R. sat on Mr. Cox's lap in a party dress and leaned her head on his shoulder.

¶ 16 Mr. Cox argued that this evidence was relevant for two reasons. First, it provided an innocent explanation for how his DNA was found on J.R.’s underwear. In addition, since J.R. did not remember the incident, but it was corroborated by other witnesses, it was evidence that J.R. was so intoxicated that she was acting out of character and could not recall her actions the night of the party. The court excluded the evidence as prohibited by the Rape Shield Statute, irrelevant and prejudicial.

¶ 17 The jury found Mr. Cox guilty. After his motion for a new trial was denied, Mr. Cox filed this appeal.

ANALYSIS

1. Evidence of the victim's behavior on the night of the incident.

¶ 18 On appeal, Mr. Cox argues that his constitutional right to present his theory of the case was violated by the court's orders, excluding evidence. Challenges to evidentiary rulings under the Evidence Rules are generally reviewed for abuse of discretion. State v. Orn , 197 Wash.2d 343, 482 P.3d 913 (2021), http://www.courts.wa.gov/opinions/pdf/980560.pdf. A court abuses its discretion when it applies the wrong legal standard or bases its decision on an erroneous application of the law. Id . On the other hand, we review de novo evidentiary challenges that raise constitutional issues. Id . A court misconstrues the law, and therefore abuses its discretion, when its evidentiary ruling violates a defendant's constitutional right. Id .

¶ 19 Mr. Cox appeals the trial court's exclusion of evidence that J.R. was acting uncharacteristically flirtatious toward himself and others at the party on the evening of the incident. He argues that the evidence was relevant to show that J.R.’s intoxication made her act out of character and affected her memory. He contends that evidence of the lap-sitting incident provides an innocent explanation for DNA transfer and supports his theory that J.R. initiated contact with him in the bedroom.

¶ 20 The trial court found the lap-sitting evidence to be "marginally relevant," although speculative and highly prejudicial. It found the remaining evidence to be irrelevant and highly prejudicial. It excluded all of the evidence under the Rape Shield Statute.

¶ 21 We turn first to the trial court's application of the Rape Shield Statute. The Rape Shield Statute, RCW 9A.44.020, prohibits a defendant from introducing evidence of "past sexual behavior" to impeach the victim or prove consent. The purpose of the statute was to redefine relevant evidence in sexual assault cases and "erase the misogynistic and antiquated notion that a woman's past sexual behavior somehow affected her credibility." State v. Jones , 168 Wash.2d 713, 722-23, 230 P.3d 576 (2010). A trial court's decision to exclude evidence under the Rape Shield Statute is initially reviewed for abuse of discretion. State v. Harris , 97 Wash. App. 865, 869, 989 P.2d 553 (1999).

¶ 22 On Appeal, Mr. Cox argues that the Rape Shield Statute does not apply to the flirtatious evidence that he proffered at trial because it does not qualify as "past sexual behavior." We agree. "The language of the statute states unequivocally that evidence of the victim's ‘past sexual behavior’ is ‘inadmissible to prove the victim's consent.’ " Jones , 168 Wash.2d at 722, 230 P.3d 576 (quoting RCW 9A.44.020(2) ). Any reading of the statute that conflates "past" with "present" conduct is tortured. Id. at 722-23, 230 P.3d 576. The excluded evidence in this case was not past behavior; it was contemporaneous with the alleged rape. Nor was it being introduced to show consent. And while it was being introduced to discredit the victim's credibility, the focus was on her level of...