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FILED AUGUST 30, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
CARMELLA DESEAN, ) ) No. 38552-3-III Respondent, ) ) v. ) ) ISAIAH SANGER, ) PUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. — Former chapter 7.90 RCW, the Sexual Assault Protection
Order Act (SAPOA),1 provided a civil protective remedy to victims of sexual assault who
sought to avoid future interaction with their assailant. The petitioner was required to
allege and the court to find that sexual conduct or sexual penetration suffered by the
victim was “nonconsensual.” Former RCW 7.90.050, .090. The remedy is now provided
by a civil protection order act codified in chapter 7.105 RCW, which reflects the same
requirements at RCW 7.105.100(1)(b) and .225(1)(b).
1 Legislation passed in 2021 addresses six types of civil protection orders in a single chapter⎯chapter 7.105 RCW. It generally took effect, and the provisions of former chapter 7.90 RCW were repealed, effective July 1, 2022. LAWS OF 2021, ch. 215, §§ 87, 170. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38552-3-III DeSean v. Sanger
In some cases, a person may feel sure they were the victim of unconsented-to
conduct but lack the ability to so testify because they were incapacitated when the
conduct occurred. The SAPOA has been construed to implicitly provide that the contact
or penetration is nonconsensual if the victim lacks the capacity to consent. Nelson v.
Duvall, 197 Wn. App. 441, 387 P.3d 1158 (2017). Where there is evidence of excessive
alcohol consumption by a petitioner or the petitioner was otherwise impaired, the trial
court has an obligation to determine whether the petitioner had the capacity to consent.
Id. at 444.
Isaiah Sanger appeals a sexual assault protective order (SAPO) obtained against
him by Carmella DeSean, challenging procedural rulings by the trial court and the
sufficiency of the evidence to support the court’s finding that Ms. DeSean lacked the
capacity to consent. While the evidence is conceivably sufficient to support the trial
court’s issuance of a SAPO, the lack of evidentiary support for the court’s finding of the
amount of alcohol consumed by Ms. DeSean and the court’s refusal to consider an
affirmative defense require that the trial court consider the evidence anew. We reverse
and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
On awakening on the morning of August 8, 2020, Carmella DeSean became
concerned that Isaiah Sanger, the roommate of Bailey Duncan, a young man she had
traveled to Henderson, Nevada, to visit, might have had sexual intercourse with her the
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
night before. She recalled that the night had started with her, Mr. Duncan, and Mr.
Sanger having dinner and then drinking margaritas by the pool. After her third drink, Ms.
DeSean could only remember a few things: she recalled Mr. Sanger having her take a
shower and washing her hair, him taking her to Mr. Duncan’s room to get her a shirt and
underwear, and her sitting on the floor and telling Mr. Sanger, “No we can’t do this
because of Bailey.” Report of Proceedings (RP) at 8.
On waking on August 8, she noticed bruising on her body, her vagina was
bleeding and hurt, and the room where she awoke “smel[led] like condom[s] and sex.”
Clerk’s Papers (CP) at 4. Ms. DeSean questioned Mr. Sanger, whom she claims first told
her he did not know what happened but later, having found condoms, said, “‘I think we
had sex.’” RP at 66. When she approached him again later to ask about what had
happened, she claims Mr. Sanger laughed and said he had intercourse with her against the
bathroom wall.
Confident she would not have consented to the sexual relations, Ms. DeSean asked
Mr. Duncan to take her to a hospital for examination two days later. There, she was
examined by a sexual assault nurse examiner and interviewed by Detective Kari Skinner
of the Henderson Police Department. After speaking with Ms. DeSean, Detective
Skinner also questioned Mr. Duncan at the hospital, but he told the detective he did not
know what had happened between Ms. DeSean and Mr. Sanger because he had been
intoxicated and had passed out on the sofa. The detective submitted the results of her
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
investigation to the district attorney’s office, which closed the case after concluding that
probable cause to charge was lacking.
On August 31, 2020, Ms. DeSean, who had returned home to southeastern
Washington, completed and filed a handwritten petition for a SAPO. A temporary SAPO
issued ex parte that day.
After being served with the petition and temporary SAPO, Mr. Sanger submitted a
29-page typewritten statement with attachments. The attachments included a redacted
incident report from the Henderson Police Department that reflected the decision to close
the investigation without charges. In Mr. Sanger’s statement, he asserted he and Ms.
DeSean had a consensual sexual encounter that began after the two of them came upstairs
from the pool. He stated that Ms. DeSean had originally felt ill but threw up and felt
better, and the two decided to take a shower. He stated that the two had consensual sex
on the bathroom floor and against the bathroom wall. Mr. Sanger also claimed Ms.
DeSean suggested having a threesome with Mr. Duncan, and Mr. Sanger went downstairs
to ask Mr. Duncan if he wanted to join them. Mr. Duncan was lying on the couch, did
not want to come upstairs, and according to Mr. Sanger said, “[H]ave at it.” CP at 94.
Mr. Sanger stated that the next morning, Ms. DeSean asked him if they had sex the
night before, which worried him because it suggested she might regret what had
happened. Describing himself as “panick[ing] a bit,” he said, “I don’t know, I think we
did,” and then returned shortly to tell Ms. DeSean that they must have had sex because
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
there were two condoms in the garbage. CP at 97. He claimed that later that day, Ms.
DeSean agreed with him that what had happened between them was consensual. He
admitted, however, that over the next couple of days she became angry and upset.
An initial hearing following issuance of the temporary SAPO took place before a
court commissioner. Both parties appeared, neither represented by counsel. The
commissioner heard testimony from Ms. DeSean but then continued the hearing upon
realizing that Mr. Sanger had filed his 29-page submission the prior day, which the
commissioner had not had the opportunity to review.
Both parties thereafter retained lawyers and a full evidentiary hearing was
requested. After two continuances and extensions of the ex parte order, the matter
proceeded to a full evidentiary hearing.
By the time of the hearing, the evidence that had been submitted by Ms. DeSean
consisted of her handwritten petition, a declaration from Ms. DeSean submitted by her
lawyer, and declarations from two of Ms. DeSean’s female friends and Mr. Duncan. The
evidence submitted by Mr. Sanger consisted of his original 29-page statement with the
redacted incident report, a transcript of the original hearing, and a declaration from Mr.
Sanger submitted by his lawyer. Collectively, the evidence addressed the events of the
evening of August 7, the alcoholic drinks Ms. DeSean had consumed and her level of
intoxication, Ms. DeSean’s reported flashbacks of events that transpired between her and
Mr. Sanger that night, what was going on with Mr. Duncan downstairs, and Ms.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
DeSean’s, Mr. Sanger’s, and Mr. Duncan’s communications over the next several days
about what had taken place.
Live evidence presented at the hearing consisted of testimony from Mr. Duncan,
whom Ms. DeSean called as a witness, testimony from Detective Skinner, whom Mr.
Sanger called as a witness, and testimony from the parties themselves.
At the beginning of the hearing, Ms. DeSean’s lawyer stated her understanding
that there was no cross-examination of the parties. Asked for Mr. Sanger’s position, his
lawyer answered, “I will defer to what the Court prefers. I think the Court has a great
deal of discretion in terms of how to conduct these hearings.” RP at 28. The judge stated
that typically, cross-examination of parties was not allowed, so that is how they would
proceed. After Ms. DeSean testified, however, Mr. Sanger’s lawyer requested cross-
examination, ultimately explaining that “Ms. DeSean has said quite a few things that she
didn’t say before.” RP at 71. The court stated it would allow cross-examination only
into matters that were newly raised in Ms. DeSean’s testimony. Defense counsel was
permitted to question Ms. DeSean about the fact that she had sex with Mr. Duncan before
returning to the northwest and could have visited the hospital a day earlier, but went
sightseeing that day instead. When defense counsel began to inquire about the remainder
of Ms. DeSean’s stay in Henderson, the trial court sustained an objection to exceeding the
scope of direct and added that the evidence was also irrelevant. Defense counsel did not
object and asked no further questions.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
At the conclusion of the evidence and argument, the trial judge took the matter
under advisement and issued a written decision a few days later. The decision did not
address many of the factual disputes about what had transpired on August 7 and the days
that followed, because the trial judge found dispositive that sexual penetration was
undisputed and Ms. DeSean lacked the capacity to consent to sexual contact or sexual
penetration due to her high level of intoxication. Mr. Sanger moved for reconsideration,
which was denied. He appeals.
ANALYSIS
Mr. Sanger makes eight assignments of error, which we reorganize and address as
four. Mr. Sanger fails to demonstrate that the evidence is insufficient to support the trial
court’s entry of a SAPO. He does not demonstrate that he was denied due process by a
limitation on his cross-examination. He does demonstrate that the trial court erred by
refusing to consider his affirmative defense that he reasonably believed Ms. DeSean had
the capacity to consent. He also demonstrates that substantial evidence does not support
the trial court’s material factual finding about how much alcohol was in the first two
mixed drinks consumed by Ms. DeSean on August 7. The two errors require that we
reverse the SAPO and remand for further proceedings.2
2 Two of Mr. Sanger’s assigned errors, his second and sixth, are not developed by his briefing and will not be reviewed. See Appellant’s Br. at 1 (assigning error to denial of reconsideration and to the trial court’s finding that Ms. DeSean said “no” three times). RAP 10.3(a)(6); State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
I. MR. SANGER FAILS TO DEMONSTRATE THAT THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE TRIAL COURT’S ENTRY OF A SAPO
Two of Mr. Sanger’s assignments of error and a portion of his opening brief
advance the argument that the evidence presented by Ms. DeSean was insufficient to
support the trial court’s conclusion that Ms. DeSean was sexually penetrated by Mr.
Sanger at a time when she lacked the capacity to consent.
Where the trial court has weighed the evidence, we review whether its findings are
supported by substantial evidence and whether those findings support the conclusions of
law. State v. Coleman, 6 Wn. App. 2d 507, 516, 431 P.3d 514 (2018) (citing State v.
Klein, 156 Wn.2d 102, 115, 124 P.3d 644 (2005)). Substantial evidence exists where
there is sufficient evidence in the record to persuade a rational, fair-minded person of the
truth of the finding. Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 353, 172 P.3d 688
(2007). We defer to the trial court on the persuasiveness of evidence, witness credibility,
and conflicting testimony. In re Vulnerable Adult Pet. for Knight, 178 Wn. App. 929,
937, 317 P.3d 1068 (2014). Unchallenged findings of fact are verities on appeal. In re
Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004); RAP 10.3(g).
In support of its conclusion, the court identified four categories of evidence on
which it relied, within which it identified discrete pieces of evidence. Ms. DeSean does
not challenge the following facts found by the trial court, which are verities. The court’s
first category included findings that Mr. Sanger prepared a third drink for Ms. DeSean,
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
total amount of alcohol unknown, and that she was asked to “chug” it; that when the
parties left the pool area, Mr. Duncan observed Ms. DeSean stumbling, requiring
assistance walking, crying, vomiting and dry heaving; later, when Mr. Duncan went
upstairs to check on her, she was mumbling and not responding appropriately to his
attempts to wake her; he described her as “incoherent”; finally, Mr. Duncan testified that
Ms. DeSean’s knees were bruised the next day and that she was nauseous. CP at 122.
Ms. DeSean testified herself that she was intoxicated. Mr. Sanger testified that the three
were “all highly intoxicated.” Id.
The court’s second category of findings included that Ms. DeSean’s memories of
what happened after she went into the house that evening consist of “flashbacks” of
sitting on the bathroom floor, being in the shower with Mr. Sanger, and saying “no” three
times. Id.
Its third category of findings included that Ms. DeSean’s friend Gabriella Bloom
communicated with her the evening of August 7 via Snapchat; she saw pictures of Ms.
Desean with glossy heavy eyes, knew she had been drinking, was aware that she did not
feel well, and Ms. DeSean stopped communicating early in the evening.
As Mr. Sanger points out, the court in Nelson rejected the proposition that
incapacity caused by alcohol consumption renders a victim incapable of consent as a
matter of law. 197 Wn. App. at 456. Nelson held that where there is some evidence of
incapacity to consent, “[t]he court must consider whether a ‘condition existing at the time
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
of the offense which prevents a person from understanding the nature or consequences of
the act of sexual intercourse, whether that condition is produced by illness, defect, the
influence of a substance or from some other cause.’” Id. at 457 (quoting RCW
9A.44.010(4)). Mr. Sanger argues there was evidence that Ms. DeSean was aware and
understood the nature and consequences of his and her sexual relations. He points to the
statements in her petition that she remembered telling him “no” at one point because of
Bailey, and him telling her “‘if I get you pregna[nt] I will be the father and marry you.’”
CP at 4. Mr. Sanger also points to his testimony that Ms. DeSean insisted that he use
condoms and that she initiated the sexual activity. But Ms. DeSean rejected the
suggestion that she did or would have initiated sexual activity or asked that Mr. Sanger
use condoms. And the trial court’s ruling discounted Mr. Sanger’s credibility. It found
that he told Mr. Duncan in a text message on August 8 that he could not remember
“much,” only “bits and pieces” of what happened, and it was only later, in September and
October, that Mr. Sanger provided 29 pages of details. CP at 122.
Mr. Sanger also argues that the trial court should not have relied on Ms. DeSean’s
testimony that she could not recall what happened, because lack of memory following
alcohol consumption does not mean that one is not awake and consenting. A significant
lack of memory is not without any evidentiary value, however. Cf. State v. Thomas, 123
Wn. App. 771, 782, 98 P.3d 1258 (2004) (“The effects of alcohol are commonly known
and jurors can draw reasonable inferences from testimony about alcohol use.” (citing
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Kruger, 116 Wn. App. 685, 692-93, 67 P.3d 1147 (2003); State v. Smissaert,
41 Wn. App. 813, 815, 706 P.2d 647 (1985))). Ms. DeSean was able to point to other
evidence from which a fact finder could find it probable that she was intoxicated to the
point of incapacity; perhaps most important was Mr. Duncan’s testimony that he went
upstairs and found Ms. DeSean to be unresponsive and incoherent near the time the
sexual penetration took place.
Mr. Sanger fails to demonstrate that there is insufficient evidence to support a
SAPO.
II. MR. SANGER DID NOT PRESERVE THE OBJECTION TO LIMITS ON CROSS- EXAMINATION THAT HE RAISES ON APPEAL
Former chapter 7.90 RCW did not provide that parties to a full evidentiary hearing
have a right to call witnesses or engage in cross-examination. Notwithstanding the
statutory silence, “‘Procedural due process imposes constraints on governmental
decisions which deprive individuals of “liberty” or “property” interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth Amendment’” to the
United States Constitution. Nguyen v. Dep’t of Health, 144 Wn.2d 516, 522-23, 29 P.3d
689 (2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976)), cert. denied, 535 U.S. 904, 122 S. Ct. 1203, 152 L. Ed. 2d 141 (2002). In
determining what process is due, a court weighs (1) the private interest affected by the
official action, (2) the risk of an erroneous deprivation of that interest through the
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
procedures used, (3) the probable value of additional procedural safeguards, and (4) the
government interest involved. Mathews, 424 U.S. at 335.
In the context of domestic violence protection order hearings, a six-judge majority
of our Supreme Court agreed in Gourley v. Gourley, 158 Wn.2d 460, 468-69, 145 P.3d
1185 (2006) (plurality opinion), that due process may require cross-examination,
although it held in that case that a respondent who sought to cross-examine his 14-year-
old daughter about accusing him of sexual assault had not shown it was necessary in his
case. Aiken v. Aiken, 187 Wn.2d 491, 498, 387 P.3d 680 (2017) (describing the plurality
and concurring decisions in Gourley). The court held that while relevant statutes did not
require a trial judge to allow live testimony or cross-examination in every protective
order proceeding, whether live testimony or cross-examination is required “will turn on
the Mathews balancing test.” Id. at 499. It also held that “[a] bright line rule prohibiting
cross-examination or live testimony in protective order hearings is inappropriate, as it is
the province of the trial judge or commissioner to grant or deny cross-examination based
on individualized inquiries into the facts of the instant case.” Id. at 505-06.
We conclude it is also inappropriate for the superior court to have a practice that
typically cross-examination of parties is not allowed. In this case, however, we find that
Mr. Sanger’s challenge to the limitation of cross-examination fails for a reason unrelated
to his right to due process: defense counsel did not object to the limitations imposed by
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the trial court. The due process objection raised on appeal was not raised in the trial
court.
At the outset of the hearing, the trial court asked defense counsel her position on
cross-examination and counsel deferred to the trial court, expressing belief that the court
had a “great deal of discretion.” RP at 28. After Ms. DeSean testified, defense counsel
requested cross-examination, arguing in support that “Ms. DeSean has said quite a few
things that she didn’t say before,” and asking for the opportunity to “speak with her
somewhat.” RP at 71. Defense counsel accepted the court’s ruling that it would allow
cross-examination into only matters that were newly raised in Ms. DeSean’s live
testimony. Id. This is consistent with ER 611(b). Defense counsel did not ask for the
opportunity to call Ms. DeSean as a witness in the defense case. When the trial court
perceived defense counsel to exceed the scope of the direct examination and sustained an
objection, defense counsel stated, “Okay. No more questions,” and thanked the court.
RP at 75.
The general rule is that appellate courts will not consider issues raised for the first
time on appeal. RAP 2.5(a); State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125
(2007). An objection that Mr. Sanger had a due process right to a broader cross-
examination of Ms. DeSean was not preserved.
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
III. FOLLOWING NELSON V. DUVALL, THE TRIAL COURT SHOULD HAVE CONSIDERED MR. SANGER’S AFFIRMATIVE DEFENSE
Under former RCW 7.90.010(2) and .090, a trial court issued a SAPO upon a
finding by a preponderance of the evidence that a petitioner had been a victim of
nonconsensual sexual contact or nonconsensual sexual penetration, with “nonconsensual”
meaning a “lack of freely given agreement.” The statute did not provide that a SAPO
should issue if sexual contact or sexual penetration took place when the complaining
petitioner lacked the capacity to consent. In Nelson, however, this court construed the
SAPOA to implicitly require that the petitioner have the capacity to consent. 197 Wn.
App. at 456. In arriving at this conclusion, this court observed that a legislative statement
of intent can be “‘crucial to interpretation of a statute,’” id. at 453 (quoting Towle v.
Dep’t of Fish & Wildlife, 94 Wn. App. 196, 207, 971 P.2d 591 (1999)), and reviewed the
legislature’s declaration in creating the SAPO remedy:
Sexual assault is the most heinous crime against another person short of murder. Sexual assault inflicts humiliation, degradation, and terror on victims. According to the FBI, a woman is raped every six minutes in the United States. Rape is recognized as the most underreported crime; estimates suggest that only one in seven rapes is reported to authorities. Victims who do not report the crime still desire safety and protection from future interactions with the offender. Some cases in which the rape is reported are not prosecuted. In these situations, the victim should be able to seek a civil remedy requiring that the offender stay away from the victim. It is the intent of the legislature that the sexual assault protection order created by this chapter be a remedy for victims who do not qualify for a domestic violence order of protection.
Former RCW 7.90.005 (emphasis added).
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Because the SAPOA “is focused on sexual assault and rape,” Nelson held, “its
terms should be read in harmony with the ‘sex offenses’ chapter of the Washington
Criminal Code, chapter 9A.44 RCW.” 197 Wn. App. at 454. And “[u]nder the criminal
code, a person is guilty of rape in the second degree when he or she engages in sexual
intercourse with another person ‘[w]hen the victim is incapable of consent by reason of
being physically helpless or mentally incapacitated.’” Id. at 455 (alteration in original)
(quoting RCW 9A.44.050(1)(b)). Concluding that the SAPOA “was intended to provide
a civil protective remedy to all rape victims recognized under criminal law, without
exclusion,” this court held that when deciding whether to grant a SAPO, the trial court is
required to consider evidence that the victim lacked the mental capacity to consent.
Id. at 456.
Relying on Nelson, Mr. Sanger argued at the hearing and in moving for
reconsideration that the trial court must bear in mind that a rape is not committed where
the victim is physically helpless or mentally incapacitated if the defendant
prove[s] by a preponderance of the evidence that at the time of the offense the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless.
RCW 9A.44.030(1) (emphasis added). The trial court refused to consider the affirmative
defense in its original decision or on reconsideration, however, reasoning that “neither
RCW 7.90 or Nelson mention affirmative defenses.” CP at 178.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Former chapter 7.90 RCW does not mention the affirmative defense, but it also
does not say that a petitioner who lacks the mental capacity to consent may obtain a
SAPO. It was this court’s decision in Nelson that interpreted the SAPOA to provide a
civil remedy for all criminal sexual assaults. The affirmative defense is relevant because
where it is proved, there is no criminal sexual assault.
Ms. DeSean defends the trial court’s refusal to consider the affirmative defense on
appeal, arguing that the “point of a civil case” is “much different” from a criminal case; it
is “to address the petitioner’s harm.” Br. of Resp’t at 20. She also argues, “[I]f the
legislature intended for the criminal code’s affirmative defense to apply . . . then it would
have been reflected in the statute’s plain language.” Id.
If the plain language of former chapter 7.90 RCW addressed incapacity as a basis
for obtaining a SAPO, we agree that one would expect the affirmative defense to be
addressed as well. But the chapter said nothing about incapacity, so there was no reason
to address the affirmative defense. In an analogous context, a protective order is not
available against a respondent who unwittingly takes advantage of a nonconsenting party.
See RCW 7.105.010(13)(c) (defining “financial exploitation” to include obtaining or
using a vulnerable adult’s property without lawful authority, but only “by a person or
entity who knows or clearly should know that the vulnerable adult lacks the capacity to
consent to the release or use of the vulnerable adult’s property” (emphasis added)). Since
it was this court, in Nelson, which implied that criminal sexual assaults based on a
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
victim’s lack of capacity are a basis for the civil SAPO remedy, we must look to Nelson’s
reasoning to determine if the affirmative defense should apply. And given Nelson’s
reasoning—that the SAPOA “was intended to provide a civil protective remedy to all
rape victims recognized under criminal law,” 197 Wn. App. at 456,—the affirmative
defense should apply.
As for Ms. DeSean’s argument that the purpose of the civil remedy is not to
punish the respondent but to address the petitioner’s harm, it is crucial to focus on the
narrow context that is at issue: we are talking about a defendant who has proved by the
required burden of proof that he reasonably believed the victim was not mentally
incapacitated or physically helpless. The legislature’s statement of purpose, which was
clearly all about criminal sexual assault and rape, does not suggest the legislature
intended to impose the stigma of a SAPO on a person who reasonably believed they were
engaged in consensual conduct with a partner who had the capacity to consent.
Following Nelson, the trial court should have considered Mr. Sanger’s affirmative
defense.
IV. THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S FINDING OF FACT ABOUT THE AMOUNT OF ALCOHOL CONSUMED, WHICH IS MATERIAL
Finally, Mr. Sanger assigns error to the trial court’s finding that “Bailey Duncan
prepared the first two drinks which contained 8 ounces of tequila in a 20 oz. glass.” CP
at 121. The finding is clearly erroneous. The evidence on which the court necessarily
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
relied was Mr. Duncan’s testimony about how much liquor he poured when he made Ms.
DeSean’s first two drinks; his was the only testimony that addressed a measure of the
amount. He estimated that in each case, he poured in “an eighth of a twenty-ounce glass,
maybe less” of tequila, which would equate to 2.5 ounces of tequila, or less, in each
drink. RP at 34. Since the trial court’s finding refers to the amount of tequila “in a 20 oz.
glass,” the court evidently believed there were 8 ounces of tequila in each of Ms.
DeSean’s first two drinks. CP at 121.
This is an extraordinary amount of alcohol and more than three times the amount
testified to by Mr. Duncan. As argued by Mr. Sanger, at Ms. DeSean’s weight as
testified to at trial, the 16 ounces of liquor would result in a fully absorbed blood alcohol
content of about .40 without allowing for burn-off. See Appellant’s Reply Br. at 5 n.2.
And this is before Ms. DeSean even began to consume her third drink.
Immaterial findings that do not affect a trial court’s conclusions of law are not
prejudicial and do not warrant reversal. Coleman, 6 Wn. App. 2d at 516 (citing Cowiche
Canyon v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992)). But this evidence is
material. It is true that the trial court made other findings that could support its
conclusion that Ms. DeSean lacked the capacity to consent. But a finding that the first
two drinks consumed by Ms. DeSean collectively contained a pint of hard liquor is such
compelling evidence of excessive alcohol consumption that it could have been heavily
weighted and even colored the court’s perception of other evidence.
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
We reverse the SAPO and remand for further proceedings consistent with this
opinion.
Siddoway, C.J.
WE CONCUR:
Fearing, J.
Lawrence-Berrey, J.