FILED
OCT 16, 2014
In the Office of the Clerk of Court
WA State Court of Appeal, Di ision IIJ
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31022-1-111 Respondent, ) ) v ) ) DAVID HENRY ENDRES, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - David Endres challenges his second degree rape conviction,
arguing that the court should have pennitted discovery of the victim's mental health
records and that the evidence was insufficient to support the jury's verdict. We affinn.
FACTS
The incident underlying the rape charge occurred in 2005. D.M. and a friend
attended a party in Yakima one day. D.M. was not enjoying the party and wanted to
leave. Her friend took D.M. to the nearby apartment of her friend named Angel and left
. D.M. with him while she returned to the party. D.M. did not know Angel.
Angel latched the door and walked D.M. to his bed. While she said "no," he sat
her on the bed. He then took offher clothing while she continued to tell him "no." He
then proceeded to have sexual intercourse with her despite her continued protestations. No. 31022-1-II1 State v. Endres
The two did not fight, but Angel did press her down onto the bed from a sitting position
in order to have intercourse with her. When Angel was finished, D.M. grabbed one of
Angel's shirts and fled the apartment, running to her mother's house, which was in the
neighborhood.
D.M. 's mother took her to the hospital and evidence was collected, but Angel was
not found. Some years later, the evidence was sent to the Washington State Crime
Laboratory for testing. A male DNA profile was developed that fit David Endres, a man
with two prior convictions for sex offenses. Police arrested Mr. Endres and he spoke
with them. He admitted once living in Yakima and that his nickname was Angel. A
swab was obtained from Mr. Endres to confirm the DNA profile.
The prosecutor filed one charge of second degree rape by forcible compulsion in
November 2010. Defense counsel filed a motion seeking D.M.'s criminal, medical, and
mental health records in order to impeach her credibility. The defense knew that D.M.
had a history of medical and mental health issues, but did not know specific information
about them. At the time of the rape, D.M. had left a half-way house facility that served as
an alcohol detoxification center and a mental health stabilization center. When D.M. was
located in 20 10, she was a patient at Eastern State Hospital (ESH).
The defense argued that it needed the mental health records to determine ifD.M.
had a condition that affected her ability to accurately recall events and tell the truth. The
No. 31022-1-II1 State v. Endres
trial court eventually entered an order directing ESH to provide its records for in camera
review by the presiding judge.
After reviewing the records, the court denied discovery and explained that "none
of the medical records submitted for review have any factual relationship with the
charges in this case." The defense moved for reconsideration, arguing that the court did
not consider all relevant criteria and that it had learned that D.M. had been a ward of the
state at various times since childhood due to her mental health issues. The court denied
reconsideration by written ruling. The defense was not permitted to inquire about D.M.'s
mental health history during trial.
The defense also challenged D.M.'s competency to testify. The court held a
pretrial hearing at which both counsel questioned her about the facts of the case as well as
her mental health matters. She testified that she was at ESH in 2010 due to anxiety and
PTSD (post-traumatic stress disorder) and described the effects of those conditions on her
in 2010 as well as her condition at the time of the rape. The trial judge found D.M.
competent to testify, noting that she had tracked the sometimes confusing questioning
well for 40 to 45 minutes and gave appropriate answers. Her lack of memory of some
details from seven years previously did not render her incompetent.
The case was tried to a jury. At the conclusion of the prosecution's case, the
defense moved for dismissal due to lack of evidence of forcible compulsion. The trial
court denied the motion and the jury returned a verdict of guilty. The defense moved for
No. 31022-1-111 State v. Endres
a new trial on the basis of its previous motions concerning the victim's mental health.
The court denied the motion. Mr. Endres subsequently timely appealed from the
judgment and sentence.
ANALYSIS
This appeal challenges the trial court's rulings concerning D.M. 's competency
and her mental health records, as well as the sufficiency of the evidence to support the
verdict. We will address those challenges in that order.
Discovery Related To Mental Health
Mr. Endres argues that the court erred in denying discovery of D .M.' s mental
health records and in denying his motion for a mental health evaluation ofD.M. prior to
her testimony.l We conclude the trial court did not abuse its discretion in these rulings.
Discovery in criminal cases is regulated by CrR 4.7. A trial judge has broad
authority under the rule to control the discovery process and may issue protective orders,
excise materials, and impose sanctions for failure to abide by the rules. CrR 4.7(h)( 4),
1 In his personal Statement of Additional Grounds, Mr. Endres raises claims concerning the denial of discovery, the sufficiency of the evidence, the credibility of the victim, and misconduct involving a witness indicating Mr. Endres' DNA profile had been found in the CODIS records. The first two claims were adequately presented by counsel and do not need to be re-addressed here. RAP 10.l0(c). The credibility argument fails because appellate courts do not second-guess a fact finder's credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The final claim fails as there was no evidence of why the defendant's DNA was in the records system, so there was no mention of his prior criminal history to the jury.
No. 31022-1-III State v. Endres
(5), (7). The judge may also conduct in camera proceedings. CrR 4.7(h)(6). The scope
of discovery is within the discretion of the trial court and will be reversed only for
manifest abuse of discretion. State v. Blackwell, 120 Wn.2d 822, 826, 845 P.2d 1017
(1993). Discretion is abused when it is exercised on untenable grounds or for untenable
reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Mr. Endres argues that the trial court manifestly abused its discretion in denying
him the materials seen by the court in camera, resulting in such significant harm to his
defense that he is entitled to a new trial with the ESH records in hand. While we agree
that any discovery error in this regard likely hanned the defense since D.M. was the sole
witness to the crime, there first must be a showing of error. Mr. Endres has not met his
burden in that respect.
Our review is hampered by the fact that the records considered at the in camera
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FILED
OCT 16, 2014
In the Office of the Clerk of Court
WA State Court of Appeal, Di ision IIJ
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31022-1-111 Respondent, ) ) v ) ) DAVID HENRY ENDRES, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. - David Endres challenges his second degree rape conviction,
arguing that the court should have pennitted discovery of the victim's mental health
records and that the evidence was insufficient to support the jury's verdict. We affinn.
FACTS
The incident underlying the rape charge occurred in 2005. D.M. and a friend
attended a party in Yakima one day. D.M. was not enjoying the party and wanted to
leave. Her friend took D.M. to the nearby apartment of her friend named Angel and left
. D.M. with him while she returned to the party. D.M. did not know Angel.
Angel latched the door and walked D.M. to his bed. While she said "no," he sat
her on the bed. He then took offher clothing while she continued to tell him "no." He
then proceeded to have sexual intercourse with her despite her continued protestations. No. 31022-1-II1 State v. Endres
The two did not fight, but Angel did press her down onto the bed from a sitting position
in order to have intercourse with her. When Angel was finished, D.M. grabbed one of
Angel's shirts and fled the apartment, running to her mother's house, which was in the
neighborhood.
D.M. 's mother took her to the hospital and evidence was collected, but Angel was
not found. Some years later, the evidence was sent to the Washington State Crime
Laboratory for testing. A male DNA profile was developed that fit David Endres, a man
with two prior convictions for sex offenses. Police arrested Mr. Endres and he spoke
with them. He admitted once living in Yakima and that his nickname was Angel. A
swab was obtained from Mr. Endres to confirm the DNA profile.
The prosecutor filed one charge of second degree rape by forcible compulsion in
November 2010. Defense counsel filed a motion seeking D.M.'s criminal, medical, and
mental health records in order to impeach her credibility. The defense knew that D.M.
had a history of medical and mental health issues, but did not know specific information
about them. At the time of the rape, D.M. had left a half-way house facility that served as
an alcohol detoxification center and a mental health stabilization center. When D.M. was
located in 20 10, she was a patient at Eastern State Hospital (ESH).
The defense argued that it needed the mental health records to determine ifD.M.
had a condition that affected her ability to accurately recall events and tell the truth. The
No. 31022-1-II1 State v. Endres
trial court eventually entered an order directing ESH to provide its records for in camera
review by the presiding judge.
After reviewing the records, the court denied discovery and explained that "none
of the medical records submitted for review have any factual relationship with the
charges in this case." The defense moved for reconsideration, arguing that the court did
not consider all relevant criteria and that it had learned that D.M. had been a ward of the
state at various times since childhood due to her mental health issues. The court denied
reconsideration by written ruling. The defense was not permitted to inquire about D.M.'s
mental health history during trial.
The defense also challenged D.M.'s competency to testify. The court held a
pretrial hearing at which both counsel questioned her about the facts of the case as well as
her mental health matters. She testified that she was at ESH in 2010 due to anxiety and
PTSD (post-traumatic stress disorder) and described the effects of those conditions on her
in 2010 as well as her condition at the time of the rape. The trial judge found D.M.
competent to testify, noting that she had tracked the sometimes confusing questioning
well for 40 to 45 minutes and gave appropriate answers. Her lack of memory of some
details from seven years previously did not render her incompetent.
The case was tried to a jury. At the conclusion of the prosecution's case, the
defense moved for dismissal due to lack of evidence of forcible compulsion. The trial
court denied the motion and the jury returned a verdict of guilty. The defense moved for
No. 31022-1-111 State v. Endres
a new trial on the basis of its previous motions concerning the victim's mental health.
The court denied the motion. Mr. Endres subsequently timely appealed from the
judgment and sentence.
ANALYSIS
This appeal challenges the trial court's rulings concerning D.M. 's competency
and her mental health records, as well as the sufficiency of the evidence to support the
verdict. We will address those challenges in that order.
Discovery Related To Mental Health
Mr. Endres argues that the court erred in denying discovery of D .M.' s mental
health records and in denying his motion for a mental health evaluation ofD.M. prior to
her testimony.l We conclude the trial court did not abuse its discretion in these rulings.
Discovery in criminal cases is regulated by CrR 4.7. A trial judge has broad
authority under the rule to control the discovery process and may issue protective orders,
excise materials, and impose sanctions for failure to abide by the rules. CrR 4.7(h)( 4),
1 In his personal Statement of Additional Grounds, Mr. Endres raises claims concerning the denial of discovery, the sufficiency of the evidence, the credibility of the victim, and misconduct involving a witness indicating Mr. Endres' DNA profile had been found in the CODIS records. The first two claims were adequately presented by counsel and do not need to be re-addressed here. RAP 10.l0(c). The credibility argument fails because appellate courts do not second-guess a fact finder's credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). The final claim fails as there was no evidence of why the defendant's DNA was in the records system, so there was no mention of his prior criminal history to the jury.
No. 31022-1-III State v. Endres
(5), (7). The judge may also conduct in camera proceedings. CrR 4.7(h)(6). The scope
of discovery is within the discretion of the trial court and will be reversed only for
manifest abuse of discretion. State v. Blackwell, 120 Wn.2d 822, 826, 845 P.2d 1017
(1993). Discretion is abused when it is exercised on untenable grounds or for untenable
reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
Mr. Endres argues that the trial court manifestly abused its discretion in denying
him the materials seen by the court in camera, resulting in such significant harm to his
defense that he is entitled to a new trial with the ESH records in hand. While we agree
that any discovery error in this regard likely hanned the defense since D.M. was the sole
witness to the crime, there first must be a showing of error. Mr. Endres has not met his
burden in that respect.
Our review is hampered by the fact that the records considered at the in camera
proceeding are not part of the record on appeal, leaving us unable to countermand the
trial court's view of the record. See CrR 4.7(h)(6). Nonetheless, what we can discern
from the record indicates that the trial court did not abuse its discretion. The court had
the testimony ofD.M., as well as the argument of counsel, to explain why D.M. was at
ESH in 2010. If there was something in the hospital's records that conflicted with her
testimony, we have no doubt that the court would have noted and disclosed the
information. For instance, if D.M. was admitted to ESH for treatment of something other
than anxiety and PTSD, as she testified, the court was in a position to advise the parties
and release that information.
The fact that a witness has medical or mental health history that might be of
interest to the opposing side does not mean that it is material evidence that must be
disclosed. State v. Mines, 35 Wn. App. 932, 937-40, 671 P .2d 273 (1983). The doctor-
patient privilege does apply to witnesses. RCW 5.60.060(4). Similarly, sexual assault
victims have a privilege in their communications with counselors. RCW 5.60.060(7).
In order to balance these interests, courts may use the in camera procedure of
CrR 4.7(h)(6) to consider whether there is material and disclosable evidence. Mines,
35 Wn. App. at 938-39.
The court followed the proper procedure in this case by reviewing the records
in camera. The fact that a party can articulate a basis for potentially discovering
privileged evidence does not mean that there actually is material evidence available.
E.g., State v. Kalakosky, 121 Wn.2d 525,543-44,852 P.2d 1064 (1993); Blackwell,
120 Wn.2d at 828; Mines, 35 Wn. App. at 939. Here, the defense articulated why there
might be something in the mental health records that could be material and the court
responded by conducting the in camera review. Upon determining that there was no
material evidence, the court declined to order disclosure. Since the defense did not
establish that material evidence was necessarily included in the records, the trial court
could not have abused its discretion.
Mr. Endres also argues that the court erred in failing to order a mental health
evaluation of the victim. Assuming that there is authority that would permit such an
invasive order, the defense failed to establish any basis for granting that relief. The court
permitted an extensive pretrial examination ofD.M. and found her competent to testify.
It is the burden of the party challenging competency to establish a basis for believing the
witness is not competent. State v. Coley, 180 Wn.2d 543, 552, 326 P.3d 702 (2014). The
court's rulings are reviewed for abuse of discretion. Id. at 55l. The trial court considered
the victim's lengthy testimony, her appropriate answers, and her overall behavior before
finding her competent to testify. There was no abuse of discretion in denying the request
for an evaluation.
The trial court quite appropriately addressed the defense challenges to D.M.'s past
and current mental state. There was no abuse of discretion in denying the requested
discovery.
Sufficiency ofthe Evidence
Mr. Endres also challenges the sufficiency of the evidence to support the forcible
compulsion element of the second degree rape charge. The evidence did support that
element.
As charged here, second degree rape requires proof that the defendant, in the
State of Washington, did engage in sexual intercourse by forcible compulsion.
RCW 9A.44.050(1 )(a). "Forcible compulsion" means "physical force which overcomes
resistance." RCW 9A.44.0 10(6) (partial). Our case law clarifies that the force in question
must be other than that involved in the act of intercourse itself. E.g., State v. McKnight,
54 Wn. App. 521, 527, 774 P.2d 532 (1989).
The victim expressed her lack of consent and did not willingly submit to the
unwanted intercourse. She also did not attempt to physically resist the defendant. The
question then is whether the State established the use of some force to overcome the
resistance other than that involved in the sexual penetration. It did. McKnight involved
very similar facts and is instructive here.
There the defendant and victim were sitting on the living room "couch."
54 Wn. App. at 522. The defendant then "slowly" pushed the victim "down onto the
couch." Jd. Then, despite her expressed desire that he stop, the defendant disrobed the
victim and engaged in intercourse with her. Jd. at 522-23. While noting that reasonable
minds could differ on the topic, this court concluded that these actions could establish
"force over and above what is necessary to achieve intercourse and that these acts were
employed to overcome" the victim's resistance. Jd. at 528.
The facts of this case are remarkably similar. Despite D.M. saying "no," the
defendant led her to the bed and slowly pushed her down from a sitting position. He then
removed her clothes and held her down while he engaged in intercourse. The evidence
here was at least as strong, if not a little stronger, than that described in McKnight. The
record thus supported the jury's determination.
The evidence was sufficient. We affinn the conviction.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
1 ;psmo,J.
WE CONCUR:
Brown, A . .1. .
r - \ (') Lawrence-Be ey,1.