IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
K.F.D., No. 83047-3-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION
STATE OF WASHINGTON,
Respondent.
CHUNG, J. — The State charged K.F.D. with fourth degree assault of
another minor, E.D. At trial, K.F.D. sought to impeach E.D. with testimony from a
police officer about a statement E.D. had made, but the court did not allow the
testimony. After a bench trial, K.F.D. was found guilty. On appeal, he argues the
trial court violated his constitutional right to present a defense by excluding the
officer’s testimony about E.D.’s statement. We hold the trial court’s exclusion of
the testimony was not an abuse of discretion and did not violate K.F.D.’s right to
present a defense. We therefore affirm.
FACTS
In May 2020, K.F.D., age 17 at the time, went fishing at Lake Ballinger.
E.D., age 14, who had fished with K.F.D. several times previously, was also
there. E.D. said that at one point, K.F.D. got a knife out to cut his own fishing line
and said, “You better be careful or I’m going to stab you,” but E.D. “thought
nothing of it because we were joking.” No. 83047-3-I /2
Later, K.F.D. asked E.D. to watch his fishing gear so he could go to the
store. E.D. refused. According to E.D., K.F.D. got angry as a result and placed
him in a “headlock” or “choke hold.” K.F.D. testified that they were “messing
around like normal teenagers do,” and he “ended up picking [E.D.] up joking
around saying I’m going to toss him in to the water.” E.D. testified that K.F.D. did
not stop when E.D. asked; K.F.D. stopped only at the request of a girl who was
present. A nearby adult, Brent Hozjan, testified that E.D. “seemed upset, really
upset.”
E.D. called the police. Four officers responded, and K.F.D. was arrested
near a bus stop near the lake. Officer Eugene Shin handcuffed K.F.D, read him
his Miranda rights, 1 and interviewed him. Officer Kyle O’Hagan talked to E.D. for
10-20 minutes and obtained a written statement from him. The police released
K.F.D. at the scene. The State charged him with fourth degree assault the
following week.
At trial, K.F.D. called Officer O’Hagan to impeach E.D.’s testimony on
various points, including E.D.’s response of “no” to the State’s question whether
he and K.F.D. would ever punch each other. K.F.D. wanted Officer O’Hagan to
testify that E.D. told him at the scene that K.F.D. had punched E.D. in the arm.
While the court allowed Officer O’Hagan to testify on some issues, it did not allow
him to testify about E.D.’s “arm punch” statement, ruling that it was not proper
impeachment with a prior inconsistent statement, because no one had
specifically asked E.D. on the stand about whether he had been punched in the
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 No. 83047-3-I /3
arm, nor was it admissible for the purpose of showing Officer O’Hagan’s
perception of the incident. At the end of the trial, the court determined K.F.D. was
guilty of fourth degree assault.
K.F.D. appeals, claiming the trial court violated his constitutional right to
present a defense because it did not allow him to admit “all” his evidence
impeaching E.D. 2
ANALYSIS
Criminal defendants have a constitutional right to present a defense. U.S.
CONST. amend. VI; WASH. CONST. art. I, section 22; Chambers v. Mississippi,
410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). When exercising this
right, a defendant still “must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers, 410 U.S. at 302, cited in State v. Cayetano-
Jaimes, 190 Wn. App. 286, 296, 359 P.3d 919 (2015).
The test for reviewing a claimed violation of a defendant’s constitutional
right to present a defense proceeds in two steps. State v. Arndt, 194 Wn.2d 784,
797-98, 453 P.3d 696 (2019). First, the trial court’s evidentiary rulings are
reviewed for abuse of discretion. Arndt, 194 Wn.2d at 797. Second, if the trial
court did not abuse its discretion or if abuse was harmless, an appellate court
reviews de novo whether the exclusion of evidence violated a defendant’s
2 K.F.D. conceded the sufficiency of the evidence supporting his disposition at oral argument. TVW, https://tvw.org/video/division-1-court-of- appeals2022091079/?eventID=2022091079 at 7:25 (last visited September 29, 2022). 3 No. 83047-3-I /4
constitutional right to present a defense. State v. Jennings, 199 Wn.2d 53, 58-59,
502 P.3d 1255 (2022).
I. Whether the Trial Court’s Evidentiary Rulings were an Abuse of Discretion
Under an abuse of discretion standard, the reviewing court will find error
only when the trial court’s decision (1) adopts a view that no reasonable person
would take and is thus manifestly unreasonable, (2) rests on facts unsupported in
the record and is thus based on untenable grounds, or (3) was reached by
applying the wrong legal standard and is thus made for untenable reasons. State
v. Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012) (internal quotations
omitted).
At trial, E.D. testified he and K.F.D. were friends. The State asked E.D. if
he and K.F.D. would ever pick each other up, punch each other, or shove each
other. E.D. answered “no” to each question. On cross-examination, E.D. said he
could not recall how long he had known K.F.D., and K.F.D. impeached E.D.’s
testimony with a recording of a prior interview in which E.D. said he had known
K.F.D. for “two months.” However, K.F.D. never asked E.D. about whether K.F.D.
had previously punched E.D. in the arm.
To further his contention that he had been joking with E.D. and his actions
were in the nature of horseplay, K.F.D. sought to impeach E.D. with Officer
O’Hagan’s testimony that E.D. said at the scene that K.F.D. had previously
punched him in the arm. 3 The State objected because “there wasn’t actually any
3 While K.F.D.’s “joking and playful manner,” or horseplay, is central to K.F.D.’s theory of defense that no harm or offense was done to E.D., corroboration of horseplay, however “slight,” was never a defense theory for admitting E.D.’s statement to Officer O’Hagan. 4 No. 83047-3-I /5
testimony from [E.D.] about punching . . . [T]here was just no testimony about
that.” The court agreed, and K.F.D. admitted he “did not ask [E.D.] specifically if
he had been punched.” K.F.D. then alternatively offered the statement for the
non-hearsay purpose of showing “Officer O’Hagan’s perception of what was
going on during this incident.” The trial court did not allow the statement,
reasoning, “As far as the punch on the arm, I don’t think that . . . the impact that
has on the officer is relevant to any decision that I need to make. So I’m not
going to allow that at this time.”
K.F.D. argues the trial court erred by excluding Officer O’Hagan’s
testimony about E.D.’s statement because it was admissible either as a prior
inconsistent statement or for the non-hearsay purpose of establishing Officer
O’Hagan’s perception of the events. The State argues E.D. was not given an
opportunity to explain or deny his statement at trial, so extrinsic proof of a prior
inconsistent statement is not admissible. 4 We agree with the State.
“A prior inconsistent statement is a comparison of something the witness
said out of court with a statement the witness made on the stand.” State v.
Spenser, 111 Wn. App. 401, 409, 45 P.3d 209 (2002). “Extrinsic evidence of a
prior inconsistent statement by a witness is not admissible unless the witness is
afforded an opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate the witness thereon, or the interests of
justice otherwise require.” ER 613(b). Before an impeaching party can introduce
4 The State also argues Officer O’Hagan’s statement is not inconsistent with E.D.’s testimony and that E.D.’s testimony was not a material omission. The lack of any opportunity for E.D. to explain or deny is dispositive, so we need not reach these arguments. 5 No. 83047-3-I /6
extrinsic evidence of a prior inconsistent statement, that party must either call the
statement to the witness’s attention while the witness is on the stand or arrange
for the witness to remain in attendance to be given the opportunity to explain or
deny. State v. Horton, 116 Wn. App. 909, 915, 68 P.3d 1145 (2003). If the
witness responds to foundation questions by admitting making the prior
inconsistent statement, then extrinsic evidence of the statement is inadmissible.
State v. Dixon, 159 Wn.2d 65, 76, 147 P.3d 991 (2006).
Here, K.F.D. concedes that for him to be able to impeach E.D. about the
“arm punch” statement, E.D. had to be afforded an opportunity to explain or deny
it. He further concedes that E.D.’s testimony “did not mention any arm punch,”
and that K.F.D. “did not question E.D. directly about his arm punching statement
made to Officer O’Hagan.” Because E.D. was not given an opportunity to explain
or deny the statement, extrinsic proof of E.D.’s prior statement to Officer
O’Hagan was not admissible under ER 613(b). 5
Alternatively, K.F.D. argues Officer O’Hagan’s testimony about the arm
punch statement was admissible because it was not offered to establish the truth
of whether K.F.D. punched E.D. in the arm, but for the non-hearsay purpose of
establishing Officer O’Hagan’s perception of the event at the scene. “Out-of-court
statements offered to show their effect on the listener, regardless of their truth,
5 K.F.D. also argued below that the trial court should allow E.D.’s arm punch statement as prior sworn testimony. Under ER 801(d)(1)(i), a prior sworn statement inconsistent with a declarant witness’s subsequent testimony must have been “given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding.” At oral argument, confirmed by a subsequent submission to this court, K.F.D. conceded E.D.’s arm punch statement to Officer O’Hagan at the scene was not in his sworn written statement to the police. TVW, https://tvw.org/video/division-1-court-of-appeals- 2022091079/?eventID=2022091079 at 18:40 (last visited October 1, 2022). 6 No. 83047-3-I /7
are not hearsay.” State v. Heutink, 12 Wn. App. 2d 336, 356-57, 458 P.3d 796
(2020) (quoting Henderson v. Tyrrell, 80 Wn. App. 592, 620, 910 P.2d 522
(1996)). However, to be admissible on that basis, the listener’s state of mind
must be relevant to some material fact. Heutlink, 12 Wn. App. 2d at 357.
Relevant evidence is evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. ER 401. “Assault is an intentional
touching or striking of another person that is harmful or offensive, regardless of
whether it results in physical injury.” State v. Osman, 192 Wn. App. 355, 378, 366
P.3d 956 (2016) (internal quotations omitted) (construing the elements of fourth
degree assault, RCW 9A.36.041). Here, the impact of E.D.’s statement on Officer
O’Hagan’s perceptions at the scene is not relevant to any fact of consequence to
the charge of fourth degree assault. 6
E.D.’s statement to Officer O’Hagan at the scene was not admissible
either as a prior inconsistent statement or for a non-hearsay purpose. Therefore,
the trial court did not abuse its discretion by excluding Officer O’Hagan’s
testimony about the statement. 7
II. Whether K.F.D. was Prevented from Presenting a Defense
6 K.F.D. also argues on appeal that E.D.’s statement to Officer O’Hagan could be offered for the non-hearsay purpose of corroborating that E.D. and K.F.D. were engaged in horseplay. But K.F.D. provides no record citation to show that this was argued below. This court need not consider an issue raised for the first time on appeal. “As a general rule, appellate courts will not consider issues raised for the first time on appeal.” State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). 7 Because we hold that the trial court did not abuse its discretion, we need not conduct a separate harmless error analysis. 7 No. 83047-3-I /8
K.F.D. argues that excluding Officer O’Hagan’s testimony about E.D.’s
“arm punch” statement violated his constitutional right to present a defense.
While a defendant has the constitutional right to present a defense, this right is
not without limitation. State v. Orn, 197 Wn.2d 343, 352, 482 P.3d 913 (2021).
“[T]he Constitution permits judges ‘to exclude evidence that is “repetitive … only
marginally relevant” or poses an undue risk of “harassment, prejudice, [or]
confusion of the issues.” ’ ” Orn, 197 Wn.2d at 352 (citing Holmes v. South
Carolina, 547 U.S. 319, 326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)
(alterations in original) (other internal citations omitted)). If evidence is not
relevant under ER 401, there is no constitutional problem in excluding it. State v.
Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). “If the evidence is relevant, the
reviewing court must weigh the defendant’s right to produce relevant evidence
against the State’s interest in limiting the prejudicial effects of that evidence to
determine if excluding the evidence violates the defendant’s constitutional rights.”
Jennings, 199 Wn.2d at 63 (citing Hudlow, 99 Wn.2d at 16; Orn, 197 Wn.2d at
353).
Here, E.D.’s statement to Officer O’Hagan was at least minimally relevant,
as it would have impeached E.D.’s testimony that K.F.D. had never punched him,
thus placing a key witness’s credibility at issue. Generally, “the more essential
the witness is to the prosecution's case, the more latitude the defense should be
given to explore fundamental elements such as motive, bias, [or] credibility.”
State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002), cited in Orn, 197
Wn.2d at 354.
8 No. 83047-3-I /9
However, our Supreme Court has recognized “a distinction between
evidence that merely bolsters credibility and evidence that is necessary to
present a defense.” Jennings, 199 Wn.2d at 66-67. In Jennings, the defendant
sought admission of a toxicology report to corroborate his defense of self-
defense, that he shot and killed the victim because the victim was high on
methamphetamine. Id. at 57. After determining the trial court had not abused its
discretion by excluding the report as speculative, the Court balanced the
defendant’s right to present the toxicology evidence against the State’s interest in
limiting the prejudicial effects of the evidence. Id. at 65-66. The Court reasoned
that, although the report would have corroborated the defendant’s belief that the
victim was high on methamphetamine, the report was only “minimally relevant”
because the defendant “was still able to testify regarding his subjective fear and
belief that [the victim] was high on methamphetamine, which was his theory of
the case.” Id. at 66-67. Because of the State’s interest in “avoiding the prejudicial
and speculative effect” of the expert report on the fact-finding process, the Court
held that excluding the report did not deprive the defendant of his constitutional
right to present a defense. Id. at 66.
In contrast, in cases where the court held the exclusion of evidence
deprived a defendant of a constitutional right to present a defense, the evidence
excluded was necessary and critical to the defense, and it outweighed any
opposing State interest. For example, in State v. Orn, the trial court restricted
cross-examination of the victim for bias “to a single misleading question.” 197
Wn.2d 343, 347, 482 P.3d 913 (2021). The investigating police department made
9 No. 83047-3-I /10
a deal with the victim, the State’s key witness and the only testifying eyewitness,
not to pursue other felony charges against the victim if he became a confidential
informant for the police. Id. at 349-51. The Court reasoned “[t]he single, vague
question permitted – ‘[I]sn’t it true that since this incident, you have actually
worked with Kent Police Department?’ ”—was “affirmatively misleading” because
“a reasonable listener would not likely interpret ‘worked with’ to indicate ‘worked
as a confidential informant to avoid being charged himself.’ ” Id. at 355. While the
defendant was still able to impeach the victim’s credibility with prior inconsistent
statements and other testimony, “the [trial court’s] error … was specifically that
the [excluded] evidence showed [the victim’s] bias—not just that it damaged his
credibility generally.” Id. at 356. While the Court affirmed the defendant’s
conviction because the trial court’s error was harmless beyond a reasonable
doubt, the Court “agree[d] with [the defendant] that even under an abuse of
discretion standard, [the defendant’s] need to present this evidence [of bias]
outweighed any purported [S]tate interest in excluding it.” Id. at 358. The Court
“reiterate[d that] highly relevant bias evidence . . . is admissible unless the State
articulates a compelling interest for excluding it.” Id. at 347-48.
Similarly, in State v. Jones, the excluded evidence was of “extremely high
probative value and [could not] be barred without violating the Sixth
Amendment.” 168 Wn.2d 713, 724, 230 P.3d 576 (2010). There, the defendant
wanted to testify that the rape victim “consented to sex during an all-night drug-
induced sex party.” Id. at 721. The trial court determined the rape shield statute
barred his testimony. Id. at 717-18. On review, the Court noted precedent “made
10 No. 83047-3-I /11
a clear distinction between evidence of the general promiscuity of a rape victim
and evidence that, if excluded, would deprive defendants of the ability to testify to
their versions of the incident.” Id. at 720-21. The Court held that the trial court
violated the defendant’s Sixth Amendment rights because his testimony that the
victim had consented was “not marginally relevant evidence that a [trial] court
should balance against the State’s interest in excluding the evidence. Instead, it
is evidence of extremely high probative value; it is [the defendant]’s entire
defense.” Id. at 721.
By contrast, here, the trial court excluded minimally relevant evidence that
would have merely added to other similar evidence impeaching E.D.’s credibility.
The State has—indeed, both parties have—an interest in ensuring “the integrity
of the truthfinding process.” See Jennings, 199 Wn.2d at 66 (“[T]he integrity of
the truthfinding process and [a] defendant’s right to a fair trial” are both important
considerations.) Id. (citing Hudlow, 99 Wn.2d at 14). “The purpose of the Rules of
Evidence is to afford any litigant a fair proceeding.” State v. Bartholomew, 101
Wn.2d 631, 640, 683 P.2d 1079 (1984) (citing ER 102). “These rules shall be
construed to secure fairness in administration, elimination of unjustifiable
expense and delay, and promotion of growth and development of the law of
evidence to the end that the truth may be ascertained and proceedings justly
determined.” ER 102. Specifically, while the rule at issue here, ER 613(b), allows
impeachment of a witness with a prior out-of-court statement that is inconsistent
with their testimony, even if that statement would otherwise be inadmissible
hearsay, State v. Clinkenbeard, 130 Wn. App. 552, 569, 123 P.3d 872 (2005),
11 No. 83047-3-I /12
extrinsic evidence of a prior inconsistent statement is inadmissible in the absence
of a proper foundation. ER 613(b); State v. Horton, 116 Wn. App. 909, 914, 68
P.3d 1145 (2003). Impeachment evidence affects the witness’s credibility but is
not probative of the substantive facts encompassed by the evidence.
Clinkenbeard, 130 Wn. App. at 569 (citing State v. Johnson, 40 Wn. App. 371,
377, 699 P.2d 221 (1985)). Absent the proper foundation, Officer O’Hagan’s
impeachment testimony about what E.D. said constitutes inadmissible and
unreliable hearsay. Without the proper foundation, it would be unclear that the
purpose of that statement was limited to impeachment. The State has an interest
in preventing the prejudice introduced by the admission of extrinsic evidence of
an unsworn statement, particularly when it was entirely within K.F.D.’s power to
lay a proper foundation and thereby avoid the prejudice.
“At its core, the constitutional right to present a defense ensures the
defendant has an opportunity to defend against the State’s accusations.”
Jennings, 199 Wn.2d at 66. Here, K.F.D. failed to lay an adequate foundation for
the arm punch statement. Despite that self-inflicted procedural misstep, K.F.D.
still was able to present his version of the events: that E.D.’s version of the
events has “consistently changed,” E.D. “trusted” K.F.D., and what happened
that day on the dock was a “misunderstanding, miscommunication, and a
misrepresentation.” K.F.D. presented that defense through his own testimony
and the testimony of other witnesses, including Officer O’Hagan. While Officer
O’Hagan was not allowed to testify about E.D.’s arm punch statement, Officer
O’Hagan was allowed to testify to numerous inconsistencies in E.D.’s testimony,
12 No. 83047-3-I /13
including for how long E.D. knew K.F.D., about how E.D. did not mention any
choke hold to officers at the scene, and about how he observed no injury to E.D.
On balance, K.F.D.’s interest in one minimally probative statement that
merely bolsters other impeachment of E.D.’s credibility is outweighed by the
State’s interest in the integrity of the truthfinding process. The trial court did not
violate K.F.D.’s constitutional right to present a defense by excluding Officer
O’Hagan’s testimony about the arm punch statement.
We affirm.
WE CONCUR: