FILED JULY 16, 2020 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
STATE OF WASHINGTON, ) No. 36488-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) NATHAN B. NAVE, ) a/k/a NATHAN BRICK NAVE, ) ) Appellant. )
LAWRENCE-BERREY, J. — Nathan Nave appeals after a jury found him guilty of
second degree rape, third degree rape of a child, and third degree child molestation. The
jury also made a special finding for each offense that it included the aggravating
circumstance of an ongoing pattern of abuse of the same victim under 18 years old. Mr.
Nave raises several issues on appeal. We remand to strike the criminal filing fee, but
otherwise affirm. No. 36488-7-III State v. Nave
FACTS
Danielle Valentine gave birth to I.V.1 in June 2002. Ms. Valentine began dating
Nathan Nave when I.V. was 5. The two had twin girls and eventually married. The
family lived in a two-level house. I.V.’s bedroom was downstairs next to a living room
and the other bedrooms were upstairs.
Once when I.V. was 11, she and Mr. Nave were watching a movie. I.V. fell asleep
and, when she awoke, Mr. Nave was touching her under her shorts on her upper thigh. At
the time, I.V. thought he was just massaging her legs, but was alarmed because the
touching was so far up on her leg.
About two years later, I.V. fell asleep watching a movie in the living room on the
opposite side of a couch from Mr. Nave. When she awoke, Mr. Nave was touching her
vagina, but above her underwear. I.V. tried to go to her room, but Mr. Nave insisted she
stay. He pulled her arm, but she pulled away and went to her bedroom. She did not
disclose this incident to her mother, but she stopped watching movies with Mr. Nave.
1 To protect the privacy interests of I.V., we identify her only through the use of initials. General Order of Division III, In Re the Use of Initials or Pseudonyms for Child Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber= 2012_001&div=III.
2 No. 36488-7-III State v. Nave
The next incident occurred in early 2017. I.V. was asleep in her bedroom, facing
the wall, and was awakened by someone touching her. The person, whom I.V. later
testified as Mr. Nave, massaged her legs, rubbed her back, and touched her vagina. This
occurred for 15 to 20 minutes, and I.V. was terrified. The person penetrated I.V.’s vagina
digitally. Again, I.V. did not disclose this to her mother.
After that incident, the sexual abuse continued three or four times per week. Each
time, I.V. faced the wall and often covered her head with a blanket because she did not
want Mr. Nave to know she was awake. I.V. never saw the person who repeatedly abused
her during this time nor did the person ever speak to her during the abuse.
In the midst of this abuse, Mr. Nave once acknowledged he had come into her
room the prior night. While driving I.V. to school, Mr. Nave said, “[A]bout last night,
one of three things could happen. One, you don’t tell anyone and I keep doing it; two,
you don’t tell anyone and I stop; three, you feel like you have to tell someone.” Report of
Proceedings (RP) at 63. I.V. told him she would not tell anyone and for him to stop. Mr.
Nave explained that if she told someone, the family would lose their home. Despite I.V.’s
request that he stop, Mr. Nave continued sexually abusing I.V.
On May 12, 2017, I.V. told her mother that Mr. Nave had raped her. Her mother
confronted Mr. Nave and told him to leave the house and go to his mother’s house
3 No. 36488-7-III State v. Nave
because she needed to figure things out. Mr. Nave then went to his mother’s house. Mr.
Nave quit his job, sold his car, and traveled to New York the following day.
On May 31, 2017, the State charged Mr. Nave with one count of rape in the second
degree, one count of rape of a child in the third degree, and one count of child molestation
in the third degree. The charges included a special allegation of aggravating
circumstances for each count, alleging that the offense was part of an ongoing pattern of
abuse of the same victim under 18 years old. Federal marshals later served an arrest
warrant on Mr. Nave in Idaho Falls, Idaho, where he had been staying with his cousin.
Pretrial motions
Prior to trial, the State filed a motion to allow evidence that Mr. Nave had touched
I.V. when she was 11 and 13. The State argued the evidence was needed to prove the
charged aggravator. Mr. Nave argued the prior acts were not criminal and nothing
happened since the 2013 incident, thus making the acts irrelevant. The trial court granted
the State’s motion, ruling the evidence could be admitted under ER 404(b) for the
purpose of showing lack of accident, mistake, or intent, and to show an ongoing pattern
of abuse.
The State also filed a motion to exclude evidence that I.V.’s cousin had been
sexually abused by a family member. Mr. Nave responded that I.V.’s mother “knows
4 No. 36488-7-III State v. Nave
[that I.V.] knew of the allegations [yet she] was somewhat equivocal [about] the timing,
but fully admitted that it could have been as earl[y] as a month before [I.V.] made her . . .
disclosures.” RP at 21 (emphasis added). Mr. Nave argued the evidence was important
to explain to the jury why I.V. would disclose contrived accusations in May 2017. The
State responded that Mr. Nave had no basis to say the cousin’s allegations were similar
and that Mr. Nave had not made a sufficient offer of proof. The trial court determined
that Mr. Nave’s offer of proof was too nebulous. The court added that it would
reconsider its ruling if Mr. Nave could establish the necessary link between I.V.’s and her
cousin’s allegations outside the presence of the jury before cross-examining I.V.
Mr. Nave filed a motion to exclude evidence he went to New York after being
confronted by Ms. Valentine. He also sought to exclude evidence he attempted to commit
suicide. The trial court granted the motion in part, excluding evidence of his suicide
attempt, but reserving its ruling on evidence of flight.
Trial testimony of Mr. Nave
The State presented its evidence to the jury. Mr. Nave elected to testify in his own
defense. He denied ever touching I.V. inappropriately. He also testified that after being
released on bond in Idaho, he returned to Washington as quickly as he could and
presented himself to the court.
5 No. 36488-7-III State v. Nave
During cross-examination, the State began asking questions that Mr. Nave
objected to as beyond the scope of Mr. Nave’s direct testimony. The trial court excused
the jury and heard arguments from both sides.
The State argued it was allowed to broadly question Mr. Nave based on his general
denial that he had ever sexually abused I.V. The trial court agreed. Mr. Nave added that
if the State questioned him about traveling to New York, he would object. The State
argued it was entitled to question Mr. Nave about traveling to New York to counter his
testimony that he quickly presented himself to the court. The trial court agreed.
The jury returned, and the State inquired into these areas. Mr. Nave confirmed he
went to his mother’s house after he was told to leave his house. He also confirmed he had
two young biological daughters who continued to live in the house, was a father figure to
I.V., yet quit going to work, placed his car for sale, and the next day traveled to New
York.
Verdict and sentencing
The jury found Mr. Nave guilty of all three counts and answered yes to the special
verdicts for the pattern of abuse aggravator charged on each count. The court sentenced
Mr. Nave to 194 months to life confinement. The court imposed $800 in legal financial
obligations, including $200 for the criminal filing fee.
6 No. 36488-7-III State v. Nave
Mr. Nave timely appealed.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Mr. Nave contends there was insufficient evidence to sustain his convictions. He
argues the statements made by I.V. were inconsistent, and she could not identify him as
her attacker. He further argues that his statement/confession to her while driving was not
sufficient to convict him under principles of corpus delicti. We disagree.
Evidence is sufficient to support a guilty verdict if any rational trier of fact,
viewing the evidence in the light most favorable to the State, could find the elements of
the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992). When a defendant challenges the sufficiency of the evidence, he or she
admits the truth of all of the State’s evidence. State v. Drum, 168 Wn.2d 23, 35, 225 P.3d
237 (2010).
Mr. Nave first argues I.V.’s statements were inconsistent and that she could not
have identified him as her abuser. He emphasizes that I.V. testified she never saw her
abuser and the abuser never spoke to her.
Identity of the defendant is one of the elements all crimes share that must be
proved beyond a reasonable doubt. State v. Thomson, 70 Wn. App. 200, 211, 852 P.2d
7 No. 36488-7-III State v. Nave
1104 (1993), aff’d, 123 Wn.2d 877, 872 P.2d 1097 (1994). Where testimony of
identification is unclear or inconsistent, the uncertainty only goes to the testimony’s
weight, not its admissibility. State v. Vaughn, 101 Wn.2d 604, 610, 682 P.2d 878 (1984).
Issues of witness credibility are matters exclusively reserved for the finder of fact and this
court will not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d
970 (2004).
Here, I.V. testified she always faced the wall when her abuser was touching her
and her abuser never spoke to her. However, the jury had to weigh that fact against other
facts supporting I.V.’s ability to identify Mr. Nave as her abuser. First, Mr. Nave had
touched I.V. inappropriately while she slept before. Second, the touching was sexual and
ongoing multiple times per week for several weeks. Mr. Nave was the only male in the
house, and he had unfettered access to I.V.’s basement bedroom. Not even Mr. Nave
argued that I.V.’s abuser was one of her younger sisters or her mother, all of whom slept
upstairs. Third, and most important, Mr. Nave admitted he had abused her on one
occasion when he gave her various choices of whether to report the abuse or not. Based
on these facts, the jury was given the opportunity to weigh I.V.’s credibility and decided
her identification of Mr. Nave and her accusations against him were credible. We will
not disturb the jury’s credibility findings.
8 No. 36488-7-III State v. Nave
Mr. Nave also argues that his admission to I.V. is insufficient to convict him under
the principles of corpus delicti. The State argues that Mr. Nave did not properly assign
error to this issue. We use our discretion to review the issue because it is simpler to
refute Mr. Nave’s argument than to explain whether the argument is reviewable under
RAP 2.5(a).
Corpus delicti principles protect a defendant from being convicted through false
confessions by requiring the State to show evidence of the “body of the crime.” State v.
Aten, 130 Wn.2d 640, 655-57, 927 P.2d 210 (1996). Corpus delicti involves two
elements: (1) an injury or loss (2) caused by someone’s criminal act. State v. Cardenas-
Flores, 189 Wn.2d 243, 263, 401 P.3d 19 (2017).
Here, I.V. testified she was sexually assaulted over a period of several weeks by a
person entering her room at night while she slept. This was sufficient evidence of injury
caused by someone’s criminal act.2
We conclude the State presented sufficient evidence for a reasonable trier of fact
to find beyond a reasonable doubt that Mr. Nave was the person who sexually abused I.V.
in the spring of 2017.
2 We note that “identity” is not an element of corpus delicti. See Cardenas-Flores, 189 Wn.2d at 264 n.9. Nevertheless, as mentioned previously, there was substantial evidence that Mr. Nave was the person who repeatedly abused I.V. in the spring of 2017.
9 No. 36488-7-III State v. Nave
B. EVIDENCE OF MR. NAVE’S FLIGHT
Mr. Nave next contends the trial court erred by allowing the State to present
evidence he traveled to New York following Ms. Valentine confronting him about I.V.’s
allegations. He argues evidence of flight was minimally relevant and the prejudice
outweighed whatever relevance there was. We disagree.
When reviewing a trial court’s evidentiary ruling, this court reviews for abuse of
discretion. Peralta v. State, 187 Wn.2d 888, 894, 389 P.3d 596 (2017). Abuse of
discretion is only found where the trial court’s decision is “‘manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.’” Ugolini v. Ugolini, 11 Wn.
App. 2d 443, 446, 453 P.3d 1027 (2019) (internal quotation marks omitted) (quoting State
v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009)).
Under the rules of evidence, evidence is relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” ER 401. Evidence of a
defendant’s flight is generally admissible as circumstantial evidence in determining guilt.
State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965). The principle behind this is
that a defendant’s flight is an instinctive or impulsive reaction to a consciousness of guilt
or is a deliberate action made in order to avoid prosecution. Id. Nevertheless, the
10 No. 36488-7-III State v. Nave
relationship between flight and the inference of guilt “must be substantial and sufficient
to create a reasonable and substantive inference that the defendant’s departure from the
scene of difficulty was an instinctive or impulsive reaction to a consciousness of guilt or
was a deliberate effort to evade arrest and prosecution.” Id. at 112-13.
Mr. Nave first argues the evidence he traveled to New York is minimally probative
because it does not show an impulsive or instinctive reaction to a consciousness of guilt.
He argues he did not immediately flee from the scene as is the case for most defendants in
flight, but instead flew to New York the following day.
We have found evidence of flight to be admissible even when the defendant’s
flight did not occur until one week after the commission of the crime. State v. Bryant, 73
Wn.2d 168, 172, 437 P.2d 398 (1968). Here, Mr. Nave knew that I.V. told her mother he
had raped her and knew she might contact law enforcement. Mr. Nave went to his
mother’s house, quit his job, sold his car, and the next day traveled to New York.
Mr. Nave argues he did these things because he was told to leave the house. But a
trier of fact could reasonably disagree and find that Mr. Nave took these extreme steps
because he knew that I.V.’s accusations were true and he sought to avoid arrest and
prosecution.
11 No. 36488-7-III State v. Nave
Mr. Nave next argues the prejudicial effect of evidence of flight substantially
outweighed its probative value. But ER 403 does not preclude prejudicial evidence, not
even unduly prejudicial evidence. Instead, ER 403 precludes “unfair[ly]” prejudicial
evidence. Mr. Nave does not explain why evidence of flight was unfairly prejudicial. To
the extent his unfair prejudice argument is tied to his assertion he traveled to New York
because he was told to leave his house, we are unpersuaded. Mr. Nave left his house as
instructed and went to his mother’s house. He never explained why he took the additional
steps of quitting his job, selling his car, and traveling across the country. Here, there was
a reasonable and substantial inference that Mr. Nave did these things as an impulsive
reaction to evade arrest and prosecution.
We conclude the trial court did not abuse its discretion by allowing evidence of
Mr. Nave’s flight—quitting his job, selling his car, and traveling to New York.
C. EVIDENCE OF MR. NAVE’S PRIOR ABUSE OF I.V.
Mr. Nave contends the trial court abused its discretion by allowing the State to
present evidence he touched I.V. when she was 11 and 13 years old. He argues the prior
acts were not criminal and, therefore, not relevant. He also argues whatever minimal
probative value the evidence had was outweighed by the unfair prejudice the evidence
had on the jury. We disagree.
12 No. 36488-7-III State v. Nave
Prior bad acts cannot be used to show propensity to commit a crime, but they can
be used for other reasons such as to establish motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. ER 404(b).
The State charged Mr. Nave with a special aggravator that the attacks against I.V.
were part of a pattern of abuse against her and that she was under 18 years old. Evidence
of prior abuse would have a tendency to make proof of this aggravator more probable.
Additionally, identity was a key issue at trial and remains a key issue on appeal.
Although the trial court did not cite “identity” as a reason for admitting the prior
uncharged acts, we may rely on it to affirm.3 Evidence that Mr. Nave inappropriately
touched I.V. while she slept in the basement when she was 11 and 13 years old is relevant
to who touched I.V. numerous times for several weeks while she slept in the basement
when she was 14 years old.
Mr. Nave first argues the prior actions were not overtly sexual and, therefore, are
not relevant to establish a pattern of abuse. In isolation, the first touching that occurred
high on I.V.’s thigh while she slept might be innocent. But two years later, Mr. Nave
3 “[W]e consider bases mentioned by the trial court as well as other proper bases on which the trial court’s admission of evidence may be sustained.” State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995); see also Gilmore v. Jefferson County Pub. Transp. Benefit Area, 190 Wn.2d 483, 498, 415 P.3d 212 (2018) (trial court’s evidentiary ruling will not be disturbed on appeal if it is sustainable on alternative grounds).
13 No. 36488-7-III State v. Nave
touched I.V.’s vagina while she slept, albeit over her underwear. Taken together, a
reasonable trier of fact could find that both touchings were part of a pattern of abuse.
Mr. Nave next argues that the probative value of the prior touchings were
minimally relevant and substantially outweighed by their unfair prejudice. But because
the State was required to prove identity, we cannot conclude the trial court abused its
discretion. This is especially true given the similarity of the events. The prior events and
the charged events occurred in the basement and the prior events and the charged events
occurred at night while I.V. was sleeping. The prior events were highly probative to
prove identity.
D. EVIDENCE OF I.V.’S COUSIN MAKING A SEPARATE CLAIM
Mr. Nave contends the trial court abused its discretion by excluding evidence that
I.V.’s cousin reported she was sexually abused at about the same time I.V. reported that
she had been sexually abused. He argues the evidence was highly probative because it
explained why I.V. contrived her allegations when she did. The State responds that the
trial court did not preclude the evidence. Rather, it required a clearer offer of proof. We
agree.
Prior to trial, the State filed a motion to preclude evidence that I.V.’s cousin was
sexually abused. Mr. Nave responded that I.V.’s mother knew that I.V. had heard about
14 No. 36488-7-III State v. Nave
her cousin, but that her mother was uncertain when I.V. had heard about it. The trial
court decided that Mr. Nave’s description of the evidence was too nebulous. The court
excluded the evidence, subject to Mr. Nave establishing a nexus between I.V.’s and her
cousin’s allegations. The court told Mr. Nave he could raise the issue again prior to
cross-examining I.V.
But Mr. Nave did not raise the issue again. He failed to make a specific offer of
proof of what I.V. knew and when she knew it.
In State v. Burnam, 4 Wn. App. 2d 368, 421 P.3d 977, review denied, 192 Wn.2d
1003 (2018), we emphasized the importance of a specific offer of proof. We said an offer
of proof should (1) inform the trial court of the legal theory under which the offered
evidence is admissible, (2) inform the trial court of the specific nature of the offered
evidence so the court can judge its admissibility, and (3) create an adequate record for
appellate review. Id. at 377. An offer of proof must not be so vague as to require the trial
court to speculate about the nature of the evidence. Id.
Here, the trial court tentatively excluded the evidence because Mr. Nave’s offer of
proof was nebulous. Mr. Nave did not explain how I.V.’s mother knew she had heard of
her cousin’s sexual abuse or when she had heard about it. The mother’s testimony might
be excluded on the basis of hearsay. Also, I.V. might testify that she did not know her
15 No. 36488-7-III State v. Nave
cousin had made a similar allegation or that she heard about the allegation after she had
told her mother that Mr. Nave raped her. Either way, the trial court justifiably required
Mr. Nave to raise the issue again once he could make a proper connection between I.V.’s
and her cousin’s allegations.
Mr. Nave additionally argues the trial court’s ruling deprived him of his due
process right to present a defense. We disagree. The trial court allowed Mr. Nave to
develop the necessary connection between I.V.’s and her cousin’s allegations outside the
presence of the jury and suggested it could be done prior to I.V.’s cross-examination. Mr.
Nave did not do this.
Because Mr. Nave’s offer of proof was not sufficiently specific, we conclude the
trial court did not abuse its discretion by excluding it until Mr. Nave could make a
sufficient offer of proof.
E. SCOPE OF CROSS-EXAMINATION
Mr. Nave contends the trial court abused its discretion by allowing the State to
cross-examine him beyond the scope of his direct testimony.
Challenges to the scope of cross-examination are reviewed for manifest abuse of
discretion. State v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266 (2014). Abuse of
discretion is only found where the trial court’s decision is “‘manifestly unreasonable, or
16 No. 36488-7-III State v. Nave
exercised on untenable grounds, or for untenable reasons.’” Ugolini, 11 Wn. App. 2d at
446 (internal quotation marks omitted) (quoting McCormick, 166 Wn.2d at 706).
ER 611(b) provides:
Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
First, the second sentence of ER 611(b) refutes Mr. Nave’s argument that a trial
court abuses its discretion by allowing cross-examination beyond the scope of direct
testimony.
Second, when a subject is opened on direct examination, the cross-examination
may explore the subject in its various stages. State v. Hayes, 73 Wn.2d 568, 571, 439
P.2d 978 (1968). This rule does not confine the cross-examination to only the questions
asked on direct, and the cross-examination may delve deeper into the subjects raised.
State v. Rushworth, No. 36077-6-III, slip op. at 8 (Wash. Feb. 20, 2020) (published in
part), http://www.courts.wa.gov/opinions/pdf/360776_pub.pdf.
Mr. Nave argues the trial court erred by allowing the State to question him about
the uncharged touchings that occurred when I.V. was 11 and 13 years old. We disagree.
In State v. Solomon, 5 Wn. App. 412, 420, 487 P.2d 643 (1971), the defendant elected to
testify and briefly denied he committed the charged crimes. The State, over defense
17 No. 36488-7-III State v. Nave
objections, cross-examined him about where he was the night of the crime. Id. We
concluded that the trial court did not abuse its discretion by allowing the cross-
examination because it explored the various phases of the defendant’s general denial. Id.
at 420-21.
Similarly, Mr. Nave elected to testify, and he denied he had ever touched I.V. in an
inappropriate manner. This claim permitted the State to question him about the previous
uncharged touchings about which I.V. had already testified. As mentioned previously,
those touchings were not excludable under ER 404(b) as evidence of prior bad acts
because those touchings were relevant to the charged aggravating factor and to whether
he was the person who came into I.V.’s room throughout the spring of 2017 and
repeatedly abused her.
Mr. Nave next argues the trial court erred by allowing the State to question him
about his travel to New York. We disagree. Mr. Nave testified on direct that after he was
arrested in Idaho and posted bail, he returned to Washington as quickly as he could and
presented himself to the court. This testimony gave the jury the impression that Mr. Nave
was eager to defend against the charges. The State was permitted to challenge this
impression with evidence that Mr. Nave was not eager to defend against the charges. Ms.
Valentine had already testified that Mr. Nave telephoned her shortly after she told him to
18 No. 36488-7-III State v. Nave
leave the house and the telephone number of his incoming call showed he was calling
from New York. The State was entitled to question Mr. Nave about this and to argue this
showed that Mr. Nave was not eager to face the charges.
We conclude the trial court did not abuse its discretion in allowing the State to
cross-examine Mr. Nave on these two subjects.4
F. CRIMINAL FILING FEE
Mr. Nave contends the trial court erred by imposing a $200 criminal filing
fee. He argues the trial court found that he was indigent for purposes of appeal, and
RCW 10.01.160(3) expressly prohibits trial courts from imposing discretionary legal
financial obligations on defendants who are indigent at the time of sentencing. He
correctly cites RCW 36.18.020(2)(h) to support his argument that the criminal filing fee is
a discretionary cost.
We exercise our discretion and review this claim of error that was not preserved
below by an objection. We direct the trial court to strike the criminal filing fee.
4 Because we conclude that the trial court did not abuse its discretion in any of its evidentiary rulings, we need not address Mr. Nave’s argument that cumulative error requires reversal and a new trial.
19 No. 36488-7-III State v. Nave
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)
SAG I: SUFFICIENCY OF THE EVIDENCE
Mr. Nave contends the elements of his case were not proved beyond a reasonable
doubt and that the evidence against him was speculative. In making this argument, he
challenges the sufficiency of the evidence with respect to I.V.’s identification of him as
her abuser. We have already analyzed and rejected this argument.
SAG II, III: LACK OF GRAND JURY INDICTMENT
Mr. Nave raises two separate arguments that contain the same core complaint—
that he was not indicted by a grand jury. These arguments are based on the mistaken
belief that a defendant has a guaranteed constitutional right to be indicted by a grand jury.
A defendant does not have such a right. See State v. Jefferson, 79 Wn.2d 345, 485 P.2d
77 (1971).
In Washington, the State has four options for the procedure it uses to file a
criminal complaint. Id. at 347. It may (1) file the complaint with the superior court,
(2) seek a grand jury indictment, (3) initiate inquest proceedings, or (4) file a criminal
complaint before a magistrate for a preliminary hearing. Id. Any of these methods are
allowed under Washington law and the Washington Constitution. Id. Here, the State
filed the complaint with the superior court.
20 No. 36488-7-III State v. Nave
Neither the Washington nor federal constitutions guarantee a defendant the right to
a grand jury indictment. Id. at 347-48. As noted in Jefferson, the ability for a prosecutor
to choose to file a criminal complaint is upheld by the United States Supreme Court. Id.
at 348 (citing Beck v. Washington, 369 U.S. 541, 545, 82 S. Ct. 955, 8 L. Ed. 2d 98
(1962)). For this reason, a defendant is not guaranteed the right to a grand jury
indictment as the Court in Beck noted. 369 U.S. at 545.
SAG IV; SAG V: LACK OF PRELIMINARY FINDING OF PROBABLE CAUSE
Mr. Nave again raises two arguments that contain the same core complaint. His
core complaint here is that he was denied a preliminary hearing where a neutral
magistrate could have determined there was insufficient probable cause for him to be
arrested and prosecuted.
Mr. Nave is mistaken. The record shows that a hearing occurred in late May 2017,
in which the trial court reviewed an affidavit establishing probable cause and found
probable cause for Mr. Nave’s arrest and detention. Although the order does not
specifically identify the affidavit reviewed, we note the court record at the time included a
May 25, 2017 certified statement by Detective Brandon Armstrong that set forth detailed
and sufficient facts for Mr. Nave’s arrest and detention.
21 No. 36488-7-III State v. Nave
SAG VI: BRADY5 VIOLATIONS
Mr. Nave contends the State committed multiple Brady violations by suppressing
the evidence that I.V.’s cousin disclosed a sexual assault against her and by allowing I.V.
to perjure herself with inconsistent statements. Mr. Nave misconstrues what a Brady
violation is.
A Brady violation requires proof of three elements: “[(1)] The evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; [(2)] that evidence must have been suppressed by the State, either willfully
or inadvertently; and [(3)] prejudice must have ensued.” State v. Mullen, 171 Wn.2d 881,
895, 259 P.3d 158 (2011) (alterations in original) (quoting Strickler v. Greene, 527 U.S.
263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). When viewing the second
element, the key factor is that the State must be in possession of evidence that it does not
turn over to the defense and that evidence must have been unobtainable to the defense
through its own investigation. Id. at 895-96.
Mr. Nave complains the State committed a Brady violation when it successfully
prevented him from inquiring about I.V.’s cousin’s allegation against a family member
and when a detective suggested to I.V. that Mr. Nave had oral contact with her. Neither
5 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
22 No. 36488-7-III State v. Nave
of these complaints involve the State failing to turn over evidence to Mr. Nave. Mr. Nave
was aware of the evidence, sought to have the cousin’s allegation admitted, and asked
questions at trial about the detective’s purported improper suggestion.
SAG VII: EVIDENCE OF MR. NAVE’S FLIGHT
Mr. Nave repeats the arguments raised above about the trial court allowing
evidence of flight. Because we have addressed this issue above, we do not do so again
here.
SAG VIII: EVIDENCE NAVE PREVIOUSLY TOUCHED I.V. INAPPROPRIATELY
Mr. Nave repeats the arguments raised above about the trial court allowing
evidence of his prior touching of I.V. Because we have addressed this issue above, we do
not do so again here.
SAG IX: I.V.’S COUSIN’S STATEMENTS
Mr. Nave repeats the arguments raised above about the trial court excluding
evidence that I.V.’s cousin alleged a family member sexually abused her. Because we
have addressed this issue above, we do not do so again here.
23 No. 36488-7-III State v. Nave
Affirmed in part and remanded.
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.
Lawrence-Berrey, J.\ j WE CONCUR:
Korsmo, A.CJ. Siddoway, J.