State v. Thomas

757 P.2d 512, 110 Wash. 2d 859, 1988 Wash. LEXIS 81
CourtWashington Supreme Court
DecidedJuly 7, 1988
Docket53640-6
StatusPublished
Cited by25 cases

This text of 757 P.2d 512 (State v. Thomas) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Thomas, 757 P.2d 512, 110 Wash. 2d 859, 1988 Wash. LEXIS 81 (Wash. 1988).

Opinions

Brachtenbach, J.

The defendant was convicted of third degree rape. The Court of Appeals affirmed. State v. Thomas, 46 Wn. App. 280, 730 P.2d 117 (1986), review granted, 108 Wn.2d 1001 (1987). We affirm.

The sole issue raised by the petition for review is whether the trial court must instruct on character evidence when the defendant has introduced relevant character testimony. Defendant contends the failure to give his requested instruction is contrary to the holding in State v. Allen, 89 Wn.2d 651, 574 P.2d 1182 (1978).

Defendant requested the following instruction:

Evidence of the defendant's good character may be sufficient to raise a reasonable doubt whether the defendant is guilty, where doubt would otherwise not exist.

[861]*861Clerk's Papers, at 19.

The trial court gave no instruction dealing specifically with character evidence. The given instructions did instruct the jury to consider all the evidence and that a reasonable doubt could exist after "fully, fairly and carefully considering all of the evidence”. (Italics ours.) Clerk's Papers, at 18. The defendant in closing argument argued fully the testimony of defendant's character.

We conclude (1) that when justified by the evidence an instruction of the nature discussed hereafter should be given, (2) that the defendant's requested instruction was properly refused and (3) that any error was harmless.

The 14-year-old victim was a frequent visitor in the home of defendant, his wife and their two small children. On the night of the incident, the victim was asleep in a bedroom in defendant's home. Defendant left the home about 10 p.m. He and a friend returned at about 4:30 a.m. from a lengthy bout of drinking, privately and in lounges in Tacoma.

The victim heard defendant's wife ask him what he was doing at that hour. The victim then saw someone at the door of the bedroom. She asked defendant "[i]s that you Doug [defendant]?" He replied "Yes". The defendant's wife confirms the approximate time and hearing defendant and the victim talking. Shortly thereafter the victim was awakened by someone whom she positively identified as the defendant, who asked her if "she would tell?" She feigned sleep and did not answer. Again, later, she was awakened by the person who got in bed and raped her. She felt a wet and sticky liquid on her legs. There was evidence of semen and blood on the victim's underpants. The victim testified that she could not see her attacker because of darkness, but knew it was the defendant because of his large legs and chest. The other man in the house, who is implicated as the possible rapist according to the defendant, was described as skinnier than the defendant. Upon awakening later in the morning, the victim left promptly, called her mother and [862]*862informed her of the rape, reported it to the police and named defendant as the assailant.

Defendant's wife testified that defendant was drunk when he came home about 4:30 a.m., that he came into their bedroom briefly after she heard him talking to the victim, and that he said he and his friend were going out cruising. Then he left the bedroom and she did not know where he was until he came back, perhaps a half an hour later, and passed out in the bed.

The other man in the house fell asleep immediately after defendant and he decided not to go out again. He denied any contact with the victim. The defendant also denied having any contact with the victim other than speaking to her when he first came home.

In a lengthy and vigorous closing argument defense counsel dwelt at length on the State's burden of proof, he questioned whether there had even been a sexual act with the victim, alluded to her having a boyfriend, and argued that it was unlikely that she was a virgin as she testified. Counsel accused the victim and her mother of lying.

Our analysis proceeds upon several established principles. First, the claimed error is not of constitutional magnitude. Second, the claimed error is not ground for reversal unless it was prejudicial. It is not prejudicial "unless, within reasonable probabilities, had the error not occurred, the outcome . . . would have been materially affected." State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).

Two points must be emphasized. First, the proposed instruction was properly refused. Second, even if it is assumed, arguendo, that it was error not to give any instruction on the effect and rule of character evidence, that assumed error was harmless in this case. To be contrasted, although not applicable here, is the instance where an instruction contains erroneous statement of law. See State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977).

It is interesting to note that defendant's brief contends that it is a per se automatic reversible error to fail to give [863]*863an evidence of character instruction. He does not claim that it prevented him from arguing his theory nor does he argue that within reasonable probabilities the omission materially affected the outcome. Defendant's position elevates his contention to an error of such constitutional significance that it can never be harmless error. That is not the law.

The record must be evaluated in terms of reasonable probabilities and whether the outcome was materially affected. Thus, the proper resolution depends upon the probability that the error materially affected the result, i.e., a 2-component analysis. It is not a question of some possibility and not a question of a remote probability. Rather it must involve a reasonable probability. Connected to that must be a determination whether the omitted instruction materially affected the outcome. Again, it is not the fact that every event or omission in a trial might conceivably have some effect upon the verdict. Rather, the inquiry is whether it has a material effect.

The reviewing court cannot isolate evidence, but must "scrutinize the entire record" and determine whether the claimed error affected the result. State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947).

In evaluating the claimed error it is important to put the underlying testimony in context. Three witnesses testified that defendant had a good reputation for being "sexual[ly] moral," for "sexual uprighteousness" and for being a "sexually decent person." Their entire collective testimony represents 14 pages of 494 pages of the report of proceedings.

Defense counsel was not only invited by the court, when discussing the instruction, to argue the issue to the jury, defense counsel did so. Defense counsel specifically named the three witnesses who testified as to defendant's character and argued as follows:

Theresa Dixon, Doug Ross, Valorie Lowe, just briefly, they told you what kind of man Doug Thomas is and they told you a little bit about his family. What I think is important here to note is that as they testified they all know his reputation in the community in which he [864]

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Cite This Page — Counsel Stack

Bluebook (online)
757 P.2d 512, 110 Wash. 2d 859, 1988 Wash. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-wash-1988.