State v. Wilmoth

644 P.2d 1211, 31 Wash. App. 820, 1982 Wash. App. LEXIS 2768

• Court: Court of Appeals of Washington
• Decided: May 6, 1982
• Docket: 4148-4-III
• Status: Published

Opinions

Munson, J.

Defendant Barry Wilmoth appeals his conviction of first degree rape.

On the evening of April 17, 1979, 18-year-old Natalie, upset by a family argument, left home and walked several blocks to a phone booth at a nearby store. There, she met a stranger, the defendant Barry Wilmoth, who offered to drive her back to a friend's house. Stopping en route, she and the defendant engaged in sexual intercourse in his pickup truck.

Though Natalie testified the acts were in response to threats by the defendant, the defense was consent. Wilmoth testified he was carrying a pistol, a rifle and a box of shells in his truck at the time. Prior to trial, he moved pursuant to RCW 9.79.150¹ to admit evidence of Natalie's prior sexual conduct and general character. Specifically, he sought to introduce evidence that Natalie had sexual relations over a period of time with two other men, arguing these experiences indicated a propensity to consent. The trial court ruled the circumstances of her leaving home might be relevant to her state of mind, but would not allow the defense to probe too deeply nor allow evidence of her prior sexual history.

First, Wilmoth contends the trial court erred in employing RCW 9.79.150 to prevent him from introducing evidence of prior sexual conduct. We have previously held that statute to be constitutional. State v. Kalamarski, 27 Wn. App. 787, 620 P.2d 1017 (1980). Division Two of this court in State v. Hudlow, 30 Wn. App. 503, 635 P.2d 1096 (1981), review granted, 97 Wn.2d 1001 (1982), allowed evidence of past sexual conduct to be admitted in a factual context far removed from that presented in this case. Here, the trial court in its discretion found the complainant's past conduct had no bearing on the probability of consent under the circumstances presented. Because there was no evidence the victim engaged in random, careless sex following transient encounters, we agree with the trial court's conclusion.

[2] Second, Wilmoth sought to introduce general character evidence of the victim pursuant to ER 404(a)(2).² Matters pertaining to prior sexual history are controlled by RCW 9A.44.020, as discussed above. See Comment, ER 404, 91 Wn.2d 1133 (1978). The court allowed a certain amount of inquiry into the complainant's state of mind the night of the rape. The testimony allowed was admissible to attempt to demonstrate the complainant's distraught state of mind and establish the possibility of mistake or bias in her testimony. Wilmoth has failed to establish what objective he would have obtained had he been allowed to pursue these issues further. As noted, details of complainant's sexual history were not relevant to the issue of consent. Since the complainant's distraught state of mind was established, we see little that could have been accomplished by a further pursuit of these questions. Such line drawing lies within the discretion of the trial court in its determination of the relevance of evidence. State v. Schimmelpfennig, 92 Wn.2d 95, 98, 594 P.2d 442 (1979). We find no error.

Third, Wilmoth claims the trial court erred in denying his motion for a mistrial because of juror misconduct. During a recess, a juror offered some headache medicine to the complaining witness. The trial court decided the conversation was innocuous; Wilmoth argued that it tended to create sympathy in the mind of the juror toward the complaining witness. Communication between a juror and a complaining witness is error, but may be harmless. State v. Saraceno, 23 Wn. App. 473, 596 P.2d 297 (1979).

The defendant must establish prejudice for error to exist. In State v. Vasquez, 130 Ariz. 103, 107, 634 P.2d 391, 395 (1981), the court stated:

"We are ohly justified in disturbing the verdict of guilty on account of the alleged misconduct of a juror when it is shown that such misconduct was prejudicial to the rights of the defendant, or when such a state of facts is shown that it may fairly be presumed therefrom that the defendant's rights were prejudiced." State v. Adams, 27 Ariz. App. 389, 392, 555 P.2d 358, 361 (1976).

Whether such prejudice exists is a matter of fact within the discretion of the trial court. State v. Young, 89 Wn.2d 613, 630, 574 P.2d 1171, cert. denied, 439 U.S. 870, 58 L. Ed. 2d 182, 99 S. Ct. 200 (1978). The court found no prejudice. The court also admonished the jury not to be influenced by sympathy or prejudice, an admonition they presumptively followed. State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976). See also Annot., Prejudicial Effect, in Criminal Case, of Communications Between Witnesses and Jurors, 9 A.L.R.3d 1275 (1966). We find no abuse of discretion.

Fourth, defendant argues a prosecutor's comment on his postarrest silence was prejudicial pursuant to Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); State v. Cosden, 18 Wn. App. 213, 220, 568 P.2d 802 (1977), cert. denied, 439 U.S. 823, 58 L. Ed. 2d 115, 99 S. Ct. 90 (1978). On direct examination, Wilmoth said he turned himself in voluntarily. The following occurred:

Q You voluntarily came back. You wanted to get this cleared up?

A Yes.

Q You refused to give a statement of your side of the story to the—

A No, I didn't.

At this point, an objection was made and sustained. Unequivocal postarrest assertion of the Fifth Amendment right to remain silent may not be used to impeach a defendant's testimony at trial because it is "insolubly ambiguous" and does not necessarily tend to show a fabricated defense. Doyle v. Ohio, supra; State v. Modica, 18 Wn. App. 467, 569 P.2d 1161 (1977); State v. Upton, 16 Wn. App. 195, 198-99, 556 P.2d 239 (1976); but see State v. Cosden, supra (distinguishing Upton and Modica).

The prosecutor's question, and the defendant's ambiguous answer, were error. However, they constituted a passing comment rather than a full exploration of the question as occurred in State v. Vargas, 25 Wn. App. 809, 812, 610 P.2d 1 (1980). If the comment is error, it is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967); State v. Fricks, 91 Wn.2d 391, 396, 588 P.2d 1328 (1979). In reviewing the testimony and the court's precautionary instruction, we do not believe the jury was influenced by the inquiry.

Accordingly, we affirm the conviction on all counts.

Green, J., concurs.

1 RCW 9.79.150 was recodified as RCW 9A.44.020 in 1979, which provides in relevant part:

” (3) In any prosecution for the crime of rape or for an attempt to commit, or an assault with an intent to commit any such crime evidence of the victim's past sexual behavior including but not limited to the victim's marital behavior, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is not admissible if offered to attack the credibility of the victim and is admissible on the issue of consent only pursuant to the following procedure:

" (a) A written pretrial motion shall be made by the defendant to the court and prosecutor stating that the defense has an offer of proof of the relevancy of evidence of the past sexual behavior of the victim proposed to be presented and its relevancy on the issue of the consent of the victim.

"(b) The written motion shall be accompanied by an affidavit or affidavits in which the offer of proof shall be stated.

" (c) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and the hearing shall be closed except to the necessary witnesses, the defendant, counsel, and those who have a direct interest in the case or in the work of the court.

" (d) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered by the defendant regarding the past sexual behavior of the victim is relevant to the issue of the victim's consent; is not inadmissible because its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice; and that its exclusion would result in denial of substantial justice to the defendant; the court shall make an order stating what evidence may be introduced by the defendant, which order may include the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court."

2 ER 404(a)(2) provides:

"(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

"(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the'prosecution in a homicide case to rebut evidence that the victim was the first aggressor; . . .” (Italics ours.)