          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                    )       No. 78093-0-I
                                            )
                      Respondent,
                                            )      DIVISION ONE
                      v.                    )
                                            )
RYAN MARCUS GONZALEZ,                       )      UNPUBLISHED OPINION
                                            )
                      Appellant.            )      FILED: July 15, 2019


       MANN, A.C.J.   —    Ryan Gonzalez appeals his conviction for burglary in the first

degree and felony violation of a court order. Gonzalez argues that the trial court

violated his constitutional right to present a defense by (1) excluding two witnesses who

he claims were prepared to testify as to his victim’s reputation for peacefulness and (2)

denying his request to put on evidence of allegedly false reports of abuse that his victim

had made against her previous boyfriends. We affirm.



       On April 13, 2017, shortly after being released from jail, Gonzalez showed up at

his ex-girlfriend Michelle Wirth’s apartment. Gonzalez knew that he had a no-contact

order in place but wanted to speak with Wirth about a possible reconciliation. A few
No. 78093-0-112

days later the pair rekindled their intimate relationship. Then, on April 19, 2017,

Gonzales and Wirth spent the day together. Wirth had a late morning hair appointment,

which Gonzalez attended with her. While Wirth was getting a haircut, Gonzalez went to

a nearby bar and began to drink. After Wirth’s haircut finished, the pair went to a pizza

place and continued to drink. They were later joined by Wirth’s friend, Travis Sanders.

       While at the pizza place, Gonzalez continued to drink until he became

intoxicated. The three stayed there for a few hours, eating pizza, listening to music, and

hitting a broken television with a hammer. When Gonzalez left to attend a family dinner,

Wirth and Sanders went to a local bar to discuss Wirth’s relationship with Gonzalez.

      A few hours later, Gonzalez joined Wirth and Sanders at the local bar. Wirth and

Sanders became uncomfortable because Gonzalez was intoxicated but continued to

drink. After leaving the bar, the three went to Wirth’s apartment building. Wirth refused

to let Gonzalez in because he was drunk and she was concerned about his behavior.

Eventually, Gonzalez agreed to leave and the three separated: Wirth went up to her

apartment, Sanders went back to his house, and Gonzalez left. Wirth then called

Sanders on the phone to continue their conversation.

      About a half hour later, Gonzalez entered Wirth’s unlocked apartment without her

permission. Wirth was still on the phone with Sanders at the time. Sanders heard Wirth

say “Crap, Ryan’s at the door, I got to go. Ryan, what are you doing here? How did

you get in? Why are you here?” before the line disconnected. Sanders immediately

rushed back to Wirth’s apartment.

      Meanwhile, Gonzalez began assaulting Wirth. He spat in her face and choked

her. He punched and kicked Wirth in the face numerous times. At some point,


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No. 78093-0-1/3

Gonzalez stopped the assault, knocked Wirth’s broken TV to the floor, sat down on the

ground, started crying, and threatened to kill himself. Wirth then convinced Gonzalez to

leave the apartment with her.

       When the pair got outside, Sanders was at Wirth’s apartment building door trying

to get in. Wirth ran up to Sanders and said, “Ryan just beat the crap out of me.”

Hearing this, Gonzalez fled the scene.

       Wirth did not want to call the police due to fear that Gonzalez would go back to

jail so Wirth and Sanders went to a local bar to discuss what happened. On the way

back to Wirth’s apartment, Sanders eventually convinced Wirth to call the police.

Before the police arrived, however, Gonzalez returned. Sanders told Gonzalez that the

police were on their way and Gonzalez fled again.

       Seattle police officers arrived soon after. Once they learned that Gonzalez had

recently fled the scene, they began to search the area for someone matching his

description. Within minutes, police officers located Gonzalez a few blocks from Wirth’s

apartment and arrested him. Police officers testified that upon his arrest Gonzalez was

visibly intoxicated and acting belligerently towards the officers.

       Once Gonzalez was arrested, police officers returned to Wirth and called for

medical support. By this time, Wirth had a visible black eye, abrasions, and scratches

on her neck and arms. Police officers also entered Wirth’s apartment and noted that it

looked like there had been a fight inside.

       The State charged Gonzalez with domestic violence burglary in the first degree,

domestic violence felony violation of a court order, and interfering with domestic

violence reporting stemming from the April 19th incident. The State also charged


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No. 78093-0-114

Gonzalez with domestic violence misdemeanor violation of a court order based on his

showing up at Wirth’s apartment on April 13th. The jury found Gonzalez guilty of counts

one and two—domestic violence burglary in the first degree and domestic violence

felony violation of a court order—but not guilty of counts three and four. In a bifurcated

portion of the trial, the court found that the rapid recidivism aggravator as to counts one

and two was warranted. The court sentenced Gonzalez to 90 months in prison.



       Gonzalez argues that the trial court wrongly excluded two of his proffered

witnesses: Kirsten Beal and Chris Tremblay. Midway through trial, Gonzalez gave

notice that he intended to call Beal and Tremblay to testify as to Wirth’s reputation for

peacefulness. The State objected on two grounds: that Tremblay was a late, surprise

witness that should not be allowed, and that both Beal and Tremblay were improper

character witnesses under ER 608.

      The Court held the following colloquy with Gonzalez’s counsel, Ms. Pewitt:

      Ms. Pewitt:       we were just picking two people who—from the
                            .   .   .


      community who could testify to reputation of peacefulness and reputation
      for truthfulness, and Ms. Seal would be one of them.
      The Court: So Ms. Beal you want to ask for reputation for truthfulness?
      Ms. Pewitt: For peacefulness.
      The Court: For peacefulness. Okay, and what about Mr. Tremblay?
      Ms. Pewitt: Mr. Tremblay would be reputation for peacefulness, as well.

      The Court: Okay. Ms. Meyers, do you want to respond       .


      Ms. Meyers: Yes. Reputation for peacefulness isn’t admissible with the
                                            .       .


      charges   .   .And then Tremblay, I just—this isn’t trial by surprise
                        .   .                                               .   I
                                                                                .   .   .


      also don’t think that there’s any basis to believe that they can lay the
      proper foundation                 .       .


      The Court: Setting aside for a moment whether the proper foundation can
      be found, is it appropriate to allow a witness to testify to Ms. Wirth’s
      reputation for peacefulness in the context of this case?
      Ms. Meyers: No. I’m sorry, I thought they said he was going to testify to
      about truthfulness.

                                                        -4-
No. 78093-0-1/5

           The Court: No, I think I said that and she corrected me. It’s peacefulness
           for both of them, correct?
           Ms. Meyers: Oh, no, totally inappropriate. It only applies in a self-defense
           case.
           The Court: Right. So is that not the case, Ms. Pewitt.
           Ms. Pewitt: It may be. I’ll just defer to the Court.[1]
                                  .   .




        The trial court then ruled: “Mr. Tremblay is excluded from testifying for two

reasons. One, delayed disclosure with no compelling reason, and both Mr. Tremblay

and Ms. Beal, given that they were only to be offered for reputation for peacefulness

and given that that’s not relevant in this case, I will exclude each of them.”

        Gonzalez asserts that this ruling was in error. He argues that he actually sought

to have Beal and Tremblay testify as to       bJ~ reputation for peacefulness and that ER
404(a)(1) allows such evidence. Therefore, Gonzalez contends, the trial court abused

its discretion by preventing him from calling Beal and Tremblay.2 We disagree.

       We review the trial court’s exclusion of evidence for an abuse of discretion. State

v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990). “A trial court’s evidentiary ruling is

an abuse of discretion only if it is manifestly unreasonable or based upon untenable

grounds or reasons.” State v. Perez-Valdez, 172 Wn.2d 808, 815, 265 P.3d 853 (2011).

Further, we will not reverse a trial court’s evidentiary decision unless no reasonable

person would have decided the matter in the same way. State v. Castellanos, 132

Wn.2d 94, 97, 935 P.2d 1353 (1997).

       Gonzalez argues that he sought to have Beal and Tremblay testify as to his

reputation for peacefulness and that ER 404(a)(1) allows a defendant to introduce


       I  (Emphasis added.)
       2  Gonzalez makes no argument as to whether the trial court erred in prohibiting Tremblay’s
testimony based on the delayed disclosure. As such, Gonzalez has waived any such argument.
Kadoranian v. Bellingham Police DerD’t, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992) (an assignment of
error not briefed is deemed waived).

                                                 -5-
No. 78093-0-1/6

evidence of a pertinent trait of their own character. The State argues that Gonzalez did

not offer these two witnesses to testify as to his reputation for peacefulness, but to

testify as to Wirth’s reputation for peacefulness. This, the State argues, is prohibited by

ER 404(a)(2) except when offered to rebut evidence that the victim was the first

aggressor after the defendant argues self-defense in a homicide case.

       ER 404(a) provides that

       [e]vidence of a person’s character. is not admissible for the purpose of
                                             .   .


       proving action in conformity therewith       except:
                                                     .   .   .


           (1) Character of Accused. Evidence of a pertinent trait of character
           offered by an accused, or by the prosecution to rebut the same;
           (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.
       The term “pertinent” in ER 404(a) is synonymous with the term relevant and the

defendant’s reputation for peacefulness is relevant to the specific intent to commit

assault. State v. Eakins, 127 Wn.2d 490, 492, 902 P.2d 1236 (1995). Therefore, we

must first determine the purpose for which Gonzalez offered this testimony. If Gonzalez

sought to have Beal and Tremblay testify as to his own reputation for peacefulness,

then under ER 404(a)(1) and Eakins, the trial court should have allowed him to do so.

However, if Gonzalez actually sought to have Beal and Tremblay testify as to Wirth’s

reputation for peacefulness, then under ER 404(a)(2), the trial court was correct to

exclude the testimony.

       We agree with the State that below Gonzalez wanted to have Beal and Tremblay

testify as to Wirth’s reputation for peacefulness. This is borne out by three specific

points in the record. First, the trial court confirmed as such during its colloquy on this


                                             -6-
No. 78093-0-1/7

matter. The court asked counsel for the State whether “is it appropriate to allow a

witness to testify to Ms. Wirth’s reputation for peacefulness” and when given the

chance, defense counsel did not correct this statement.3

              Second, before trial, the defense explained that Beal “will testify about

statements made to her by [Wirth]                 .   .   .   about her personal observations of Wirth and

about how Wirth recently attacked her after getting angry about this case.” The State

objected to this use of Beal, arguing: “they would like for her to testify about an incident

where.            .   .   she alleges during [a] conversation that Miss Wirth assaulted her.       .   .   I don’t

see how that tends to prove any fact at issue.” To which, the defense responded: “Wirth

has   .   .   .       represented herself as somebody who avoids conflict and is a peaceable

person. And [Beal] is an example of her—people that we’ve interviewed are—there’s a

lot of people who are quite fearful of her.”4

              Third, Gonzalez submitted an affidavit by Tremblay about his testimony. In his

affidavit, Tremblay devotes a total of three sentences to Gonzalez, describing how they

know each other and Gonzalez’s work ethic. Tremblay does not mention anything

about Gonzalez’s reputation in the community or reputation for peacefulness. Tremblay

then spends the next page and a half describing how he knows Wirth, how he

witnessed Wirth fight with her ex-boyfriend, and how he generally dislikes Wirth.

              Taken together, the record demonstrates that Gonzalez wanted to call Beal and

Tremblay to testify about Wirth’s reputation for peacefulness, not his own. And as the

burden to establish the admissibility of proffered evidence rests on the proponent, State



              ~ (Emphasis added.)
        ~ In pretrial rulings, the Court prohibited the defense from calling Beal in its case-in-chief but
reserved on whether the defense could call Seal to rebut prior testimony.
                                                                 -7-
No. 78093-0-1/8

v. Giles, 196 Wn. App. 745, 757, 385 P.3d 204 (2016), it was up to Gonzalez to show

that the proffered testimony was admissible. As he failed to do so, the trial court did not

abuse its discretion by excluding the testimony of Beal and Tremblay’s testimony under

ER 404(a).

                                            Ill.

       Gonzalez next asserts that the trial court wrongly excluded evidence of Wirth’s

prior false accusations of abuse against other men. Gonzalez argues that this was an

abuse of the trial court’s discretion. We disagree.

      At trial, Gonzalez offered police reports from three events between 2011 and

2012 documenting complaints Wirth had made years before against other men, as

evidence that Wirth had a “retaliatory pattern of making false accusations against

people when she believes they have been disloyal or slighted her.” Gonzalez argued

that the evidence was not being offered as character evidence under ER 404(a) or

impermissible propensity evidence, but was admissible under ER 404(b) to show

Wirth’s motive to falsely accuse Gonzalez. The State objected to the evidence under

ER 404, arguing that none of the records actually showed that Wirth’s past allegations

were false, and that there was no connection between Wirth’s prior reports about other

people and Gonzalez.

      The trial court excluded the evidence under ER 404(a) as improper character

evidence in the form of specific instances of conduct and as improper evidence of

untruthfulness under ER 608. The trial court added:

      You may, however, on cross-examination inquire of Ms. Wirth along the
      lines of, for example: Isn’t it true that in the past on three separate
      occasions you have made formal complaints to the police about and


                                            -8-
No. 78093-0-119

       assault and then recanted? Something along that line. And then yes or
       no, and you live with the answer.

       We review a trial court’s evidentiary rulings for abuse of discretion and defer to

those rulings unless no reasonable person would take the position adopted by the trial

court. Castellanos, 132 Wn.2d at 97.

       Character evidence offered under ER 404(a)(2) to show a pertinent character

trait of a victim must be in the form of reputation evidence, not evidence of specific acts.

ER 405; Statev. Hutchinson, 135 Wn.2d 863, 886, 959 P.2d 1061 (1998). Under ER

404(b), evidence of other wrongs or acts is not admissible to prove the character of the

person in order to show action in conformity therewith, but may be admissible for other

purposes, such as proof of motive. The credibility of a witness may be attacked or

supported by reputation evidence. ER 608(a). But specific instances of conduct of the

witness for the purpose of attacking their credibility may not be proved by extrinsic

evidence. Specific instance may, at the discretion of the court, be inquired into on

cross-examination. ER 608(b). “The burden of demonstrating a proper purpose is on

the proponent of the evidence   .   .   .   [and] evidence of prior misconduct is presumptively

inadmissible.” State v. Gresham, 173 Wn. 2d 405, 420-21, 269 P.3d 207 (2012).

        Gonzalez argues that the trial court erred by excluding the exhibits documenting

prior reports because this was evidence of Wirth’s motive or plan. Gonzalez contends

that the prior reports help show that Wirth has a habit of falsely accusing her boyfriends

of abuse when they start to pull away from her. But evidence that Wirth has falsely

accused her ex-boyfriends of assault in the past, intending to show that she is doing the

same thing here, is precisely the sort of propensity evidence that ER 404 prohibits.



                                                    -9-
No. 78093-0-1/10

       Gonzalez cites Perez-Valdez and State v. Lee, 188 Wn.2d 473, 396 P.3d 316

(2017), as support for his contention that the police reports were admissible evidence of

Wirth’s motive or plan. Neither case supports this proposition.

       In Perez-Valdez, the defendant was charged with the rape of his two adoptive

daughters. 172 Wn.2d at 814-15. The trial court did not allow the defendant to

introduce evidence that the victims had set fire to their subsequent foster home as

evidence that the girls took extreme measures to get out of homes they disliked, finding

that the evidence was unduly prejudicial. 172 Wn.2d at 8 14-15. Gonzalez asserts that

this case shows that his proffered evidence was admissible and the only difference is

that his evidence is not unduly prejudicial.

       But in Perez-Valdez the desired evidence was excluded because the defense did

not lay a proper foundation to show that the arson was sufficiently related to the girls’

desire to be removed from their foster home. 172 Wn.2d at 816. Similarly here, the trial

court concluded that Gonzalez did not lay a proper foundation to show that Wirth’s prior

accusations of abuse were sufficiently related to his asserted motive. In distinguishing

Perez-Valdez, the court said: “[i]n this case, the motive that I keep hearing is a motive to

lie, a motive to punish, which is not—it’s not the same   .   .   .   .   I don’t believe that there is

evidence to support that. And a motive to lie just in general is not enough.”

       In Lee, the trial court allowed the defendant to cross-examine the victim about a

prior false accusation, but did not allow that defendant to introduce extrinsic evidence

about the prior false accusations. 188 Wn.2d at 488. The Supreme Court noted that

“[r]ather than demonstrate a specific bias or motive to lie, which would be highly

probative, the evidence invited the jury to infer that [the victim] is lying because she had


                                               -10-
No. 78093-0-I/I I

lied in the past.” Lee, 188 Wn.2d at 486. This is precisely the same thing that the trial

court did here. The court allowed Gonzalez to cross-examine Wirth on her prior

accusations. The court did not allow Gonzalez to introduce the prior reports because

that would have invited the jury to infer that Wirth was lying because she allegedly lied

in the past, precisely the type of evidence that ER 404 and 608 prohibits.

       ER 404 prohibits evidence of a person’s character for the purpose of proving

action in conformity therewith. And ER 608(b) prohibits a party from attacking a

witness’s credibility through the use of extrinsic evidence. Gonzalez’s attempt to

introduce the police reports to show both that Wirth had previously lied about abuse and

that she was doing so again was prohibited by ER 404. Further, the police reports were

extrinsic evidence that Gonzalez wanted to use to attack Wirth’s credibility. The trial

court did not abuse its discretion in prohibiting the police reports but giving Gonzalez the

opportunity to ask about the specific instances underlying those reports on cross-

examination.

                                             IV.

       Finally, Gonzalez asserts that the trial court violated his Sixth Amendment right to

present a defense by excluding the testimony of Beal and Tremblay and the police

reports. The right to defend oneself against accusations by the State is guaranteed by

both the United States and the Washington Constitutions. U.S. CONST. amend. VI;

WASH. CONST. art. 1. ‘The right of an accused in a criminal trial to due process is, in

essence, the right to a fair opportunity to defend against the State’s allegations.”

Chambers v. Mississippi, 410 U.S. 284, 294, 93 5. Ct. 1038, 35 L. Ed. 2d 297 (1973).

But a defendant “does not have an unfettered right to offer [evidence] that


                                            —11—
No. 78093-0-1/12

is.   .   .   inadmissible under standard rules of evidence.” Taylorv. Illinois, 484 U.S. 400,

410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). Because the trial court’s exclusion of

Gonzalez’s proffered evidence was restricted to evidence that was inadmissible under

standard rules of evidence, the trial court did not violate Gonzalez’s Sixth Amendment

right to present a defense.

              We affirm.




                                                                   -           11 C3~
                                                                            -7.,-
WE CONCUR:




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