IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
 STATE OF WASHINGTON,
                                                     No. 79932-1-I
                       Respondent,
                                                     DIVISION ONE
               v.
                                                     UNPUBLISHED OPINION
 HECTOR PABLO RIVERA-DIAZ,

                       Appellant.


       CHUN, J. — Hector Rivera-Diaz appeals his convictions for domestic

violence rape in the second degree, domestic violence assault in the second

degree, and domestic violence felony violation of a court order. The trial court

excluded evidence of the alleged victim’s immigration status and her knowledge

of a federal program that provides temporary legal resident status to victims of

qualifying crimes who assist in prosecution. Rivera-Diaz contends that this

violated his constitutional right to present a defense. Because Rivera-Diaz’s offer

of proof did not suffice under ER 413 for the trial court to rule on its admissibility,

we affirm.

                                  I. BACKGROUND

       The State charged Rivera-Diaz with domestic violence rape in the second

degree, domestic violence assault in the second degree, and domestic violence

felony violation of a court order. Before trial, Rivera-Diaz moved to admit

evidence of alleged victim A.G.’s immigration status as an undocumented
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immigrant and her knowledge of the “U visa” program. A U visa grants

temporary legal resident status to a person who is the victim of a qualifying crime

and helps law enforcement investigate or prosecute that crime. 8 U.S.C.

§1101(a)(15)(U)(i)(I), (III).

       Rivera-Diaz moved to admit this evidence under ER 413, which limits the

use of evidence of immigration status. He submitted his offer of proof through

counsel, who declared as follows:
          During a defense interview of [A.G.], she stated that she is not a
       United States citizen and is undocumented.
            Defense counsel has reason to believe that based on
       communications with Mr. Rivera- Diaz, [A.G.] has made statements
       to the effect of having him arrested so that she could get “papers,”
       meaning documentation to allow her to become a United States
       citizen or lawful status in the United States.
          The charges alleged in this matter constitute criminal activity that
       would qualify [A.G.] for a U Visa. She alleges that she is a victim and
       that the facts that constitute physical or mental abuse.

At the pretrial hearing, defense counsel also said:
       I have information that [A.G.] has made statements about having my
       client put into jail so that she could get papers, or preferring a man
       who had papers and things of this nature. I don't know that that
       comes out independent of any other witness than my client, and so I
       don't want to get into too many of the details as to what he would
       potentially testify to.

       The State submitted a transcript of a defense interview with A.G. In that

interview, there was no mention of immigration status or the U visa program.

A.G. mentioned there was a lawyer at the school who told her he could help her if

she needed help. She said that she spoke to the lawyer but said nothing about




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talking to him about her immigration status or the U visa program. Indeed, as

defense counsel noted:
       It’s my fault for probably not clarifying this, in [A.G.]’s transcript that
       the Court has, she mentioned that a lawyer came to that school and
       offered to provide her help. I probably should have delved a little bit
       more into what sort of help that lawyer was offering but there's
       somewhat of a respect for an attorney/client privilege that I didn't
       want to, you know, delve too much into that.

       There was a second interview of A.G. but no transcript of that interview

was provided to the court. According to the prosecutor’s recollection of that

interview,
       [A.G.] did acknowledge that she is currently undocumented. She did
       make some statements that would -- while she didn’t specifically
       acknowledge that she was aware of the U Visa program at the time
       of these allegations and that the U visa program was something that
       she could have sought out, she did make general statements that
       seemed to indicate to her -- seemed to indicate that she was aware
       that she could get some help. She made a statement something like,
       If I wanted to do something like that, I would have done it back in
       Kansas.
       ...
       She makes a statement that she’s very scared of that process; that
       she’s concerned that, by coming forward, she could -- that could
       result in her deportation, her separation from her children. She also
       clearly indicates that she has taken no steps whatsoever to apply for
       a U visa or to seek assistance, status assistance. That -- that has
       not occurred at all. And there’s, that I’m aware of, no other evidence
       that would indicate that she has taken any steps in that direction.

The court determined that “the prejudicial value outweighs any possible probative

value” and excluded the evidence under ER 413.

       At trial, A.G. testified in detail regarding how Rivera-Diaz had subjected

her to physical and sexual abuse. Other witnesses also testified during the

State’s case-in-chief. Rivera-Diaz did not testify.




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        The jury found Rivera-Diaz guilty as charged. The jury also found that the

second degree rape was an aggravated domestic violence offense because it

was committed within the sight or sound of the victim’s minor children. The trial

court imposed a standard-range indeterminate sentence totaling 158 months to

life.

        Rivera-Diaz appeals.

                                    II. ANALYSIS

        Rivera-Diaz claims the trial court violated his constitutional right to present

a defense by excluding evidence that A.G. was aware she could get immigration

related assistance if she accused him of a crime. He contends that had he been

able to cross-examine A.G. and testify about her knowledge of the availability of

this assistance, he would have revealed the falsity of her accusations.

        We review a trial court’s limitation of the scope of cross-examination for an

abuse of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).

A trial court abuses its discretion when it bases its decision on untenable grounds

or reasons. Darden, 145 Wn.2d at 619. When a criminal defendant claims a trial

court’s evidentiary ruling violated the Sixth Amendment right to present a

defense, we apply a two-step review process. State v. Arndt, 194 Wn.2d 784,

797-98, 453 P.3d 696 (2019). We review the trial court’s evidentiary ruling for an

abuse of discretion and consider de novo the constitutional question of whether

the ruling denied the defendant the Sixth Amendment right to present a defense.




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No. 79932-1-I/5


Arndt, 194 Wn.2d at 797-98 (citing State v. Clark, 187 Wn.2d 641, 648-56, 389

P.3d 462 (2017)).

       A. ER 413

       In Washington, a court may admit evidence of immigration status only

when the proponent of the evidence follows the procedure set forth in ER 413(a).

State v. Bedada, No. 79036-6-I, slip op. at 8 (Wash. Ct. App. May 11, 2020). This

rule provides:
           (a) Criminal Cases; Evidence Generally Inadmissible. In any
       criminal matter, evidence of a party’s or a witness’s immigration
       status shall not be admissible unless immigration status is an
       essential fact to prove an element of, or a defense to, the criminal
       offense with which the defendant is charged, or to show bias or
       prejudice of a witness pursuant to ER 607. The following procedure
       shall apply prior to any such proposed uses of immigration status
       evidence to show bias or prejudice of a witness:
           (1) A written pretrial motion shall be made that includes an offer
       of proof of the relevancy of the proposed evidence.
           (2) The written motion shall be accompanied by an affidavit or
       affidavits in which the offer of proof shall be stated.
          (3) If the court finds that the offer of proof is sufficient, the court
       shall order a hearing outside the presence of the jury.
           (4) The court may admit evidence of immigration status to show
       bias or prejudice if it finds the evidence is reliable and relevant, and
       that its probative value outweighs the prejudicial nature of evidence
       of immigration status.
          (5) Nothing in this section shall be construed to exclude evidence
       that would result in the violation of a defendant’s constitutional rights.

ER 413(a) (emphasis added).

       Rivera-Diaz sought to admit evidence of A.G.’s immigration status to show

bias or prejudice under ER 413(a). Rivera-Diaz’s offer of proof failed to satisfy

the rule’s requirements. ER 413(a)(2) requires the proponent of the evidence to




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No. 79932-1-I/6


submit “an affidavit or affidavits” setting forth the offer of proof, but Rivera-Diaz

provided no affidavit or declaration from a competent witness that sets forth what

he would prove. He did not submit his own declaration or affidavit. And he did

not submit a declaration or affidavit of any other witness. Instead, the only

declaration Rivera-Diaz submitted was that of defense counsel,1 who simply

asserted she “has reason to believe” that A.G. “has made statements to the

effect of having him arrested so that she could get “papers,” meaning

documentation to allow her to become a United States citizen or lawful status in

the United States.”

       Rivera-Diaz’s failure to meet the threshold requirements of the rule

rendered it impossible for the trial court to engage in the balancing analysis

under ER 413(a)(4). Not only did the purported offer of proof come in the form of

counsel’s declaration, it fell short in significant respects; for example, it failed to

identify who would testify, the substance of the testimony, when the witness

came to learn the substance, and the basis for the witness’s knowledge. This

deprived the trial court of the ability to evaluate the materiality of the purported

evidence and how to address it. To illustrate, had Rivera-Diaz identified himself

as the only witness—if the trial court had deemed any of the evidence to be

relevant—it could have ordered that A.G. could not be examined regarding the

matters unless Rivera-Diaz decided to testify. It could also have addressed


       1
        The record does not indicate that defense counsel intended to testify at trial as to
these matters.




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No. 79932-1-I/7


whether to give a limiting instruction to the jury. Accordingly, it was proper to

exclude the purported evidence.2

       B. Sixth Amendment

       Rivera-Diaz argues for the first time on appeal that the trial court’s

exclusion of the evidence at issue deprived him of his Sixth Amendment rights to

confrontation and to present a defense. Washington courts have “explicitly

adopt[ed] a requirement that a defendant raise an objection at trial or waive the

right of confrontation.” State v. Burns, 193 Wn.2d 190, 210-11, 438 P.3d 1183

(2019); State v. O’Cain, 169 Wn. App. 228, 248, 279 P.3d 926 (2012) (“a

defendant [must] raise a Sixth Amendment confrontation clause claim at or

before trial or lose the benefit of the right.”). Accordingly, Rivera-Diaz waived the

confrontation claim by failing to raise it in the trial court.

       Nonetheless, the claim lacks merit. Both the confrontation and

compulsory process aspects of the Sixth Amendment can be subject to a

reasonable procedural rule. See O’Cain, 169 Wn. App. at 242-44 (citing

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.

2d 314 (2009) and Taylor v. Illinois, 484 U.S. 400, 417, 108 S. Ct. 646, 98 L. Ed.

2d 798 (1988)). As discussed above, Rivera-Diaz failed to comply with the

reasonable requirements of ER 413,3 thereby depriving the trial court of a basis


       2
         While the trial court did exclude the evidence based on balancing under
ER 413, we may affirm on any grounds supported by the record. See State v. Streepy,
199 Wn. App. 487, 500, 400 P.3d 339 (2017).
       3
         Rivera-Diaz does not challenge the reasonableness of ER 413(a)(2)’s
requirements.



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No. 79932-1-I/8


to make a ruling. Thus, the trial court properly excluded the evidence and there

is no basis for the confrontation claim.

       To the extent Rivera-Diaz claims the trial court denied him the right to call

any witness as part of the compulsory process, he did not identify any nonparty

witness in the offer of proof. Thus, no identified witness was excluded. Nor did

the trial court prevent Rivera-Diaz from testifying. Rather, the trial court limited

his testimony based on the application of a reasonable state court procedural

rule, which is permissible for compulsory process just as it is in the confrontation

context. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L.

Ed. 2d 297 (1973); O’Cain, 169 Wn. App. at 244.

       Finally, there is no merit to Rivera-Diaz’s claim that he was denied his

Sixth Amendment right to present a defense. Because the offer of proof did not

suffice for the court to rule on the admissibility of the evidence, there was no

evidence to exclude or admit at trial. Accordingly, there is no basis for his claim

that the trial court’s exclusion of the evidence denied him the right to present a

defense.

       We affirm.



WE CONCUR:




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