                                                                                 ILED
                                                                        COURT OF APPEALS
                IN THE COURT OF APPEALS OF THE STATE OF                     WAAWf ON
                                                                       2015 AUG 18   AM 9: 05
                                                  DIVISION II

                                                                       STATE OF WASHINGTON
 STATE OF WASHINGTON,                                                    No. 463 -    4- II
                                                                        Y
                                                                               D P   Y
                                         Respondent,               UNPUBLISHED OPINION


           V.




 A.S.,'


                                         Appellant.


          BJORGEN, A.C. J. —       AS appeals his guilty adjudication for second degree rape, asserting

that ( 1) the trial court violated his constitutional right to present a defense and ( 2) the State failed

to present sufficient evidence to support the guilty adjudication. We hold that the State presented

sufficient evidence in support of AS' s guilty adjudication, but that the juvenile court violated

AS' s constitutional right to present a defense by prohibiting defense counsel from questioning

the victim about her potential motive to fabricate the allegations against AS. Accordingly, we

reverse AS' s guilty adjudication and remand for a new hearing.

                                                       FACTS


          On March 13, 2014, 15 -year-old BN asked her longtime friend, 16 -year-old AS, to help

her move a riding lawn mower that was located in the backyard of BN' s home in Thurston

County. While they were moving the lawn mower,. AS slapped BN on her rear several times;

BN responded by repeatedly telling AS to stop. After they finished moving the lawn mower, AS

and BN went inside BN' s home and sat in the dining room. While they were in the dining room,

AS grabbed BN' s thighs and pulled her onto his lap. BN again told AS to stop.



 Pursuant to General Order 2011- 1 of Court of Appeals, Division II, the names of the minors
will   be indicated   with   initials.
No. 46316 -4 -II



        BN went to her bedroom to retrieve a soda; AS followed and stood by her bed.

According to BN, AS then pushed her onto the bed, got on top of her, and held her hands down

over her head. BN stated that AS pulled off her sweat pants with one hand while continuing to

restrain her hands with his other hand. BN further stated that AS pulled her shorts to the side and


forcibly engaged in sexual intercourse with her. BN said that she " kept telling him no, and he

wouldn'     t stop."    Report of Proceedings ( RP) at 109. When AS finished, he got up and told her,

 I   came   inside     of you.   Don' t be popping    out   any babies."   RP at 1. 10.


        After AS left BN' s house, BN called her friend BD and told her that AS " forced me to


have   sex with      him." RP     at   111.   BN also called her friend KS and told him the same thing; KS

advised BN to tell the police and her mom about the incident. After talking with KS, BN called

her mom and then called the police.


         Thurston County Sheriff' s Deputy Camm Clark responded to BN' s call, took her taped

statement, and took photos of scratches on her wrist and neck. Shortly thereafter, Clark advised

AS of his Miranda2 rights. AS admitted to Clark that he had been flirting with BN that day, had

pulled BN onto his lap, and had slapped her on her rear. AS also admitted that he had sexual

intercourse with BN but stated that it was consensual.


         On the following day, March 14, 2014, the State charged AS with second degree rape by

forcible compulsion. At the juvenile court fact-finding hearing, BN and Clark testified

consistently with the facts as stated above. After the State rested, defense counsel informed the

juvenile court that he would be calling BN as a witness, and that he would be seeking to discredit

BN' s credibility and to establish BN' s motive to fabricate the allegations against AS, stating:




2 Miranda v. Arizona,.384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

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                Essentially there are two points here. We' re attacking bias and credibility
       in this case as well as motive to lie and some anger towards my client, all of which
       is relevant in this case as motive to lie.
                    Credibility— I know. the Court sustained an objection on our first line of
       questioning, but it goes to an incident that same day where we' re alleging that [BN]
       and her friend lied about receiving a traffic infraction, something very trivial, but
       she was very mad at [ AS] about that because they had asked [ AS] to take credit for
       having gotten that infraction which he did not do. [ AS] basically said that it was
        BN] who got the ticket. That angered [BN] because it made it so she couldn' t hang
       out with [ BD]           for   some reason, who was             here    earlier   testifying. [ BN] came over to
       confront [       about that before the incident, just a matter of probably an hour
                         AS]

       before, so not very long. She went over to [ AS' s] house and confronted him about
       that. So we have both the anger from that incident and the fact that she essentially
       tried to get [ AS] to lie about something, and when he didn' t lie, she got angry at
       him, which goes to credibility.
                    There' s another area we wish to delve into which goes to motive as well.
        AS] has         a   very     good   friend   named [      J]. [ J] is [ BN' s] boyfriend who she just broke

       up with. We' re not going to go into any sexual history, any promiscuity, anything
       like that, but it happened within the last week or two, and we think it' s relevant
       because          she   didn' t   want [   J] to know that         she   had   sex with [ AS].     Again, this is our
        only     substantive witness             to this   act.    We think it will show some bias, and bias is
        always relevant to get into, the witness' s bias, and credibility is always relevant.

RP at 161- 62.


        The State argued that none of the information defense counsel sought to elicit from BN


was relevant. Following further argument by defense counsel and the State, the juvenile court

ruled that it was not foreclosing defense counsel from exploring these issues while questioning

BN, but that defense counsel would have to establish adequate foundation to do so.


        During his          examination of         BN, defense counsel           asked     her, "[   E] arlier in the day had you

and your   friend       asked [    AS] to lie for     you?"       RP   at    173. After the State objected based on


relevance, the trial court asked defense counsel to establish the relevance of his inquiry with an

offer of proof, and the following exchange took place:

                        Defense       counsel] :      My offer of proof would be that she' s going to
        answer yes,           that   she' s   going to— then        my next question would be and that [ AS] . .
           did   riot   lie for her that      same   day   and    that   she was
                                                                                     angry   about    that   with [ AS].   That

        anger shows bias which is always something I can inquire into.


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                        State]: The bias, Your Honor, has to be relevant to the facts in question
          here.   Even if that were in fact to happen, that she was angry with him because he
          didn' t do what she and a friend wanted, allegedly wanted him to do, how will that
          create bias for an incident that happened a substantial amount of time later, not
          involving       the friend?      I   still   don' t   understand.       The bias has to be related to the
          crime.

                        Defense    counsel] :    No, that' s not correct. The bias is related to the witness.
          Is the   witness      biased   against       my   client?      That' s what it' s related to.
                        Juvenile court] : I don' t think you have established the relevance or the link.
          If you want to ask this witness something else, you are free to.

RP at 174- 75.


          After the trial       court ruled,     defense        counsel asked     BN, "[ T] he   day   of   the incident— again


we' re   talking    about      March 13th through 14th— had                   [ AS] done something that had made you

angry?" RP         at   175.   The State objected based on relevance, and the juvenile court sustained the


objection.    Defense          counsel   then   asked       BN, "[   O] n the day of the incident, had you gone over to

confront [ AS] about not           having      lied for     you   that   day?"   RP at 176. The State again objected, and


the juvenile court again sustained the objection. Defense counsel declined to ask BN any further

questions. The juvenile court entered an order on adjudication and disposition finding AS guilty

of second degree rape and entered its written findings of fact and conclusions of law in support


of the guilty adjudication. AS appeals.

                                                                ANALYSIS


                                                1. RIGHT TO PRESENT A DEFENSE


          AS first contends that the juvenile court violated his constitutional right to present a


defense by prohibiting defense counsel from questioning BN about her potential bias and motive

to fabricate the        rape allegations against            AS. We agree.


          A defendant in a criminal trial has a constitutional right to present a defense. State v.


Rehak, 67 Wn.           App.    157, 162, 834 P. 2d 651 ( 1992); see also In re Gault, 387 U. S. 1, 87 S. Ct


1428, 18 L. Ed. 2d 527 ( 1967) (               Juvenile proceedings that may result in a juvenile' s confinement

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No. 46316 -4 -II



are to be regarded as criminal proceedings for which the constitutional rights to notice of

charges, counsel, confrontation, cross examination, and against self-incrimination                                apply). " 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 accusations."         Chambers v. Mississippi, 410 U. S. 284, 294, 93 S. Ct.


1038, 35 L. Ed. 2d 297 ( 1973).


                          The    right   to    offer   the   testimony      of   witnesses,       and to    compel their

             attendance, if necessary, is in plain terms the right to present a defense, the right to
             present the defendant' s version of the facts as well as the prosecution' s to the jury
             so    it may decide     where      the truth lies.     Just as an accused has the right to confront
             the prosecution' s witnesses for the purpose of challenging their testimony, he has
             the    right   to   present      his   own   witnesses   to    establish   a   defense.       This right is a
             fundamental element of due process of law.


Washington           v.   Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 ( 1967). However, a


criminal defendant' s right to present a defense is not absolute; a defendant seeking to present

evidence must show that the evidence is at least minimally relevant to a fact at issue in the case.

State   v.   Jones, 168 Wn.2d 713, 720, 230 P. 3d 576 ( 2010).                      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.


A.           Evidence Related to BN' s Credibility and Potential Motive to Fabricate Allegations
             Against AS Was Relevant


             Defense counsel sought to question BN about whether she was angry with AS for AS' s

refusal to lie and take the blame for receiving a traffic infraction that either BN or BN' s friend

had   committed.'           AS asserts that evidence of BN confronting him about refusing to take the



 Although the trial court did not foreclose defense counsel from questioning BN, subject to
establishing proper foundation, about whether she had fabricated the rape allegation against AS
because she did not want her ex- boyfriend to know that she had consensual sex with AS, defense
counsel did not pursue this line of questioning. Because defense counsel did not pursue this line
of questioning, we do not address whether AS' s right to present a defense would have been
violated had the juvenile court excluded such evidence.

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No. 46316 -4 -II



blame for a traffic infraction was relevant to establish her motive to fabricate the allegations


against    him,   show      her bias,   and attack   her credibility.4          We agree that the evidence AS sought to

admit through BN' s testimony met the low threshold of relevance under ER 401

           Impeachment         evidence    is   relevant   only   where "(      1) it tends to cast doubt on the credibility

of the person being impeached, and ( 2) the credibility of the person being impeached is a fact of

consequence        to the    action."   State v. Allen S., 98 Wn. App. 452, 459- 60, 989 P. 2d 1222 ( 1999).

With regard to the first requirement, evidence that BN was angry with AS over his refusal to take

the blame for a traffic infraction tended to show her bias against him and, thus, was relevant to


challenge BN' s credibility. See State v. Whyde, 30 Wn. App. 162, 166, 632 P. 2d 913 ( 198 1)

 Bias      and   interest   are relevant   to the credibility of a witness.").            This evidence could also


establish BN' s potential motive to fabricate the allegations against AS and, thus, was relevant to


challenge her credibility for this reason as well. See, e. g., State v. Lubers, 81 Wn. App. 614, 623,

915 P. 2d 1157 ( 1996) (         Where an accuser' s credibility is crucial, the accuser' s motive to lie is not

a collateral issue and, thus, extrinsic evidence may be used to impeach the accuser).

            With regard to the second requirement, BN' s credibility was clearly a fact of

consequence in the juvenile proceeding against AS, because the State' s entire case depended on

the fact finder believing her accusations. See State v. Roberts, 25 Wn. App.. 830, 834, 611 P. 2d




4 We note that it is of no consequence that defense counsel sought to impeach BN by calling her
as a witness, rather         than through       cross examination.            ER 607
                                                                           The credibility of a
                                                                                       provides, "

witness     may be     by any party, including the party calling the witness." A witness may
                      attacked

be impeached by evidence of the witness' s bias. See, e. g., State v. Allen S., 98 Wn. App. 452,
467   n.   62, 989 P. 2d. 1222 ( 1999) ( Proper impeachment evidence includes evidence of "mental or
physical deficiency; bias; character for untruthfulness; contradiction by others; and self-
contradiction by one' s own prior inconsistent statement.") ( emphasis added) ( citing JOHN W.
                                                                        5t"
STRONG,. MCCORMICK               ON   EVIDENCE § 33,       at   124 (         ed.   1999); 5C KARL B. TEGLAND,
WASHINGTON PRACTICE: COURTROOM HANDBOOK ON WASHINGTON EVIDENCE at 269.



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No. 46316 -4 -II



1297 ( 1980) ("     Where a case stands or falls on the jury' s belief or disbelief of essentially one

witness,   that witness' s credibility     or motive must          be   subject   to   close   scrutiny.").      Additionally,

BN' s credibility was of particular importance because she had accused AS of committing a sex

offense. See Roberts, 25 Wn. App. at 834- 35 ( In a sex crime prosecution " the credibility of the

accuser    is   of great   importance,   essential   to the   prosecution and          defense    alike.").   Because the


evidence AS sought to admit related to BN' s credibility, and because BN' s credibility was a fact

of consequence in the adjudication hearing, we hold that the evidence met the threshold for

relevance under ER 401.


B.        State v. Perez -Valdez and State v. Lubers


          The State argues that State v. Perez -Valdez, 172 Wn.2d 808, 265 P. 3d 853 ( 2011) and


Lubers command a different result regarding the relevance of the evidence AS sought to admit

through BN' s testimony. Because those cases are distinguishable from the present case, we

disagree.


          In Perez -Valdez, the defendant sought to present evidence that his adopted daughters, the


alleged rape victims, committed arson at a foster home that they had moved in to after being

removed     from the defendant'      s   home. 172 Wn.2d           at   811.   The defendant argued that evidence of


the subsequent arson showed that the alleged victims were willing to take extreme measures to

get removed       from homes that they did       not   like. Perez -Valdez, 172 Wn.2d                at   811.    The trial court


prohibited the defense from presenting evidence of the arson, finding that defense counsel failed

to establish that the victims burned their foster home because they hated living there and that the

evidence was unduly prejudicial. Perez -Valdez, 172 Wn.2d at 812. However, the trial court

permitted defense counsel to establish and argue that the victims were removed from their


subsequent foster home placement because they did something serious in order to get removed.



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No. 46316 -4 -II



Perez -Valdez, 172 Wn.2d at 812. Defense counsel was also permitted to present evidence


regarding the victims' reputations for being untruthful. Perez -Valdez, 172 Wn.2d at 811.

            On appeal, the defendant did not argue that the trial court' s ruling prohibiting evidence of

the arson violated his right to present a defense but, instead, argued only that the trial court erred

by    not   admitting   evidence of   the   arson under   ER 404( b). Perez -Valdez, 172 Wn.2d    at   815. Our


Supreme Court affirmed the trial court' s ruling, holding that although ER 404( b) did not prohibit

admission of the arson evidence, the trial court nonetheless did not abuse its discretion by

excluding the evidence because it was reasonable for the trial court to conclude that the arson

evidence was unduly prejudicial and that " the arson was too removed from a false accusation of

rape   to necessarily be       considered evidence of motive     to lie."   Perez -Valdez, 172 Wn.2d at 815-


17.    Our Supreme Courtalso noted that the trial court' s ruling excluding evidence of the arson

did not prevent the defense from arguing its theory that the victims fabricated their rape

allegations and did not prevent the defense from presenting evidence of the victims' reputations

for being untruthful. Perez -Valdez, 172 Wn.2d at 816.

            In contrast with Perez -Valdez, where the defense sought to admit evidence of the victims'


subsequent actions against a third party to establish their motive to lie about the allegations

against the defendant, here AS alleged a conflict between himself and the victim that occurred


approximately an hour before the alleged rape. Accordingly, unlike in Perez -Valdez, we cannot

conclude that evidence of BN' s alleged confrontation with AS over his refusal to lie for her was


too far removed from BN potential motive to fabricate the rape allegations against him. Further,


the trial court' s ruling in Perez -Valdez did not prevent defense counsel from presenting evidence

that the victims did something serious to be removed from a subsequent foster placement but,

rather,     only   prevented   defense   counsel   from eliciting testimony that the   victims committed arson,
No. 46316 -4 -II



based on the prejudicial nature of the evidence. Here, in contrast, the juvenile court prevented


defense counsel from presenting any evidence of the alleged confrontation between BN and AS,

and it prevented defense counsel from presenting any evidence that AS had done something on

the same day as the incident to make BN angry. Accordingly, Perez -Valdez is distinguishable

from the present case.


       We similarly conclude that Lubers is distinguishable from the present case. In Lubers,

defense counsel sought to present evidence that family members of the alleged victim had an

ongoing dispute with the defendant' s girlfriend, arguing that the evidence was relevant to the

victim' s motive   to fabricate   rape allegations against   him. 81 Wn.   App.   at   618. Defense counsel


did not allege that the victim was involved in the dispute between members of her family and the

defendant' s girlfriend. Lubers, 81 Wn. App. at 618. The trial court prohibited evidence of this

alleged dispute, finding that the evidence was not relevant, and we affirmed. Lubers, 81 Wn.

App. at 618, 623.

       In contrast with Lubers, here AS sought to admit evidence of a direct conflict between


himself and the victim. Accordingly, Lubers is distinguishable and does not undermine our

conclusion that evidence of the alleged confrontation between AS and BN was relevant.


       The State also argues that it is highly unlikely that BN would fabricate rape allegations

based on AS' s refusal to take the blame for a traffic infraction. The weight of evidence sought to


be presented, however, is not a pertinent concern when determining its relevance and

admissibility. Although it is for the fact finder to ultimately determine what weight to give to

this evidence of an alleged conflict between AS and BN, we cannot conclude that it was


irrelevant to establishing BN' s bias and her potential motive to lie about the allegations.




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No. 46316 -4 -II



C.     The Juvenile Court Erred By Refusing to Admit the Impeachment Evidence

       Having established the relevance of the evidence AS sought to present, we now turn to

whether the trial court erred by excluding it. If the defendant establishes the minimal relevance

of the evidence sought to be presented, the burden shifts to the State " to show the evidence is so

prejudicial as   to disrupt the    fairness   of   the fact- finding      process at   trial."   State v. Darden, 145


Wn.2d 612, 622, 41 P. 3d 1189 ( 2002). A trial court must then balance " the State' s interest to


exclude prejudicial evidence ...         against     the   defendant' s    need   for the information     sought," and




may exclude such evidence only where " the State' s interest outweighs the defendant' s need."

Darden, 145. Wn.2d at 622


        The State has not presented any argument regarding the prejudicial nature of the evidence

at issue and, thus, cannot meet its burden to show that the evidence was " so prejudicial as to


disrupt the fairness   of   the   fact- finding    process at   trial."    Darden, 145 Wn.2d at 622. Further,


even if prejudicial, the defendant' s need for the evidence clearly outweighed the State' s interest

in excluding it. AS admitted to engaging in sexual intercourse with BN but claimed that the

intercourse was consensual, and the State' s entire case depended on the trier -of f-act finding BN' s

testimony credible that the sex was not consensual. Thus, evidence calling BN' s credibility into

doubt was crucial to AS' s defense and outweighed any interest the State had in excluding it.

Therefore, we hold that the juvenile court' s ruling excluding the evidence violated AS' s right to

present a defense. Accordingly, we reverse AS' s guilty adjudication for second degree rape.

                                        II. SUFFICIENCY OF THE EVIDENCE


        Although we reverse AS' s conviction based on the violation of his right to present a


defense, we must address his challenge to the sufficiency of the evidence to determine whether a




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No. 46316 -4 -II



new adjudicatory hearing is barred by the prohibition against double jeopardy. State v. Wright,

165 Wn.2d 783, 792, 203 P. 3d 1027 ( 2009).          We conclude that his sufficiency challenge fails.

       A challenge to the sufficiency of evidence presented at a bench trial requires us to review

whether substantial evidence supports the findings of fact and whether those findings support the

conclusions of law. State v. Homan, 181 Wn.2d 102, 105- 06, 330 P. 3d 182 ( 2014).


  Substantial evidence' is evidence sufficient to persuade a fair-minded person of the truth of the


asserted premise."    Homan, 182 Wn.2d at 106 ( citing State v. Stevenson, 128 Wn. App. 179, 193,

114 P. 3d 699 ( 2005)).    We review challenges to a trial court' s conclusions of law de novo. State


v. Gatewood, 163 Wn.2d 534, 539, 182 P. 3d 426 ( 2008).


       Although AS assigns error to several of the trial court' s factual findings, he does not

explain how substantial evidence fails to support those findings. See State v. Thomas, 150

Wn.2d 821, 874, 83 P. 3d 970 ( 2004) ("        Without argument or authority to support it, an

assignment of error   is   waived.").   Instead, AS argues that BN' s testimony, alone, was insufficient

evidence from which the trier of fact could find that he engaged in sexual intercourse with BN by

forcible compulsion. •We disagree.


       To adjudicate AS guilty of second degree rape as charged here, the State had to prove

beyond a reasonable doubt that AS engaged in sexual intercourse with BN by forcible

compulsion.   RCW 9A.44. 050( 1)(       a).   RCW 9A.44. 010( 6) defines " forcible compulsion" in


relevant part as " physical   force   which overcomes resistance."    Here, BN testified that AS pushed


her onto the bed, climbed on top of her, pinned her arms over her head, took off her pants, and

then engaged in sexual intercourse with her while she repeatedly told him no and tried to push

hien off.' This evidence is more than sufficient to persuade a fair-minded person that AS forcibly

compelled BN to engage in sexual intercourse.




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No. 46316 -4 -II



         AS argues that BN' s testimony was " suspect" because her physical examination revealed

no physical trauma and because AS testified that BN consented to sexual intercourse. Br. of


Appellant at 19. This argument concerns the weight of the evidence and the credibility of

witnesses, determinations exclusively for the trier of fact and not subject to review. State v.

Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990);             State v. Walton, 64 Wn. App. 410, 415- 16,

824 P. 2d 533 ( 1992),    abrogated on other grounds by In re Pers. Restraint of Cross, 180 Wn.2d

664, 327 P. 3d 660 ( 2014).     In addition, the State was not required to present any evidence

corroborating BN' s testimony to adjudicate AS guilty of second degree rape. See RCW

9A.44. 020( 1) ("   In order to convict a person of any crime defined in this chapter it shall not be

necessary that the testimony     of   the alleged victim   be   corroborated.").   Accordingly, we hold that

the State presented sufficient evidence to adjudicate AS guilty of second degree rape.

         We reverse AS' s guilty adjudication based on the violation of his right to present a defense

and remand for a new adjudicatory hearing.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                           BJH .CCEN


 We concur:




 J CHANSON, C. J.




 ly-
 MELNICK, J.
            4 A,
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