                                                                        FILED
                                                                     MARCH 15, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 34346-4-III
                     Respondent,             )
                                             )
       v.                                    )
                                             )
MICHAEL BRIAN BROUSSARD,                     )         UNPUBLISHED OPINION
                                             )
                     Appellant.              )

       SIDDOWAY, J. — Michael Broussard appeals his convictions for third degree child

molestation, third degree child rape, and furnishing liquor to a minor. His only defense to

the sexual offense convictions was that he reasonably believed, based on the assertion of

the alleged victim, that she was over 16. He argues persuasively on appeal that the trial
No. 34346-4-III
State v. Broussard


court violated his Sixth Amendment right to present a defense when it excluded

testimony of a witness to that alleged declaration. U.S. CONST. amend VI.

       He also argues for the first time on appeal that the jury’s verdict finding him guilty

of furnishing liquor to a minor was not expressly unanimous, since the jury was

instructed on a means of committing the crime that was not supported by the evidence.

We agree.

       We reverse the convictions and remand for a new trial.

                      FACTS AND PROCEDURAL BACKGROUND

       In or about early August 2013, two teenaged friends, N.C. and T.D., attended a

party at the home of Alex Boscoe. At the time, N.C. was 16 years old and T.D. was 15.

Michael Broussard, who would later testify that acting as a DJ1 at parties was a hobby of

his, had loaned his PA2 system to Mr. Boscoe and played music for guests during the

party. Mr. Broussard was 26 years old at the time. According to Mr. Broussard, he did

not know many of the party guests so he introduced himself to people, including to N.C.

and T.D. He claimed they talked for a while and, because he believed the party was a

college sendoff party for a recent high school graduate, he asked if they were graduates.

According to him, both girls told him that they had just graduated from high school and

were 18.


       1
           Disc jockey.
       2
           Public address.

                                             2
No. 34346-4-III
State v. Broussard


       Both N.C. and T.D. dispute this. While they admit seeing Mr. Broussard at Mr.

Boscoe’s party, they deny having spoken to him that evening.

       A few days later, T.D. and N.C. accepted an invitation to a gathering at the home

of Beatrice Mears, one of N.C.’s coworkers. Mr. Broussard also attended the gathering.

It is undisputed that a number of those in attendance at Ms. Mears’s home that evening

drank alcohol, danced, lay on an outside bed together, and eventually showered together

in various stages of undress. Mr. Broussard admits engaging in conduct that T.D. and

N.C. claim occurred in the shower: that he kissed them, touched their breasts, and placed

his finger in their vaginas. T.D. also claims that after the shower, Mr. Broussard pulled

her into a bedroom and attempted to have intercourse with her but she stopped him. Mr.

Broussard denies pulling her into the room but admits they were in a bedroom together,

he tried to have sex with her, and she asked him to stop. After that, the two girls called a

friend to pick them up and left.

       T.D. mentioned the possible sexual assault to a counselor in a regularly scheduled

counseling session shortly after it occurred. The counselor, a mandatory reporter,

notified CPS3 of what she had been told. Police officers assigned to investigate the

incident spoke to Mr. Broussard in June 2014. Mr. Broussard admitted to having sexual

contact with T.D. and N.C. and bringing alcohol to the party but claimed to have been


       3
        Child Protective Services, a division of the Washington State Department of
Social and Health Services.

                                             3
No. 34346-4-III
State v. Broussard


told by T.D. and N.C. that they were 18 years old. He was charged with child

molestation of T.D. in the third degree, rape of T.D. in the third degree, assault of N.C. in

the fourth degree with sexual motivation, and furnishing liquor to a minor.

         The case proceeded to a jury trial. Because T.D. was under Washington’s age of

consent (16 years of age) at the time of Ms. Mears’s house party, the conduct to which

Mr. Broussard had already admitted was enough to prove the charges of third degree rape

and third degree child molestation involving her. Mr. Broussard’s only defense to those

charges was the statutory defense that “at the time of the offense [he] reasonably believed

[T.D.] to be [a specified age] based upon declarations as to age by the alleged victim.”

RCW 9A.44.030(2). The “specified age” applicable in the case of T.D. was “at least

sixteen.” RCW 9A.44.030(3)(c).

         The first witness called by Mr. Broussard in the defense case was Amanda Reece.

It was undisputed that she was present at Mr. Boscoe’s party. She testified that she had

seen T.D. and N.C. speaking with Mr. Broussard while Mr. Broussard was acting as a DJ.

Before Ms. Reece could respond to whether she witnessed any statements by the girls

about their age, the State objected on the basis of hearsay. The court excused jurors for

an extended argument about whether Ms. Reece would be allowed to testify to what she

heard.

         When asked by the court whether any exception to the hearsay rule other than

impeachment applied, defense counsel answered that the testimony was essential to Mr.

                                              4
No. 34346-4-III
State v. Broussard


Broussard’s statutory defense—a defendant could not prove the defense if he could not

present evidence of what he was told.4

       Defense counsel was invited to make an offer of proof. In a representative part of

a longer offer, he elicited the following testimony:

              [DEFENSE COUNSEL]: . . . I just ask you once again, outside the
       presence of the jury, what it was that you overheard being stated and by
       whom stated—or who stated that—that—
              MS. REECE: They both were saying that they had just graduated
       high school and that they were eighteen years-old.
              [DEFENSE COUNSEL]: And when you say that—they were both
       saying the same words or do you recall who said what?
              MS. REECE: I don’t remember exactly which one said it.
              [DEFENSE COUNSEL]: Okay.
              MS. REECE: But they pretty much were saying the exact same
       words.
              [DEFENSE COUNSEL]: Okay. So, did you hear the word
       eighteen?
              MS. REECE: Yes.
              [DEFENSE COUNSEL]: Okay. And are you sure that that was in
       regards to an age; it wasn’t talking about a date or something of that nature?
              MS. REECE: Yes.
              [DEFENSE COUNSEL]: And why did you—I mean, what made
       you listen to that?


       4
         He referred to the Washington pattern jury instruction that appears in 11
Washington Practice: Washington Pattern Jury Instructions: Criminal 19.04, at 318
(4th ed. 2016) (WPIC), which deals with the statutory defense. He stated:
       [T]he best I could tell the Court here is just from a practical analysis of
       looking over the [WPIC] 19.04 jury instruction and asking for a
       preponderance of the evidence to be established that an assertion was made
       by [T.D.] or [N.C.] about their age, how a defendant could be expected to
       prove that if he is unable to say anything about it.
Report of Proceedings at 226.

                                             5
No. 34346-4-III
State v. Broussard


              MS. REECE: I don’t know. I just eavesdropped. I was with friends
       talking and I overheard them talking. So—
              [DEFENSE COUNSEL]: Okay.
              MS. REECE: —I was listening.
              [DEFENSE COUNSEL]: Now, did you hear it said once, multiple
       times?
              MS. REECE: Once.
              [DEFENSE COUNSEL]: Okay. And are you—were they talking
       with each other or speaking with Mr. Broussard?
              MS. REECE: They were speaking with Mr. Broussard.

Report of Proceedings (RP) at 227-29.

       After the trial court sustained the State’s objection, defense counsel asked if the

court would be sustaining the State’s objection if Mr. Broussard was asked about T.D.’s

alleged declaration of her age. The State indicated it would object to Mr. Broussard

testifying about the alleged declaration as well. After hearing argument, the court

explained that while it found Ms. Reece’s testimony to be problematically tenuous and

selective, it would overrule the objection if it were made when Mr. Broussard testified.

       Ms. Reece was cross-examined about her and Mr. Broussard’s relationship at the

time of the trial, and she admitted she was engaged to Mr. Broussard and they had a

several month-old child. Her testimony was that they had been only friends at the time of

Mr. Boscoe’s party.

       The only other defense witness was Mr. Broussard. He testified to his alleged

conversation with T.D. and N.C. at Mr. Boscoe’s party, claiming that both told him they

had graduated from high school and were 18.


                                              6
No. 34346-4-III
State v. Broussard


       In closing argument, the prosecutor told jurors, “There is no direct or

circumstantial evidence presented other than the defense claim that these girls ever told

him anything, that they even really talked to him before the night of the incident.” RP at

346. In rebuttal, the prosecutor argued, “[T]he defendant’s story is take my word for it.

They—they told me they were older, despite every piece of evidence indicating otherwise

and common sense based on those facts clearly indicating otherwise.” RP at 363.

       The jury found Mr. Broussard guilty of third degree molestation, third degree rape

of a child, and furnishing liquor to a minor. Jurors could not agree on the fourth degree

assault charge relating to N.C., so a mistrial was declared as to that charge.

       Mr. Broussard appeals.

                                        ANALYSIS

       We first address Mr. Broussard’s challenge to his convictions for third degree rape

and third degree molestation, and issues that might arise on retrial of the sexual offense

charges. We then address his challenge to his conviction for furnishing liquor to a minor.

                      SEXUAL OFFENSE CHARGES AND CONVICTIONS

          Right to present the statutory defense provided by RCW 9A.44.030(2)

       Mr. Broussard first argues that the trial court violated his right to present a defense

when it excluded Ms. Reece’s testimony corroborating his claim that T.D. told him she

was 18. A defendant is entitled to have the jury instructed on the statutory defense

provided by RCW 9A.44.030(2) when there is evidence that the victim made an explicit


                                              7
No. 34346-4-III
State v. Broussard


assertion about his or her age to the defendant. State v. Bennett, 36 Wn. App. 176, 181,

672 P.2d 772 (1983). The defendant is not entitled to have the defense submitted to the

jury simply because the victim’s behavior, appearance, and general demeanor suggested

that the victim was older than he or she actually was. Id. at 181-82.

       In addition to making a Sixth Amendment argument on appeal, Mr. Broussard’s

lawyers argue that Ms. Reece’s testimony would not have been hearsay, and we agree

that it was most likely being offered for a nonhearsay purpose. It does not appear that

Mr. Broussard offered T.D.’s reported statement to prove that at the time of Mr. Boscoe’s

party she had graduated high school and was 18. It appears the statement was offered to

prove only that she told Mr. Broussard she was 18. This is not a hearsay purpose. But

Mr. Broussard’s trial lawyer did not argue that the statement was nonhearsay below, so

we will not entertain that argument as an independent basis for decision on appeal. See

RAP 2.5(a). That it appears to have been offered for a nonhearsay purpose does become

relevant to the Sixth Amendment challenge, however.

       Turning to that challenge,5 state rule makers have broad latitude to establish rules

excluding evidence from criminal trials. A criminal defendant’s right to present relevant

testimony “may, in appropriate cases, bow to accommodate other legitimate interests in



       5
         We find that the Sixth Amendment challenge was sufficiently raised in the trial
court. It is also constitutional error, and the State makes no argument that it is not
manifest error subject to RAP 2.5(a)(3).

                                             8
No. 34346-4-III
State v. Broussard


the criminal trial process.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038,

35 L. Ed. 2d 297 (1973)). But the latitude to make and apply rules excluding a criminal

defendant’s evidence “has limits. ‘Whether rooted directly in the Due Process Clause of

the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the

Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful

opportunity to present a complete defense.”’” Holmes v. South Carolina, 547 U.S. 319,

324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S.

683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (quoting California v. Trombetta, 467

U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984))).

       Evidence rules impermissibly abridge a criminal defendant’s right to present a

defense if they are “‘arbitrary’ or ‘disproportionate’ and ‘infringe[ ] upon a weighty

interest of the accused.’” State v. Rafay, 168 Wn. App. 734, 796, 285 P.3d 83 (2012)

(alteration in original) (internal quotation marks omitted) (quoting United States v.

Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998)), review denied,

176 Wn.2d 1023, cert. denied, 134 S. Ct. 170 (2013). In the exceptional case where an

evidence rule abridges a defendant’s right to present a defense, we must disregard the

rule in order to protect the paramount constitutional right.

       The Sixth Amendment concern is with evidence that is relevant but excluded by

rules that serve no legitimate purpose or whose restriction is disproportionate to the ends



                                              9
No. 34346-4-III
State v. Broussard


the rules are asserted to promote. Scheffer, 523 U.S. at 308; State v. Hudlow, 99 Wn.2d

1, 14-15, 659 P.2d 514 (1983). Article I, § 22 of the Washington Constitution guarantees

criminal defendants a right to present testimony in their defense that is equivalent to the

right guaranteed by the United States Constitution. See Huddlow, 99 Wn.2d at 14-15. A

claimed violation of the Sixth Amendment right to present a defense is reviewed de novo.

State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010).

       The constitutional right to present a defense applied to the testimony Ms. Reece

could provide. Evidence that T.D. told Mr. Broussard several days before Ms. Mears’s

house party that she was 18 is unquestionably relevant to his only defense to the most

serious charges against him. The next consideration is whether, in Mr. Broussard’s case,

the hearsay rule served a legitimate purpose or whether its restriction on relevant

evidence was disproportionate to the purpose it was designed to serve. As already

observed, the hearsay rule did not even apply to the purpose for which Mr. Broussard

appears to have offered the evidence. There was no legitimate countervailing interest that

justified excluding the defense evidence.

       The State suggests that even if there was constitutional error, it was harmless

beyond a reasonable doubt. An exclusion of evidence that a defendant claims deprived

him of the right to present a defense is harmless if the untainted, admitted evidence is so

overwhelming that it necessarily leads to a finding of guilt. State v. Smith, 148 Wn.2d



                                             10
No. 34346-4-III
State v. Broussard


122, 139, 59 P.3d 74 (2002). Because only a few witnesses claimed to know whether Mr.

Broussard spoke with T.D. at Mr. Boscoe’s party or what was said, the State cannot

demonstrate that Ms. Reece’s corroboration of Mr. Broussard’s version of events could

not have made a difference. Ms. Reece was certainly subject to cross-examination for

bias, but jurors might still have believed her. Her corroboration would have taken away

the State’s argument to jurors that Mr. Broussard had no evidence to offer about the

declaration other than “take my word for it.” Because the error is not shown to be

harmless, reversal is required.

                                  Other assignments of error

       Mr. Broussard makes four other assignments of error that relate to evidence

offered or rulings made in connection with the sexual offense charges. We need not

address the claim of ineffective assistance of counsel for failure to object to evidence of

an alleged STD6 transmission or to the trial court’s “same criminal conduct”

determination at sentencing. Any objection warranted on those matters can be raised and

resolved in any retrial.

       Mr. Broussard argues that the trial court erred in overruling a defense objection

when N.C.’s mother testified to having searched N.C.’s room in August 2013 after seeing

what she believed were cigarette burns on N.C.’s arms. She testified to having found



       6
           Sexually transmitted disease.

                                             11
No. 34346-4-III
State v. Broussard


cigarettes, box cutters, and scissors. Any error was harmless in light of the mistrial, but

in this instance, we choose to provide guidance for any retrial. N.C.’s mother testified

that what she found “led me to believe [N.C.] had been harming herself.” RP at 182.

N.C. had testified just before her mother did, and answered “yes” when asked by the

prosecutor whether she had “some difficulty with what had happened.” RP at 161-62.

But N.C. was never asked to explain the difficulty and she never suggested she had

engaged in self-harm, let alone as a result of Mr. Broussard’s actions. RP at 161. While

the State argued that its questioning of N.C.’s mother was eliciting only “observations,”

RP at 185, not opinion or hearsay, the observations were not relevant without a

connection to the offense conduct. Any offer of this evidence from N.C.’s mother in a

retrial warrants the trial court’s careful consideration of ER 701, 402, and 403.

       Mr. Broussard also argues that the trial court should have given a Petrich7

instruction in connection with the rape and molestation charges involving T.D., since

there were two acts of sexual contact that took place at different times, in different

locations. Yet in the trial below, Mr. Broussard testified and admitted that both acts

occurred; it was not a disputed issue. In a retrial, it would be prudent for the State to

propose a Petrich instruction or make an election.



       7
       State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), overruled on other
grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).


                                             12
No. 34346-4-III
State v. Broussard


                             FURNISHING LIQUOR TO A MINOR

       Mr. Broussard also challenges his conviction for furnishing liquor to a minor,

arguing he was deprived of his right to an expressly unanimous verdict because the jury

was instructed on two alternative means of committing the crime, one of which was not

supported by substantial evidence. This would be error if furnishing liquor to a minor is

what Washington courts term an “alternative means crime.”

       Statutes establishing what we call “alternative means crimes” “describe distinct

acts that amount to the same crime.” State v. Peterson, 168 Wn.2d 763, 770, 230 P.3d

588 (2010). Alternative means crimes implicate a criminal defendant’s right to an

expressly unanimous verdict. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d

231 (1994); CONST. art. I, § 21. “The more varied the criminal conduct, the more likely

the statute describes alternative means. But when the statute describes minor nuances

inhering in the same act, the more likely the various ‘alternatives’ are merely facets of the

same criminal conduct.” State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87 (2015).

“The mere use of a disjunctive in a statute does not an alternative means crime make.”

Peterson, 168 Wn.2d at 770. “Nor has it been found that structuring the statute into

subsections is dispositive or that definitional statutes create alternative means.”

Sandholm, 184 Wn.2d at 734 (citing State v. Lindsey, 177 Wn. App. 233, 241, 311 P.3d

61 (2013)).



                                             13
No. 34346-4-III
State v. Broussard


       Under RCW 66.44.270(1), “[i]t is unlawful for any person to sell, give, or

otherwise supply liquor to any person under the age of twenty-one years or permit any

person under that age to consume liquor on his or her premises or on any premises under

his or her control.” The “or” is not significant, but the distinct nature of the acts

separated by the word “or,” is. Actively furnishing liquor to a minor is qualitatively

different conduct from enabling underage drinking by providing premises where it can

occur. These are not nuances of the same act. We conclude that furnishing liquor to a

minor is an alternative means crime.

       The threshold test governing whether unanimity is required on the means of

committing a crime is whether sufficient evidence exists to support each of the alternative

means presented to the jury.

       If the evidence is sufficient to support each of the alternative means
       submitted to the jury, a particularized expression of unanimity as to the
       means by which the defendant committed the crime is unnecessary to
       affirm a conviction because we infer that the jury rested its decision on a
       unanimous finding as to the means. On the other hand, if the evidence is
       insufficient to present a jury question as to whether the defendant
       committed the crime by any one of the means submitted to the jury, the
       conviction will not be affirmed.

Ortega-Martinez, 124 Wn.2d at 707-08 (citations omitted).

       Consistent with RCW 66.44.270, jurors were told in instruction 13 that to convict

Mr. Broussard of furnishing liquor to a minor, an element that must be proved beyond a

reasonable doubt was that he



                                              14
No. 34346-4-III
State v. Broussard


       a)    sold, gave, or otherwise supplied liquor to any person under twenty-
             one years of age; or
       b)    did permit any person under the age of twenty-one to consume liquor
             on his or her premises or any premises under his or her control.

Clerk’s Papers at 54. There was no evidence that Ms. Mears’s home was Mr.

Broussard’s premises or premises under his control.

       The State argues we should reject Mr. Broussard’s challenge because he failed to

object to language appearing later in instruction 13 that told the jury:

       To return a verdict of guilty, the jury need not be unanimous as to which of
       alternatives (2)(a) or (2)(b) has been proved beyond a reasonable doubt, as
       long as each juror finds that either (2)(a) or (2)(b) has been proved beyond
       a reasonable doubt.

Id. This misstatement of the law, even though not objected to by Mr. Broussard, does not

change the fact that he was deprived of his constitutional right to an expressly unanimous

verdict.

       The State came close to avoiding this problem when it argued during closing that

the case “primarily . . . involves (a), he gave or otherwise supplied liquor to person[ ]s

under twenty-one.” RP at 338. Even an alternative means crime will not be analyzed as

such if a single means is elected at trial. Peterson, 168 Wn.2d at 771 n.6 (citing State v.

Smith, 159 Wn.2d 778, 783, 790, 154 P.3d 873 (2007)). But the prosecutor went on to

tell jurors that the other statutory means could apply as well. Any retrial of the charge

should be based only on means that are supported by evidence.



                                             15
No. 34346-4-111
State v. Broussard


       We reverse the convictions and remand for proceedings consistent with this

opinion. Since Mr. Broussard prevails, we need not address his request for a waiver of

fees on appeal.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                . d)·aw                      ,~-
                                                Siddoway, J.          °?;
WE CONCUR:



  '-~
Fea~'
                     s




                                           16
