 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
                                               No. 75578-1-1
                    Respondent,
                                               DIVISION ONE
             V.
                                               UNPUBLISHED OPINION
JOHN LACEY LOONEY,

                    Appellant.                 FILED: October 2, 2017
                                                                           cn
      TRICKEY, A.C.J. — John Lacey Looney appeals the trial court's admission'"

of a witness's prior consistent statements to rebut an allegation of recent

fabrication. We conclude that the trial court erred in admitting the evidence

because the brief cross-examination at issue did not raise an allegation of

fabrication. However,the error was harmless because the admitted testimony was

equivocal and the outcome of the trial was not materially affected. We affirm.

                                     FACTS

      Officers Stephen Ross and Alexander Lever of the Everett Police

Department stopped Looney for driving with a suspended license. Officer Ross

placed Looney under arrest and attempted to remove him from the car. Looney

resisted and began struggling. Officer Lever attempted to assist Officer Ross.

During the struggle, Looney kicked Officer Lever in the head. Eventually, the

officers subdued Looney and he was taken to jail.

      Looney was charged with third degree assault. At trial, Officer Lever

testified that Looney was looking at him during the kick. He stated,"Night before
No. 75578-1-1/ 2

I was hit, we were looking face-to-face."1 On cross-examination, he reiterated,"we

were looking directly at each other."2 But, Officer Lever acknowledged that he had

not included this detail in the report he wrote the day of the incident. He admitted

that his memory would have been fresher two months ,ago when he wrote the

report.

          On redirect examination, the prosecutor asked Officer Lever whether it was

unusual for a report to omit details. Officer Lever said this was not unusual and

that reports were generally written to remind the writing officer of the incident. He

also stated that he remembered this incident in particular because it was the first

time he had been kicked. The prosecutor began to ask Officer Lever about his

participation in an interview with defense counsel's investigator. Looney objected

to this testimony.

          The prosecutor requested admission of Officer Lever's statements from an

interview the prior week, during which he told the defense investigator that Looney

had made eye contact with him before the kick. The prosecutor argued for

admission of this statement as a prior consistent statement to rebut a recent claim

of fabrication. Despite defense counsel's strenuous objection, the trial court

concluded that the cross-examination was a recent fabrication claim. The trial

court also determined that Officer Lever had previously made a statement about

eye contact to the defense investigator and would allow questions "in relation to

the fact that a statement was made before today."3



1 Report of Proceedings(RP)(July 25, 2016) at 119.
2 RP (July 26, 2016) at 145.
3 RP (July 26, 2016) at 161.

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No. 75578-1-1 / 3

         The prosecutor asked Officer Lever whether he told the defense investigator

about making eye contact with Looney. Officer Lever testified, "I think I did. It's

hard to recollect, honestly, right now." He concluded, "[It's] [k]ind of foggy. I'm

not going to lie."5

         During closing arguments, Looney contended that the kick may have been

unintentional and noted Officer Lever's failure to include any details about making

eye contact in his report. Looney was convicted of third degree assault. He now

appeals.

                                     ANALYSIS

         Prior Consistent Statement to Rebut a Charge of Recent Fabrication

         Looney argues that the trial court erroneously admitted hearsay that did not

qualify as a prior consistent statement. We agree.

         "Hearsay" is "a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." ER 801(c). A prior statement by a witness is not hearsay if it is

"consistent with the declarant's testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or improper influence or

motive." ER 801(d)(1)(ii). This rule allows for rehabilitation of testimony impugned

by a suggestion of recent fabrication. State v. Bargas, 52 Wn. App. 700, 702, 763

P.2d 470(1988).

         Claims of recent fabrication may be implicit. State v. Thomas, 150 Wn.2d

821, 866, 83 P.3d 970 (2004). But, "[c]ross[-]examination alone does not justify


4   RP (July 26, 2016) at 162.
5   RP (July 26, 2016) at 163.
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No. 75578-1-1 /4

admission of prior consistent statements; the questioning must raise an inference

sufficient to allow counsel to argue the witness had a reason to fabricate [his or]

her story later." Bargas, 52 Wn. App. at 702-03. The prior statement must have

been made before the reason for fabrication. Baran, 52 Wn. App. at 703.

Admission of a prior statement under ER 801(d)(1)(ii) is within the trial court's

discretion and will not be reversed absent a showing of manifest abuse of

discretion. State v. Makela, 66 Wn. App. 164, 168, 831 P.2d 1109 (1992). An

abuse of discretion exists when the exercise of discretion is manifestly

unreasonable or based on untenable grounds or reasons. State v. Powell, 126

Wn.2d 244, 258, 893 P.2d 615(1995).

         Here, Looney elicited the information that Officer Lever had not mentioned

making eye contact in his report. After confirming that Officer Lever had written

the report the day of the incident, Looney asked, "[a]nd it's fair to say that your

memory two months ago would have been fresher; correct?"6 This brief cross-

examination is insufficient to raise an inference of recent fabrication. Looney's

follow-up question suggested inconsistency based on memory, rather than

fabrication. "Cross-examination that merely attempts to point to inconsistencies in

the witness's testimony does not raise an inference of recent fabrication." State v.

McWilliams, 177 Wn. App. 139, 148, 311 P.3d 584 (2013). Looney's effort to

highlight possible discrepancies in Officer Lever's recollection of the event did not

raise an implicit claim of fabrication.




6   RP (July 26, 2016) at 146.
                                          4
No. 75578-1-1/ 5

       Without an allegation of recent fabrication, Officer Lever's prior consistent

statement was not properly admitted under ER 801(d)(1)(ii). We conclude that the

trial court's admission of the evidence was an abuse of discretion.

                                   Harmless Error

       The State claims that any error was harmless. A trial court's error in

admitting the prior consistent statement does not necessitate reversal unless the

defendant was prejudiced. State v. Gonzalez-Gonzalez, 193 Wn. App. 683, 689,

370 P.3d 989 (2016). An error is not prejudicial unless, "within reasonable

probabilities, had the error not occurred, the outcome of the trial would have been

materially affected." State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139

(1980). Therefore, reversal is only required if there is a reasonable probability that

proper exclusion of Officer Lever's statements to the defense investigator would

have materially affected the outcome of the trial.

       Here, Officer Lever's testimony as to whether he discussed the issue of eye

contact with the defense investigator was equivocal. Officer Lever stated that he

thought that he had told the investigator about the eye contact with Looney, but he

could not clearly recall. The State did not return to this evidence in closing

arguments despite arguing for its admission. If anything, Officer Lever's testimony

augmented Looney's cross-examination questions about his recollection of the

incident. Therefore, there is no reasonable probability that the outcome of

Looney's trial would have been materially different had Officer Lever's statements

to the defense investigator been properly excluded. We conclude that the trial

court's error was harmless.


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No. 75578-1-1/6

     Affirmed.


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WE CONCUR:




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