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TYLER SAVAGE,                                      UNPUBLISHED OPINION                    XT         2C"*-


                      Appellant.                   FILED: April 18, 2016



       Spearman, J. — Tyler Savage was convicted by a jury of first degree murder for

killing sixteen-year-old K.D. The jury also found, as an aggravating circumstance, that

the crime was committed in the course of, in furtherance of, or in immediate flight from

rape in the first degree. Savage argues that he was deprived of his right to present a

defense when the trial court excluded evidence of sexually explicit video clips that K.D.

allegedly viewed during the days before her death. He also argues that the trial court

erred in failing to instruct the jury that they had to find that K.D. was alive at the time the

rape occurred in order to find the aggravating circumstance existed. We find no error

and affirm.

                                            FACTS

       On the afternoon of August 17, 2010, sixteen year old K.D. was riding her bike to

a friend's house when she encountered Tyler Savage. K.D. had been diagnosed with
No. 73962-0-1/2


fetal alcohol syndrome and it was estimated that her cognitive functioning was

somewhere between a third and fifth grade level. She participated in special education

classes at school, with a number of accommodations and enjoyed competing in the

Special Olympics. K.D. had undergone a number of corrective surgeries on her feet.

She walked with a contorted step and often wore a leg brace. Savage, who was 18

years old, was a casual acquaintance of K.D. He had dated a friend of hers who told

him that K.D. had a crush on him.


       Later that day, around 4:00 p.m., K.D.'s father, Cecil Daily, arrived home. When

he saw that K.D. had not returned home at the expected time of 3:00 p.m., he called her

cell phone and her friends but was unable to reach her or learn her whereabouts. Daily

called the police and reported her as missing. The next day the police commenced a

search.


      On August 18, 2010, detectives contacted Savage after learning that witnesses

had seen him with K.D. the day before. Savage admitted that he met K.D., but said they

parted ways upon reaching a street that she was not supposed to cross. Savage spoke

with the detectives two more times and a few days later, he agreed to help find K.D.

      On August 23, 2010, a detective confronted Savage and told him they knew K.D.

was dead and that Savage had killed her. Savage then led the detectives to a vacant lot

where K.D.'s body was found in some blackberry bushes. Her clothes had been

removed and a shirt and bra had been tied around her neck. Savage explained that he

and K.D. had been sitting in the field, and when K.D. got up to leave, he came from

behind and choked her to death with his arm. He stated that he took off her clothes, tied
No. 73962-0-1/3


the shirt and bra around her neck, touching her breasts and inserting two fingers into

her vagina before hiding her in the bushes.

       Savage was arrested and charged with one count of aggravated first-degree

murder. The State alleged that Savage murdered K.D. with premeditated intent and in

the course of, in furtherance of, or in immediate flight from the crime of rape in the first

degree. The State also charged Savage with the aggravating factors that he knew K.D.

was particularly vulnerable or incapable of resistance and that the crime was committed

with sexual motivation. See RCW 9.94A.535(3)(b) and (f), respectively. The State

introduced evidence of K.D.'s diagnosis and her cognitive and physical limitations, along

with witness testimony that her limitations were readily apparent.

       Savage's testimony at trial differed from the statements he had given during

police interviews. At trial, he testified that he and K.D. had arranged to meet that day via

Facebook. They met and went to the vacant lot, and K.D. asked Savage if he wanted to

have sex with her. Savage thought she was joking at first, but ultimately agreed. Savage

testified that K.D. directed him to tie something around her neck. Over his protests, she

assured him that it was safe and that she had done it before. He testified that K.D.

removed her shirt and bra and Savage tied them around her neck. They began kissing

and touching and at one point, K.D. became motionless. Savage testified that at that

point she was not breathing and did not respond when he shook her. Savage claimed

he panicked and tried to make it look as though she had been raped. Thinking she was

dead, he took off the rest of her clothes and penetrated her with his fingers. He testified

that he lied before because he did not think anyone would believe the truth.
No. 73962-0-1/4


       Before trial, Savage moved to introduce thirteen sexually explicit video clips that

were found in the internet browser history on K.D.'s computer. The clips were selected

from approximately 550 sexually explicit videos that had been viewed on K.D.'s

computer during the month before her death. Savage also offered evidence that K.D.

was the only person using the computer. The clips offered by Savage depicted scenes

involving outdoor or public sex, bondage, and asphyxiation. He argued that the

presence of the videos in the browser history showed that K.D. had an interest in

engaging in these types of acts. He contended the evidence supported his theory that

K.D.'s death was an accident resulting from consensual sex acts, including erotic

asphyxiation. He also claimed the videos rebutted the allegations of premeditation and

that K.D. was particularly vulnerable. He further argued that the evidence was not

barred by Washington's rape shield statute, citing the exception in RCW 9A.44.020(3).

That section permits the admission of evidence of the victim's past sexual behavior if,

among other things, it is relevant to the issue of consent.

       The trial court found the evidence was barred by the rape shield statute and

denied the motion. It reasoned that while evidence of a previous history of engaging in

similar sexual activity might be relevant, the logical nexus between merely viewing

pornography and engaging in acts similar to those viewed was tenuous at best. The

court stated it was struggling "to find a bridge" from "viewing pornography to actual

engagement," and "just d[id]n't find it." Verbatim Report of Proceedings (VRP)

(11/07/13) at 822-23. The court also ruled that while viewing pornography was "sexual

behavior" under the rape shield statute, there was insufficient similarity between the
No. 73962-0-1/5


behavior of "[vjiewing versus doing" to escape the statute's general bar to the admission

of such evidence. Id. at 825.

       At trial, Savage proposed instructions advising the jury that in order to find he

had committed the predicate crime of rape, the State had to prove that when he

committed the acts constituting rape, that (1) K.D. was alive, and (2) that he knew it.

The trial court refused to give either instruction. The jury found Savage guilty of

aggravated first-degree murder as charged. The jury also found that K.D. was

particularly vulnerable or incapable of resistance at the time of the offense and that the

crime was sexually motivated. On January 17, 2014, Savage was sentenced to life

without parole. He appeals.

                                       DISCUSSION


       Savage first argues that the trial court erred when it refused his request to admit

into evidence thirteen of the video clips found in the internet browser history on K.D.'s

computer. He claims the evidence was admissible under the rape shield statute, RCW

9A.44.020(3), and that its exclusion violated his right to present a defense under the

sixth and fourteenth amendments to the United States Constitution and article 1, § 22 of

the Washington State Constitution.

      "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.'" State v. Jones, 168

Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting Chambers v. Mississippi, 410 U.S. 284,

294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). This includes the right to offer testimony

and examine witnesses. k± But because the right only applies to relevant evidence, a
No. 73962-0-1/6


defendant must show that the evidence sought to be admitted is "'of at least minimal

relevance.'" Jones, 168 Wn.2d at 720 (quoting State v. Darden, 145 Wn.2d 612, 620, 41

P.3d 1189 (2002)). We review de novo an alleged violation of a defendant's right to

present a defense. Id.

       Under RCW 9A.44.020(2), "[ejvidence of the victim's past sexual behavior

including but not limited to the victim's marital history, divorce history, or general

reputation for promiscuity, nonchastity, or sexual mores contrary to community

standards is inadmissible on the issue of credibility and is inadmissible to prove the

victim's consent except as provided in subsection (3) of this section...." Subsection

(3)(d) provides a procedure by which the court may admit such evidence if it finds the

evidence:


       is relevant to the issue of the victim's consent; is not inadmissible
       because its probative value is substantially outweighed by the
       probability that its admission will create a substantial danger of
       undue prejudice; and that its exclusion would result in denial of
       substantial justice to the defendant.

One purpose of the statute is to eliminate prejudicial evidence of prior sexual conduct of

a victim which often has little, if any, relevance on the issues for which it is usually

offered, namely, credibility or consent. State v. Hudlow, 99 Wn.2d 1, 16-17, 659 P.2d

514 (1983). The statute was not intended, however, to establish a blanket exclusion of

evidence relevant to other issues that may arise in prosecutions for rape. State v.

Carver, 37 Wn. App. 122, 124, 678 P.2d 842 (1984). Evidence of prior sexual conduct

may be relevant and admissible if it is "demonstrated that the evidence will make it more

probable or less probable that [the alleged victim] consented to sexual activity on this



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No. 73962-0-1/7


occasion." Hudlow, 99 Wn.2d at 17. The admissibility of such evidence is within the

sound discretion of the trial court, jd.

       Savage argues that the video clips are relevant to his defense because they

support his theory that K.D. consented to acts of erotic asphyxiation and sexual

intercourse. He cites Carver in support, but the case is inapposite. In Carver, the

defendant was charged with indecent liberties and statutory rape of his stepdaughters.

He sought to introduce evidence that the stepdaughters had experienced similar sexual

abuse by their grandfather and a friend, to "rebut the inference that the only way two

young girls would have knowledge of such sexual matters was because the defendant

had sexually abused them as charged." 37 Wn. App. at 123. The trial court excluded the

evidence.


       On appeal, we reversed holding that the trial court erred in analyzing the

evidence under the rape shield statute because it concerned "prior sexual abuse, not

misconduct, of a victim." Id. Stated differently, because being a victim of sexual abuse is

not "sexual behavior," the admission of such evidence is not controlled by the rape

shield statute. Here, however, it is uncontested that the evidence sought to be admitted,

K.D.'s alleged viewing of sexually explicit video clips, was sexual behavior. Thus, its

admission is necessarily limited to the confines of the rape shield statute.

       A more analogous case is State v. Posey, 161 Wn.2d 638, 167 P.3d 560 (2007).

There, the defendant sought to introduce a draft e-mail from the victim's computer as

evidence that she would have consented to violence and rape. The e-mail had been

written by the victim around the time that she had met the defendant, but it was neither
No. 73962-0-1/8


addressed to nor sent to him. Id. at 642. According to the offer of proof, the draft stated

that she would "'enjoy'" being raped and that she wanted a boyfriend who would "'choke

her'" and "'beat her.'" Id. The Supreme Court found that the e-mail was not probative of

consent because it was neither addressed to nor sent to the defendant, and it

"described only the potential prior sexual misconduct or potential sexual mores,

rendering the admission of the e-mail violative of the rape shield statute." id at 649.

       Here, as in Posey, the trial court found that the video clips were neither relevant

nor probative of consent because there was no evidence that K.D. had actually

engaged in the depicted activities. The trial court's ruling differentiated between actual

sexual conduct versus evidence of interest; "[sjhowing an ongoing interest is a far cry

from engaging in a particular kind of sexual activity." VRP (11-07/12) at 822. The court

stated that it "need[ed] some evidence that [K.D.] was actually engaged in this activity

as a past sexual conduct. You know, there has been no evidence presented that the

defendant watched the pornography with the victim. There is no evidence that the

defendant had access to this pornography on the victim's computer. There's no

evidence that the victim had engaged in sexual activity that involved bondage and

asphyxiation with the defendant or with anyone else." Id. at 823.

       We agree with the trial court's conclusions. Because there was no evidence that

K.D. had ever engaged in the activities depicted in the video clips, even if she had

viewed them, that does not make it more or less probable that she consented to

intercourse with Savage or that she initiated her own strangulation. The evidence
No. 73962-0-1/9


excluded by the trial court was irrelevant and its exclusion did not deprive Savage of his

constitutional right to present a defense.1

       Savage next contends that the trial court violated his due process rights when it

refused to instruct the jury that the State had to prove that K.D. was alive at the time of

penetration. Br. of Appellant at 21-22. Savage proposed the following instructions:

              A person commits the crime of Rape in the First degree when
        he engages in sexual intercourse with another living person,
        knowing the other person is living, by forcible compulsion when he
        kidnaps the other person or inflicts serious personal injury. CP at
        275.


              To convict the defendant of the crime of rape in the first
        degree, each of the following elements of the crime must be proved
        beyond a reasonable doubt:
              (1) That on or about August 17, 2010, the defendant engaged
                  in sexual intercourse with [K.D];
              (2) That [K.D.] was living at the time;
              (3) That the defendant knew [K.D.] was living.... CP at 276.

                A person is no longer living when an individual who has sustained
        either (1) irreversible cessation of circulatory and respiratory functions, or
        (2) irreversible cessation of all functions of the entire brain, including the
        brain stem. CP at 277.

The trial court rejected these instructions, finding that "the term 'living' is not in the

statute," but recognized that rape in the first degree requires that the victim be alive.

VRP (12/16/13) at 1903. The court also rejected the insertion of a mens rea element

because "[t]he rape statute does not include a mens rea element requiring that the




         1We also reject Savage's argument that the video clips are relevant because they "create[]
reasonable doubt about whether K.D. was as sexually naive as the prosecution tried to make her out to
be." Br. of Appellant at 19. The argument fails because the State's basis for arguing that K.D. was
particularly vulnerable was based on her physical and cognitive limitations, not on evidence of her lack of
sexual experience.
No. 73962-0-1/10


defendant know that the victim was living... whether he thought K.D. was dead or alive

at the time of the act is not an issue." ]d. Savage's trial counsel then objected to the

court's failure to give some instruction that defined "death" and/or included statements

on "whether or not the victim was alive or that the defendant knew she was alive." VRP

(12/16/13) at 1908.

        On appeal, Savage assigns error only to the trial court's failure to instruct the jury

that K.D. had to be alive at the time of penetration. He concedes that the portion of the

proposed instruction related to mens rea was legally incorrect and that trial counsel did

not propose an alternate instruction.2

        We review jury instructions de novo for errors of law. Anfinson v. FedEx Ground

Package System, Inc., 174 Wn.2d 851, 860, 281 P.3d 289 (2012). As to the aggravating

circumstance, the jury was instructed that the State's burden was to establish beyond a

reasonable doubt that the "murder was committed in the course of, in furtherance of, or

in immediate flight from rape in the first degree." CP at 334. Thus, the State was not

required to prove that Savage committed the crime of first degree rape but only that the

murder had occurred during an attempt to commit or flee from the crime. State v.

Golladav, 78 Wn.2d 121, 131,470P.2d 191 (1970) (overruled on other grounds by

State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976)); State v. Diebold, 152 Wash.


          2 In light of Savage's concession that his proposed instruction "was legally incorrect," the State
argues that he failed to preserve for appellate review his challenge to the court's failure to give the
instruction. Br. of Appellant at 29-30. In general, "[n]o error can be predicated on the failure of the trial
court to give an instruction where no request for such an instruction was ever made." State v. Kroll, 87
Wn.2d 829, 843, 558 P.2d 173 (1976). But here, the record shows that his proposed instruction included
the "living" language, the trial court rejected that specific language separately from mens rea component,
and Savage verbally objected to the trial court's rejection. Under these circumstances, the claimed error
is sufficiently preserved for our review. Accordingly, we need not address Savage's claim that his lawyer
was ineffective for failing to propose a "legally correct" instruction. Br. of Appellant at 29-31.

                                                      10
No. 73962-0-1/11


68, 72, 277 P. 394 (1929)). See also State v. Hachenev. 160 Wn.2d 503, 514, 158 P.3d

1152 (2007). As the court explained in Golladav:

       As to when a homicide may be said to have been committed in the
       course of the perpetration of another crime, the rule is ....

       'It may be stated generally that a homicide is committed in the
       perpetration of another crime, when the accused, intending to commit
       some crime other than the homicide, is engaged in the performance of
       any one of the acts which such intent requires for its full execution, and,
       while so engaged, and within the Res gestae of the intended crime, and
       in consequence thereof, the killing results. It must appear that there was
       such actual legal relation between the killing and the crime committed
       or attempted, that the killing can be said to have occurred as a part of
       the perpetration of the crime, or in furtherance of an attempt or purpose
       to commit it. In the usual terse legal phraseology, death must have
       been the probable consequence of the unlawful act.'

       Savage contends only that the jury should have been instructed that the State

bore the burden of proving that K.D. was alive at the time of penetration. He does not

contend that the evidence was insufficient to establish that K.D.'s death occurred during

the course of or in furtherance of his attempt to commit the crime of first degree rape.

And because that was all the State was required to prove in order to establish the

aggravating circumstance, whether K.D. was alive when Savage completed the crime is

irrelevant.


       Savage cites no Washington authority in support of his argument to the contrary.

Instead, he relies primarily on People v. Sellers, 203 Cal.App.3d 1042, 250 Cal.Rptr.

345 (1988), but the case is inapposite. In Sellers, the defendant was convicted of the

completed crimes of murder and rape, in addition to a special circumstance allegation

that the murder was committed while the defendant was engaged in committing rape.

The trial court refused to instruct the jury that it "could not find rape or the special


                                              11
No. 73962-0-1/12


circumstance of murder during the commission of rape if the jury believed the victim

was dead at the time sexual intercourse occurred." ]d_. at 1050. On appeal, the court

reversed. It concluded that because the penal code defined the completed crime of rape

as "'an act of sexual intercourse accomplished with a person,'" the victim must

necessarily be alive when the crime is committed. jcL (quoting California Penal Code

section 261). But the court also stated that "'[w]hen a conviction of first degree murder is

based on a theory of killing during an attempted rape, it is irrelevant whether the victim

was already dead at the time of penetration.'" Id. at 1053, (quoting People v. Booker. 69

Cal.App.3d 654, 666, 138 Cal.Rptr. 347 (1977)). Sellers, is of no help in this case

because Savage was neither charged with nor convicted of the crime of rape. Thus, the

State bore no burden to prove that K.D. was alive when Savage completed the crime

and the trial court correctly refused to instruct the jury thereon. There was no error.

       Affirm.




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WE CONCURS




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