                                                                                                                             FILED
                                                                                                                    UOURJ OF APPEALS

                                                                                                                   2014 MAR 19        AN 8: 48
                                                                                                                   ST,

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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGrl Vl\

                                                           DIVISION II

                                                                                          No. 44477 -1 - II




                                                                                  UNPUBLISHED OPINION




       JOHANSON, J. —                 J. C. appeals from a Thurston County Superior Court revision of a

commissioner' s       denial   of   S. C.'   s"   Sexual Assault Protection Order" ( SAPO).                  J. C. argues that ( 1)


the- superior -court erred- when it excluded all -evidence of the conversation between J. C._and_S..C.. ____ _ __

about S. C.' s sexual activity with another person, and ( 2) the superior court erred in failing to
defer to the     commissioner' s        credibility findings.              Because the superior court properly excluded


evidence of S. C.' s sexual history and properly reviewed the commissioner' s decision de novo

without deferring to the commissioner' s credibility findings, we affirm.
                                                                  FACTS


                                                           I. BACKGROUND


        S. C.,    a   14- year   -old   freshman,          and    J. C.,   a 17- year -
                                                                                      old junior, were both students at


Tumwater High School; they knew each other through mutual friends and rode the bus together.

On November 8, 2012, S. C.              and       J. C.   met   in Scott Lake   park   to "   hang   out."   Clerk' s Papers ( CP)
No. 44477 -1 - II



at   6.    S. C. and J. C. walked around the park talking about various things, including S. C.' s sexual

encounters with               A.F.,   a mutual      friend     and   S. C.'   s   former boyfriend.        The pair ended up at J. C.' s

grandfather' s house, close to the park.


            While in the house, S. C. and J. C. continued to talk about S. C.' s relationship and sexual

encounters         with       A.F. because S. C. felt that J. C.                  was a   friend   and "   someone [ she] could trust."



CP    at   47.     As S. C. started to leave, J. C. asked S. C. if she would look at his penis and tell him " if

 his]      penis    was       bigger than [ A.F.'         s]   because [ A.F.] had           made     jokes" about the size of J. C.' s


penis.      CP     at   61.    According      to S.   C., she refused to look at J. C.' s penis when he asked her, but he


unzipped         his    pants and showed            her his     penis   anyway.           When she tried to leave, J. C. grabbed her

             her                            her           hand down to touch his                       According    to J. C.,   S. C. agreed
around             waist,      forcing            right                                      penis.




to look at his penis and said that his penis was larger; although J. C. asked S. C. if she " wanted to

do anything" with him, there was no further physical contact between them. CP at 62. J. C. then
walked S. C. home.

                                                                  II. PROCEDURE


             S. C.- petitioned for -a SAPO                     against - C.
                                                                        J.         on    November 1-5;- 2012 -      At- the -evr entiary -- - -


 hearing, S. C. had the burden to prove nonconsensual sexual conduct by a preponderance of the
 evidence.          RCW 7. 90. 090.                The parties offered only S. C.' s and J. C.' s testimony, and S. C.

 presented two exhibits.



             During       S. C.'      s testimony, the commissioner, over S. C.' s objections, allowed J. C. to elicit

 testimony that on November 8, 2012, S. C. told J. C. details about her previous sexual encounters

 with      A.F.     J. C. also testified about the conversation he had with S. C. and the details of their

 conversation            about     S. C.'   s prior   sexual      partners         and    conduct.     Although he acknowledged its


 general inadmissibility, the commissioner stated that the evidence of S. C.' s prior sexual history
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No. 44477 -1 - II



was "   directly relevant" to what happened on November 8, 2012, and that he couldn' t " ignore it
in this   context."    CP    at   42.   After hearing testimony from both parties, the commissioner denied

S. C.' s petition for the SAPO, finding that the case relied on the parties' credibility, that he did

not   find   other admitted evidence'          from S. C. " helpful,"          and that S. C. had not met her evidentiary

burden. CP at 77.


          S. C. moved to revise the commissioner' s decision, arguing, in part, that the commissioner

had erred by admitting and considering S. C.' s prior sexual history under ER 412 and RCW
7. 90. 080.     The superior court revised the commissioner' s ruling and entered a protection order.


Although the relaxed evidentiary rules in protection order proceedings apply primarily to
hearsay, the superior court stated that the relaxed rules of ER 1104( c)( 4) did not apply to all
evidence.       And as to whether the evidence of S. C.' s sexual history was admissible, the superior

                  that the   admission of         the   evidence violated        ER 412     and   RCW 7. 90. 080.   The court
court stated



found that the commissioner used the ER 412 evidence for a prohibited purpose when he used it

to make his credibility findings; that S. C.' s sexual history with another person was a " crucial

 piece " -   of evidence for the_commissioner' s - decision;- and -that - ultimately,--the- - exua - history - - -- - - - - - - --
                                                                                            s

 evidence was       irrelevant     and "   highly   prejudicial."        Report of Proceedings at 11 - 12. J. C. appeals.

                                                           ANALYSIS


             J. C. argues that the superior court' s decision to revise the commissioner' s denial of the

 SAPO was improper because the superior court misinterpreted the applicability of ER 412 and

 RCW 7. 90. 080        and   ignored the       commissioner' s           credibility findings.      Because the evidence of




   The    commissioner admitted             two   exhibits offered        by   S. C.:   A.F.' s declaration and a screen shot
 of an    Instagram     message posted            from J. C.'   s   Instagram     account.    A.F.' s declaration, Exhibit 2,

 directly contradicted J. C.' s testimony that A.F. and J. C. had talked about and compared penis
 sizes. Exhibit 1 was an explicit Instagram post that S. C. offered to demonstrate her fear of J. C.
                                                                     3
No. 44477 -1 - II



S. C.' s prior sexual conduct was inadmissible under ER 412 and RCW 7. 90. 080 and the superior

court properly applied the de novo standard of review, we hold that the superior court properly

revised the commissioner' s ruling and issued the protection order.

                                                     I. STANDARD OF REVIEW


           Once the superior court makes a decision on revision, the appeal is from the superior

court' s   decision,    not   the    commissioner' s.             State v. Ramer, 151 Wn.2d 106, 113, 86 P. 3d 132

 2004).     We do not substitute our judgment for that of the superior court' s. Ramer, 151 Wn.2d at

115.     We defer to the superior court' s findings of fact, and review a superior court' s revision of a

commissioner' s                 under    RCW 2. 24. 050 for            an abuse of        discretion.      See In re Marriage of
                      ruling


Dodd, 120 Wn. App. 638, 644, 645, 86 P. 3d 801 ( 2004)..

                                             H. S. C.' S PRIOR SEXUAL CONDUCT

           J. C. first argues that the superior court erred by misinterpreting ER 412 and RCW

                                                                  history       because           ER 1101(    c)(   4), the evidence
                    excluding S. C.'
                                                                                          under
7. 90. 080   and                         s prior sexual




rules are relaxed in evidentiary hearings and the ER 412 evidence was relevant. We hold that the
 superior court did riot - rr when it excluded-the evidence of S.-C' s- prior-sexual- conduct under -- - -
                         e

 412 and RCW 7. 90. 080.


           ER 1101( c)( 4) governs the applicability of the Washington evidence rules to protection

 order     proceedings: "       other    than with           respect       to   privileges,   the   rape    shield    statute [   RCW


 9A.44. 020]    and    ER 412,"      the rules of evidence, need not be applied. ER 412 generally prohibits

 evidence     of prior      sexual    conduct        in   civil   cases,    stating, "[   I] n any civil proceeding involving

 alleged sexual misconduct ... (              1) [   e] vidence offered to prove that any alleged victim engaged in

 other     sexual    behavior [      or] (   2) [    e] vidence offered to prove any alleged victim' s                            sexual


 predisposition [      is   not admissible]."             ER 412( b).           Such evidence is only admissible when the

                                                                      4
No. 44477 -1 - II



evidence is specifically at issue, is otherwise admissible, and is more probative than prejudicial.

See ER 412( c).


         In relation to sexual assault protection orders, RCW 7. 90. 080 prohibits the admission of


any evidence of the petitioner' s prior sexual conduct unless it is evidence of prior sexual conduct
with    the   respondent,      or   if the    admission    of   the   evidence     is constitutionally          required.       RCW


7. 90. 080( 1).    If the evidence is admissible, RCW 7. 90. 080( 2) requires an offer of proof with

specific information as to how and when the prior sexual conduct with the respondent occurred.


Additionally, RCW 9A.44. 020( 2) prohibits the use of prior sexual conduct, or sexual propensity,

to be admitted on the issue of credibility.

          Despite J. C.' s argument that the rules of evidence are relaxed with regard to protection

order proceedings, he is incorrect in extending the proposition to evidence of a victim' s past

sexual    history.         Under ER 1101( c)( 4)' s relaxed evidentiary requirements in protection order

proceedings, ER 412 still applies and evidence of prior sexual conduct is generally prohibited.

Furthermore,        J. C.    argues    that    the   evidence    goes    directly      to    S. C.'   s   credibility,    but RCW


                                                          evidence for       this- purpo se-.- J.C.              t
                                                                                                          argues -   at- -. C-.--   ---—---
 9A.44:020( 2) "prohibits using this type of
                                -                                                              -




 testify about what " occurred between her and J. C. on November 8, 2012, and then say, none of
                                                     is   relevant and should        be     excluded."        Br. of Appellant at
  the   sexual    history    and conversation]




 11.    However, J. C. elicited the prior sexual history on cross -examination over the objections of

 counsel.     There is nothing in the record indicating that S. C.' s sexual past was at issue, making it
 inadmissible      under      ER 412( b).      Finally, the evidence of prior sexual history was with another

 person, not      J. C.,   and was not probative of consent             to    sexual conduct with            J. C.; as such, RCW


 7. 90. 080 prohibits evidence of S. C.' s prior sexual conduct and evidence of her discussion of it

 with J. C.


                                                                  5
No. 44477 -1 - II



            Because the evidence was inadmissible under ER 412 and RCW 7. 90.080, we hold that

the superior court did not abuse its discretion by excluding the evidence of S. C.' s prior sexual

history.

                                        III. SUPERIOR COURT' S STANDARD OF REVIEW

            J. C. next argues that the superior court applied the improper standard of review when it

ignored the           commissioner' s       credibility findings.           We hold that the superior court properly

applied a de novo review standard.


            RCW 2. 24. 050, which addresses the superior court' s revision of a commissioner' s


decision,     states    in   part, "[   R]evision shall be upon the records of the case, and the findings of fact

and   conclusions         of   law      entered   by   the    court commissioner."       The superior court reviews the


commissioner' s findings of fact and conclusions of law de novo based on the record before the

commissioner, regardless of whether the commissioner heard live testimony. Ramer, 151 Wn.2d

at   113.    Protection orders are essentially a type of injunction, equitable in nature, and competent

evidence sufficient            to   support   the trial   court' s     decision may be wholly   documentary.   Blackmon



v.Blackmon, -155 -Wri. App: 715;--721=                               Because -it -
                                      22; 230- P-. d-- 33 -(2010):-- -
                                                 3 2                           - applies -
                                                                                         a- e--novo - -- - - -


 standard        of   review,       the superior court is not required to defer to the discretion of the

 commissioner.          In   re   Marriage of R. E., 144 Wn.            App.   393, 406, 183 P. 3d 339 ( 2008); Dodd, 120



 Wn. App. at 645.

            The superior court made its own factual determinations and conclusions of law after a

 proper     de   novo review of           the existing       record.    Under Ramer and its independent review of the


 record that was before the commissioner, the superior court was not required to defer to the

 commissioner' s          factual findings        or   credibility determinations.      Here, as stated under Blackmon,


 the court properly applied the correct standard of review and referred only to the documentary
                                                                        0
No. 44477 -1 - II



evidence, including the briefs, the clerk' s papers, the original orders, and the hearing transcripts

to make its determination. Because review of the documentary evidence was de novo, there was

no requirement for the superior court to defer to the commissioner' s credibility findings and it

properly      made   its   own   independent factual findings   and   determinations.   Thus, J. C.' s argument


fails.


          We affirm.


          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.




                                                                       ON, J.




L        J.




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