      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 73590-0-1
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 SEAN MICHAEL CURRAN,                           UNPUBLISHED OPINION               1
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                      Appellant.                FILED: October 3, 2016
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       Leach, J. — Sean Curran appeals his convictions for malicious mischief arrct

felony harassment. He contends that the trial court violated his Sixth Amendment

right to present a defense when it prevented him from testifying about key

witnesses' plans to prostitute themselves. This excluded evidence is not relevant

to any claimed motive to fabricate and would have unfairly prejudiced the jury

against the witnesses. The trial court did not abuse its discretion in excluding the

evidence. We affirm. Because the record includes no evidence showing Curran's

current inability to pay, we deny his request that the State not receive an award of

statutory costs.

                                   BACKGROUND


       Events Leading to Arrest

       The evening of March 26, 2014, defendant Sean Curran, Shelby Ostergard,

and Viktoriya Tarasenko smoked methamphetamine together at Curran's home.
No. 73590-0-1 / 2




Ostergard left at some point that night and went home. Tarasenko stayed at

Curran's house that night.

       According to Ostergard, the next morning Tarasenko called Ostergard to

ask her to return to the house. When Ostergard arrived, Tarasenko and Curran

came out of the house. Ostergard testified that as Curran approached the car, he

screamed that Ostergard was trespassing, he was going to call the cops, and he

was going to kill her. Curran was carrying a bat. When he got to the car, he swung

the bat, hitting the driver's side mirror, breaking it off, and shattering the glass.

Ostergard testified that Curran then reached into the car through the driver's side

window and slapped her face. She claimed that he said, "Tm going to kill you if

you call the cops.'" Ostergard drove off with Tarasenko in the car. She claims that

Curran followed beside her in his truck, holding up a gun and threatening to kill

her.


       According to Curran, he awoke on the morning of March 27 to Ostergard

pulling the screen windows off his house. He admitted to breaking her car mirror

but denied that he slapped or threatened to kill her. Curran also denied that he

chased her in his truck.


       Tarasenko testified that Curran hit the car mirror with a baseball bat,

threatened to kill Ostergard, and slapped Ostergard.       She had no memory of

Curran following them in his truck.

       In the early hours of the next morning, around 1:00 a.m., Curran drove to

Ostergard's house. He testified he went there to apologize for breaking the car


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No. 73590-0-1 / 3




mirror. When Curran was outside her house, Ostergard called the police. The

police arrived minutes later, finding Curran still outside Ostergard's house. Curran

told the police he was there to apologize for damaging Ostergard's car. The police

arrested Curran.


       Events at Trial


       The State charged Curran with felony harassment, assault in the fourth

degree, and malicious mischief in the third degree. Before trial, the State asked

the court to exclude certain evidence of some witnesses' character and prior bad

acts. Specifically, the State moved to exclude Curran's claims that Ostergard had

plans to engage in bank fraud and arrange for Tarasenko and herself to prostitute

themselves to older men. Curran's attorney told the court that they did not intend

to go into these issues. The court granted the State's exclusion request. During

Curran's testimony, the trial court sustained objections to questions about

Ostergard and Tarasenko's plans to do "things that they shouldn't be doing."

       The jury found Curran guilty of malicious mischief and harassment. The

jury could not reach a verdict on the assault charge. The trial court later dismissed

that charge with prejudice. Curran appeals.

                                    ANALYSIS


       Excluded Evidence


       Curran contends that the trial court denied him his Sixth Amendment right

to present a defense.     This court reviews a trial court's decision to exclude
No. 73590-0-1/4




evidence for abuse of discretion.1    "State courts have broad latitude under the

Constitution to establish rules excluding evidence from criminal trials."2 While the

Sixth Amendment grants a criminal defendant the right to present his defense,3

this right extends only to "'relevant evidence that is not otherwise inadmissible.'"4

"[A] criminal defendant has no constitutional right to have irrelevant evidence

admitted in his or her defense."5

       "The threshold to admit relevant evidence is very low."6 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."7 Relevant evidence may still be deemed inadmissible ifthe

State can show the evidence is "so prejudicial as to disrupt the fairness of the fact

finding process at trial."8 If the State establishes that the evidence would have a

prejudicial effect, the prejudice from admission must be balanced against the

defendant's need for the information sought.9




       1 State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
       2 State v. Donald, 178 Wn. App. 250, 263, 316 P.3d 1081 (2013) (citing
United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413
(1998)), review denied, 180 Wn.2d 1010 (2014).
       3 Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019
(1967).
       4 State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006) (quoting
State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)).
       5 State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
       6 State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189(2002).
       7ER401.
       8 Darden, 145 Wn.2d at 622.
       9 Darden, 145 Wn.2d at 622.
No. 73590-0-1 / 5




       Here, the trial court did not abuse its discretion in excluding testimony

related to Ostergard's prostitution plans because the testimony was not relevant

to Curran's defense. Curran claims he was prevented from presenting evidence

of the witnesses' motive to fabricate. Specifically, Curran contends that he was

prevented from explaining that the witnesses fabricated their testimony because

they were upset with him, presumably for thwarting their prostitution plans. But

none of the stricken testimony addressed the witnesses' motivations. Thus, the

excluded evidence did not have "any tendency" to make fabrication "more or less

probable."10

      Curran was precluded only from explaining his own motivations in

connection with the malicious mischief charge. He testified that he was trying to

help his friends by "keep[ing] them from going and doing things .. . they shouldn't

be doing." He was unable to explain this statement fully because of the court's

previous ruling on the State's request to exclude this evidence.

      Curran appears to claim that he damaged Ostergard's car to prevent her

from prostituting herself and Tarasenko. The trial court struck Curran's statement

that Ostergard "was trying to get [Viktoriya] to go prostitute themselves." Curran

attempted to offer this testimony to explain his statement that "the whole reason

that [he] smashed her car was that her car is her weakness." Then, when asked

why he seemed frustrated, Curran responded, "Trying to explain my actions

without explaining my actions. I can't explain why I had took these actions that I


      10
           See ER 403.
No. 73590-0-1 / 6




took. It's like why did you get mad, but don't tell me why you got mad; just why

were you mad." Each of these statements references Curran's reasons for his own

actions, but none of them show why any witness would fabricate testimony.

       Even if Curran did not offer the excluded testimony to explain his own

actions, it was not relevant to any witness's credibility. For instance, when defense

counsel asked if Curran knew why Ostergard was hanging around older

gentlemen, again referencing the alleged planned prostitution, the court sustained

the State's objection, ruling that it called for speculation about someone else's

mental state. Again, Curran does not explain how this or any of the excluded

evidence shows a witness's motive to lie.      Because the excluded evidence does


not tend to make it more or less likely that the witnesses fabricated their testimony,

it was not relevant to Curran's defense.


       Curran claims that the stricken evidence was relevant because, in the

State's rebuttal closing argument, it relied on the witnesses' motive to tell the truth.

Yet still, Curran fails to explain how the excluded evidence shows the witnesses'

motive to fabricate.


       Excluding the evidence did not prevent Curran from challenging the

witnesses' credibility. To the extent the stricken testimony bears on the witnesses'

credibility, Curran presented alternative evidence on the issue.           In State v.

Donald,11 this court concluded that the trial court did not abuse its discretion when




       11 178 Wn. App. 250, 270-71, 316 P.3d 1081 (2013), review denied, 180
Wn.2d 1010(2014).
No. 73590-0-1 / 7




excluding evidence with some relevance because the court had reasonable

justification for its exclusion and the defendant had opportunity to present the

defense through other means. Here, Curran was able to attack the witnesses'

credibility through evidence of their drug use, which the court and deputy

prosecutor acknowledged was relevant to credibility.

       Even if Curran could show minimal relevance, the trial court was justified in

excluding Curran's references to prostitution because of the prejudicial effect of

that evidence. Courts can properly exclude evidence that has little or no probative

value but could have significant prejudicial effect.12       In State v. Gallegos,13 a

defendant charged with rape sought to examine the victim's husband about

whether he approved or disapproved of her conduct and association with other

men. The defendant asserted that the husband's views could show a motive for

the victim to fabricate the entire incident or the severity of the incident.14 This court

concluded that the trial court did not abuse its discretion in restricting the cross-

examination because the testimony "had little if any probative value on whether

the victim was fabricating" and "could have had the prejudicial effect of suggesting

some impropriety."15 Similarly, here, the evidence Curran sought to introduce had

little, if any, bearing on the witnesses' motive to fabricate. However, as was noted

in the pretrial hearing, evidence of Ostergard's plans involving prostitution could



       12   ER 403; State v. Gallegos, 65 Wn. App. 230, 237, 828 P.2d 37 (1992).
       13   65 Wn. App. 230, 236-37, 828 P.2d 37 (1992).
       14   Gallegos, 65 Wn. App. at 236-37.
       15   Gallegos, 65 Wn. App. at 237.
No. 73590-0-1 / 8




"smear" her character.        As the excluded evidence was not relevant to whether


Ostergard was telling the truth and merely tends to have the prejudicial effect of

besmirching her character in the eyes of the jury, the trial court acted within its

discretion in excluding it.

       The trial court's decision to exclude the evidence was not arbitrary, nor did

it "significantly undermine a fundamental element of [Curran's] defense."16

Therefore, the trial court did not abuse its discretion in excluding evidence of the

witnesses' prostitution plans or striking Curran's related testimony.

       Appellate Costs

       Curran asks that the court waive his appellate costs. RCW 10.73.160(1)

vests the appellate court with broad discretion to grant or deny appellate costs.17

RAP 14.2 permits the court to exercise that discretion in a decision terminating

review. In exercising that discretion, ability to pay, although not the only relevant

factor, is an important consideration.18 "The appellate court will give a party the

benefits of an order of indigency throughout the review unless the trial court finds

the party's financial condition has improved to the extent that the party is no longer

indigent."19

       In this case, facts weigh both for and against imposing appellate costs. On

the one hand, the trial court entered an order of indigency, waiving court costs and


       16 Donald, 178 Wn. App. at 268.
       17 State v. Sinclair, 192 Wn. App. 380, 388, 367 P.3d 612, review denied,
185Wn.2d 1034(2016).
       18 Sinclair, 192 Wn. App. at 389.
       19 RAP 15.2(f).

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No. 73590-0-1 / 9




fees because Curran was not employed at the time. The trial court found that "the

defendant lack[ed] sufficient funds to prosecute an appeal," and there was no

subsequent finding that Curran's financial condition has improved or is likely to

improve.20 On the other hand, the order of indigency was signed ex parte, and

thus, the State had no opportunity to present evidence showing Curran's ability to

pay.21

         As a whole, the record does not support a finding that Curran cannot

currently or will not in the future be able to pay costs. In State v. Sinclair,22 we

found that awarding appellate costs was not appropriate because there was no

"realistic possibility that [Sinclair would] be released from prison in a position to

find gainful employment that [would] allow him to pay appellate costs." Sinclair

was 66 years old with a minimum sentence of 280 months.23 By contrast, Curran

is relatively young at 31 years, he served only three months, and he has been

released from custody.

         Further, in Sinclair, the trial court appointed appellate counsel because

Sinclair was "'unable by reason of poverty to pay for any of the expenses of

appellate review.'"24 Here, by contrast, the trial court justified waiver of expenses

based on a finding that the defendant was unemployed.           Curran provides no

evidence that he is still unemployed or is unable to obtain employment.          We

         20 Sinclair, 192 Wn. App. at 393.
         21 Sinclair, 192 Wn. App. at 393.
         22 192 Wn. App. 380, 393, 367 P.3d 612, review denied. 185 Wn.2d 1034
(2016).
         23 Sinclair, 192 Wn. App. at 393.
         24 Sinclair, 192 Wn. App. at 392.
No. 73590-0-1/10




therefore decline to conclude that Curran is presently unable to pay appellate

costs.


                                   CONCLUSION


          Because evidence about the witnesses' plans to prostitute themselves was

not relevant to Curran's defense at trial, the trial court properly excluded that

evidence. And because Curran provided no evidence that he is currently unable

to pay appellate costs, we decline Curran's request to deny the State costs. We

affirm.




WE CONCUR:




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