                                                                  FILED
                                                               JULY 16, 2020
                                                       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. 36488-7-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
NATHAN B. NAVE,                               )
a/k/a NATHAN BRICK NAVE,                      )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY, J. — Nathan Nave appeals after a jury found him guilty of

second degree rape, third degree rape of a child, and third degree child molestation. The

jury also made a special finding for each offense that it included the aggravating

circumstance of an ongoing pattern of abuse of the same victim under 18 years old. Mr.

Nave raises several issues on appeal. We remand to strike the criminal filing fee, but

otherwise affirm.
No. 36488-7-III
State v. Nave


                                         FACTS

       Danielle Valentine gave birth to I.V.1 in June 2002. Ms. Valentine began dating

Nathan Nave when I.V. was 5. The two had twin girls and eventually married. The

family lived in a two-level house. I.V.’s bedroom was downstairs next to a living room

and the other bedrooms were upstairs.

       Once when I.V. was 11, she and Mr. Nave were watching a movie. I.V. fell asleep

and, when she awoke, Mr. Nave was touching her under her shorts on her upper thigh. At

the time, I.V. thought he was just massaging her legs, but was alarmed because the

touching was so far up on her leg.

       About two years later, I.V. fell asleep watching a movie in the living room on the

opposite side of a couch from Mr. Nave. When she awoke, Mr. Nave was touching her

vagina, but above her underwear. I.V. tried to go to her room, but Mr. Nave insisted she

stay. He pulled her arm, but she pulled away and went to her bedroom. She did not

disclose this incident to her mother, but she stopped watching movies with Mr. Nave.




       1
          To protect the privacy interests of I.V., we identify her only through the use of
initials. General Order of Division III, In Re the Use of Initials or Pseudonyms for Child
Victims or Child Witnesses (Wash. Ct. App. June 18, 2012),
http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=
2012_001&div=III.

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State v. Nave


       The next incident occurred in early 2017. I.V. was asleep in her bedroom, facing

the wall, and was awakened by someone touching her. The person, whom I.V. later

testified as Mr. Nave, massaged her legs, rubbed her back, and touched her vagina. This

occurred for 15 to 20 minutes, and I.V. was terrified. The person penetrated I.V.’s vagina

digitally. Again, I.V. did not disclose this to her mother.

       After that incident, the sexual abuse continued three or four times per week. Each

time, I.V. faced the wall and often covered her head with a blanket because she did not

want Mr. Nave to know she was awake. I.V. never saw the person who repeatedly abused

her during this time nor did the person ever speak to her during the abuse.

       In the midst of this abuse, Mr. Nave once acknowledged he had come into her

room the prior night. While driving I.V. to school, Mr. Nave said, “[A]bout last night,

one of three things could happen. One, you don’t tell anyone and I keep doing it; two,

you don’t tell anyone and I stop; three, you feel like you have to tell someone.” Report of

Proceedings (RP) at 63. I.V. told him she would not tell anyone and for him to stop. Mr.

Nave explained that if she told someone, the family would lose their home. Despite I.V.’s

request that he stop, Mr. Nave continued sexually abusing I.V.

       On May 12, 2017, I.V. told her mother that Mr. Nave had raped her. Her mother

confronted Mr. Nave and told him to leave the house and go to his mother’s house


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No. 36488-7-III
State v. Nave


because she needed to figure things out. Mr. Nave then went to his mother’s house. Mr.

Nave quit his job, sold his car, and traveled to New York the following day.

       On May 31, 2017, the State charged Mr. Nave with one count of rape in the second

degree, one count of rape of a child in the third degree, and one count of child molestation

in the third degree. The charges included a special allegation of aggravating

circumstances for each count, alleging that the offense was part of an ongoing pattern of

abuse of the same victim under 18 years old. Federal marshals later served an arrest

warrant on Mr. Nave in Idaho Falls, Idaho, where he had been staying with his cousin.

       Pretrial motions

       Prior to trial, the State filed a motion to allow evidence that Mr. Nave had touched

I.V. when she was 11 and 13. The State argued the evidence was needed to prove the

charged aggravator. Mr. Nave argued the prior acts were not criminal and nothing

happened since the 2013 incident, thus making the acts irrelevant. The trial court granted

the State’s motion, ruling the evidence could be admitted under ER 404(b) for the

purpose of showing lack of accident, mistake, or intent, and to show an ongoing pattern

of abuse.

       The State also filed a motion to exclude evidence that I.V.’s cousin had been

sexually abused by a family member. Mr. Nave responded that I.V.’s mother “knows


                                             4
No. 36488-7-III
State v. Nave


[that I.V.] knew of the allegations [yet she] was somewhat equivocal [about] the timing,

but fully admitted that it could have been as earl[y] as a month before [I.V.] made her . . .

disclosures.” RP at 21 (emphasis added). Mr. Nave argued the evidence was important

to explain to the jury why I.V. would disclose contrived accusations in May 2017. The

State responded that Mr. Nave had no basis to say the cousin’s allegations were similar

and that Mr. Nave had not made a sufficient offer of proof. The trial court determined

that Mr. Nave’s offer of proof was too nebulous. The court added that it would

reconsider its ruling if Mr. Nave could establish the necessary link between I.V.’s and her

cousin’s allegations outside the presence of the jury before cross-examining I.V.

       Mr. Nave filed a motion to exclude evidence he went to New York after being

confronted by Ms. Valentine. He also sought to exclude evidence he attempted to commit

suicide. The trial court granted the motion in part, excluding evidence of his suicide

attempt, but reserving its ruling on evidence of flight.

       Trial testimony of Mr. Nave

       The State presented its evidence to the jury. Mr. Nave elected to testify in his own

defense. He denied ever touching I.V. inappropriately. He also testified that after being

released on bond in Idaho, he returned to Washington as quickly as he could and

presented himself to the court.


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No. 36488-7-III
State v. Nave


        During cross-examination, the State began asking questions that Mr. Nave

objected to as beyond the scope of Mr. Nave’s direct testimony. The trial court excused

the jury and heard arguments from both sides.

        The State argued it was allowed to broadly question Mr. Nave based on his general

denial that he had ever sexually abused I.V. The trial court agreed. Mr. Nave added that

if the State questioned him about traveling to New York, he would object. The State

argued it was entitled to question Mr. Nave about traveling to New York to counter his

testimony that he quickly presented himself to the court. The trial court agreed.

        The jury returned, and the State inquired into these areas. Mr. Nave confirmed he

went to his mother’s house after he was told to leave his house. He also confirmed he had

two young biological daughters who continued to live in the house, was a father figure to

I.V., yet quit going to work, placed his car for sale, and the next day traveled to New

York.

        Verdict and sentencing

        The jury found Mr. Nave guilty of all three counts and answered yes to the special

verdicts for the pattern of abuse aggravator charged on each count. The court sentenced

Mr. Nave to 194 months to life confinement. The court imposed $800 in legal financial

obligations, including $200 for the criminal filing fee.


                                              6
No. 36488-7-III
State v. Nave


       Mr. Nave timely appealed.

                                         ANALYSIS

A.     SUFFICIENCY OF THE EVIDENCE

       Mr. Nave contends there was insufficient evidence to sustain his convictions. He

argues the statements made by I.V. were inconsistent, and she could not identify him as

her attacker. He further argues that his statement/confession to her while driving was not

sufficient to convict him under principles of corpus delicti. We disagree.

       Evidence is sufficient to support a guilty verdict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find the elements of

the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829

P.2d 1068 (1992). When a defendant challenges the sufficiency of the evidence, he or she

admits the truth of all of the State’s evidence. State v. Drum, 168 Wn.2d 23, 35, 225 P.3d

237 (2010).

       Mr. Nave first argues I.V.’s statements were inconsistent and that she could not

have identified him as her abuser. He emphasizes that I.V. testified she never saw her

abuser and the abuser never spoke to her.

       Identity of the defendant is one of the elements all crimes share that must be

proved beyond a reasonable doubt. State v. Thomson, 70 Wn. App. 200, 211, 852 P.2d


                                               7
No. 36488-7-III
State v. Nave


1104 (1993), aff’d, 123 Wn.2d 877, 872 P.2d 1097 (1994). Where testimony of

identification is unclear or inconsistent, the uncertainty only goes to the testimony’s

weight, not its admissibility. State v. Vaughn, 101 Wn.2d 604, 610, 682 P.2d 878 (1984).

Issues of witness credibility are matters exclusively reserved for the finder of fact and this

court will not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d

970 (2004).

       Here, I.V. testified she always faced the wall when her abuser was touching her

and her abuser never spoke to her. However, the jury had to weigh that fact against other

facts supporting I.V.’s ability to identify Mr. Nave as her abuser. First, Mr. Nave had

touched I.V. inappropriately while she slept before. Second, the touching was sexual and

ongoing multiple times per week for several weeks. Mr. Nave was the only male in the

house, and he had unfettered access to I.V.’s basement bedroom. Not even Mr. Nave

argued that I.V.’s abuser was one of her younger sisters or her mother, all of whom slept

upstairs. Third, and most important, Mr. Nave admitted he had abused her on one

occasion when he gave her various choices of whether to report the abuse or not. Based

on these facts, the jury was given the opportunity to weigh I.V.’s credibility and decided

her identification of Mr. Nave and her accusations against him were credible. We will

not disturb the jury’s credibility findings.


                                               8
No. 36488-7-III
State v. Nave


       Mr. Nave also argues that his admission to I.V. is insufficient to convict him under

the principles of corpus delicti. The State argues that Mr. Nave did not properly assign

error to this issue. We use our discretion to review the issue because it is simpler to

refute Mr. Nave’s argument than to explain whether the argument is reviewable under

RAP 2.5(a).

       Corpus delicti principles protect a defendant from being convicted through false

confessions by requiring the State to show evidence of the “body of the crime.” State v.

Aten, 130 Wn.2d 640, 655-57, 927 P.2d 210 (1996). Corpus delicti involves two

elements: (1) an injury or loss (2) caused by someone’s criminal act. State v. Cardenas-

Flores, 189 Wn.2d 243, 263, 401 P.3d 19 (2017).

       Here, I.V. testified she was sexually assaulted over a period of several weeks by a

person entering her room at night while she slept. This was sufficient evidence of injury

caused by someone’s criminal act.2

       We conclude the State presented sufficient evidence for a reasonable trier of fact

to find beyond a reasonable doubt that Mr. Nave was the person who sexually abused I.V.

in the spring of 2017.


       2
        We note that “identity” is not an element of corpus delicti. See Cardenas-Flores,
189 Wn.2d at 264 n.9. Nevertheless, as mentioned previously, there was substantial
evidence that Mr. Nave was the person who repeatedly abused I.V. in the spring of 2017.

                                              9
No. 36488-7-III
State v. Nave


B.     EVIDENCE OF MR. NAVE’S FLIGHT

       Mr. Nave next contends the trial court erred by allowing the State to present

evidence he traveled to New York following Ms. Valentine confronting him about I.V.’s

allegations. He argues evidence of flight was minimally relevant and the prejudice

outweighed whatever relevance there was. We disagree.

       When reviewing a trial court’s evidentiary ruling, this court reviews for abuse of

discretion. Peralta v. State, 187 Wn.2d 888, 894, 389 P.3d 596 (2017). Abuse of

discretion is only found where the trial court’s decision is “‘manifestly unreasonable, or

exercised on untenable grounds, or for untenable reasons.’” Ugolini v. Ugolini, 11 Wn.

App. 2d 443, 446, 453 P.3d 1027 (2019) (internal quotation marks omitted) (quoting State

v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009)).

       Under the rules of evidence, 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.” ER 401. Evidence of a

defendant’s flight is generally admissible as circumstantial evidence in determining guilt.

State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965). The principle behind this is

that a defendant’s flight is an instinctive or impulsive reaction to a consciousness of guilt

or is a deliberate action made in order to avoid prosecution. Id. Nevertheless, the


                                             10
No. 36488-7-III
State v. Nave


relationship between flight and the inference of guilt “must be substantial and sufficient

to create a reasonable and substantive inference that the defendant’s departure from the

scene of difficulty was an instinctive or impulsive reaction to a consciousness of guilt or

was a deliberate effort to evade arrest and prosecution.” Id. at 112-13.

       Mr. Nave first argues the evidence he traveled to New York is minimally probative

because it does not show an impulsive or instinctive reaction to a consciousness of guilt.

He argues he did not immediately flee from the scene as is the case for most defendants in

flight, but instead flew to New York the following day.

       We have found evidence of flight to be admissible even when the defendant’s

flight did not occur until one week after the commission of the crime. State v. Bryant, 73

Wn.2d 168, 172, 437 P.2d 398 (1968). Here, Mr. Nave knew that I.V. told her mother he

had raped her and knew she might contact law enforcement. Mr. Nave went to his

mother’s house, quit his job, sold his car, and the next day traveled to New York.

       Mr. Nave argues he did these things because he was told to leave the house. But a

trier of fact could reasonably disagree and find that Mr. Nave took these extreme steps

because he knew that I.V.’s accusations were true and he sought to avoid arrest and

prosecution.




                                             11
No. 36488-7-III
State v. Nave


       Mr. Nave next argues the prejudicial effect of evidence of flight substantially

outweighed its probative value. But ER 403 does not preclude prejudicial evidence, not

even unduly prejudicial evidence. Instead, ER 403 precludes “unfair[ly]” prejudicial

evidence. Mr. Nave does not explain why evidence of flight was unfairly prejudicial. To

the extent his unfair prejudice argument is tied to his assertion he traveled to New York

because he was told to leave his house, we are unpersuaded. Mr. Nave left his house as

instructed and went to his mother’s house. He never explained why he took the additional

steps of quitting his job, selling his car, and traveling across the country. Here, there was

a reasonable and substantial inference that Mr. Nave did these things as an impulsive

reaction to evade arrest and prosecution.

       We conclude the trial court did not abuse its discretion by allowing evidence of

Mr. Nave’s flight—quitting his job, selling his car, and traveling to New York.

C.     EVIDENCE OF MR. NAVE’S PRIOR ABUSE OF I.V.

       Mr. Nave contends the trial court abused its discretion by allowing the State to

present evidence he touched I.V. when she was 11 and 13 years old. He argues the prior

acts were not criminal and, therefore, not relevant. He also argues whatever minimal

probative value the evidence had was outweighed by the unfair prejudice the evidence

had on the jury. We disagree.


                                             12
No. 36488-7-III
State v. Nave


       Prior bad acts cannot be used to show propensity to commit a crime, but they can

be used for other reasons such as to establish motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. ER 404(b).

       The State charged Mr. Nave with a special aggravator that the attacks against I.V.

were part of a pattern of abuse against her and that she was under 18 years old. Evidence

of prior abuse would have a tendency to make proof of this aggravator more probable.

Additionally, identity was a key issue at trial and remains a key issue on appeal.

Although the trial court did not cite “identity” as a reason for admitting the prior

uncharged acts, we may rely on it to affirm.3 Evidence that Mr. Nave inappropriately

touched I.V. while she slept in the basement when she was 11 and 13 years old is relevant

to who touched I.V. numerous times for several weeks while she slept in the basement

when she was 14 years old.

       Mr. Nave first argues the prior actions were not overtly sexual and, therefore, are

not relevant to establish a pattern of abuse. In isolation, the first touching that occurred

high on I.V.’s thigh while she slept might be innocent. But two years later, Mr. Nave


       3
         “[W]e consider bases mentioned by the trial court as well as other proper bases
on which the trial court’s admission of evidence may be sustained.” State v. Powell, 126
Wn.2d 244, 259, 893 P.2d 615 (1995); see also Gilmore v. Jefferson County Pub. Transp.
Benefit Area, 190 Wn.2d 483, 498, 415 P.3d 212 (2018) (trial court’s evidentiary ruling
will not be disturbed on appeal if it is sustainable on alternative grounds).

                                              13
No. 36488-7-III
State v. Nave


touched I.V.’s vagina while she slept, albeit over her underwear. Taken together, a

reasonable trier of fact could find that both touchings were part of a pattern of abuse.

         Mr. Nave next argues that the probative value of the prior touchings were

minimally relevant and substantially outweighed by their unfair prejudice. But because

the State was required to prove identity, we cannot conclude the trial court abused its

discretion. This is especially true given the similarity of the events. The prior events and

the charged events occurred in the basement and the prior events and the charged events

occurred at night while I.V. was sleeping. The prior events were highly probative to

prove identity.

D.       EVIDENCE OF I.V.’S COUSIN MAKING A SEPARATE CLAIM

         Mr. Nave contends the trial court abused its discretion by excluding evidence that

I.V.’s cousin reported she was sexually abused at about the same time I.V. reported that

she had been sexually abused. He argues the evidence was highly probative because it

explained why I.V. contrived her allegations when she did. The State responds that the

trial court did not preclude the evidence. Rather, it required a clearer offer of proof. We

agree.

         Prior to trial, the State filed a motion to preclude evidence that I.V.’s cousin was

sexually abused. Mr. Nave responded that I.V.’s mother knew that I.V. had heard about


                                               14
No. 36488-7-III
State v. Nave


her cousin, but that her mother was uncertain when I.V. had heard about it. The trial

court decided that Mr. Nave’s description of the evidence was too nebulous. The court

excluded the evidence, subject to Mr. Nave establishing a nexus between I.V.’s and her

cousin’s allegations. The court told Mr. Nave he could raise the issue again prior to

cross-examining I.V.

       But Mr. Nave did not raise the issue again. He failed to make a specific offer of

proof of what I.V. knew and when she knew it.

       In State v. Burnam, 4 Wn. App. 2d 368, 421 P.3d 977, review denied, 192 Wn.2d

1003 (2018), we emphasized the importance of a specific offer of proof. We said an offer

of proof should (1) inform the trial court of the legal theory under which the offered

evidence is admissible, (2) inform the trial court of the specific nature of the offered

evidence so the court can judge its admissibility, and (3) create an adequate record for

appellate review. Id. at 377. An offer of proof must not be so vague as to require the trial

court to speculate about the nature of the evidence. Id.

       Here, the trial court tentatively excluded the evidence because Mr. Nave’s offer of

proof was nebulous. Mr. Nave did not explain how I.V.’s mother knew she had heard of

her cousin’s sexual abuse or when she had heard about it. The mother’s testimony might

be excluded on the basis of hearsay. Also, I.V. might testify that she did not know her


                                             15
No. 36488-7-III
State v. Nave


cousin had made a similar allegation or that she heard about the allegation after she had

told her mother that Mr. Nave raped her. Either way, the trial court justifiably required

Mr. Nave to raise the issue again once he could make a proper connection between I.V.’s

and her cousin’s allegations.

       Mr. Nave additionally argues the trial court’s ruling deprived him of his due

process right to present a defense. We disagree. The trial court allowed Mr. Nave to

develop the necessary connection between I.V.’s and her cousin’s allegations outside the

presence of the jury and suggested it could be done prior to I.V.’s cross-examination. Mr.

Nave did not do this.

       Because Mr. Nave’s offer of proof was not sufficiently specific, we conclude the

trial court did not abuse its discretion by excluding it until Mr. Nave could make a

sufficient offer of proof.

E.     SCOPE OF CROSS-EXAMINATION

       Mr. Nave contends the trial court abused its discretion by allowing the State to

cross-examine him beyond the scope of his direct testimony.

       Challenges to the scope of cross-examination are reviewed for manifest abuse of

discretion. State v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266 (2014). Abuse of

discretion is only found where the trial court’s decision is “‘manifestly unreasonable, or


                                            16
No. 36488-7-III
State v. Nave


exercised on untenable grounds, or for untenable reasons.’” Ugolini, 11 Wn. App. 2d at

446 (internal quotation marks omitted) (quoting McCormick, 166 Wn.2d at 706).

      ER 611(b) provides:

      Cross examination should be limited to the subject matter of the direct
      examination and matters affecting the credibility of the witness. The court
      may, in the exercise of discretion, permit inquiry into additional matters as
      if on direct examination.

      First, the second sentence of ER 611(b) refutes Mr. Nave’s argument that a trial

court abuses its discretion by allowing cross-examination beyond the scope of direct

testimony.

      Second, when a subject is opened on direct examination, the cross-examination

may explore the subject in its various stages. State v. Hayes, 73 Wn.2d 568, 571, 439

P.2d 978 (1968). This rule does not confine the cross-examination to only the questions

asked on direct, and the cross-examination may delve deeper into the subjects raised.

State v. Rushworth, No. 36077-6-III, slip op. at 8 (Wash. Feb. 20, 2020) (published in

part), http://www.courts.wa.gov/opinions/pdf/360776_pub.pdf.

      Mr. Nave argues the trial court erred by allowing the State to question him about

the uncharged touchings that occurred when I.V. was 11 and 13 years old. We disagree.

In State v. Solomon, 5 Wn. App. 412, 420, 487 P.2d 643 (1971), the defendant elected to

testify and briefly denied he committed the charged crimes. The State, over defense

                                            17
No. 36488-7-III
State v. Nave


objections, cross-examined him about where he was the night of the crime. Id. We

concluded that the trial court did not abuse its discretion by allowing the cross-

examination because it explored the various phases of the defendant’s general denial. Id.

at 420-21.

       Similarly, Mr. Nave elected to testify, and he denied he had ever touched I.V. in an

inappropriate manner. This claim permitted the State to question him about the previous

uncharged touchings about which I.V. had already testified. As mentioned previously,

those touchings were not excludable under ER 404(b) as evidence of prior bad acts

because those touchings were relevant to the charged aggravating factor and to whether

he was the person who came into I.V.’s room throughout the spring of 2017 and

repeatedly abused her.

       Mr. Nave next argues the trial court erred by allowing the State to question him

about his travel to New York. We disagree. Mr. Nave testified on direct that after he was

arrested in Idaho and posted bail, he returned to Washington as quickly as he could and

presented himself to the court. This testimony gave the jury the impression that Mr. Nave

was eager to defend against the charges. The State was permitted to challenge this

impression with evidence that Mr. Nave was not eager to defend against the charges. Ms.

Valentine had already testified that Mr. Nave telephoned her shortly after she told him to


                                             18
No. 36488-7-III
State v. Nave


leave the house and the telephone number of his incoming call showed he was calling

from New York. The State was entitled to question Mr. Nave about this and to argue this

showed that Mr. Nave was not eager to face the charges.

       We conclude the trial court did not abuse its discretion in allowing the State to

cross-examine Mr. Nave on these two subjects.4

F.     CRIMINAL FILING FEE

       Mr. Nave contends the trial court erred by imposing a $200 criminal filing

fee. He argues the trial court found that he was indigent for purposes of appeal, and

RCW 10.01.160(3) expressly prohibits trial courts from imposing discretionary legal

financial obligations on defendants who are indigent at the time of sentencing. He

correctly cites RCW 36.18.020(2)(h) to support his argument that the criminal filing fee is

a discretionary cost.

       We exercise our discretion and review this claim of error that was not preserved

below by an objection. We direct the trial court to strike the criminal filing fee.




       4
         Because we conclude that the trial court did not abuse its discretion in any of its
evidentiary rulings, we need not address Mr. Nave’s argument that cumulative error
requires reversal and a new trial.

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No. 36488-7-III
State v. Nave


          STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

       SAG I: SUFFICIENCY OF THE EVIDENCE

       Mr. Nave contends the elements of his case were not proved beyond a reasonable

doubt and that the evidence against him was speculative. In making this argument, he

challenges the sufficiency of the evidence with respect to I.V.’s identification of him as

her abuser. We have already analyzed and rejected this argument.

       SAG II, III: LACK OF GRAND JURY INDICTMENT

       Mr. Nave raises two separate arguments that contain the same core complaint—

that he was not indicted by a grand jury. These arguments are based on the mistaken

belief that a defendant has a guaranteed constitutional right to be indicted by a grand jury.

A defendant does not have such a right. See State v. Jefferson, 79 Wn.2d 345, 485 P.2d

77 (1971).

       In Washington, the State has four options for the procedure it uses to file a

criminal complaint. Id. at 347. It may (1) file the complaint with the superior court,

(2) seek a grand jury indictment, (3) initiate inquest proceedings, or (4) file a criminal

complaint before a magistrate for a preliminary hearing. Id. Any of these methods are

allowed under Washington law and the Washington Constitution. Id. Here, the State

filed the complaint with the superior court.


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No. 36488-7-III
State v. Nave


       Neither the Washington nor federal constitutions guarantee a defendant the right to

a grand jury indictment. Id. at 347-48. As noted in Jefferson, the ability for a prosecutor

to choose to file a criminal complaint is upheld by the United States Supreme Court. Id.

at 348 (citing Beck v. Washington, 369 U.S. 541, 545, 82 S. Ct. 955, 8 L. Ed. 2d 98

(1962)). For this reason, a defendant is not guaranteed the right to a grand jury

indictment as the Court in Beck noted. 369 U.S. at 545.

       SAG IV; SAG V: LACK OF PRELIMINARY FINDING OF PROBABLE CAUSE

       Mr. Nave again raises two arguments that contain the same core complaint. His

core complaint here is that he was denied a preliminary hearing where a neutral

magistrate could have determined there was insufficient probable cause for him to be

arrested and prosecuted.

       Mr. Nave is mistaken. The record shows that a hearing occurred in late May 2017,

in which the trial court reviewed an affidavit establishing probable cause and found

probable cause for Mr. Nave’s arrest and detention. Although the order does not

specifically identify the affidavit reviewed, we note the court record at the time included a

May 25, 2017 certified statement by Detective Brandon Armstrong that set forth detailed

and sufficient facts for Mr. Nave’s arrest and detention.




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No. 36488-7-III
State v. Nave


       SAG VI: BRADY5 VIOLATIONS

       Mr. Nave contends the State committed multiple Brady violations by suppressing

the evidence that I.V.’s cousin disclosed a sexual assault against her and by allowing I.V.

to perjure herself with inconsistent statements. Mr. Nave misconstrues what a Brady

violation is.

       A Brady violation requires proof of three elements: “[(1)] The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; [(2)] that evidence must have been suppressed by the State, either willfully

or inadvertently; and [(3)] prejudice must have ensued.” State v. Mullen, 171 Wn.2d 881,

895, 259 P.3d 158 (2011) (alterations in original) (quoting Strickler v. Greene, 527 U.S.

263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). When viewing the second

element, the key factor is that the State must be in possession of evidence that it does not

turn over to the defense and that evidence must have been unobtainable to the defense

through its own investigation. Id. at 895-96.

       Mr. Nave complains the State committed a Brady violation when it successfully

prevented him from inquiring about I.V.’s cousin’s allegation against a family member

and when a detective suggested to I.V. that Mr. Nave had oral contact with her. Neither


       5
           Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                             22
No. 36488-7-III
State v. Nave


of these complaints involve the State failing to turn over evidence to Mr. Nave. Mr. Nave

was aware of the evidence, sought to have the cousin’s allegation admitted, and asked

questions at trial about the detective’s purported improper suggestion.

        SAG VII: EVIDENCE OF MR. NAVE’S FLIGHT

        Mr. Nave repeats the arguments raised above about the trial court allowing

evidence of flight. Because we have addressed this issue above, we do not do so again

here.

        SAG VIII: EVIDENCE NAVE PREVIOUSLY TOUCHED I.V. INAPPROPRIATELY

        Mr. Nave repeats the arguments raised above about the trial court allowing

evidence of his prior touching of I.V. Because we have addressed this issue above, we do

not do so again here.

        SAG IX: I.V.’S COUSIN’S STATEMENTS

        Mr. Nave repeats the arguments raised above about the trial court excluding

evidence that I.V.’s cousin alleged a family member sexually abused her. Because we

have addressed this issue above, we do not do so again here.




                                            23
No. 36488-7-III
State v. Nave


      Affirmed in part and remanded.

      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.


                                         Lawrence-Berrey,   J.\
                                                                       j
WE CONCUR:




Korsmo, A.CJ.                            Siddoway, J.




                                            24
