                                                                          FILED 

                                                                        MARCH 6, 2014 

                                                                 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. 31289-5-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
STEPHEN JASPER HOSSZU,                         )        UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       KORSMO, C.J. -    This appeal challenges the trial court's application of the rape

shield statute, RCW 9A.44.020, to exclude proposed testimony concerning the victim's

relationship with her boyfriend. We agree with the trial court that the evidence was not

relevant and affirm Stephen Hosszu's convictions for first degree burglary and third

degree rape.

                                          FACTS

       Mr. Hosszu and his wife were neighbors of the victim, S.V., a school teacher.

Two different versions of the charged incident were presented to the jury. Mr. Hosszu

testified at trial that he went to S.V.'s house to deliver some pens and pencils for her

school children. He was invited into the house. Upon setting down the items, he pointed

out an unusual flat pen. S.V. commented that it looked like her boyfriend's penis. Mr.
No. 31289-5-II1
State v. Hosszu


Hosszu then put his hand on her scapula and asked, "is that what you missed." She

responded in a wanting way, "yes." He then put his hand down on her vagina without

penetrating her. He then pulled his hand away suddenly, feeling that the contact was not

right. He left the house.

       S.V. described the incident very differently. She was making jam in her kitchen

when Mr. Hosszu unexpectedly entered through her partially open garage. She was

wearing a swimsuit under her shirt and shorts on a hot July day. Mr. Hosszu set a can of

pencils down on the counter and came up behind her. He put his right hand on her

shoulder and put the left hand down her shorts and inserted a finger into her vagina. He

told her that "you're going to make me cream in my shorts." Shocked by the unexpected

action, S.V. backed away into her garage and then into the backyard. Mr. Hosszu

followed; his pants were unzipped and his penis was erect. He made various statements

to S.V., including a request to "come and lick me." He refused to leave when she asked

him to go, so she went into her front yard. He then left.

       PriorI to the date ofthe incident, Mr. and Mrs. Hosszu allegedly had been

involved in a sexually-oriented conversation with S.V.2 Aware that the defense wanted

to question S.V. and present testimony about the conversation, the prosecutor sought a


       1 The offer of proof at the pretrial hearing indicated it had been several days before
the incident, but the defense asserted at trial that it occurred the day before.
       2 The prosecutor indicated to the court that S.V. denied the conversation took
place.

                                             2

No. 31289-5-111
State v. Hosszu


hearing under the rape shield statute. The defense made an offer of proof to the judge at

a pretrial hearing, indicating that the defendant's wife-and the defendant ifhe chose to

testify-would describe the conversation with S.V. The court summarized the offer of

proof:

         •      Defendant and his wife visited their neighbor, SV (the alleged
                victim), a few days before the charged incident;
         •      SV invited them into her home;
         •      SV was wearing a bathrobe and commented several times that she
                was nude beneath the robe;
         •      SV complained that her jaw hurt because of having engaged in
                protracted oral sex with her boyfriend;
         •      SV commented regarding not being sexually fulfilled because of her
                boyfriend's dislike for ED3 medication;
         •      SV repeatedly opened and closed her bathrobe but did not expose
                her breasts or genitalia;
         •      SV hugged Defendant's wife, saying she enjoyed having someone
                hug her breasts.

Clerk's Papers at 25.

         After considering the offer of proof, the court ruled that the evidence was

irrelevant to the issue of consent. Although the evidence suggested that the victim was

sexually open, it did not suggest that she was seeking sexual attention from the defendant

or anyone else. Determining that the evidence was irrelevant, the court did not further

address the requirements of the rape shield statute.




         3 Erectile Dysfunction

                                               3

No. 3 1289-5-III
State v. Hosszu


       The defense corrected the date of the alleged conversation for the trial judge, but

did not ask him to reconsider the pretrial ruling. The defendant testified to the incident as

previously described, and his wife corroborated his claim that S.V. opened the front door

to let him into her house. Defense counsel argued the case to the jury on the theory that

defendant frequently visited S.V., he was at her home with permission, and that his

version of the events was better corroborated and more credible than her story.

       The jury, however, disagreed and found the defendant guilty as charged. The trial

court imposed a standard range sentence. Mr. Hosszu then appealed to this court.

                                        ANALYSIS

       Mr. Hosszu argues that the trial court erroneously excluded his proffered evidence

and thereby also violated his right to present a defense. We disagree with both

contentions and will address them as one.

       The principles governing our review of these arguments are well settled. ER 401

provides in part that 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." Subject to limitations imposed by other rules or constitutional principles,

relevant evidence is admissible. ER 402. ER 403 authorizes trial courts to exclude

otherwise relevant evidence if the probative value of the evidence is significantly

outweighed by the danger of unfair prejudice or other interference with the factfinding

function of the jury. Carson v. Fine, 123 Wn.2d 206,222-23, 867 P.2d 610 (1994). A

                                             4

No. 31289-5-III
State v. Hosszu


trial judge's decision to admit or exclude evidence under these provisions is reviewed for

abuse of discretion. Diaz v. State, 175 Wn.2d 457,462,285 P.3d 873 (2012). Discretion

is abused when it is exercised on untenable grounds or for untenable reasons. State ex

rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

       RCW 9A.44.020(2), our rape shield statute, provides:

       Evidence 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, but
       when the perpetrator and the victim have engaged in sexual intercourse
       with each other in the past, and when the past behavior is material to the
       issue of consent, evidence concerning the past behavior between the
       perpetrator and the victim may be admissible on the issue of consent to the
       offense.

Subsection (3) permits evidence of past sexual behavior to prove consent, but not to

attack the credibility of the victim, on several conditions: A written motion is filed

(accompanied by an affidavit) explaining the relevance of the information, the court

holds a hearing and concludes the offer of proof is sufficient, and the court finds the

evidence relevant, not unduly prejudicial, and exclusion would deny substantial justice to

the accused. See RCW 9A.44.020(3).

       Finally, in some circumstances the constitution requires that state evidentiary rules

give way to the constitutional right to present a defense. E.g., State v. Jones, 168 Wn.2d

713, 719-21,230 P.3d 576 (2010). There is, however, no constitutional right to present


                                              5

No. 31289-5-III
State v. Hosszu


irrelevant evidence. ld. at 720. If a court excludes relevant evidence to the point where it

effectively prevents presentation of the defense, the constitutional right is violated. ld. at

721.

       The rape shield statute was authoritatively construed in State v. Hudlow, 99 Wn.2d

1, 659 P .2d 514 (1983). The court noted that the purpose of the statute was to overturn

the fonner common law rule that evidence of promiscuity or nonchastity was evidence of

a woman's lack of credibility, but not so for a man. ld. at 8. Another fallacy of the

common law rule was the belief that a woman who had consented to sexual activity with

another man in the past was more likely to currently consent to sexual activity with the

defendant. ld. at 10. The court rejected the notion that past consent to sexual activity

meant one was likely to have consented in the current case; such evidence did "not even

meet the bare relevancy test of ER 401." ld. Instead, the court suggested that past

patterns of behavior might be relevant if similar to the behavior at issue in the present

case. ld. at 10-12. Even in cases where past sexual behavior had some relevance to the

case at bar, the trial judge has discretion to exclude the evidence if it presented a danger

of prejudicing the truth finding process. Id. at 12-14. However, the defendant's

constitutional right to present evidence could only be overcome by the showing of a

"compelling state interest" in excluding relevant evidence. Id. at 14-16. The court

concluded that the compelling interest test was satisfied with respect to evidence that had

minimal relevance, but would not be met for evidence that was highly probative. Id. at

                                              6

No. 31289-5-II1
State v. Hosszu


16. The court concluded that the trial court had not abused its discretion in excluding

evidence that the victims had a reputation for promiscuity. ld. at 17-19.

       Considered against this background, Mr. Hosszu's arguments fail. The pretrial

judge correctly concluded that the evidence of the prior conversation did not make more

likely the possibility that the victim had consented to being sexually violated by the

defendant. Nothing in the offer of proof established that S.V. desired sexual contact with

another man, let alone with Mr. Hosszu. The only potentially relevant inference to be

drawn from this evidence was that the victim was sexually frustrated and, therefore, the

defendant thought she would consent to his touch. Washington, however, has long

rejected that reasoning under our rape shield statute. ld. at 10. As noted there, this type

of inference is not relevant evidence under ER 401. ld.

      The trial court judge properly excluded the evidence as irrelevant. For the same

reason, there was no violation of the right to present a defense. Jones, 168 Wn.2d at 720.

The constitution simply does not require that any evidence the defendant desires to offer

be treated as relevant and therefore admissible. Having failed to establish the relevance

of the proffered evidence, Mr. Hosszu's constitutional right to present a defense was not

impinged. ld. For this reason, too, his argument fails.4


       4 We do not address whether any error in exclusion of this evidence effectively
prevented Mr. Hosszu from presenting his consent defense. He was able to testify and
argue that S.V. wanted him to touch her; whether the conversation evidence was
necessary to provide context for his testimony is not a question we need reach.

                                             7

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                                                                                       ~




                                                                                       I
No. 31289-5-III
State v. Hosszu


      The convictions are affirmed.                                                    I
      A majority of the panel has determined this opinion will not be printed in the   I
                                                                                       I
Washington Appellate Reports, but it will be filed for public record pursuant to RCW   I
2.06.040.
                                                                                        j




                                                       Korsmo, C.J.
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WE CONCUR:
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