State v. Valdiviez

STATE OF WASHINGTON, Respondent,

v.WILLIAM N. VALDIVIEZ, Appellant.

NO. 68363-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: June 11, 2012

UNPUBLISHED OPINION

Lau, J. — William Valdiviez appeals his third degree child rape and furnishing liquor to minors convictions. He argues that (1) the trial court denied his constitutional right to cross-examine the victim about an alleged age-related representation she posted on the internet and (2) insufficient evidence to support the alternative means that he permitted the victim to consume liquor on premises under his control. Because the trial court properly precluded the age-related internet evidence and sufficient evidence supports the control over the premises alternative means of furnishing liquor to a minor, we affirm the convictions.

FACTS

The State charged William Valdiviez by amended information with third degree child rape with a firearm enhancement and furnishing liquor to a minor. During a three-day jury trial, witnesses testified to the following facts.

William Valdiviez and RM are cousins. RM's birthday is December 25, 1993. RM lives in Texas with her father, Jimmy, and her two sisters. RM's mother is deceased. RM turned 15 years old on December 25, 2008. At trial in March 2010, RM was 16 years old.

RM's aunt, Vivian Smith, also lives in Texas with her husband, Bobby Smith. RM's maternal grandparents, William and Bobbie Hill, live in Texas. Valdiviez, Vivian Smith's son, was 25 years old in December 2008. He was a member of the United States Army and stationed for a time at Fort Lewis, Washington.

In December 2008, the Smith, Morgan, and Hill families spent the Christmas holiday together on the Long Beach Peninsula in Washington state. William Hill paid for the three hotel rooms. RM's sisters stayed in one room with their grandparents. RM stayed in a room with Valdiviez and his girl friend Donna. RM did not know she would be staying in Valdiviez's room until she arrived at the hotel. At that time, "William [Valdiviez] told me that I was staying in the room with him and Donna." RP (Mar. 30, 2010) at 51. The Smiths—Vivian, Bobby, and their daughter—stayed in the third room.

After all the family members went out to dinner at a restaurant on Christmas Eve, RM returned to the room where she was staying. She referred to it as "William [Valdiviez]'s hotel room." RP (Mar. 30, 2010) at 53-56. While there, she started drinking alcohol at midnight and continued until about 1:30 a.m. Valdiviez was present and also drinking. RM drank about six cups half full of Crown Royal alcohol. Valdiviez testified that RM drank alcohol in the hotel room but denied providing it to her.

At around 1:30 a.m., Valdiviez and Donna argued. RM and Valdiviez drove down to the beach. When they got to the beach Valdiviez and RM engaged in vaginal and oral intercourse. RM testified that Valdiviez carried a gun with him in his jacket and he brought the gun with him to the beach. She said when they arrived at the beach, he took his gun out of his jacket pocket and set it on the center console. She testified she asked him to stop during vaginal intercourse because he was hurting her, and after saying "stop" louder and pushing him, he stopped. He then asked her to perform oral sex. RM testified that she agreed to engage in oral sex because his hand was resting on the center console of the truck near his gun and that she was scared and thought Valdiviez was going to use it. After they engaged in oral sex, they returned to the hotel room.

Valdiviez testified at trial that he had consensual sex with RM. He admitted that he owned a gun and brought it with him to the Long Beach Peninsula, but he denied taking the gun to the beach. He said he left his jacket with the gun in the pocket on a chair in the hotel room when he went to the beach with RM.

At trial, Valdiviez relied on RCW 9A.44.030's affirmative defense to claim he reasonably believed RM's statements to him that she had just turned 16. Valdiviez testified that RM said at the Christmas Eve dinner, "'Hey, you know tonight's going to be my birthday and I'd like to drive.'" RP (Mar. 31, 2010) at 75. He said she told him that she had a driver's permit and that she had some experience driving. At midnight, RM took a drink and said, "'Hey, it's my 16th birthday.'" RP (Mar. 31, 2010) at 73. Valdiviez testified that before the trip to the Long Beach Peninsula, his mother, VivianSmith, told him that RM was turning 16 that Christmas and that he should get her a birthday present and spend a little more on it than he might otherwise because 16 was a special birthday. Valdiviez said that when he had sex with RM on Christmas morning, "I believed it was her birthday and that she had just turned 16." RP (Mar. 31, 2010) at 77. RM denied telling Valdiviez or anyone else that she was turning 16. RM also testified that in Valdiviez's presence, her grandparents told her that they went to the store but found no candles, and they "apologized for not having 15 candles on [her] cake." RP (Mar. 31, 2010) at 105.

Valdiviez's mother, Vivian Smith, testified that RM told her that she was turning 16 and that approximately three weeks before the trip to Washington state, she told her son Valdiviez, "'We need to get [RM] something really nice for her birthday. She's turning 16.'" RP (Mar. 31, 2010) at 44-45. She also testified that at dinner on Christmas Eve, RM said, "'I'm turning 16 at midnight.'" RP (Mar. 31, 2010) at 46. Smith testified that she believed RM when she said this.

RM's father, Jimmy, testified for the State on rebuttal. He testified that Vivian Smith attended RM's birthday celebrations on "many, many occasions." RP (Mar. 31, 2010) at 96. Morgan was present at many birthday celebrations for RM when Valdiviez was also present. Valdiviez attended either RM's 11th or 12th birthday celebration. Valdiviez also attended a family trip to Ireland when RM was just six months old. Valdiviez and Jimmy's older daughter (RM's sister) were very close.

After Miranda¹ warnings, Deputy Paul Jacobson interviewed Valdiviez. Valdivieztold Jacobson he had brought Bud Light beer and Crown Royal liquor to the hotel room. Valdiviez also said that he and RM "consumed a considerable amount." RP (Mar. 30, 2010) at 165. Valdiviez told Jacobson, "[T]hey were celebrating [RM's] 15th birthday." RP (Mar. 30, 2010) at 165. Valdiviez said that after driving around on the beach with RM, "they parked and that that was it." RP (Mar. 30, 2010) at 168. Jacobson asked if Valdiviez was sure no kissing or hugging with RM occurred, after which Valdiviez admitted to hugging and kissing. Valdiviez "said that during the kissing and hugging he stopped because it just didn't feel right to him." RP (Mar. 30, 2010) at 168. After confronting Valdiviez with RM's version of events, Valdiviez initially admitted only kissing and hugging. Valdiviez later admitted to oral intercourse in the front seat. Valdiviez also "change[d] his story" and admitted to vaginal intercourse. RP (Mar. 30, 2010) at 172. Valdiviez said, "'[I] knew it was wrong because she was only 15-years old'" but never mentioned that RM represented herself as 16. RP (Mar. 30, 2010) at 173-74.

The jury convicted Valdiviez of third degree child rape and furnishing liquor to minors but found no firearm enhancement. Valdiviez appeals and the State cross appeals.

ANALYSIS

William Valdiviez argues the court violated his Sixth Amendment right to cross-examination when it prevented him from questioning RM about information appearing in a two-page printout from the website "YouTube" that depicts a web page.² In additionto other information, the web page shows the names, "Becca" and "Caley," "Bella2234's channel" and "age: 19." Valdiviez argues he was entitled to challenge RM's credibility with this evidence because it demonstrates she previously lied publicly about her true age. On appeal, Valdiviez also argues the evidence's admissibility under ER 613 as a prior inconsistent statement and ER 608 as credibility evidence based on character or conduct. The State responds that the trial court properly excluded the evidence on multiple grounds, including lack of relevance.

RCW 9A.44.030

Under ER 611(b), the trial court has discretion to determine the scope of cross-examination.³ An appellate court will not reverse a trial court's rulings on the scope of cross-examination absent a manifest abuse of discretion. State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984); State v. Dickenson, 48 Wn. App. 457, 466, 740 P.2d 312 (1987). A trial court abuses its discretion when its decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. State v. Bible, 77 Wn. App. 470, 471, 892 P.2d 116 (1995).

The proponent of the evidence bears the burden of establishing relevance and materiality. State v. Hilton, 164 Wn. App. 81, 99, 261 P.3d 683 (2011). Evidence isrelevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. ER 401. "Evidence which is not relevant is not admissible." ER 402.

Based on our review of the record below, we question whether Valdiviez preserved this issue premised on ER 613's impeachment by prior inconsistent statement. Several extended discussions took place pretrial and during trial between the State, defense counsel, and the court over the relevance of this evidence. The record undisputedly shows that defense counsel responded to the court's relevancy questions by explaining that the evidence was linked to his RCW 9A.44.030(2) affirmative defense. That statute provides a defense to a third degree child rape charge where the defendant proves "by a preponderance of the evidence that at the time of the offense the defendant reasonably believed the alleged victim to be [16 years old] based upon declarations as to age by the alleged victim." The State argued the lack of relevancy...