State v. Vigil

STATE OF WASHINGTON, Respondent, v. DAVID ROBERT VIGIL, Appellant.

No. 37991-4-III

Court of Appeals of Washington, Division 3

August 26, 2021

UNPUBLISHED OPINION

FEARING, J.

May a man, accused of disrobing and photographing the vagina of a woman while she slept, introduce evidence of the woman previously repositioning the man's underwear and photographing the man's penis, among other misbehavior while he slept in order for the man to bolster his defenses of consent and lack of sexual gratification? We hold the introduction of the evidence to be irrelevant for the defense of consent under the definition of the term for sex crimes. We hold the evidence to be relevant to the charged crimes' element of sexual gratification and further hold that the evidence does not contravene the rape shield statute. We reverse David Vigil's convictions for indecent liberties and voyeurism and remand for a new trial.

FACTS

This prosecution arises from the photographing of J.B.'s private areas by defendant David Vigil while J.B. slept, was passed out from alcohol, or both. J.B. and Vigil were army friends. The State charged Vigil with indecent liberties and voyeurism. Vigil agreed he photographed J.B., but claimed she consented to his conduct because of her past behavior and also argued that his acts were not motivated by sexual gratification given the context in which his behavior occurred.

In 2012, David Vigil met J.B., the complaining witness, while stationed at Alaska's Fort Wainwright Army Base, home of the Arctic Warriors. At the time, J.B. supervised Vigil. J.B and Vigil worked on friendly terms, but they did not maintain a close social relationship outside of work. In 2013, the army transferred J.B. to Joint Base Lewis McCord. In 2015 Vigil also transferred to Joint Base Lewis McCord.

On David Vigil's transfer from Alaska to Washington State Amber Roberts, a mutual friend of J.B. and David Vigil at Fort Wainwright, suggested that Vigil ask J.B. if he could stay at her residence in Tacoma and park his vehicle at her residence during a leave. Vigil followed this advice and after his temporary stay at J.B.'s dwelling, Vigil developed a close relationship with J.B. and J.B.'s husband, Eric Bailey. This warm relationship continued for the next three years. Vigil had a key to the couple's home. The three engaged together in recreational activities, including fishing, boating, shooting, barbecuing, hiking, and drinking. At least once a month, when on evenings that the three friends imbibed alcohol, Vigil spent the night at the Bailey residence to avoid driving. Vigil also house sat and cared for J.B.'s and Bailey's dogs when the couple took trips.

David Vigil and J.B. socialized independently of Eric Bailey and other friends. On these occasions, the two cooked, drank, and went to restaurants for dinner. Both deny the fostering of any romantic attachment.

On February 3, 2018, David Vigil, J.B., and Eric Bailey, with two other couples, celebrated Bailey's and J.B.'s birthdays at the El Guacho restaurant, an award winning Brazilian steakhouse. Before leaving the Bailey residence for the Tacoma restaurant, Vigil and Eric Bailey each drank a glass of whiskey. J.B. does not recall if she drank alcohol then. At El Gaucho, the seven friends ate dinner and drank alcohol, including cocktails, whiskey, and two bottles of wine. After two and a half hours at El Gaucho, everyone went to the Tacoma Cabana Club. The group remained for an hour at the club and continued to drink alcohol. J.B. and Vigil became intoxicated. At 11:00 p.m., the party ended, after which Vigil, J.B., and Bailey returned to the Bailey residence.

Once at the Bailey house, Eric Bailey, J.B., and David Vigil continued to drink. The trio watched television in the living room for an hour. All three sat on a couch, with J.B. on the left end, Bailey in the middle, and Vigil on the right end. J.B. fell asleep on the couch. When Bailey grew weary, he unsuccessfully attempted to awaken J.B., and then he left her for the couple's bedroom upstairs. Vigil walked to the guest room and laid on the bed, but could not sleep because of the sound of the television. He returned to the living room to lower the sound. J.B. remained on the couch.

In the wee hours of February 4, 2018, after David Vigil returned to the living room, Vigil proceeded to photograph J.B. with his cell phone as she lay unconscious. J.B. wore leggings. Vigil first photographed J.B.'s clothed buttocks, but, because of the shear leggings, the picture showed J.B.'s underwear. CP 193. Vigil next partially pulled down J.B.'s leggings and photographed tattooed lips on one of J.B.'s hips.

David Vigil progressively disrobed J.B. as he snapped additional photographs with his phone. Vigil manipulated J.B.'s body in order to take photographs at various angles and of different parts of J.B.'s body. J.B. is of large stature. Vigil encountered difficulty manipulating the body. Vigil eventually drew aside J.B.'s underwear to photograph J.B.'s privileged area. He snapped a series of close-up pictures of the anus and vagina. One of the photographs of the anus displayed a finger, although the finger does not touch J.B.'s body. The photographing lasted twelve minutes.

During trial, David Vigil testified that he took the pictures of J.B. as a joke. He averred that he, J.B., and their Alaska friend Amber Roberts maintained a friendship, in which they would share stories and, sometimes, two of them would share comments about the third person. Vigil testified that, on the night of February 4, 2018, he saw J.B.'s leggings stretched to the point that one could see through them. He thought the leggings tacky and wished to send a picture of the leggings to Amber Roberts in jest.

David Vigil testified that he manipulated J.B.'s leggings in order to obtain a better view of the tattoo on J.B.'s right buttock. Vigil averred that the tattoo depicted Amber Roberts' lips. Roberts had long before kissed J.B.'s buttock with lipstick, and J.B. had the imprint tattooed. Vigil planned to joke with Roberts that her lips had grown larger as a result of J.B. gaining weight. He considered his plan a joke. Vigil acknowledged that he took photographs of more intimate areas of J.B.'s body, including her vagina and anus. He asserted that he also planned to send these additional humorous images to Roberts. When asked about the humor found in the images, Vigil responded that the hair observed in these images was comical.

David Vigil denied being aroused as a result of taking the pictures of J.B. or when viewing the pictures. He denied finding J.B. physically attractive. According to Vigil, J.B. was overweight.

In the early morning hours of February 4, J.B. awoke to the sensation of someone's fingers touching her vagina. She heard the clacking of a camera. She opened her eyes and saw David Vigil standing over her with his cellphone in hand. Her pants were down to her knees. At trial, J.B. testified that she did not see Vigil touching her, but his hands were in her crotch area.

When J.B. awoke, David Vigil repeatedly told her to hush and return to sleep. J.B. pulled up her pants and asked Vigil what he was doing. She also told him to hand her his phone as she believed he had snapped pictures. In response to J.B.'s questioning about his conduct, Vigil repetitively denied any bad behavior. He also repeatedly exclaimed: "I'm sorry, I'm sorry, I'm sorry." Report of Proceedings (RP) at 209. J.B. heard a noise that sounded like the deletion of photographs from a phone. Vigil showed her the phone to prove he had taken no pictures.

An emotional and panicked J.B. yelled for Eric Bailey. Bailey, asleep in the upstairs bedroom, ran downstairs in response to J.B.'s screams. Bailey found his wife walking into the kitchen while screaming and pointing in fear. J.B. repeatedly told her husband that David Vigil had touched her and had taken photographs. A confused Bailey asked J.B. to proceed upstairs so that he could speak with Vigil and assess the situation. Once upstairs, J.B. called 911 with Bailey's phone and reported that she had been raped. She asserted that Vigil had been on top of her in a sexual manner. J.B. volunteered to dispatch that she was intoxicated.

David Vigil apologized to Eric Bailey, and, on Bailey's request, Vigil unlocked his phone and showed Bailey his cell phone photo gallery. A pop-up icon revealed that pictures were deleted. Bailey did not see the photos Vigil took. Bailey told Vigil to leave, and they would resolve the crisis later. Once Vigil left, J.B. returned downstairs, and Bailey and J.B. discussed Vigil's behavior.

Tacoma Police Department officers responded to J.B.'s residence early that morning of February 4. J.B. recalls little of what she told officers. The officers advised J.B. to complete a rape kit at a hospital.

At Tacoma General Hospital, the examining nurse noticed no injury to J.B. The nurse procured multiple swabs from J.B.'s mouth, perianal area, internal anal area, perineal, vaginal region, and from under fingernails on each hand. The swabs lacked DNA other than J.B.'s DNA. In other words, none of David Vigil's DNA was found in J.B.'s private areas. At the hospital, J.B. reported that Vigil inserted his fingers into her vagina.

After interviewing J.B., Tacoma Police Officer Joshua Avalos contacted military police at Joint Base Lewis McCord and asked the police to detain David Vigil. Officer Avalos and his supervising officer traveled to the joint base and interviewed Vigil. Vigil disclosed that he and J.B. fell asleep on the same couch. He attempted to wake J.B., and she awoke screaming. She asked to look at his phone. After interviewing Vigil, Officer Avalos confiscated Vigil's phone.

In conformance with the...