S.c., Respondent V J.c., Appellant (Majority)

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FILED UOURJ OF APPEALS 2014 MAR 19 AN 8: 48 ST, FrD Y , D IN THE COURT OF APPEALS OF THE STATE OF WASHINGrl Vl\ DIVISION II No. 44477 -1 - II UNPUBLISHED OPINION J. C. appeals from a Thurston County Superior Court revision of a JOHANSON, J. commissioner' s denial of S. C.' s" Sexual Assault Protection Order" ( SAPO). J. C. argues that ( 1) the- superior -court erred- when it excluded all -evidence of the conversation between J. C._and_S..C.. ____ _ __ about S. C.' s sexual activity with another person, and ( 2) the superior court erred in failing to defer to the commissioner' s credibility findings. Because the superior court properly excluded evidence of S. C.' s sexual history and properly reviewed the commissioner' s decision de novo without deferring to the commissioner' s credibility findings, we affirm. FACTS I. BACKGROUND S. C., a 14- year old freshman, and J. C., a 17- year old junior, were both students at Tumwater High School; they knew each other through mutual friends and rode the bus together. On November 8, 2012, S. C. and J. C. met in Scott Lake park to " hang out." Clerk' s Papers ( CP) No. 44477 -1 - II at S. C. and J. C. walked around the park talking about various things, including S. C.' s sexual 6. A.F., encounters with a mutual friend and S. C.' former boyfriend. s The pair ended up at J. C.' s grandfather' s house, close to the park. While in the house, S. C. and J. C. continued to talk about S. C.' s relationship and sexual with encounters CP his] penis CP penis. unzipped around friend was a and " someone [ she] could trust." As S. C. started to leave, J. C. asked S. C. if she would look at his penis and tell him " if 47. at A.F. because S. C. felt that J. C. at his her bigger than [ A.F.' was 61. According to S. pants and showed waist, forcing her s] because [ A.F.] had made jokes" about the size of J. C.' s C., she refused to look at J. C.' s penis when he asked her, but he her his right penis anyway. When she tried to leave, J. C. grabbed her hand down to touch his penis. According to J. C., S. C. agreed to look at his penis and said that his penis was larger; although J. C. asked S. C. if she " wanted to do anything" with him, there was no further physical contact between them. CP at 62. J. C. then walked S. C. home. II. PROCEDURE S. C.- petitioned for -a SAPO J. against - C. on November 1-5;- 2012 - At- the -evr entiary -- - - hearing, S. C. had the burden to prove nonconsensual sexual conduct by a preponderance of the evidence. RCW 7. 90. 090. The parties offered only S. C.' s and J. C.' s testimony, and S. C. presented two exhibits. During S. C.' s testimony, the commissioner, over S. C.' s objections, allowed J. C. to elicit testimony that on November 8, 2012, S. C. told J. C. details about her previous sexual encounters with A.F. J. C. also testified about the conversation he had with S. C. and the details of their conversation about S. C.' s prior sexual partners and conduct. Although he acknowledged its general inadmissibility, the commissioner stated that the evidence of S. C.' s prior sexual history 2 No. 44477 -1 - II was " directly relevant" to what happened on November 8, 2012, and that he couldn' t " ignore it in this context." CP at 42. After hearing testimony from both parties, the commissioner denied S. C.' s petition for the SAPO, finding that the case relied on the parties' credibility, that he did not find other admitted evidence' from S. C. " helpful," and that S. C. had not met her evidentiary burden. CP at 77. S. C. moved to revise the commissioner' s decision, arguing, in part, that the commissioner had erred by admitting and considering S. C.' s prior sexual history under ER 412 and RCW 7. 90. 080. The superior court revised the commissioner' s ruling and entered a protection order. Although the relaxed evidentiary rules in protection order proceedings apply primarily to hearsay, the superior court stated that the relaxed rules of ER 1104( c)( 4) did not apply to all evidence. And as to whether the evidence of S. C.' s sexual history was admissible, the superior court stated that the admission of the evidence violated ER 412 and RCW 7. 90. 080. The court found that the commissioner used the ER 412 evidence for a prohibited purpose when he used it to make his credibility findings; that S. C.' s sexual history with another person was a " crucial of evidence for the_commissioner' s - decision;- and -that - ultimately,--the- - exua - history - - -- - - - - - - -s piece " - evidence was irrelevant and " highly Report of Proceedings at 11 - 12. J. C. appeals. prejudicial." ANALYSIS J. C. argues that the superior court' s decision to revise the commissioner' s denial of the SAPO was improper because the superior court misinterpreted the applicability of ER 412 and RCW 7. 90. 080 The of an and ignored the commissioner admitted Instagram commissioner' s two message posted credibility findings. exhibits offered from J. C.' s by S. C.: Instagram Because the evidence of A.F.' s declaration and a screen shot account. A.F.' s declaration, Exhibit 2, directly contradicted J. C.' s testimony that A.F. and J. C. had talked about and compared penis sizes. Exhibit 1 was an explicit Instagram post that S. C. offered to demonstrate her fear of J. C. 3 No. 44477 -1 - II S. C.' s prior sexual conduct was inadmissible under ER 412 and RCW 7. 90. 080 and the superior court properly applied the de novo standard of review, we hold that the superior court properly revised the commissioner' s ruling and issued the protection order. I. STANDARD OF REVIEW Once the superior court makes a decision on revision, the appeal is from the superior court' s 2004). 115. decision, not the State v. Ramer, 151 Wn.2d 106, 113, 86 P. 3d 132 commissioner' s. We do not substitute our judgment for that of the superior court' s. Ramer, 151 Wn.2d at We defer to the superior court' s findings of fact, and review a superior court' s revision of a commissioner' s ruling under RCW 2. 24. 050 for an abuse of discretion. See In re Marriage of Dodd, 120 Wn. App. 638, 644, 645, 86 P. 3d 801 ( 2004).. H. S. C.' S PRIOR SEXUAL CONDUCT J. C. first argues that the superior court erred by misinterpreting ER 412 and RCW 7. 90. 080 and excluding S. C.' s prior sexual history because under ER 1101( c)( 4), the evidence rules are relaxed in evidentiary hearings and the ER 412 evidence was relevant. We hold that the superior court did riot - rr when it excluded-the evidence of S.-C' s- prior-sexual- conduct under -- - e 412 and RCW 7. 90. 080. ER 1101( c)( 4) governs the applicability of the Washington evidence rules to protection order proceedings: " 9A.44. 020] evidence and other ER 412," of prior sexual than with sexual behavior [ predisposition [ is to privileges, the rape shield statute [ RCW the rules of evidence, need not be applied. ER 412 generally prohibits conduct alleged sexual misconduct ... ( other respect or] ( 1) [ in civil cases, stating, "[ I] n any civil proceeding involving e] vidence offered to prove that any alleged victim engaged in 2) [ not admissible]." e] vidence offered to prove any alleged victim' s ER 412( b). 4 sexual Such evidence is only admissible when the No. 44477 -1 - II evidence is specifically at issue, is otherwise admissible, and is more probative than prejudicial. See ER 412( c). In relation to sexual assault protection orders, RCW 7. 90. 080 prohibits the admission of any evidence of the petitioner' s prior sexual conduct unless it is evidence of prior sexual conduct with the respondent, or if the admission of the evidence is constitutionally required. RCW If the evidence is admissible, RCW 7. 90. 080( 2) requires an offer of proof with 7. 90. 080( 1). specific information as to how and when the prior sexual conduct with the respondent occurred. Additionally, RCW 9A.44. 020( 2) prohibits the use of prior sexual conduct, or sexual propensity, to be admitted on the issue of credibility. Despite J. C.' s argument that the rules of evidence are relaxed with regard to protection order proceedings, he is incorrect in extending the proposition to evidence of a victim' s past sexual history. Under ER 1101( c)( 4)' s relaxed evidentiary requirements in protection order proceedings, ER 412 still applies and evidence of prior sexual conduct is generally prohibited. Furthermore, J. C. argues that the evidence 9A.44:020( 2) "prohibits using this type of - directly goes evidence for to S. C.' s this- purpo se-.- J.C. credibility, t argues - but RCW at- -. C-.-- --- --- testify about what " occurred between her and J. C. on November 8, 2012, and then say, none of the 11. sexual history and conversation] is relevant and should be excluded." Br. of Appellant at However, J. C. elicited the prior sexual history on cross -examination over the objections of counsel. There is nothing in the record indicating that S. C.' s sexual past was at issue, making it inadmissible person, not under J. C., ER 412( b). Finally, the evidence of prior sexual history was with another and was not probative of consent to sexual conduct with J. C.; as such, RCW 7. 90. 080 prohibits evidence of S. C.' s prior sexual conduct and evidence of her discussion of it with J. C. 5 No. 44477 -1 - II Because the evidence was inadmissible under ER 412 and RCW 7. 90.080, we hold that the superior court did not abuse its discretion by excluding the evidence of S. C.' s prior sexual history. III. SUPERIOR COURT' S STANDARD OF REVIEW J. C. next argues that the superior court applied the improper standard of review when it ignored the commissioner' s credibility findings. We hold that the superior court properly applied a de novo review standard. RCW 2. 24. 050, which addresses the superior court' s revision of a commissioner' s decision, and states in part, "[ of conclusions law R]evision shall be upon the records of the case, and the findings of fact entered by the court commissioner." The superior court reviews the commissioner' s findings of fact and conclusions of law de novo based on the record before the commissioner, regardless of whether the commissioner heard live testimony. Ramer, 151 Wn.2d at 113. Protection orders are essentially a type of injunction, equitable in nature, and competent evidence sufficient to support the trial court' s decision may be wholly documentary. Blackmon Because -it - applies a- e--novo - -- - - 3 2 22; 230- P-. d-- 33 -(2010):-- v.Blackmon, -155 -Wri. App: 715;--721= standard of review, commissioner. In re the superior court is not required to defer to the discretion of the Marriage of R. E., 144 Wn. App. 393, 406, 183 P. 3d 339 ( 2008); Dodd, 120 Wn. App. at 645. The superior court made its own factual determinations and conclusions of law after a proper de novo review of the existing record. Under Ramer and its independent review of the record that was before the commissioner, the superior court was not required to defer to the commissioner' s factual findings or credibility determinations. Here, as stated under Blackmon, the court properly applied the correct standard of review and referred only to the documentary 0 No. 44477 -1 - II evidence, including the briefs, the clerk' s papers, the original orders, and the hearing transcripts to make its determination. Because review of the documentary evidence was de novo, there was no requirement for the superior court to defer to the commissioner' s credibility findings and it properly made its own independent factual findings and determinations. Thus, J. C.' s argument fails. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. ON, J. L J. 77

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