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# (SW)~~ SUSAN L. CARLSON SUPREMECOURT CLERK



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent, 

### v. DONALD ORMAND LEE, Petitioner. ) ) ) ) ) ) ) ) )



# ________ ) NO. 92475-9
ENBANC
Filed 

### JUN 15 2017 FAIRHURST, C.J.-Donald Ormand Lee was convicted on two counts of third degree rape of a child. RCW 9A.44.079. Before trial, Lee moved to crossexamine the victim, J.W., about a prior false rape accusation she had made against another person. The trial court permitted Lee to ask J.W. if she had made a false accusation to police about anotherperson, but itpreventedLee from specifying that the prior accusation was a rape accusation. Lee claims this violated his confrontation clause rights. U.S. CONST. amend. VI. Lee also contends the four year delaybetweenhis initial arrest andthetrial constitutes amanifestconstitutional error warrantingreviewforthe firsttime onappeal. Lastly, Leechallengesthetrial court's imposition oflegal financial obligations (LFOs).

### State v. Lee, No. 92475-9
Because the State's legitimate interests in excluding prejudicial evidence and protecting sexual assault victims outweighs Lee's need to present evidence with minimalprobativevalue, thetrial courtdidnot abuse its discretionwhenitprevented Lee from specifyingthatJ.W. had falsely accused anotherperson ofrape. Whenthe court permitted Lee to cross-examine J.W. about her prior false accusation, it providedLee with an adequate opportunity for confrontation. Limitingthe scope of that cross-examination was within the court's discretion. Further, because Lee was not actually restrained and because charges had not been filed, the four year delay betweenhis initial arrest andthe trial is notamanifestconstitutionalerrorwarranting review for the first time on appeal. We therefore affirm the Court ofAppeals in part. However, we remand the
case for consideration ofLee's ability to pay LFOs. 

### I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On October 9, 2009, Lee was arrested on suspicion ofthird degree rape ofa child. The victim, J.W., toldpolice she engaged in various sex acts with Lee, whom she knew only as "'Rick,"'during the summer of2008. Clerk'sPapers (CP) at 1. On October 14, 2009, the courtreleased Lee because no charges were filed. For the next two and a halfyears, Lee's case "fell through the cracks." lB Report of Proceedings (RP) (Part B, Dec. 19, 2013) at 201. The Kelso Police Department initially investigated the allegations, but transferred the case to the 2State v. Lee, No. 92475-9
Cowlitz County Sheriffs Office after determining it was outside the city's jurisdiction. The sheriffs office received the report from the Kelso Police Department in March 2009. A detective did some "sporadic" work on the case but retired in April 2010. Id. Lee's case then went unnoticed until May 2012, when Detective BradThurman discovered it while reviewing unassigned cases. In March 2013, Lee was arrested again on suspicion ofthird degree rape ofa childbased onthe same allegations from 2009. OnMarch 6, 2013, the State charged Lee with five counts ofthird degree rape ofa child. RCW 9A.44.079. Each count alleged Lee engaged in sexual intercourse with J.W., age 15, between June and October2008. Each countalso alleged as an aggravating factorthatthe offense "was part of an ongoing pattern of sexual abuse ofthe same victim
. . . manifested by multiple incidents over a prolonged period of time." CP at 6-8; RCW 9.94A.535(3)(g). Lee pleaded not guilty. The trial commenced on December 18, 2013. Before trial, Lee movedto introduce evidence thatJ.W. previously fabricated
arape allegation against another individual. A policereport showedthat onJune 11, 2008, J.W. and her mother called the Kelso Police Department, alleging that J.W. had been raped by a classmate. The next day, J.W. and her mother called again to

3

### State v. 

### Lee, No. 92475-9 explain that J.W. "had made up the story regarding the rape" and that the sex "was consensual." CP at 1 7. The trial court speculatedthatJ.W.'sprior false statementis admissible under ER 608 1 to demonstrate J.W.'s character for untruthfulness but also potentially prohibited by the rape shield statute as past sexual behavior: "So, you know, part of
me says, underER608 it comes in, butunderthe rape shield statute, part ofme says it should not come in. So I'm a little bit unsure." IA RP (Dec. 18, 2013) at 29. To strike a "fair balance between those two competing interests," the court permitted Lee to ask J.W. if she had made a prior false accusation about another person to police. Id. at 33. However, the court prohibited Lee from specifying that it was a rape accusation or mentioning any past sexual behavior: [A]s far as the issue of [J.W.]
... making a -- a false accusation about being

-- to the police, I'm going to allow that, that she made a false accusation about another person to the police. The cross examination or the redirect, however it comes out[,] would be limited in that she could talk about her motivations, maybe she was scared, uncertain and

1"Specificinstances ofthe conduct ofawitness, for the purpose ofattacking or supporting the witness' credibility
... may not be proved by extrinsic evidence. They may, however, in the discretion ofthe court, ifprobative oftruthfulness or untruthfulness, be inquired into on cross examinationofthe witness (1) concerningthe witness' characterfortruthfulness oruntruthfulness, or (2) concerning the character for truthfulness or untruthfulness ofanother witness as to which character the witness being cross-examined has testified." ER608(b). 

### 4State v. Lee, 

### No. 92475-9



### Id. she promptlyrectified itthe very next day and there will be no mention ofany ... sexual conduct in

-- in any way.

J.W. wasthe State's main witness attrial. J.W. testifiedthatin June 2008, she received an unusual phone call from a man identifying himselfas "'Rick.'" Id. 

### at 57. J.W. later identified the defendant as "Rick," explaining she neverknewhim as Lee. Id. 

### at 61. Lee askedto meetJ.W. inperson and gaveherhis telephone number. J.W. agreedto meet Lee at Tam O'ShanterPark in Kelso, Washington. After their first meeting at Tam O'Shanter Park, J.W. testified she and Lee began having regular sexual interactions. Typically, Lee would pick up J.W. after
summer school and drive somewhere to engage in oral and vaginal sex. J.W. testified she would also perform oral sex on Lee while he drove. Lee always drove the same black Camara or Thunderbird. They would usually go to either Tam O'Shanter Park or Riverside Park. On one occasion, they went to a residence in Castle Rock that Lee claimed was his ex-girlfriend's house. J.W. remembered petting two cats at the Castle Rock house. J.W. also remembered visiting the residence that Lee shared with his mother. J.W. met Lee almost every day after summer school from June through September 2008. They did nothave sex every day, butJ.W. estimated they had sex "more than ten [but] less than thirty" times during that summer. Id. 

### at 82. J.W.
5

### State v. Lee, No. 92475-9 provided specific details for some ofthese interactions. For example, J.W. testified Lee has a tattoo on his chest or shoulder and another tattoo onhis arm. J.W. testifiedthat she was 15 years oldatthetime. Lee, then42years old, told J.W. he was "concerned" that he "would get in trouble" due to the age difference. 

### Id. at 64. Lee oftentold J.W. notto tell anyone abouttheir relationship so he would not '"get introuble."' 

### Id. at 83. J.W. testifiedthatLeenever wantedto go outto eat inpublic or go outwith other couples. Leeboughtcigarettes for J.W., tellingher '"If Ibuyyouthese,youneedto ...promise"'notto "tellanyone aboutourrelationship." 

### Id. at 80. J.W. testified shewouldfrequentlywritenotestoLee. J.W. askedLeeto write herletters inreturn, buthe gaveheronly one letter. J.W. keptthe letter "fora while" because "[i]thadmeant something" to her. 

### Id. at 86. J.W. eventually gave the letter to an investigating officer, and the State introduced it at trial. Before trial, Lee stipulated that he wrote the letter. The letter does not address J.W. by name and is addressed to "My friend/love." Ex. 1. In the letter, Lee describes specific sex acts he enjoys with the recipient. 

### See, e.g., id. ("I always love making love to you."). Lee also expresses a desire to try other sex acts in the future, such as anal sex. 

### Id.

6

### State v. Lee, No. 92475-9 Generally, the letter details Lee's feelings for the recipient and his desire for a relationship with her. 2 J.W. testified her relationship with Lee ended in September 2008. J.W. told her mother about the relationship in early 2009. J.W.'s mother reported the relationship to police. J.W. toldpolice aboutthe relationship andprovidedthe letter she received from Lee. J.W. later identified "Rick" in a photo lineup. 

### lARP (Dec. 18, 2013) at 91; Ex. 2. J.W. also showedpolicethevarious locations shewouldmeet Lee and have sex with him.

2 My friend/love I wantto saythis first. I'mgladthatyouwalkedintomylife. You have a very special place in my heart. Youturn me on in a way like no other woman ever has! I always hunger to be inside you. Every time I
· think aboutyou or hear your voice I always have to touch myself. You

will always bemy friend and I will always bethere whenyou needme. Ifyou ever needto be held all you have to do is ask. I will also always be there to [wipe] your tears away. I'm also wanting you to know is, I'm starting to have some strong feelings for you! I do not like it when we're apartfrom each other. You are so beautiful inmy eyes yourbody turns me on. . . . I really want to have something with you. You are always and forever inmythoughts
....Thankyou for wantingto bemy friend. I will never let you down. I'm going to showyou what it is like to have a manthat cares for you more thanyou know
.... Your friend 4 life 

### R Ex. 1. 7

### State v. 

### Lee, No. 92475-9 During cross-examination, defense counsel asked J.W. ifshe had "evermade any false accusations about another person to the police." lARP (Dec. 18, 2013) at 120. J.W. responded, "Yes." 

### Id. at 121. She testified that it occurred in early June 2008 and that she "immediately corrected it." 

### Id. On redirect examination, J.W. explained, "I didn't want someone to think that I hadmade a false report. I wanted to make itright." Id. at 151. Defense counsel also asked J.W. about the Castle Rock house. J.W. testified that the Castle Rock house belonged to Lee's ex-girlfriend. J.W. said she could not remember what the inside ofthe house looked like. J.W. could not remember any animals depicted in the decor, but she remembered two cats lived inthe house. She could not remember what color the cats were, but she remembered they were "slightly large." Id. at 112. J.W. also couldnotrecall details ofthe interior ofLee's mother's house, despite testifying that she had been there. She also could not remember what Lee's mother looked like. Lee's ex-girlfriend Beth Bongiovanne also testified. In 2008, Bongiovanne lived in the Castle Rock house and had two cats. Bongiovanne testified that she allowed Lee to enter her house and use her black 1985 Camaro. Bongiovanne testified Lee used her Camaro "[q]uite a bit" in 2008, butnot daily. 

### Id. at 167, 181. Lee also testified. Lee testified he did not know J.W. Lee said the only interaction hehad with J.W. occurredin 2008 when J.W. approachedhim outside of 8

### State v. Lee, No. 92475-9
his mother's house and asked ifhe was married to TinaDunlap. Lee denied calling J.W., pickingherup outside herhigh school, and drivingherto Tam O'ShanterPark and Riverside Parle Lee admittedhe wrote the letterbutclaimedhe wrote itto "[n]o one." lB RP (Dec. 19, 2013) at 269. He saidhe wrote the letter for "[n]o particular reason" and that it was a "fantasy." 

### Id. Lee testified he placedthe letter with other possessions stored at his ex-wife's house. Lee denied driving Bongiovanne's black Camaro in 2008. Lee testifiedhe neverhad any tattoos, andheremovedhis shirtto demonstrate hehad none. Thejury convicted Lee on two counts ofthird degree rape ofa child, but it did not find the aggravating factor-thatthe crimes were part ofan ongoing pattern ofsexual abuse ofthe same victim. Thejury found Lee not guilty ofthe remaining three counts. The court sentenced Lee to 34 months ofconfinement and 26 months ofcommunity custody for count one, and 26 months ofconfinement and 34 months of community custody for count two. The court imposed $2,641.69 in LFOs, including $2,041.69 in discretionary costs. Lee did not object. The Court ofAppeals affirmed Lee's conviction. 

### State v. Lee, No. 33229-2- III, slip op.at 1-2 (Wash. Ct. App. Aug. 13, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/332292.unp.pdf. The Court of Appeals concludedthatthe rape shield statute does notpreclude evidence ofapriorfalse rape accusation and held that the trial court abused its discretion when it limited Lee's 9

### State v. Lee, No. 92475-9
cross-examination ofJ.W. 3 

### But the court concluded this error did not violate the confrontation clause. Finding no constitutional error, the court applied nonconstitutional harmless error analysis and concludedthe error did not materially affectthe outcome ofthetrial. The courtalso heldthenearlyfour year delaybetween Lee's first arrest and the beginning oftrial did not violate his constitutional right to
a speedy trial. U.S. CONST. amend. VI. Lee raised the issue for the first time on appeal, and the court concluded the error was not "manifest" for purposes ofRAP 2.5(a)(3). 

### Lee, No. 33229-2-III, slip op. at 6. The court also declined to review the trial court's imposition ofLFOsbecause Lee failed to object during sentencing. 

### See State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015). Lee petitionedthis court for review onthree issues. First, he argues the Court ofAppeals erred when it applied nonconstitutional harmless error analysis because the trial court's ruling violated the confrontation clause. Second, Lee claims the delay between his initial arrest and the trial violated his right to a speedy trial. Finally, he asks for remand so the trial court can consider his ability to pay LFOs.

3 See Lee, No. 33229-2-III, slip op. at 10-11 ("Arguably, the court did not have tenable grounds to deny Mr. Lee's request to cross-examine J.W. pertaining to her credibility. Thus, the trial court abusedits discretion
....Althoughthe trial court arguably erredinnot allowing evidence that the prior false allegation was rape, any error was harmless
.... Given all, we conclude the court's exclusion of evidence was harmless, does not violate the confrontation clause and, therefore, does not warrant reversal."). 

### 10State v. Lee, No. 92475-9
We granted Lee's petition for review. State v. Lee, 185 Wn.2d 1009, 368 P.3d 171 (2016). II. ISSUES A. Did the trial court violate Lee's confrontation clause rights when it prevented him from asking J.W. about her prior false rape accusation? Which harmless error standard, ifany, should have been applied? B. Is the nearly four year delay between Lee's initial arrest and the trial a manifest constitutional error warranting review for the first time on appeal under IlAP 2.5(a)(3)? C. Should we remand for consideration of Lee's ability to pay LFOs consistent withBlazina? III. ANALYSIS A. The trial court did not violate the confrontation clause when itprevented Lee from specifying that J.W. had falsely accused another person ofrape As an initial matter, we need not consider whether the trial court had tenable evidentiary grounds to prevent Lee from asking J.W. about the prior false rape accusation. The Court ofAppeals held that the trial court erred when it concluded that the rape shield statute prevented Lee from specifying the nature ofJ.W.'s prior false accusation. Lee did not seek review ofthis issue, and the State failed to raise it in its response to Lee's petition for review. Thus, the issue is not before us, and
we express no opinion on the Court of Appeals conclusion that the trial court committed evidentiary error.

11

### State v. Lee, No. 92475-9
Because the Court of Appeals found only evidentiary error-rather than constitutional error-itappliednonconstitutionalharmless error analysis and upheld Lee's conviction. Lee contends that the Court of Appeals should have applied constitutional harmless error analysis because the trial court's ruling infringed his right to confront J.W. But determining the appropriate harmless error standard requires considering whether the trial court violated Lee's right to confrontation. Therefore, the only question before us is whether the confrontation clause required permitting Lee to specify that J.W.'s prior false allegation involved rape.4 

### 1. Standard ofreview We review a limitation ofthe scope of cross-examination for an abuse of discretion. State v. Garcia, 179 Wn.2d 828,844,318 P.3d 266 (2014); State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). A trial court abuses its discretion when its decision is "'manifestly unreasonable or based upon untenable grounds or reasons."' Garcia, 179 Wn.2d at 844 (internal quotation marks omitted) (quoting State v. Lamb, 175 Wn.2d 121, 127,285 P.3d 27 (2012)).

4 We note that some federal and state courts have upheld the complete exclusion ofprior false rape accusation evidence. See, e.g., Hughes v. Raines, 641 F.2d 790, 792 (9th Cir. 1981); State v. Raines, 118 S.W.3d 205, 213 (Mo. Ct. App. 2003). Other states disagree. See, e.g., Morgan v. State, 54 P.3d 332 (Alaska Ct. App. 2002). But we need not address whether the confrontation clause requires admission ofprior false rape accusation evidence given the unique circumstances here. The trial court permitted Lee to cross-examine J.W. regarding her prior false accusation but prevented Lee from specifying that it was a rape accusation. 

### 12

### State v. Lee, No. 92475-9
2. The trial court did not abuse its discretion when it prevented Lee from specifying the nature ofJ.W.'s prior false accusation The trial court permitted Lee to ask J.W. whether she had made a false accusation to police about another person. However, the courtprevented Lee from specifying that J.W.'s prior false accusation was a 

### rape accusation. He argues this limitationviolatedhis confrontationclauserights andthatthe errorwasnotharmless beyond a reasonable doubt. But because the excluded information had minimal probative value in light oflegitimate state interests, the trial court's ruling did not violate the confrontation clause. Boththe federal and state constitutions protect a defendant's rightto confront
an adverse witness. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; 

### Davis v. Alaska, 415 U.S. 308,315, 94 S. Ct. 1105, 39L. Ed. 2d347 (1974); 

### State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). 5 "Confrontation" includes more than mere physical confrontation. 

### Davis, 415 U.S. at 315. '"The main and essential purpose of confrontation is 

### to secure for the opponent the opportunity of crossexamination."' Id. at 315-16 (internal quotation marks omitted) (quoting 

### Douglas
v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965)). Crossexamination allows the defendantto "testtheperception, memory, andcredibility of

5 Lee does not contend that the Washington Constitution provides broader confrontation protectionthan the United States Constitution. Our analysis therefore focuses on the latter. 13

### State v. Lee, No. 92475-9
witnesses." 

### Darden, 145 Wn.2d at 620. Confrontation therefore assures the accuracy ofthe fact-finding process. 

### Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d297 (1973). "Wheneverthe rightto confront is denied, the ultimate integrity ofthis fact-finding process is calledinto question. As such, the right to confront must be zealously guarded." 

### Darden, 145 Wn.2d at 620 (citation omitted). Butthe right to confront a witness through cross-examination is not absolute. 

### Chambers, 410 U.S. at 295. "[T]he Confrontation Clause guarantees an 

### opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." 

### Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); "[T]rialjudges retain wide latitude insofaras the ConfrontationClause is concernedto impose reasonable limits
on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion ofthe issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." 

### Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Courts may deny crossexamination if the evidence sought is "vague, argumentative, or speculative." 

### Darden, 145 Wn.2d at 621. We apply a three-part test to determine whether a trial court violated a defendant's rightto confront a witness by limiting the scope ofcross-examination: 14

### State v. Lee, No. 92475-9 First, the evidence must be ofat least minimal relevance. Second, if relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness ofthe fact-finding process at trial. Finally, the State's interest to exclude prejudicial evidence must be balanced against the defendant's need for the information sought, and only if the State's interest outweighs the defendant's need can otherwise relevant information be withheld. Id. at 622; seealso State v. Jones, 168 Wn.2d 713, 720-21, 230 P.3d 576 (2010). No state interest is sufficientto precludehighlyprobative evidence. Darden, 145 Wn.2d at 622. Analyzing these factors, we conclude the trial court did not violate Lee's confrontation clause rights when it limitedthe scope ofJ.W.'s cross-examination.
a. The excluded evidence had minimal probative value First, though relevant, J.W.'s prior false rape accusation had minimal probative value because it did not directly relate to an issue inthe case. Ratherthan demonstrate a specific bias or motive to lie, which would be highly probative, the evidence invited thejuryto inferthat J.W. is lying because she had lied in the past. Generally, evidence is relevantto attack awitness' credibility or to showbias
or prejudice. Davis, 415 U.S. at 316. Credibility evidence is particularly relevant whenthe witness is centralto theprosecution's case. SeeDarden, 145 Wn.2d at 619 ("the more essential the witness is to the prosecution's case, the more latitude the defense should be given to explore fundamental elements such as motive, bias, credibility, or foundational matters"). Relevant credibility evidence may include specific instances oflying, though "their admission is highly discretionaryunderER 15

### State v. Lee, No. 92475-9 608(b)." State v. Kunze, 97 Wn. App. 832, 859, 988 P.2d 977 (1999); see also State
v. 0 

### 'Connor, 155 Wn.2d 335,349, 119 P.3d 806 (2005) ("Inexercisingits discretion [to admitorexcludeevidenceunderER608(b)], thetrial courtmay considerwhether the instance ofmisconduct is relevant to the witness's veracity on the stand and whether it is germane or relevantto the issues presented at trial."). But evidence of a witness' prior false statement is not always relevant, particularly when that evidence is unrelated to the issues in the case. The confrontation clause primarily protects "cross-examination directed toward revealing possible biases, prejudices, or ulterior motives ofthe witness as they may relate directly to issues orpersonalities in the case athand." Davis, 415 U.S. 

### at 316 (emphasis added); see also Van Arsdall, 475 U.S. at 680 ("[A] criminal defendant states a violation ofthe Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show 

### a prototypical form of bias on thepart of the witness." (emphasis added)). Evidence intended to paint the witness as a liar is less probative than evidence demonstrating
a witness' bias or motive to lie in a specific case. See, e.g., Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. 

### Ed. 2d 513 (1988) (finding error in a trial court's refusal to allow cross-examination on arape victim's extramarital relationship when that relationship would have shown the victim's bias or motivation).

16

### State v. Lee, No. 92475-9 Here, Lee did not offerthe prior false accusation evidence to demonstrate that J.W. was biased or that she had a motive to lodge a false accusation against him. Instead, he invited thejury to infer that because J.W. made a false rape accusation in the past, her accusation here must also be false. Indeed, defense counsel made this argument during closing remarks. lC RP (Dec. 20, 2013) at 388 ("You're dealing with a girl, [J.W.], who admitted she had made a false accusation about somebody to the police in June of2008. That same girl claims that in June, July, August, September, that time frame in 2008, Donald Ormand Lee had sex with her
over and over and over."). Lee's defense theory is clear: J.W. liedthen, so she must be lying now. A prior false statement admitted for this purpose has questionable probative valuebecause it does not directly relate to issues inthe case. We typically disfavor evidence intended to suggest that because aperson acted wrongfully in the past, she must also be doing so now. ER404(b) ("Evidence ofothercrimes, wrongs,
or acts is not admissible to prove the character ofapersonin orderto show action in conformity therewith."). Washington courts have twice upheld the exclusion offalse rape accusation evidence. 

### See State v. Demos, 94 Wn.2d 733, 619 P.2d 968 (1980); 

### State v. Harris, 97 Wn. App. 865, 989 P.2d 553 (1999). In

### Demos, the defendant was convictedby
ajuryoffirst degree burglary and attempted first degree rape. 94 Wn.2d at 734. On appeal, the defendant argued the trial court abused its discretion when it excluded 17

### State v. 

### Lee, No. 92475-9
evidence showing the complaining witness made two allegedly false rape accusations in the past. 

### Id. at 735. We held the prior accusations were irrelevant because the defendant could not prove they were actually false. 

### Id. at 737 (The offered evidence "provednothing aboutthetruth or falsity ofthevictim's version of the alleged rape."). We further noted that even ifrelevant, the evidence would be "highly prejudicial." 

### Id. In 

### Harris, the Court ofAppeals affirmed the exclusion ofan allegedly false rape accusation for similar reasons. 97 Wn. App. at 872-73. Citing 

### Demos, the 

### Harris court stated that "[g]enerally, evidence that a rape victim has accused others is not relevant and, therefore, not admissible, unless the defendant can demonstrate thatthe accusation was false." 

### Id. at 872 (citing

### Demos, 94 Wn.2d at 736-37). Like 

### Demos, the 

### Harris court noted the defendant could not prove the prior accusation
was false. 

### Id. Lee correctly notes that here, unlike in 

### Demos and 

### Harris, J.W. admitted to falsely accusing another person ofrape in the past. But the 

### Harris court suggested prior rape accusations offered as general attacks on witness credibility have limited probative value. .The court explained that prior rape accusations are usually not relevant "because the propensity ofthe complaining witness to cry 'rape' is usually offered to impugn credibility." 

### Id. The court noted the evidence was only "potentially probative" given the unique circumstances ofthe case. 

### Id. During 18

### State v. Lee, 

### No. 92475-9
Thomas Harris' trial for third degree rape, the victim testified that Harris asked her several times, "'Are you going to tell your father that I raped you or what?"' Id. 

### at 867. The courtreasonedthat, because ofthis evidence, aprior false rape accusation might be relevant: The State put into evidence Mr. Harris's parting comment to M.T. Mr. Harris did not deny making this remark, which, on its face, tended to prove his guilt. Therefore, the prior accusation evidence was potentiallyprobative. Aprior accusation, laterrecanted, wouldprovide an innocent explanation for the remark andbolsterMr. Harris'sversion ofthe events, assuming thejurybelieved it and Mr. Harris could show that he knew about it at the time. Id. 

### at 872. In other words, even ifHarris couldprovethe falsity ofthe witness' prior rape accusation, that evidence would be releva:qt only to provide an "innocent explanation" for other evidence in the case. Id. Harris 

### does not support the proposition that a prior rape accusation, ifproved false, is required to be admitted into evidence by the confrontation clause. Rather, the Harris 

### court's reasoning shows that a prior false rape accusation "offered to impugn credibility," id., 

### is minimally probative because it fails to demonstrate "ulterior motives ofthe witness
as they may relate directly to issues orpersonalities in the case athand,"Davis, 

### 415 U.S. at 316 (emphasis added). Lee also relies onState v. McDaniel, 

### 83 Wn. App. 179, 186-87, 920 P.2d 1218 (1996), where the Court ofAppeals held thatthe trial court violatedthe defendant's right to confrontation when it excluded evidence that a witness had lied during a 19

### State v. Lee, No. 92475-9 deposition. But, unlike J.W.'s prior false accusation, the prior false statement in 

### McDaniel was directlyrelevantto the witness' abilitytoperceivethe events atissue. In 

### McDaniel, the defendant argued that the complaining witness' testimony
was unreliablebecause she wasunderthe influence ofdrugs. 

### Id. at 184. To support this argument, the defendant moved to introduce impeachment evidence during cross-examination showingthatthe witness was onprobation for a drug offense and that she "hadlied aboutthe recency ofherdruguse duringher depositionin arelated civil suit." 

### Id. at 182. The trial court excluded this evidence, and the Court of Appeals reversed, explaining the witness' willingness to lie was relevant to her credibility: Although the State argues that the trial court properly excluded evidence of [the witness'] prior false testimony and probation because it concerned a collateral issue ofherprior drug use, we are not swayed bythe argument. Here, [the witness] admittedly liedunder oathfor her own purposes in the related civil proceeding, and the question for the jurywas whether she would lie under oath for her ownpurposes in the criminalproceeding
....Absenta compelling Stateinterestinexcluding the evidence that outweighs the fundamental constitutional right of confrontation, the defense was entitled to explore the possibility that, given [the witness'] admitted willingness to lie under oath when it suited her purposes before, she may have been doing it again in the criminal prosecution, for whatever reasons might serve her purposes there. 

### Id. at 186-87. But, like 

### Harris, the prior false statement in 

### McDaniel was relevant to other evidence in the case. The defense argued thatthe complaining witness' drug usage 20

### State v. Lee, No. 92475-9
affectedherabilityto accuratelyperceivethe events givingriseto the alleged assault. 

### Id. at 183-84. The court explained that her prior false testimony was relevant becauseitrelatedto herdruguse andthereforethereliability ofhertestimony: "With respect to her prior false testimony, [the witness'] credibility as to who kicked her and as to her ability to perceive who it was that kicked her was relevant to the issue ofwho assaulted her." 

### Id. at 186. In other words, the defendant in 

### McDaniel did not introduce the witness' prior false statement for the sole purpose ofsuggesting she is a liar, as Lee intendedto do here. Rather, thepriorfalse statementin

### McDaniel showedthatthe witness had a motivationto lie about "the extent and recency ofher drug use," which cast doubt onher ability to perceivethe events she testified to. 

### Id. J.W.'sprior false rape allegationbears no analogous relationship to the issues in this case. It did not demonstrate she had a motive to lie, nor did it explain other evidence in the case or cast doubt on her ability to perceive events. Though we cannot say Lee's proffered evidence is entirely irrelevant, it has only minimal probative value. b. The evidence was prejudicial Still, evenminimallyrelevant evidence satisfies the firstprongunder

### Darden. 145 Wn.2d at 622. 6 We therefore must consider whether the State has shown that

6 The concurrence mistakenly reads our conclusion to mean that the excluded evidence fails the first prong under Darden, alleging that we have "rewrit[ten]" the test. Concurrence at 21State v. Lee, No. 92475-9
the "evidence is so prejudicial as to disruptthe fairness ofthe fact-finding process at trial." Id. Given the evidence's low probative value here, the State can meet its burden. Like evidence ofprior bad acts, evidence ofa false rape accusation asks the juryto make the improper inference thatbecause a complaining witness lied before, shemust also be lyingnow. OurEvidence Rules are designedto preventjuries from making this inference specifically because ofits potentially prejudicial effect. See ER 404(b). "Rule 404(b) is based upon the belief that such evidence is too prejudicial-thatdespite its probative value, the evidence is likely to be overvalued by the jury, and the jury is too likely to jump to a conclusion of guilt without considering other evidence presented at trial." 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LA

### wAND PRACTICE § 404.10 (6th ed. 2016); see also State V. Bowen, 48 Wn. App. 187, 195-96, 738 P.2d 316 (1987) (discussing the inherently prejudicial nature ofpriorbad acts evidence).

5. This is not so. We agree with the concurrence that the excluded evidence here is minimally relevant and satisfies the first prong. We therefore continue to the second and third prongs and conclude that the State has shown that the excluded evidence is prejudicial and that it has a compelling interest in exclusion that outweighs Lee's need to specify the nature ofJ.W.'s prior false accusation. Contrary to the concurrence's assertion, this reasoning is consistent with Hudlow. See Hudlow, 99 Wn.2d at 16 (Because the State has a compelling interest in protecting rape victims, minimally relevant evidence may be excluded when it is prejudicial.). 22State v. Lee, No. 92475-9 Further, the prejudice from J.W.'s false rape allegation is similar to the prejudice caused by prior sexual acts. InHudlow, we explained the State's interest in avoiding prejudice caused by this evidence: [T]he state's interest in applying the rape shield statute is to bar evidence that may distract and inflame jurors if it is of arguable probative worth. To the degree exclusion of prior sexual history evidence aids in achievingjusttrials andpreventing acquittals basedon prejudice againstthe victims' past sex lives, ittendsto further the truthdetermining function ofcriminal trials. 99 Wn.2d at 16. Although the application ofthe rape shield statute is not an issue before us inthis case, theprejudice concerns we articulated inHudlow are analogous here.7 For example, a prior false rape accusation may "distract and inflamejurors" with evidence "ofarguable probative worth." Id. This is particularly true when the prior false accusation bears no direct relationship to the issues in the case. The potential prejudice from J.W. 's prior false rape accusation outweighs its minimal probative value.

7 The concurrence criticizes this analogy to evidence of prior sexual acts discussed in Hudlow. Concurrence at 8-9. To avoid confusion, we wish to emphasize that our analysis here has no bearing on whether the rape shield statute applies to prior false rape accusations. Our reliance onHudlow is intended to showthat evidence ofprior false rape accusations and evidence of prior sexual acts can have a similar prejudicial effect. As we recognized in Hudlow, that prejudicial effect canjustify excluding evidence ofminimal probative value without violating the confrontation clause. 99 Wn.2d at 16; see also Darden, 145 Wn.2d at 621 C'[R]elevant evidence may be deemed inadmissible ifthe State can show a compelling interest to exclude prejudicial or inflammatory evidence."). That prior false accusation evidence has a similar prejudicial effect to prior sexual activity evidence does not necessarily bring it within the scope ofthe rape shield statute, which expressly applies only to "sexual behavior." RCW 9A.44.020(2). 23

### State v. Lee, No. 92475-9

c. The State's interests outweighLee'sneedfor theinformation sought Finally, "the State's interestto excludeprejudicial evidence mustbebalanced against the defendant's need for the information sought, and only if the State's interest outweighs the defendant's need can otherwise relevant information be withheld." Darden, 145 Wn.2d at 622. The State's compelling interest in encouraging rape victims to report and cooperate in prosecuting these crimes outweighs Lee's need to specify that J.W.'s prior false accusation was a rape accusation. In Hudlow, we recognized the State's legitimate interest in excluding prejudicial evidence ofprior sexual acts because admitting such evidence would discourage rape victims from "step[ping] forward and prosecut[ing] these crimes where convictionrates historicallyhave been very low." 99 Wn.2d at 16. The State has similar interests at stake here. A person who recants even an admittedly fabricated rape accusation is no less susceptible to future victimization than anyone else. When aprior false accusationbears no directrelationship to a witness' motive to lie inthepresentcase, its admissiondetracts attentionfrom the defendant's alleged actions and places an undue focus on the victim's history. This may discourage victims from reporting their assaults and participating in the prosecution oftheir offenders. Further,prosecutorsmay avoidpursuingthese otherwise successful cases simply because the victim made a false accusation in the past. 24

### State v. Lee, No. 92475-9
These compelling state interests outweigh Lee's need for the information sought, particularly in light ofthe trial court's accommodation here. Lee was not prohibited from inquiring about J.W.'s false accusation. The trial court permitted Lee to ask J.W. if she had made a prior false accusation about another person to police. But the court prevented Lee from specifying that the prior false accusation
was a rape accusation. Lee argues he needed to inquire about the specific nature of the prior accusation in order to adequately confront J.W. But the trial court's accommodation allowed Lee to attack J.W.'s credibility while also accounting for the State's legitimate interest in avoiding prejudice and protecting sexual assault victims. BecauseLee was still able to attackJ.W.'s credibility, the State's interests in limiting prejudice and protecting sexual assault victims outweighed Lee's need to specify that the prior false accusation was a rape accusation. See State v. Fisher, 165 Wn.2d 727, 753, 202 P.3d 937 (2009) (under the confrontation clause, "a defendant has aright to put specific reasons motivating the witness' bias before the jury, notspecific facts" (emphasis added)). The trial court admittedthe evidence to the extent that it was relevant for impeachment purposes-to cast doubt on J.W.'s credibility. Once the trial courtpermittedLee to cross-examine J.W. about herprior false accusation, it sufficiently accommodatedLee'srightto adequate confrontation. Limiting the scope ofthat cross-examination was within the court's discretion. See 25

### State v. Lee, No. 92475-9


### Van Arsdall, 475 U.S. at 679 ("[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such crossexamination."). We recognize thatthis is a close case. A defendanthas a right to confronthis
accuser and impeach her credibility. Accordingly, evidence of a witness' dishonesty, including false accusations, may be appropriate and even required in
some circumstances. But the State has a compelling interest in protecting rape victims, encouraging their cooperation in the investigation and prosecution of offenders, and excluding prejudicial evidence with minimal probative value. This does not mean that all false rape accusations can or should be excluded, however. For example, a prior false accusation bearing a strong resemblance to the circumstances giving rise to the allegations at issue mightbe highly probative. 8 Butunderthe circumstances here and giventhe evidence's minimal probative value and the State's interest in excluding it, and the trial court's accommodation, the trial court did not abuse its discretion when itpreventedLee from specifyingthe nature ofJ.W.'s prior false accusation and therefore did not violate Lee's right to confrontation. Because we find no violation, we need not decide whether the Court ofAppeals erredwhen itdeclinedto applythe constitutional harmless error standard.

8 The concurrence agrees that J.W.'s prior false accusation wouldbe more probative ifit were "directly analogous" to the allegations against Lee. Concurrence at 7 n.5. 26State v. Lee, 

### No. 92475-9
B. The alleged speedy trial violation is not a manifest constitutional error warranting review for the first time on appeal under RAP 2.5(a)(3) Lee claims the nearly four year delay between his initial arrest and the filing offormal charges violated his Sixth Amendment right to a speedy trial. SeeBarker
v. Wingo, 

### 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Lee failed to raise this claim before the trial court. He nevertheless contends we may reviewthe error because it constitutes a "manifest error affecting a constitutional right." RAP 

### 2.5(a)(3). Generally, we may "refuse to review any claim oferror which was not raised in the trial court." RAP 2.5(a). However, a party may raise a claim oferror for the first time on appeal ifit is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. O'Hara, 

### 167 Wn.2d 91, 98,217 P.3d 756 (2009). To meet this standard, the petitioner must show that the error is "truly of constitutional dimension" and that it is "manifest." O'Hara, 

### 167 Wn.2d at 98. "Manifest" under RAP 2.5(a)(3) requires a showing ofactual prejudice. State v. Kirkman, 

### 159 Wn.2d 918, 935, 155 P.3d 125 (2007). To determine whether an error raised for the first time on appeal is of constitutional dimension, we consider "whether, if correct, it implicates a constitutional interest as compared to another form of trial error." O'Hara, 

### 167 Wn.2d at 98. Here, the delay between Lee's initial arrest and when the State filed 27State v. Lee, No. 92475-9 charges againsthim does not implicate his speedytrialrights becausehe was neither chargednor actuallyrestrained. See UnitedStates v. LoudHawk, 474 U.S. 302,311, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). Both the federal and state constitutions provide defendants with a right to a speedy and public trial. U.S. CONST. amend VI; WASH. CONST. art. I, 

### § 22. The right to speedy trial attaches when a charge is filed or an arrest made, whichever
occurs first. LoudHawk, 474 U.S. at 310-11. Butwhenno charges have been filed, onlythe "actualrestraints imposedby arrestandholdingto answer a criminal charge

... engagethe particularprotections ofthe speedy trial provision." UnitedStates v. Marion, 404 U.S. 307, 320, 92 S. Ct. 455, 30 L. Ed. 2d468 (1971). For example, in UnitedStates v. MacDonald, 456 U.S. 1, 102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982), the defendant was chargedwithmurder inmilitary court. The charges were dismissed, and the defendant was released. Id. Over four years later, the government chargedthe defendant with the same crime in federal district court. Id. Onappeal, the defendant arguedthe four year delaybetweenhis initial detention andtrial violatedhis speedytrialrights. The courtrejectedthis argument, explaining that the speedy trial right does not apply absent actual restraint orpending charges: The speedy trial guarantee is designed to minimize the possibility of lengthyincarcerationpriorto trial, to reducethe lesser, butnevertheless substantial, impairmentoflibertyimposedonanaccusedwhilereleased on bail, and to shorten the disruption oflife caused by arrest and the presence ofunresolved criminal charges. 28

### State v. Lee, No. 92475-9



### Id. at 8. Similarly, in 

### State v. Poirier, 34 Wn. App. 839, 664 P.2d 7 (1983), the court held that a delay between arrest and the filing ofthe information did not violate the defendant's speedy trial right. The defendant was arrested on September 13, 1980, and released after posting a bail bond. 

### Id. at 840. Two days later, the State filed a "'No ChargesFiled"' document. 

### Id. Sixmonths later, the State filed an information chargingthe defendantwithunlawfulpossessionofcocaine. 

### Id. Citing

### MacDonald, the courtheld the delay did notviolate the defendant's speedy trial right. The same is true here. Lee was arrested on October 9, 2009. On October 13, the State filed a "Notice ofNo Charges Filed." CP at 4. The court entered an order stating that Lee "shall be released from custody and exonerated from the condition ofrelease." CP at 3. Because Lee was not actually restrained and there were no conditions onhis release, andbecauseno chargeswere filed, the delay didnottrigger his speedy trial rights. 

### Poirier, 34 Wn. App. at 840; 

### MacDonald, 456 U.S. at 7-9. To support his argument to the contrary, Lee cites 

### Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992), and 

### State v. Corrado, 94 Wn. App. 228, 972 P.2d 515 (1999), 

### overruledinpartby

### State v. Iniguez, 167 Wn.2d 273, 217 P.3d 768 (2009). These cases are inapposite. In

### Doggett, the government failed to arrestthe defendant for eight and a halfyears after charges were filed. 505 29State v. Lee, 

### No. 92475-9
U.S. at 649-50. Unlike this case, even though the defendant was not restrained, charges were actuallypending during the allegedlyunconstitutional delay. Corrado 

### illustrates the opposite scenario. The defendant successfully moved to dismiss charges on doublejeopardygrounds,butheremainedinjailwhilethe State appealed the dismissal. Corrado, 

### 94 Wn. App. at 231. Therefore, neither Doggett 

### nor Corrado 

### is relevant here, where no charges were filed and

### Lee was unconditionally released from custody. 9 

### Finally, Lee cannot show that the alleged speedy trial violation is "manifest" for purposes ofRAP 2.5(a)(3). A "manifest" error must cause prejudice. In other words, Lee must "show how the alleged error actually affected [his] rights at trial." Kirkman, 

### 159 Wn.2d at'926-27. Lee argues the delay causedprejudice intwo ways. First, he contends he experienced anxiety afterbeing arrested andreleased. Second, Lee claims his mother, who passed away before trial, would have testified on his behalf. TheBarker 

### Court recognized both ofthese concerns as potential sources of prejudice. 407 U.S. at 532 (The speedy trial right is intended to "minimize the anxiety and concern ofthe accused[] and
... to limit thepossibilitythat the defense will be impaired.").

9We agree with the concurring opinion from the Court ofAppeals, which correctly notes that Lee's claim is more properly considered as an undue preaccusation delay under the due process clause. SeeMacDonald, 456 U.S. at 7 ("Anyundue delay after charges are dismissed, like any delay before charges are filed, must be scrutinized under the Due Process Clause, not the SpeedyTrial Clause."). Lee neverraised this argument. 

### 30

### State v. Lee, No. 92475-9
Butneither ofthese concerns causedprejudice here. In

### MacDonald, the court explained that without incarceration or pending charges, anxiety from a criminal investigation does not prejudice the defendant: Once charges are dismissed, the speedy trial guarantee is no longer applicable. Atthatpoint, the formerly accused is, atmost, inthe samepositionas any other subjectofacriminal investigation. Certainly the knowledge ofan ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in a normal life. This is true whether or not charges have been filed and then dismissed. This was true in 

### Marion, where the defendants had been subjected to a lengthy investigation which received considerable press attention. But with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending
.... Following dismissal ofcharges,
... stress and anxiety is no greaterthan it is upon anyone openly subjectto a criminal investigation. 456 U.S. at 8-9 (footnotes omitted). Therefore, Lee's anxiety 1s insufficient prejudice. Nor was Lee's mother's unavailability prejudicial. Lee argues his mother's testimony would have refuted J.W.'s claim that she visited her house by explaining the details ofher house that J.W. could not accurately recall. But this testimony would be cumulative. Lee gave extensive testimony refuting J.W.'s claims and describing the details ofhis mother's house. Lee's brother, who also lived at their mother's house, provided similartestimony. Lee's mother was therefore not central to his defense, and her absence did not cause prejudice.

31

### State v. Lee, No. 92475-9
The alleged error did notaffecthis rights attrial. Ittherefore is not amanifest constitutional error under RAP 2.5(a)(3), and weneednot consider it. C. Consistent with 

### Blazina, we remand the case to the trial court for consideration ofLee's ability to payLFOs Lee argues the trial court erred when it imposed LFOs without making an individualized determination ofhis abilityto pay. At sentencing, the court imposed $2,641.69 in LFOs, including $2,041.69 in discretionary costs. The trial court did not considerLee's ability to pay, andLee did not object. HadLee objected, the trial court would have been obligated to consider his present and future ability to pay before imposing the LFOs soughtby the State. 

### See State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166 (1992). Although appellate courts "mayrefuse to review any claim oferrorwhichwas notraised inthetrial court," they are notrequiredto. RAP 2.5(a). In

### Blazina, 182 Wn.2d at 830, we exercised our discretionunderRAP 2.5(a) to "reachthe merits and hold that a trial court has a statutory obligation to make an individualized inquiry into a defendant's current and future ability to paybefore the court imposes LFOs." Consistent with 

### Blazina and the other cases decided since,
weremandto the trial courtfor considerationofLee's abilitytopayLFOs. 

### See, e.g., State v. Duncan, 185 Wn.2d 430, 437-38, 374 P.3d 83 (2016).

32

### State v. Lee, No. 92475-9
IV. CONCLUSION Becausethe State's interest in limitingprejudice andprotecting sexual assault victims outweighs Lee's need to present evidence ofminimal probative value, the trial court did not abuse its discretion when it prevented Lee from specifying that J.W.'spriorfalse accusationwas arape accusation. Thetrial court's accommodation satisfied Lee's right to adequate confrontation. Because no constitutional violation occurred, we do not decide whether the Court ofAppeals erred when it declined to apply constitutional harmless error analysis. The four year delay between Lee's initial arrest and his trial is not a manifest constitutional error warranting review for the first time on appeal. We remand to the trial court for consideration ofLee's ability to pay LFOs.

33

### State v. Lee, No. 92475-9

WE CONCUR:

34State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)

No. 92475-9
GORDON McCLOUD, J. (concurring)-Both the state and federal constitutions guarantee criminal defendants the right to cross-examine adverse witnesses, including by impeaching an adverse witness's credibility. 

### State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002) (citing U.S. CONST. amend. VI; WASH. CONST. art. I,.§ 22); 

### Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); 

### Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); 

### State v. Hudlow, 99 Wn.2d 1, 15,659 P.2d 514 (1983); 

### State v. Parris, 98 Wn.2d 140, 144, 654 P.2d 77 (1982); 

### State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980)). This right is not absolute, however: it protects the defendant's right to present only 

### relevant evidence that is not "so prejudicial as to disruptthe fairness ofthe factfinding prctcess." 

### Hudlow, 99 Wn.2d at 15. Thus, trial courts retain discretion to exclude even relevant evidence ifit is likely to degrade thejury's fact-finding function. 

### Id.; Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 98 L. Ed. 2d 674 (1986).

1State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)



### Inthis case, the State argued, andthe trial court found, only one reason to bar evidence of the victim's (J.W.'s) prior false rape allegation: they believed that Washington's rape shield statute 1

### precluded any evidence from whichthejurycould infer that J.W. had previously engaged in consensual sex with someone other than the defendant. lAVerbatim Report ofProceedings (RP) (Part A, Dec. 18, 2013) at 3 3 ("the way it comes down is the legislature has determined this is important and that that statute shouldtrump the evidencerule"). Thetrial courtthereforepermitted the defense to elicitJ.W. 'stestimony that she hadpreviously made a false allegation to the police but excluded questioning about the nature ofthat allegation-the fact that she alleged rape. It 

### did so because it believed the rape shield law barred testimony that would ultimately reveal her "sexual history"-here, her underage, nonforcible sex with a '"boy.'" Id. 

### at 30, 32.

1Washington's rape shield statute, RCW 9A.44.020(2), provides that [e]vidence 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 inthepast, and whenthepastbehavior is material to the issue ofconsent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue ofconsent to the offense. 2State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)

The Court ofAppeals heldthat the trial court misapplied the rape shield law: "Washington's rape shield statute does not preclude introduction of evidence to show that a victim has made prior false accusations ofrape because it bears on the victim's credibility." State v. Lee, No. 33229-2-III, slip op. at 10 (Wash. Ct. App. Aug. 13, 2015) (unpublished) (emphasis added), http://www.courts.wa.gov/opinions/pdf/ 332292.unp.pdf. As themajoritynotes, and
as the State conceded at oral argument in this court, the State did not assign error to this holding and the scope ofthe rape shield statute is therefore notbefore us inthis appeal. Majority at 11; State v. Lee, No. 92475-9 (Sept. 22, 2016), at 24 min., 25 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. Thus, we assume thatthe rape shield law does not apply to the excludedtestimony inthis case. 2

2 I note that this assumption is consistent with our case law, which holds that the rape shield statute "was created [only] for the purpose ofending an antiquated common law rulethat 'awoman'spromiscuity somehowhad an effect onher [credibility]'" andthus may not be interpreted to bar all evidence ofpast sexual conduct, regardless ofprobative value. State v. Jones, 168 Wn.2d 713, 723, 230 P.3d 576 (2010) (quoting Hudlow, 99 Wn.2d at 8-9). It is also consistent with precedent from other jurisdictions that have addressed the issue ofprior false allegations. E.g., State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004) ("prior false claims ofsexual activity do not fall within the coverage ofour rapeshield law"); Commonwealth v. Bohannon, 376 Mass. 90, 95,378N.E.2d 987 (1978) (prior false rape allegation not barred by state rape shield statute); State v. Boggs, 63 Ohio St. 3d 418,423,588N.E.2d 813 (1992) ("prior false accusations ofrape do not constitute 'sexual activity' ofthe victim" within the meaning ofstate's rape shield law); Covington v. State, 703 P.2d 436, 442 (Alaska App. 1985) (on remand, defendant must be permitted to argue 3State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)



### Because we proceed from that assumption, the only questions before us are whetherthe trial court's erroneous limitation on cross-examinationviolatedthe right of confrontation and, if so, whether this error was harmless. I conclude that the
answer to both questions is yes. I therefore disagree with the majority's decision to approvewhatthe trial courtdid inthis case-barringevidencethatJ.W. made aprior false allegation ofrape 

### violated Donald Lee's right ofconfrontation and was thus
an error ofconstitutional magnitude. However, because I conclude that this error
was harmless beyond a reasonable doubt, I concur in the decision to affirm Lee's convictions. 3

that alleged victim's prior accusations of sexual abuse by others, were false; approving reasoning from other courts that rape shield laws do not bar such evidence); State v. LeClair, 83 Or. App. 121, 126-27, 730 P.2d 609 (1986) ("[e]vidence ofpreviousfalse accusations by an alleged victim is not evidence ofpast sexual behavior within the meaning of the Rape Shield Law" (citing Or. Evid. Code 412)); see also Clinebell v. Commonwealth, 235 Va. 319,324,368 S.E.2d 263 (1988) (collecting "sex offense cases" holding that "evidence ofprior false accusations is admissible to impeach the complaining witness' credibility or as substantive evidence tending to prove thatthe instant offense did not occur").
3 I also concur in the majority's analysis ofthe other two issues presented. 4State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)

ANALYSIS I. The trial court made a constitutional error by excluding evidence that the alleged victim hadpreviously made a false allegation ofrape When a trial court limits witness impeachment to protect the fact-finding process-as the trial courtpurportedto do by applying the rape shield statute inthis
case-we apply the three-part 

### Hudlow test to determine whether that limitation violates the constitutional right of confrontation. 

### Darden, 145 Wn.2d at 621-23. This test asks (1) whether the excluded evidence was relevant, (2) whether that evidence was so inflammatory that it would have compromised the fairness ofthe trial itself, and (3) whether any such prejudice outweighed the defendant's interest inadmittingrelevantevidencein supportofhistheory. 

### Id. (citing

### Hudlow, 99 Wn.2d at 15).In this case, the excluded testimony was clearly relevant. The majority acknowledges this relevance in a footnote but-apparently rewriting the first 

### Hudlow prong-disregards itbecause it concludes that the testimony had "minimal probative value." Majority at 15. To support this analysis, the majority relies on two cases addressing 

### irrelevant evidence: 

### State v. Harris, 97 Wn. App. 865, 989 P.2d 553 (1999), and 

### State v. Demos, 94 Wn.2d 733, 619 P.2d 968 (1980). 

### Harris held that a prior rape accusation is irrelevant to credibility unless the defendant can demonstrate that it was actually made 

### atall. 97 Wn. App. at 872. 

### Demos held that 5State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)



### a prior accusation is not relevant unless it is demonstrablyfalse. 

### 94 Wn.2d at 736. In this case, the existence and the falsity ofthe prior allegation were not in dispute, and, for obvious reasons, this makes all the difference-thus,the majority's reliance
onHarris 

### andDemos 

### is unavailing.4 

### Because J.

### W. 's prior false allegation was relevant to Lee's defense, it could not be excluded unless the State demonstrated "a compelling interest to exclude prejudicial or inflammatory evidence." Darden, 

### 145 Wn.2d at 621 (citing Hudlow, 

### 99 Wn.2d at 16). Here, the State can'tmeetthatburdenbecause ithasnot articulated any interest at all 

### in excluding the evidence. On the contrary, it has conceded that the exclusion was evidentiary error. Wash. Supreme Court oral argument, supra, 

### at

4 And, contrary to the majority's assertion, nothing in Harris indicates that prior false rape allegations must relate to some "unique circumstance[]" of a subsequent rape case in order to be relevant or sufficiently probative. Majority at 18. In Harris, the defendant was charged with forcible rape; he admitted to sexual intercourse with the accuser but argued that she consented. 97 Wn. App. at 872. However, he also admitted to asking the victim several times after the intercourse whether she planned to tell her father that the defendant raped her. Id. At trial, the defendant offered disputed testimony by a thirdparty thatthe victim had once made a false rape allegation against anotherperson. Id. The trial court acknowledged that the false allegation would provide an innocent explanation for the defendant's questions if the defendant knew about that false allegation whenhe askedthem. Id. Butit excludedthe testimonybecausethe defendant did notclaim any such knowledge and instead sought to admit the testimony solely for impeachment purposes-a purpose for which extrinsic evidence was inadmissible in that case. Id. at 872-73 (where complaining witness denied ever making a prior rape allegation, third party's testimony that she made it was inadmissible "extrinsic evidence" on credibility under ER 608). This ruling on impeachment evidence was a straightforward application ofER 608; it had nothing to do with the "unique circumstances" ofthe case. 6State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)



### 24 min., 25 sec. Since the State has articulated no interest in excluding evidence of J.W. 's prior false rape allegation, there is nothing to weigh against Lee's right to presentrelevant evidence in his defense-our inquiry must endhere. The trial court erred by excluding evidence that J.W. had previously made a false accusation of rape. 5 

### The majority avoids this holding only by adopting two deeply flawed conclusions. First, the majority makes the troubling assertion that it is "improper" for a defendant to use an accuser's prior false rape allegation as impeachment evidence. Majority at 22 ("Like evidence ofpriorbad acts, evidence ofa false rape accusation asks thejuryto make the improperinferencethatbecause a complainingwitness lied before, she must also be lying now." (emphasis added)). But there is nothing improper about impeaching a complaining witness with evidence that he or she has
ahistory ofmaking false accusations-thatis why courts universally admit evidence of prior accusations that are demonstrably false. See supra note 2. (And it is

5I agreewiththe majoritythat J.W.'sprior false allegation wouldbe more probative if it "demonstrate[d] a specific bias or motive to lie" in this case or if it were directly analogous to the current allegation (i.e., ifJ.W. had previously alleged statutory instead of forcible rape). Majority at 15-16. But this makes no difference if the State offers no justificationfor excludingtheprior false allegation evidence. See Hudlow, 99 Wn.2d at 16 (even if evidence has minimal relevance, State must offer "compelling" interest in exclusion). 7State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)


### presumably why the trial court admitted evidence that J.W. made a prior false accusation in this case.) Contrary to the majority's reasoning, evidence is not "prejudicial" underHudlow

### justbecause it is impeaching. See Wilson 

### v. OlivettiN. Am., Inc., 

### 85 Wn. App. 804, 814, 934 P.2d 1231 (1997) ("[e]vidence is not inadmissibleunderER403 simplybecause it is detrimental orharmful to the interest ofthe party opposing its admission; it

### is prejudicial only ifithas the capacityto skew the truth-finding process" (citing Hudlow, 

### 99 Wn.2d at 12-13)).6 

### Second, eventhoughthe majority accepts the State's concessionthatthe rape shield statute did not apply here, it also holds that the nature 

### ofJ.W.'s prior false allegation was properly excluded because "the prejudice from [admitting] J.W.'s false rape allegation is similar to the prejudice caused by [admitting] prior sexual acts." Majority at 23. This attempt to rehabilitate the State's case is both confusing-(did the rape shield law apply or did it not?)-and totally unsupported

6 The majority's reasoning on this point depends on a misreading of Hudlow. Compare majority at 23 ("a prior false rape accusation [is unduly prejudicial because it] may 'distract and inflamejurors"' (quoting Hudlow, 99 Wn.2d at 16)), with Hudlow, 99 Wn.2d at 16 ("that state's interest in applying the rape shieldstatute is to bar evidence [of minimally relevant prior sexual history] that may distract and inflamejurors" (emphasis added)). 8State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)
by precedent, which overwhelmingly distinguishes between prior sexual acts (inadmissible to impeach) and prior false allegations (admissible to impeach).7 Indeed, the majority's theory is internally contradictory. The majority holds thatjuries shouldnotbepermittedto inferthat "Oust] because a complainingwitness liedbefore, she must also be lying now." Majority at 22. Yet it also approves ofthe disputed ruling in this case, limiting cross-examination to the fact rather than the details ofJ.W.'sprior false allegation, because this "accommodation allowedLeeto attack J.W.'s credibility" by forcing herto admitto a previous lie. Id. at 25. The majority's confrontation clause analysis departs from well-established precedent, violates constitutional protections, and sows confusion. I therefore cannotjoin that analysis. I would hold that the trial court erred by barring crossexamination onthe nature ofJ.W.'s prior false allegation.

7See Jones, 168 Wn.2d at 723 (rape shield statute "was aimed at ending the misuse ofprior sexual conduct evidence, so that a woman's general reputation for truthfulness could not be impeached because of prior sexual behavior" (emphasis added) (quoting Hudlow, 99 Wn.2d at 8-9)); Boggs, 63 Ohio St. 3d at 423 ("prior false accusations ofrape do not constitute 'sexual activity' ofthe victim" within the meaning ofstate's rape shield law); LeClair, 83 Or. App. at 126-27 ("[e]vidence ofpreviousfalse accusations by an alleged victim is not evidence ofpast sexual behavior within the meaning ofthe Rape Shield Law"). 9State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)



### II. The trial court's error was harmless beyond a reasonable doubt As noted above, trial courts retain discretion, underthe SixthAmendment and article I, § 22, to limit cross-examination so as to mitigate problems like confusion and unfair prejudice. 

### Arsdall, 475 U.S. at 679; 

### Jones, 168 Wn.2d at 723-24. But the 

### Hudlow test is the standard by which we determine whether a trial court's exercise ofthat discretion complies with that constitutional protection. 

### Jones, 168 Wn.2dat 723-24 (evidence of"minimalrelevance" maybe excluded, consistentwith the confrontation clause, only to further '"compelling"' state interest in excluding prejudicial or inflammatory evidence (quoting 

### Hudlow, 99 Wn.2d at 16)); 

### Hudlow, 99 Wn.2d at 14-16 (adopting "compelling state interest" standard for determining whether "minimally relevant" evidence may be excluded consistent with Sixth Amendment and article I, section 22). Thus, a violation ofthe

### Hudlow standard is a constitutional error. 

### Hudlow, 99 Wn.2d at 14-16; 

### see also State v. McDaniel, 83 Wn. App. 179, 186-88, 920 P.2d 1218 (1996) (finding trial court abused its discretion by limiting cross-examination but affirming conviction under constitutionalharmless errorreview). Itherefore apply constitutionalharmless error review to determine whether this error requires reversal. Under constitutional harmless error review, reversal is notrequired when it is clear that the error was harmless beyond a reasonable doubt. 

### State v. Barry, 183 10State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)

Wn.2d 297, 302-03, 352 P.3d 161 (2015) (quoting Chapman v. California, 386 U.S. 16, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). This is a high standard on which the State bears the burden, but it can be met where there is overwhelming evidence ofthe defendant's guiltthat is untainted by the error. Id. at 303 (citing State v. Nist, 77 Wn.2d 227, 233-34, 461 P.2d 322 (1969) (citing Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969)); State v. Coristine, 177 Wn.2d 370,380,300P.3d400 (2013) (citing Chapman, 386 U.S. at 24)). The Statehas met that standard here. Themostincriminatingpiece ofevidence admitted atLee'strialwasthe letter, which he admitted writing, addressed to "My friend/love," referencing sexual intercourse with the recipient, and was signed with the letter "R" as in "Rick." Ex. 1; lB RP (Part B, Dec. 19, 2013) at 305. J.W. had the letter in her possession and gave it to the police after they began investigating the alleged rape. lA RP (Dec. 18, 2013) at 90. She testified that Lee gave it to her in his car one afternoon when he picked herup from high school. Id. at 85. Lee describedthe letter as a "fantasy" and denied either addressing it or giving it to J.W., but he had no explanation for how it came into J.W.'s possession or why it was signed with the initial of the pseudonym he used with her. lB RP (Part B, Dec. 19, 2013) at 273-74.

11State v. Lee (Donald Ormand), No. 92475-9 

### (Gordon McCloud, J., 

### concurring)

Nor did Lee have any explanation for how J.W.-whom he claimed only to have spoken to once for about five minutes, on the street-knew details about the inside ofhis mother's and ex-girlfriend's homes. Id. 

### at 261, 266-75. Appellate defense counsel makes much ofthe fact that J.W. could not recall certain unique features ofthese homes, and ofthe fact that J.W. testified Lee had tattoos when he did not have any at the time oftrial and claimed never to have had any. Suppl. Br. ofPet'r at 16. But J.W. testified that she was inside each home only once and saw Lee shirtless only once. lB RP (Part B, Dec. 19, 2013) at 66-75. And all ofthese things occurred about five years prior to trial. These minor imperfections in J.W.'s testimony do not meaningfully diminish the prosecution's theory or evidence. The untainted evidence overwhelmingly supportedLee's convictions. Itherefore concur in the decision to affirm the convictions. CONCLUSION The trial court erred by excluding evidence that the complaining witness had previously made a false allegation of rape. This error was of constitutional magnitude. However, because the trial court's error was harmless beyond a reasonable doubt in light ofthe overwhelming untainted evidence, I concur in the majority's decision to affirm the convictions.

12State v. Lee (Donald Ormand), No. 92475-9 (Gordon McCloud, J., concurring)

13 

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