FILED 


MARCH 6, 2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) 

) No. 31289-5-III 

Respondent, ) 

) 

v. ) 

) 

STEPHEN JASPER HOSSZU, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

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

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

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

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

degree rape. 

FACTS 

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

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

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

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

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

State v. Hosszu 

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

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

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

right. He left the house. 

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

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

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

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

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

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

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

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

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

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

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

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

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

1 The offer of proof at the pretrial hearing indicated it had been several days before 

the incident, but the defense asserted at trial that it occurred the day before. 

2 The prosecutor indicated to the court that S.V. denied the conversation took 

place. 

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No. 31289-5-111 

State v. Hosszu 

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

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

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

proof: 

• Defendant and his wife visited their neighbor, SV (the alleged 

victim), a few days before the charged incident; 

• SV invited them into her home; 

• SV was wearing a bathrobe and commented several times that she 

was nude beneath the robe; 

• SV complained that her jaw hurt because of having engaged in 

protracted oral sex with her boyfriend; 

• SV commented regarding not being sexually fulfilled because of her 

boyfriend's dislike for ED3 medication; 

• SV repeatedly opened and closed her bathrobe but did not expose 

her breasts or genitalia; 

• SV hugged Defendant's wife, saying she enjoyed having someone 

hug her breasts. 

Clerk's Papers at 25. 

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

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

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

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

address the requirements ofthe rape shield statute. 

3 Erectile Dysfunction 

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No. 3 1 289-5-III 

State v. Hosszu 

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

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

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

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

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

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

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

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

ANALYSIS 

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

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

contentions and will address them as one. 

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

provides in part that evidence is relevant ifit has "any tendency to make the existence of 

any fact that is of consequence to the determination of the action more probable or less 

probable." Subject to limitations imposed by other rules or constitutional principles, 

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

otherwise relevant evidence ifthe probative value ofthe evidence is significantly 

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

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

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No. 31289-5-III 

State v. Hosszu 

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

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

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

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

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

Evidence of the victim's past sexual behavior including but not limited to 

the victim's marital history, divorce history, or general reputation for 

promiscuity, nonchastity, or sexual mores contrary to community standards 

is inadmissible on the issue of credibility and is inadmissible to prove the 

victim's consent except as provided in subsection (3) of this section, but 

when the perpetrator and the victim have engaged in sexual intercourse 

with each other in the past, and when the past behavior is material to the 

issue of consent, evidence concerning the past behavior between the 

perpetrator and the victim may be admissible on the issue of consent to the 

offense. 

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

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

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

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

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

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

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

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

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

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No. 31289-5-III 

State v. Hosszu 

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

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

721. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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No. 31289-5-II1 

State v. Hosszu 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4 We do not address whether any error in exclusion of this evidence effectively 

prevented Mr. Hosszu from presenting his consent defense. He was able to testify and 

argue that S.V. wanted him to touch her; whether the conversation evidence was 

necessary to provide context for his testimony is not a question we need reach. 

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No. 31289-5-III 

State v. Hosszu 

The convictions are affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Korsmo, C.J. 

WE CONCUR: 

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