### FILED MARCH 6, 2014 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 31289-5-III Respondent, ) ) 

### v. ) ) STEPHENJASPERHOSSZU, ) UNPUBLISHED OPINION ) Appellant. ) KORSMO, C.J.

- This appeal challenges the trial court's application ofthe rape shield statute, RCW 9A.44.020, to excludeproposedtestimony concerningthe victim's relationship with herboyfriend. We agree with the trial courtthatthe evidence was not relevant and affirm StephenHosszu'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 presentedto thejury. Mr. Hosszu testified attrial that he went to S.V.'shouse to deliver some pens andpencils for her school children. Hewas invited into the house. Upon setting down the items, hepointed outan unusual flat pen. S.V. commentedthat it looked like her boyfriend'spenis. Mr.

### No. 31289-5-II1 

### State v. 

### Hosszu
Hosszu then put his hand on her scapula and asked, "isthat what you missed." She responded in a wanting way, "yes." He then put his hand down onher vagina without penetrating her. He thenpulledhis hand away suddenly, feeling that the contact was not right. He leftthe house. S.V. described the incident very differently. She was makingjam in her kitchen when Mr. Hosszu unexpectedly entered through herpartially open garage. She was wearing a swimsuitunder 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 hervagina. He told herthat "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 requestto "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 of the incident, Mr. and Mrs. Hosszu allegedly hadbeen involved in a sexually-oriented conversation with S.V.2 Aware that the defense wanted to question S.V. andpresenttestimony about the conversation, the prosecutor sought a

1The offer ofproofat the pretrial hearing indicated it had been several days before the incident, butthe defense asserted attrial that it occurred the day before. 2The prosecutorindicatedtothe courtthat S.V. denied the conversation took place. 2

### No. 31289-5-111 State v. Hosszu hearing under the rape shield statute. The defense made an offer ofproofto thejudge at
a pretrial hearing, indicating that the defendant's wife-andthe defendant ifhe chose to testify-would describe the conversation with S.V. The court summarizedthe 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 herhome; 

## • SV waswearing a bathrobe and commented several times that she was nude beneath the robe; 

# • SV complained that herjawhurtbecause ofhaving engaged in protracted oral sex with herboyfriend; 

# • SV commented regarding notbeing sexually fulfilled because ofher boyfriend's dislike for ED3 medication; 

# • SVrepeatedly opened and closed herbathrobe but did not expose her breasts or genitalia; 

# • SV hugged Defendant's wife, saying she enjoyed having someone hug herbreasts. Clerk's Papers at 

### 25. After considering the offer ofproof, the court ruled that the evidence was irrelevantto the issue ofconsent. Although the evidence suggested thatthe victim was sexually open, it did not suggestthat she was seeking sexual attention from the defendant
or anyone else. Determining thatthe evidence was irrelevant, the court did not further address the requirements ofthe rape shield statute.

3Erectile Dysfunction 

### 3No. 3 1 289-5-III State v. Hosszu
The defense corrected the date ofthe alleged conversation for the trialjudge, but did not ask him to reconsiderthe pretrial ruling. The defendant testified to the incident as previously described, and his wife corroboratedhis claim that S.V. opened the front door to let him into her house. Defense counsel argued the case to thejury 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. Thejury, 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. Theprinciples governing ourreview ofthese arguments are well settled. ER401 provides in partthat evidence is relevant ifit has "any tendency to make the existence of any fact that is ofconsequence to the determination ofthe action more probable or less probable." Subject to limitations imposed by otherrules or constitutional principles, relevant evidence is admissible. ER 402. ER403 authorizes trial courts to exclude otherwise relevant evidence iftheprobative value ofthe evidence is significantly outweighed by the danger ofunfairprejudice orother interference with the factfinding function ofthejury. Carson v. Fine, 123 Wn.2d 206,222-23, 867 P.2d 610 (1994). A 4No. 31289-5-III State v. Hosszu
trialjudge's decision to admit orexclude evidence under these provisions is reviewed for abuse ofdiscretion. 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), ourrape shield statute, provides: Evidence ofthe victim'spast 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 ofcredibility and is inadmissible to prove the victim's consent except as provided in subsection (3) ofthis section, but when the perpetrator and the victim have engaged in sexual intercourse with each otherin the past, and when the pastbehavior is material to the issue ofconsent, evidence concerning the past behaviorbetween the perpetrator and the victim may be admissible on the issue ofconsent to the offense. Subsection (3) permits evidence ofpast sexual behaviorto 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 ofthe information, the court holds a hearing and concludes the offer ofproofis sufficient, and the court finds the evidence relevant, not unduly prejudicial, and exclusion would deny substantialjusticeto the accused. See RCW 9A.44.020(3). Finally, in some circumstances the constitution requires that state evidentiary rules give way to the constitutional righttopresent 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


### 5No. 31289-5-III State v. Hosszu
irrelevant evidence. ld. at 720. Ifa 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 notedthat the purpose ofthe statute was to overturn the fonner common law rule that evidence ofpromiscuity or nonchastity was evidence of
a woman's lack ofcredibility, but not so for a man. 

### ld. at 8. Another fallacy ofthe
common law rule was the beliefthat 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 ofER401." 

### ld. Instead, the court suggested that past patterns ofbehavior might be relevant ifsimilar 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 trialjudgehas discretion to exclude the evidence ifitpresented a danger ofprejudicing the truthfinding process. 

### Id. at 12-14. However, the defendant's constitutional right to present evidence could only be overcome by the showing ofa "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 

### 6No. 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. Thepretrial judge correctly concluded that the evidence ofthe prior conversation did notmake more likely the possibility that the victim had consented to being sexually violated by the defendant. Nothing in the offer ofproofestablished 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 ofinference is not relevant evidence under ER401. 

### ld. The trial courtjudgeproperly excluded the evidence as irrelevant. Forthe same reason, there was no violation ofthe 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 ofthe proffered evidence, Mr. Hosszu's constitutional right to present a defense was not impinged. 

### ld. Forthis reason, too, his argument fails.4
4We do not address whether any error in exclusion ofthis 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 needreach. 

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# ! No. 31289-5-III 

### State v. 

### Hosszu
The convictions are affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public recordpursuant to RCW 2.06.040.

Korsmo, C.J. WE CONCUR:

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