IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

NATHAN B. NAVE,

a/k/a NATHAN BRICK NAVE,

Appellant.

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No. 36488-7-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Nathan Nave appeals after a jury found him guilty of 

second degree rape, third degree rape of a child, and third degree child molestation. The 

jury also made a special finding for each offense that it included the aggravating 

circumstance of an ongoing pattern of abuse of the same victim under 18 years old. Mr. 

Nave raises several issues on appeal. We remand to strike the criminal filing fee, but 

otherwise affirm. 

FILED

JULY 16, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36488-7-III

State v. Nave

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FACTS

Danielle Valentine gave birth to I.V.1in June 2002. Ms. Valentine began dating 

Nathan Nave when I.V. was 5. The two had twin girls and eventually married. The 

family lived in a two-level house. I.V.’s bedroom was downstairs next to a living room

and the other bedrooms were upstairs.

Once when I.V. was 11, she and Mr. Nave were watching a movie. I.V. fell asleep

and, when she awoke, Mr. Nave was touching her under her shorts on her upper thigh. At 

the time, I.V. thought he was just massaging her legs, but was alarmed because the 

touching was so far up on her leg.

About two years later, I.V. fell asleep watching a movie in the living room on the 

opposite side of a couch from Mr. Nave. When she awoke, Mr. Nave was touching her 

vagina, but above her underwear. I.V. tried to go to her room, but Mr. Nave insisted she 

stay. He pulled her arm, but she pulled away and went to her bedroom. She did not 

disclose this incident to her mother, but she stopped watching movies with Mr. Nave. 

 

1 To protect the privacy interests of I.V., we identify her only through the use of 

initials. General Order of Division III, In Re the Use of Initials or Pseudonyms for Child 

Victims or Child Witnesses (Wash. Ct. App. June 18, 2012), 

http://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=

2012_001&div=III.
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State v. Nave

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The next incident occurred in early 2017. I.V. was asleep in her bedroom, facing 

the wall, and was awakened by someone touching her. The person, whom I.V. later 

testified as Mr. Nave, massaged her legs, rubbed her back, and touched her vagina. This 

occurred for 15 to 20 minutes, and I.V. was terrified. The person penetrated I.V.’s vagina

digitally. Again, I.V. did not disclose this to her mother.

After that incident, the sexual abuse continued three or four times per week. Each 

time, I.V. faced the wall and often covered her head with a blanket because she did not 

want Mr. Nave to know she was awake. I.V. never saw the person who repeatedly abused 

her during this time nor did the person ever speak to her during the abuse. 

In the midst of this abuse, Mr. Nave once acknowledged he had come into her 

room the prior night. While driving I.V. to school, Mr. Nave said, “[A]bout last night, 

one of three things could happen. One, you don’t tell anyone and I keep doing it; two, 

you don’t tell anyone and I stop; three, you feel like you have to tell someone.” Report of 

Proceedings (RP) at 63. I.V. told him she would not tell anyone and for him to stop. Mr. 

Nave explained that if she told someone, the family would lose their home. Despite I.V.’s 

request that he stop, Mr. Nave continued sexually abusing I.V. 

On May 12, 2017, I.V. told her mother that Mr. Nave had raped her. Her mother 

confronted Mr. Nave and told him to leave the house and go to his mother’s house 
No. 36488-7-III

State v. Nave

4

because she needed to figure things out. Mr. Nave then went to his mother’s house. Mr. 

Nave quit his job, sold his car, and traveled to New York the following day. 

On May 31, 2017, the State charged Mr. Nave with one count of rape in the second 

degree, one count of rape of a child in the third degree, and one count of child molestation 

in the third degree. The charges included a special allegation of aggravating 

circumstances for each count, alleging that the offense was part of an ongoing pattern of 

abuse of the same victim under 18 years old. Federal marshals later served an arrest 

warrant on Mr. Nave in Idaho Falls, Idaho, where he had been staying with his cousin.

Pretrial motions

Prior to trial, the State filed a motion to allow evidence that Mr. Nave had touched 

I.V. when she was 11 and 13. The State argued the evidence was needed to prove the 

charged aggravator. Mr. Nave argued the prior acts were not criminal and nothing 

happened since the 2013 incident, thus making the acts irrelevant. The trial court granted 

the State’s motion, ruling the evidence could be admitted under ER 404(b) for the 

purpose of showing lack of accident, mistake, or intent, and to show an ongoing pattern 

of abuse.

The State also filed a motion to exclude evidence that I.V.’s cousin had been 

sexually abused by a family member. Mr. Nave responded that I.V.’s mother “knows 
No. 36488-7-III

State v. Nave

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[that I.V.] knew of the allegations [yet she] was somewhat equivocal [about] the timing, 

but fully admitted that it could have been as earl[y] as a month before [I.V.] made her . . . 

disclosures.” RP at 21 (emphasis added). Mr. Nave argued the evidence was important 

to explain to the jury why I.V. would disclose contrived accusations in May 2017. The 

State responded that Mr. Nave had no basis to say the cousin’s allegations were similar 

and that Mr. Nave had not made a sufficient offer of proof. The trial court determined 

that Mr. Nave’s offer of proof was too nebulous. The court added that it would 

reconsider its ruling if Mr. Nave could establish the necessary link between I.V.’s and her 

cousin’s allegations outside the presence of the jury before cross-examining I.V. 

Mr. Nave filed a motion to exclude evidence he went to New York after being 

confronted by Ms. Valentine. He also sought to exclude evidence he attempted to commit 

suicide. The trial court granted the motion in part, excluding evidence of his suicide 

attempt, but reserving its ruling on evidence of flight. 

Trial testimony of Mr. Nave

The State presented its evidence to the jury. Mr. Nave elected to testify in his own 

defense. He denied ever touching I.V. inappropriately. He also testified that after being 

released on bond in Idaho, he returned to Washington as quickly as he could and 

presented himself to the court. 
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State v. Nave

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During cross-examination, the State began asking questions that Mr. Nave 

objected to as beyond the scope of Mr. Nave’s direct testimony. The trial court excused 

the jury and heard arguments from both sides. 

The State argued it was allowed to broadly question Mr. Nave based on his general 

denial that he had ever sexually abused I.V. The trial court agreed. Mr. Nave added that 

if the State questioned him about traveling to New York, he would object. The State 

argued it was entitled to question Mr. Nave about traveling to New York to counter his 

testimony that he quickly presented himself to the court. The trial court agreed.

The jury returned, and the State inquired into these areas. Mr. Nave confirmed he 

went to his mother’s house after he was told to leave his house. He also confirmed he had 

two young biological daughters who continued to live in the house, was a father figure to 

I.V., yet quit going to work, placed his car for sale, and the next day traveled to New 

York. 

Verdict and sentencing

The jury found Mr. Nave guilty of all three counts and answered yes to the special 

verdicts for the pattern of abuse aggravator charged on each count. The court sentenced 

Mr. Nave to 194 months to life confinement. The court imposed $800 in legal financial 

obligations, including $200 for the criminal filing fee. 
No. 36488-7-III

State v. Nave

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Mr. Nave timely appealed. 

ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Mr. Nave contends there was insufficient evidence to sustain his convictions. He 

argues the statements made by I.V. were inconsistent, and she could not identify him as 

her attacker. He further argues that his statement/confession to her while driving was not 

sufficient to convict him under principles of corpus delicti. We disagree. 

Evidence is sufficient to support a guilty verdict if any rational trier of fact, 

viewing the evidence in the light most favorable to the State, could find the elements of 

the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 

P.2d 1068 (1992). When a defendant challenges the sufficiency of the evidence, he or she

admits the truth of all of the State’s evidence. State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 

237 (2010). 

Mr. Nave first argues I.V.’s statements were inconsistent and that she could not 

have identified him as her abuser. He emphasizes that I.V. testified she never saw her 

abuser and the abuser never spoke to her. 

Identity of the defendant is one of the elements all crimes share that must be 

proved beyond a reasonable doubt. State v. Thomson, 70 Wn. App. 200, 211, 852 P.2d 
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State v. Nave

8

1104 (1993), aff’d, 123 Wn.2d 877, 872 P.2d 1097 (1994). Where testimony of 

identification is unclear or inconsistent, the uncertainty only goes to the testimony’s 

weight, not its admissibility. State v. Vaughn, 101 Wn.2d 604, 610, 682 P.2d 878 (1984). 

Issues of witness credibility are matters exclusively reserved for the finder of fact and this 

court will not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 

970 (2004). 

Here, I.V. testified she always faced the wall when her abuser was touching her 

and her abuser never spoke to her. However, the jury had to weigh that fact against other 

facts supporting I.V.’s ability to identify Mr. Nave as her abuser. First, Mr. Nave had 

touched I.V. inappropriately while she slept before. Second, the touching was sexual and 

ongoing multiple times per week for several weeks. Mr. Nave was the only male in the 

house, and he had unfettered access to I.V.’s basement bedroom. Not even Mr. Nave 

argued that I.V.’s abuser was one of her younger sisters or her mother, all of whom slept 

upstairs. Third, and most important, Mr. Nave admitted he had abused her on one 

occasion when he gave her various choices of whether to report the abuse or not. Based 

on these facts, the jury was given the opportunity to weigh I.V.’s credibility and decided 

her identification of Mr. Nave and her accusations against him were credible. We will 

not disturb the jury’s credibility findings.
No. 36488-7-III

State v. Nave

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Mr. Nave also argues that his admission to I.V. is insufficient to convict him under 

the principles of corpus delicti. The State argues that Mr. Nave did not properly assign 

error to this issue. We use our discretion to review the issue because it is simpler to 

refute Mr. Nave’s argument than to explain whether the argument is reviewable under 

RAP 2.5(a).

Corpus delicti principles protect a defendant from being convicted through false 

confessions by requiring the State to show evidence of the “body of the crime.” State v. 

Aten, 130 Wn.2d 640, 655-57, 927 P.2d 210 (1996). Corpus delicti involves two 

elements: (1) an injury or loss (2) caused by someone’s criminal act. State v. CardenasFlores, 189 Wn.2d 243, 263, 401 P.3d 19 (2017). 

Here, I.V. testified she was sexually assaulted over a period of several weeks by a 

person entering her room at night while she slept. This was sufficient evidence of injury 

caused by someone’s criminal act.2 

We conclude the State presented sufficient evidence for a reasonable trier of fact 

to find beyond a reasonable doubt that Mr. Nave was the person who sexually abused I.V. 

in the spring of 2017.

 

2 We note that “identity” is not an element of corpus delicti. See Cardenas-Flores, 

189 Wn.2d at 264 n.9. Nevertheless, as mentioned previously, there was substantial 

evidence that Mr. Nave was the person who repeatedly abused I.V. in the spring of 2017. 
No. 36488-7-III

State v. Nave

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B. EVIDENCE OF MR. NAVE’S FLIGHT

Mr. Nave next contends the trial court erred by allowing the State to present 

evidence he traveled to New York following Ms. Valentine confronting him about I.V.’s 

allegations. He argues evidence of flight was minimally relevant and the prejudice 

outweighed whatever relevance there was. We disagree.

When reviewing a trial court’s evidentiary ruling, this court reviews for abuse of 

discretion. Peralta v. State, 187 Wn.2d 888, 894, 389 P.3d 596 (2017). Abuse of 

discretion is only found where the trial court’s decision is “‘manifestly unreasonable, or 

exercised on untenable grounds, or for untenable reasons.’” Ugolini v. Ugolini, 11 Wn. 

App. 2d 443, 446, 453 P.3d 1027 (2019) (internal quotation marks omitted) (quoting State 

v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009)). 

Under the rules of evidence, evidence is relevant if it 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 than it would be without the evidence.” ER 401. Evidence of a 

defendant’s flight is generally admissible as circumstantial evidence in determining guilt. 

State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965). The principle behind this is 

that a defendant’s flight is an instinctive or impulsive reaction to a consciousness of guilt 

or is a deliberate action made in order to avoid prosecution. Id. Nevertheless, the 
No. 36488-7-III

State v. Nave

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relationship between flight and the inference of guilt “must be substantial and sufficient 

to create a reasonable and substantive inference that the defendant’s departure from the 

scene of difficulty was an instinctive or impulsive reaction to a consciousness of guilt or 

was a deliberate effort to evade arrest and prosecution.” Id. at 112-13.

Mr. Nave first argues the evidence he traveled to New York is minimally probative 

because it does not show an impulsive or instinctive reaction to a consciousness of guilt. 

He argues he did not immediately flee from the scene as is the case for most defendants in 

flight, but instead flew to New York the following day. 

We have found evidence of flight to be admissible even when the defendant’s 

flight did not occur until one week after the commission of the crime. State v. Bryant, 73 

Wn.2d 168, 172, 437 P.2d 398 (1968). Here, Mr. Nave knew that I.V. told her mother he 

had raped her and knew she might contact law enforcement. Mr. Nave went to his 

mother’s house, quit his job, sold his car, and the next day traveled to New York. 

Mr. Nave argues he did these things because he was told to leave the house. But a 

trier of fact could reasonably disagree and find that Mr. Nave took these extreme steps 

because he knew that I.V.’s accusations were true and he sought to avoid arrest and 

prosecution. 
No. 36488-7-III

State v. Nave

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Mr. Nave next argues the prejudicial effect of evidence of flight substantially 

outweighed its probative value. But ER 403 does not preclude prejudicial evidence, not 

even unduly prejudicial evidence. Instead, ER 403 precludes “unfair[ly]” prejudicial 

evidence. Mr. Nave does not explain why evidence of flight was unfairly prejudicial. To 

the extent his unfair prejudice argument is tied to his assertion he traveled to New York 

because he was told to leave his house, we are unpersuaded. Mr. Nave left his house as 

instructed and went to his mother’s house. He never explained why he took the additional

steps of quitting his job, selling his car, and traveling across the country. Here, there was 

a reasonable and substantial inference that Mr. Nave did these things as an impulsive 

reaction to evade arrest and prosecution.

We conclude the trial court did not abuse its discretion by allowing evidence of 

Mr. Nave’s flight—quitting his job, selling his car, and traveling to New York. 

C. EVIDENCE OF MR. NAVE’S PRIOR ABUSE OF I.V.

Mr. Nave contends the trial court abused its discretion by allowing the State to 

present evidence he touched I.V. when she was 11 and 13 years old. He argues the prior 

acts were not criminal and, therefore, not relevant. He also argues whatever minimal 

probative value the evidence had was outweighed by the unfair prejudice the evidence 

had on the jury. We disagree.
No. 36488-7-III

State v. Nave

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Prior bad acts cannot be used to show propensity to commit a crime, but they can 

be used for other reasons such as to establish motive, opportunity, intent, preparation, 

plan, knowledge, identity, or absence of mistake or accident. ER 404(b).

The State charged Mr. Nave with a special aggravator that the attacks against I.V. 

were part of a pattern of abuse against her and that she was under 18 years old. Evidence 

of prior abuse would have a tendency to make proof of this aggravator more probable. 

Additionally, identity was a key issue at trial and remains a key issue on appeal. 

Although the trial court did not cite “identity” as a reason for admitting the prior 

uncharged acts, we may rely on it to affirm.3 Evidence that Mr. Nave inappropriately 

touched I.V. while she slept in the basement when she was 11 and 13 years old is relevant 

to who touched I.V. numerous times for several weeks while she slept in the basement 

when she was 14 years old. 

Mr. Nave first argues the prior actions were not overtly sexual and, therefore, are 

not relevant to establish a pattern of abuse. In isolation, the first touching that occurred 

high on I.V.’s thigh while she slept might be innocent. But two years later, Mr. Nave 

 

3

“[W]e consider bases mentioned by the trial court as well as other proper bases 

on which the trial court’s admission of evidence may be sustained.” State v. Powell, 126 

Wn.2d 244, 259, 893 P.2d 615 (1995); see also Gilmore v. Jefferson County Pub. Transp. 

Benefit Area, 190 Wn.2d 483, 498, 415 P.3d 212 (2018) (trial court’s evidentiary ruling 

will not be disturbed on appeal if it is sustainable on alternative grounds).
No. 36488-7-III

State v. Nave

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touched I.V.’s vagina while she slept, albeit over her underwear. Taken together, a 

reasonable trier of fact could find that both touchings were part of a pattern of abuse. 

Mr. Nave next argues that the probative value of the prior touchings were 

minimally relevant and substantially outweighed by their unfair prejudice. But because 

the State was required to prove identity, we cannot conclude the trial court abused its 

discretion. This is especially true given the similarity of the events. The prior events and 

the charged events occurred in the basement and the prior events and the charged events 

occurred at night while I.V. was sleeping. The prior events were highly probative to 

prove identity. 

D. EVIDENCE OF I.V.’S COUSIN MAKING A SEPARATE CLAIM 

Mr. Nave contends the trial court abused its discretion by excluding evidence that 

I.V.’s cousin reported she was sexually abused at about the same time I.V. reported that 

she had been sexually abused. He argues the evidence was highly probative because it 

explained why I.V. contrived her allegations when she did. The State responds that the 

trial court did not preclude the evidence. Rather, it required a clearer offer of proof. We 

agree.

Prior to trial, the State filed a motion to preclude evidence that I.V.’s cousin was 

sexually abused. Mr. Nave responded that I.V.’s mother knew that I.V. had heard about 
No. 36488-7-III

State v. Nave

15

her cousin, but that her mother was uncertain when I.V. had heard about it. The trial 

court decided that Mr. Nave’s description of the evidence was too nebulous. The court 

excluded the evidence, subject to Mr. Nave establishing a nexus between I.V.’s and her 

cousin’s allegations. The court told Mr. Nave he could raise the issue again prior to 

cross-examining I.V. 

But Mr. Nave did not raise the issue again. He failed to make a specific offer of 

proof of what I.V. knew and when she knew it. 

In State v. Burnam, 4 Wn. App. 2d 368, 421 P.3d 977, review denied, 192 Wn.2d 

1003 (2018), we emphasized the importance of a specific offer of proof. We said an offer 

of proof should (1) inform the trial court of the legal theory under which the offered 

evidence is admissible, (2) inform the trial court of the specific nature of the offered 

evidence so the court can judge its admissibility, and (3) create an adequate record for 

appellate review. Id. at 377. An offer of proof must not be so vague as to require the trial 

court to speculate about the nature of the evidence. Id.

Here, the trial court tentatively excluded the evidence because Mr. Nave’s offer of 

proof was nebulous. Mr. Nave did not explain how I.V.’s mother knew she had heard of 

her cousin’s sexual abuse or when she had heard about it. The mother’s testimony might 

be excluded on the basis of hearsay. Also, I.V. might testify that she did not know her 
No. 36488-7-III

State v. Nave

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cousin had made a similar allegation or that she heard about the allegation after she had 

told her mother that Mr. Nave raped her. Either way, the trial court justifiably required 

Mr. Nave to raise the issue again once he could make a proper connection between I.V.’s 

and her cousin’s allegations. 

Mr. Nave additionally argues the trial court’s ruling deprived him of his due 

process right to present a defense. We disagree. The trial court allowed Mr. Nave to 

develop the necessary connection between I.V.’s and her cousin’s allegations outside the 

presence of the jury and suggested it could be done prior to I.V.’s cross-examination. Mr. 

Nave did not do this. 

Because Mr. Nave’s offer of proof was not sufficiently specific, we conclude the 

trial court did not abuse its discretion by excluding it until Mr. Nave could make a 

sufficient offer of proof. 

E. SCOPE OF CROSS-EXAMINATION 

Mr. Nave contends the trial court abused its discretion by allowing the State to 

cross-examine him beyond the scope of his direct testimony. 

Challenges to the scope of cross-examination are reviewed for manifest abuse of 

discretion. State v. Garcia, 179 Wn.2d 828, 844, 318 P.3d 266 (2014). Abuse of 

discretion is only found where the trial court’s decision is “‘manifestly unreasonable, or 
No. 36488-7-III

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exercised on untenable grounds, or for untenable reasons.’” Ugolini, 11 Wn. App. 2d at 

446 (internal quotation marks omitted) (quoting McCormick, 166 Wn.2d at 706). 

ER 611(b) provides:

Cross examination should be limited to the subject matter of the direct 

examination and matters affecting the credibility of the witness. The court 

may, in the exercise of discretion, permit inquiry into additional matters as 

if on direct examination.

First, the second sentence of ER 611(b) refutes Mr. Nave’s argument that a trial 

court abuses its discretion by allowing cross-examination beyond the scope of direct 

testimony.

Second, when a subject is opened on direct examination, the cross-examination 

may explore the subject in its various stages. State v. Hayes, 73 Wn.2d 568, 571, 439 

P.2d 978 (1968). This rule does not confine the cross-examination to only the questions 

asked on direct, and the cross-examination may delve deeper into the subjects raised. 

State v. Rushworth, No. 36077-6-III, slip op. at 8 (Wash. Feb. 20, 2020) (published in 

part), http://www.courts.wa.gov/opinions/pdf/360776_pub.pdf.

Mr. Nave argues the trial court erred by allowing the State to question him about 

the uncharged touchings that occurred when I.V. was 11 and 13 years old. We disagree. 

In State v. Solomon, 5 Wn. App. 412, 420, 487 P.2d 643 (1971), the defendant elected to 

testify and briefly denied he committed the charged crimes. The State, over defense
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objections, cross-examined him about where he was the night of the crime. Id. We

concluded that the trial court did not abuse its discretion by allowing the crossexamination because it explored the various phases of the defendant’s general denial. Id.

at 420-21.

Similarly, Mr. Nave elected to testify, and he denied he had ever touched I.V. in an 

inappropriate manner. This claim permitted the State to question him about the previous 

uncharged touchings about which I.V. had already testified. As mentioned previously, 

those touchings were not excludable under ER 404(b) as evidence of prior bad acts

because those touchings were relevant to the charged aggravating factor and to whether 

he was the person who came into I.V.’s room throughout the spring of 2017 and 

repeatedly abused her.

Mr. Nave next argues the trial court erred by allowing the State to question him 

about his travel to New York. We disagree. Mr. Nave testified on direct that after he was 

arrested in Idaho and posted bail, he returned to Washington as quickly as he could and 

presented himself to the court. This testimony gave the jury the impression that Mr. Nave 

was eager to defend against the charges. The State was permitted to challenge this 

impression with evidence that Mr. Nave was not eager to defend against the charges. Ms. 

Valentine had already testified that Mr. Nave telephoned her shortly after she told him to 
No. 36488-7-III

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leave the house and the telephone number of his incoming call showed he was calling 

from New York. The State was entitled to question Mr. Nave about this and to argue this 

showed that Mr. Nave was not eager to face the charges.

We conclude the trial court did not abuse its discretion in allowing the State to 

cross-examine Mr. Nave on these two subjects.

4

F. CRIMINAL FILING FEE

Mr. Nave contends the trial court erred by imposing a $200 criminal filing 

fee. He argues the trial court found that he was indigent for purposes of appeal, and 

RCW 10.01.160(3) expressly prohibits trial courts from imposing discretionary legal 

financial obligations on defendants who are indigent at the time of sentencing. He 

correctly cites RCW 36.18.020(2)(h) to support his argument that the criminal filing fee is 

a discretionary cost. 

We exercise our discretion and review this claim of error that was not preserved 

below by an objection. We direct the trial court to strike the criminal filing fee.

 

4 Because we conclude that the trial court did not abuse its discretion in any of its 

evidentiary rulings, we need not address Mr. Nave’s argument that cumulative error 

requires reversal and a new trial.
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STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

SAG I: SUFFICIENCY OF THE EVIDENCE

Mr. Nave contends the elements of his case were not proved beyond a reasonable 

doubt and that the evidence against him was speculative. In making this argument, he 

challenges the sufficiency of the evidence with respect to I.V.’s identification of him as 

her abuser. We have already analyzed and rejected this argument.

SAG II, III: LACK OF GRAND JURY INDICTMENT

Mr. Nave raises two separate arguments that contain the same core complaint—

that he was not indicted by a grand jury. These arguments are based on the mistaken 

belief that a defendant has a guaranteed constitutional right to be indicted by a grand jury. 

A defendant does not have such a right. See State v. Jefferson, 79 Wn.2d 345, 485 P.2d 

77 (1971). 

In Washington, the State has four options for the procedure it uses to file a 

criminal complaint. Id. at 347. It may (1) file the complaint with the superior court, 

(2) seek a grand jury indictment, (3) initiate inquest proceedings, or (4) file a criminal 

complaint before a magistrate for a preliminary hearing. Id. Any of these methods are 

allowed under Washington law and the Washington Constitution. Id. Here, the State 

filed the complaint with the superior court.
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Neither the Washington nor federal constitutions guarantee a defendant the right to 

a grand jury indictment. Id. at 347-48. As noted in Jefferson, the ability for a prosecutor 

to choose to file a criminal complaint is upheld by the United States Supreme Court. Id.

at 348 (citing Beck v. Washington, 369 U.S. 541, 545, 82 S. Ct. 955, 8 L. Ed. 2d 98 

(1962)). For this reason, a defendant is not guaranteed the right to a grand jury 

indictment as the Court in Beck noted. 369 U.S. at 545.

SAG IV; SAG V: LACK OF PRELIMINARY FINDING OF PROBABLE CAUSE

Mr. Nave again raises two arguments that contain the same core complaint. His 

core complaint here is that he was denied a preliminary hearing where a neutral 

magistrate could have determined there was insufficient probable cause for him to be 

arrested and prosecuted. 

Mr. Nave is mistaken. The record shows that a hearing occurred in late May 2017,

in which the trial court reviewed an affidavit establishing probable cause and found 

probable cause for Mr. Nave’s arrest and detention. Although the order does not 

specifically identify the affidavit reviewed, we note the court record at the time included a

May 25, 2017 certified statement by Detective Brandon Armstrong that set forth detailed 

and sufficient facts for Mr. Nave’s arrest and detention. 
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SAG VI: BRADY5 VIOLATIONS

Mr. Nave contends the State committed multiple Brady violations by suppressing 

the evidence that I.V.’s cousin disclosed a sexual assault against her and by allowing I.V. 

to perjure herself with inconsistent statements. Mr. Nave misconstrues what a Brady

violation is.

A Brady violation requires proof of three elements: “[(1)] The evidence at issue 

must be favorable to the accused, either because it is exculpatory, or because it is 

impeaching; [(2)] that evidence must have been suppressed by the State, either willfully 

or inadvertently; and [(3)] prejudice must have ensued.” State v. Mullen, 171 Wn.2d 881, 

895, 259 P.3d 158 (2011) (alterations in original) (quoting Strickler v. Greene, 527 U.S. 

263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). When viewing the second 

element, the key factor is that the State must be in possession of evidence that it does not 

turn over to the defense and that evidence must have been unobtainable to the defense 

through its own investigation. Id. at 895-96. 

Mr. Nave complains the State committed a Brady violation when it successfully 

prevented him from inquiring about I.V.’s cousin’s allegation against a family member

and when a detective suggested to I.V. that Mr. Nave had oral contact with her. Neither 

 

5 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
No. 36488-7-III

State v. Nave

23

of these complaints involve the State failing to turn over evidence to Mr. Nave. Mr. Nave 

was aware of the evidence, sought to have the cousin’s allegation admitted, and asked 

questions at trial about the detective’s purported improper suggestion. 

SAG VII: EVIDENCE OF MR. NAVE’S FLIGHT

Mr. Nave repeats the arguments raised above about the trial court allowing 

evidence of flight. Because we have addressed this issue above, we do not do so again 

here.

SAG VIII: EVIDENCE NAVE PREVIOUSLY TOUCHED I.V. INAPPROPRIATELY

Mr. Nave repeats the arguments raised above about the trial court allowing 

evidence of his prior touching of I.V. Because we have addressed this issue above, we do 

not do so again here.

SAG IX: I.V.’S COUSIN’S STATEMENTS 

Mr. Nave repeats the arguments raised above about the trial court excluding 

evidence that I.V.’s cousin alleged a family member sexually abused her. Because we 

have addressed this issue above, we do not do so again here.
No. 36488-7-III 

State v. Nave 

Affirmed in part and remanded. 

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. 

Lawrence-Berrey, J.\ 

WE CONCUR: j 

Korsmo, A.CJ. Siddoway, J. 

24