IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON ,

Respondent ,

v. MICHAEL BRIAN BROUSSARD ,

Appellant

. )

) ) ) ) ) ) ) ) No. 34346

- 4

- III

UNPUBLISHED OPINION

S IDDOWAY , J.

— Michael Br oussard appeals his convictions for third degree child molestation, third degree child rape, and furnishing liquor to a minor . His only defense to the sexual offense c onvictions was that he reasonably believed, based on the assertion of the alleged victim , that she was over 16. He argues persuasively on appeal that the trial 

### FILED MARCH 15 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 34346

- 4

- III

State v. Broussard

2 court violated his Sixth Amendment right to present a defense when it excluded testimo ny of a witness to that alleged declaration. U.S. C ONST . amend VI. He also argues for the first time on appeal that the jury’s verdict finding him guilty of furnishing liquor to a minor was not expressly unanimous, since the jury was instructed on a means of committing the crime that was not supported by the evidence. We agree. We reverse the co nv ictions and remand for a new trial

.

FACTS AND PROCEDURAL BACKGROUND In or about early August 2013, two teenaged friends, N.C. and T. D., attended a party at the home of Alex Boscoe . At the time, N.C. was 16 years old and T.D. was 15. Michael Broussard , who would later testify that acting as a DJ 1 at parties was a hobby of his, had loaned his PA 2 system to Mr. Boscoe and played music for guests during the party

. Mr. Broussard was 26 years old at the time. According to Mr. Broussard , he did not know man y of the party guests so he introduced himself to people , including to N.C. and T.D. He claimed they talked for a while and, because he believed the party was a college sendoff party for a recent high school graduat e , he asked if they were graduates.
Acc ording to him, both girls told him that they had just graduated from high school and
were 18.

1 Disc jockey

. 2 Public address

.No. 34346

- 4

- III

State v. Broussard

3 Both N.C. and T.D. dispute this. While they admit seeing Mr. B roussard at Mr. Boscoe’s party, they deny having spoken to him that evening. A few days later, T.D. and N.C. accepted a n invitation to a gathering at the home of Beatrice Mears, one of N.C.’s coworkers. Mr. Broussard also attended the gathering

. It i s undisputed that a number of those in attendance at Ms. Mears’s home that evening drank alcohol, d anced, lay on an outside bed together, and eventually showered together in various stages of undress. Mr. Broussard admits engaging in conduct that T.D. and N.C. claim occurred in the shower: that he kissed them, touched their breasts, and placed his fing er in their vaginas. T.D. also claims that after the shower, Mr. Broussard pulled her into a bedroom and attempted to have intercourse with her but she stopped him. Mr. Broussard denies pulling her into the room but admits they were in a bedroom together , he tried to have sex with her, and she asked him to stop. After that, the two girls called a friend to pick them up and left. T.D. mentioned the possible sexual assault to a counselor in a regularly scheduled counseling session shortly after it occur red. The counselor, a mandatory reporter, notified CPS 3 of what she had been told

. Police officers assigned to investigate the incident spoke to Mr. Broussard in June 2014. Mr. Broussard admitted to having sexual contact with T.D. and N.C. and bringing alcohol to the party but claimed to have been

3 C hild Protective Services, a divis ion of the Washington State Department of Social and Health Services.No. 34346

- 4

- III

State v. Broussard

4 told by T.D. and N.C. that they were 18 years old

. He was charged with child molestation of T.D. in the third degree, rape of T.D. in the third degree, assault of N.C. in the fourth degree with sexual motivati on, and furnishing liquor to a minor. The case proceeded to a jury trial. Because T.D. was under Washington’s age of consent (16 years of age) at the time of Ms. Mears’s house party , the conduct to which Mr. Broussard had already admitted was enough to prove the charges of third degree rape and third degree child molestation involving her

. Mr. Broussard’s only defense to those charges was the statutory defense that “ at the time of the offense [he] reasonably believed [T.D. ] to be [ a specified age ] base d upon declarations as to age by the alleged victim .” RCW 9A.44.030(2). The “specified age” applicable in the case of T.D. was “ at least sixteen .” RCW 9A.44.030(3)(c). The first witness called by Mr. Broussard in the defense case was Amanda Reece.
It was undisputed that she was present at Mr. Boscoe’s party . She testified that she had

seen T.D. and N.C. speaking wi th Mr. Broussard while Mr. Broussard was acting as a DJ. Before Ms. Reece could respond to whether she witnessed any statements by the gi rls about their age, the State objected on the basis of hearsay . T he court excused jurors for
an ext ended argument about whether Ms. Reece would be allowed to testify to what she heard. When asked by the court whether any exception t o the hearsay rule ot her than impeachment applied, defense counsel answered that the testimony was essential to Mr.No. 34346

- 4

- III

State v. Broussard

5 Broussard’s statutory defense

— a defendant could not prove the defense if he could not present evidence of what he was told. 4
Defense counsel was invited to make an offer of proof. In a representative part of a longer offer, he elicited the following testimony:

[DEFENSE COUNSEL]: . . . I just ask you once again, outside the presence of the jury, what it was that you overheard being stated and by whom stated

— or who stated tha t

— that

— MS. REECE: They both were saying that they had just graduated high school an d that they were eighteen years

- old. [DEFENSE COUNSEL]: And when you say that

— they were both saying the same words or do you recall who said what? MS. RE ECE: I don’t remember exactly which one said it. [DEFENSE COUNSEL] : Okay. MS. REECE: But they pretty much were saying the exact same words. [DEFENSE COUNSEL] : Okay. So, did you hear the word eighteen? MS. REECE: Yes. [DEFENSE COUNSEL] : Okay. A nd are you sure that that was in regards to an age; it wasn’t talking about a date or something of that nature? MS. REECE: Yes. [DEFENSE COUNSEL] : A nd why did you

— I mean, what made you listen to that?

4 He referred to the Washington pattern jury instruction that appears in 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 19.04, at 318 (4 th ed. 2016) (WPIC ), which d eals with the statutory defense. He stated: [T]he best I could tell the Court here is just from a practical analysis of looking over the [WPIC] 19.04 jury instruction and asking for a preponderance of the evidence to be established that an asser tion was made by [T.D.] or [N.C.] about their age, how a defendant could be expected to prove that if he is unable to say anything about it. Report of Proceedings at 226.No. 34346

- 4

- III

State v. Broussard

6

MS. REECE: I don’t know. I just eavesdropped. I was with friends talking and I overheard them talking. So

— [DEFENSE COUNSEL] : Okay. MS. REECE:

— I was listening. [DEFENSE COUNSEL] : Now, did you hear it said once, multiple times? MS. REECE: Once. [DEFENSE COUNSEL] : Okay. And are you

— were they talking with each other or speaking with Mr. Broussard? MS. REECE: Th ey were speaking with Mr. Brous sard. Report of Proceedings (RP) at 227

- 29. After the trial court sustained the State’s objection, defense counsel asked if the court would be sustain i ng the State’s objection if Mr. Broussard was asked about T.D.’s alleged declaration of her age. T he State indicated it would object to Mr. Brouss ard testifying about the alleged declaration as well . After hearing argument, the court explained that while it found Ms. Reece’s testimony to be problematically tenuous and
selective , it would overrule the objection if it were made when Mr. Broussard testified.
Ms. Reece was cross

- examined about her and Mr. Broussard’s relationship at the time of the trial, a nd she admitted she was engaged to Mr. Broussard and they had a several month

- old child. Her testimony was that they had been only friends at the time of Mr. Boscoe’s party. The only other defense witness was Mr. Broussard. He testified to his alleged

convers ation with T.D. and N.C. at Mr. Boscoe ’s party, claiming that both told him they had graduated from high school and were 18.No. 34346

- 4

- III

State v. Broussard

7 In closing argu ment, the prosecutor told jurors, “There is no direct or circumstantial evidence presented other than the defense claim that these girls ever told him anything, that they even really talked to him before the night of the incident

. ” RP at 346. In rebuttal, the prosecutor argued, “[T]he defendant’s story is take my word for it. They

— they told me they were old er, despite every piece of evidence indicating otherwise and common sense based on those facts clearly indicating otherwise.” RP at 363. The jury found Mr. Broussard guilty of third degree molestation, third degree rape of a child, and furnishing liquor to a minor. Jurors could not agree on the fourth degree assault charge relating to N.C. , so a mistrial was declared as to that charge. Mr. Broussard appeals.
ANALYSIS We first address Mr. Broussard’s challenge to his convictions for third degree rape and third degree molestation , and issues that might arise on retrial of the sexual offense charges. We then address his challenge to his conviction for furnishing liquor to a minor.

S EX UAL O FFENSE C HARGES AND C ONVICTIONS Right to present the statutory d efense provided by RCW 9A.44.030(2) Mr. Broussard first argues that the trial court violated his right to present a defense when it excluded Ms. Reece’s testimony corroborating his claim that T.D. told him she
was 18. A defendant is entitled to have the jury instructed on the statutory defense provided by RCW 9A.44.030(2) when there is evidence that the victim made an explicitNo. 34346

- 4

- III

State v. Broussard

8 assertion about his or her age to the defendant. State v. Bennett , 36 Wn. App. 176, 181, 672 P.2d 772 (1983). The defendant is n ot entitled to have the defense submitted to the jury simply because the victim ’ s behavior, appearance, and general demeanor suggested that the victim was older than he or she actually was. Id. at 181

- 82. In addition to making a Sixth Amendment argument on appeal, Mr. Broussard’s lawyers argue that Ms. Reece’s testi mony would not have been hearsay, and we agree that it was most likely being offered for a nonhearsay purpose

. It does not appear that Mr. Broussard offered T.D.’s reported statement to prove that at the time of Mr. Boscoe’s party she had g raduated high school and was 18. It appears the statement was offered to
prove only that she told Mr. Broussard she was 18. This is not a hearsay purpose. But Mr. Broussard’s trial lawyer did not a rgue tha t the statement was non hear say below, so we will not entertain that argument as a n independent basis for decision on appeal

. See RAP 2.5(a). That it appears to have been offered for a nonhearsay purpose does become relevant t o the Sixth Amendment challen ge , however

. Turning to that challenge, 5 s tate rule makers have broad latitude to establish rules excludin g evidence from criminal trials. A criminal defendant’s right to present relevant testimony “may, in appropriate cases, bow to accommodate other legitimate interests in

5 We find that the Sixth Amendment challenge was sufficiently raised in the trial court. It is also constitutional error, and the St ate makes no argument that it i s not manifest error subject to RAP 2.5(a)(3).No. 34346

- 4

- III

State v. Broussard

9 the criminal trial process.” Chambers v. Mississippi , 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973))

. But the latitude to make and apply rules excluding a criminal defendant’s evidence “has limits. ‘Whether rooted d irectly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense. ”’” Holmes v. South Carolina , 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting Crane v. Kentucky , 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (quoting California v. Trombetta , 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 ( 1984))). Evidence rules impermissib ly abridge a criminal defendant’ s right to present a defense if they are “ ‘ arbitrary ’ or ‘disproportionate’ and ‘infringe [ ] upon a we ighty interest of the accused. ’” State v. Rafay , 168 Wn. App. 734, 796, 285 P.3d 83 (2012) (alteration in original) (internal quotation marks omitted) (quoting United States v. Scheffer , 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998)), review denied , 176 Wn.2d 1023, cert. denied , 134 S. Ct. 170 (2013). In the exceptional case where an evidence rule abridge s a defendant’s right to present a defense , we must disregard the
rule in order to protect the paramount constitutional right. The Sixth Amendment concern is with evidence that is relevant but excluded by rules that s erve n o legitimate purpose or whose restriction is dispr oportionate to the endsNo. 34346

- 4

- III

State v. Broussard

10 the rules are asserted to promote

. Scheffer , 523 U.S. at 308; State v. Hudlow , 99 Wn.2d 1, 14

- 15, 659 P.2d 514 (1983). Article I, § 22 of the Washington Constitution guaran tees criminal defendants a right to present testimony in their defense that is equivalent to the right guaranteed by the United States Constitution. See Huddlow , 99 Wn.2d at 14

- 15. A claimed violation of the Sixth Amendment right to present a defense is reviewed de novo.
State v. Jones , 168 Wn.2d 713, 719, 230 P.3d 576 (2010).
T he constitutio nal right to present a defense applied to the testimony Ms. Reece could provide

. Evidence that T.D. told Mr. Broussard several days before Ms. Mears’ s house part y that she was 18 i s unquestionably relevant to his only defense to the most serious charges against him. The next consideration is whether , in Mr. Broussard’s case,
the hear say rule served a legitimate purpose or whether its restriction on relevant evide nce was disproportionate to the p urpose it was designed to serve. A s already observed, the hearsay rule did not even apply to the purpose for which Mr. Broussard appears to have offered the evidence

. There was no legitimate countervailing interest that j ustified excluding the defense evidence. The State suggests that even if there was constitutional error, it was harmless beyond a reasonable doubt. An exclusion of evidence that a defendant claims deprived him of the right to present a defense is harmle ss if the untainted, admitted evidence is so overwhelming that it necessarily leads to a finding of guilt. State v. Smith , 148 Wn. 2dNo. 34346

- 4

- III

State v. Broussard

11 122, 139, 59 P.3d 74 (2002)

. Because only a few witnesses claimed to know whether Mr.
B roussard spoke with T.D. at Mr. Boscoe ’s party or what was said, the State cannot demonstrate that Ms. Reece’s corroboration of Mr. Broussard’s version of events could
not have made a difference. Ms. Reece was certainly subjec t to cross

- examination for bias, but jurors might still have believed her. H er corroboration would have taken away the State’s argument to jurors that Mr. Broussard had no evidence to offer about the declaration other than “t ake my word for it .” Because the error is not shown to be harmless, reversal is required. Other assignments of error Mr. Broussard makes four other assignments of error that relate to evidence offered or rulings made in con nection with the sexual offense charges

. We need not address the claim of ineffective assistance of counsel for failure t o object to evidence of

an alleged STD 6 transmission or to the trial court’s “same criminal conduct”
determination at sentencing . A ny objection warranted on tho se matters can be raised and resolve d in any retrial. Mr. Broussard argues that the trial cour t erred in overruling a defense objection when N.C.’ s mother testified to having searched N.C.’s room in August 2013 after seeing what she believed were cigarette burns on N.C.’s arms . She testified to having found

6 Sexually transmitted disease

.No. 34346

- 4

- III

State v. Broussard

12 cigarettes, box cutters , and scissors

. Any error was harmless in light of the mistrial, but in this instance, we choose to provide guidance for any retrial. N.C.’s mother testified that what she found “ led me to believe [N.C.] had been harming herself.” RP at 182.
N.C. had testifie d just b efore her mother did , and answered “yes” when asked by the prosecutor whether she had “some difficulty with what had happened.” RP at 161

- 62.
But N.C. was never asked to explain the difficulty and she never suggested she had engaged in self

- harm, let alo ne as a result of Mr. Broussard ’s actions

. RP at 161. While the State argued that it s questioning of N.C.’s mother was eliciting only “observations , ” RP at 185, not opinion or h earsay, the observations were not relevant without a
connection to the offens e conduct . Any offer of this evidence from N.C.’s mother in a retrial warrants the trial court’s careful consideration of ER 701, 402, and 403.
Mr. Broussard also argues that the trial court should have given a Petrich 7
instruction in connection with th e rape and molestation charges involving T.D., since there were two acts of sexual contact that took place at different times, in different locations. Yet in the trial below , Mr. Broussard testified and admitted that both acts occurred; it was not a dispu ted issue. In a retrial, it would be prudent for the State to
propose a Petrich instruction or make an election

.

7 State v. Petrich , 101 Wn.2d 566, 569, 683 P.2d 173 (1984) , overruled on other grounds by Sta te v. Kitchen , 110 Wn.2d 403, 756 P.2d 105 (1988)

.No. 34346

- 4

- III

State v. Broussard

13 F URNISHING L IQUOR TO A M INOR Mr. Broussard also challenges his conviction f or furnishing liquor to a minor, arguing he was deprived of his right to a n expressly unanimous verdict because the jury was instructed on two alternative means of committing the crime, one of which was not supported by substantial evidence. This would be error if furnishing liquor to a minor is what Washington court s term an “ alternative means crime. ” Statutes establishing what we call “ alternative means crimes ” “describe distinct

acts that amount to the same crime.” State v. Peterson , 168 Wn.2d 763, 770 , 230 P.3d 588 (2010). Alternative means crimes implicate a criminal defendant’s right to an expressly unanimous verdict. State v. Ortega

- Martinez , 124 Wn.2d 702, 707, 881 P.2d
231 (1994); C ONST . art. I , § 21. “The more varied the criminal conduct, the more likely
the statute describes alternative means. But wh en the statute describes minor nuances inhering in the same ac t, the more likely the various ‘alternatives’ are merely facets of the same criminal conduct.” State v. Sandholm , 184 Wn.2d 726, 734, 364 P.3d 87 (2015). “The mere use of a disjunctive in a st atute does not an alternative means crime make.”
Peterson , 168 Wn.2d at 770

. “Nor has it been found that structuring the statute into subsections is dispositive or that definitional statutes create alternative means. ” Sandholm , 184 Wn.2d at 734 (citing State v. Lindsey , 177 Wn. App. 233, 241, 311 P.3d 61 (2013)).No. 34346

- 4

- III

State v. Broussard

14 Under RCW 66.44.270 (1) , “ [ i ] t is unlawful for any person to sell, give, or otherwise supply liquor to any person under the age of twenty

- one years or permit any person under that age to consume liquor on his or her premises or on any premise s under his or her control. ” The “or” is not significant, but the distinct nature of the acts separated by the word “or , ” is. Actively furnishing liquor to a minor is qualitatively different conduct from en abling underage drinking by providing premises where it can

occur . These are not nuances of the same act. We conclude that furnishing liquor to a minor is an alternative means crime. The threshold test governing whether unanimity is required on the mean s of committing a crime is whether sufficient evidence exists to support each of the alternative means presented to the jury. If the evidence is sufficient to support each of the alternative means submitted to the jury, a particularized expression of una nimity as to the means by which the defendant committed the crime is unnecessary to affirm a conviction because we infer that the jury rested its decision on a unanimous finding as to the means. On the other hand, i f the evidence is insufficient to presen t a jury question as to whether the defendant committed the crime by any one of the means submitted to the jury, the co nviction will not be affirmed. Ortega

- Martinez , 124 Wn.2d at 707

- 08 (citations omitted)

. Consistent with RCW 66.44.270, jurors were t old in i nstruction 13 that to convict Mr. Broussard of furnishing liquor to a minor , an element that must be proved beyond a reasonable doubt was that heNo. 34346

- 4

- III

State v. Broussard

15 a) sold, gave, or otherwise supplied liquor to any person under twenty

one years of age; or b) did p ermit any person under the age of twenty

- one to consume liquor on his or her premises or any pr emises under his or her control. C lerk’s P apers at 54 . There was no evidence that Ms. Mears’s home was Mr. Broussard’s premises or premises under his control. The State argues we should reject Mr. Broussard’s challenge because he failed to object to language appearing later in i nstruction 13 that told the jury: To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (2)( a) or (2 ) ( b) has been proved beyond a reasonable doubt, as long as ea ch juror finds that either (2)(a) or (2)( b) has been proved beyond a reasonable doubt. Id. T his misstatement of the law, even though not objected to by Mr. Broussard, does not change the fact th at he was deprived of his constitutional right to an expressly unanimous verdict. The State came close to avoiding this problem when it argued during closing that the case “primarily

. . . involves (a), he gave or otherwise supplied liquo r to person[ ]s

u nder twenty

- one. ” RP at 338. Even an alternative means crime will not be analyzed as such if a single means is elected at trial. Peterson , 168 Wn.2d at 771 n.6 (citing State v. Smith , 159 Wn.2d 778, 783, 790, 154 P.3d 873 (2007)). B ut the prosecutor we nt on to tell jurors that the other statutory means could apply as well. A ny retrial of the charge should be based only on means that are supported by evidence.No. 34346-4-111 State v. Broussard

We reverse the convictions and remand for proceedings consistent with this opinion. Since Mr. Broussard prevails, we need not address his request for a waiver of
fees on appeal.
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.



# . d)·aw ,~- Siddoway, J. 

# °?;

WE CONCUR: 

# '-~ s Fea~'

16