SPEARMAN, J.
Charles Davis was convicted by a jury of rape in the first degree for the 2001 rape of K.C. In 2009, the DNA profile developed from semen in K.C.'s rape kit was matched to Davis. Davis told police that the two had consensual sex and sought to introduce evidence from K.C.'s former friend about K.C. apparently engaging in prostitution around the time of the alleged rape. On appeal, he claims that (1) the trial court erred in refusing to admit the sexual conduct evidence, (2) the evidence was insufficient to support the jury's verdict, and (3) he received ineffective assistance of counsel. We hold that Davis failed to preserve his claim as to the sexual conduct evidence, but that even if the issue was properly preserved, the trial court did not abuse its discretion. We also hold that the evidence at trial supported the verdict and that Davis did not receive ineffective assistance of counsel based on the record before us. We affirm.
On Sunday, September 23, 2001, K.C., a 16-year-old girl, was dropped off at the Lacey transit center by her mother. K.C. told her mother she was going to see a friend, but she was actually planning to see her much-older boyfriend, of whom her mother did not approve. At the transit center, K.C. saw a group of six or seven young men wearing blue clothing, blue bandanas, and gold jewelry, and approached them to ask where to find bus schedules. The young men told her to shut up, then pushed her into the men's restroom. K.C. testified that her arms and legs were held down and she was raped vaginally by one or possibly two of the men. She was scared because she did not know if they were armed. The men then left the restroom. K.C. was bleeding from her vagina. She stayed in the restroom for about five minutes, then cleaned up and left. A security guard was sitting in his parked vehicle near the men's restroom, reading a newspaper, but K.C. did not report the rape. She first went to see her boyfriend and later went home. K.C. told her boyfriend about the rape but the two of them decided not to call the police. She did not tell her parents.
While K.C. was at school the next day, she was in pain, so she reported the rape to school authorities. She was taken to St. Peter's Hospital, where an examination and rape kit were performed by Dr. Joseph Pellicer and a sexual assault nurse examiner. While it was standard practice for a nurse examiner to conduct the exam, Pellicer was also involved because a "procedural sedation" had to be performed due to K.C.'s pain and discomfort. Pellicer observed a vaginal laceration that extended "from the vaginal fourchette approximately 8 to 10 millimeters into the floor of the vagina." He testified that, based on his training and experience, this type of injury was not consistent with consensual sexual intercourse.
Approximately eight years later, in April 2009, the DNA profile developed in K.C.'s case was matched to the DNA profile of Charles Davis.
Davis was charged by amended information with one count of rape in the first degree or, in the alternative, rape in the second degree. Before trial he filed a motion to admit evidence of K.C.'s past sexual behavior to support his consent defense, pursuant to the rape shield statute, RCW 9A.44.020. The offer of proof in support of the motion was the Declaration of Jenny Anderson, in which Anderson stated that she believed K.C. prostituted herself in 2001.
Tabor denied Davis's motion, entering findings of fact and conclusions of law. He ruled that the evidence was not admissible because (1) at that time there was no evidence indicating that Davis and K.C. had sex as an act of prostitution and therefore the evidence was not relevant to the facts, (2) Anderson's opinion was outside of her personal knowledge, (3) the prejudicial effect of the evidence outweighed its probative value, and (4) the exclusion of the evidence would not result in a denial of justice to Davis. He indicated that his ruling was based on the posture of the case at that time, and that he might re-hear the matter if circumstances changed.
Judge Paula Casey presided over the jury trial. The State filed a motion in limine regarding the previous ruling by Judge Tabor. The prosecution and defense counsel agreed it would not be proper for the defense to present evidence from Jenny Anderson without first making a motion to reopen the issue, as required by Judge Tabor's ruling. Judge Casey agreed. The defense did not seek to offer Anderson's testimony at trial.
Davis testified in his own defense. He denied raping K.C. He testified that he was alone at the transit center on September 23, 2001 when he was approached by K.C. Davis wore a lot of jewelry and K.C. told him that she liked his jewelry. The two talked for 15 to 20 minutes. The topic of sex came up, and K.C. indicated that she was a prostitute. She agreed to have sex with him in exchange for $25, and the two also agreed that Davis would buy $40 worth of crack cocaine from K.C.'s boyfriend and split it with her. They observed security guards in the area, so they decided that he would first go into the men's restroom and she would follow. They had sex for about two minutes, after which they got on a bus and met K.C.'s boyfriend at the Olympia transit center. Davis did not like K.C.'s boyfriend and decided to leave without buying drugs. He acknowledged pawning a bracelet the next day.
The jury found Davis guilty of rape in the first degree. He was sentenced to a standard-range sentence of 136 months to life.
Davis first argues that the trial court erred in denying his motion to admit evidence of K.C.'s prior sexual conduct. Second, he argues that the evidence was insufficient to support the jury's verdict. Finally, he claims ineffective assistance of counsel. We find no merit in Davis's claims and affirm.
Under the rape shield statute, evidence of the victim's past sexual behavior is admissible on the issue of consent only if: (1) it is relevant; (2) its probative value substantially outweighs the probability that its admission will create a substantial danger of undue prejudice; and (3) its exclusion will result in denial of substantial justice to the defendant.
Davis argues that the trial court violated his Sixth Amendment right under the United States Constitution to present evidence to support his consent defense. He argues that the Anderson evidence was admissible under the rape shield statute, RCW 9A.44.020,
The State argues that Davis failed to preserve the issue for appeal because he did not attempt to introduce the evidence at trial. It points out that at the pretrial hearing, Judge Tabor indicated that the issue could be raised again.
We agree with the State and hold that Davis did not properly preserve the issue for appeal. We note, moreover, that even if the issue was preserved, the trial court did not abuse its discretion in ruling that the evidence was not admissible based on where the case stood at the time. For appeals arising from a trial court's rulings on motions in limine, a waiver of the right to raise the issue on appeal depends on whether the trial court made a final ruling.
Here, Judge Tabor made a pretrial ruling based on the defense's offer of proof, stating that "my ruling today is based on the posture of the case before me at this time." He noted that there was presently no evidence that Davis and K.C. had sex as an act of prostitution, so any evidence that K.C. might have prostituted herself on another occasion was not relevant. He also noted that the issue could be brought back should circumstances change. When Davis testified at trial that the sex with K.C. was a consensual act of prostitution, this was arguably a change in circumstances that would warrant reconsideration of his motion. But Davis did not offer Anderson's testimony or ask the trial court to reconsider the issue. Therefore, he failed to preserve the issue for appeal.
We note that even if the issue was preserved, the trial court did not abuse its discretion. While defendants have "a constitutional right to present a defense, the scope of that right does not extend to the introduction of otherwise inadmissible evidence."
To prove that Davis committed rape in the first degree, the State was required to prove beyond a reasonable doubt:
On a challenge to the sufficiency of the evidence, this court must decide whether, viewing the evidence in a light most favorable to the State, any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt.
Davis contends that K.C.'s testimony demonstrated that her claim of rape by forcible compulsion was suspect and argues that the State failed to establish proof beyond a reasonable doubt. He points out that K.C. admitted lying to her mother about taking the bus to see a friend rather than her boyfriend. Furthermore, although K.C. testified to struggling while being attacked, there were no cuts, scratches, or bruises on her body the next day. Davis also points out that he readily told police eight years later that he had consensual sexual intercourse with a girl at the transit center.
The State contends there was evidence that K.C. was raped, pointing to K.C.'s testimony and Dr. Pellicer's testimony that K.C.'s vaginal tear was consistent with non-consensual intercourse. The State points out that K.C. testified that she did not report the rape immediately because she did not feel people would believe her. It also points out that Davis testified in his own defense and that there was conflicting evidence about his version of events at trial versus what he told Detective Reinhold when she interviewed him in 2009. It argues that the jury was permitted to accept or reject Davis's testimony.
We agree with the State. The evidence was undisputed that Davis had vaginal intercourse with K.C. The case turned on the conflicting testimony of K.C. and Davis as to whether such sex was consensual. K.C. testified that she was dragged into the restroom, that her arms and legs were held down, and that she was raped vaginally. She testified that she was in serious pain the next day. Dr. Pellicer testified that the vaginal tear she suffered was similar to the type of injury suffered by women giving birth and was consistent with non-consensual intercourse. This evidence was sufficient for a jury to find Davis guilty of rape in the first degree. The jury was entitled to weigh the evidence and make credibility determinations.
Claims of ineffective assistance are mixed questions of fact and law that we review de novo.
Davis claims in his Statement of Additional Grounds that he received ineffective assistance under the Sixth Amendment because defense counsel: (1) failed to prepare the case so that the defense investigator could testify; (2) failed to call certain transit employees as witnesses; (3) failed to contact the Gang Unit Task Force to determine that Davis had never been in a gang; (4) failed to call an expert witness, such as a rape trauma expert or physician, to rebut Dr. Pellicer's testimony that the only way K.C. would have sustained her injury would have been through non-consensual sexual intercourse; (5) refused to comply with Davis's request to present a motion for an interlocutory appeal of the rape-shield issue;
Davis's first claim relates to the defense's attempt to present the testimony of investigator Paula Howell, who interviewed K.C. on January 5, 2010. Howell was prepared to testify about inconsistencies between K.C.'s statements to police in 2001 and her statements to Howell, but soon after she took the stand, the trial court ruled that she could not continue because defense counsel had not asked K.C. on cross-examination about the issues he sought to rebut with Howell's testimony. Davis argues that counsel was ineffective in not preparing ahead of time so that Howell could testify. This claim fails because Davis cannot establish prejudice by the failure to admit Howell's testimony. The only inconsistencies in K.C.'s statements that are pointed out by Davis have to do with the position of her arms when she was raped and the number of stalls in the restroom. Even if Howell had testified about these inconsistencies, Davis cannot show that the result of the trial would have been different.
Davis's remaining claims involve matters outside the record. It is not possible, for example, to verify on the record what transit employees would have testified or to examine the communications between Davis and defense counsel. This court does not, on direct appeal, consider matters outside the record.
Affirmed.
ELLINGTON, BECKER, JJ., concur.
The purpose of the statute was to prevent the misuse of prior sexual conduct evidence so that a woman's general reputation for truthfulness could not be impeached because of her prior sexual behavior.