S.c., Respondent V J.c., Appellant

FILED
UOURJ OF APPEALS
2014 MAR 19 AN 8: 48
ST,
FrDD Y ,
IN THE COURT OF APPEALS OF THE STATE OF WASHINGrl Vl\
DIVISION II
No. 44477 -1 - II
UNPUBLISHED OPINION
JOHANSON, J. — J. C. appeals from a Thurston County Superior Court revision of a
commissioner' s denial of S. C.' s " Sexual Assault Protection Order" ( SAPO). J. C. argues that ( 1)
the- superior -court erred- when it excluded all -evidence of the conversation between J. C._and_S..C.. ____ _ __
about S. C.' s sexual activity with another person, and ( 2) the superior court erred in failing to
defer to the commissioner' s credibility findings. Because the superior court properly excluded
evidence of S. C.' s sexual history and properly reviewed the commissioner' s decision de novo
without deferring to the commissioner' s credibility findings, we affirm.
FACTS
I. BACKGROUND
S. C., a 14- year -old freshman, and J. C., a 17- year -old junior, were both students at
Tumwater High School; they knew each other through mutual friends and rode the bus together.
On November 8, 2012, S. C. and J. C. met in Scott Lake park to " hang out." Clerk' s Papers ( CP)

No. 44477 -1 - II
at 6. S. C. and J. C. walked around the park talking about various things, including S. C.' s sexual
encounters with A.F., a mutual friend and S. C.' s former boyfriend. The pair ended up at J. C.' s
grandfather' s house, close to the park.
While in the house, S. C. and J. C. continued to talk about S. C.' s relationship and sexual
encounters with A.F. because S. C. felt that J. C. was a friend and " someone [ she] could trust."
CP at 47. As S. C. started to leave, J. C. asked S. C. if she would look at his penis and tell him " if
his] penis was bigger than [ A.F.' s] because [ A.F.] had made jokes" about the size of J. C.' s
penis. CP at 61. According to S. C., she refused to look at J. C.' s penis when he asked her, but he
unzipped his pants and showed her his penis anyway. When she tried to leave, J. C. grabbed her
around her waist, forcing her right hand down to touch his penis. According to J. C., S. C. agreed
to look at his penis and said that his penis was larger; although J. C. asked S. C. if she " wanted to
do anything" with him, there was no further physical contact between them. CP at 62. J.C. then
walked S. C. home.
II. PROCEDURE
S. C.- petitioned for -a SAPO against -J. C. on November 1-5;- 2012 - At- the -evr entiary -- - -
hearing, S. C. had the burden to prove nonconsensual sexual conduct by a preponderance of the
evidence. RCW 7. 90. 090. The parties offered only S. C.' s and J. C.' s testimony, and S. C.
presented two exhibits.
During S. C.' s testimony, the commissioner, over S. C.' s objections, allowed J. C. to elicit
testimony that on November 8, 2012, S. C. told J. C. details about her previous sexual encounters
with A.F. J. C. also testified about the conversation he had with S. C. and the details of their
conversation about S. C.' s prior sexual partners and conduct. Although he acknowledged its
general inadmissibility, the commissioner stated that the evidence of S. C.' s prior sexual history
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No. 44477 -1 - II
was " directly relevant" to what happened on November 8, 2012, and that he couldn' t " ignore it
in this context." CP at 42. After hearing testimony from both parties, the commissioner denied
S. C.' s petition for the SAPO, finding that the case relied on the parties' credibility, that he did
not find other admitted evidence' from S. C. " helpful," and that S. C. had not met her evidentiary
burden. CP at 77.
S. C. moved to revise the commissioner' s decision, arguing, in part, that the commissioner
had erred by admitting and considering S. C.' s prior sexual history under ER 412 and RCW
7. 90. 080. The superior court revised the commissioner' s ruling and entered a protection order.
Although the relaxed evidentiary rules in protection order proceedings apply primarily to
hearsay, the superior court stated that the relaxed rules of ER 1104( c)( 4) did not apply to all
evidence. And as to whether the evidence of S. C.' s sexual history was admissible, the superior
court stated that the admission of the evidence violated ER 412 and RCW 7. 90. 080. The court
found that the commissioner used the ER 412 evidence for a prohibited purpose when he used it
to make his credibility findings; that S. C.' s sexual history with another person was a " crucial
piece " -of evidence for the_commissioner' s - decision;- and -that - ultimately,--the- -sexua - history - - -- - - - - - - --
evidence was irrelevant and " highly prejudicial." Report of Proceedings at 11 - 12. J. C. appeals.
ANALYSIS
J. C. argues that the superior court' s decision to revise the commissioner' s denial of the
SAPO was improper because the superior court misinterpreted the applicability of ER 412 and
RCW 7. 90. 080 and ignored the commissioner' s credibility findings. Because the evidence of
The commissioner admitted two exhibits offered by S. C.: A.F.' s declaration and a screen shot
of an Instagram message posted from J. C.' s Instagram account. A.F.' s declaration, Exhibit 2,
directly contradicted J. C.' s testimony that A.F. and J. C. had talked about and compared penis
sizes. Exhibit 1 was an explicit Instagram post that S. C. offered to demonstrate her fear of J. C.
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No. 44477 -1 - II
S. C.' s prior sexual conduct was inadmissible under ER 412 and RCW 7. 90. 080 and the superior
court properly applied the de novo standard of review, we hold that the superior court properly
revised the commissioner' s ruling and issued the protection order.
I. STANDARD OF REVIEW
Once the superior court makes a decision on revision, the appeal is from the superior
court' s decision, not the commissioner' s. State v. Ramer, 151 Wn.2d 106, 113, 86 P. 3d 132
2004). We do not substitute our judgment for that of the superior court' s. Ramer, 151 Wn.2d at
115. We defer to the superior court' s findings of fact, and review a superior court' s revision of a
commissioner' s ruling under RCW 2. 24. 050 for an abuse of discretion. See In re Marriage of
Dodd, 120 Wn. App. 638, 644, 645, 86 P. 3d 801 ( 2004)..
H. S. C.' S PRIOR SEXUAL CONDUCT
J. C. first argues that the superior court erred by misinterpreting ER 412 and RCW
7. 90. 080 and excluding S. C.' s prior sexual history because under ER 1101( c)( 4), the evidence
rules are relaxed in evidentiary hearings and the ER 412 evidence was relevant. We hold that the
superior court did riot -err when it excluded-the evidence of S.-C' s- prior-sexual- conduct under -- - -
412 and RCW 7. 90. 080.
ER 1101( c)( 4) governs the applicability of the Washington evidence rules to protection
order proceedings: " other than with respect to privileges, the rape shield statute [ RCW
9A.44. 020] and ER 412," the rules of evidence, need not be applied. ER 412 generally prohibits
evidence of prior sexual conduct in civil cases, stating, "[ I] n any civil proceeding involving
alleged sexual misconduct ... ( 1) [ e] vidence offered to prove that any alleged victim engaged in
other sexual behavior [ or] ( 2) [ e] vidence offered to prove any alleged victim' s sexual
predisposition [ is not admissible]." ER 412( b). Such evidence is only admissible when the
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No. 44477 -1 - II
evidence is specifically at issue, is otherwise admissible, and is more probative than prejudicial.
See ER 412( c).
In relation to sexual assault protection orders, RCW 7. 90. 080 prohibits the admission of
any evidence of the petitioner' s prior sexual conduct unless it is evidence of prior sexual conduct
with the respondent, or if the admission of the evidence is constitutionally required. RCW
7. 90. 080( 1). If the evidence is admissible, RCW 7. 90. 080( 2) requires an offer of proof with
specific information as to how and when the prior sexual conduct with the respondent occurred.
Additionally, RCW 9A.44. 020( 2) prohibits the use of prior sexual conduct, or sexual propensity,
to be admitted on the issue of credibility.
Despite J. C.' s argument that the rules of evidence are relaxed with regard to protection
order proceedings, he is incorrect in extending the proposition to evidence of a victim' s past
sexual history. Under ER 1101( c)( 4)' s relaxed evidentiary requirements in protection order
proceedings, ER 412 still applies and evidence of prior sexual conduct is generally prohibited.
Furthermore, J. C. argues that the evidence goes directly to S. C.' s credibility, but RCW
9A.44:020( 2) "prohibits using -this type of evidence for this- purpo se-.- -J.C. argues -t at- -. C-.-- - - - — - - -
testify about what " occurred between her and J. C. on November 8, 2012, and then say, none of
the sexual history and conversation] is relevant and should be excluded." Br. of Appellant at
11. However, J. C. elicited the prior sexual history on cross -examination over the objections of
counsel. There is nothing in the record indicating that S. C.' s sexual past was at issue, making it
inadmissible under ER 412( b). Finally, the evidence of prior sexual history was with another
person, not J. C., and was not probative of consent to sexual conduct with J. C.; as such, RCW
7. 90. 080 prohibits evidence of S. C.' s prior sexual conduct and evidence of her discussion of it
with J. C.
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No. 44477 -1 - II
Because the evidence was inadmissible under ER 412 and RCW 7. 90.080, we hold that
the superior court did not abuse its discretion by excluding the evidence of S. C.' s prior sexual
history.
III. SUPERIOR COURT' S STANDARD OF REVIEW
J. C. next argues that the superior court applied the improper standard of review when it
ignored the commissioner' s credibility findings. We hold that the superior court properly
applied a de novo review standard.
RCW 2. 24. 050, which addresses the superior court' s revision of a commissioner' s
decision, states in part, "[ R]evision shall be upon the records of the case, and the findings of fact
and conclusions of law entered by the court commissioner." The superior court reviews the
commissioner' s findings of fact and conclusions of law de novo based on the record before the
commissioner, regardless of whether the commissioner heard live testimony. Ramer, 151 Wn.2d
at 113. Protection orders are essentially a type of injunction, equitable in nature, and competent
evidence sufficient to support the trial court' s decision may be wholly documentary. Blackmon
v.Blackmon, -155 -Wri. App: 715;--721=22; 230- P-.3d--233 -(2010):-- -Because - -it -applies -a- e--novo - -- - - -
standard of review, the superior court is not required to defer to the discretion of the
commissioner. In re Marriage ofR. E., 144 Wn. App. 393, 406, 183 P. 3d 339 ( 2008); Dodd, 120
Wn. App. at 645.
The superior court made its own factual determinations and conclusions of law after a
proper de novo review of the existing record. Under Ramer and its independent review of the
record that was before the commissioner, the superior court was not required to defer to the
commissioner' s factual findings or credibility determinations. Here, as stated under Blackmon,
the court properly applied the correct standard of review and referred only to the documentary
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No. 44477 -1 - II
evidence, including the briefs, the clerk' s papers, the original orders, and the hearing transcripts
to make its determination. Because review of the documentary evidence was de novo, there was
no requirement for the superior court to defer to the commissioner' s credibility findings and it
properly made its own independent factual findings and determinations. Thus, J. C.' s argument
fails.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
ON, J.
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