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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 64340-1-I
                      Respondent,           )
                                            )       DIVISION ONE
          v.                                )
                                            )
ANTHONY G. WINFORD,                         )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED:  June 4, 2012
________________________________)

       Becker, J.  --  Character evidence offered under ER 404 must be proved 

by the methods set forth in ER 405.  In this prosecution for child molestation, 

Anthony Winford contends the trial court abused its discretion in excluding some 

of his proposed character testimony for noncompliance with ER 405.  Because 

we conclude the court did not abuse its discretion or violate Winford's right to 

present a defense, and because Winford's statement of additional grounds for 

review raises no meritorious issues, we affirm.      

                                        FACTS

       Based on allegations that Winford sexually molested S.Y., the State 

charged him with first degree child molestation.  At trial, Winford sought to call 

several witnesses to testify to his good character, specifically his sexual morality.  

He maintained the testimony was admissible as a pertinent trait of character  

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under ER 404(a).  The State argued that if such evidence was admissible, it had 

to be proven by reputation evidence under ER 405.  Winford disagreed, arguing

that his sexual morality could also be proved by opinion testimony or specific 

instances of conduct.  

       Winford proceeded to make an offer of proof, calling three witnesses.  

One testified that she had lived on a naval base with Winford from 2001 to 2003, 

and that he had a good reputation for sexual morality.  The other witnesses did 

not testify to Winford's reputation but instead testified that he acted appropriately 

around other teenage girls between 1999 and the time of trial. 

       The court admitted the reputation testimony but excluded the other 

proposed testimony for failing to comply with the proof requirements of ER 405.  

The court also noted that the excluded evidence "would, to a significant degree, 

be cumulative" of the reputation testimony.  

       The jury found Winford guilty as charged.  He appeals.

                                      DECISION

       Winford contends the trial court abused its discretion in excluding the 

proposed testimony that he had not engaged in sexually inappropriate behavior 

when in the presence of other teen age girls.  We disagree.

       A trial court's decision to admit or to exclude evidence is reviewed for 

abuse of discretion, State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). 

Winford contends the excluded testimony in this case was admissible as 

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character evidence under ER 404 and 405.  Although character evidence is 

generally inadmissible to prove conformity therewith on a particular occasion, an 

exception exists for "evidence of a pertinent trait of character offered by an 

accused, or by the prosecution to rebut the same." ER 404(a)(1).  To be 

admissible, such character evidence must be proved in one of two ways:

              (a) Reputation.  In all cases in which evidence of character 
       or a trait of character of a person is admissible, proof may be made 
       by testimony as to reputation.  On cross examination, inquiry is 
       allowable into relevant specific instances of conduct.

              (b) Specific Instances of Conduct.  In cases in which 
       character or a trait of character of a person is an essential element 
       of a charge, claim, or defense, proof may also be made of specific 
       instances of that person's conduct.

ER 405(a), (b).  

       Assuming without deciding that the excluded testimony in this case was 
admissible as a pertinent trait of character under ER 404,1 it did not conform to 

the accepted methods of proof in ER 405(a) and (b).  As the trial court noted, it 

was not presented in the form of reputation testimony.  And while it arguably 

encompassed specific instances of conduct, that method of proof was 

       1 Compare State v. Jackson, 46 Wn. App. 360, 365, 730 P.2d 1361 (1986) (trial 
court in statutory rape prosecution properly excluded testimony concerning defendant's 
reputation for sexual morality and decency because it was not a pertinent character 
trait) with State v. Griswold, 98 Wn. App. 817, 829, 991 P.2d 657 (2000) (rejecting 
Jackson and holding that sexual morality was a pertinent character trait in child 
molestation case), abrogated on other grounds by State v. DeVincentis, 150 Wn.2d 11, 
74 P.3d 119 (2003).  

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inapplicable because character was not an "essential element" of the charge or 

Winford's defense.  ER 405(b); see State v. Mercer-Drummer, 128 Wn. App. 

625, 632, 116 P.3d 454 (2005) ("'character is rarely an essential element of the 

charge, claim, or defense.  For character to be an essential element, character 

must itself determine the rights and liabilities of the parties.' Because character 

does not determine a party's rights and liabilities incident to an assault, 

obstruction of a law enforcement officer, or resisting arrest, character therefore 

is not an essential element of any charge, claim, or defense to the crime with 

which Mercer-Drummer was charged.") (quoting State v. Kelly, 102 Wn.2d 188, 

196-97, 685 P.2d 564 (1984)), review denied, 156 Wn.2d 1038 (2006); State v. 

Hutchinson, 135 Wn.2d 863, 959 P.2d 1061 (1998) (specific act character 

evidence concerning victim's propensity for violence is not an essential element 

of self-defense), cert. denied, 525 U.S. 1157 (1999).  

       Winford argues, however, that specific instances of conduct are an 

acceptable method of proof even when character is not an essential element of 

the charge or defense.  Noting that ER 405(a) states that "proof may be made by 

testimony as to reputation," he contends subsection (a) implicitly allows other 

methods of proof, including specific instances of conduct, without the essential 

elements restriction in ER 405(b).  (Emphasis added.)  Our courts have rejected 

such a reading of the rule.  See State v. O'Neill, 58 Wn. App. 367, 370, 373, 793 

P.2d 977 (1990) (dissent arguing that use of word "may" in ER 405(a) indicates 

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that reputation is not the exclusive way to prove character under subsection (a)); 

Mercer-Drummer, 128 Wn. App. at 630-32 (following O'Neill majority and 

rejecting argument that reputation testimony is not the exclusive way to prove 

character under ER 405(a)).  Reading ER 405(a) in the manner Winford 

suggests would directly conflict with, and undermine, the limitations on proof by 

specific instances of conduct set forth in ER 405(b).  We therefore reject

Winford's interpretation of the rule.  

       Finally, Winford contends the court's ruling violated his constitutional right 

to present a defense.  But the right does not extend to inadmissible evidence. 

State v. Aguirre, 168 Wn.2d 350, 363, 229 P.3d 669 (2010) (although defendant 

has "a constitutional right to present a defense, the scope of that right does not 

extend to the introduction of otherwise inadmissible evidence"); State v. Mee Hui 

Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006) (defendant has right to present 

a defense "'consisting of relevant evidence that is not otherwise inadmissible'")

(quoting State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), review

denied, 120 Wn.2d 1022, cert. denied, 508 U.S. 953 (1993)), review denied, 159 

Wn.2d 1022 (2007). Because the excluded evidence was not admissible under 

ER 405, its exclusion did not violate Winford's constitutional right to present a 

defense.

       In a pro se statement of additional grounds for review, Winford contends 

his conviction should be reversed based on the report of a defense expert, 

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psychologist Dianne Learned, who testified at trial.  The State has moved to 

strike the report and the statement of additional grounds because the report is 

not part of the appellate record.  We agree that the report must be stricken.  

       There is no reason to strike the statement of additional grounds, a 

document that Winford is entitled to file under RAP 10.10.  In essence, Winford 

argues that his conviction should be reversed because the victim's testimony 

was the result of leading questions posed to her during the investigation.  But 

the weight, credibility, and persuasiveness of the evidence are matters for the 

trier of fact and are not subject to review by this court.  State v. Camarillo, 115 

Wn.2d 60, 71, 794 P.2d 850 (1990).   

       Affirmed. 

WE CONCUR:

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