Superior Court of Pierce County. Superior Court Docket No. 93-1-03491-3. Date Filed In Superior Court: February 16, 1994. Superior Court Judge Signing: Brian Tollefson.
Written By: Houghton, A.c.j., Concurred IN By: Seinfeld, C.j., Armstrong, J.
HOUGHTON, J. -- Sebastian Larry Lubers appeals his Pierce County jury convictions for rape in the first degree and witness tampering. He challenges the sufficiency of
the evidence on both counts, and argues that the trial court erred by excluding evidence of the complaining witness's motive to accuse him falsely and by not granting him a new trial. We affirm.
Lubers was accused of raping S, age 14. Christopher Joseph, a friend of Lubers, was also charged, but the State agreed to drop the charge against Joseph if he testified truthfully. Joseph testified that on the night of June 23, 1993, he and Lubers drank a bottle of "Mad Dog 20/20" wine, called S, and arranged to pick her up around 11:00 p.m. Before picking up S, Lubers added "Visine" to another wine bottle, apparently hoping that S would drink it and "pass out" so he could "have sex with her."
According to Joseph, after they picked up S, they drove to a park in Puyallup, where all three got out of the car. Lubers asked Joseph to retrieve a loaded revolver from the trunk, which he did. Lubers, Joseph, and S drank and spoke with some other people in the park, and then they proceeded to walk down a trail. Lubers and Joseph pretended that they were fighting, acting as though they were going to shoot each other. Lubers then asked Joseph to feign injury and, when S came over to see how he was, Lubers pushed her onto her back and had sexual intercourse with her. The gun was lying next to them.
S confirmed Joseph's description of the rape, except she testified that Lubers sat on her after he threw her to the ground, took the gun away from her, which she had for a short time, and set the gun aside. She testified that Joseph pulled her shirt up, held her head between his legs "like he was trying to choke [her]" while Lubers took off her clothes, and helped hold her down while Lubers raped her. She said that she struggled for awhile, but she finally gave in because she remembered they had a gun and was afraid "they were going to shoot [her]." Both Joseph and S testified that S was crying when she came back down the trail.
The Puyallup police arrested Lubers several weeks later, after S identified him from a photographic montage. On October 1, 1993, in the course of his investigation, Puyallup Detective Matison took a statement from Joseph, which was similar to his later trial testimony. A few days later, Lubers called Joseph from jail and asked him to write a letter to Lubers' lawyer saying that Joseph had lied to Detective Matison. Lubers told Joseph to say that another man, a fictitious person named "Danny Cortez," was really the rapist, that "Cortez" had initially promised to pay Joseph $10,000 to name Lubers, and that later "Cortez" had threatened to kill Joseph's family unless he falsely accused Lubers.
Tyana Fisher testified that Lubers also called her from jail. He asked her to tell the prosecuting attorney that "Danny Cortez" had committed the rape and admitted to her that he had "stuck it in and out" of S, but only "for one minute or so."
The defense tried to establish that S had falsely accused Lubers of rape because of problems that Lubers' girlfriend, Juanita Black, was having with S's family. Specifically, defense counsel attempted to ask Juanita Black about incidents in which S's cousin and two of the cousin's friends allegedly beat her up, threw rocks at her, and talked behind her back; Black did not implicate S in any of those activities, however. The trial court sustained the State's objection that the proffered testimony was irrelevant.
On appeal from his convictions, Lubers first challenges the sufficiency of the evidence to convict him of the rape. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it would permit any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wash. 2d ...