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State v. Scott

March 31, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
EBON SHALONE SCOTT, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-07104-8. Date filed: 03/27/95. Judge signing: Hon. Dale Ramerman.

PER CURIAM -- Ebon Scott challenges his second degree rape conviction on the ground the trial court impermissibly permitted an eyewitness to testify he had witnessed a rape, thereby offering an opinion on guilt. A witness may not express an opinion on the guilt of the defendant, whether directly or indirectly, because such a statement is said to invade the province of the jury. *fn1 Because of the context in which the challenged testimony occurred here, we hold the evidence was not an opinion on guilt but rather proper impeachment. Therefore, we affirm.

The State's chief occurrence witness, other than victim C.D., was 14-year-old Milo Nelson. On direct examination, Nelson testified he was incarcerated in part because of his involvement in the incident with C.D. He admitted he was Scott's friend and was uncomfortable testifying at Scott's trial. While at a neighborhood park with Scott, other friends, and the victim, Nelson observed Scott place a towel around C.D.'s mouth and throw her to the ground. C.D. tried to scream but could not. Scott started to take off her clothes. C.D., who was on her back, was unable to get off the ground because Scott was on top of her. C.D. struggled and was unable to breathe because Scott held his hand over her mouth. Scott then penetrated C.D.'s vagina. Neither Nelson nor his friends attempted to help C.D., who was crying and upset. When Scott stopped and got off of C.D., another friend tried to rape her, but C.D. "started going crazy" and got away.

On cross examination, Nelson implied the intercourse may have been somewhat consensual. He testified C.D. was drunk before the incident. She had trouble walking and was holding onto both Scott and another friend, James Legate. C.D. and Legate were kissing each other. Later, at the park, Scott and C.D. engaged in the aforementioned sexual act. During the intercourse, C.D. said, "Fuck me harder; fuck me harder." Nelson explained C.D. was not begging Scott to stop, but also was not fully participating in the act.

On redirect examination, Nelson admitted he had given "quite a few statements about what happened." It is the following portion of Nelson's redirect testimony that gives rise to Scott's appeal:

Q: In every one of those statements you described a rape.

[Defense counsel]: Object, Your Honor. This is not a question.

THE COURT: I'm going to overrule the objection. Go ahead.

[Defense counsel]: Again, I'm going to object as this witness's opinion is not relevant.

THE COURT: I'm going to overrule the objection, go ahead.

Q: Milo, isn't it true that you told people all along that this was a rape?

A: Yeah.

Discussion

The State contends Scott may not raise the issue on appeal because he did not adequately object to the testimony at trial. When the prosecutor said, "In every one of those statements you described a rape," defense counsel objected on the ground Nelson's "opinion is not relevant." We find the objection sufficient under the circumstances.

ER 704, which permits opinion testimony even where it embraces an ultimate issue to be decided by the jury, implicates ER 401, the rule defining relevance. *fn2 Moreover, an objection is sufficient to preserve an issue for appeal if it informs the trial court of the basis for the claimed error. *fn3 Even if an objection is only a general one, this court may ...


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