Ormand Lee was convicted on two counts of third degree rape
of a child. RCW 9A.44.079. Before trial, Lee moved to
cross-examine the victim, J.W., about a prior false rape
accusation she had made against another person, The trial
court permitted Lee to ask J.W. if she had made a false
accusation to police about another person, but it prevented
Lee from specifying that the prior accusation was a
rape accusation. Lee claims this violated his
confrontation clause rights. U.S. Const, amend. VI. Lee also
contends the four year delay between his initial arrest and
the trial constitutes a manifest constitutional error
warranting review for the first time on appeal. Lastly, Lee
challenges the trial court's imposition of legal
financial obligations (LFOs).
the State's legitimate interests in excluding prejudicial
evidence and protecting sexual assault victims outweighs
Lee's need to present evidence with minimal probative
value, the trial court did not abuse its discretion when it
prevented Lee from specifying that J.W. had falsely accused
another person of rape. When the court permitted Lee to
cross-examine J.W. about her prior false accusation, it
provided Lee with an adequate opportunity for confrontation.
Limiting the scope of that cross-examination was within the
court's discretion. Further, because Lee was not actually
restrained and because charges had not been filed, the four
year delay between his initial arrest and the trial is not a
manifest constitutional error warranting review for the first
time on appeal.
therefore affirm the Court of Appeals in part. However, we
remand the case for consideration of Lee's ability to pay
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
October 9, 2009, Lee was arrested on suspicion of third
degree rape of a child. The victim, J.W., told police she
engaged in various sex acts with Lee, whom she knew only as
'"Rick, "' during the summer of 2008.
Clerk's Papers (CP) at 1. On October 14, 2009, the court
released Lee because no charges were filed.
next two and a half years, Lee's case "fell through
the cracks." IB Report of Proceedings (RP) (Part B, Dec.
19, 2013) at 201. The Kelso Police Department initially
investigated the allegations, but transferred the case to the
Cowlitz County Sheriffs Office after determining it was
outside the city's jurisdiction. The sheriffs office
received the report from the Kelso Police Department in March
2009. A detective did some "sporadic" work on the
case but retired in April 2010. Id. Lee's case
then went unnoticed until May 2012, when Detective Brad
Thurman discovered it while reviewing unassigned cases.
March 2013, Lee was arrested again on suspicion of third
degree rape of a child based on the same allegations from
2009. On March 6, 2013, the State charged Lee with five
counts of third degree rape of a child. RCW 9A.44.079. Each
count alleged Lee engaged in sexual intercourse with J.W.,
age 15, between June and October 2008. Each count also
alleged as an aggravating factor that the offense "was
part of an ongoing pattern of sexual abuse of the same victim
. . . manifested by multiple incidents over a prolonged
period of time." CP at 6-8; RCW 9.94A.535(3)(g). Lee
pleaded not guilty. The trial commenced on December 18, 2013.
trial, Lee moved to introduce evidence that J. W. previously
fabricated a rape allegation against another individual. A
police report showed that on June 11, 2008, J.W. and her
mother called the Kelso Police Department, alleging that J.W.
had been raped by a classmate. The next day, J.W. and her
mother called again to explain that J.W. "had made up
the story regarding the rape" and that the sex "was
consensual." CP at 17.
trial court speculated that J.W.'s prior false statement
is admissible under ER 608 to demonstrate J.W.'s character for
untruthfulness but also potentially prohibited by the rape
shield statute as past sexual behavior: "So, you know,
part of me says, under ER 608 it comes in, but under the rape
shield statute, part of me says it should not come in. So
I'm a little bit unsure." A RP (Dec. 18, 2013) at
29. To strike a "fair balance between those two
competing interests, " the court permitted Lee to ask
J.W. if she had made a prior false accusation about another
person to police. Id. at 33. However, the court
prohibited Lee from specifying that it was a rape accusation
or mentioning any past sexual behavior:
[A]s far as the issue of [J.W.] . . . making a ~ a false
accusation about being -- to the police, I'm going to
allow that, that she made a false accusation about another
person to the police. The cross examination or the redirect,
however it comes out[, ] would be limited in that she could
talk about her motivations, maybe she was scared, uncertain
and she promptly rectified it the very next day and there
will be no mention of any . .. sexual conduct in ~ in any
was the State's main witness at trial. J.W. testified
that in June 2008, she received an unusual phone call from a
man identifying himself as '"Rick."'
Id. at 57. J.W. later identified the defendant as
"Rick, " explaining she never knew him as Lee.
Id. at 61. Lee asked to meet J.W. in person and gave
her his telephone number. J.W. agreed to meet Lee at Tarn
O'Shanter Park in Kelso, Washington.
their first meeting at Tarn O'Shanter Park, J.W.
testified she and Lee began having regular sexual
interactions. Typically, Lee would pick up J.W. after summer
school and drive somewhere to engage in oral and vaginal sex.
J.W. testified she would also perform oral sex on Lee while
he drove. Lee always drove the same black Camaro or
Thunderbird. They would usually go to either Tarn
O'Shanter Park or Riverside Park. On one occasion, they
went to a residence in Castle Rock that Lee claimed was his
ex-girlfriend's house. J.W. remembered petting two cats
at the Castle Rock house. J.W. also remembered visiting the
residence that Lee shared with his mother.
met Lee almost every day after summer school from June
through September 2008. They did not have sex every day, but
J.W. estimated they had sex "more than ten [but] less
than thirty" times during that summer. Id. at
82. J.W. provided specific details for some of these
interactions. For example, J.W. testified Lee has a tattoo on
his chest or shoulder and another tattoo on his arm.
testified that she was 15 years old at the time. Lee, then 42
years old, told J.W. he was "concerned" that he
"would get in trouble" due to the age difference.
Id. at 64. Lee often told J.W. not to tell anyone
about their relationship so he would not "'get in
trouble.'" Id. at 83. J.W. testified that
Lee never wanted to go out to eat in public or go out with
other couples. Lee bought cigarettes for J.W., telling her
'"If I buy you these, you need to ...
promise'" not to "tell anyone about our
relationship." Id. at 80.
testified she would frequently write notes to Lee. J.W. asked
Lee to write her letters in return, but he gave her only one
letter. J.W. kept the letter "for a while" because
"[i]t had meant something" to her. Id. at
86. J.W. eventually gave the letter to an investigating
officer, and the State introduced it at trial. Before trial,
Lee stipulated that he wrote the letter. The letter does not
address J.W. by name and is addressed to "My
friend/love." Ex. 1. In the letter, Lee describes
specific sex acts he enjoys with the recipient. See,
e.g., id. ("I always love making love to
you."). Lee also expresses a desire to try other sex
acts in the future, such as anal sex. Id. Generally,
the letter details Lee's feelings for the recipient and
his desire for a relationship with her.
testified her relationship with Lee ended in September 2008.
J.W. told her mother about the relationship in early 2009.
J.W.'s mother reported the relationship to police. J.W.
told police about the relationship and provided the letter
she received from Lee. J.W. later identified "Rick"
in a photo lineup. 1A RP (Dec. 18, 2013) at 91; Ex. 2. J.W.
also showed police the various locations she would meet Lee
and have sex with him.
cross-examination, defense counsel asked J.W. if she had
"ever made any false accusations about another person to
the police." 1A RP (Dec. 18, 2013) at 120. J.W.
responded, "Yes." Id. at 121. She
testified that it occurred in early June 2008 and that she
"immediately corrected it." Id. On
redirect examination, J.W. explained, "I didn't want
someone to think that I had made a false report. I wanted to
make it right." Id. at 151.
counsel also asked J.W. about the Castle Rock house. J.W.
testified that the Castle Rock house belonged to Lee's
ex-girlfriend. J.W. said she could not remember what the
inside of the house looked like. J.W. could not remember any
animals depicted in the decor, but she remembered two cats
lived in the house. She could not remember what color the
cats were, but she remembered they were "slightly
large." Id. at 112. J.W. also could not recall
details of the interior of Lee's mother's house,
despite testifying that she had been there. She also could
not remember what Lee's mother looked like.
ex-girlfriend Beth Bongiovanne also testified. In 2008,
Bongiovanne lived in the Castle Rock house and had two cats.
Bongiovanne testified that she allowed Lee to enter her house
and use her black 1985 Camaro. Bongiovanne testified Lee used
her Camaro "[q]uite a bit" in 2008, but not daily.
Id. at 167, 181.
also testified. Lee testified he did not know J.W. Lee said
the only interaction he had with J.W. occurred in 2008 when
J.W. approached him outside of his mother's house and
asked if he was married to Tina Dunlap. Lee denied calling J.
W., picking her up outside her high school, and driving her
to Tarn O'Shanter Park and Riverside Park. Lee admitted
he wrote the letter but claimed he wrote it to "[n]o
one." IB RP (Dec. 19, 2013) at 269. He said he wrote the
letter for "[n]o particular reason" and that it was
a "fantasy." Id. Lee testified he placed
the letter with other possessions stored at his ex-wife's
house. Lee denied driving Bongiovanne's black Camaro in
2008. Lee testified he never had any tattoos, and he removed
his shirt to demonstrate he had none.
jury convicted Lee on two counts of third degree rape of a
child, but it did not find the aggravating factor-that the
crimes were part of an ongoing pattern of sexual abuse of the
same victim. The jury found Lee not guilty of the remaining
three counts. The court sentenced Lee to 34 months of
confinement and 26 months of community custody for count one,
and 26 months of confinement and 34 months of community
custody for count two. The court imposed $2, 641.69 in LFOs,
including $2, 041.69 in discretionary costs. Lee did not
Court of Appeals affirmed Lee's conviction. State v.
Lee, No. 33229-2-III, slip op.at 1-2 (Wash.Ct.App. Aug.
13, 2015) (unpublished),
Court of Appeals concluded that the rape shield statute does
not preclude evidence of a prior false rape accusation and
held that the trial court abused its discretion when it
limited Lee's cross-examination of J.W. But the court
concluded this error did not violate the confrontation
clause. Finding no constitutional error, the court applied
nonconstitutional harmless error analysis and concluded the
error did not materially affect the outcome of the trial. The
court also held the nearly four year delay between Lee's
first arrest and the beginning of trial did not violate his
constitutional right to a speedy trial. U.S. CONST, amend.
VI. Lee raised the issue for the first time on appeal, and
the court concluded the error was not "manifest"
for purposes of RAP 2.5(a)(3). Lee, No. 33229-2-III,
slip op. at 6. The court also declined to review the trial
court's imposition of LFOs because Lee failed to object
during sentencing. See State v. Blazina, 182 Wn.2d
827, 832, 344 P.3d 680 (2015).
petitioned this court for review on three issues. First, he
argues the Court of Appeals erred when it applied
nonconstitutional harmless error analysis because the trial
court's ruling violated the confrontation clause. Second,
Lee claims the delay between his initial arrest and the trial
violated his right to a speedy trial. Finally, he asks for
remand so the trial court can consider his ability to pay
granted Lee's petition for review. State v. Lee,
185 Wn.2d 1009, 368 P.3d 171 (2016).
the trial court violate Lee's confrontation clause rights
when it prevented him from asking J.W. about her prior false
rape accusation? Which harmless error standard, if any,
should have been applied?
the nearly four year delay between Lee's initial arrest
and the trial a manifest constitutional error warranting
review for the first time on appeal under RAP 2.5(a)(3)?
Should we remand for consideration of Lee's ability to
pay LFOs consistent with Blazina?
trial court did not violate the confrontation clause when it
prevented Lee from specifying that J.W. had falsely accused
another person of rape
initial matter, we need not consider whether the trial court
had tenable evidentiary grounds to prevent Lee from asking
J.W. about the prior false rape accusation. The Court of
Appeals held that the trial court erred when it concluded
that the rape shield statute prevented Lee from specifying
the nature of J.W.'s prior false accusation. Lee did not
seek review of this issue, and the State failed to raise it
in its response to Lee's petition for review. Thus, the
issue is not before us, and we express no opinion on the
Court of Appeals conclusion that the trial court committed
the Court of Appeals found only evidentiary error-rather than
constitutional error-it applied nonconstitutional harmless
error analysis and upheld Lee's conviction. Lee contends
that the Court of Appeals should have applied constitutional
harmless error analysis because the trial court's ruling
infringed his right to confront J.W. But determining the
appropriate harmless error standard requires considering
whether the trial court violated Lee's right to
confrontation. Therefore, the only question before us is
whether the confrontation clause required permitting Lee to
specify that J.W.'s prior false allegation involved
Standard of review
review a limitation of the scope of cross-examination for an
abuse of discretion. State v. Garcia, 179 Wn.2d 828,
844, 318 P.3d 266 (2014); State v. Darden, 145 Wn.2d
612, 619, 41 P.3d 1189 (2002). A trial court abuses its
discretion when its decision is '"manifestly
unreasonable or based upon untenable grounds or
reasons.'" Garcia, 179 Wn.2d at 844
(internal quotation marks omitted) (quoting State v.
Lamb, 175 Wn.2d 121, 127, 285 P.3d 27 (2012)).
trial court did not abuse its discretion when it prevented
Lee from specifying the nature of J.W.'s prior false
trial court permitted Lee to ask J.W. whether she had made a
false accusation to police about another person. However, the
court prevented Lee from specifying that J.W.'s prior
false accusation was a rape accusation. He argues
this limitation violated his confrontation clause rights and
that the error was not harmless beyond a reasonable doubt.
But because the excluded information had minimal probative
value in light of legitimate state interests, the trial
court's ruling did not violate the confrontation clause.
the federal and state constitutions protect a defendant's
right to confront an adverse witness. U.S. Const, amend. VI;
Wash. Const, art. I, § 22; Davis v. Alaska, 415
U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974);
State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514
(1983). "Confrontation" includes more
than mere physical confrontation. Davis, 415 U.S. at
315. '"The main and essential purpose of
confrontation is to secure for the opponent the
opportunity of cross-examination.'" Id. at
315-16 (internal quotation marks omitted) (quoting
Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct.
1074, 13 L.Ed.2d 934 (1965)). Cross-examination allows the
defendant to "test the perception, memory, and
credibility of witnesses." Darden, 145 Wn.2d at
620. Confrontation therefore assures the accuracy of the
fact-finding process. Chambers v. Mississippi, 410
U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
"Whenever the right to confront is denied, the ultimate
integrity of this fact-finding process is called into
question. As such, the right to confront must be zealously
guarded." Darden, 145 Wn.2d at 620 (citation
right to confront a witness through cross-examination is not
absolute. Chambers, 410 U.S. at 295. "[T]he
Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the
defense might wish." Delaware v. Fensterer, 474
U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).
"[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues,
the witness' safety, or interrogation that is repetitive
or only marginally relevant." Delaware v. Van
Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d
674 (1986). Courts may deny cross-examination if the evidence
sought is "vague, argumentative, or speculative."
Darden, 145 Wn.2d at 621.
apply a three-part test to determine whether a trial court
violated a defendant's right to confront a witness by