Ray Horn appeals his conviction of domestic violence felony
harassment, arguing that his constitutional right to present
a defense was violated. He also contends that the imposition
of mandatory deoxyribonucleic acid (DNA) collection and crime
victim penalty assessment (VPA) fees violated his substantive
due process rights, and he requests that appellate costs be
waived. Finally, he raises additional claims in a statement
of additional grounds (SAG).
that (1) Horn's right to present a defense was not
violated, (2) the mandatory imposition of DNA and VPA fees
did not violate his substantive due process rights, (3) under
RAP 14.2, Horn may challenge costs on appeal before our court
commissioner if the State requests them and he objects to
them, and (4) Horn's SAG claims fail. Accordingly, we
and Suzy Oubre became romantically involved while Oubre was
estranged from another man with whom she had had a
relationship. Horn and Oubre began openly dating in January
January 2015, Horn and Oubre were at Oubre's residence
drinking alcoholic beverages. While Oubre was using her
cellphone, Horn grew angry and accused her of texting the man
with whom she had been involved. According to Oubre, she had
never seen him have "an episode like this before."
Report of Proceedings (RP) at 141. Horn grabbed Oubre's
night shirt and ripped it open, hitting her on the chest in
that the downstairs neighbor would hear the scuffle, Oubre
and Horn went to Horn's home. Once they arrived and got
out of the car, Oubre told Horn that she was going to leave,
but Horn grabbed her. They began wrestling when Horn pushed
her against a wall and down into a flower bed. He bit her
multiple times. Oubre did not call the police. After this
incident, when Horn would drink too much and get aggressive,
she would refer to that facet of Horn's personality as
"Bo-Bo." RP at 151. When "Bo-Bo" came
out, Oubre was scared for her life.
August 7, 2015, Oubre texted Horn that she could no longer
"worry about him" and that she had a fear of
"Bo-Bo." RP at 196-97. Horn later brought wine and
dinner to her house. After dinner, Oubre was on her bed in
the master bedroom playing a cellphone game when Horn asked
who she was texting. Like the January incident, Horn became
angry and accused her of texting the individual with whom she
had been involved.
told Horn that their relationship was "not going to
work." RP at 205. In response, Horn ripped off
Oubre's bra and told her she was not going anywhere.
After Oubre struck Horn in the chest a couple of times, Horn
punched her in the eye, knocking her across the bedroom
floor. Horn demanded that Oubre retrieve her cellphone so
that he could see the text messages. Oubre, who was now
scared, complied and gave her cellphone to him.
was looking through the text messages, Oubre tried to push
past Horn and leave the master bathroom. Horn blocked her
path to the door, and pushed, punched, and kicked her.
Eventually, Oubre asked Horn if she could lie down on the bed
and have some ice for her eye injury, but he told her that
she was not "going to need to worry about [her]
eye." RP at 213. He said that he had thought "about
this a long time, and you and I are going to die
tonight." RP at 213. Oubre believed him.
retrieved Oubre's gun from under the mattress, and then
straddled her, cocked the gun, and put it in his mouth. He
asked her how she "was going to feel when he blew his
brains out on the ceiling." RP at 216. Horn subsequently
took the gun out of his mouth and pointed it at Oubre's
head. He told her that she was "going to go to heaven or
hell tonight, whichever one [she] deserve[s]." RP at
218-19. As Horn locked the door to the master bedroom, he
repeatedly said that they were both going to die. Oubre
believed Horn and felt like her life was going to end that
night. Oubre got up and tried to leave, but Horn stopped her
by pushing her onto the floor and by punching and kicking
her. Eventually, Oubre was able to coax Horn to lay down and
Horn was asleep, Oubre left and went to the hospital where
her extensive injuries were treated. She spoke with the
police while at the hospital, and Horn was then arrested.
other offenses, Horn was charged with domestic violence
felony harassment based on the August incident. Horn posted
bail on August 20, 2015. Oubre and Horn got engaged on
September 5 and took a trip together. Horn was later charged
with violating a no-contact order,  to which he pled guilty in
district court. As part of the events related to that charge,
videotape evidence showed Horn naked while jumping on top of
trial on the felony harassment charge, the State sought to
introduce evidence of the January 2015 incident under ER
404(b) to show that Horn's threat to kill Oubre in August
2015 placed her in reasonable fear that the threat would be
carried out. One of the elements of felony harassment is that
the victim be placed in reasonable fear that a threat will be
carried out. RCW 9A.46.020(1)(a)(i), (b), (2)(b)(ii).
defense objected and in the alternative argued that if the
State was permitted to introduce this evidence, the defense
should be able to introduce evidence of Oubre and Horn's
engagement and trip after August 2015. In the defense's
view, this evidence showed that Oubre did not have a
reasonable fear that Horn would carry out his threat to kill
her on August 7.
State opposed the admission of evidence of their engagement
and trip because "it triggers a bunch of things, "
including Horn's later violation of a no-contact order
where he was naked and jumping on top of Oubre's vehicle.
RP at 72. The State also did not believe the evidence was
relevant to whether Oubre was fearful in August, stating:
The subsequent knowledge does not address the fear on the day
of the crime. You can't retroactively apply that fear.
The fear has to be at that time, what the victim knew at that
point in time.
RP at 73. The defense responded that without this evidence,
the jury is left
with the false impression that Mr. Horn is this horrible
abuser, and they can't even hear about the fact that even
though this allegedly happened, she's going off with him
. . ., knowing there's a protective order, having a good
RP at 75.
trial court first determined that evidence related to the
January incident would be admitted because it would
"help the jury to determine whether [Oubre] had . . . a
reasonable fear or not." RP at 79. However, it declined
the defense's ...