IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73590-0-1
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SEAN MICHAEL CURRAN, UNPUBLISHED OPINION 1
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Appellant. FILED: October 3, 2016
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Leach, J. — Sean Curran appeals his convictions for malicious mischief arrct
felony harassment. He contends that the trial court violated his Sixth Amendment
right to present a defense when it prevented him from testifying about key
witnesses' plans to prostitute themselves. This excluded evidence is not relevant
to any claimed motive to fabricate and would have unfairly prejudiced the jury
against the witnesses. The trial court did not abuse its discretion in excluding the
evidence. We affirm. Because the record includes no evidence showing Curran's
current inability to pay, we deny his request that the State not receive an award of
statutory costs.
BACKGROUND
Events Leading to Arrest
The evening of March 26, 2014, defendant Sean Curran, Shelby Ostergard,
and Viktoriya Tarasenko smoked methamphetamine together at Curran's home.
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Ostergard left at some point that night and went home. Tarasenko stayed at
Curran's house that night.
According to Ostergard, the next morning Tarasenko called Ostergard to
ask her to return to the house. When Ostergard arrived, Tarasenko and Curran
came out of the house. Ostergard testified that as Curran approached the car, he
screamed that Ostergard was trespassing, he was going to call the cops, and he
was going to kill her. Curran was carrying a bat. When he got to the car, he swung
the bat, hitting the driver's side mirror, breaking it off, and shattering the glass.
Ostergard testified that Curran then reached into the car through the driver's side
window and slapped her face. She claimed that he said, "Tm going to kill you if
you call the cops.'" Ostergard drove off with Tarasenko in the car. She claims that
Curran followed beside her in his truck, holding up a gun and threatening to kill
her.
According to Curran, he awoke on the morning of March 27 to Ostergard
pulling the screen windows off his house. He admitted to breaking her car mirror
but denied that he slapped or threatened to kill her. Curran also denied that he
chased her in his truck.
Tarasenko testified that Curran hit the car mirror with a baseball bat,
threatened to kill Ostergard, and slapped Ostergard. She had no memory of
Curran following them in his truck.
In the early hours of the next morning, around 1:00 a.m., Curran drove to
Ostergard's house. He testified he went there to apologize for breaking the car
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No. 73590-0-1 / 3
mirror. When Curran was outside her house, Ostergard called the police. The
police arrived minutes later, finding Curran still outside Ostergard's house. Curran
told the police he was there to apologize for damaging Ostergard's car. The police
arrested Curran.
Events at Trial
The State charged Curran with felony harassment, assault in the fourth
degree, and malicious mischief in the third degree. Before trial, the State asked
the court to exclude certain evidence of some witnesses' character and prior bad
acts. Specifically, the State moved to exclude Curran's claims that Ostergard had
plans to engage in bank fraud and arrange for Tarasenko and herself to prostitute
themselves to older men. Curran's attorney told the court that they did not intend
to go into these issues. The court granted the State's exclusion request. During
Curran's testimony, the trial court sustained objections to questions about
Ostergard and Tarasenko's plans to do "things that they shouldn't be doing."
The jury found Curran guilty of malicious mischief and harassment. The
jury could not reach a verdict on the assault charge. The trial court later dismissed
that charge with prejudice. Curran appeals.
ANALYSIS
Excluded Evidence
Curran contends that the trial court denied him his Sixth Amendment right
to present a defense. This court reviews a trial court's decision to exclude
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evidence for abuse of discretion.1 "State courts have broad latitude under the
Constitution to establish rules excluding evidence from criminal trials."2 While the
Sixth Amendment grants a criminal defendant the right to present his defense,3
this right extends only to "'relevant evidence that is not otherwise inadmissible.'"4
"[A] criminal defendant has no constitutional right to have irrelevant evidence
admitted in his or her defense."5
"The threshold to admit relevant evidence is very low."6 Evidence is relevant
if it has "any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be
without the evidence."7 Relevant evidence may still be deemed inadmissible ifthe
State can show the evidence is "so prejudicial as to disrupt the fairness of the fact
finding process at trial."8 If the State establishes that the evidence would have a
prejudicial effect, the prejudice from admission must be balanced against the
defendant's need for the information sought.9
1 State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
2 State v. Donald, 178 Wn. App. 250, 263, 316 P.3d 1081 (2013) (citing
United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413
(1998)), review denied, 180 Wn.2d 1010 (2014).
3 Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019
(1967).
4 State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006) (quoting
State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)).
5 State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
6 State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189(2002).
7ER401.
8 Darden, 145 Wn.2d at 622.
9 Darden, 145 Wn.2d at 622.
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Here, the trial court did not abuse its discretion in excluding testimony
related to Ostergard's prostitution plans because the testimony was not relevant
to Curran's defense. Curran claims he was prevented from presenting evidence
of the witnesses' motive to fabricate. Specifically, Curran contends that he was
prevented from explaining that the witnesses fabricated their testimony because
they were upset with him, presumably for thwarting their prostitution plans. But
none of the stricken testimony addressed the witnesses' motivations. Thus, the
excluded evidence did not have "any tendency" to make fabrication "more or less
probable."10
Curran was precluded only from explaining his own motivations in
connection with the malicious mischief charge. He testified that he was trying to
help his friends by "keep[ing] them from going and doing things .. . they shouldn't
be doing." He was unable to explain this statement fully because of the court's
previous ruling on the State's request to exclude this evidence.
Curran appears to claim that he damaged Ostergard's car to prevent her
from prostituting herself and Tarasenko. The trial court struck Curran's statement
that Ostergard "was trying to get [Viktoriya] to go prostitute themselves." Curran
attempted to offer this testimony to explain his statement that "the whole reason
that [he] smashed her car was that her car is her weakness." Then, when asked
why he seemed frustrated, Curran responded, "Trying to explain my actions
without explaining my actions. I can't explain why I had took these actions that I
10
See ER 403.
No. 73590-0-1 / 6
took. It's like why did you get mad, but don't tell me why you got mad; just why
were you mad." Each of these statements references Curran's reasons for his own
actions, but none of them show why any witness would fabricate testimony.
Even if Curran did not offer the excluded testimony to explain his own
actions, it was not relevant to any witness's credibility. For instance, when defense
counsel asked if Curran knew why Ostergard was hanging around older
gentlemen, again referencing the alleged planned prostitution, the court sustained
the State's objection, ruling that it called for speculation about someone else's
mental state. Again, Curran does not explain how this or any of the excluded
evidence shows a witness's motive to lie. Because the excluded evidence does
not tend to make it more or less likely that the witnesses fabricated their testimony,
it was not relevant to Curran's defense.
Curran claims that the stricken evidence was relevant because, in the
State's rebuttal closing argument, it relied on the witnesses' motive to tell the truth.
Yet still, Curran fails to explain how the excluded evidence shows the witnesses'
motive to fabricate.
Excluding the evidence did not prevent Curran from challenging the
witnesses' credibility. To the extent the stricken testimony bears on the witnesses'
credibility, Curran presented alternative evidence on the issue. In State v.
Donald,11 this court concluded that the trial court did not abuse its discretion when
11 178 Wn. App. 250, 270-71, 316 P.3d 1081 (2013), review denied, 180
Wn.2d 1010(2014).
No. 73590-0-1 / 7
excluding evidence with some relevance because the court had reasonable
justification for its exclusion and the defendant had opportunity to present the
defense through other means. Here, Curran was able to attack the witnesses'
credibility through evidence of their drug use, which the court and deputy
prosecutor acknowledged was relevant to credibility.
Even if Curran could show minimal relevance, the trial court was justified in
excluding Curran's references to prostitution because of the prejudicial effect of
that evidence. Courts can properly exclude evidence that has little or no probative
value but could have significant prejudicial effect.12 In State v. Gallegos,13 a
defendant charged with rape sought to examine the victim's husband about
whether he approved or disapproved of her conduct and association with other
men. The defendant asserted that the husband's views could show a motive for
the victim to fabricate the entire incident or the severity of the incident.14 This court
concluded that the trial court did not abuse its discretion in restricting the cross-
examination because the testimony "had little if any probative value on whether
the victim was fabricating" and "could have had the prejudicial effect of suggesting
some impropriety."15 Similarly, here, the evidence Curran sought to introduce had
little, if any, bearing on the witnesses' motive to fabricate. However, as was noted
in the pretrial hearing, evidence of Ostergard's plans involving prostitution could
12 ER 403; State v. Gallegos, 65 Wn. App. 230, 237, 828 P.2d 37 (1992).
13 65 Wn. App. 230, 236-37, 828 P.2d 37 (1992).
14 Gallegos, 65 Wn. App. at 236-37.
15 Gallegos, 65 Wn. App. at 237.
No. 73590-0-1 / 8
"smear" her character. As the excluded evidence was not relevant to whether
Ostergard was telling the truth and merely tends to have the prejudicial effect of
besmirching her character in the eyes of the jury, the trial court acted within its
discretion in excluding it.
The trial court's decision to exclude the evidence was not arbitrary, nor did
it "significantly undermine a fundamental element of [Curran's] defense."16
Therefore, the trial court did not abuse its discretion in excluding evidence of the
witnesses' prostitution plans or striking Curran's related testimony.
Appellate Costs
Curran asks that the court waive his appellate costs. RCW 10.73.160(1)
vests the appellate court with broad discretion to grant or deny appellate costs.17
RAP 14.2 permits the court to exercise that discretion in a decision terminating
review. In exercising that discretion, ability to pay, although not the only relevant
factor, is an important consideration.18 "The appellate court will give a party the
benefits of an order of indigency throughout the review unless the trial court finds
the party's financial condition has improved to the extent that the party is no longer
indigent."19
In this case, facts weigh both for and against imposing appellate costs. On
the one hand, the trial court entered an order of indigency, waiving court costs and
16 Donald, 178 Wn. App. at 268.
17 State v. Sinclair, 192 Wn. App. 380, 388, 367 P.3d 612, review denied,
185Wn.2d 1034(2016).
18 Sinclair, 192 Wn. App. at 389.
19 RAP 15.2(f).
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No. 73590-0-1 / 9
fees because Curran was not employed at the time. The trial court found that "the
defendant lack[ed] sufficient funds to prosecute an appeal," and there was no
subsequent finding that Curran's financial condition has improved or is likely to
improve.20 On the other hand, the order of indigency was signed ex parte, and
thus, the State had no opportunity to present evidence showing Curran's ability to
pay.21
As a whole, the record does not support a finding that Curran cannot
currently or will not in the future be able to pay costs. In State v. Sinclair,22 we
found that awarding appellate costs was not appropriate because there was no
"realistic possibility that [Sinclair would] be released from prison in a position to
find gainful employment that [would] allow him to pay appellate costs." Sinclair
was 66 years old with a minimum sentence of 280 months.23 By contrast, Curran
is relatively young at 31 years, he served only three months, and he has been
released from custody.
Further, in Sinclair, the trial court appointed appellate counsel because
Sinclair was "'unable by reason of poverty to pay for any of the expenses of
appellate review.'"24 Here, by contrast, the trial court justified waiver of expenses
based on a finding that the defendant was unemployed. Curran provides no
evidence that he is still unemployed or is unable to obtain employment. We
20 Sinclair, 192 Wn. App. at 393.
21 Sinclair, 192 Wn. App. at 393.
22 192 Wn. App. 380, 393, 367 P.3d 612, review denied. 185 Wn.2d 1034
(2016).
23 Sinclair, 192 Wn. App. at 393.
24 Sinclair, 192 Wn. App. at 392.
No. 73590-0-1/10
therefore decline to conclude that Curran is presently unable to pay appellate
costs.
CONCLUSION
Because evidence about the witnesses' plans to prostitute themselves was
not relevant to Curran's defense at trial, the trial court properly excluded that
evidence. And because Curran provided no evidence that he is currently unable
to pay appellate costs, we decline Curran's request to deny the State costs. We
affirm.
WE CONCUR:
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